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[2004] ZALAC 6
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Magnum Security (Pty) Limited v Professional Transport Workers Union and Others (JA24/02) [2004] ZALAC 6; [2004] 7 BLLR 693 (LAC) (27 May 2004)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
Case
No. JA24/02
MAGNUM
SECURITY (PTY) LIMITED
Appellant
(First
Respondent
a quo
)
and
THE
PROFESSIONAL TRANSPORT
WORKERS
UNION
First Respondent
First
Applicant
a quo
)
ELPHAS
MLONDOLOZI NKOSI &
108 OTHERS
Second
and Further Respondents
(Second &
Further Applicants
a quo)
JUDGMENT
DAVIS AJA:
INTRODUCTION.
[1] Appellant provides contract guarding services to its customers.
To this end, it has employed second and further respondents
(âthe
employee respondentsâ) as security officers. Between April 1996
and March 2000 the terms and conditions of employment
of these
respondents were regulated by a labour order which provided for the
grade of employment applicable to the employees, a
maximum of 72
hours for a week, 60 hours of which were ordinary hours of work and
12 hours were regarded as overtime.
[2] On 6 March 2000 Sectoral Determination 3, issued by the Minister
of Labour in terms of the
Basic Conditions of Employment Act 75 of
1997
, became effective. It provided that, for the twelve month period
commencing on that date, employers and security officers were
permitted
to agree to work a total of 65 hours per week, of which a
maximum of 10 could be overtime. The Sectoral Determination further
provided
that as from 6 March 2001, employers and security officers
were permitted to agree that the latter work a total of 60 hours per
week,
of which 10 would be considered to be overtime.
[3] In
the first year during which the Sectoral Determination applied, it
appears from the evidence that most of the employee respondents
worked a 60 hour week, 55 hours of which were classified as ordinary
hours and five of which were classified as overtime. Most of
these
respondents appeared to have worked 5 shifts per week of 12 hours
each.
[4] In
March 2001 appellant implemented a reduction in the normal working
hours for security officers, including second and further
respondents. Instead of reducing the working hours to 50 normal
working hours (being the maximum normal working hours allowed in
terms of the Sectoral Determination) it reduced the normal working
hours to 48 on the basis that the reduction of normal working
hours
to 50 per week would be impractical, viewed within the context of
appellantâs business.
[5] The
respondents brought an urgent application in the Labour Court for an
order that appellant restore the terms and conditions
of employment
that pertained prior to 20 March 2001 as well as compensation for the
difference between the amount second and further
respondents would
have earned between 20 March 2001 and the date of the order had they
worked 60 hours per week, alternatively 55
hours per week,
alternatively 50 hours per week during that period and the amount, in
fact, paid to the second and further respondents
during that period.
[6] Appellant
challenged the competency of the application on the basis that the
dispute was essentially one of interest and not one
of right.
Landman
J
found that the dispute was indeed a dispute of right, being a
dispute which stood to be determined in terms of the
Basic Conditions
of Employment Act. However
, he found that, on the papers, it was not
possible to determine whether respondents âhave separately or
otherwise entered into
an agreement with Magnum binding them to work
5 hours overtime per week, i.e. compulsory overtime. The employeesâ
contention that
there is such an obligation is specifically denied by
Magnum: âApplying the usual test for deciding disputes of fact in
an application
for final relief I must find against the applicantsâ.
Landman J
then
referred the dispute to oral evidence in order to determine questions
of whether second and further respondents âhave separately
or
otherwise entered into an agreement with Magnum prior to 6 March 2001
binding them to work 5 hours overtime per week, i.e. (a)
compulsory
overtime); and (b) on whether, after 6 March 2001, those employees
had concluded an agreement with Magnum to reduce their
working hours
to 48 hours per weekâ.
[7] After
hearing evidence from three witnesses who testified on behalf of
appellant,
Jammy AJ
found that there was in existence a â60
hourâ agreement which was applicable immediately prior to March
2001. He further added
that âthere is nothing in the Sectoral
Determination which renders that agreement ineffective when the ratio
of ordinary to overtime
hours is adjusted to comply with the
Determination whilst maintaining the actual working hours for which
that agreement provides.
