IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO J1070/98
In the matter between:
NUMSA ON BEHALF OF ITS MEMBERS Applicant
and
LUMEX CLIPSAL (PTY) LIMITED Respondent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
1. The Respondent company manufactures and assembles electrical fittings and
accessories. The manufacturing process takes place in a division of its
operations known as The Plastic Shop, where it is done by way of injection
moulding machines, the type of fitting or accessory concerned being defined
by the particular mould installed in the particular machine at any given time.
2. The 31 employees involved in this matter, all of whom were at all material
times members of the Applicant, were dismissed by the Respondent with effect
from 12 January 1998. They had been found guilty in a collective disciplinary
enquiry held a month earlier, of misconduct described in their notices of
dismissal as -
" - continued and unreasonable refusal to work in accordance with the
company's newly implemented rationalisation measures, despite
exhaustive shopfloor consultations in this regard, your aborted
retrenchment on 01 December 1997 and a collective undertaking
dated 05 December 1997 where NUMSA, on your behalf, agreed that
you would work in accordance with the company's rationalisation
measures, pending the outcome of a NUMSA labour dispute regarding
the very same rationalisation measures." (sic).
3. It is common cause that following industrial action by the Applicant and its
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members in August 1997, a settlement agreement was entered into between
NUMSA on the one hand and the Respondent and an associated company,
Lumex//Clipsal Manufacturing (Pty) Limited on the other, of which the following
express provisions have relevance to the issues to be determined in this
matter.
"1. The parties herewith undertake to in future strictly adhere to and comply with the letter
and the spirit of the collective bargaining protocols, practices, procedures and principles as
provided and prescribed for in the new Labour Relations Act as amended, with specific
reference to the statutory dispute resolution procedure.
2. The parties herewith undertake not to embark on any unprocedural, unprotected and
illegal industrial action in future and to make use of the statutory dispute resolution
procedure to settle all collective bargaining related disputes between the parties.
3. NUMSA and their members herewith collectively agree and consent to the fact that the
companies shall have the right to terminate the services of any NUMSA member who in
future participates in any unprocedural, unprotected and illegal industrial action, subject
to a formal collective disciplinary enquiry in respect thereto, with the NUMSA shop
stewards collectively representing the NUMSA members at such an enquiry.
4. The parties herewith undertake to hold themselves legally bound by this agreement and
undertake to make use of their best endeavours to observe the provisions contained
therein, both in letter and in the spirit thereof and to promote shop floor stability and
sound shop floor relations."
4. The remaining provisions of the agreement recorded, in the main, a mutual
commitment to good faith collective bargaining with the object of concluding
"mutually acceptable collective agreements, which will properly and
competently govern the parties' collective bargaining relationship."
competently govern the parties' collective bargaining relationship."
5. On 17 September 1997 the Respondent addressed a notice to its employees of
its "Intention to Rationalise." There was no viable alternative, the notice
stated, "but to initiate an urgent and extensive internal rationalisation
programme." Two specific aspects of the proposed rationalisation were dealt
with as follows:
"THREE SHIFT SYSTEM
- the introduction of an alternating three eight-hour shift system in
the Plastic Shop, together with the option to work an additional
twelve-hour shift every third Saturday at normal overtime rates.
INTERNATIONAL OPERATIONAL STANDARDS
- the introduction and phasing in of the international operational,
quality, safety and efficiency standards, which amongst other things,
allows for machine operators to attend to more than one machine at a
time and dictate logical grouping together and combining of
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operational duties and functions to a larger degree than what is
currently the practice within the Companies."
The company, it was stated in conclusion, looked forward "to meaningful and
constructive consultations in this regard."
6. On 15 October 1997 the Respondent sent a memorandum to the Applicant
recording its concern that no response to the invitation to consult on the
proposed rationalisation measures had been received, reiterating that
invitation and proposing a meeting which in fact then followed on 21 October
1997. Following that meeting the Respondent forwarded to the Applicant
"details of the company's proposed first phase of rationalisation measures for
employee perusal, comment and discussion." It is common cause that in that
communication, termed "Labour Reduction:Motivation", the following was
stated in relation to the Plastic Shop.
