21 October 2011

What aviation industry services could be regarded as essential services?

For entirely understandable reasons, the regulation and control of air traffic in South Africa was designated as an essential service, from 6 June 1997. As a result, employees engaged in this work are prohibited from exercising their constitutional right to strike in wage and other such disputes. The question that arises is: what other aviation industry services could be regarded as essential services in the context of the Labour Relations Act, 1995 (the LRA)?

As a point of departure, airports in South Africa have been designated as national key points under the National Key Points Act, 1980. Section 2 of that Act empowers the Minister of Defence to proclaim as a national key point any place or area so important that its loss, damage, disruption or immobilisation may prejudice the country. Since the aim of a strike is to create disruption to work flows,what then is the position if a strike is called in an area or service designated as a national key point? Should this strike be prohibited under the LRA by declaring that service essential?

Section 213 of the LRA defines an "essential service" as one which, if interrupted, will endanger the life, personal safety or health of the whole or any part of the population.

The Parliamentary service and the South African Police Service are also essential services. The definition appears narrower than the definition of an "Essential Service" in terms of section 2 of the LRA. What factors, then, would the Essential Services Committee (ESC) take into account when assessing whether aviation and support services should be declared as essential services? An applicant must be able to establish that its service, if interrupted, will endanger the life, personal safety or health of any or all of the population. It is the service itself that must be essential, rather than the industry within which it operates.

The factors for consideration include:

  • The percentage of South Africa's aviation logistics requirements that the applicant supplies or contributes to.
  • Whether the supply of such percentage is considered to be essential to the South African market.
  • The possible consequences, direct and indirect, of the periodic interruption to the supply of those services as a result of strike action.
  • Whether the services support other essential services. An aviation logistics service provider could argue that it forms a crucial part of air traffic control functions by providing tug services for aircraft. Also, it may contribute to providing health services when medical equipment or materials form part of cargo.
  • Whether a large percentage of the applicant's workforce is so highly skilled that ordinary employees would be able to acquire those skills only after lengthy training.
  • Whether there is a readily available pool of alternative labour. Given the strict security provisions at airports and that a large proportion of the functions rendered by aviation logistics companies requires specialised employees, replacement labour may not be easily accessible, if at all.

The Constitutional Court has previously held that essential services must be restrictively defined since that designation limits an employee's right to strike action and may undermine the collective bargaining system advocated in the LRA. So, applications for essential services' status will need compelling evidence to support the premise that strike action would create an imminent threat to health, personal safety or life if the service's employees are allowed to strike.

Gavin Stansfield

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