Essential+service+label+clashes+with+right+to+strike,+Terry+Bell,+B+Rep

Business Report, May 11, 2007
=Essential service label clashes with right to strike=


 * By Terry Bell**

If the national public sector unions go on strike, the bitterest battles may not be on the picket lines, but in the courts.

For this strike will throw into sharp relief a major clash between the constitution and the labour laws.

The government, as the employer, seems certain to approach the courts to interdict tens of thousands of workers from exercising their constitutional right to strike.

The courts will have no alternative but to comply, because of specific provisions in the Labour Relations Act (LRA) and subsequent notices gazetted by government.

In 1995 the LRA established in our current labour law the concept of essential services.

This was accompanied in 1997 and 1998 by gazetted notices that defined which services were regarded as essential and to which workers in such services this designation would apply.

Workers in these designated essential services may not strike. Employers, mainly at local government level, have been quick to use this legal means to undermine the effects of strike action.

Although many unionists are loath to admit it, this provision has enabled some workers to support strike action knowing they would not have to face the financial hardships such action entails.

The 1997/98 classification notice covers all workers in areas designated as essential. For example, not only are medical and paramedical staff and nurses in the health sector so classified, all support staff also fall into the same category.

In the medical area there are 13 categories of worker, from porters, receptionists and laundry workers to filing clerks and engineers, who are officially regarded as essential.

However, the LRA also makes provision for agreements to be struck between employers and the unions that would allow for minimum levels of service to be maintained during a dispute in designated essential services.

This is an arrangement similar to one that applies in Britain to fire fighting, nursing and ambulance services - all of which have, in recent years, staged strikes.

Cosatu, with the support of most of the other unions and federations, is committed to establishing such agreements across the board.

This would mean that "essential service" unions on strike would provide, by law, a minimum level of service that would cover all emergency and life-threatening situations.

Understandably, employers in the various tiers of government, as well as in the private sector, have been reluctant to sign up to minimum service agreements. So these exist only in a few areas, at local government level. Otherwise the blanket ban applies.

It certainly applies to nurses, and was one of the reasons given last month by the KwaZulu-Natal health department for dismissing nearly 300 nursing staff who went on strike. Because, according to the law, no nurse may strike, irrespective of whether such action harms the health or wellbeing of patients.

For the past three years, the largest nursing union, the Democratic Nurses Organisation of SA (Denosa), has attempted to strike a deal with the health department regarding a minimum service agreement.

Denosa general secretary Thembeka Gwagwa said: "There has just been no response."

She and other nurses' leaders and union members pointed out that strike action was a last resort; that no nurse would desert a post if it meant endangering the life, health or safety of a patient.

Any such irresponsible action, whether during a strike or not, would be actionable - and punishable - under existing legislation; it would certainly contravene the constitutional rights to life and emergency medical treatment.

Interdicts have often been used against workers in the public sector, mainly at municipal level. And it is these municipal unions - they are not involved in the present dispute, which is with the national government - that have pushed hardest for a change in the approach to essential services.

Leading the way is the Cosatu-affiliated SA Municipal Workers' Union (Samwu), which has proposed that minimum service agreements be established nationally as a step towards the eventual abolition of the essential services concept.

Roger Ronnie, the Samwu national organiser, said: "The constitution and existing laws cover all these areas, so there is no reason, other than to weaken strike action, for this concept to exist."

He points out that town and city councils routinely cut off water supplies and electricity to households in poor, working-class townships when householders fall behind on payments.

At the same time, workers in these sectors are aware that large companies and households in wealthy suburbs can rack up thousands of rands in arrears before being even threatened with a cut-off.

Ronnie said: "The minute business and the wealthy areas are threatened with such cut-offs, suddenly these services become essential."

It is an attitude that the trade unions categorise as "gross hypocrisy". And it is one that has added to the bitterness behind the pending dispute.


 * From: http://www.busrep.co.za/index.php?fArticleId=3824538&fSectionId=559&fSetId=662**

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