1. ESSENTIAL SERVICES COMMITTEE INAUGURAL PRESENTATION 13 May 2015

2. Overview of the presentation 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 2 1. Establishment of the ESC 2. Services designated by the ESC 3. ESC Operations 4. ESC’s Vision and Mission 5. The legislative framework of essential services 6. The LRA: the composition, powers and functions of the Essential Services Committee (ESC); the appointment of and powers and functions of essential services panels; Investigations and determinations 7. The ESC Regulations

3. ESSENTIAL SERVICES COMMITTEE 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 3  Established in terms of Sec 70 of the LRA 66 of 1995  Its primary Mandate is to:  conduct investigations as to whether or not the whole or a part of any service is an essential service, and then to designate accordingly (S71)  Conclude Minimum Service Agreements (MSA) for designated services and ratify Bargaining Council Collective Agreements that provide for the maintenance of Minimum Services (S72)  Handle disputes on whether services are essential (S73)  Net effect of designation is to limit the right to strike

4. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 4 Municipal traffic services and policing. Municipal health. Municipal security. The supply and distribution of water. The security services of the Department of Water Affairs and Forestry. The generation, transmission and distribution of power. Fire-fighting. The payment of social pensions one month after they fall due. The services required for the functioning of Courts. Correctional services. Blood transfusion services provided by the South African Blood Transfusion Service.

5. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 5 The following services in the public sector:  Emergency health services and the provision of emergency health facilities to the community or part thereof;  Nursing;  Medical and paramedical services; and  The following services which support the services referred to above: Catering; medical records; security; porter and reception; pharmaceutical and dispensary; medicine quality control laboratory; pest control; forensics; laundry work; clinical engineering; hospital engineering; waste removal; and mortuary services. The Blood Transfusion Services (EP), (WP), (N), Border and National. The whole of the services provided by old age homes registered in terms of the National Welfare Act. The whole of the services provided by children’s homes and places of care in terms of Section 30 of the Child Care Act of 1983.

6. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 6 Computer services provided or supported by the Central Computer Service of the Department of State Expenditure:  The Persal system;  The social pension system;  The hospital systems;  The flood control system. The regulation and control of air traffic. The weather bureau of the Department of Environmental Affairs and Tourism. The following services provided at all airports in South Africa:  All electrical services;  All safety services;  All security services.

7. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 7 Immigration officers grade 8 and above. The following parts of sanitation services:  The maintenance and operation of water borne sewerage systems, including pumping stations and the control of discharge of industrial effluent into the system;  The maintenance and operation of sewerage purification works;  The collection of refuse of an organic nature;  The collection of infectious refuse from medical and veterinary hospitals or practices;  The collection and disposal of refuse at a disposal site;  The collection of refuse left uncollected for fourteen (14) days or longer, including domestic refuse and refuse on public roads and open spaces

8. ESC DESIGNATED SERVICES 13/05/2013 © Commission for Conciliation, Mediation & Arbitration 2015 8 The following services provided by the private sector which are funded by the public sector:  Emergency health services and the provision of emergency health facilities to the community or part thereof;  Nursing;  Medical and paramedical services;  The following services in support of the services referred to above:  boiler; and  water purification.

9. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 9 The following services provided by nursing homes which are registered as welfare organisations in terms of the National Welfare Act, 1978, to patients in need of moderate (level 2) and maximum (level 3) care:  Emergency health services and the provision of emergency health facilities;  Nursing; and  Medical and paramedical services; and  The following services in support of the services referred to above:  Physiotherapy;Dispensary;  Catering, Laundry;  Boiler;transport; and  security.

10. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 10 The following services provided by the following civilian personnel in the Department of Defence to support the South African National Defence Force:  The Secretariat for Defence;  The intelligence division;  The finance division;  The parachute seamstresses of the South African Army;  The parachute packing operators of the South African Army;  The military intelligence functionaries of the South African Army;  The store man in the South African Navy;  The provisioning officers and clerks in the South African Navy;  The technical personnel in the South African Navy;

11. ESC DESIGNATED SERVICES 13/05/2013 © Commission for Conciliation, Mediation & Arbitration 2015 11 The following services provided by the following civilian personnel in the Department of Defence to support the South African National Defence Force:  The tugboat personnel in the South African Navy;  The surveyors in the South African Navy;  The South African medical service;  Those serving in military posts in the South African National Defence Force;  The cryptographers in the South African National Defence Force; and  The maintenance services in the South African National Defence Force.

12. ESC DESIGNATED SERVICES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 12 The following services provided by privately owned old age homes as well as nursing homes and institutions that care for assisted and frail care patients and that are not registered with the Department of Social Development or do not receive any financial assistance or subsidies from the State, as essential services:  Nursing;  Caregiving being the service of caring for an elderly assisted and/or frail patient with the implied or express consent of that person and in support of nursing services, and as set out in Section 17 of the Older Persons Act, 13 of 2006;  Pharmaceutical;Dispensary;  Occupational therapy;Rehabilitative support;  Physiotherapy; andCatering.

13. 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 13 OPERATIONS 2013 – 2014 & 2015 and beyond (LRAA)

14. OPERATIONS (2013-2014) 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 14  DOL Committee located at the CCMA. We operate in terms of the Labour Relations Act  Members appointed by the Minister in consultation with NEDLAC  CCMA provides Admin support (ESC Coordinator is appointed, managed and paid by the CCMA)  In 2013, the ESC requested a seat in the CCMA GB so that it can have a platform wherein it can raise its operational challenges. Seat was denied on the basis that the seats at the GB are in terms of the LRA.

15. OPERATIONS (2013-2014) 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 15  As a compromise, the ESC was offered an opportunity to appear and report on GB meetings.  The ESC decided to establish the following formal reporting lines:  reports of activities and challenges to the CCMA GB quarterly,  Reports of activities, twice a year to the Minister of Labour and social partners

16. OPERATIONS (2015 and beyond) 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 16  CCMA Director is now the Accounting Officer  PFMA Compliance: we have recently adopted an operational plan, with all activities  Do quaterly reports and assessments  We have a Deputy Chairperson (CCMA Snr Commissioner)  We have government representatives in the ESC

17. OPERATIONAL CHALLENGES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 17  ESC is seen as the step child of the CCMA, more than a service delivery institution. Priorities are not the same  Training of members  Office space,  Etc  Resources for the ESC are a challenge  Communication (cell phone)  Internet access  Office space  Securing service providers  Diferrent understanding of the what the ESC is and who runs it. CCMA’s view is that the disagreement impacts on the relationship

18. OPERATIONAL CHALLENGES 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 18  Role of GB at the ESC  Establishment of Task Team to look into nomination process of members, relationship between ESC and CCMA, etc  Interpretation of “Accounting Officer”  Everything that happens at the ESC must be approved by the Director  Must the Director be consulted on the appointement of members?  etc  CCMA and ESC joint projects  Roadshows  CCMA’s view is that the disagreement impacts on the relationship, and if you disagree with the Director, the ESC suffers

19. 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 19 STRATEGIC DIRECTION 2013 – 2014 & 2015 and beyond (LRAA)

20. ESC VISION AND MISSION 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 20 VISION  Safe communities, credible determinations, fair outcomes for worker and employers MISSION  To determine essential, maintenance and minimum services and to give effect to the statutory provisions of the LRA, so as to protect the life, personal safety and health of the population of South Africa

21. Strategic Objective ActivityProjectProgress 1.An educated committee, set of users and public about the mandate and the work of the ESC Training our Target users, SALGBC PHSDSBC GPSSBC Completed 2014 Completed 2013 Training Committee members Due to end of term of members, training was postponed, New members to be trained in 2015 Scheduled for July 2015 21

