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ESSENTIAL SERVICES DESIGNATIONS & MINIMUM SERVICE AGREEMENT IN THE PUBLIC & PRIVATE SECTOR UNDER THE LRA AMENDME

ESSENTIAL SERVICES DESIGNATIONS & MINIMUM SERVICE AGREEMENT IN THE PUBLIC & PRIVATE SECTOR UNDER THE LRA AMENDMENTS 18 – 19 OCTOBER 2012. By Adv. Afzal Mosam With acknowledgments to: Dion Masher, Riaz Itzkin & Muzi Khoza. Introduction. DEFINITION

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ESSENTIAL SERVICES DESIGNATIONS & MINIMUM SERVICE AGREEMENT IN THE PUBLIC & PRIVATE SECTOR UNDER THE LRA AMENDME

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  1. ESSENTIAL SERVICES DESIGNATIONS & MINIMUM SERVICE AGREEMENT IN THE PUBLIC & PRIVATE SECTOR UNDER THE LRA AMENDMENTS18 – 19 OCTOBER 2012 By Adv. AfzalMosam With acknowledgments to: Dion Masher, Riaz Itzkin & Muzi Khoza

  2. Introduction • DEFINITION Section 213 of the LRA defines “essential service” as follows: "(a) A service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Service."

  3. Statutory Framework & Functions • Section 70 of the LRA provides that the Minister of Labourmust establish an ESC under the auspices of the Commission for Conciliation Mediation and Arbitration ("the CCMA"). • FUNCTIONS OF THE ESC: • Conduct investigations as to whether or not the whole or part of any service is an essential service; • To determine disputes as to whether or not the whole or part of any service is an essential service; • To conduct an investigation as to whether or not the whole or a part of any service is an essential service.

  4. Statutory Framework & Functions cont. BROADENING OF FUNCTIONS OF THE ESC UNDER THE BILL: • To appoint panels to assist the ESC in fulfilling its statutory mandate, by: • monitoring the implementation and observance of essential service determinations and minimum service agreements; • promoting effective dispute resolution in essential services; • developing guidelines for the negotiation of minimum service agreements; • deciding whether to institute investigations as to whether or not the whole or a part of any service is an essential service; • managing the ESC’s case load and appointing panels to hear and determine matters.

  5. Statutory Framework & Functions cont. • INCREASING THE CAPACITY OF THE ESC: • The chairperson or deputy chairperson of the ESC may preside over a panel hearing. In addition, a presiding member may be appointed from a list of senior Commissioners that have been trained for this purpose. • The ESC will not be required to actually preside over disputes regarding whether or not a service is an essential service, and instead, will be empowered to appoint panels to do this. • Establish a panel to hear and determine a matter if requested to do so by a bargaining council, and may request the CCMA or any other appropriate person to conduct investigations or to assist the ESC in an investigation, and to submit a report.

  6. Appointment of ESC members • The LRA currently gives the Minister the power to appoint any number of persons to the ESC. • The Bill introduces detailed criteria that the Minister must take into account when appointing members of the ESC and prescribes the number of persons who may be appointed to the ESC. • The Bill does not it limit the number of panels that the ESC may appoint.

  7. Appointment of ESC members cont • The ESC is to consist of 8 persons, viz. • an independent chairperson, • a deputy chairperson who must be a senior commissioner of the CCMA, • 2 members nominated by government, • 2 members nominated by labour, and • 2 members nominated by business • Other requirements include ESC members being South African citizens with suitable qualifications or experience in labour law, labour relations, commerce, industry or a sector of the economy, public affairs or the administration of justice.

  8. Jurisdiction of the ESC • In terms of the LRA Amendment Bill, the ESC will have jurisdiction throughout the Republic South Africa, while its seat will remain at the CCMA’s head office in Johannesburg. • The ESC will administered by the CCMA, and the Director of the CCMA (“the Director”) will be the accounting officer of the ESC for purposes of the Public Finance Management Act 1 of 1999. • The ESC is to be financed through the budget allocated to the CCMA.

  9. Regulations by the Minister • In terms of the Bill, the Minister will be empowered to make regulations “concerning any matter related to the functioning of the ESC and its panels”. • This provision appears to be extremely broad, and it remains to be seen how the Minister will exercise this power if the Bill is adopted with this provision intact.

  10. Public Officials exercising authority in the name of the state • Section 71(A) of the Bill defines “Public Officials exercising authority in the name of the state” as customs officials, immigration officers, judicial officers and officials working in the administration of justice. • In terms of the Bill, these officials are deemed to be providing an essential service once a specific procedure has been completed, culminating in the determination of the minimum service required to be maintained in that service. • Minimum service agreements that cover them must be ratified or determined by the ESC. • Provisions are put in place that allow for the negotiation and mediation of a minimum service agreement, and if no agreement can be concluded, for the determination of the minimum services for the maintenance of the services provided by these officials.

  11. Minimum Service Agreements & Determinations • In terms of section 72 of the LRA as it currently stands, the ESC may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as an essential service, in which case the agreed minimum services are to be regarded as an essential service in respect of the employer and its employees. • It is significant to that very few minimum service agreements have been ratified by the ESC.

  12. Minimum Service Agreements & Determinations cont. • The effect of the conclusion of a minimum service agreement ratified by the ESC is that the agreed minimum services are deemed essential and the remaining services are no longer treated as part of the essential service. • Employees who are prohibited from striking may benefit from the outcome of the strike. • These employees that are deemed essential are entitled to refer the dispute to the CCMA, whilst the employees who are not declared essential may persist in striking See City of Cape Town v SALGBC & others (2011) 32 ILJ 1318 (LC)

  13. Conclusion • The amendments proposed in the Bill are, by and large, to be welcomed. • They are likely to assist in improving the capacity of the ESC and in enhancing the legitimacy of its decisions, and on a practical level, they will ensure that the ESC, as a statutory body governed, inter alia, by the PFMA, is administered in an effective and responsible manner. • The proposals regarding minimum service determinations will allow for the ESC to play a more involved role in striking the delicate balance between the right to strike, and the necessity of ensuring that our economy is not debilitated by protected strike action.

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