Essential Services Committee proposals for improving essential services legislation

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Employment and Labour

15 June 2022
Chairperson: Ms M Dunjwa (ANC)
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Meeting Summary

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The Essential Services Committee (ESC), which is located at the CCMA, requested the meeting to present to the Committee as there are compliance challenges in maintaining essential services during a strike, especially in the public sector. It identified the root causes leading to this and proposed amendments to Section 70B of the Labour Relations Act (LRA). Specifically, the ESC seeks assistance with correcting the S72(3) so that unions can have the option of referring their interest disputes to arbitration.

Members of the committee appreciated the presentation and the way ESC handled cases with the highest efficiency and "superbly well". They asked if ESC only monitors the public sector; how it identifies essential workers and if there are workshops so essential workers understand their role and learn about their rights. Some members reckoned that it is best to convince the Minister of Employment and Labour to not only invoke Section 150 of Labour Relations Act but embrace more powers of the Essential Services Committee.

Meeting report

The Chairperson said that the Essential Services Committee had requested to present to the Portfolio Committee on Employment and Labour.

Essential Services Committee (ESC) briefing
Adv Luvuyo Bono, ESC Chairperson, said that the ESC meeting request was a means to talk about compliance challenges and to raise some concerns about certain sections in the Labour Relations Act. ESC had engaged other stakeholders about amendments of the Act.

It is a requirement of the ESC operational plan that it engages stakeholders about legislative changes to strengthen essential services law. As part of that in 2020/21 the ESC had identified and engaged two stakeholders: ILO and Nedlac. For the current financial year, the ESC has identified the Department of Employment and Labour (DEL) and the Portfolio Committee as stakeholders. ESC engagements with DEL have been finalised. Essentially, what ESC wanted to achieve was to have engagements with the named stakeholders on what could be done to strengthen the Essential Services regime in the country. ESC went to Nedlac last year and had engagements. ESC also spoke to the ILO to get a perspective of what other essential services regimes are and how the ESC fares in comparison to that.

Compliance
Section 65(1)(d)(i) of the Labour Relations Act limits the right to strike for employees rendering essential services. Some of these employees whose right to strike is limited - can participate in a protest through a minimum service agreement or a minimum service determination.

ESC has seen a number of strikes in the public service in essential services and in local government municipalities which had some degree of non-compliance. It is not always the case but some employees who are expected to continue services during a protected strike do not comply and join the strike.

In a limited number of cases where a minimum service agreement/maintenance services agreement and determination exist in municipalities, there has been some compliance

Section 70B(1)(a) and (b) of the Labour Relations Act authorises the ESC to monitor the implementation and observance of an essential service determination, minimum service agreement (MSA), maintenance services agreement and determination (MSD).

The ESC uses Section 70B to engage unions and employers on the root causes of non-compliance. The root causes are due to:
- No consequences for unprotected strikes. Most employees who are in the public service offering essential services do not suffer consequences. It is difficult for employers to enforce "no work, no pay”.
- There is no buy-in on minimum service agreements. This means that employees believe that essential services continue to be rendered albeit by a limited number of employees weakens the strike.
- The MSA divides employees as some must strike while others must work.

The ESC engaged NEDLAC on how this gap can be closed, as it potentially renders the work of the ESC a nullity. The ESC also seeks to engage Parliament on this. The ESC designations of essential services and minimums to be maintained in the event of a strike are only good on paper, but not practiced in some cases. There is a need for an institution such as the Labour Court or CCMA to penalise unprotected strikes, particularly in essential services as they endanger the life, personal safety and health of the population

Section 72(5) of the Labour Relations Act challenge
• Section 72 (5) of the Act provides that—
(a) Despite subsections (3) and (4), section 74 applies to a designated essential service in respect of which the essential services committee has ratified a minimum services agreement or has made a determination of minimum services if the majority of employees employed in the essential services voted in a ballot in favour of this.’’;

1. Essentially interest arbitration is only applicable in this case when the parties vote for it.
• The first question is if they do not vote, then they depend on the outcome of the strike for the resolution of the dispute.
• If it is a big strike such as wages this may be practical, as there will be one outcome of the dispute concluded during the strike. If the strike is about a matter of mutual interest in one section such as traffic officers in a municipality, and the MSA or MSD provides that the greater number must work during the strike, then it does not make sense for the employees to strike. These employees are almost compelled to ballot for interest arbitration. If they lose the vote they have no dispute resolution process.

