The Labour Relations Act, 66 of 1995, ("LRA") has been
in the spotlight recently in regard to the recent communications
from government that it is considering designating the education
sector as an essential service. This has created a source of
tension between government and the education sector unions in
regard to teachers' right to strike.
The right to strike is a constitutional right afforded to all
employees in terms of section 23(2)(c) of the Constitution of the
Republic of South Africa, 108 of 1996 ("the
Constitution"), however, the LRA does contemplate restrictions
on the right to strike in respect of those employees who are
engaged in essential services.
A service or industry or any part thereof may be designated as
an essential service by the Essential Services Committee
("ESC"), established in terms of section 70 of the LRA.
The ESC is tasked with designating a service, or any part of a
service as an essential service, after conducting an investigation
into whether or not such a designation should be made. It is
critical to note that any parties who may be affected by the
designation of a service as an essential service by the ESC, has
the right in terms of section 71 of the LRA (which sets out the
procedure in terms of which the ESC will designate a service as an
essential service), to make representations to the ESC in regard to
whether or not a service should be so designated.
Unions have argued that the designation of a sector or service
as an essential service is unconstitutional, in that such a
designation takes away the rights of employees working in that
industry to strike. However, while this is correct in that section
74(1) of the LRA provides that employees working in a designated
essential service may not strike, these provisions are not one
sided and the LRA provides for additional mechanisms which
ameliorate what seems to be a blanket restriction against
Firstly, the employer in the essential service is similarly
restricted from utilising its own bargaining power to lock
employees out of the workplace to compel them to accept the
employer's terms and conditions, and the LRA goes on to provide
for a mechanism in terms of which essential service workers can
legally and lawfully embark on strike action, provided that certain
agreements are first put in place.
Section 72 of the LRA provides for parties in designated
essential services to enter into a collective agreement, which can
regulate the minimum services to be provided by workers in that
essential service, in the event of a strike. If such a minimum
service collective agreement is reached, it will have the effect
the minimum service levels agreed in the minimum service
agreement will become the essential service; and
section 74 of the LRA – which prevents essential services
workers from striking - will no longer apply.
This has the effect that the only employees who will be
prevented from striking are that number of employees, or percentage
of the workforce which is required to continue providing the
minimum services. All other employees who are not required to
provide the minimum service, even though they are employed in a
sector or industry designated as an essential service, will be
allowed to strike.
The minimum service agreement can contain the following
whether the service is essential in its entirety or only
whether the service is essential at reduced service levels
the minimum number of employees required to continue working
during a strike, either expressed as a number or a percentage of
the current workforce;
the type of services which must be continued during strike
minimum service levels associated with various functions and
duties to be performed during strike action;
waiver of a right to engage replacement labour to provide
services in excess of the minimum services.
In light of the above, even though the LRA provides for a
mechanism in terms of which sectors can be classified as an
essential service, to the extent that this does not take place, the
mechanism of concluding minimum service agreements through the
collective bargaining process may be an alternative means of
ensuring continued minimum service levels.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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