Section 213 of the Labour Relations Act defines an essential service as:
- a service the interruption of which endangers the life, personal safety, or health of the whole or any part of the population;
- the Parliamentary service;
- the South African Police Services
The right to strike is a constitutional right afforded to all workers in terms of Section 23(2)(c) of the Constitution of South Africa. While the right to strike is a fundamental right, there is an equally important need to balance this right with other fundamental rights, such as those relating to health care, food, water, and social security. The Labour Relations Act has therefore placed certain limitations on the right to strike. In terms of Section 65(d)(1) of the Labour Relations Act, any person engaged in an essential service may not take part in a strike.
The inclusion of this section has the effect that strikes in essential services are unprotected under the Labour Relations Act, meaning that essential workers participating in a strike can be dismissed for misconduct and furthermore be held liable for delictual and contractual damages.
The definition of essential services is quite broad. Section 70 of the Labour Relations Act, therefore, has established the essential service committee under the auspices of the Commission for Conciliation, Mediation and Arbitration. One of the functions of this committee is to decide on its own initiative or, at the reasonable request of any party, whether to institute investigations and to decide whether the whole or part of any service is an essential service.
Section 71 of the Labour Relations Act stipulates the procedure that needs to be followed when designating a service as an essential service, briefly summarised as follows:
- The essential service committee must give notice in the Government Gazette of any investigation that it is to conduct as whether a whole or part of a service is an essential service.
- The notice must indicate the service of the part of the service that is to be the subject of the investigation and must invite interested parties to give written or oral representations.
- After having considered any written and oral representations, the essential service committee must decide whether to designate the whole or part of the service as an essential service.
- If the whole or part of a service is designated as an essential service, the essential service committee must publish a notice to that effect in the Government Gazette.
These Government Gazettes and a full list of services that have been designated as essential services can conveniently be viewed on the CCMA website.
In addition to the above, Section 73 of the Labour Relations Act stipulates that any party may refer a dispute in writing to the essential services committee to determine whether a service is an essential service; and whether or not an employee or employer is engaged in a service designated as an essential service. The essential service committee must determine the dispute as soon as possible. LRA form 4.7A should be completed and filed if a party wants to request the essential service committee to conduct an investigation as to whether a whole or part of a service is an essential service.
The test to determine whether a service is an essential service was confirmed by the Constitutional Court in SAPS v POPCRU and Another (2011) 9 BLLR 831 (CC). The Constitutional Court held that when courts are called to decide on the question, they must follow a restrictive interpretation of essential services. The court held that although the SAPS is labelled as an essential service under Section 213 of the Labour Relations Act, that not all SAPS employees are engaged in essential services. It held that only the workers that the SAPS has chosen as members in terms of Section 29 of the South African Police Service Act 68 of 1995 are covered and thus engaged in essential services.
Having established that essential workers may not strike, these workers are not left without recourse when it comes to disputes of interest. A dispute of interest, such as a wage dispute, may not be arbitrated. Normally, if a dispute of interest remains unresolved at conciliation, parties embark on strikes and lockouts as a means of resolving the dispute. Section 74 of the Labour Relations Act provides that any party to a dispute that is precluded from participating in a strike or lockout because that party is engaged in an essential service may refer the dispute to the CCMA or Bargaining Council for arbitration if the dispute is not resolved at the conciliation stage. An essential service worker may therefore refer a dispute of interest such as wages to arbitration due to the limitation on the right to strike.
In terms of Section 72 of the Labour Relations Act, parties in designated essential services may negotiate and enter into a minimum service agreement which would regulate the minimum level of service to be provided by workers. This means that the minimum service levels agreed to become the essential service. In other words, employees performing the minimum service levels are prevented from striking while the remainder of the employees will be allowed to strike. Such an agreement ensures that the essential service is still provided while balancing the right of employees to strike.
Article by: Ruaan Heunis
Dispute Resolution Official – East London