2 July 2008 by

Labour Relations Act prohibits strikes in essential services

Essential services are those services which would result in people’s lives, personal safety or health being endangered were those services to be interrupted.

The essential services committee is the body that decides whether or not to declare the whole or part of a service as essential. It is presided over by an independent chairperson and two representatives, one elected by the Union movement and the other by employers.

Previously, the essential services committee has made broad designations, for example declaring the generation, transmission and distribution of electricity as an essential service.

In practice, such designations are overbroad because, on the face of it, they would include the gardener, tea worker as well as the fire fighter. The present essential services committee has for the past months struggled with the breadth of previous designations and there is an attempt now to limit the breadth of such designations to ensure that they cover the truly essential employee.

This is a difficult task. The LRA allows the parties within an essential service to conclude minimum service agreements in order to cure the problem. It is contentious as to whether or not the essential services committee is allowed to delve into the depths of the specifics because it can be argued that the LRA has left this for the parties to do.

Recently, the Labour Court, in Eskom / NUMSA & Others, dealt with the question as to whether or not the parties can narrow the breadth of a broad essential services declaration, in the absence of consensus, by referring such a dispute to the CCMA as an interest dispute under Section 74 of the LRA. The Labour Court has yet to pronounce judgement on the issue. If the Court finds that the CCMA can narrow overbroad designations, then parties who are unable to conclude a Minimum Service Agreement may refer such disputes to interest arbitrations. If the Court finds that the CCMA has no jurisdiction to do this, then parties who are confronted with overbroad designations may re-approach the essential services committee for narrowing of the original declaration.

Recently, the Labour Court, in SAPS v Popcru & Others, 2007 IO BLUR 978 (LC), has allowed administrative workers employed in the SAPS the right to strike on the basis that they do not perform essential services. The distinction with the SAPS, however, is that it, like the parliamentary services, has been designated an essential service in the LRA. The implications of this judgement to the work of the essential services committee are yet to be unpacked.

How does the essential services committee determine whether a service is essential or not?

It must be provided with evidence that the service, if interrupted, will endanger life, personal safety or health.

The contentious issue that the essential services committee is presently grappling with is whether or not, for a service to be declared essential, it has to be established that a strike will interrupt that service.

The definition of essential services is not clear because it does not expressly require one to show that the strike must interrupt the service. In the past, the essential services committee has required proof that a strike must interrupt the service. This means that where alternatives are available, such as replacement workers, then a service will not be declared essential. This approach is only workable if the replacement workers right to strike is taken away. If the replacement workers right to strike is not taken away, then it would be difficult to contend that a strike will not interrupt a service which is essential. Limiting the designation to replacement workers is also problematic because it could lead to complaints of illegitimate differentiation by temporary workers.

There is considerable room for development of the law in this area, particularly because decisions often involve the balancing of the right to strike with other important rights such as the right to life, property and personal health.

Aadil Patel, Director & Head of the Employment Law practice, and Yvonne Mkefa , Senior Associate, Cliffe Dekker Hofmeyr.

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