The necessity to redefine that ratio is one
envisaged by clause 9 of the employment contract. The unilateral
reduction in actual
working hours effected by the First Respondent,
is notâ. For these reasons
Jammy AJ
ordered that appellant
roster the individual respondents on 5 x 12 hour shifts per week,
âunless otherwise agreed with individual
Applicants and for so long
as this is not precluded by law; the actual working week of 60 hours
thereby constituted is to be defined
as to the respective ordinary
and overtime components thereof, so as to comply with the prevailing
Sectoral Determination(s) for
the private security sector.
[8] The
appellant was ordered to compensate the second and further
respondents by paying to them the difference between the amount
they
would have earned between 20 March 2001 and the date of the order,
had they worked 60 hours per week, comprising 50 ordinary
and 10
overtime hours, and the amount in fact paid to these respondents
during that period.
[9] It is against this judgment and order that the
appellant has appealed to this Court.
CONDONATION
.
[10] The
application for leave to appeal from the judgment of
Jammy AJ
dated 11 April 2002 was unopposed and was granted on 21 June
2002. In accordance with
Rule 5(1)
of this Court it was then
incumbent upon the appellant to deliver its notice of appeal on or
before 12 July 2002 which it duly did.
In terms of
Rule 5(7)
, it
was thereafter incumbent upon appellant to deliver the record on or
before 21 September 2002. The record was only filed on 23
April
2003, being seven months out of time.
[11] Mr
Beckenstrater, the attorney acting on behalf of appellant, has
deposed to a lengthy affidavit explaining the reasons for this
lengthy of delay. Briefly stated, it appears that the Labour Court
file was mislaid by Sneller Verbatim Transcribers and,
notwithstanding
numerous attempts by appellantâs attorney to locate
the file, it was only found on 28 November 2002 in the Pretoria
offices of
Sneller Verbatim. It would appear then to have taken
Sneller Verbatim a little under four months to prepare the record.
Mr Freund,
who appeared on behalf of the appellant, sought
condonation. This Court decided to hear the merits of the matter
before deciding
definitively as to whether to condone the late filing
of the record. Given the comprehensive explanation provided by Mr
Beckenstrater
as well as the merits of the appeal, the late filing of
the record is condoned.
THE KEY ISSUE
.
[12] The
central pillar of respondentsâ case was contained in their
statement of case. The relevant portion of the statement of
case
reads thus:
â4. No written
agreement regulated the actual working conditions which the
Individual Applicants were obliged and entitled to work
each week.
The actual working hours of the Individual Applicants were regulated
by express oral, alternatively implied agreement.
5. Prior to the
unilateral reduction in working hours in March 2001, the terms of the
express, alternatively implied agreement regulating
actual working
hours were as follows:
5.1 The Individual Applicants were security
officers, who for the purposes of the sectoral determination, fell
into category B.
5.2 The Individual Applicants were employed at
sites where guarding services are provided on a 24 hour basis, in two
12 hour shifts
running from 06h00 to 18h00 and from 18h00 to 06h00.
5.3 The Individual Applicants were required to
work 60 hours per week. These were the agreed working hours of
Individual Applicants,
and the First Respondent operated (as far as
Individual Applicants were concerned) on the basis of the 60 hour
weekâ¦..
5.9 When the weekly maximum permissible ordinary
hours of work prescribed in the sectoral determination were reduced,
the number of
ordinary hours required to be worked each week would
reduce to the new maximum and the number of overtime hours required
to be worked
would increase correspondingly, provided that the total
ordinary and overtime hours would not exceed the maximum prescribed
in the
sectoral determinationâ.
[13] In
summary, respondentsâ case was that prior to March 2001, an
agreement existed between appellant and second and further
respondents
which provided that these respondents be required and be
entitled to work 60 hours per week. Pursuant to the Sectoral
Determination,
the ratio between ordinary hours worked and overtime
required were altered from 55: 5 to 50:10, the latter ratio being the
maximum
permissible under the sectoral determination with effect from
6 March 2001.
[14]
Jammy
AJ
found that an agreement did exist between appellant and second
and further respondents. It is this finding that lies at the heart
of his judgment and the order which followed consequentially thereon.
THE EVIDENCE.
[15] The
contracts of employment entered into between appellant and second and
further respondents contains two clauses which are
relevant to the
present dispute. Clause 9 provides: âOther conditions of service
related to rate of pay, work hours, leave entitlement
is governed and
regulated by gazette which is published by the relevant minister.
