The Essential Services Committee (ESC) is empowered by the Labour Relations Act (LRA) to declare a service (or part of it) as essential. It can then direct employers and unions to negotiate a service level agreement to ensure that a minimum service is always provided during strike action. Yet the South African Democratic Teachers Union (SADTU) has repeatedly claimed that an ESC declaration would be “against the law”.

They nonetheless decided to participate in this process, which they have falsely claimed was instituted by the Department of Labour and subsequently “hijacked” by the DA – despite the DA having requested the investigation, and having made a submission to the ESC panel.

SADTU claims that there is “no basis in fact and law” for an essential service declaration. This invites a close inspection of their “legal” arguments.

What an essential service declaration means

Central to SADTU’s opposition is a fundamental misunderstanding of essential service declarations.

Sadtu, in its written submission to the Essential Service Committee, said:

“Should the ESC make a determination that education be declared an essential service, a strike in education would be prohibited and the employer and organised labour would be required to conclude a minimum service agreement.

“The designation of a service as an essential service entails the right to strike in respect of persons involved in that service is limited and a procedure must be followed to resolve any dispute which may result in a strike. In essence is means persons involved in an essential service may not in terms of Section 65 of the LRA take part in a strike. Therefore educators and support staff in basic education may not take part in a strike if the service is declared an essential service.”

The law does not support the contention that an essential service declaration bans all staff engaged in providing that designated service from striking. SADTU is not alone in making this error; several media articles have made the same claim. But it could only be the case if one were to simply ignore the rest of the LRA provisions relating to essential services.

Section 65 (1) of the Labour Relations Act (LRA) does state that employees in an essential service may not strike, but this is not the only provision in this regard. Section 72 provides for parties in designated essential services to enter into a minimum service level collective agreement, which regulates what service level must be provided as part of the essential service. Such a collective agreement will have the effect that the agreed minimum service becomes the essential service, essentially replacing section 65’s statement. This allows workers in an essential service to still lawfully strike while meeting the provisions of a minimum agreement.

As such, only the type of employees or percentage of employees who are involved in providing the minimum service level are prevented from striking. Other employees, who are not required to provide the minimum service, will be free to strike – even though they are employed in a designated essential service.

What the Constitution says

Having cleared up SADTU’s misrepresentation of the LRA, we can apply this to their arguments about constitutional rights. Naturally, SADTU presents the right to strike as utterly sacrosanct, and will not tolerate any infringement thereof.

We know that the right to strike is an important right, and any limitations on rights must be considered carefully.

Section 36 of the Constitution provides for limits on rights, by taking into account factors such as the nature of both the right and the limitation, and the purpose of the limitation. The right to strike must be weighed against a child’s right to be free from abuse, neglect and maltreatment. The Children’s Act states that in all matters affecting a child, the best interest of the child must take priority.

The precise purpose of the ESC is to consider limitations on the constitutional right to strike – a position entirely in line with constitutional provisions. Moreover, the LRA has taken the balance of power in collective bargaining into account. The Act includes remedial mechanisms and balancing restrictions on employer power as part of essential services (they lose the power to lock employees out of the workplace to force them to accept unfavourable employment conditions).

The ILO’s position

The International Labour Organisation (ILO) also falls prey to SADTU misrepresentation.

The ILO defines an essential service as one that, if interrupted, would endanger the life, safety or health of part or the whole of the population. The organisation has also said that teaching does not fall into this category.

However, this is not the only thing the ILO has to say about the right to strike in education. The rules constructed by the organisation around essential services emphasise that each case must be decided on its particular merits – not with a blanket application of a very narrow definition. (This very point was raised by Section 27 in their submission to the ESC.)

This is why, in considering individual cases on their merits, the ILO’s dispute mechanism has made rulings to the effect that school leadership positions, and staff providing food and cleaning services, could indeed be designated essential. These rulings were made on the basis of a risk to the safety and health of learners – precisely the basis of our request to the ESC.

The DA’s position

Having dealt with the “fact and law” of SADTU’s submission, we need to correct their additional mis-characterisations of the DA’s request.

Firstly, we have not asked for “teaching”, “education” or even “basic education” to be declared an essential service. In practice, the ESC is highly unlikely to make such blanket declarations – it responds to a particular service level and function that must be maintained and limits the right to strike only insofar as necessary to maintain that service level.

We are seeking common-sense provisions that would ensure children are not abandoned during school hours. This would mean that some (not all) school staff would be required to be present during a strike. The power of the strike is maintained, while still ensuring child safety – a win-win situation.

Secondly, we have not based our request on the right to basic education. The ESC is clear in what essential services are: a service when interrupted threatens life, health and safety. Children’s safety at school is the responsibility of the school staff, and when they abandon their posts, this presents a threat to child safety. It is that simple.

It is difficult to see why an organisation like SADTU, who claims to care deeply about learners, would oppose ensuring their safety. Perhaps the union is simply so used to taking an antagonistic, defensive and disruptive stance that its leaders have deliberately chosen to misrepresent the issue at hand.

Despite this, the DA is encouraged by the serious consideration the ESC is giving to our request, and by the parents and members of the wider school community who have come forward and made their voices heard. We hope that together we have convinced the ESC to stand up for South Africa’s learners in the face of constant union bullying. DM

Nomsa Marchesi is DA Shadow Deputy Minister of Basic Education.