National Union of Mineworkers v Essential Services Committee and Others (JR 1147/16) [2019] ZALCJHB 82 (10 April 2019)

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[2019] ZALCJHB 82
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National Union of Mineworkers v Essential Services Committee and Others (JR 1147/16) [2019] ZALCJHB 82 (10 April 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1147/16
In
the matter between:
NATIONAL
UNION OF MINEWORKERS                        Applicant
And
ESSENTIAL
SERVICES COMMITTEE                             First

Respondent
CHAIRPERSON:
ESSENTIAL SERVICES
COMMITTEE
N.O.
Second
Respondent
ESKOM
HOLDINGS SOC LIMITED                                  Third

Respondent
NATIONAL
UNION OF METALWORKERS
OF
SOUTH
AFRICA                                                           Fourth

Respondent
SOLIDARITY                                                                      Fifth

Respondent
Delivered:
10 April 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
[1]
The
applicant (NUM) approached this Court in terms of the provisions of
section 158(1)(g) of the Labour Relations Act (LRA)
[1]
to seek an order reviewing and setting aside the Minimum Services
Determination (Determination) dated 28 April 2016,
handed
down by the second respondent, who is the Chairperson of the
Essential Services Committee (the ESC).
[2]
The ESC was
called upon in terms of the provisions of section 70D(f)
[2]
read with section 72
[3]
of the
LRA (which has since been amended) to determine whether five
positions identified within the Human Resources department
of the
third respondent, Eskom Holdings (SOC) Ltd (Eskom) fell within the
Minimum Service Agreement (MSA). The ESC determined that
they did,
and that the incumbents in those positions were precluded from
embarking on any form of industrial action.
Background
facts
[3]
The ESC is
a statutory body established in terms of the provisions of section
70
[4]
of the LRA and its primary
function is to
inter
alia,
monitor the implementation and observance of essential services
determinations, minimum services agreements, maintenance services

agreements and determinations, and to further promote effective
dispute resolution in essential services.
[5]
The ESC is empowered to conduct investigations to determine whether
or not the whole or a part of any service is an essential service,

within the meaning of the provisions of the LRA, and the minimum
services required to be maintained in the service that is designated

as an essential service.
[6]
[4]
Eskom, which is opposing the review application, is a State owned
entity
primarily in the business of generating, transmitting and
distributing (herein referred to as GTD) electricity within the
Republic
and its neighbouring states. It employs about 41 000
employees operating in about 600 buildings in over 440 working sites
that perform different functions.
[5]
The fourth respondent, the National Union of Metalworkers of South
Africa
(NUMSA) also has a membership at Eskom. It was initially party
to the proceedings before the ESC but had subsequently withdrawn.
It
however obtained observer status in those proceedings. The Fifth
Respondent, Solidarity also has membership in Eskom. Even though
it
was represented in the proceedings before the ESC, it had not filed a
statement of case nor submissions, and had aligned itself
with NUM’s
case. Like NUMSA, Solidarity is not a party to these review
proceedings.
[6]
On 12 September 1997, the ESC issued a notice in the
Government
Gazette publishing its decision to declare GTD of
electricity as an essential service. During 1998, Eskom and the
registered trade
unions entered into a Minimum Services Agreement
(MSA) which was ratified by the ESC. The agreement remained in force
until it
was cancelled on or about 31 March 2004. After the
cancellation of the 1998 agreement, the parties were unable to
conclude
a new MSA.
[7]
A dispute
as a result of disagreements as to which forum was competent to
determine it, started at the Commission for Conciliation,
Mediation
and Arbitration (CCMA) and found its way to the Supreme Court of
Appeal (SCA). Judgment of the Supreme Court of Appeal
(SCA) was
delivered on 30 November 2011 and it was held that the ESC was the
competent forum to determine any dispute that may
arise in respect of
Minimum Services Determinations.
[7]
[8]
On 4 June 2012, NUM referred a dispute to the ESC, having
framed
the nature of the dispute as follows;
‘
NUM
(and other unions organising at ESKOM) have been unable to agree with
ESKOM on a new minimum services agreement. The Unions
and ESKOM
deadlocked over the issue during 2007. The unions proposed an amended
minimum services agreement which ESKOM rejected’
[9]
The parties having filed their respective statements of cases from 12
October 2012, the matter was initially heard on 30 October 2014 when
a further issue arose as to which party had the duty to begin.
The
ESC issued a ruling that NUM had the duty. The matter was then heard
on 17 November 2014 and was part-heard following the evidence
of one
witness called by NUM (Mr Ndlela John Radebe).
[10]
Following further sittings, and in the light of disputes surrounding
whether all of Eskom’s
employees were engaged in GTD, on
25 March 2015, the parties (including the other unions)
concluded a settlement agreement
in regards to which departments were
involved in GTD. The agreement was by consent, made an order of the
ESC. The essential elements
of the agreement are that;
10.1
Employees (including shift, standby, call out workers and those on
training or spare) who were
involved in Group Security and GTD of
electricity were engaged in the designated essential service, and
were not permitted to participate
in any industrial action.
10.2
Employees (including call out, shift and standby workers on training
and spares) in Primary
Energy, Group IT, Outage Management,
Commercial, Customer Services, Telecommunications, Finance, Human
Resources and Sustainability
were all engaged in the designated
essential services and were not permitted to participate in any form
of industrial action.
10.3
All employees engaged in the Office of the Chief Executive (CEO) and
Group Capital, were not
essential services employees for the purposes
of the agreement.
[11]
Subsequent to the settlement agreement, the ESC was called upon to
determine which positions
should constitute minimum services within
the Human Resources Department. The parties filed further statements
of case in July
and October 2015.
[12]
At the proceedings on 25 November 2015, the parties reached
an agreement that
the proceedings before the ESC should be less
adversarial and that no cross-examination should be permitted except
for the purposes
of seeking clarity.
The
hearing before the ESC
[13]
Eskom’s case was that not all employees employed in the Human
Resources Department
were minimum services workers. It had identified
the Human Resources job categories that fell outside the minimum
services, and
accordingly conceded that some employees employed in
its Human Resources department were entitled to go on strike. It had
however
remained steadfast that some positions which were the subject
matter of the dispute before the ESC fell within the category of
minimum services.
[14]
The deponent to the answering affidavit in these proceedings, Mr
Albertus van Jaarsveld
(Van Jaarsveld), Manager: Special Projects,
was the sole witness on behalf of Eskom at the proceedings before the
ESC. His evidence
centred around the five Human Resources positions,
which were the subject matter of the dispute, the job profiles of
each category,
and his motivations as to why these positions should
fall within minimum service.
[15]
The evidence of van Jaarsveld before the ESC in regard to the
disputed positions is summarised
as follows:
15.1.
The
Officer Human Resources,
is one of Senior Human Resources
personnel, and is responsible for at least 300 operational employees.
There were 180 Officers
who were expected to develop a comprehensive
Human Resources plan for a specified area for the determination of
the long and short-term
workforce requirements in consultation with
line management and in support of the departmental business plan.
15.2.
It was further the responsibility of the Officer Human Resources to
evaluate/scan the
environment, interpret data and to provide advice
to management in respect of that data. In addition to that, the
Officers also
served as members of strike committees for a specified
location for the duration of any industrial action that may have
taken place.
15.3.
The Officers’ responsibility in a strike committee would
include the identification
and recordal of the names of employees who
are considered as part of minimum service, and who might be
participating in an industrial
action. This is needed for purposes of
any litigation during the strike.
15.4.
The Officers were also responsible for capturing of data on the
system for the purposes
of overtime pay and other remuneration. There
are at least 70% of employees of Eskom, who fall under the GTD
category, who were
directly serviced by these Officers.
15.5.
In regards to the position of
Assistant Officer Human Resource
,
van Jaarsveld’s evidence was that there were approximately 80
employees who were employed as Assistants.
15.6.
These were at a lower level as compared to the Officers, and were to
a large extent, responsible
for the collating and processing of data,
which they were required to directly input into the system. Over and
above that, the
Assistants were responsible for the facilitation of a
number of operational issues, including overtime work. The Assistants
in
such cases would be responsible for the administration of
overtime, travelling and transportation arrangements for employees on

