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Changing Working Hours - unilateral changes to terms and conditions of employment vs changes to work practices
Review of case law by Gary Watkins
Due to changing operational requirements businesses are often required to vary shift times in their workplaces. Whilst individual circumstances may vary, an alteration in shift times could be due to:-
- Increased work load;
- Changing product delivery times;
- Service delivery requirements;
- Better utilisation of employees during trading hours;
- Improved alignment of business processes across production areas, and so forth.
The obvious question which arises when endeavouring to implement these new working hours is whether this requires the consent of individual employees or negotiation with trade unions prior to implementing the new shift regime.
Readers are all aware that an employer is not entitled to unilaterally change a term and condition of employment. Such an act would constitute an unfair labour practice. A term and condition of employment may only be amended through negotiation with individual employees or with a representative trade union. Failing consensus by the parties, an employer would then be required to follow the torturous s189 route to try and implement the contemplated changes to working hours. The process of implementing a change to terms and conditions of employment is fraught with difficulty ranging from failing to reach agreement on the proposed changes to potential referrals of disputes to the CCMA, strike action, interdicts and of course, the alienation of employees.
In Magnum Security vs PTWU (Labour Appeal Court) 2004 the employer reduced the actual working hours of employees from 55 hours to 48 hours per week, the Labour Appeal Court noted that what in law is required for an employer to effect a change to the terms and conditions of employment of an employee is the latter's agreement to the change. The operational requirements of the employer can provide no valid justification in law for the employer to effect a reduction of employees' hours of work without their agreement. The employer's conduct in changing the terms and conditions of employment of employees without their consent constituted a repudiation of their contracts of employment and was unlawful. The employer's remedy, if it wanted to reduce employees' hours of work (i.e. a terms and condition of employment), in order to suit its operations, lay in negotiating a change to the actual hours of work and to obtaining their agreement for a change to be effected. If no agreement was reached, the employer would have a right to consult with the relevant parties in terms of s189 and thereafter dismiss employees for operational requirements and employ those employees who would be prepared to accept employment on terms and conditions that would satisfy the operational requirements of the employer.
The reduction of working hours addressed in the Magnum Security case, which in that instance constituted a unilateral change to the terms and conditions of employment of employees, can be distinguished from a change to "work practices".
In Ram Transport v SATAWU (29 January 2011) J106/11 (Labour Court) Van Niekerk J noted that:-
This distinction has its roots in the principle that employees do not have a vested right to preserve their conditions of employment completely unchanged from the moment they are employed. In A Mauchle (Pty) Ltd t/a Precsion Tools v NUMSA [1995] 4 BLLR 11 (LAC) the court distinguished between 'terms of employment' on the one hand and 'work practices' on the other, the latter being subject to the employer's prerogative and its introduction not constituting a unilateral change.
In this matter, Ram Transport sought to implement new shift times. Prior to the change, the employees worked from 10h00 to 19h00. To deal with an increase in the volume of work, the shift time was changed to start at 9h00, ending at 18h00. In other words, the affected employees were to work the same number of hours, the only difference being that the shift commenced one hour earlier and finished an hour earlier.
The Judge cited earlier decisions of the Labour Court and noted that
"that the principles recently referred to by Steenkamp J in Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU & others (unreported, case J 2276/10, 10 December 2010), are relevant. In that case, the court reviewed the authorities relevant to changes to work practices on the one hand and terms and conditions of employment on the other, and how to discern the difference between the two. In SA Police Union v National Commissioner of the SA Police Service (2005) 26 ILJ 2403 (LC), Murphy AJ (as he then was) stated:
In short, it was not a term of the contract of employment that employees working 12 hour shifts would always be entitled to do so. Without express, implied or tacit contractual rights to such effect, the employees do not have a vested right to preserve their working times unchanged for all time. The alteration of shifts does not result in the employees being required to perform a different job thereby entitling them to claim a material breach or alteration in the supposition of the contract. The change in timing does not amount to a change in the nature of the job. The shift system was accordingly a work practice not a term of employment (at 2427 H-J).
In conclusion, the Judge then remarked that:-
"On this basis, in the present instance, there is no term of any collective agreement or contract of employment that accords the third to further respondents a vested right to specific shift times. Their rights have not been affected by the applicant's conduct, and the applicant was entitled as a matter of law to introduce what amounted to a new work practice. There was therefore no unilateral change to terms and conditions of employment. For this reason, the strike called by the union is unprotected. This is not an uncontested position - Grogan has suggested that while it may e correct that a change in shift times constitutes a work practice rather than a change to terms of employment, there is nothing in the Act that precludes employees from striking in respect of a change in a work practice (see Labour Law Sibergramme 1/2011 at p 6). It is not necessary for me to make any finding on this point since, in any event, the terms of the contracts of employment of the third to further respondents acknowledge the necessity for flexible working hours, and record their express agreement to the requirement that working hours should be 'reasonably flexible'. It seems to me that an adjustment in the starting time of a shift by an hour is not by any stretch of the imagination unreasonable, particularly in the absence of any particular complaints by the union about any inconvenience or other prejudice that its members might suffer consequent on the change. I fully appreciate that a copy of the contract of employment was introduced in the replying affidavit, but given the nature of the proceedings and in the absence to any challenge to the terms of the contract, the court is entitled to have regard to it. In short - the change in shift times is contemplated and permitted by the contract of employment. In the absence of any unilateral change to a term and condition of employment, the strike called by the union is unprotected."
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