"Currently one operator attends one machine even though: the
moulding operation is automatic, machine setting, adjustment and
maintenance is done by specially appointed setter/supervisors and
the maintenance department.
It is commonly acceptable for one operator to attend more than one
machine at the same time: various companies i e Clipsal in Australia
use this system; in a recent labour crisis four staff members
successfully operated nine machines.
In future, fifteen machines will be run by eight operators, staggering
breaks."
7. The operating functions of other machines were then reviewed and the
following was stated:
"A three shift system will be implemented resulting in seven
additional positions being created.
The abovementioned task allocation applies to all three shifts and
shift changeover may not affect the continuity of the operations."
8. Further meetings and communications followed and it is significant in that
regard that the exchanges involved, whilst dealing comprehensively with the
regard that the exchanges involved, whilst dealing comprehensively with the
Respondent's retrenchment programme and the introduction and ramifications
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of the new three-shift system, made no further reference to the proposal that
one operator should attend more than one machine at the same time.
9. Eventually, on 24 November 1997, the Applicant wrote to the Respondent
recording the dissatisfaction of the workers with the company's new shift
proposal. A moratorium was requested which, if not agreed to, would have the
result, it was stated, that "workers will work under protest and this will result in
both parties not having agreed and therefore there is a deadlock."
10. On 27 November 1997, the Applicant referred that dispute to the Bargaining
Council, defining it as "disagreement on restructuring and the three-shift
system affecting workers at Plastic Shop."
11. The communications between the parties at that stage related unequivocally to
wage rates which would be applicable in the restructured shift system. On 2
December 1997 and following further exchanges, an alleged refusal by workers
to commence work on 1 December and an alleged consequential lock-out by
the Respondent, the Respondent informed the Applicant that, in the face of
what it termed provocative, inappropriate and improper wage demands, it was
left with "no alternative from an operational, market and financial point of
view, but to formally retrench those former Plastic Shop employees who
refused to work in accordance with the proposed shifts ............" At that point
Attorneys respectively acting for the parties intervened and an apparent
interim resolution of the prevailing problem was reached. This was confirmed
in a letter from the Respondent's Attorneys to the Applicant's Attorneys on 4
December 1997 in which it was recorded that -
"Your client's members agree and undertake to work (under protest)
in accordance with the 6-day/3-shift system proposed by Lumex
Clipsal (Pty) Limited, pending the outcome of any dispute which your
client may wish to refer to the Bargaining Council in regard to that 6-
client may wish to refer to the Bargaining Council in regard to that 6-
day/3-shift system. We furthermore confirm that your client's
members will be remunerated, notwithstanding that they have not
worked these last few days."
12. The Respondent's records indicate that on Saturday 6 December 1997 the day
and night shift, as well as the morning shift on Monday 8 December 1997
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timeously reported for work and executed their normal duties in accordance
with the new rationalisation programme, which encompassed the operation at
the same time of two machines by one operator. When the afternoon and
night shift workers reported however, and were instructed to continue that
process, they collectively refused to do so until, the company was informed,
the dispute which had been declared and referred concerning the
rationalisation measures was resolved, the viability and safety of the new one
operator/two machine ratio had been investigated and validated and finally,
that a collective agreement dealing with the wage increase demands for Plastic
Shop operators, purportedly for the increased work load involved in that one
operator/two machine process, had been concluded.
13. It is common cause that as a consequence of those events the employees
concerned, who were suspended from their normal duties in the interim, were
subjected to a collective disciplinary enquiry on 11 December 1997,
consequent upon which they were, on 12 December 1997 informed that their
services were to be terminated with effect from 12 January 1998 on one week's
contractual notice. In accordance with company procedure, an appeal was
noted, was duly heard and was rejected, the decision to terminate the services
of each of the 31 Plastic Shop employees involved being upheld.
14. The issues for determination by this Court are defined in an unopposed
amendment of the Applicant's Statement of Case and, as submitted by Adv T
Bruinders who represented them, may be summarised as follows:
14.1 Did the company fail to comply with Clause 33(3) of the main agreement
when requiring employees to operate two machines per operator?
14.2 Alternatively, did the two machines/one operator requirement amount to
a unilateral variation of the employment contract of the employees?
