Essential Services Committee Regulations

Part A: General Provisions

1. Definitions

The Minister of Labour has, under section 208 of the Labour Relations Act, 1995 (Act No. 66 of 1995), and after consulting NEDLAC and the Commission, made the Regulations in the Schedule. In these Regulations, any expression that is defined in the Act has that meaning and unless the context otherwise indicates-

"annexure" means a document attached to these Regulations;

"Commission" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Act and includes a staff member of the Commission appointed by it to act on its behalf in matters relating to essential services;

"committee" means the essential services committee established in terms of section 70(1) of the Act; and

"the Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995).

2. Chairperson of committee

The Minister must appoint a member of the committee to act as chairperson of the committee.

3. Address for service on committee

Whenever a person is required to serve any document on the committee, such service must be on the head office of the Commission.

4. Powers of the committee

1. For the purpose of performing its functions, the committee may--

1. subpoena for questioning any person who may be able to give information or whose presence at a hearing may help the committee in performing its functions;
2. subpoena any person who is believed to have possession or control of any book. document or object relevant to an investigation or a hearing to appear before the committee to be questioned or to produce that book, document or object;
3. call, and if necessary subpoena, any expert to appear before the committee to give evidence relevant to an investigation or a hearing;
4. call any person present at an investigation or hearing who was or could have been subpoenaed for any purpose set out in these regulations, to be questioned about any matter relevant to an investigation or a hearing;
5. administer an oath or accept an affirmation from any person called to give evidence or be questioned;

6. at any reasonable time, but only after obtaining the necessary written authorisation-

   1. enter and inspect the premises on or in which any book, document or object relevant to an investigation or a hearing is to be found or is suspected on reasonable grounds of being found there; and
   2. examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to an investigation or a hearing; and

   3. take a statement in respect of any matter relevant to an investigation or a hearing from any person on the premises who is willing to make a statement; and

7. inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the committee.

2. A subpoena issued in terms of subregulation (1) must be made in the form of annexure LRA 4.6.

3. A subpoena issued for any purpose in terms of subregulation (1) must be signed by the director of the Commission and must--

1. specifically require the person named in it to appear before the committee;
2. sufficiently identify the book, document or object to be produced; and
3. state the date, time and place at which the person is to appear.

4. The written authorisation referred to in subregulation (1) (f) may be given by a judge of the Labour Court only if the judge is satisfied that the exercise of the powers referred to in the said subregulation, is necessary for the performance of the committee's functions.

5. The owner or occupier of any premises that the committee is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that the committee requires to enter those premises and to carry out the inspection or seizure.

6. The committee must issue a receipt for any book, document or object seized in terms of subregulation (1)(f).

7. The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this regulation.

8.

1. The committee must pay the prescribed witness fee to each person who appears before it in response to a subpoena issued by the committee.

2. The fee payable to a witness in terms of subregulation (a) is the total of-

   1. R100 for each day or part of a day during which the witness is required to be present at any proceedings; and
   2. reasonable substantiated travel and subsistence expenses incurred by the witness in order to be present at those proceedings.
3. Despite subregulation (b), no witness fee may be paid to a person who, at the time of the relevant proceedings, is employed full-time by the State, or is a member of any legislature mentioned in the Constitution.

9. A person commits contempt of the committee -

1. if, after having been subpoenaed to appear before the committee, the person, without good cause, does not attend at the time and place stated in the subpoena;
2. if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the committee;
3. by refusing to take the oath or to make an affirmation as a witness when the committee so requires;
4. by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subregulation (7);
5. if the person, without good cause, fails to produce any book, document or object specified in a subpoena to the committee;
6. if the person willfully hinders the committee in performing any function conferred on it by or in terms of the Act;
7. if the person insults, disparages or belittles the committee, or prejudices or improperly influences the proceedings or improperly anticipates the committee's decision or determination;
8. by willfully interrupting the proceedings of the committee or misbehaving in any other manner during those proceedings; and
9. by doing anything else in relation to the committee which, if done in relation to a court of law, would have been contempt of court.

10. The committee may refer any contempt to the Labour Court for an appropriate order.

11.

1. The functions of the committee may be performed by a member of the committee.
2. A decision of a member of the committee acting in terms of subregulation (a) is a decision of the committee pending ratification of the decision by the committee.
3. If the committee refuses to ratify a decision contemplated in subregulation (b), the decision, from the date of the refusal, is invalid.

12. No proceedings of the committee shall be invalid by reason only of the fact that any member was not present during the whole or part of any proceedings.

13. If three or more members of the committee perform the functions of the committee, the decision of the majority of those members is the decision of the committee.

5. Condonation

The committee may, at the request of any party to the proceedings conducted in terms of the Regulations and on good cause shown, condone any noncompliance with the provisions of these Regulations, subject to such conditions as it may in all the circumstances think fit.

