The President's State of the Nation address of 14 February 2013 made reference to the ANC's national executive committee’s recently announced intention to declare teaching an essential service. However, President Zuma then stated the following: "By saying education is an essential service we are not taking away the Constitutional rights of teachers as workers, such as the right to strike."
“The intention of Government might therefore be not to have the education sector declared an essential service under the Labour Relations Act (LRA), but to elevate it status in the governmental pecking order,” says Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr.
"Until further clarity is provided, one can only speculate on the effect on the education sector. For instance, the intention may be to request that the Essential Services Committee (ESC) declare only certain services within education to be essential.
“It seems unlikely, though, that certain services provided in the education sector would be declared as essential services while those provided by teachers remain unaffected. If there was a limitation on the right to strike brought about by declaring education services essential, none would be more important to control than the services provided by teachers."
“Should education be declared an essential service in terms of the LRA, workers engaged in that essential service would be precluded from taking part in strike action,” explains Botes.
"It is important to understand that workers engaged in essential services are not left to the whim or fancy of their employers simply because they may not lawfully strike. The disputes can still be addressed, but this is done through arbitration, not the power-play of strikes or lock-outs."
Botes says the LRA provides for an Essential Services Committee (ESC) which has the task of deciding which services fall within the definition. If a dispute on a matter of mutual interest arises in these services, the matter may be resolved through arbitration. Only a handful of industries have been certified as essential services. For instance, in December 2011 the security and electricity services at airports in South Africa were declared essential services by the ESC. In all other industries, including education (at present), disputes on employment issues of mutual interest such as remuneration and other terms and conditions of employment, are resolved through bargaining and eventually industrial action.
“Teachers and employment law monitors alike will be awaiting further clarity on the direction to be taken by parliament on this issue,” he adds.