Essential services presentation 2018 Commission for Conciliation, Mediation & Arbitration ESC Essential services presentation 2018 Essential Services Committee

Overview Essential Services Law Services declared essential in the said institutions? The Law on Minimum Service Agreements (MSA’s) Negotiating MSA’s Commission for Conciliation, Mediation & Arbitration ESC

ESC Mandate Balancing the right to strike with the need to provide essential services Commission for Conciliation, Mediation & Arbitration ESC

What is an Essential Service? 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; ……. …….. Commission for Conciliation, Mediation & Arbitration ESC

December 2004 Designation The whole of the services provided by old age homes registered in terms of the National Welfare Act (Act No.100 of 1978) NB. This is applicable to all Old Age Homes that are state funded or that receive a state subsidy for the elderly they care for. The whole of the service provided by Children’s Homes and places of care in terms of section 30 of the Child Care Act of 1983 These are generally state funded institutions Commission for Conciliation, Mediation & Arbitration ESC

CCMA Cases In the recent past we have noted that a number of unions have attempted to go on strike in Old age homes / nursing homes / institutions of care. The CCMA has at times erred and gave unions certificates allowing them to strike. This practice is wrong and has now been corrected If you engage in wage negotiations with unions and there is no agreement reached, and the union refers the matter to the CCMA. When you attend the conciliation, please advise the CCMA Commissioner that you render essential services. Commission for Conciliation, Mediation & Arbitration ESC

CCMA Cases The CCMA will still attempt to conciliate the matter, but if the matter remains unresolved, then the CCMA Commissioner will issue a certificate of non resolution indicating the next step of dispute resolution to be interest arbitration. In the arbitration, an arbitrator will determine what the wage increase should be, and any other benefits, and conditions of employment that have been negotiated on and not agreed. Commission for Conciliation, Mediation & Arbitration ESC

Minimum Services With the amendments to the Labour Relations Act, Section 72(2) provides for minimum service agreements. These agreements provide for parties to conclude collective agreements, which provide for minimum services through some employees who would continue working during a strike in an Essential Service. The ESC this year initiated three investigations on its own accord. We have received only this year so many………………. Commission for Conciliation, Mediation & Arbitration ESC

Minimum Service Agreements Designated Essential Service Minimum Services These employees Continue to render essential services during a strike A Minimum Service Agreement or Determination ensures that a certain number of employees in an essential service may now strike, unlike a workplace with no MSA/MSD.

Concluding Minimum Services In concluding an MSA the question that must be answered is: What is the least number of employees that are rendering essential services, that are required in order to render essential services during a protected strike? PFG Amanzi control CC Commission for Conciliation, Mediation & Arbitration ESC

Minimum Services MSA’s has The following elements: Main agreement, must include: issue of replacement labour; duration of the agreement, dispute resolution, etc The total staff complement (as contained in he organogram of an institution); Numbers of people who can strike The motivation for the ESC to accept the numbers PFG Amanzi control CC Commission for Conciliation, Mediation & Arbitration ESC

Minimum Service Agreement MSA’s are Employer initiated, in that Annexure 1 is completed by the Employer and taken for negotiation The ESC suggests that the Employer also takes a proposed Annexure 2 to the negotiation forum as a document to kick start the negotiations The Unions are well within their rights to also make their proposals so that the two proposals can be merged at the negotiations session PFG Amanzi control CC Commission for Conciliation, Mediation & Arbitration ESC

Negotiating a MSA The MSA must meet the following requirements: Be clear and unambiguous It needs to detail all the affected positions in the organogram and clearly state which ones fall within the minimum service and which ones fall outside Indicate the number of employees who can strike and their job categories Refer to the annexures for discussion Commission for Conciliation, Mediation & Arbitration ESC

Negotiating a MSA The MSA must meet the following requirements (continued): Set out the employees who may not strike and their job categories Provisions regarding replacement labour MSA must be in English Indicate the duration of the agreement (preferably not more than five years) Contain a clear dispute resolution mechanism Commission for Conciliation, Mediation & Arbitration ESC

Negotiating a MSA: Practical steps List all employees in designated services Designated Service Post designation of employees essential No. of employees per post No. Of employees who must work during a strike No. Of employees who may strike Care Givers Nursing Catering Senior Care Giver Registered Nurse Nursing Assistant Chef Kitchen assistants 2 8 1 3 4 5 Commission for Conciliation, Mediation & Arbitration ESC

Conclusion The conclusion of an MSA is employer driven in that it starts with completing the Annexure and presenting it to the union / staff representatives In the negotiations, the focus should be on the numbers that would still ensure that essential services continue to be rendered during a strike, albeit in a crippled manner When parties conclude MSAs they must consider the public interest factor The ESC may be requested to assist Once the negotiations are finalised the draft must be sent to the ESC Commission for Conciliation, Mediation & Arbitration ESC

ESC Contact Particulars Physical address Postal address 8th Floor Private Bag X94 28 Harrison Street Marshalltown Johannesburg 2017 2001 Telephone Number: 011 377 6733 Fax Number: 086 534 8694 Email: ESC@CCMA.org.za Commission for Conciliation, Mediation & Arbitration ESC

ESC MEMBERS Ms. J Nkopane: Deputy Chairperson Adv. L Bono: Chairperson Mr. M Ndaba: Mr. Marule Labour Reps Ms. A Ranchod Dr. A Gildenhuys Business Reps Adv. N Memani Mr. Zwe Ndlala Govt. Reps Commission for Conciliation, Mediation & Arbitration ESC

ESC STAFF MEMBERS Manager: Zama Moshani ZamangwevuM@ccma.org.za 011 377 6996 Administrator: Beverly Ramoncha BeverlyR@ccma.org.za 011 377 6953 Commission for Conciliation, Mediation & Arbitration ESC

QUESTIONS?? Commission for Conciliation, Mediation & Arbitration ESC

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