These conditions will be covered and explained
during induction and
will change from time to time in accordance with the government
gazette as and when published. Clause 10.5 provides
that âyour
employment is further conditional to: placing my services at the
disposal of the company in such a manner that the company
can achieve
its business objectivesâ.
[16] Save
for these two clauses, there was nothing contained in the contract
which dealt specifically with hours of work. Accordingly,
the
dispute turned on whether respondents had proved a sufficient basis
to show that there was an implied term of the contract, to
the effect
that they had a right (and a corresponding obligation) to be employed
for the period 60 hours per week.
[17] As
Mr Ngcukaitobi, who appeared on behalf of respondents correctly
submitted, the key question was whether the evidence justified
the
conclusion that there was an agreement between the parties which gave
the employee respondents the right to work a 60 hour week.
In
support of the contention that the evidence did so support
respondentsâ case, he referred to correspondence between the
parties
generated before litigation. In particular he referred to a
letter from Mr Vincent Monyamane, the Human Resources Manager of
appellant,
who had written to staff on 17 March 2001 as follows:
âAll staff are
reminded that the Private Security Industry hours of work are to be
reduced from 55 to 50 per week as from 6 March
2001.
The reduction is in accordance with security
Industry
Basic Conditions of Employment Act No. 75 of 1997
â.
To this letter a number of respondents replied on
the same day. They said: âAs Magnum security shop steward and
loyal employees
of your company we would like to propose a retention
of 60 hours per week as per sectoral determination of March 20â¦â.
[18] On
3 July 2001 Mr Monyamane wrote to first respondent thus: âWe have
previously indicated that even if we were to agree to
revert to the
60 hour week that we would be sitting with the problem of how to deal
with the employees employed to compensate the
reduction to 48 hoursâ.
[19] Mr
Ngcukaitobi also referred to the founding affidavit deposed to on
behalf of respondents by Mr Nkosi as well as the opposing
affidavit
of Mr Monyamane. In his founding affidavit Mr Nkosi stated: âFrom
this period, that is from October 2000 my working
hours were reduced
to 60 hours per week and I worked 5 x 12 hour shifts on week days
only. Although this reduction in my working
hours had the
consequence that my monthly wage was reduced, since I continued to be
paid at the minimum wage applicable to me in
terms of the sectoral
determination, I accepted the reduction in my working hours. From
this period my standard working hours of
60 hours per week, of which
55 were ordinary hours and 5 were overtime hours. These were my
agreed working hours from that period
onwards. He then went on to
state âImmediately prior to 6 March 2001, the agreed working hours
of all of the Individual Applicants
was 60 per week, 55 of which were
ordinary hours and 5 of which were overtimeâ.
[20] To
the first passage of this affidavit, Mr Monyamane replied âThis
allegation is admitted. I submit that the change in the
working hours
was done in accordance with the provisions of sectoral determination
as published in the Government Gazette on the
25
th
of
February 2000. The changes resulted in great cost to the first
respondent [the appellant] as it had to employ additional employees
and provide uniforms and other equipment to such employees.
[21] To the second allegation Mr Monyamane replied
âthis allegation is admittedâ.
Mr Ngcukaitobi also
referred to certain passages of the evidence given by Mr Monyamane,
who was asked âAnd we also know from the
evidence, and that is not
in dispute, that the actual working hours were in fact 60 hours,
comprising 55 ordinary hours and 5 overtime
hoursâ. To this Mr
Monyamane replied âthat is rightâ.
[22] Under
cross examination Mr Monyamane was asked by Mr Todd, on behalf of
respondents, to comment on the following: âThey had
agreed to work
60 hours a week, is that right?â Mr Monyamane replied âThey were
working 60 hours a week at the time, yes. âThe
following
proposition was also then put to Mr Monyamane under cross
examination: âYes well we know that these employees were employees
who were all rostered to work 5 x 12 hour shiftsâ, to which Mr
Monyamane admitted âthat is right, yesâ. Mr Todd then put the
following to Mr Monyamane
âAnd this and what
was the consistence and established, and agreed practices between the
company and this group of workersâ, to
which Mr Monyamane conceded
âthat is right, yesâ.