duty.
15.7.
The Assistants had the responsibility of knowing which personnel
ought to be on duty at
a specified power station and at a specified
time, and were responsible for monitoring absenteeism during
industrial action, and
providing updates and reports to line
managers.
15.8.
The
Officer Industrial Relations
was responsible for providing
specialist industrial relations advisory services, and was an
integral part of assisting management
as per their job profiles.
15.9.
In instances where there was a work stoppage, the Industrial
Relations Officer was the
first point of contact with the relevant
trade unions, and a channel between the trade unions and management.
In the end, these
employees were responsible for the management of
any industrial action and liaison with senior management during
industrial action
in line with Eskom’s policies and relevant
legislation. They were further tasked with communicating with
essential
or minimum service workers who were obliged to attend work
on other matters such as work safety.
15.10.
The
Occupational Health Nurses
were responsible for
comprehensive occupational and primary health care services in
accordance with Eskom’s health policies,
procedures and other
regulatory requirements. The health care services included emergency
health care services to all employees.
These employees were required
to be on-site or at regions. They were also in charge of health
clinics at specified power stations
and were by implication,
responsible for emergency healthcare. They were also required to
identify and report on environmental
issues and occupational hazards
at the workplace.
15.11.
The Nurses were not shift workers, and were ordinarily on standby in
an event of a serious occurrence.
They could be called into action
and be tasked with the responsibility of coordinating medical
evacuations or for providing care
in the event of injuries to
employees.
15.12.
The
Wellness Officers Lifestyle Management
were the first line
of counselling in an event of traumatic incidents such as being
locked in a building during an industrial action.
They were
responsible for the assessment of risk factors and identification of
any threat against the safety of other employees
including stress
levels. They were also responsible for assessing whether employees
were emotionally fit to resume their duties,
and for identifying
employees for further referrals to other professional services.
[16]
Van Jaarsveld contended that on the whole, approximately 30% of the
employees within Eskom’s
Human Resources Department would fall
within the category of minimum services, and that the remaining 70%
were thus able to participate
in any industrial action.
[17]
NUM called upon Mr Paris Mashego (Mashego), who was employed as its
Energy Sector Coordinator.
He is a former Eskom employee, having
started his employment in September 1981 and resigned in May 2015.
Whilst employed by Eskom,
he held the positions of Plant Operator and
Wellness Officer. He was also elected as a Full-Time shop steward,
and at some point,
as Regional Secretary for the NUM’s Highveld
Region.
[18]
Mashego’s starting point was to give his own understanding of
the concept of minimum
services. His view was that minimum services
involved services, the retardation of which would compromise life,
health and safety
of employees. NUM’s position was that none of
the identified positions in dispute within Human Resources Department
should
comprise a minimum services. His reasoning was as follows;
18.1
Eskom has since put in place, the SAP system, which is an automated
system enabling it to perform
Human Resources functions online.
Equally, a Shared Services system was set up where all shared
services throughout Eskom’s
power stations were brought into
one centre for the purposes of processing administration matters such
as leave, overtime, hours
of work etc, with the result that Human
Resources functions were now automated.
18.2
The only time that Human Resources personnel were to be physically
involved was when they had
to process absenteeism or overtime, and
punch data in that regard into the system. In the light of the
automated system, any industrial
action or absence of Human Resources
personnel would not impact on the payment of salaries.
18.3
The Human Resources function as a whole did not represent a threat to
GTD, nor to life, health
and safety of employees or the general
public. The five positions or functions in contention had no impact
at all should there
be a strike, as they were not directly involved
with Eskom’s primary business of GTD. Those functions were
merely supportive
in nature, and their interruption would not
inconvenience Eskom at all.
18.4
In regards to the position of
Officer Human Resources,
Mashego’s
contention was that it was not true that these officers provided
guidance, information and instruction to line management
in an event
of a strike. He contended that in the event of a strike, and within
the context of picketing, certain individuals were
identified to be
responsible for disseminating information, or to engage in
negotiations and discussions between the parties. In
all instances,
there would ordinarily be the most senior IR personnel in a
particular area. He further submitted that usually during
strikes, it
would also be security personnel who monitored and observed events;
and that there were surveillance monitors throughout
Eskom’s
premises, which were controlled at a central place.
18.5
In regards to
Assistant Officers, Human Resources,
Mashego’s
contention was that these positions were at a very junior level, and
whatever Human Resources functions that would
need to be performed
during a strike, which were minimal, could be performed by more
senior personnel. Their absence therefore
during a strike would not
have any impact on the core business of Eskom.
18.6
In regards to the position of
Officer, Industrial Relations,
NUM’s
position was that these posts need not be part of the minimum
services as employees in those positions performed the
same function
as
Advisors, Industrial Relations,
which was to assist
employees and management in grievance hearings and other labour
related matters. Their absence would not impact
on Eskom’s
operations.
18.7
In regards to
Occupational Health Nurses,
Mashego’s
contention was that they were not involved in primary health care,
and that their function was to check the medical
conditions/status of
employees and dispense with basic medication. He added that the
nurses were normal shift employees, and did
not work shifts nor were
they required to work over weekends.
18.8
Their services were not required during night shifts. According to
Mashego, in an event that
employees sustained serious injuries, they
could be attended to by the nurses if such injury happened during the
day. Where the
nurses were not available, employees needing medical
attention could be attended to by other shift workers, plant
operators and
senior shift supervisors, who were all trained in first
aid, and who were able to stabilise the injured employees whilst
waiting
for an ambulance. Mashego further testified that individual
power stations did not have the capacity to provide injured employees

with anything more than first aid.
18.9
In regards to
Wellness Officer Lifestyle Management,
Mashego’s
contention was that these positions were more concerned with sports
and recreation, and to present employees with
information. They were
tasked with organising events surrounding health matters throughout
the year whether on a monthly or weekly
basis. Their tasks also
involved going out to various sites to make presentations and looking
after the financial wellness of employees.
To the extent that a
strike took place, Mashego’s contention was that these
employees would not be required at work as there
would be no
employees to attend to during a strike.
[19]
In response to questions from the panel, Mashego submitted that
strikes at Eskom normally
took place over three days, and if they
went beyond that period, there may be an impact as Human Resources
personnel are responsible
for the preparation of payroll; recordal of
absenteeism; overtime payments and general payments. He further
submitted that Human
Resources personnel were however not involved in
the rostering of shifts, as that it was an operational matter
attended to by shift
supervisors.
[20]
To the extent that the parties had agreed as per their settlement
agreement that the finance
and Human Resources functions were part of
essential services, and yet NUM did not accept that Human Resources
Officers should
form part of minimum service, Mashego was asked
whether if the ESC was to find that the posts should form part of the
minimum services,
this would imply that all concerned employees
should be affected rather than exceptions being made. His response
was that all of
the personnel should then be so classified. He
contended that it was not for the ESC to make alternative orders in
the sense of
ruling that for example, two out of ten positions should
form minimum service.
The
ESC findings
[21]
The ESC concluded that all the positions in dispute fell within the
category of minimum
services of Eskom and for these reasons, the
incumbents in those positions were precluded from embarking on any
form of industrial
action. The conclusions of the ESC are summarised
as follows:
21.1.
The parties’ submissions where mutually exclusive and
culminated in a
"winner takes all”
approach, which
had the consequences that if the ESC were to find in favour of NUM,
then the disputed job categories within
the Human Resources
Department would be wholly excluded from the minimum services.
21.2.
That approach however did not allow the ESC to make a determination
that a certain number
of employees within a particular department or
within a job category were necessary to maintain a minimum level of
service in order
to ensure that no life was exposed to any hazardous
situation. In the ESC’s view, the evidence did not support this
contention.
21.3.
In accepting Eskom’s contentions, the ESC held that the test to
be applied in disputes
such as the present was not the extent or the
duration of the interruption (industrial action) to the essential
service(s), but
the maintenance of the essential service, to ensure
that life, personal safety and health of the population was not
endangered.
21.4.
The ESC further opined that its function as a dispute resolution
forum in the current
dispute was not to abolish or invalidate the
existing minimum service designation(s) but rather to determine if
and how a reduction
in positions designated as essential services may
be reconfigured.
21.5.
The ESC took into account that there was a previous designation in
respect of GTD during
1997. It further took into account the terms of
the 25 March 2015 settlement agreement wherein the business units of
Eskom were
listed, and which gave practical and organisational effect
to the 1997 essential services designation. That settlement agreement