Part B: Investigation as to whether a Service is an Essential Service

6. Request by bargaining council for investigation

A request by a bargaining council in terms of section 70(3) of the Act must be made in the form of annexure LRA 4.7.

7. Investigations as to whether a service is an essential service

1. As soon as is reasonably practicable after the receipt of a request by a bargaining council in terms of section 70(3) of the Act, the committee must give notice in the Government Gazette of the investigation as to whether a service is an essential service.

2. Any interested party making written submissions to the committee in terms of section 71(2)(a) of the Act must--

1. state the nature of its interest in the investigation;
2. state whether it requires an opportunity to make oral representations, if those oral representations are to contain material or raise issues not dealt with in the written representations, and provide a brief summary of those oral representations;
3. state whether it relies or intends to rely on any expert evidence, and if so, provide a brief summary of that expert evidence; and
4. specify its address, telephone number (if any) and telefax number (if any).

3. Any interested party that indicates to the committee in terms of section 71(2)(b) of the Act that it requires an opportunity to make oral representations must--

1. state the nature of its interest in the investigation;
2. provide a brief summary of its oral representations;
3. state whether it relies or intends to rely on any expert evidence, and if so, provide a brief summary of that expert evidence; and
4. specify its address, telephone number (if any) and telefax number (if any).

4. The Commission, at the request of the committee, may prepare a factual report concerning any service or part of a service that the committee is investigating.

5. The committee must notify a bargaining council that has requested the investigation in terms of section 70(3) of the Act and any interested party that has made written submissions in terms of section 71(2) of the Act of the existence of a factual report relevant to the investigation and invite them to submit written representations on the report to the committee within 14 days of this notification.

6. A bargaining council that has requested the investigation and any interested party may inspect any written representations made pursuant to the provisions of subregulations (1) or (5) and any factual report relevant to the investigation at the Commission's head office.

7. The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee.

8. The prescribed fee referred to in section 71(4) of the Act must be calculated at the rate of R2.00 per page.

9.

1. In addition to the notification contemplated in section 71(5) of the Act, at least seven days before the hearing of oral representations, the committee must publish a notice stating the place and time of the hearing.
2. The notice must be published in a newspaper circulated in the area in which the service being investigated is situated.

10. These regulations apply, with the changes required by the context, to any variation or cancellation of the designation of an essential service contemplated by section 71(9) of the Act.

Part C-Ratification of Collective Agreements that provide for the maintenance of Minimum Services

8. Ratification of the provisions of collective agreements that provide for the maintenance of minimum services

1. A request by parties to a collective agreement in terms of section 72 of the Act must be made in the form of annexure LRA 4.3.

2. The committee may require the parties to submit further written representations to it in regard to any matter relevant to the request.

3. The committee may require the parties to appear before it in order to deal with any matter relevant to the request.

4. As soon as is reasonably practicable after the receipt of a request, the committee must either ratify or refuse to ratify the relevant provisions of the collective agreement and notify the parties of its decision in writing.

5. The committee must, at the request of any party to the collective agreement, provide brief reasons for its refusal to ratify the provisions of a collective agreement.

Part D: Determinations

9. Service

Whenever a party is required to satisfy the committee that a copy of a referral, application, objection or other document has been served on another party, the party so required must provide the committee with--

1. a copy of the proof of mailing the referral, application, objection or other document by registered post to the other party;
2. a copy of the telegram, telex or telefax communicating the referral, application, objection or other document to the other party;
3. a copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, application, objection or other document was delivered by hand; or
4. a statement confirming service signed by the person who delivered a copy of the referral, application, objection or other document to the other party.

10. Referral of a dispute or application for determination

1.

1. A referral of a dispute in terms of section 73(1) of the Act must be made in the form of annexure LRA 4.2 contained in the general regulations.
2. An application in terms of section 75(2) of the Act must be made in the form of annexure LRA 4.3 contained in the general regulations.

2. If the referral or application is urgent, the applicant must state in writing the grounds of urgency and submit the grounds together with the referral or application.

3. The other parties to the dispute or parties interested in the application may submit written representations within 21 days of receipt of the referral or application by the committee unless the referral or application is an urgent referral or application, in which case the committee must notify the parties of the period in which they must submit written representations.

4. The committee may require the parties to submit any further information relevant to the dispute or application in writing.

5. The committee may give directions to the parties for the service of any documents.

11. Conduct of hearings in terms of sections 73 and 75 of the Act

1. As soon as reasonably practicable after the receipt of the referral or application contemplated in terms of sections 73 and 75 of the Act respectively, the committee must notify the parties in writing of the place and time of the hearing. The place and time must be determined with due regard to urgency.