[23] On
the basis of this evidence Mr Ngcukaitobi submitted that appellant
had made significant concessions in corespondence, in the
opposing
affidavit of Mr Monyamane as well as in the testimony given by Mr
Monyamane before the Court
a quo
. Mr Ngcukaitobi
contended there was a sufficient basis to justify the conclusion that
the parties had intended to conclude a contractual
arrangement by
which second and further respondents would work 60 hours a week. He
further submitted that the fact that the Sectoral
Determination had
altered the ratio between ordinary hours to overtime hours from 55:5
to 50:10 did not change the right which employees
enjoyed to work 60
hours per week (and crucially therefore to be paid for that period of
work) together with the corresponding obligation
on the employer to
ensure that they were employed for that period.
[24] Mr
Freund, contended that respondents were not entitled to rely upon any
of these elements of the record. Thus, continued Mr
Freund, none of
the contents of the correspondence to which Mr Ngcukaitobi had
referred had ever been put to any of appellantâs
witnesses during
the course of the trial and therefore appellant had not been afforded
an opportunity during the trial to clarify
any possible ambiguities
inherent therein.
[25] Referring
to the answering affidavit of Mr Monyamane, Mr Freund submitted that,
like many of the statements which appeared in
the record, the
passages in the affidavit relied upon by respondents needed to be
read within the context of the whole record. There
was no factual
dispute that individual respondents had worked 55 ordinary hours and
5 hours overtime per week immediately prior to
6 March 2002. It was
also apparent that the individual respondents had complied with the
instruction (or at least the request) of
appellant without objection.
Viewed within this context, it was legitimate to classify the actual
hours worked as âagreed working
hoursâ. It did not follow,
however, that it was common cause that, prior to 6 March 2001,
appellant was obliged to permit respondents
to work 60 hours per week
and to pay them accordingly.
[26] Mr
Freund contended that similar ambiguities were inherent in the
evidence of Mr Monyamane upon which reliance has been placed
by
respondents. Although Mr Monyamane had conceded that âagreed
working hoursâ amounted to 60 hours per week, he had also insisted
that appellant had a discretion insofar as the number of working
hours were concerned. When asked by Mr Todd: âNow I assume you
are
not suggesting that in one week the company in its discretion could
remove 5 hours from the 60 the overtime components from the
60â?,
he replied âWell our contract of employment like we, we mentioned
just now, specifies that the security officers, the employees
place
their services at the disposal of the company in such a way that the
company can achieve its business objective.â Mr Todd
then asked
âYes well you are not suggesting, are you that there could be any
possibility that the company could achieve its business
objectives by
removing 5 hours off the fifth shift of each of these workers in that
periodâ? Mr Monyamane replied âDepending
on operational
requirements, if a client requires either additional hours or less
hours than they were working, if they were working
60 hours at the
time, required 11 hours and we required certain security officers to
work at that clientâs site, yes then we would
place them at that
site and the hours would consequently be reducedâ.
[27] Mr
Freund also referred to the evidence of Mr Monyamane where he was
asked the following: âSo you would accept then that the
workers
would have been entitled to expect that you could not change their
work hours unless the sectoral determination required
itâ? He
replied: âI think we could even if the sectoral determination did
not require it. You see we, we could change it to meet
with our
operational requirements and client demandsâ.
THE ALLEGED TERM.
[28] The
essence of this dispute turns on the alleged existence of a term of
an agreement. In this regard I think that clause 9 of
the contracts
of employment applicable to the second and further respondents is
significant. It has been quoted in par 15 above and
it is unnecessary
to quote it again. Its effect seems to be that, as to the hours of
work agreed to between the appellant and each
one of the second and
further respondents is that hours of work would be those provided for
in the sectoral determinations from time
to time. In the present
case, the evidence read holistically forms the basis of the enquiry
into the existence of the alleged term.
In this connection the
evidence of Messrs Botes, Bezuidenhout and Monyamane becomes
critical.
[29] Mr
Botes testified that the working hours in the security industry prior
to March 2000 was 60 hours ordinary working hours and
12 hours
overtime. He said that in practice category B security officers at
the time normally worked 12 hours per day over a five
day week. He
also said that the working of overtime was seldom in the industry at
that time unless it was inevitable.