which was made an order of the ESC, determined that all Eskom
employees (including call out workers, shift and standby workers
on
training or spare) engaged in Human Resources were engaged in the
designated essential services and could not embark on any
form of
industrial action.
21.6.
It accordingly concluded that the approach adopted by NUM would
effectively lead to an
abolishment of the previous essential services
designation of the ESC.
21.7.
The ESC noted that notwithstanding the fact that a party to a minimum
service agreement
could in terms of the provisions of section 71(9)
of the LRA approach the ESC to either cancel or vary any existing
designation
handed down by it, NUM had not exercised that right. This
was indeed common practice and other trade unions had in the past
utilised
that procedure to withdraw from the previous proceedings
before the ESC.
21.8.
In the ESC’s view, the true dispute that ought to be resolved
in the light of the
evidence adduced and the submissions advanced by
the parties, was, which positions if any, should remain classified as
minimum
services within the Human Resources Department.
21.9.
Since the parties had adopted a “
winner takes all”
approach to the proceedings, there was no evidence offered by NUM
that would enable the ESC to make a determination that would
reduce
the number of employees to be classified as minimum services, so as
to create a balance of the employees who could participate
in a
protected industrial action.
21.10.
The ESC accepted the evidence of van Jaarsveld and the accompanying
job profiles, which demonstrated that
the positions in dispute fell
within the category of minimum services. Moreover, the ESC was of the
view that the Old Minimum Service
Agreement could not be relied upon
having taken into account the current circumstances in the Republic,
business operations and
Eskom’s operational needs.
The
legal framework and the test for minimum services:
[22]
The
starting point is the acknowledgment of the right of workers to
strike as enshrined in section 23(2)
(c)
of
the Constitution of the Republic
[8]
.
The right to strike however is not absolute
[9]
and
may be limited in terms of a law of general application to the extent
that such limitation may be reasonable and justifiable
in an open and
democratic society.
[23]
In
conformity with the Constitution, the LRA confers upon every employee
the right to strike, but it also imposes limitations on
this right.
The limitations, to the extent relevant for the purpose of this
dispute are contained Section 65 (1) of the LRA
[10]
[24]
A determination as to whether a service falls within minimum services
invariably limits
employees’ Constitutional right to
participate in industrial action. It is within this context that just
as with essential
services, any determination regarding whether a
service ought to be regarded as minimum, ought to entail a
restrictive interpretation,
so as not to impermissibly limit
employees’ Constitutional right to strike.
[25]
Until the
amendments to section 72 of the LRA
[11]
,
any guidance as to what truly constituted minimum services was left
to the ESC to formulate. Any attempts at a statutory definition
of
what a minimum service entailed would have ended with a
one-size-fits-all formula, which would have been unhelpful or
impractical
given the dynamics in the world of work in general.
[26]
The amendments envisage a MSA to be one in which employees in an
essential service are
allowed to strike provided that an entity
maintains the minimum level of production or service. Significant
with the amendments
is that they refer to ‘‘
determined
minimum service’
which means the minimum number of
employe
es in a designated
essential service
who may not
strike in order to ensure that the life, personal safety or health of
the whole or part of the population is not endangered.
This guideline
for a lack of a better description is only helpful in parts, as the
ESC, still has to make a ‘determination’
as to what
constitutes  ‘
minimum service that maintains a level of
production or service
.’
[27]
A look at
other guidelines is useful. Cheadle
et
al
refer
to minimum service as referring to
those
specific activities that are truly indispensable for the preservation
of  life, personal safety and health
through the provision of a service that has been designated as
essential. The learned authors however contends that there is a
lack
of logic in the concept of minimum services, as an exercise is
followed in terms of which it is concluded that a service that
is
essential service and,  as such, employees employed in that
service may not strike. However, it can thereafter be agreed
or
determined that the prohibition of strikes is justified in only part
of the service. In their view, it follows that the entire
service was
not essential in the first place and only a part of it needed to be
declared essential
[12]
.
[28]
Daya
Pillay states that a minimum service is one t
hat
is sufficient to ensure that during strikes no person’s life,
personal safety or health is endangered,
and that
any service necessary to meet this objective must be included in the
MSA. Any service superfluous to meeting this objective
falls outside
the definition of minimum service
[13]
.
[29]
Insofar as international standards are concerned, guidance is sought
from various sources
of the ILO, including the ILO labour legislation
guidelines  which included draft provisions for Member States
regarding minimum
service, and which provides that;
”
(a) the minimum
service shall be such as to ensure that the life, health and personal
safety of the population is adequately safeguarded”.
[30]
The position of the Committee of Experts on the Application of
Conventions and Recommendations
regarding a minimum operational
service is that;
”
In
the view of the Committee, such a service should meet at least two
requirements. Firstly, and this aspect is paramount, it must

genuinely and exclusively be a minimum service, that is one which is
strictly necessary to meet the basic needs of the population
or the
minimum requirements of the service, while maintaining the
effectiveness of the pressure brought to bear. Secondly, since
this
system restricts one essential means of pressure available to workers
to defend their economic and social interest, their
organisation
should participate in defining such service”
[14]
[31]
In regards to the determination of minimum services to be maintained,
the Committee on
Freedom of Association further states that;
”
The determination
should involve employers and employee representatives. This not only
allows a careful exchange of view-points
on what in a given situation
can be considered to be the minimum service that are strictly
necessary, but also contributes to guaranteeing
that the scope of the
minimum service does not result in the strike becoming ineffective in
practice because of its limited impact,
and to dissipating possible
impressions in the trade union organisations that the strike has come
to nothing”.
[15]
[32]
In the
ILO Freedom of Association: Digest of the Decisions of
Freedom of Association Committee of the Governing Body of the ILO
,
it is suggested that;
“
The
establishment of minimum services in the context of essential
services in the strict sense must be distinguished from (1) agreed

minimum services in respect of a service that is not essential in the
strict sense, but the cessation of which could nonetheless

result in an acute national crisis endangering the normal living
conditions of the population and (2)…”
and
“
Services
that are not essential but inconvenience to or longer term impact on
the public when these services are not available are
considered as
justification for a limitation on a right to strike”
[16]
[33]
The
approach of the Supreme Court of Appeal (SCA)
in
Eskom Holdings Ltd v National Union of Mineworkers and
Others (Essential Services Committee Intervening),
effectively
laid the basis of the amendments to section 72 of the LRA by stating
that:
”
However,
it is acknowledged both in this country and internationally that not
all the workers employed in an industry declared to
be an essential
service need to be precluded from striking for that service to
continue to operate at an acceptable level. This
has given rise to
the concept of a ‘minimum service’ which is intended to
allow certain workers in an industry designated
as an essential
service to strike while at the same time maintaining a level of
production or services at which the life, personal
safety or health
of the whole or part of the population will not be endangered…”
[17]
[34]
The common themes that come out of the above guidelines and the SCA
are ‘
minimum service that maintains a level of production or
service’
; ‘
specific activities’
;
‘service
that is one which is strictly necessary to meet the
basic needs of the population or the minimum requirements of the
service’.
[35]
There is however a general consensus that central to minimum
services, is a respect of
employees’ right to strike, whilst at
the same time maintaining certain services in ‘
ensuring that
the life, personal safety or health of the whole or part of the
population is not endangered’
. Concepts such as
‘
inconvenience’
. ‘
acute national crisis’
;
‘
service that is superfluous’
or ‘
truly
indispensable’
are in my view relative to each given
circumstance, and may or may not be helpful.
[36]
Flowing from the above, it can be accepted for the purposes of this
dispute, and even on
a general level, that the test in determining
what constitutes a minimum service entails;
36.1   Taking
into account employees’ constitutional right to participate in
industrial action, which ought to be
balanced against the general
public interest.
36.2   An
examination of specific critical or necessary services required
within an essential services designation, that
must be maintained at
acceptable levels during the course of industrial action, to ensure
that life, personal safety or health
of the whole or part of the
population is not endangered.
36.3   An
assessment of whether a service is superfluous or critical to the
overall objective of minimum services through
an examination of
whether the core business of the entity/service consists of
components which are/or not intertwined or interdependent.
36.4   If the
business components of an entity are interdependent, an assessment
needs to be made as to whether a determination
of minimum services
will achieve its objectives by attaching significance to any
individual business component  to the exclusion
of any
relationship with other components, or whether a composite assessment
of the components would be necessary in order achieve
those
objectives.
The
applicable test on review
[37]
NUM’s
contentions were that to the extent that section 72 of the LRA
provides that the ESC must make determinations in respect
of minimum
services, it followed that any review of that determination should be
brought under the provisions of section 158 (1)
(g) of the LRA
[18]
.
[38]
NUM however
goes further and contends that based on the proposition in
Building
Industry Bargaining Council (Southern and Eastern Cape) v CCMA and
Others
[19]
,
a
review under section 158 (1) (g) would include a review based on the
provisions of the Promotion of Administrative Act (PAJA)
[20]
,
and that to this extent, it relied on the provisions of sections 6
(2) (d); 6 (2)(e)(iii); 6 (2) (f) (ii) and 6 (2) (h) of that
Act.
[39]
In the alternative, and to the extent that the Court may hold the
view that despite the
wording of the LRA, a determination of the ESC
amounts to an arbitration award, NUM contends that the applicable
test would then
be that under section 145 of the LRA, which is
whether the decision is one which a reasonable decision maker could
not reach.
[40]
To the extent that NUM sought to rely on PAJA, this was raised for
the first time in the
supplementary affidavit, and even then, it was
reiterated that the application was brought under section 158 (1)
(g), or alternatively
under section 145 of the LRA.
[41]
Eskom’s position was that, there was no basis for a review
under sections 158 (1)
(g) or 145 of the LRA. It contends that when
the ESC performs its functions as a specialist body, it is for it to
determine whether
or not the whole or part of a service falls within
the scope of designated essential services in terms of section 70D of
the LRA,
and not the Court. It is the ESC that must determine any
question of law or procedure, and must exercise a discretion and
balance
the competing interests. To that end, it was argued that the
scope of a successful review on the grounds of mistake of fact or law

