Some Hope For ‘Essential Services’
ON December 31 2012, the minister of labour and social welfare, Doreen Sioka, in a historic decision, gazetted certain services in hospitals and local authorities as ‘essential’.
The designation implies that employees and employers whose duties fall within the parameters of a service that has been prescribed as essential are not allowed to engage in strikes and lockouts. The services that were designated in hospitals are the ambulance services, casualty divisions, theatre, intensive care units, clinical/cardiac units, laboratories, nursing, pharmaceutical, dental, radiography, physiotherapy, mortuary, medical including specialist services, hospital kitchen services and hospital laundry services. Those that were designated in local authorities are the emergency management, disaster management, potable water services, wastewater management, electricity distribution and scientific services. The general intimation that had prevailed in the media spotlight last year and thus became engrained in the public psyche was that government is trying to curtail the rights of employees to engage in strikes. It is indeed true that strikes and lockouts are constitutionally permissible; provided they take place within the confines of allowed procedures in the Labour Act, Act No. 11 of 2007. By law, an ‘essential service’ is defined as a service, the interruption of which, would endanger the life, personal safety or health of the whole or any part of the population of the country. The Essential Service Committee (ESC), which is a committee of the Labour Advisory Council with a tripartite composition, investigates services and recommends to the Labour Advisory Council (LAC) the services that may be designated as essential. The ESC also receives applications from institutions that deem certain part of their operation as essential in the form of urgent applications. The ESC then investigates and call for oral representations through public hearings.
The LAC, which also has a tripartite representation, then recommends to the minister of labour and social welfare, who then applies his/her mind and makes a final decision. Thus the insinuation that government somehow just wakes up and decides that such and such services should be declared as ‘essential’ is far from the truth. It is a rigorous and consultative process that is premised on the principle of tripartism. The other most important element that those engaged in the service declared as essential should take note of, is the fact that it does not mean that they would not have any recourse to solve labour disputes. They can still refer their labour disputes to the Labour Commissioner. The Labour Commissioner may then refer the dispute to an arbitrator, who by law, is required to handle the case fairly and quickly. It only means that their services would not be interrupted through a strike or lockout because of the said dispute. Simply put, they will not be allowed to participate in a strike that will cause work stoppage. The media have queried about the rationale behind designation of certain services such as laundry, or dental services in hospitals. Members of the ESC have explained that certain services in hospitals are so interlinked to the extent that the interruptions of one service will affect the other. Thus stoppage of such service will indirectly pose a danger to the life and personal safety of the population. For instance if the laundry services of the hospital is not functional, there might be an insurmountable health risk. What is declared essential is not an institution but a service, regardless of which institution performs it.
Paulus Ashipala (Liaison Officer)
Ministry of Labour and Social Welfare