South Africa

Education as an essential service? Unlikely.

By Sipho Hlongwane 11 February 2013

It’s a nice idea which promises to solve a horrible problem. It also happens to be wildly unpopular with organised labour and is very likely unlawful under South African jurisprudence. If you are to ask how the country even began to debate the inclusion of education into the essential service category, you are more easily more likely to end up with a disclaimer about how complicated our laws are and how nothing is ever that simple. And that is exactly the conclusion that the ANC reached after a few days of fighting words and confusion. By SIPHO HLONGWANE.

It all started off as a bit of a throwaway statement by President Jacob Zuma. He mentioned, during an interview with CNBCA Africa, that he thought education should be declared an essential service.

But according to some labour experts, this re-classification may not even be possible, given the way that the Constitution and the Labour Relations Act are written.

This is, even on the face of it, a loaded statement, because essential services exist in a category of their own. Unlike other types of jobs, workers employed in jobs categorised as an essential service can never go on strike as a method of industrial action. That option simply doesn’t exist. Traditionally, this restriction has been limited to jobs related to the preservation of life, personal safety or the health of people.

Thus, you were only working under the essential services restriction if you were a police officer, paramedic or emergency worker of some stripe.

The African National Congress (or at least the national executive committee of it) has had a serious conversation about the state of public education in South Africa, and has decided that something needs to change. After all, the country is being ranked consistently as one of the worst performers in the world in equipping its children for the world after school.

One of the main talking points of that discussion (this has only subsequently become obvious) was the provision of declaring the education sector to fall under the special ‘essential services’ provisions of the Labour Relations Act, which would essentially ban strikes for everyone involved in the sector. The immediate fix is that this would stop teachers from embarking on strikes, which would mean that they would not be allowed to abandon classrooms in order to force a point in a negotiation with their employers.

ANC secretary-general Gwede Mantashe announced on Monday last week that the NEC had in its lekgotla decided that the country should declare education to be an essential service. Importantly, the committee made no commitment towards actually making a legal classification of education as an essential service. At the press conference after the meeting, Mantashe and Naledi Pandor (the chairwoman of the NEC’s subcommittee on education and health) said that the ‘solution’ wasn’t necessarily to legally classify education as an essential service, but to get social consensus to the same effect.

Basically, the ANC wants society to make education an essential service with no backing law.

There are some obstacles.

The first and most energetic has been organised labour. The South African Democratic Teachers’ Union (Sadtu) has been opposed to the idea, as has been the South African Communist Party (SACP).

The Sadtu secretariat released a statement saying that targeting teachers as the only weakness in the education system was wrong.

“We have said many a times that problems confronting education are systematic and multifaceted,” Sadtu said. “Targeting one component in the system which is the teachers will therefore not solve the problem. Problems confronting education need to be dealt with in a holistic manner. We firmly believe that if problems of overcrowded classrooms, school violence, inadequate infrastructure and learning materials and under-qualified teachers can be addressed, education in South Africa will improve significantly.”

The idea has met even with the opposition of university and high school students bodies aligned with the ANC that feel that restricting the right of teachers to strike may lead to a situation where students too are not allowed to strike.

But instead of the national political issue of the day that we may be faced with, this debate could be nothing more than a misquote or a poorly-expressed soundbite. It was a blunder, but never meant to be a political statement of any kind. This is according to political analyst Ebrahim Fakir.

He said: “We may be reading too much into this debate. The ANC has looked at education and seen that it is in dire straits. The instinctive thing to do in order to save the situation may have been to say that teachers should be forced to perform their duties.

“But how would the government enforce this rule? Would this fall to the departments of education, or the school inspectors? The ANC has realised that declaring education an essential service makes it an enforcement issue. Basically, this was a silly move by the president.”

The biggest obstacle to a policy that declares education to be an essential service would be the Constitution of South Africa. It enshrines the right to strike. It basically denies anyone working under that classification the right to demonstrate in the case of a wage negotiation deadlock.

Labour law expert Karen Ainslie said to Daily Maverick that it was not that simple for a government to declare a job to be an essential service.

“If a government wanted to declare teaching to be an essential service, it would either have to approach the Essential Services Committee [which is constituted under the Labour Relations Act to arbitrate in such matters]. The committee would have a hearing and then decide whether or not include teaching under the provision. But they can’t just do as they like. The Act defines what can or cannot be defined as an essential service,” she said.

The act restricts essential service to work that has to do with the preservation of life, personal safety or health of people. The only two categories of work especially set aside are police and parliamentary service. Anyone outside of that has to apply to the Essential Services Committee to have the job classified in this way.

But it isn’t that simple. The local definition of essential service is based on an International Labour Organisation convention, which means that were local judges asked to interpret the law in this regard, they would most oppose it.

However, expanding the definition of what falls under the essential services act shouldn’t be that easy, said Ainslie. 

“I do not think that the definition [of essential service] should be made that wide, simply because of how important the right to strike is, thanks to our history. Just because your job or company is important to you, [that] doesn’t mean that it ought to be an essential service.”

What we might actually be sitting with here, according to Fakir, is a president who spoke out of turn and a committee that followed behind a simple idea that later transpired to be wrong. And as often happens when one touches on a basic right (i.e. the right to demonstrate) that is also a labour pillar, it became a national issue.

Nothing is likely ever to come of it. DM

Photo: Mangaung, Free State, South Africa, 18 December, 2012. President Jacob Zuma, has a moment to himself after retaining his position as ANC president. Photo Greg Nicolson/NewsFire


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