[30] The
attorney for the respondents put it to Mr Botes that in a case such
as that of the individual respondents, where the agreement
between
the employer and the security officers is to work a 12 hours x 5
days a week which is 60 hours per week of which 55 is
ordinary
hours and five overtime, the employee would not be entitled to
refuse to work the last five hours on the basis that working
overtime
is voluntary would not work and Mr Botes agreed that that would not
work. It was then put to him that similarly the employees
in such a
case would be entitled to insist to the employer that he work that
overtime. Mr Botes then answered:
âIf there was an agreement to
work overtime, that five hours overtime per week, then an agreement
is an agreement.â
[31] Mr
Bezuidenhout testified that there was no fixed overtime of five
hours. He testified that there were no fixed hours of work
and that
these were determined by the requirements of the clientâs
contract. He said that in effect the client determined the
hours of
work. It was put to Mr Bezuidenhout under cross- examination that
the contents of the appellantâs newsletters called
âMagnum
Indabaâ dealing with the reduction of hours â portion of which
has been quoted above â seemed to suggest that the
appellant was
aware that what it was proposing to do was
âto take a whole
group of workers whose working hours were 60 hours a week and
reduce them to 48 hours a week.â
He was then asked:
âIs
that correctâ?
And he answered:
âJa, dit lyk so (Yes, it
seems so.â)
[32] The
attorney representing the respondents drew Mr Bezuidenhoutâs
attention to the second paragraph of Mr Monyamaneâs memorandum
of
February 2001 to the workers and, by implication suggested that the
contents thereof were an acknowledgement by the appellant
that
between March 2000 and 6 March 2001 the individual respondentsâ
hours of work per week were 55 ordinary hours and five overtime
to
make 60. The second paragraph in that memorandum reads thus:-
â
During the year 2000, which was the first year of
implementation, the hours of work were reduced to 55 hours per week
for all security
officers. This meant that security officers worked
55 hours and were paid overtime for the additional five hours
worked.â
After
this paragraph had been read to Mr Bezuidenhout, he was asked whether
he saw that and he answered in the affirmative.
[33] Later it was put to Mr Bezuidenhout under cross- examination:
âWhat I want to suggest to you is that it was clear to everybodyâs
mind that prior to March 2001 the agreed work hours of the
group of
workers that we are talking about was 60 per week.â
Mr
Bezuidenhout answered:
âJa, it is 55 plus 5 working, ja.â
It
was then said to him
: âAnd those were the agreed working hours
of this group of workers.â
He answered
: âThat is what they
were rostered for, yes.â
[34] The
attorney representing the respondents then read a portion of a
letter from the appellant to the union that was written
after the
litigation in this matter had begun. The portion of the letter read
thus:
â
We have previously indicated that even if we were to agree to
revert to 60 hour week that we will be sitting with the problem of
hour
to deal with the employees employed to compensate for the
reduction, to 48 hours.â
Mr
Bezuidenhout was then asked whether he saw that and he said yes. The
attorney said to him:
âOnce
again the point I am simply making is that as far as the company was
concerned it was very clear that prior to March
the
agreed working hours
was 60 and yes,
that was broken down as 55 and five, but the number of hours that
people worked was 60. You accept that proposition. I am sure.â
(Underlining supplied.)
He was then
asked whether the answer was
âYesâ
and he said:
âYesâ
.
[35] Counsel for the appellant, while leading Mr Monyamane in chief,
made this statement:
âAnd we also know from the evidence, and
that is not in dispute, that the actual working hours were in fact
60 hours, comprising
55 ordinary hours and five overtime.â
Mr
Monyamane responded to this statement by saying:
âThat is
right.â
Mr Monyamane was then asked how the appellant had
arrived at the 55 plus 5 configuration
âapplying these two
conditions.â
Mr Monyamane replied:
âAgain, from
operational requirements, we wanted these guys to work 12 hours, so
we fixed them at 60 hour comprising 55 plus five
because
operationally that is how the guys work; they work 12 hours a day.â
Mr
Monyamane also said that whenever clients required overtime or
specific hours, the workers worked those hours.
[36] Counsel for the appellant then put the following to Mr Monyamane
during his evidence in chief:
âI want to take the reverse of
how I understand the applicantsâ case. As I understand their case
is that there was an agreed
60 hours for the period March 2000 to
March 2001 consisting of the 55 plus configuration which we have
admitted.â
Mr Monyamane responded: â
That is right, yes.â
Under cross- examination the attorney for the appellant put the
following to Mr Monyamane:
âWell there was an agreement between
you and the company and those workers that they would work 60
hours.â
Mr Monyamane replied:
âI would say an implied
agreement.â
A little later the following exchange between the
attorney for the respondent and Mr Monyamane occurred:
âMr
Todd: The applicable workers here were obliged to turn up for work,
report for their shift five times for 5x 12 hour shifts
each
week, isnât so?
