Who are the essential service workers?
Neither the government nor the unions made use of a mediation mechanism that could have avoided the recent month-long strike by public service workers.
That’s according to John Brand, director and alternative dispute resolution specialist at the law firm Bowman Gilfillan, who said this week that the law provides that “no essential services worker may go on strike and that any dispute must be referred to interest arbitration” which would be conducted by an independent third party under the auspices of Commission for Conciliation, Mediation and Arbitration (CCMA).
“This is something government could have invoked and in fact was obliged by law to invoke the moment a dispute was declared but did not, for reasons unknown,” said Brand. “Instead they took the fight to the streets and basically allowed essential services to come to a standstill.”
Essential service workers are prohibited by law from striking. But confusion around who, exactly, constitutes an essential service workers, along with discussions around minimum service agreements—an agreement between the employer and the union which outlines the number of workers to remain at work during a strike so the service continues to function—and the deep dissatisfaction of the workers complicated the issue.
Repeated calls and emails to the Department of Public Service and Administration (DPSA) media liaison to get additional clarity on the matter of the mediation mechanism were unreturned.
However Cosatu spokesperson Patrick Craven said that a minimum service agreement needs to be established. “A lot of problems were caused by the consistent failure of government to sit down and determine who are essential service workers and can’t strike, something that should have been clear from the beginning,” Craven said.
“Unions are prepared to maintain essential services, but this is difficult when government keeps issuing interdicts and refusing to define who they mean by essential service workers.”
According to Brand, essential service were defined “in general terms” by the Labour Relations Act of 1995, which also formed the essential services committee (ESC). The ESC receives applications on which services should be classified essential.
“If there is a service, the interruption of which would damage life, health and safety, then that service can be declared essential,” said ESC chairperson Afzal Mosam.
However it wasn’t until August 27, after the public servants strike had been under way for two weeks, that DPDA Minister Richard Baloyi issued a media statement listing the essential services and essential support services in terms of the Labour Relations Act, including nurses, paramedics, laundry workers and catering staff.
Mosam explained that minimum service agreements between the employer and the unions need to be ratified by the ESC.
“Once a service is determined as essential, they must try to come to agreement which category of workers is non-essential. The minimum service agreement allows certain workers to go on strike within a service that is designated as essential.”
But as yet, the ESC has not ratified any. Mosam said that employers were reluctant to enter into minimum service agreements because they want to keep all their workers at work. “But in fact the opposite is happening,” he said. “Because they’re frustrated, all the workers are going on strike.”
Thobile Ntola, president of the South African Democratic Teachers’ Union (Sadtu), said the workers see the dramatic inequalities between themselves and government ministers and don’t understand why they are not being paid what they demand.
Ntola also criticised the government for being distracted during the recent public servants’ strike.
“The focus of the state was all over the place,” Notla said. In a direct hit on the presidency, Ntola said that focus was “in China, overseas, on international relations, not the workers. The strike was not its first priority.”
Brand said the public-service strike was not so much a strike as a service delivery protest.
“The conditions on the ground for the average South African are no better, and arguably worse, than they were in 1995,” he said.
“Workers had very high expectations that post-1995 their lives would improve. But instead they have an appalling health service, an appalling education system, very serious housing problems in many places, and almost total absence of municipal services. It would not have been possible to mobilise the people in the numbers that they did and there would not have been the violence there was without very deep-seated anger.”