22. Strategic Objective ActivityTime lineProgress 2. Timeous preparation and Implementation of the 2015 Labour Relations Act Amendements Drating ESC Regulations Monitoring and evaluation of ESC determinatio ns and MSA’s. 31 Dec 2014 30 June 2015 Completed September 2014 ESC developed framework. Liaison with the CCMA to finalise. 1 st evaluation is the City of CT May 2015 SAMWU strike Training of CCMA Commission ers 31 Dec 2014Completed 30 Sept 2014 22

23. Strategic Objective ActivityTime lineProgress 2. Timeous Implementation of the 2015 Labour Relations Act Amendements Drafting guidelines for MSA’s 30 June 2015ESC developed framework. Service Provider finalising project 3. Seamless operations with the CCMA Loading ESC cases on CMS Access to CCMA research unit. ESC Determinations available on website 2013 2014 June 2014 Completed 23

24. Strategic Objective ActivityTime lineProgress 4. An ESC that is known and accesible to its users Training of users Conduct Roadshows 2013/4Completed Plan completed. Implementation In progress Conduct TV & Radio interviews Attend to exhibitions on user’s major events. June – July 2015 Continuous Plan completed. Implementation In progress 24

25. Strategic Objective ActivityTime lineProgress 5. Strategic interventions for MSA’s PSCBC Intervention SALGBC Intervention 2014/5 ESC drafted MSA template for PSCBC. Matter under discussion. ESC approved SALGBC MSA framework agreement Parliament Intervention 2014/5Parties negotiating MSA 25

26. 2015 STRAT PLAN 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 26 ProjectsCases Communication Plan PSCBC Intervention SALGBC Intervention Guidelines for MSA Monitoring and Evaluation Function Assessor's Training Engagement with Parliament Training of CCMA Commissioners Review of current determinations Research 1 Self initiated investigation 2 Section 71 investigations 17 Section 73 disputes 45 MSA for Municipalities 45 MSA for the Public Service 10 MSA’s for services currently determined, eg Old Age Homes, Blood transfusion, air traffic control weather bureau, etc

27. ESC: Legislative framework 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 27 Constitution of the RSA (Act 108 of 1996) Section 23 (Worker Rights) Section 36 (Limitation of Rights) Section 39 (Interpretation of the Bill of Rights)

28. ESC: Legislative framework © Commission for Conciliation, Mediation & Arbitration 2015 28 Labour Relations Act (Act 66 of 1995) Definition of an essential services: (a) A service, the interruption of which endangers the life, personal safety or health of the whole or any part of the population (b)Parliamentary Service (c)South African Police Services

29. ESC: Legislative framework © Commission for Conciliation, Mediation & Arbitration 2015 29 LRA (Continue) Section 3 – Interpretation of the Act Section 65 – Limitations on the right to strike Case Law Chirwa vs Transnet Certification of the Constitution case NUMSA vs Bader Bop SAPS vs POPCRU Essential services must be restrictively interpreted

30. ESC: Legislative framework 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 30 Test to be designated as an essential service It is the service that is essential, not the employees, business, industry or the institution within which the service falls There must be an interruption of the service The interruption of the service must endanger life, personal safety or health Endangerment must impact on the population – human beings

31. Section 70 A: Composition of the ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 31 Chairperson of ESC Must be independent of organised business, organised labour and government May be a senior commissioner Deputy chairperson Must be a senior commissioner Plus six suitably qualified members of the committee: two each nominated by business, labour and government respectively

32. Composition of the ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 32  CHAIRPERSON: Adv. Luvuyo Bono  DEPUTY CHAIRPERSON:  Joyce Nkopane  BUSSINESS REPRESENTATIVES:  Dr. A Gildenhuys; and Mr. N Smythe  LABOUR REPRESENTATIVES:  Mr. S Khumalo; and Mr. C Mokoena  GOVERNMENT REPRESENTATIVES:  Mr. R. Nolutshungu (Local Govt.) and Ms. Nomazotsho Memani (State)  Mr. J Koen and Ms. C Slabbert have been retained until 31/08/15

33. Section 70 B: Powers and functions of ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 33 (a) Monitor the implementation and observance of essential services determinations, minimum services agreements, maintenance services agreements and determinations (b)Promote effective dispute resolution in essential services (c)Develop guidelines for the negotiation of minimum services agreements.