was limited.
[42]
Eskom
further disputed that PAJA applied to the review proceedings and
relied on
Minister
of Labour and Another v PSA and Others
[21]
,
in
arguing that the LRA was a specialised legislation that was enacted
to give effect to section 23 of the Constitution, whilst
PAJA was a
general legislation that was subsequently enacted to give effect to
section 33 of the Constitution.
[43]
In regards to the above debate, it is accepted
that the ESC is created by the LRA in terms of section 70(2) of the
LRA, and its
functions are outlined therein. There can be no dispute
therefore that the ESC is typically a structure created to deal
specifically
with labour matters.
[44]
Central to any determination of whether a service
should be classified as minimum service is the right to strike. A
determination
in that regard, and to the extent that the parties had
failed to agree on a MSA, entails an examination of the law and the
facts,
and given the competing interests at stake, it can be argued
that there is clearly little room for an exercise of a discretion.
[45]
In this case, and to the extent that NUM contended
that the provisions of PAJA were applicable, it was correctly stated
on behalf
of Eskom that the submissions of NUM in that regard were
merely a matter of form over substance, as the basis upon which NUM
relied
on each ground was no different to the substance of its LRA
grounds of review.
[46]
To illustrate; NUM had relied  on section 6
(2) (d) of PAJA on the basis that the ESC had failed to develop a
test for determining
whether a position should fall within a minimum
service, and further failed to develop that test in line with the
LRA, international
instruments and the SCA judgment. That contention
has no  merit as shall further be elaborated later in this
judgment, as
the ESC had clearly developed and applied a test for the
purposes of determining the dispute. To this end, reliance on these
provisions
is misplaced, and I will not burden this judgment with
further illustrations, as these will be sufficiently dealt with in
the evaluation
below.
[47]
What
needs however to be added is that
significant
with the decision in
Building
Industry
[22]
relied
upon by NUM is that in that case, the issue before van Niekerk J was
whether the decision of the CCMA to
limit
the accreditation
of
the applicant to perform conciliation functions in respect of all
employees and employers who fell within its registered scope,
to a
period of one year was reviewable under the provisions of section 158
(1) (g) of the LRA.
[48]
The decision of the CCMA to accredit bargaining councils to perform
certain statutory functions
under the provisions of section 127 (4)
of the LRA is distinguishable from a determination of the ESC under
the provisions of section
72 of the LRA. That much at least can be
gleaned from paragraph 25 of that judgment where van Niekerk J held
that;
“
In short: a
decision made by the CCMA under s 127, whether it is to grant or
refuse accreditation or to extend accreditation on
terms more limited
than those sought by an applicant council, is not a decision that is
infused with any of the considerations
that caused the majority
in Sidumo to find that while the making of a CCMA
arbitration award is administrative action,
the PAJA did not apply.
There is no reason therefore why the PAJA ought not to have been the
applicant’s first resort - it
is the statute that gives effect
to the rights under s 33 of the Constitution, and which represents a
codification of those rights
(see
Bato Star
(
supra
)
at para 25).”
[49]
Basson J in
Eskom
Holdings (Pty) Ltd v National Union of Mineworkers and
Others
[23]
held
that;
“
In
line with the objective of the LRA which is, inter alia, to allow for
the effective resolution of disputes, section 74 of the
LRA provides
that any party to a dispute that may not be engaged in industrial
action because they are engaged in an essential
service, may refer
the dispute to the CCMA which must attempt to resolve the dispute
through conciliation. If conciliation is successful,
any party to the
dispute may request the relevant body to resolve the dispute though
arbitration. The outcome of the compulsory
arbitration process would
be an arbitration award. The commissioner will therefore effectively
resolve the dispute for the parties
as they are not afforded the
right to enforce a resolution of the dispute by resorting to
industrial action.”
[50]
In
Sidumo
,
as correctly pointed on behalf of Eskom, the Constitutional Court
held that the powers of this Court as set out in section 158
of the
LRA differ significantly from the powers of a court set out in
section 8 of PAJA, and that the latter provision provides
that only
in exceptional circumstances may a court substitute the
administrative decision or correct a defect resulting from the