Mr
Monyamane: If they were rostered, yes, they were obliged to,
to turn up.
Mr Todd: Yes well we know that these employees were employees who
were all rostered to work 5x12hour shifts.
Mr
Monyamane: That is right, yes.
Mr Todd:
And that was a consistent and established, agreed practice as
between the company and this group of workers.
Mr
Monyamane: That is right, yes.â
[37] With
regard to the overtime component of the 60 hours of work per week, it
was suggested that this was not a situation where
the appellant
could remove the five hours in a particular week. Although Mr
Monyamane initially suggested that the appellant could
do so, he
later made it clear that that overtime was not voluntary. The
exchange between him and the respondentâs attorney in
this regard
ran thus:
Mr
Todd: We are talking about a situation where these workers are
obliged to report to clients that require guarding hours a
day
in 5x 12 hour shifts, isnât that so?
Mr
Monyamane: Yes, that is right, yes.
Mr Todd: Well, will you not agree with me that the question of the
five hours overtime was not a voluntary question. It was not a
question whether in any one week you could decide that a worker was
going to leave a shift five hours before the end of it.
Mr
Monyamane: Right, yes I agree with that.
Mr Todd:
You agree with me?
Mr
Monyamane: Yes.â
[38] Because
there had been a suggestion that the appellant had a discretion to
change the respondentsâ hours of work, the respondentsâ
attorney cross- examined Mr Monyamane on the scope of such a
discretion. In this regard he drew Mr Monyamaneâs attention to the
fact that the second and further respondents were not security
officers who were rendering services at banks or shopping centres
and who, therefore, worked hours when those businesses were open.
He said to Mr Monyamane:
âIn
this instance we are not talking about those kinds of guards, we
are talking about guards who were working on industrial
contracts
where their working hours were 5x 12 hour shifts a week. Isnât
that correct?â
Mr Monyamane then answered,
âYes.â
[39] However, Mr Monyamane later said that the appellant could reduce
those hours if its operational requirements required that to
be done.
He said that it could do so without reference to the employees
concerned and relied on clause 10.5 of the written contract
between
itself and each of the second and further respondents to entitle it
to change the hours without reference to the employees.
He even said
consultation with the employees would not be required. Mr Monyamane
said that in that clause each worker had agreed
to place his services
at the appellantâs disposal in such a manner that the appellant
could achieve its objectives. He also said
that, when the sectoral
determination changed, the appellantâs business requirements also
changed and thus entitled the appellants
to effect changes to the
employees hours of work if the operational requirements required
that. The defence raised by Mr Monyamane
in regard to clause 19.5 of
the contracts of employment would be whether that clause entitled the
appellant to change the hours of
work without the consent of the
employees or put differently whether it takes away the employeesâ
right not to have their terms
and conditions of employment changed by
the appellant without their consent. There is no doubt that it does
not and, really, nothing
more needs to be said about that.
[40] The
respondentsâ attorney once again said to Mr Monyamane:
â
I take that we are in agreement on the fact that all of the
workers in this application, but for what I may refer to as any
exceptional
cases that may have been identified and we will deal with
those separately, but that in so far as the bulk of workers who were
working
60 hour week is concerned, do you accept that those were that
agreed working hours of those workers?â
Mr Monyamane answered:
âThat is right.â
The Court then asked Mr Monyamane whether he had answered
affirmatively and he said:
Correct MâLord.â
[41] Later the respondentâs attorney said to Mr Monyamane:
âBut
at that point you were working over time anyway, you were working
five hours overtime as a matter of course by agreement
with these
workers.
âMr Monyamane responded:
âThat is right, yes.â
[42] Mr
Monyamane conceded that there was nothing in the sectoral
determination which required the appellant to reduce the hours
of
work to 48 per week.
