1. Essential Services at a Cross Road What are the Options? Anton Roskam

2. Approaches to Essential Services List ApproachDesignation Approach List of essential services enumerated in legislation or by way of designation process Advantages: – Certainty – Avoids ad hoc determinations in the heat of the moment Disadvantage – Inability to distinguish between disputes that endanger essential services and those that do not Essential service defined with reference to potential consequences of industrial action as opposed to nature of work and identity of employer Advantage – More flexible Disadvantage – Less certain SA follows a designation approach with elements of the list approach

3. ILO identifies 5 kinds of services 1.Essential services in the strict sense of the term 2.Services leading to an acute national crisis 3.Public services of fundamental importance 4.Other public services – Employees exercising authority in the name of the state 5.Ordinary services

4. Key Problems The definition of essential services Interpretation of section 72(b) of the LRA The conclusion of minimum services agreements (MSAs) – Parties lack capacity – No guidance from labour market institutions – No incentive to employer once designation made – Employers : ineffective sanctions for non-compliance – Dispute resolution regarding the conclusion of MSAs Eskom Holdings (Pty) Ltd v NUM and others [2009] 1 BLLR 5 (LC) NUM & another v Eskom Holdings (Pty) Ltd (2010) 31 ILJ 2570 (LAC) Interest arbitrations The powers and functions of the Essential Services Committee (ESC)

5. Interpreting Section 72(b) of the LRA

6. Key administrative problems The way the ESC operates – Under-resourced – Part-time commissioners – No secretariat – Research and collection of factual data – Accountability Composition of the ESC – Qualifications of persons and experience of public service Debate about these issues – publishing awards

7. Key Policy Issues Incentive to conclude MSA Min. Service too large Interest arbitrations, if designation more than 50% Code of Good Practice for MSAs Effectiveness of interest arbitrators and facilitators of MSAs Sanctions for non-compliance with essential designation or MSA Who imposes? - ESC/CCMA/Labour Court/MSAs Conflict between: Strikers or workers locked outMin. service workers “No work, no pay” appliesPaid

8. Functions Facilitative Min. Service Agreement Investigative The nature of the service Adjudicative Determine essential services Ratify min. service agreements

9. Options – Institutional Arrangements Retain ESC Retain current ESC Improve operational and administrative functions Create capacity within ESC or CCMA to facilitate MSAs ESC to CCMA Transfer ESC’s functions to CCMA Create dedicated panel with capacity and skills, including facilitation of MSAs Problem: tripartite input Report to Nedlac who report for input to Essential Services Tribunal specialist tribunal like demarcation disputes Problem: status of committee making decision ESC to Labour Court and CCMA Transfer ESC’s adjudicative functions to Labour Court Create facilitative and investigative functions associated with the determination of essential services and MSAs within the CCMA Problems: Appeals

10. ESC investigates whether or not a service or part of a service is essential ESC designates service or part of service essential ESC considers whether minimum service appropriate or required? Yes Negotiation of the MSA (ESC may facilitate) MSA concluded ESC considers whether or not to ratify MSA Agreement not ratified and referred back to negotiation Agreement ratified MSA not concluded ESC determines MSA MSA determined Matter referred back to negotiation No ESC refuses to designate essential service Public service of fundamental importance A service which if interrupted may lead to natonal crisis Ordinary service