administrative decision
[24]
[51]
Flowing from the above, it should be accepted as argued on behalf of
Eskom, that the administrative
justice provision of the Constitution
suffuses the grounds of review under section 145 and 158 (1) (g) of
the LRA, which in turn
are suffused by the constitutional standard of
reasonableness. The parties in this case having failed to agree on
which positions
within Eskom’s Human Resources Department ought
to fall under minimum services, the dispute then had to be subjected
to compulsory
arbitration, which resulted in the impugned award.
[52]
The fact
that the findings of the ESC are framed as a ‘Determination’
does not give it a different colour or texture
for the purposes of a
review under PAJA. The fact that  the provisions of section 158
(3) of the LRA
[25]
omitted to
refer to such determinations as arbitration awards does not make them
less of awards. They remain awards which would
ordinarily be subject
to the review test under the confines of section 145 and 158 of the
LRA.
Grounds
of review
[53]
Both parties had submitted extensive written heads of argument as
also supported by the
record. For the sake of convenience,  I
will summarise NUM’s submissions, and deal with Eskom’s
within the context
of my evaluation.
[54]
The starting point for NUM in seeking a review is that four central
questions should be
answered by the Court, viz;
54.1 What was the ESC
required to do in the proceedings relating to Eskom’s Human
Resources Department and in what manner
was this duty carried out?
54.2 Does the ruling give
rise to a review?
54.3 If the ruling should
be reviewed and set aside, should the Court substitute it?
54.4 If the ruling should
be substituted, what is the test to determine whether a position
should fall in or out of an MSA, and
once that test is applied, do
any or all of the five positions fall within the MSA?
[55]
In line with the above questions, NUM’s submissions were that:
55.1
The ESC was required to develop a test or provide guidelines in which
manner a minimum service was to be
determined, and apply the test in
determining which positions ought to fall within a minimum service,
and further to provide reasons
in that regard.
55.2    In
this regard, it was submitted that the ESC had failed to set out a
test, provide guidelines, failed to
apply the test, or engage at all
with the five positions, and had simply accepted the evidence of van
Jaarsveld that the positions
should fall within a minimum service.
55.3
The ESC’s failure to adopt a test culminated in a misconception
of the parties’ submissions advanced
at the hearing, and
further wrongly accepted the evidence of van Jaarsveld’s in
totality without it being weighed against
the job profiles of the
affected positions.
55.4    In
the result, NUM seeks an order substituting the determination of the
ESC with a finding, which holds that
the test to be applied in
determining whether a position should fall within a minimum service
is ‘
whether, if that position is not filled, that would have
a short term impact on the generation, transmission and distribution
of
electricity
.’ If that test were applied, the Court would
reach a finding that none of the five Human Resources positions fell
within
the minimum service.
55.5    It
further contends that the ESC failed to consider the parties’
legal submissions and for that reason,
it arrived at an irrational
conclusion that the parties’ submissions were mutually
exclusive. NUM argues that the parties’
legal submission before
the ESC were identical and what differed was the factual application
to the facts thereof. The ESC’s
failure to recognise that fact
was a material error.
55.6
NUM contends that the ESC failed to develop guidelines, legal
framework or approach to determine which positions
fell within a
minimum service and further contends that the ESC failed to determine
based on the evidence before it, whether the
five positions were
necessary for Eskom’s core business.
55.7
The ESC according to NUM adopted an adversarial approach and accepted
van Jaarsveld’s evidence without
evaluating it against the job
profiles of the five Human Resources positions, which in the result
culminated in an irrational minimum
service determination reviewable.
55.8
NUM contends that if the Committee applied the correct test, it would
have reached a decision that holds
that all the Human Resources
positions would not have a short term impact on the GTD of
electricity.
55.9    In
regards to the evidence placed before the ESC, it was NUM’s
contentions that at a conceptual level,
both parties viewed a minimum
service in identical terms, which was that such service must be
confined to all those positions which
were critical to the
maintenance of GTD, and that those which were not, should fall
outside the minimum services designation.
55.10 It was argued that
the only conceptual difference between the parties’ positions
was that NUM proposed a test whereby
positions critical to the
maintenance of GTD could be identified, and if a post was not
occupied, whether this would have a short
term impact.
55.11 In further
attacking the determination, NUM contends that the finding that the
parties’ submissions were mutually exclusive
and effectively
came down to a ‘
winner takes all’
approach was
irrational and bore no connection to the submissions, particularly
since the submissions were identical, and further
since Eskom had not
postulated a test in determining whether a position was critical or
not. To that end, it was contended that
the ESC conflated the legal
and factual submissions of the parties.
55.12 It was further
submitted that the fact that NUM had not made submissions on reducing
the number of employees in the five positions
was entirely irrelevant
to the issue before the ESC, which was whether any of the five
positions should fall within a minimum service.
In this regard, it
was argued that both parties had accepted that if the positions
should be included in the minimum services,
all employees in those
positions should be included in the minimum services designation.
55.13 In the end, NUM
holds the view that whatever review test were to be applied to the
current dispute, the fact remained that
the ESC failed to proffer a
test applicable to the evaluation of minimum services designations
and that fact alone rendered the
determination reviewable.
Evaluation
[56]
The starting point in the consideration of whether the ESC’s
determination is reviewable
is that, central to this dispute is what
should constitute minimum services within the context of the 25 March
2015 settlement
which was by consent, made an order of the ESC, and
the 1997 essential service designation.
[57]
That agreement in particular in my view should be the starting block
of any determination
as NUM had agreed that all employees in the
Human Resources Department were engaged in the essential service and
that none could
strike.  To this end, there is merit in Eskom’s
contentions that the order of a substitution as sought by NUM, to the

effect that none of the job positions within Eskom’s Human
Resources Department fell within the minimum service is indeed
bad in
law and the anthesis of the 25 March 2015 ESC Order, and the 1997
essential service designation. This is further so in that
the
settlement agreement and the 1997 essential service designation
remained legal and binding.
[58]
Thus, it does not assist NUM at this belated stage to hold the view
that none of the positions
within the Human Resources Department
should  be categorised as minimum services when an agreement was
already reached in
that these positions or services formed part of
the essential service. As the ESC correctly held, NUM had an option
of resiling
from the 1997 designation through its processes and had
not done so. If NUM equally seeks to resile from the agreement which
was
made an order of the ESC, it cannot do so through these review
proceedings.
[59]
The next
enquiry into what constitutes a minimum service in the contested
positions in Eskom is a factual one, taking into account
the
guidelines set out elsewhere in this judgment, the applicable
legislative provisions, and the overall public interests. That