34. Section 70 B: Powers and functions of ESC © Commission for Conciliation, Mediation & Arbitration 2015 34 (d) Decide, on own initiation, or on a reasonable request of an interested party, whether to initiate investigations as to whether or not the whole or a part of a service is an essential service (e) Manage its caseload (f) Appoint panels contemplated in section 70C to perform one or more of its functions as set out in section 70D.

35. Section 70 B: Powers and functions of ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 35 (g)At the request of a bargaining council, the ESC must establish a panel to perform any function in terms of section 70D. (h)The ESC may request the Commission or any other appropriate person to conduct an investigation to assist the ESC in an investigation and to submit a report to it.

36. Section 70C: Appointment of panel © Commission for Conciliation, Mediation & Arbitration 2015 36 Panel to consist of three or five members (depending on complexity of the matter) Each panel is to be presided over by a chairperson or deputy chairperson of the ESC or by a senior CCMA Commissioner CCMA required to compile a list of suitably qualified commissioners for this purpose.

37. Section 70C: Appointment of panel 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 37 Three member panel: ESC must either appoint two of its members (one from labour and the other from either business or government) to serve as assessors OR invite the employer and trade unions to each nominate an assessor

38. Section 70C: Appointment of panel 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 38 Five member panel: ESC must appoint two of its members to serve as assessors (one from labour and the other from either business or government) AND Invite the employer and trade unions to each nominate an assessor

39. Section 70D: Powers and functions of the panel 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 39 To conduct investigations on whether or not the whole or a part of a service is an essential or maintenance service and make a designation in this regard (see also sections 71 and 75) Determine whether the whole or part of a service falls within the scope of a designated essential service (section 73) Ratify collective agreements providing for the maintenance of minimum services in a service designated as a “minimum service” (see also section 72)

40. Section 70D: Powers and functions of the panel © Commission for Conciliation, Mediation & Arbitration 2015 40 To determine the minimum services that are to be maintained (see also sections 72 and 73) Presiding member of Panel decides on all questions of law and procedure Majority decision of the panel is the decision of the ESC Decision must be in writing, signed by Panel chair and reasons must be furnished

41. Section 70E: Jurisdiction and administration of the ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 41 The ESC has jurisdiction throughout South Africa. ESC is based at the CCMA’s national office in Johannesburg. Functions of the ESC may be performed throughout South Africa CCMA must administer the ESC

42. Section 70E: Jurisdiction and administration of the ESC 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 42 Director of the CCMA is the accounting officer of the ESC Director may appoint staff to the ESC after consulting the ESC The ESC is funded by money appropriated by Parliament to the CCMA and by grants donations and bequests made to it

43. Section 70F: Minister’s powers 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 43 Minister has the power to make regulations concerning the functioning of the ESC and the panels, after consulting the ESC. (*These regulations have been developed and promulgated)

44. Section 71 – Conducting Investigations © Commission for Conciliation, Mediation & Arbitration 2015 44 Give notice in Government Gazette of an investigation Notice indicates services being investigated and invites interested parties, to make written submissions and make oral representations in pulic hearings ESC makes designation after considering the written and oral representations If designation is made, then it is published in the Government Gazette

45. Section 71 (9) © Commission for Conciliation, Mediation & Arbitration 2015 45 A panel appointed by the ESC may vary or cancel the – designation of the whole or a part of a service as an essential service, or any determination of a minimum service, or any ratification of a minimum services agreement - by following the provisions set out in subsections (1) to (8) (NEHAWU application i.r.o. various health services)