2. The committee may decide that the dispute or application is capable of determination on the written representations before it or that it requires to hear oral evidence.

3. If the committee decides that the matter is capable of determination on the written submissions before it, the committee may hear argument from the parties and then make its determination.

4. If the committee decides that it requires to hear oral evidence--

1. it must decide the issues on which it requires to hear oral evidence; and
2. notify the parties of its decision in good time.

5. Despite the provisions of subregulation (3) the committee, during a hearing, may direct that oral evidence by hear in which case the provisions of subregulation (4) will apply.

6. If the committee decides that the matter is urgent, the committee may make an interim order determining the dispute or the application pending a final determination. In this event, the committee must specify a date in the order, which date may not be later than the date on which the interim order expires, for a hearing to determine the dispute.

7. The committee must conduct the hearing in a manner that the committee considers appropriate in order to make a determination with the minimum of legal formalities.

8. The committee must provide the parties with a brief summary of the reasons for its decision.

12. Short title and commencement

1. These regulations are called the Essential Services Committee Regulations.

2. These regulations come into operation on 15 November 1996.

Services Designated as Essential Services

(12/9/97)

Under section 71(8) of the Labour Relations Act, 1995 (Act No. 66 of 1995), the essential services committee hereby gives notice that--

1. it has designated the following services as essential services:

1. Municipal traffic services and policing;
2. municipal health;
3. municipal security;
4. the supply and distribution of water;
5. the security services of the Department of Water Affairs and Forestry;
6. the generation, transmission and distribution of power;
7. fire fighting;
8. the payment of social pensions one month after they fall due;
9. the services required for the functioning of courts;
10. correctional services; and
11. blood transfusion services provided by the South African Blood Transfusion Service.

2. it has designated the following parts of sanitation services as essential services:

1. The maintenance and operation of water-borne sewerage systems, including pumping stations and the control of discharge of industrial effluent into the system;
2. the maintenance and operation of sewage purification works;
3. the collection of refuse of an organic nature;
4. the collection of infectious refuse from medical and veterinary hospitals or practices;
5. the collection and disposal of refuse at a disposal site;
6. the collection of refuse left unallocated for 14 (fourteen) days or longer, including domestic refuse and refuse on public roads and open spaces.

3. it has designated as essential services until 31 March 1998 the following services provided by the public sector:

1. Emergency health services and the provision of emergency health facilities to the community or part thereof;
2. nursing; and
3. medical and paramedical services.

4. it has designated as essential services until 31 March 1998 the following services in support of the services referred to in paragraph 3:

1. Catering;
2. medical records;
3. security;
4. porter and reception;
5. pharmaceutical and dispensary;
6. medicine quality control laboratory;
7. forensics;
8. laundry;
9. clinical engineering;
10. hospital engineering;
11. waste removal;
12. mortuary; and
13. pest control.

5. it has designated as essential services the following services provided by the private sector which are funded by the public sector:

1. Emergency health services and the provision of emergency health facilities to the community or part thereof;
2. nursing; and
3. medical and paramedical services.

6. It has designated as essential services the following services in support of the services referred to in paragraph 5:

1. Boiler; and
2. water purification.

7. it has designated as essential services the following services provided by nursing homes which are registered as welfare organisations in terms of the National Welfare Act, 1978 (Act No. 100 of 1978), to patients in need of moderate (level 2) and maximum (level 3) care:

1. Emergency health services and the provision of emergency health facilities;
2. nursing; and
3. medical and paramedical services.

8. it has designated as essential services the following services in support of the services referred to in paragraph 7:

1. Physiotherapy;
2. dispensary;
3. catering;
4. laundry;
5. boiler;
6. transport; and
7. security.

9. it has designated as essential services the following services provided by the following civilian personnel in the Department of Defence to support the South African National Defence Force:

1. The Secretariat for Defence;
2. the Intelligence Division;
3. the Finance Division;
4. the parachute seamstresses of the South African Army;
5. the parachute packing operators of the South African Army;
6. the military intelligence functionaries of the South African Army;
7. the storemen in the South African Navy;
8. the provisioning officers and clerks in the South African Navy;
9. the technical personnel in the South African Navy;
10. the tugboat personnel in the South African Navy;
11. the surveyors in the South African Navy;
12. the South African Medical Service;
13. those serving in military posts in the South African National Defence Force;
14. the cryptographers in the South African National Defence Force; and
15. the maintenance services in the South African National Defence Force;

(21/11/97)

Under section 71(8) of the Labour Relations Act, 1995 (Act No. 66 of 1995), the essential services committee hereby gives notice that the following computer services provided or supported by the Central Computer Service of the Department of State Expenditure are designated as essential services:

1. The Persal system;
2. the social pension system;
3. the hospital systems; and
4. the flood control system.