enquiry should discount any partisan and/or sectarian interests
[26]
,
as Eskom, as a State owned entity, invariably renders an invaluable
to the general public.
[60]
In this case, a factual basis was required for a proper determination
to be made in regard
to which positions rendering which critical
services within Human Resources Department fell or should not fall
under minimum services,
in the sense that any cessation or
interruption of those services
would
pose a danger to life,
personal safety or health of the whole or part of the population.
That enquiry was obviously to take place
within the context of an
examination of Eskom’s core business, which is the GTD of
electricity; whether the core business
constituted of interdependent
components or not; and to further assess which of those positions
were critical to the maintenance
of that core business.
[61]
NUM’s contentions that the ESC failed to set out a test, or
provide guidelines, or
failed to apply the test, or engage at all
with the five positions are unsustainable for a variety of reasons.
This include
inter alia,
that the ESC accepted Eskom’s
contentions that the test to be applied in disputes such as the
present was not the extent
or the duration of the interruption
(industrial action) to the essential service(s) as contended for by
NUM, but the maintenance
of the essential service, to ensure that
life, personal safety and health of the population was not
endangered. The test as accepted
by the ESC is in line with
international guidelines and the SCA judgment.
[62]
The ESC had
further held that its function as a dispute resolution forum in the
current dispute was not to abolish or invalidate
the existing minimum
service designation(s) but rather to determine if and how a reduction
in positions designated as essential
service may be reconfigured.
[27]
I accept that these conclusions are a restatement of Eskom’s
submissions. However, the ESC having summarised them,
had
concluded in its analysis that it was in agreement with them.
[28]
[63]
NUM might not necessarily agree with that approach, but it does not
imply that a test was
neither formulated nor applied to the facts of
the case. NUM had other than subscribing to the formulation of the
test by the SCA,
further suggested that the test to be applied in
determining whether a position should fall within a minimum service
was ‘
whether, if that position is not filled, that would
have a short term impact on the generation, transmission and
distribution of
electricity.
Mashego’s understanding of
minimum services was further that minimum services involved
services
the retardation of which would compromise life, health and safety of
employees
.
[64]
Clearly, the test as suggested by Mashego is off the mark as the
focus is on the provision/maintenance
of minimum services to ensure
that the life, personal safety and health of the population or part
thereof was not endangered. The
focus is on services rendered by
those employees,
and not on the employees
themselves as
suggested by Mashego.
[65]
The test proposed by NUM is equally flawed and is self-serving. This
observation is made
in the light of Mashego’s evidence that any
strikes at Eskom ordinarily took place over a maximum of three days,
and it can
only be assumed that any short term impact would be
assessed against the duration of the strikes as anticipated. The
tests as postulated
by NUM also fails to take into account the
evidence of Radebe, which was that the core business processes within
Eskom were virtually
integrated into functional structures across all
areas of business operations, and the functional structures were
aligned with
and modelled on the value chain of GTD of electricity.
This was in support of Eskom’s case that its generation and
distribution
divisions were dependent on Human Resources services.
[66]
Thus, for any determination to have been made based on a ‘short
term impact’
when the business was virtually integrated would
have been a tall order. On Mashego’s testimony, and to the
extent that his
contention was that strikes normally took place over
no more than three days, the question remains how any ‘short
term impact’
under those circumstances could have been
determined. Even more fatal to that proposition however is Mashego’s
concession
that even if a strike lasted for or more three days, there
will be an interruption to GTD of electricity.
[67]
‘
Short term impact’
is one of the many factors to
be taken into account when making a determination. It is a relative
concept that can mean anything,
inclusive of endangerment to life
personal safety or health of the population.  It is nonetheless
not panacea in the enquiry
to determine what may or may not be
classified as minimum services. It further cannot, by all accounts,
be synonymous with ‘
endangerment to the life, personal
safety or health of the whole or part of the population’
.
In the circumstances, a determination as to whether a service within
the Human Resources Department of Eskom ought to fall under
minimum
services cannot be made only based on the extent and duration of
strike or what the short term impact of that strike may
be on the
core business. The enquiry into the absence of minimum services is
much broader than that.
[68]
The test is that as suggested elsewhere in this judgment. For the
purposes of this dispute,
and in the light of the consent order and
the 1997 essential services designation, the issue for determination
was whether it could
have been reasonably expected of Eskom to
continue with its core business in the absence of what it deemed to
be the critical services
of all the employees in its Human Resources
Department who are the subject of the dispute, whilst at the same
time, maintaining
an acceptable level of production or services at
which the life, personal safety or health of the whole or part of the
population
would not be endangered.
[69]
An enquiry
into the above as already indicated is a factual one, and this Court
should thread carefully prior to interfering with
such
determinations, unless it can be demonstrated that the determination
was unreasonable in the light of the facts and evidence
placed before
it, or that the ESC had failed to take into account the relevant
procedural requirements and the law. The scheme
of the LRA is
designed to position the ESC as the specialist body expressly charged
with determining what services are essential
and, within an essential
service, what the minimum or reduced essential service should be
[29]
.
This Court cannot therefore second-guess the thinking of the ESC as a
specialist body, unless there are clear grounds for doing
so.
[70]
Any determination as to which services were to constitute minimum
service within Eskom,
would equally have factored in the
public
interest as already stated, particularly in the light of the
consideration that at least 90% of the population of the
Republic of South Africa depends on electricity generated,
transmitted
and distributed by Eskom.
[71]
In this case, to the extent that there was a dispute in respect of
the five identified
positions, the advocated respective positions and
submissions were to be amplified by compelling evidence. This is so
in the light
of the public interests  and the Constitutional
right (to strike) at stake, and the quest to establish whether a
complete
disruption of those services
would
not endanger life, personal safety and health of
the population.
This implies that all of these positions were
to be placed under scrutiny for an objective assessment to be made
whether or not
they should fall under MSA. The job profiles of those
positions were to be assessed in relation to the consequences should
service
in that regard be completely interrupted or not be at
acceptable levels during a strike.
[72]
Eskom had already conceded that some of those positions/services
could be dispensed with,
as their interruptions posed no danger to
its core business or to life, personal safety or health of the whole
or part of the population.
In the light of these concessions, NUM’s
position that all of the services in the Human Resources Department
should not fall
under minimum services in the light of the settlement
agreement and 1997 designation already referred to, was clearly
untenable,
as it clearly negated the 25 March 2015 agreement and 1997
designation.
[73]
The ESC’s findings and conclusions that the parties’
positions were mutually
exclusive and effectively came down to a
‘
winner takes all’
approach are reasonable in
part, as it was more of NUM’s approach that was ‘
winner
takes all’.
That much came from Mashego’s evidence
when questioned by the panel, as his view was that should a
determination be made either
way, then all of the personnel in the
Human Resources Department should accordingly be classified. He had
stated that it was not
for the ESC to make alternative orders in the
sense of ruling that for example, two out of ten positions should
form the minimum
service. In a way, NUM’s approach was all or
nothing, and was averse to paring of positions in the event of a
strike. Through
its evidence and submissions, NUM left the ESC with
no option other than to make its determination based on what the
facts were.
[74]
The ESC agreed with Eskom’s legal approach, which was to
determine minimum services
that had to be maintained in the disputed
job categories. Eskom through the evidence of van Jaarsveld as
further supported by documentary
evidence, had placed before the ESC,
presentations, and the job profiles and descriptions for each of the
categories. Van Jaarsveld
had at the time, 25 years of service at
Eskom and had played various roles within Human Resources, Industrial
Relations Department,
Business Partner, and Environment. He was at
the time Eskom’s Manager; remuneration and benefits. He had
been party to processes
in regards to the conclusions of previous
MSAs. He had attested to the diverse nature of the business as
conducted throughout the
country and contended that there cannot be a
standard minimum service for all areas as for instance, the one
office in another
area might have one Human Resources Practitioner
without spares or alternatives, which implies that any strike in that
office would
bring Human Resources functions in that area or office
to a standstill, which in turn may have consequences for core
operations.
He readily conceded that in some offices, there was a
concentration of Human Resources personnel. His contention was that
for minimum
services, and given the nature of the business, what was
looked at was which services were critical for the maintenance of
those
services or to maintain the support of the essential services,
and which service could be released. In this regard 300 out of 900

personnel/positions in the Human Resources Department were identified
for minimum services. Van Jaarsveld had testified at length
about the
five positions and why they had to fall under the designation of
minimum services.
[75]
Similarly, Mashego had testified in regards to these positions, and
on his version, he
had experience in Human Resources as a Wellness
Officer Lifestyle Management and Plant Operator. Given the nature of
the proceedings,
none of these witnesses were subjected to cross
examination.
[76]
The ESC had
regard to the testimony of Mashego and reiterated Eskom’s
contentions with the difficulties in Mashego’s
evidence
[30]
.
It came to the conclusion that van Jaarsveld’s evidence as to
why the positions must fall within the designated minimum
services
should be favoured, as there was no evidence to the contrary. There
is therefore no merit in NUM’s contentions that
the ESC failed
to properly assess and evaluate the evidence presented on its behalf.
The fact that the ESC did not deal at length
with the evidence and
the submissions in its ‘analysis’ does not mean that it
did not do so at all.
[77]
Insofar as an assessment of these positions was concerned, it needs
to be borne in mind
that given the non-adversarial approach agreed to
by the parties, the constraints with that approach would be
self-evident. In
his determination, the Chairperson of the ESC
expressed misgivings with that approach, and confirmed that reliance
in arriving
at the determination was placed on the oral evidence and
the submissions made, leading to a proper analysis of the oral
evidence
not being made. To the extent that the parties agreed to
that procedure, NUM cannot therefore complain that the ESC had
adopted
an adversarial approach when favouring van Jaarsveld’s
evidence.
[78]
The procedure agreed to was that the ‘evidence’ before
the ESC was not tested,
and what that implied is not whether the ESC
was expected to believe or disbelieve any version, but whether a
clear case had been
made for those opposing versions for an informed
determination to be made. That clear case depended on the facts, and
not conjecture
or opinions of the parties on the matter. A statement
such as one made by Mashego that a strike at Eskom might take three
days,
and that there may be an interruption or impact on GTD is mere
conjecture. The consequences, or what endangerment may befall
personal
life, personal safety or health of the part or whole of the
population cannot be left to fate or conjecture. The whole purpose of

MSA is to guarantee (at least to a large degree), that such
endangerment does not occur.
[79]
NUM contends that van Jaarsveld’s evidence in regards to
Officer/ Assistant Officer Human Resources and Assistant Officer
Human Resources
was supposition, as these were new positions and
there had been no protected strike at Eskom for over 12 years. It was
argued that
the role of these employees during an unprotected strike
can have no bearing on whether those posts should form part of a
minimum
service. Van Jaarsveld’s evidence is further criticised
based on the contention that all the reporting functions would be

functions related to protected strike; that other functions related
to payments of overtime, subsistence and travel expense, and
that
non-payment in any event would not impact on GTD.
[80]
Van Jaarsveld’s evidence is further alleged to have been
incoherent, and it was submitted
that functions such as scanning the
environment had no bearing on protected strikes, and that absenteeism
of essential service
personnel can be reported by shift supervisors.
On the whole, it was submitted that the absence of these officers
would not have
short term impact on GTD, and should thus not form
part of minimum services.
[81]
It is my view that it is permissible to attack ‘evidence’
on account of it
being incoherent. At the same time however, the
substance of that evidence, if present and discernable, cannot be
ignored. According
to van Jaarsveld, and to the extent that his
evidence was coherent, Officers Human Resources were
inter alia,
responsible for supporting essential service workers who fall
within the minimum services or who have been excluded from essential

service designation. They provided guidance, information and
instruction to line management in the event of strikes. Eskom had

argued that without them, payment processes for essential services
workers would not be possible, and it would not have frontline