46. Examples of section 71 investigations © Commission for Conciliation, Mediation & Arbitration 2015 46 Road Traffic Management Corporation vs NEHAWU and various other trade unions (provincial traffic officers) Privately Owned Old Age Homes (nursing, care workers, catering, etc) Mining services (control room, lamp room, fire fighting and proto teams)

47. Section 72 (1): Minimum Services © Commission for Conciliation, Mediation & Arbitration 2015 47 (1) When making a determination in terms of section 71, a panel of the ESC may issue an order – Directing the parties to negotiate a minimum services agreement as contemplated in this section within a period specific to the order. If an agreement is not negotiated within the specified period, permitting either party to refer the matter for conciliation at the CCMA or a Bargaining Coucil having jurisdiction.

48. Section 72 (2): Minimum Services 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 48 If the parties - fail to conclude a collective agreement providing for the maintenance of minimum services, or if a collective agreement is not ratified – a panel appointed by the ESC may determine the minimum services that are required to be maintained in an essential service.

49. Section 72 (4): Minimum Services 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 49 A minimum service determination – a)is valid until varied or revoked by the essential services committee; and b)may not be varied or revoked for a period of 12 months after it has been made.

50. Section 72 (8): Minimum Services 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 50 Any party to negotiations concerning a minimum services agreement may, subject to any applicable collective agreement, refer a dispute arising from those negotiations to the Commission or a bargaining council having jurisdiction for conciliation and, if an agreement is not concluded, to the ESC for determination.

51. 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 51 The following disputes may be referred in writing to the ESC:  whether or not a service falls within the scope of an essential service (e.g. NUM vs ESKOM);  whether or not the employee is engaged in an essential service (e.g. Solidarity vs ATNS);  whether or not the employer and a trade union should conclude a collective agreement that provides for the maintenance of minimum service; and  the terms of such a collective agreement. Sections 73: Disputes about MSAs and whether a service is an essential service

52. Examples of section 73 disputes 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 52 Sonqoba Security Services (transport of social pensions) Solidarity vs ATNS (technicians working at airports) Globeflight vs SATAWU (transfer of blood) Staff-U- Need vs NUM/NUMSA (services outsourced by ESKOM)

53. Section 75: Maintenance services © Commission for Conciliation, Mediation & Arbitration 2015 53 The interruption of the service has the effect of the material physical destruction to any working area, plant or machinery Employer may apply in writing to the ESC for a determination and serve copy of referral on interested parties ESC must determine as soon as possible

54. ESC Regulations 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 54 Reg 1 – Bargaining Council or interested party may request an investigation (section 71) Reg 2 – Interested parties may make written submissions Reg 3 – Notice of the hearing Reg 4 – Pre-hearing conference Reg 5 – Persons assisting committee to conduct investigation – see section 70B(3) Reg 6 – Inspection and copying of representations

55. ESC Regulations 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 55 Reg 7 – Hearing Reg 8 – Variation or Cancellation application Reg 9 – section 73 disputes Reg 10 – Disputes regarding MSAs Reg 11 – Ratification of MSAs Reg 12 – Maintenance service determination Reg 13 – Hearings in terms of sections 73 and 75 Reg 14 – Appointment of panels Reg 15 – Condonation

56. ESC Regulations 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 56 Reg 16 – Service and filing of documents Reg 17 – Powers of Committee (same as commissioners i.t.o. section 142 of Act); proceedings shall not be invalid due to absence of one of members Reg 18 – Postponements – Rules 23 and 31 of CCMA Rules apply Reg 19 – Recording of proceedings Reg 20 - Definitions

57. CONCLUSION 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 57 During 2012/3; 2013/4 and 2014/5 financial years, the ESC has operated within its budget and has not had any adverse findings, queries or concerns. It has delivered on its mandate in terms of the LRA We have had outstanding support from the CCMA legal department and the TDU 2015/6 has started on a challenging note from the Accounting officer’s desk. I am hoping that these issues will be resolved soon

58. 13/05/2015 © Commission for Conciliation, Mediation & Arbitration 2015 58 THANK YOU !!!