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May An Employer Unilaterally Change Shift Times?




by:
Sipelelo Lityi
Norton Rose Canada LLP - Montreal Office

 
June 13, 2012

Previously published on June 2012

Introduction
The labour court has recently ruled that a proposed change to workers' shift times is not a unilateral change to the terms of employment as such a change falls within the managerial prerogative of the employer.1 The court did not express a view on whether a proposed change to shift times that involves a change to the number of hours that an employee has been contracted to work, would lead to the same ruling.


Background facts
Apollo Tyres SA (Pty) Ltd (Apollo) manufactures tyres for motor vehicles in its Durban factory. The factory operated a 24-hour, 7-day week production schedule in the truck and radial tyre department. The shift times operated in the department infringed certain legislative provisions.2

To resolve this issue, Apollo and NUMSA entered into a collective agreement during April 2004. The parties agreed to implement a 12-hour/3-shift system in respect of the employees in the factory’s truck and radial tyre department. The collective agreement made provision for Apollo to discontinue or modify shift times in accordance with the operational needs of the business after consulting with the employees.

Subsequent to the collective agreement being entered into, the parties extended the shift times, as initially implemented in the truck and radial tyre department, to the rest of Apollo employees by means of an oral agreement.

Apollo was obliged to continually apply for ministerial determinations to operate these shift times. After the expiry of the last determination on 30 June 2011, Apollo commenced a consultation process with NUMSA with a view to amending the shift times set out in the 2004 collective agreement.

During the consultation process, Apollo's position was that the proposed changes would only be effected to the work practice of the business. NUMSA argued that such changes amounted to substantive changes to terms and conditions of employment. The consultation process ended in deadlock and Apollo gave notice that it intended to implement the proposed changes with effect from 1 February 2012.

NUMSA referred a dispute regarding the proposed changes to the relevant bargaining council, seeking to compel Apollo not to implement the proposed changes unilaterally.3 Apollo then approached the labour court on an urgent basis for a declaratory order to the effect that the proposed changes to the shift times did not constitute a unilateral change to the terms and conditions of employment.

The main question before the court was whether the proposed changes to the shift times constituted a unilateral change to terms and conditions of employment or whether the changes constituted a change to a work practice which fell within management’s prerogative.


Findings
The court held that the oral agreement entered into by the parties did not constitute a collective agreement as it did not meet the requirements of a collective agreement as defined in the LRA.4 The terms of the collective agreement could therefore only apply to the employees in the truck and radial tyre department and could not be extended to employees in other departments.

The court referred to two recent decisions,5 in which it was held that a change to shift times does not constitute a unilateral change to terms and conditions of employment, but merely a change to an employer’s work practice. The decisions confirm that in the absence of a contractual right to work previously agreed upon shift times, the regulation of shift times constitutes a work practice that falls within management’s prerogative.

Following the reasoning above, the court held that the proposed changes to shift times fell within management’s prerogative in respect of the employees who were not part of the collective agreement.

The employees that formed part of the collective agreement did not have a contractual right to specific shift times. The proposed changes to Apollo’s shift times, the court held, did not constitute a unilateral change to the terms and conditions of employment as Apollo had a contractual right after consulting the employees to discontinue or modify the shift times in accordance with its operational needs.


Conclusion
Careful consideration must first be given in determining whether any terms and conditions recorded in employment contracts or collective agreements give rise to a contractual right to specific shift times. In instances where no such right is created or entrenched, the right to regulate shift times remains the prerogative of the employer. However, an employer that intends to implement changes relating to the number of hours that employees have been contracted to work, would have to bargain with its employees and reach an agreement before the changes to the number of hours can be implemented.


Footnotes

 

  1. Apollo Tyres SA (Pty) Ltd v NUMSA & Others (D68/12) [2012] ZALCCT 6 LC.
  2. Basic Conditions of Employment Act, 75 of 1997; Occupational Health and Safety Act, 85 of 1993.
  3. See Labour Relations Act (LRA), Act 66 of 1995, section 64 (4) (a).
  4. See section 213.
  5. Johannesburg Metropolitan Bus Services (Pty) Ltd v SA Municipal Workers Union and Others (2011) 32 ILJ 1107; Ram Transport SA (Pty) Ltd v SA Transport and Allied Workers Union and Others (2011) 32 ILJ 1722.


 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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