information in the event of a strike. There are 180 of these officers
responsible for 300 other operational workers.
[82]
In my view, it is not sufficient for NUM to simply contend that Eskom
can dispense of such
services and still be able to maintain
acceptable levels of service or production without endangering the
life,
personal safety and health of the whole or
part of the population. Any observation in this regard needs to be
made within the context
of a concession by Radebe that the core
business processes within Eskom were virtually integrated into
functional structures across
all areas of the business. If these
officers are on strike, the issue is whether Eskom, can continue with
its core business at
acceptable levels, and be able to process
payments of essential services workers on duty, obtain front line
information about the
strike in respect of who is on strike or not,
and ensuring that operational matters run smoothly. If employees
designated as essential
services are at work during a strike, their
payments need to be processed by someone. The answer would have been
in the affirmative,
had NUM placed facts before the ESC, which
pointed out specifically how Eskom could achieve those ends whilst
all employees in
Human Resources Department were on strike.
[83]
Furthermore, the fact that those positions were
new and a strike had not taken place in the last 12 years is not the
test. The issue
is whether those officers provided a service which
could not be dispensed with in an event of a strike. If they were
required to
provide a minimum service during a strike, in the sense
that for example that they were required to form part of the strike
committee
during a strike, process payments for overtime and other
remuneration, and generally service 70% of Eskom employees who fall
under
GTD, a defence proffered by Mashego that these Officers could
be dispensed with, as security officers on duty could monitor the

strike or that there were surveillance cameras to capture events at
various sites where a strike may have taken place, or that
Eskom had
a centralised automated system or Shared Services system for the
purposes of administering the functions ordinarily to
be performed by
these officers can hardly be persuasive.
[84]
In regards to
Officer
Industrial Relations
, NUM’s only
concession was that these officers may assist in facilitation between
management and the union during a strike.
Eskom’s contentions
were that these officers were key in the interface with the unions to
facilitate handover of memoranda,
picketing rules and provide input
into the formulation of relevant communication to management and
unions before, during and after
the strike. They are on-site
Industrial Relations Specialists.
[85]
The importance of communication, liaison and facilitation between
personnel on site and
Eskom’s decision makers during a strike
cannot be emphasised. This is especially so in an industry designated
as essential
services as a whole. If there is a strike and
irrespective of its duration, there would be a need for constant
communication between
the unions and management. If these officers
are not present on the ground, how can it possibly be expected of
Eskom to engage
meaningfully with unions in the absence of correct
information about what is taking place on the sites? The mere
concession by
NUM that these officers  are central to
facilitations between management and the unions during strikes puts
any debate about
their critical service to rest.
[86]
The argument surrounding the positions of
Occupational Health
Nurses
is equally to be swiftly disposed of. The nurses are
responsible for occupational and primary health care, which includes
emergency
health care to all employees. The central  issue with
these positions is that even if they were ordinarily not shift
workers
but required to be on standby, there is even a greater need
for them to form part of the minimum service in that whilst other
employees
would be on strike, those performing essential services
would need to have access to medical care where the need arises.
[87]
It is thus not sufficient for NUM to simply argue that shift
workers/officers, or plant
operators or even shift supervisors can
attend to any medical emergencies that may occur as they happen to
have some basic training
in first aid. Serious medical emergencies
that may affect GDT may arise that needs immediate professional
attention than mere basic
first aid. The individuals identified by
Mashego as alternatives can only administer first aid, and the
prospects of them being
overwhelmed and ill-equipped to deal with
major medical emergencies are not remote.
[88]
Mashego had readily conceded that the different sites at Eskom were
not equipped to deal
with medical emergencies. This makes even
stronger Eskom’s case that the nurses should form part of
minimum services. Putting
a band aid on an employee who requires
urgent medical attention and thereafter wait for an ambulance as
Mashego had suggested is
clearly not an answer as to why nurses
should not form part of minimum services.
[89]
In regards to
Wellness Officers Lifestyle Management
, it can
be accepted that Mashego clearly spoke from an informed position,
having occupied such a position himself whilst employed
by Eskom. Be
that as it may, their role as attested to by van Jaarsveld was to
provide counselling in an event of traumatic events
taking place
during a strike.
[90]
To the extent that these officers provided trauma counselling, it
cannot be doubted that
their services would be critical as they are
responsible for the wellbeing of all employees, including those in
essential service.
If employees in essential service cannot access
their service in the event of need, the rippling effect thereof is
clearly to affect
GTD. There is no basis for any conclusion to be
reached that such services are superfluous to meeting the objective
of minimum
services.
Conclusions
[91]
Eskom only required 30% of its employees within the Human Resources
Department to fall
within the category of minimum services, whilst
70% could go on strike. NUM’s approach as concluded by the ESC
was that all
of the employees should not fall under minimum services.
At the end however, NUM had not as correctly pointed out by the ESC,
stated
why it was necessary to adopt that approach. To the extent
that it had attempted to do so, those attempts based on the facts as

presented were not persuasive.
[92]
It is accepted that a determination of a minimum services ultimately
should not erode the
effectiveness of a strike. At the same time
however, if only 30% of the entire Human Resources component is to be
classified as
minimum service, it is doubted that the effectiveness
of any strike would be eroded. At the same time however, if there is
0% of
minimum service in the Human Resources Department during a
strike, irrespective of the extent and duration of that strike, in
the
light of the interrelated/integrated nature of Eskom’s
business (a fact which NUM sought to downplay or deliberately
ignore),
and the fact that GTD is likely to be interrupted on
Mashego’s version, the prospects of endangerment to life,
personal safety
or health are clearly not remote.
[93]
In the end, I am satisfied that the ESC, based on the material before
it, developed a test
and provided guidelines on the manner which
minimum services were to be determined, and equally applied that test
to the facts
and all material placed before it. There is further no
basis for making a  finding  that the ESC failed to
consider the
parties’ legal submissions, unduly favoured van
Jaarsveld’s evidence over that of Mashego, or arrived at an
unreasonable
conclusion. The ESC in the light of the competing
interests, also had regard to the evidence and the material placed
before it
in regards to the five positions when making its
determination. It had arrived at a decision that meets the standard
of reasonableness.
Given NUM’s untenable position that all of
the employees in Eskom’s Human Resources Department could not
be categorised
as  minimum services notwithstanding the 25 March
2015 agreement and the 1997 designation, the decision arrived at by
the
ESC ultimately created and achieved a balance between the
employees’ right to participate in a strike, and the
maintenance
of minimum services with the Human Resources Department.
[94]
A decision that the positions in question did not form part of the
minimum services would
effectively have rendered the 25 March 2015
agreement, that was subsequently made an order of the ESC nugatory,
and effectively
set it aside. It is not for the ESC to make orders
and then fortuitously set them aside unless certain circumstances
permit it
to do so. In the result, the review application ought to be
dismissed.
[95]
I have had regard to the issue of costs and the requirements of law
and fairness. This
dispute has a protracted history, which in my view
ought not to have gone full circle had the parties objectively
applied their
minds to the issues, with the primary consideration
being the public interest. In the end, upon a consideration of the
requirements
of law and fairness, and further given the long-standing
relationship between the parties, it is my view that a costs order is
not warranted in this case.
[96]
Accordingly, the following order is made;
Order
1.  The
application to review and set aside the determination issued by the
Second Respondent under the auspices of the
Essential Services
Committee dated 28 April 2016 is dismissed;
2.
There is no order as to costs.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:               C.
Orr with Z. Ngwenya
Instructed
by:

Cheadle
Thompson & Haysom Incorporated
For
the Third Respondent:
F.A Boda SC (Written heads of argument with
V September)
Instructed
by:

