Trade unions in the public sector vow that planned protest action
will disrupt essential services such as hospitals and courts during a
'National Day of Action' on 22 November 2022, with promises of
full-blown strike action thereafter. How do the restrictions on workers'
right to strike in essential services mitigate the potential disruption?
The Transnet strike which ended in mid-October 2022 brought road, freight,
and port logistics to a near standstill with a devastating impact on the
economy. The threat of strike action in the public sector promises further
disruption. Trade unions representing 800 000 public service members have
announced that a 'National Day of Action' will take place across the
country on Tuesday, 22 November 2022, to protest the unilateral 3% wage
increase implemented by the government. The recent industrial action in the
public sector which began with a stayaway and lunchtime pickets is the first
in over a decade. The deputy president of Police, Prisons and Civil Rights
Union, however, warned that demonstrations would evolve to a full-blown
strike. It was reported that public servants who perform essential services
are prepared to join the industrial action as well.
Essential vs non-essential services: Restrictions on the right to strike
What differentiates the Transnet strike from the threatened public sector
strike is that many services in the public sector are designated as essential
services. Workers who provide essential services are legally required to
provide their services even while a collective bargaining dispute remains
unresolved. An essential service is a service that if interrupted, would
endanger the life, personal safety, or health of the whole, or any part of the
population.
The Labour Court in
National Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others1 recognised that trade unions hold more bargaining power when
engaging in collective bargaining in respect of essential services because
their strike can cause more destruction and devastation than a strike by
non-essential service workers. This is why essential service workers'
constitutional right to strike is restricted, and rightly so. The 2021 list of
designated essential services includes the services required for the
functioning of courts as well as emergency health services, nursing, medical
and pharmaceutical services - the full list may be accessed
here. Once a service has been declared an essential service, employees who render
that service may not participate in strike action (these disputes must be
referred to conciliation and arbitration instead) or participate in protest
action.
A strike by employees who perform an essential service will therefore
constitute unprotected strike action and an employer may approach the labour
court on an urgent basis to interdict the unlawful industrial action. This
remedy only arises once the strike action has commenced, while employers
providing essential services would correctly seek to prevent strike action
from taking place altogether.
Essential Service Committee Regulations published on 21 October 2022 set out,
amongst other things, the steps that an interested party may take to request
the essential services committee (ESC) to investigate whether the whole, or
part of any service should be designated as an essential service.
In deciding whether a service constitutes an essential service upon the
application of a party, the Labour Relations Act (LRA) provides that the ESC
may direct the bargaining parties to negotiate a minimum services agreement
setting out the minimum number of employees performing an essential service
who may not strike to ensure that the life, personal safety, or health of the
population is not endangered. If a minimum services agreement is reached, the
agreed minimum service levels become a minimum essential service, but all
other employees, who are not required to provide the minimum service, will be
allowed to strike.
The ambit of what may be declared an essential service in this respect is
however limited to services that would endanger the life, personal safety, or
health of the whole or any part of the population, if the services were
interrupted. The narrow criteria for a service to be considered
'essential' for the purposes of the LRA mean that economic
stability, operations of national strategic importance or the general welfare
of the population, do not constitute justification for a service to be
declared 'essential'. The impact of the interruption of the
services must go beyond a mere interference with trade and commerce.
The trade unions' threat of a full-blown strike in which essential service
workers will participate promises to test these tenets of our labour law.
Employers in public sector services that do not meet the criteria of an
essential service, may nevertheless consider strike mitigation strategies such
as agreeing minimum services in the picketing rules during the collective
bargaining process. The introduction of the ESC Regulations provides practical
guidance on how to request a service be declared as an essential service.
Where this is unsuccessful, however, collective bargaining parties should be
encouraged to incorporate agreed minimum services into the collective
agreements or in the picketing rules that must be established before protected
strike action may occur.
1 (2017) 38 ILJ 1869 (LC)
