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Essential Services at a Cross Road
What are the Options?
Anton Roskam
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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
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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
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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)
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Interpreting Section 72(b) of the LRA
Minimum Service
Designated Essential Service A & B
X & Y
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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
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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
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Functions
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Options – Institutional Arrangements
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