The Essential Services Committee has been established in terms of Section 70 of the Labour Relations Act to:
- monitor and implement essential service determinations
- monitor and implement and minimum service agreements
- to promote dispute resolution in essential services,
- develop guidelines for the negotiation of minimum service agreements
- to decide on its own initiative or at a request of an interested party whether a whole or part of any service is an essential service
An essential service defined in section 213 of the Labour Relations Act as:
“a service which, if interrupted, would endanger life, safety or health of the whole or part of the population.”
The concept finds application under the provisions on Limitations to the right to strike as contained in the LRA.
Section 65(1) (g) provides:
“ No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if that person is engaged in
- an essential service; or
- a maintenance service.”
The LRA does not distinguish between essential and maintenance services in the public and private sectors. Although most essential services are provided by the public sector, nothing prevents the Essential Services Committee from classifying an employer in the private sector as an essential service. An example would be a private medical facility.
The main function of the essential services committee is to determine whether services can be classified as essential or maintenance services. Once a service or part of a service has been designated, the act provides that notice thereof must be published in the Government Gazette.
Employer’s seeking to be determined as an essential service should bear in mind that it is the service which will be designated as essential, not the employees, institution or business. An organisation may consist of essential-services employees and non-essential services employees. Further, only employees who are truly performing essential services will be prohibited from striking. The applicant will need to be able to show that an interruption of such service will endanger life, personal safety or health. If industrial action is unlikely to interrupt the service or if the interruption of service could be avoided (for example, through replacement labour), the service will not be designated as an essential service.
Where disputes arise over wages and conditions of employment concerning essential services workers, section 74 of the LRA provides that these employees who are prohibited from striking must refer disputes for conciliation to the CCMA or Bargaining Council. If the dispute remains unresolved, it should be referred to arbitration.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town