Evaluation
[43] When
these critical pieces of evidence are read there can simply be no
doubt that the appellant and the second and further respondents
had
agreed that the latter work 60 hours per week which were made up of
55 ordinary hours and five hours overtime. It is common
cause that
they worked five days per week from 06h00 to 18h00 each day which
means 12 hours per day. The agreement between the
parties was for
five hours overtime per week. This was at a time when the
applicable sectoral determination fixed the maximum
overtime per
week at 10 hours. It is also clear from the above that the overtime
component of the 60 hours was also not voluntary
overtime and that
neither the security officer could simply refuse to work that five
hours in any week for no reason other than
that he did not like it
nor could the appellant itself simply take that overtime component
away. It was said in evidence that the
hours of work were dictated
by the client. Assuming that this evidence was true â and I am not
deciding that it necessarily is
â the position must be that the
second and further respondentsâ hours of work were 60 per week
including an overtime component
of five hours because it was common
cause that the second and further respondents worked in industrial
plants where the clients
required their premises to be guarded 24
hours a day.
[44] There
was an attempt by the appellant to put up a version to the effect
that there was no agreement between the appellant and
the second and
further respondents fixing any hours of work including overtime but
that the agreement between the parties was that
the second and
further respondents worked only during those hours when the
appellant required their services and were only paid
for hours
actually worked. It was said that this meant that, if the appellant
did not require a particular security officer on
a particular day or
during a particular week or even a month, the security officer would
simply stay at home and would not be paid.
To justify this it was
said that in the security industry security companies lose contracts
frequently and that that is why the
appellant employed its security
officers on that basis.
[45] I
reject this version. Both Mr Botes and Mr Monyamane testified that
the actual hours of work for the second and further respondents
were
the hours of work that the Sectoral Determination provided for as
maximum hours of work. They furthermore testified repeatedly
that
these hours were agreed between the appellant and the second and
further respondents. On behalf of the appellants it was
suggested
that there may have been occasions when some employees may have
worked for less than 60 hours and were paid only for the
hours they
had actually worked and not for 60 hours and they had not
complained. It was contended on this basis that the appellant
and
such employees had no agreement for a 60 hour week otherwise such
employees would have complained. There are two answers to
this
contention. The one is that the appellantâs own witnesses gave
clear and unequivocal evidence that the second and further
respondents worked agreed hours totaling 60 per week. The second is
that, based on this evidence â which comes from the appellantâs
own witnesses â such employees as may have worked less than 60
hours in a particular week would have been entitled to claim wages
for the balance of the hours if they had tendered their services for
the 60 hours and the fact that the appellant may have got
away with
a violation of such employeesâ contractual rights does not turn
its unlawful conduct to lawful conduct.
[46] Appellant
admitted that it reduced the hours of work of the second and further
respondents from 60 to 48. Of course, it was
entitled to reduce the
ordinary hours of work from 55 to 50 because the Sectoral
Determination so required. Accordingly, to the
extent that appellant
reduced the second and further respondentsâ ordinary hours by five
hours (from 55 to 50), it was not only
entitled to do so but was
obliged by the Sectoral Determination to do so. I accept this.
But
appellant took off two further hours of work from the second and
further respondentsâ ordinary hours of work when it reduced
them
to 48 per week. In this regard, it is common cause that second
and further respondents did not agree to this reduction.
There may
have been consultation between the appellant and the representatives
of the respondents about the further reduction to
48 hours. But
that is beside the point. What in law is required for an employer to
effect a change to the terms and conditions
of employment of an
employee is the latterâs agreement to the change. The operational
requirements of the appellant can provide
no valid justification in
law for appellant to effect a reduction of second and further
respondentsâ hours of work without their
agreement. The
appellantâs conduct in changing the terms and conditions of
employment of second and further respondents without
their consent
constituted a repudiation of their contracts of employment and was
unlawful. Appellantâs remedy, if it wanted to
reduce the second
and further respondentâs hours of work, â in order to suit its
operations, â lay in negotiating a change
to the actual hours of
work of the second and further respondents and to obtaining their
agreement for a change to be effected.
If no agreement was reached,
appellant would have a right to dismiss second and further
respondents for operational requirements
and employ employees who
would be prepared to accept employment on terms and conditions that
would satisfy the operational requirements
of the appellant.
[47] On the
basis of this evidence, the further reduction from 50 hours to 48
hours was unlawful. That repudiation by the appellant
gave second
and further respondents an election. If they rejected it, they were
entitled to hold appellant to their contracts of
employment which
included 50 ordinary hours of work per week after the Sectoral
Determination came into operation. In this matter
respondents, as
they were entitled, rejected the repudiation and brought an
application to hold the appellant to the contracts
of employment as
read with the Sectoral Determination.
