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[2013] ZALCJHB 104
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SAMWU v City of Tshwane and Another (J 877/13) [2013] ZALCJHB 104; (2014) 35 ILJ 241 (LC) (30 May 2013)
11
THE REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to Other
Judges
Case
no: J 877/13
In the matter between:
SAMWU
............................................................................................................
Applicant
And
CITY OF TSHWANE
...........................................................................
First
Respondent
MUNICIPAL MANAGER: CITY OF TSHWANE
............................
Second
Respondent
Date heard: 07 May 2013
Date delivered: 30 May 2013
Summary:
C
hanges
in the shift system. Consequences of unilateral changes in shifts
system. Provisions of collective agreement incorporated
into
individual employment contract. Implication of changing shift system
entrenched in the contract of employment. Does change
in the shift
system change the work performed by employees.
JUDGMENT
Molahlehi J
Introduction
The applicant seeks a declarator on an urgent basis to the effect
that, the provisions of section 64 (4) and section 64 (5) of
the
Labour Relations Act of 1985 (the LRA) are applicable to the Tshwane
Metro Police Department (TMPD). The applicant further
seeks an order
directing the respondents to restore the terms and conditions of
employment of the employees of TMPD that applied
prior to the
alleged unilateral changes to the shift system effected by the
respondent. The applicant seeks the restoration of
the terms and
conditions for a period of 30 days from the date of the referral of
the dispute to the South African Local Bargaining
Council (SALGBC)
or pending conciliation of the dispute between the parties.
In the alternative the applicant seeks an order interdicting and
restraining the respondent from implementing the new shift system
pending the resolution of the dispute between the parties through
compulsory arbitration.
The background facts
.
It is common cause that during 2006 the parties concluded a
collective bargaining agreement at the Local Labour Forum (LLF).
In
terms of the collective agreement provision was made for three
different types of shifts at the respondent’s workplace.
The
collective agreement further made provision for its extension at the
end 30 June 2011. The agreement was at the end of its
life span
extended to 30 April 2013 and this was the outcome of the
negotiations between the parties.
The negotiations regarding the changes to the shift system failed
and as a result the Mayoral Committee of the first respondent
resolved that a new shift system should be introduced. The new shift
system, which was supposed to have been implemented on 1
February
2013, was put on hold until April 2013.
During March 2013, the respondent issued letters to members of the
TMPD indicating that the new shift system would be implemented
as
from 1 May 2013. Thereafter, the applicant lodged an internal
grievance which went through the various stages and the last
stage
took place on 18 April 2013. The dispute remained unresolved.
The case of the applicant is also based on the referral of the
dispute concerning the unilateral change in the shift system to
the
bargaining council by one of the employees affected by the changes
in the shift system. Although, the applicant contends
that it
assisted the employee in referring the matter to the bargaining
council, it is not cited as a party neither is the first
respondent.
The referral was made on 19 April 2013.
The respondents contend that there is no unilateral change to the
shift system because the previous system that governed the
shift
system came to an end when the 2006 collective agreement lapsed in
April 2013. In other words the contention of the respondents
is that
there could be no changes to the provisions of a collective
agreement that has lapsed.
The respondent argued that, in the alternative, should it be found
that there was a change in the terms of the collective agreement,
then such did not have the fundamental impact to the nature of the
work performed by the affected members. In this respect the
respondent relied on a number of cases dealing mainly with changes
to the work arrangement or work practices by an employer.
In A
Mauchle (Pty) Ltd t/a Precision Tools v NUMSA and Others
1
,
the Labour Appeal Court in dealing with this issue held that:
‘
A
description of the work to be performed as that of operator should
not be construed inflexibly provided that the fundamental nature
of
the work to be performed is not altered. Employees do not have a
vested right to preserve the working obligations completely
unchanged
as from the moment when the first begin work. It is only if the
changes are so dramatic that the employee undertakes
an entirely
different job that there is a right to refuse to do the job in the
required manner.’
In
Metropolitan Bus Services v SAMWU and Others
2
,
the parties concluded a collective agreement in terms of which the
shifts where not to exceed 13 ½ hours and based on
seniority,
employees were entitled to pick a shift..
During December 2010, the employer introduced the scheduling of the
shifts to change the routes and the times when shifts were
to be
worked. In relying on a number of authorities the Court found that
SAMWU had not been able to point to any term contained
in a
collective agreement or in the bus drivers’ contracts of
employment that accorded them a vested right to a specific
shift
schedule. The court found that they had vested rights with regard to
maximum working hours and the right to pick shifts
according to
seniority. The court further held that:
‘
The
changes implemented by Metrobus comprised no more than a change in
work practice. It does not amount to a unilateral change
in the bus
drivers’ terms and conditions of employment. Therefore, the
trade unions representing the drivers do not have
the right to strike
over a unilateral change to the terms and conditions of employment in
terms of section 64 (4) of the LRA.’
The above case is distinguishable from the present in that whilst
provision was made for the maximum working hours, no provision
was
made for a shift system as was the case prior to the lapse of the
collective agreement in the present instance.
