“The workshop by the Essential Services Committee (ESC) at the offices of the CCMA on Thursday, 29 June, refers. The workshop was to discuss Minimum Services Agreements in residential care facilities in the Western Cape. A number of very important points came out of the workshop of which all employers in the Care Sector should take note:
- It is not widely known in the Care Sector that amendments to the Labour Relations Act which came into effect on 1 January 2015 extended the right to legal strike action to employees in engaged services
- Before employees in an essential services workplace may engage on legal strike action, a Minimum Services Agreement (“MSA”) has to be negotiated between the employer and employees for that particular workplace and ratified by the ESC
- One of the issues to be determined by an MSA is the minimum services (or number of employees) required to maintain essential services in the event of a strike. Employees in excess of the agreed minimum service levels are then able to engage in strike action
- Until the 2015 MSA’s were optional in essential services but the amendments to the LRA mean that MSA’s are now mandatory in all essential services workplaces, including elder care facilities regardless of whether they are privately funded or receive government subsidies
- You will know that all services provided by homes registered in terms of the National Welfare Act and who received government funding in the form of subsidies were declared essential by the ESC in 2004. This was not the case in privately funded homes until 2015 when the ESC declared as essential all services provided by private homes, excluding cleaning, laundry and security services. All employees engaged in non-essential services at private homes are therefore entitled to engage in strike action and MSA’s are only necessary in private homes for services that have been declared essential
- Minimum service levels are also applicable to any essential services that may been outsourced by a particular home. Agreed and ratified minimum services will in future have to be incorporated into all outsourcing contracts and outsourced employees in excess of the minimum number determined by an MSA will also be entitled to strike
- The aforesaid are important developments for employers in the care sector who may not have had to deal with strike action in the past
- During the workshop, the chairperson on the ESC, Advocate Luvoyo Bono explained the aforementioned amendments and indicated that the ESC has made the implementation of MSA’s in the aged acre sector a focus area for 2017 and 2018
- According to Advocate Bono, a similar process was successfully concluded in KZN during 2016 but the focus has now shifted to the Western Cape
- Advocate Bono informed attendees that it is the expectation of the ESC that all aged care facilities in the Western Cape will have concluded MSAs with their employees by the end of August
- Thereafter the ESC will ratify MSA’s it has received and embark on a process to conclude MSA’s in homes where the parties have been unable to reach agreement with a view to have ratified agreements in place for all care homes in the Western Cape by the end of September 2017
- The Commissioner did not provide details on how the ESC will deal with homes that do not embark on the process described above but it should be noted that in general, the ESC has the authority to determine and enforce minimum levels for any essential service where the parties are unable to reach an agreement.
The developments described above are of great importance for employers in the care sector. It seems highly unlikely that the unrealistic timelines the ECS have set will be met. However, employers who do not sign a MSA with their employees by the end of August (or soon as possible thereafter) run the risk of the ESC doing so on its behalf. I am currently involved in a MSA negotiation process at a care home in the Western Cape and the ESC’s approach seem to be to first allow parties within a workplace the opportunity to negotiate their own agreement with the assistance of an ESC appointed facilitator. If that fails the facilitator will make a recommendation on minimum services to the parties which is then forwarded to the ESC for ratification, with or without the agreement of the parties.
It should be self-evident that a MSA that has been negotiated and agreed to between an employer and its employees at a particular care home is to be preferred to one that has been imposed from outside by a third party. Therefore I believe that it is in the interest of all employers in the sector to respond proactively to the call of the ESC and as soon as possible to engage with all stakeholders including residents, families, management boards, outsourced contractors and of course employees in order to reach agreement on a MSA that is fair and realistic for the home where essential services are being delivered.
The MSA negotiations I have been engaged in so far have been useful to gain an understanding of the legal processes and key factors relevant to MSA’s in the care sector. If you or any of the Care Forum’s members would like to consult further or obtain advice on the process we would be happy to assist.”