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

2. 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

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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. ESC Contact Particulars
Physical address Postal address 8th Floor Private Bag X94 28 Harrison Street Marshalltown Johannesburg Telephone Number: Fax Number:
Commission for Conciliation, Mediation & Arbitration ESC

18. 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

19. ESC STAFF MEMBERS Manager: Zama Moshani ZamangwevuM@ccma.org.za
Administrator: Beverly Ramoncha
Commission for Conciliation, Mediation & Arbitration ESC

20. QUESTIONS??
Commission for Conciliation, Mediation & Arbitration ESC

21. THE END
Commission for Conciliation, Mediation & Arbitration ESC