2. The next question is should the employee decide to ballot, which ones of them should ballot?
• Is it only the employees at the traffic department or is it the entire workforce.
• A further complication is that in most workplaces there are numerous unions. If there is SAMWU and IMATU but only SAMWU has declared the dispute and only it wants to strike. Must only SAMWU members vote in the ballot or will IMATU members also vote?
• These two issues are in the ESC’s view not clear in the LRA.

Proposed Bill
After we raised the above issues with the Department of Employment and Labour they sent us a draft bill. In this bill, Section 72(5) and (6) have been deleted but Section 72(3) still remains. This resolves half the problem as it still says interest arbitrations still do not apply where parties have an MSA or the ESC made an MSD. This still leaves parties with no option to refer interest disputes to arbitration. The ESC is of the view that this is an error and should be rectified by completely deleting both Section 72(3) and Section 72(5). If this is done unions can easily access interest arbitrations instead of embarking on a strike.

Way forward
The ESC seeks assistance in ensuring that there is compliance with its prescripts so S71 designations of essential services and S72 minimums are maintained during a strike. The ESC seeks assistance with correcting the S72(3) amendment so that unions can have the option of referring their interest disputes to arbitration.

Discussion
Mr M Bagraim (DA) thanked ESC for its report and for handling their cases efficiently and superbly well. He suggested that the Portfolio Committee must convince the Minister of Employment and Labour to invoke not only Section 150 of the Labour Relations Act but a lot more of the powers of the Essential Services Committee. As times get tougher and as municipalities get poorer, ESC is going to play a huge role in bringing stability. There are going to be a lot more service delivery issues as more staff members will be engaging in strikes.

Ms C Mkhonto (EFF) welcomed the presentation and asked, while the focus seems to be on public institutions – is ESC going to focus on the private sector? Who identifies private sector essential workers and what criteria is being used to identify those essential workers? Are there workshops that assist them in understanding their role as essential workers and more importantly to remind them to execute their essential duties no matter what dispute they have with their employer?

ESC response
Adv Bono replied that ESC has always worked closely with the CCMA. An example of intervention by ESC is in the City of Cape Town. The aim is to ensure that dispute resolution mechanisms are bound in essential services and that workers only engage in strikes as a last option, especially in essential services.

The focus is not necessarily on the public service. The public service was mentioned as an example. The ESC does a lot of work in the private sector. It has numerous minimum service determinations such as in services provided in the private health sector.

On who identifies the workers, Adv Bono replied that it is not the workers that are essential, but the service. In this country, there are only two ways in which a service can be classified as essential. This is done through legislation. For example: SAPS is classified as an essential service by the definition in the Labour Relations Act and electoral services are classified as an essential service by the Electoral Act. The second way a service can be designated as an essential service is if the ESC designates such a service as essential.

ESC has stakeholder management and awareness campaigns. These ensure that the ESC supports the parties with facilitation. In addition, the ESC always takes the opportunity to educate the staff on essential services about their rights. This is done in cooperation with the CCMA.

Closing remarks
The Chairperson said the presentation was very encouraging. It was of great public interest, especially in the area of workers. The ESC needs to come back to the Committee to give Members the opportunity to ask critical questions. She excused ESC delegates from the meeting.

Committee minutes dated 2, 9, 16, 23, 30 March; 4, 11, 25 May; 1 June 2022 were adopted.

Members were reminded by the Chairperson to attend the oversight visits planned for Youth Day. Those that did not send apologies were asked to commit to this to avoid penalty fee charges for non-adherence to the House.

The meeting was adjourned.

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