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Training on Negotiation, Conclusion and Ratification of Minimum Services Agreement (MSA) and Minimum Services Determination (MSD)

 

 

 


Posted: 01 June 2020

SALGA in Mpumalanga, in collaboration with Ehlanzeni District Municipality, coordinated a training session on Negotiation, Conclusion and Ratification of Minimum Services Agreement (MSA) and Minimum Services Determination (MSD) for municipalities who fall within the Ehlanzeni District on the 4th of June 2020. The training session was targeting members of the Local Labour Forums (LLFs) from all the five (5) municipalities of Ehlanzeni District Municipality, City of Mbombela, Nkomazi, Thaba Chweu and Bushbuckridge local municipalities.

All five (5) municipalities were represented during the training session which was facilitated by the Essential Services Committee (ESC), a Committee which is housed under the Commission for Conciliation, Mediation and Arbitration (CCMA) and is tasked with amongst others conducting investigation and designation of services rendered by the public and private sectors as essential services.

The training session focussed on the following areas:

  • Distinction between essential services and employees performing essential services;
  • Municipal services designated as essential services by ESC;
  • The limitation on the right to strike of employees engaged in essential services;
  • Importance of negotiation, conclusion and ratification of the MSA or MSD;
  • Essential documents required when negotiation MSA;
  • Determination and motivation in support of minimum number of employees to perform essential services during the strike action;
  • Replacement labour to render essential services during the period of strike;
  • Duration of the MSA;
  • Legislations and other prescripts applicable to essential services;
  • Consequences for failure to conclude MSA or having MSD in place; and
  • Dispute resolution mechanisms applicable where MSA or MSD is in place and ratified and where either MSA or MSD in not ratified by ESC.

The Facilitator confirmed that the following municipal services have been designated as essential services:

  • municipal traffic services and policing;
  • municipal health;
  • municipal security;
  • the supply and distribution of water;
  • the generation, transmission and distribution of power;
  • fire-fighting services;
  • municipal court services; and
  • lifeguard services.

Further to the abovementioned municipal services, the Facilitator confirmed that the following sanitation services in municipalities have as well been designated as essential services:

  • the maintenance and operation of water-borne sewerage systems, including pumping stations and the control of discharge of industrial effluent into the system;
  • the maintenance and operation of sewerage purification works;
  • the collection of refuse of an organic nature;
  • the collection of infectious refuse from medical and veterinary hospitals or practices;
  • the collection and disposal of refuse at disposal sites; and
  • the collection of refuse left uncollected for fourteen (14) days and longer, including domestic refuse and refuse on public roads and open spaces. 

The Facilitator indicated that in order to negotiate the MSA, the employer must kick-start the process by completing Annexure B of the Guidelines on negotiation of MSA as provided by the South African Local Government Bargaining Council (SALGBC), which requires the total number of positions in designated essential services and proposed minimum number of positions in designated essential services that should remain on duty during the period of strike and such must be supported by motivation in support of proposed minimum services. The process must be guided by the approved Organisational Structure (Organogram) and only filled positions must be considered when determining minimum services. After the employer has completed Annexure B of the SALGBC Guidelines, the completed Annexure must be presented to the LLF and supported by the approved Organogram on which proposed minimum service is based. In the event organised labour is in support of the proposed minimum service and motivation by the employer, both representatives of the organised labour and employer must sign the MSA and forward copy to the ESC for ratification. The ESC will consider the MSA and supporting motivation and if they are satisfied, ESC may ratify the agreement which will then be binding on the parties. However, in the event ESC is not satisfied with the minimum service and/or motivation in support of such, ESC may engage the affected municipality for correction before issuing Ratification Certificate.

In the event organised labour is not in support of the proposed minimum service by the employer, organised labour may make their own proposal in accordance to the requirements of Annexure B of the SALGBC Guidelines. Upon completion of the submission by employer and organised labour, both Annexures B completed by organised labour and employer should be submitted to the ESC for consideration and determination. In this case, minimum services will be determined by the ESC and ratified MSD and Ratification Certificate issued by the ESC to the municipality.

The advantage of concluding MSA or having MSD in place is that minimum number of employees in designated essential services may be remain on duty whilst others may be allowed to participate in a protected strike action, subject to them exercising their right to strike, however employees allowed to participate in strike action as per the MSA or MSD may not be forced to participate in the strike action. However, in the absence of ratified MSA or MSD, employees in designated essential services are not allowed to participate in strike action.

In the event a dispute may arise in designated essential services and where parties (employer and organised labour) have concluded MSA and such MSA is ratified by ESC, such dispute is required to be referred to the SALGBC for conciliation. In the event conciliation process fails, the appointed Commissioner, or Conciliator, may issue a certificate directing that the dispute be referred for interest arbitration process, alternatively trade union members affected embark into strike action after giving the employer municipality affected necessary notice of its intention to embark into strike action. In the event the trade union take the strike action route, the matter must be presented to the trade union members in the affected designated essential service(s) for balloting by only members of the affected trade union in such service(s). If during balloting process, the majority of the trade union members vote in support of the strike action, the trade union will be entitled to call for strike action after giving the employer municipality at least seven (7) days’ notice of its intention to embark into strike action. In this case, trade union may not call off strike after giving its notice of intention to strike and refer the matter for interest arbitration.

The ESC further gave all municipalities until end of August 2020 to negotiate and conclude MSAs or propose MSDs and submit such to the ESC for consideration and ratification, failure which ESC may determine MSDs for the affected municipalities.

 

 
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