Essential Services at a Cross Road

What are the Options?

Anton Roskam

Approaches to Essential ServicesList Approach Designation Approach• List of essential services

enumerated in legislation or by way of designation process

• Advantages:– Certainty– Avoids ad hoc determinations in

the heat of the moment• Disadvantage

– Inability to distinguish between disputes that endanger essential services and those that do not

• Essential service defined with reference to potential consequences of industrial action as opposed to nature of work and identity of employer

• Advantage– More flexible

• Disadvantage– Less certain

SA follows a designation approach with elements of the list approach

ILO identifies 5 kinds of services1. Essential services in the strict sense of the term2. Services leading to an acute national crisis3. Public services of fundamental importance4. Other public services

– Employees exercising authority in the name of the state

5. Ordinary services

Key Problems• The definition of essential services• Interpretation of section 72(b) of the LRA• The conclusion of minimum services agreements (MSAs)

– Parties lack capacity– No guidance from labour market institutions– No incentive to employer once designation made– Employers : ineffective sanctions for non-compliance– Dispute resolution regarding the conclusion of MSAs

• Eskom Holdings (Pty) Ltd v NUM and others [2009] 1 BLLR 5 (LC)• NUM & another v Eskom Holdings (Pty) Ltd (2010) 31 ILJ 2570 (LAC)

• Interest arbitrations • The powers and functions of the Essential Services Committee (ESC)

Interpreting Section 72(b) of the LRA

Minimum Service

Designated Essential Service A & B

X & Y

Key administrative problems• The way the ESC operates

– Under-resourced– Part-time commissioners– No secretariat– Research and collection of factual data– Accountability

• Composition of the ESC– Qualifications of persons and experience of public service

• Debate about these issues – publishing awards

Key Policy Issues• Incentive to conclude MSA• Min. Service too large

• Interest arbitrations, if designation more than 50%• Code of Good Practice for MSAs• Effectiveness of interest arbitrators and facilitators of MSAs• Sanctions for non-compliance with essential designation or MSA

• Who imposes? - ESC/CCMA/Labour Court/MSAs • Conflict between:

Strikers or workers locked out Min. service workers

“No work, no pay” applies Paid

Functions

Options – Institutional Arrangements