THE African National Congress’s (ANC’s) proposal that education be declared "an essential service" has no prospect of succeeding, according to experts.
It will be illegal in terms of the Labour Relations Act and unworkable even if allowed, based on the total failure to enforce essential services provisions in other sectors.
The ANC will have to go back to the drawing board in its attempts to regulate teachers. It has no option other than to continue the protracted negotiations of recent years with teacher trade unions to modify their behaviour by agreement.
The Congress of South African Trade Unions and two of its public service affiliates, the South African Democratic Teachers' Union (Sadtu) and the National Education and Health Workers Union, have shot down the ANC proposal. They took cover under the Labour Relations Act, which defines essential services as those "the interruption of which would endanger the life, personal safety or health of a whole of part of the population".
This definition is based on that of the International Labour Organisation (ILO), whose conventions the government endorses. The ILO has ruled that education is not included in this definition.
The South African Communist Party has since suggested that the term "essential service" be dropped from the discussion.
ANC secretary-general Gwede Mantashe has refined his comments to say what the party was really seeking was an "attitudinal" change among teachers.
Labour lawyer Anton Roskam, of Haffegee, Roskam and Savage, said on Wednesday that apart from it being impossible to declare education an essential service, any attempt to limit teachers’ right to strike would have to comply with the constitution.
Sadtu general secretary Mugwena Maluleke said the union had requested a meeting with the ANC to discuss the issue, but it was inconceivable that it would enter into any voluntary agreement to limit the right to strike. "The strike is the only weapon that workers have.
"It would make no sense to agree to limitations on that."
The government had recourse in the event of unprotected labour disruptions. It could take disciplinary action against the involved teachers, Mr Maluleke said.
"Why do they need another law, when in fact they are not enforcing the one that they have?"
Mr Roskam said protected and procedural strikes in the education sector in the past 10 years were few "and hardly an issue". The problem was that the employer was not enforcing the Labour Relations Act.
The focus on essential services has highlighted the failure of the provisions of the Labour Relations Act so far to regulate strike activity. This is particularly the case in essential services.
The result has been that essential services workers — such as nurses, doctors, some municipal workers, and employees essential to electricity generation and distribution — have in recent years gone on strike regardless of the law.
Mr Roskam has written several research papers on the problem and has proposed amendments to the act. The issue of essential services was fraught with challenges, he said.
The essential services committee, brought into being by the act, had to name sectors to be declared essential services. Then workers and employers in the sectors should draw up a collective agreement that specified who had to remain at work during a strike.
But in the past 17 years, only one such agreement — between Eskom and the National Union of Metalworkers of South Africa — was concluded. "This agreement has since collapsed and I don’t know of a single one that is in effect," Mr Roskam said.
The result had been that sectors that had been declared essential services tended to "ignore the law and go on strike".