Cliffe
Dekker Hofmeyr Incorporated
[1]
Act 66 of 1995, as amended
[2]
Section 70D
:
Powers and functions of panel
(1)
The powers and functions of a panel appointed by the essential
services committee are to—
(a)
conduct investigations as to whether or not the whole or a part of
any service is an essential service;
(b)
determine whether or not to designate the whole or a part of that
service as an essential service;
(c)
determine disputes as to whether or not the whole or a part of any
service falls within the scope of a designated
essential service;
(d)
determine whether or not the whole or a part of any service is a
maintenance service;
(e)
ratify a collective agreement that provides for the maintenance of
minimum services in a service designated as
an essential service;
and
(f)
determine, in accordance with the provisions of this Act, the
minimum services required to be maintained
in the service that is
designated as an essential service.
(2)
…
[3]
Section 72:
Minimum
services
(1)
When making a determination in terms of section 71, a panel of the
essential services
committee may issue an order—
(a)
directing the parties to negotiate a minimum services agreement as
contemplated in this section within a period
specified in the order;
(b)
if an agreement is not negotiated within the specified period,
permitting either party to refer the matter to
conciliation at the
Commission or a bargaining council having jurisdiction.
(2)
If the parties fail to conclude a collective agreement providing for
the maintenance
of minimum services or if a collective agreement is
not ratified, a panel appointed by the essential services committee
may determine
the minimum services that are required to be
maintained in an essential service.
(3)
If a panel appointed by the essential services committee ratifies a
collective agreement
that provides for the maintenance of minimum
services in a service designated as an essential service or if it
determines such
a minimum service which is binding on the employer
and the employees involved in that service—
(a)
the agreed or determined minimum services are to be regarded as an
essential service in respect
of the employer and its employees; and
(b)
the provisions of section 74 do not apply.
(4)
A minimum service determination—
(a)
is valid until varied or revoked by the essential services
committee; and
(b)
may not be varied or revoked for a period of 12 months
after it has
been made.
[4]
Section 70:
Essential
services committee
The
Minister, after consulting NEDLAC, must establish an essential
services committee under the auspices of the Commission in

accordance with the provisions of this Act.
[5]
Section 70B.
[6]
Section 70D.
[7]
See:
Eskom
Holdings Ltd v National Union of Mineworkers and Others (Essential
Services Committee Intervening)
[2012] 3 BLLR 254
(SCA).
[8]
108
of 1996.
[9]
See
South
African Police Service v Police and Prisons Civil Rights Union and
Another
[2011]
9 BLLR 831
(CC);
2011 (9) BCLR 992
(CC);
2011 (6) SA 1
(CC); (2011)
32 ILJ 1603 (CC) at para 20;
Eskom
Holdings Ltd v National Union of Mineworkers and Others
2012 (2) SA 197
(SCA);
[2012] 1 All SA 278
(SCA);
[2012] 3 BLLR 254
(SCA); (2011) 32 ILJ 2904 (SCA) at para 4.
[10]
65.
Limitations on right to strike or recourse to lock-out
(1)
No person may take part in a
strike
or a
lock-out
or in any conduct in contemplation or furtherance of a
strike
or a
lock-out
if –
(a)
that person is bound by a
collective
agreement
that prohibits a
strike
or
lock-out
in respect of the
issue in dispute
.
(b)
that person is bound by an agreement that
requires the
issue in dispute
to be referred to arbitration;
(c)
the
issue in
dispute
is one that a party has the
right to refer to arbitration or to the Labour Court in terms of
this Act
or
any other employment law;
(d)
that person is engaged in -
(i)
an
essential
service
; or
(ii)
a maintenance service
[11]
Act No. 8 of 2018: Labour Relations Amendment Act, 2018 (No. 42061
Government Gazette, 27 November 2018
Amendment
of section 72 of Act 66 of 1995, as amended by section 13 of Act 6
of 2014
.
6.
Section 72 of the principal Act is hereby amended—
(a)
by the substitution for subsection (5) of the following subsection:
‘‘
(5)
Despite subsections (3) and (4), section 74 applies to a designated
essential service
in respect of which the essential services
committee has
ratified a minimum services agreement or has
made
a determination of minimum services if the majority of
employees
employed in the
essential services
voted in a ballot in
favour of this.’’; and
(b)
by the addition of the following subsection:
‘‘
(9)
For the purposes of this section, a ‘ratified minimum
service’
or ‘determined minimum service’ means
the minimum number of
employe
es in a designated
essential
service
who may not strike in order to ensure that the life,
personal safety or health of the whole or part of the
population
is not endangered
.’’
[12]
Strikes
and the Law.(Lexis Nexis) at p 99.
[13]
Daya Pillay. ‘
Essential
Services: Developing Tools for Minimum Service Agreements’
(2012) 33 ILJ 801 at
p
811
[14]
ILO
Principles Concerning the Right to Strike, Messrs Gernigon, Odero
and Guidoat p 32
[15]
ILO
Principles Concerning The Right to Strike at p 31.
[16]
(5
th
ed 2006) at para 606.
[17]
At para 8. See also at para 29, where it was held that;
‘
Bearing
the importance of the fundamental right to strike in mind, the
legislature would hardly have expected employees working
within a
designated essential service industry whose services were not
required in order to provide an acceptable minimum essential
service
to have no remedy should agreement not be reached with their
employer on a minimum services agreement. One of the functions
of
the ESC is to determine disputes and alleged disputes on whether or
not the whole or part of any service is an essential service
–
s 70(2)
(b)
– a function closely allied to that
prescribed in s 73(1)
(b)
viz to determine whether or not
an employer or employee is engaged in a service designated as an
essential service. And
while a ‘minimum service’ is not
defined in the LRA, it is evident that s 72 had in mind a minimum
service of a designated
essential service whereby the ambit of the
designated essential service is reduced as between employer and
employees to the minimum
service ─ resulting in those
employees who are not required to perform the minimum service
regaining the right to strike.’
[18]
‘
158.
Powers of Labour Court
(1)
The Labour Court may -
(g)
subject to section 145, review the performance or purported
performance
of any function provided for in
this Act
on any
grounds that are permissible in law;
[19]
[2011]
4 BLLR 330
(LC), where it was held that;
“
[13]
In my view, there is no merit in adopting the restrictive
interpretation of s 158 (1) (g) for which the applicant contends.

Section158 (1) (g) is patently not limited to what is known as a
legality review - the section empowers this court to review
the
performance of any function under the LRA ‘on such grounds as
are permissible in law’. This includes not only
a review of
the exercise of any public power under the LRA on the basis of the
principle of legality but also, in appropriate
circumstances, the
review of administrative action under the PAJA and possibly a common
law review. In other words, s 158(1)
(g) establishes what might be
termed a ‘jurisdictional footprint’ for the review of
the performance of functions
under the LRA – the basis for
review is dependent on the nature of the decision taken. Section 7
of the PAJA, read with
the definition of ‘court’ in s 1,
certainly contemplates this that court is empowered to entertain
proceedings for
judicial review.”
[20]
Act
no 3 of 2000.
[21]
(2017)
38 ILJ 1075 (LAC), where it was held that;
“
[49]
In respect of the first point, the cases illustrate that at times
there is a fine line between administrative
action under section 33,
public and employment relationship issues in the public sector.
[50]
The general distinguishing feature between the two is
that section 23 of the Constitution deals purely with
employment
relationships and related issues and does not serve to protect
persons outside that context, whereas section 33 of
PAJA,
principally, provides protection against unfair administrative
action.
[51]
What was established in
Gcaba
is
a general principle that employment relationship issues do not
amount to administrative action within the meaning of
PAJA (i.e. as
construed consistently with section 33 of the Constitution). The
clear implication being that there could be exceptions
to the
principle and that certain employment relationship issues (i.e.
actions) may amount to “administrative action”
within
the meaning of PAJA, properly construed. For example, there might be
instances where grievances by State or public sector
employees have
implications or consequences for other citizens.
[52]
Features that serve to distinguish the exception from
the general are,
inter alia,
the
source and nature of the action, whether the action involves, or is
closely related to the formulation of policy, or
to the initiation
of legislation and/or whether it has to do with the implementation
of legislation. In
De Villiers
the
Labour Court added the existence of alternative remedies as another
factor to be considered, due to the importance attached
to that
aspect in both the
Chirwa
and
the
Gcaba
decisions.”
[22]
Supra
n
19.
[23]
[2009] 1 BLLR 65
(LC) ; (2009) 30 ILJ 894 (LC) at para [31].
[24]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
2008
(2) SA (CC) at para [98].
[25]
(2)
The
reference to ―arbitration in subsection (2) must be
interpreted to include arbitration -
(a)
under the auspices of the
Commission;
(b)
under the auspices of an accredited
council
;
(c)
under the auspices of an accredited
agency;
(d)
in accordance with a private
dispute resolution procedure; or
(e)
if the
dispute
is about the interpretation or application of a
collective
agreement
[26]
Supra
n
13 at p 12.
[27]
At
para 9.6 (b) of the Determination.
[28]
At
para 9.7 of the Determination.
[29]
Supra
n 13 at p 807.
[30]
At
para
8.21