The Court in
SA Police Union and Another v National Commissioner
of SA Police Service and Another,
3
in dealing with a situation where the unions had challenged what it
referred to as a unilateral change to the terms and conditions
of
employment, the Court held that:
‘
In
short, it was not a term of the contract of employment that employees
working 12 hours shift would always be entitled to do so.
Without
express, 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 employee
been required to perform a different job
thereby enticing 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. This shift system was accordingly merely a work
practice and not a term of employment.’
An issue similar to the present was dealt with in
Apollo Tyres
South Africa (Pty) Ltd v NUMSA
4
,.
However, the difference between this matter and that case, is that
although the agreement made provision for the shift system,
it also
made provision for the employer to change the system on consultation
with the union. In dealing with the broad principle
governing the
changes in the shift patterns, the Court held that :
‘
28.
It is clear that unless specifically entrenched contractually, the
right to regulate shift patterns is the prerogative of the
employer.’
In
Ram Transport (SA) (Pty) Ltd v SA Transport and Allied Workers
Union and Others
5
,
the Court held that:
‘
changes
to an existing shift system does not on its own amount to a
unilateral change to the employees’ terms and conditions
of
employment but merely change to employer’s work practice.’
In my view the general principle from the above authorities is that
an employer has a prerogative to change the shift system
unless the
shift system is entrenched in the collective agreement or the
contract of employment. The prerogative is however limited
to
changes, that do not materially affect the nature of the work
performed by the employees.In the present instance it is undisputed
that the expired collective agreement made provision for a shift
system.
In theory the respondent is correct that it cannot be accused of a
unilateral change to the terms and condition of the agreement
that
has lapsed, however in practice it would seem to me that the answer
is not as simple as that.
It is trite that the terms of a collective agreement are not only
binding on the individual employees but as a matter of law
are
incorporated into the employees’ contract of employment.
6
It is therefore my view that even though the 2006 collective
agreement lapsed, its provisions having been incorporated into the
employment contracts of the individual members of the applicant
continued beyond the life span of the collective agreement. The
shift system remained as was before the lapse of the collective
agreement because its provisions became part of the individual
employees’ employment contracts. In other words those terms
and conditions set out in the collective agreement remained
in force
even after the lapse of the collective agreement and would remain as
such until another collective agreement was concluded
changing those
provisions that had been incorporated into individuals’
contracts.
The issue that then needs to be determined is whether the shift
system as set out in the contracts of employment created a vested
right that preserved the shift system as part of the working
conditions of the members. The other related question is whether
the
changes in the shift system introduced at the beginning of May 2013
are so fundamental that it can be said that the job function
of the
members has changed.
The issue to deal with before answering the above questions is
whether the applicant has satisfied the requirements of an urgent
interdict. The respondent argued in this regard that should the
Court find that the matter was urgent then it should be allowed
to
present evidence detailing the explanation of the new system. In
dealing with this submission the Court directed that the
parties
should file their respective affidavit concerning the working of the
system and its implications, which would be considered
if it was
found that the matter was urgent. It has not become necessary to
consider the affidavits submitted because of the conclusion
reached
at the end of this judgment.
The requirements for an interim relief are: (a) a clear right or a
prema facie
right, that may be open to some doubt; (b)
well-grounded apprehension of irreparable harm; (c) the balance of
convenience favours
the granting of the relief; and (d) absence of
other satisfactory remedy.
In my view the present matter turns on whether the applicant has
other appropriate remedies that could address its dispute. It
follows from the above analysis that the shift system having been
incorporated into the employment contracts of the individual
members, the respondent in changing the shift system could be said
to be in breach of those contracts. Whether the breach of
the
contracts is material, to be said to have materially the nature of
the work performed by the members is not an issue to be
determined
by this court at this stage. The issue of materiality in this regard
goes to the question of whether the changes introduced
by the
respondents did fundamentally change the nature of the work
performed by the affected individuals. It may well be that
this
issue is dealt with in the affidavit submitted but as indicated
above the issue is not dealt with for the simple reason
that the
requirement of urgency have not been satisfied. The affidavit may
probably play a role if the applicant was intent on
pursuing the
matter.
The remedy available to the applicant if it believes that there is a
breach which is material is to institute proceedings in
this court
in terms of section 77 of the Basic Conditions of Employment Act
(the BCEA) or approach the High Court. In this respect
the applicant
on behalf of its members has an election to make, either to accept
the repudiation or hold the respondent to the
contract. If the
applicant holds the respondent to the contract then its remedy may
lie in referring the matter to compulsory
arbitration as provided
for in section 74 of the LRA. The provisions of section 74 can of
course only be evoked subsequent to
compliance with the provision of
section 64(4) of the LRA.
It follows from the above that the applicant, acting on behalf of
its members could evoke the provisions of section 64 (4) of
the LRA.
Section 4 (4) of the Labour Relations Act reads as follows:
‘
Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council
or the Commission in terms of subsection (1)(a) may, in the referral,
and for the period referred to in subsection (1)(a)-
require the employer not to
implement unilaterally the change to terms and conditions of
employment; or if the employer has already
implemented the change
unilaterally, require the employer to restore the terms and
conditions of employment that applied before
the change.’