[48] There
was a suggestion made on behalf of respondents that, despite the
provision of the Sectoral Determination reducing their
ordinary
hours from 55 to 50, they were still entitled to keep their 60 hour
week and that the appellant was obliged to continue
with the 60 hour
week but this time with 50 (instead of 55) ordinary hours and 10
(instead of 5) overtime hours per week.
[49] It
appears that the basis for this argument was that, when the sectoral
determination came into operation, the second and further
respondents each had an agreement with the appellant to work 60
hours per week and that all that the Sectoral Determination did
was
to in effect reduce the number of ordinary hours and in effect
increase the overtime hours. The suggestion seems to have been
that,
the five hours from the 51
st
hour to the 55
th
hour which previously were ordinary hours simply became part of
overtime hours and that, instead of five hours overtime, the
respondents
now had 10 hours overtime.
[50] It is
possible to construe the effect of the Sectoral Determination as
being to reduce the ordinary hours of work from 55 to
50 but leave
intact the agreement between the parties regarding an overtime of
five hours per week. That construction would mean
that the only
thing that the Sectoral Determination changed was that the ordinary
hours had been reduced from 55 to 50 per week,
â which meant that
the workers would not get paid for 5 ordinary hours which would
reduce their pay. They would thus not work
the additional five hours
which period of work was a benefit to them. In terms of this
construction, the parties were left to negotiate
about these five
hours as whether they be included as overtime, whether the employer
would make other arrangements or negotiate
with the entire group of
employees to see whether they would agree to additional or new terms
and conditions of employment or new
hours of work.
[51] Both
constructions have some merit. On balance, I am of the view that the
former construction is to be preferred. The agreement
between the
parties is that second and further respondents must tender their
services for the period 06h00 to 18h00 for five days
per week of
which the period from 13h00 to 18h00 on the fifth day was overtime.
The Sectoral Determination which reduced the ordinary
hours of work
did not have the effect of removing the employeesâ obligation to
tender their services for five days a week from
06h00 to 18h00. That
contractual obligation remained. The effect of the Sectoral
Determination was to alter the five hours from
08h00 to 13h00 on
the last of the five days per week from being ordinary hours â if
they were worked â to overtime.
[52] Turning to the order of the Court
a quo,
the
provision that the appellant be compelled to roster second and
further respondents for 5 shifts of 12 hours per week is, in
my
view, an inappropriate order, viewed within the context of
appellantâs business operations. An appropriate order would be to
declare second and further respondents hours of work and order
appellant to pay them such amount of their wages as were not so
paid
but would have been paid had they been allowed to work a 60 hour
week of which 50 hours would have been ordinary time and
10 hours
overtime. It will accordingly be necessary to alter Jammy AJâs
order despite the fact that the appeal falls to be dismissed.
[53] As neither party insisted that there should be an adverse award
of costs against the unsuccessful litigant, given the ongoing
relationship between the parties, it would not be appropriate to make
an award of costs.
[54] For these reasons the appeal is dismissed,
but the order of
Jammy AJ
is set aside and replaced with the
following order:
1. The working week of the second and further
applicants is declared to be 60 hours comprising 50 ordinary and
10 overtime
hours.
2.. First respondent is ordered to compensate
second and further
applicants by paying them the difference between the
amount they would have earned between 20 March 2001 and 11 April
2002
had they worked 60 hours per week, comprising 50 ordinary
and 10 overtime hours, and the amount in fact paid to the
individual
applicants during that period.
Should disputes or a dispute between the
parties arise as to the amount that the appellant should pay to any
one or more of the
employee applicants pursuant to the order in 2
above, leave is hereby granted to anyone of the parties to approach
the Labour Court
for the purposes of the determination of such
dispute.
4. There is no order as to costs.
___________
DAVIS AJA
I agree
_____________
ZONDO JP
I agree
_____________
JAFTA AJA
APPEARANCE
For the appellant : Advocate A. Freund
Instructed
by : Moodie & Robertson
For the respondents : Mr T. Ngcukaitobi
Instructed
by : Bowman Gilfillan
Date of judgment : 27 May 2004