On 14 April 2022, the Essential Services Committee ("ESC") designated employers and workers engaged in the manufacture, supply and distribution of vaccines and/or biologicals, anaesthetics, antiretrovirals to treat HIV, immunosuppressants, COVID-19 related products, antibiotics and chronic medicines, as essential services. This means that, according to the Labour Relations Act, 1995, ("LRA") workers involved in these services are prohibited from engaging in strike action. This also has implications for employers engaged in these services.

Background

In November 2021, the ESC invited interested parties to make submissions on whether the abovementioned services should be designated as essential services. Several interested parties made submissions which, in essence, were the following:

  • Health workers in the public health and private health sectors are unable save lives without medicines. If medicines are not available, then the health of patients is endangered.
  • The manufacture, supply and distribution of medicines is important in the function of services that are already designated as essential such as medical officers and nurses. It does not help to render the designation of such services as essential and exclude services relation to the manufacture, supply and distribution of medicines from being designated as an essential service.
  • Unlike other services, in the manufacture, supply and distribution of medication, it is not feasible to source replacement labour as the training, skill and qualifications of the workforce that render these services is highly complex.
  • The pharmaceutical supply chain is complex and involves a myriad of role players. An interruption to the supply has far-reaching effects on patients' well-being and health care professionals' ability to serve patients.
  • Any strike leaves the manufacturing, supply and distribution of medication in a position where the public cannot be assisted. Alternative supply is also not feasible as some of the products are uniquely manufactured in South Africa.
  • The processes of procuring alternatives, whether of medication or personnel, in the public service in the event of an interruption (such as strike action) does not allow for quick turnaround time. Therefore, an interruption of the service of manufacturing, supply and distribution of medication in would be catastrophic to the patients who depend on them.

What the law says

South Africa's Constitution provides that every worker has the right to strike. The right to strike is, however, not absolute and may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The LRA imposes limitations on the right to strike by providing that no person may take part in a strike or in any conduct in contemplation or furtherance of a strike if that person is engaged in an essential service. An "essential service" is defined as:

"A service the interruption of which endangers the life, personal safety or health of the whole or part of the population."

It is important to highlight that South African law requires the designation of essential services to be strictly interpreted with reference to the following factors:

  • it is the service that is essential, not the industry or the institution within which the service falls;
  • only those employees who are truly performing an essential service, may be prohibited from striking; and
  • essential and non-essential service workers may be found working side-by-side in the same institution.

Key factors that employers must consider

Strike action is an important element of collective bargaining and it is recognised as a primary mechanism through which workers can exercise collective power. The ESC's designation limits the constitutional right to strike in respect of workers falling within the above designation.

This development is not likely to be welcomed by workers and trade unions because designations of this nature are generally viewed as an attack on the democratic right of workers to embark on strike action.

However, it is important to note that the LRA does provide a mechanism in terms of which essential services workers may embark on strike action, provided that an agreement is put in place to regulate the minimum services to be provided by workers in the essential service.

Although some employers may welcome being designated as an essential service because it limits their employees' right to strike, it should be noted that these employers are also prohibited from locking out their employees.

In addition, in the event of a dispute dealing with terms and conditions of employment, these would be determined by an arbitrator. Some employers may be wary of having a third party determining their terms and conditions of employment.

Finally, the point can be made that the wording of this type of designation is often not a model of clarity and disputes can arise as to whether an employer and its employees fall within a particular designation.

In light of this recent development, employers should therefore consider whether they fall within this designation and consider how the designation may affect their operations going forward. We must point out that there are some trade unions who were unaware of the ESC's investigation and who have already expressed their shock as a result of the ESC's designation. It is therefore anticipated that the ESC's designation may be challenged by any aggrieved parties.

Reviewed by Peter le Roux, and Executive Consultant in ENSafrica's Employment department.

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.