The respondent contends that the provisions of 74 of the LRA
7
do not apply to dispute concerning parties involved in essential
services. In this respect the respondent relies on the decision
of
the Labour Appeal Court in
PSA obo Members v National Prosecuting
Authority and Another
8
where the Court held that:
‘
In
the normal course of mutual interest disputes such as this one was
alleged to be, upon the failure of conciliation, industrial
action in
the form of a strike or lockout would have ensued. However no strike
action was initiated as the employees of the NPA
involved in this
matter are precluded from engaging in strike action as they have been
designated in terms of section 71 of the
LRA to be engaged in an
essential service. Compulsory arbitration in terms of section 74
is the option available to such employees instead of strike action.
It is for this reason that this dispute went that route.’
(footnotes not included
I do not agree with the contention that section 64 (4) does not
apply to employees employed in essential services. The employees
employed in a sector declared essential have all the rights that all
other employees enjoy in terms of the LRA except for those
rights
which are expressly excluded by the legislation. In the context of
this case before resorting to the provisions of section
74, the
applicant would have to satisfy the requirements of section 64 (4)
of the LRA.
There is nothing in section 64 (4) of the LRA, that denies the right
of the essential services employees to process the complaints
about
alleged unilateral changes to the terms and conditions through the
processes set out in section 64 (4) of the LRA. Of course
if the
dispute remains unresolved, the essential services employees unlike
employees in other sectors are prohibited from embarking
on a
strike. The option available to employees in the essential services
sector would be to refer the matter to arbitration as
indicated
earlier.
The other remedy available to the applicant is to approach this
Court in terms of section 77 of the basic Conditions of employment
Act to have the Court declare the unilateral change in the terms and
conditions of employment to be a material breach, by showing
that
the change materially and fundamentally changed the work performed
by its members.
Conclusion
I find that although the provisions of the collective agreement
dealing with the shift system have lapsed with the expiry of
the
collective agreement at the end of April 2013, I am, however, of the
view that at that stage the provisions of the collective
agreement
had already been incorporated into the employment contracts of the
individual employees. There is no provision in the
collective
agreement that provided for the automatic lapsing of the terms
incorporated in the employment contracts on the expiry
of the
collective agreement. It follows that the shift system set out in
the lapsed collective agreement has remained in the
individual
employees’ employment contract.
I am, however, despite the above ,of the view that the applicant has
failed to satisfy one of the requirements of an urgent application
and it is on that ground alone that the application stands to fail.
There are other remedies available which the applicant could
have
utilised rather than jumping the queue and filing an urgent
application.
And finally, in arriving at the conclusion that costs should not
follow the results, I have taken into account the relationship
between the parties.
Order
In the premises, the applicant’s application is struck of the
roll with no order as to costs.
_____________________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate JL Basson instructed by Maenetja
Attorneys
For the Respondent: Advocate WP Bekker instructed by Hugo &
Ngwenya Attorneys
1
1995
(16) ILJ 349 (LAC)
2
unreported
case number J2276/10
3
2005
(26) ILJ 2403 (LC),
4
unreported
case number D 68/12
5
(2011)
32 ILJ 1722 (LC),
6
See
Wallis: Labour and Employment Law, at page 7-10 paragraph 44. The
basis for incorporation of the substantive terms of the
Collective
Agreement into individual employment contract is set out by Rideout
Principles of Labour law 5 and 36 quoted by Wallis
at footnote1 page
7-16, as follows:‘The justification for incorporation of the
collective agreement in an individual’s
contract of employment
is that the parties to the contract regardless of union membership,
expect employment to be regulated
in this way.See also Mngomezulu v
khutala Mining Services (Pty) ltd 1994 ILJ 374 (IC) at 380 D‘where
it was held: It would
be contrary to the interests of sound labour
law relations and labour peace were this court to allow an
individual employee to
appoint a union to negotiate working
conditions and procedures with management on his behalf and
thereafter permit such employee
to ignore with impunity the
provisions of the ensuing agreements reached. Indeed, inasmuch as
the union purports to represent
the collective in negotiating such
agreements, some would argue that collective considerations require
the recognition and enforcement
by this court of ensuing collective
agreements on the strength of their having been mandated by a
majority of the members concerned
and not necessarily by all union
members to whom their provisions would become applicable’
7
Section
74 deals with Disputes in Essential Services and provides as
follows:
Any party to a dispute that is precluded from
participating in a strike or a lock-out because that party is
engaged in an
essential service may refer the dispute in writing
to
a council, if the parties to the dispute fall within
the registered scope of that council; or
the Commission, if no council has jurisdiction
The party who refers the dispute must satisfy the
council or the Commission that a copy of the referral has been
served on
all the other parties to the dispute.
The council or the Commission must attempt to resolve
the dispute through conciliation.
If the dispute remains unresolved, any party to the
dispute may request that the dispute be resolved through
arbitration by
the council or the Commission.’
8
2012
(8) BLLR 765
at para 13