14.3 Further alternatively, if it is found that there was no unilateral variation
14.3 Further alternatively, if it is found that there was no unilateral variation
then was the instruction to operate two machines simultaneously
unreasonable?
15. The agreement in question - The Main Agreement of the National Bargaining
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Council for the Steel, Engineering and Metallurgical Industries, was indisputably
applicable to both parties. Clause 33 thereof deals with "Technologial Changes
and Work Reorganisation" and sub-clause 3, under the sub-heading "Work
Reorganisation", provides, inter alia, the following:
Consultation
Where an employer intends introducing major work reorganisation
which will substantially and materially affect the work of employees,
the employer shall consult, in an endeavour to reach agreement with
the representative party trade union(s) and/or any employee
representative body, on the implications of the work reorganisation
including:
(i) the need to re-train employees affected by such work reorganisation;
and
(ii) any possible impact on the health, safety and work environment of
the affected employees."
16. The requirement that one operator attend two machines, the Applicant
contends, constituted a major work reorganisation as contemplated by the
section. No consultation with the Applicant was held in that context and the
implementation of the new system was accordingly prohibited. What was
involved, it contends, was a major work reorganisation materially affecting the
work of the employees.
17. This contention, the Respondent replies, is opportunistic. No specific reference
to it, as an element of the dispute between the parties, is made in the
reference of that dispute to the Bargaining Council. Consultation is required by
the section where what is proposed is the introduction of major (emphasis
added) changes in the work done by the employees. An indication of what is
there contemplated is provided by the section itself which illustrates the
implications of such introduction as, for example, the need to re-train
employees affected by it and considerations of health, safety and work
environment which may flow therefrom. No re-training of the employees
environment which may flow therefrom. No re-training of the employees
involved was required. The change from a two-shift to a three-shift system
was patently one with no impact on the health and work environment of the
employees. The dual function of operators under the new system had
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intermittently been performed in the past and the only material ramification of
what was now proposed, would be the increased volume of work to be
performed by each of the employees concerned. That was an issue to be
independently addressed in the context of wage negotiations. In any event,
the Respondent concludes, even if it could properly be held that what was
proposed fell within the ambit of s33, the necessary consultations had been
held. Significant again in that context is that throughout the exchanges which
followed the initial rationalisation proposals submitted to the Applicants, no
issue had been made of the one operator-two machine question until it was
physically challenged on 8 December 1997.
18. Addressing the question of whether or not the implementation of the one
operator/two machine requirement constituted a unilateral variation of the
employment contracts of the operators, the Applicant points to the prohibition
of such conduct in the Labour Relations Act 66 of 1995. Dismissal of
employees who refuse to comply with employment terms and conditions
unilaterally so altered, is unlawful under s64(4) and (5) of that Act.
19. A change in the way in which the work is done by employees, it contended,
where this is required in circumstances such as those existing in the present
instance, will amount to a change in the nature of the work required to be
performed by the employees concerned under their contracts of employment.
Operators contracted to operate one machine are entitled to refuse to operate
two machines where that requirement constitutes a change in the nature of
their jobs.
20. The Respondent however, contends that what the individual employees were
required to do did not constitute a variation of the terms and conditions or the
nature of their employment. The change to the shift system was negotiated
and, albeit under protest on the part of operators, had been implemented by
and, albeit under protest on the part of operators, had been implemented by
agreement. The fact, as exhaustively canvassed and ultimately demonstrated
in the course of the evidence, that the dual function in question was
practicably and physically possible, negated any suggestion that what the
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employees were being required to do was anything other than a more labour
intensive performance of jobs for which they were already fully trained and
qualified. It was, in short, recognisably the same work.
21. Reference in support of that contention was made by the Respondent to -
CDM (Pty) Limited v Mine Workers Union of Namibia 1997(2) LLD 65 in
which the Court held that a unilateral change to conditions of employment will
be illegitimate where it is "so fundamental as to amount to a change in
contract." Citing with approval the English case of -
Cresswell v Board of Inland Revenue (1984)(2) AER 713 (CHD)
the Court concluded that -
"............... an employee did not have a vested right to preserve his
working conditions completely unchanged and must adapt himself to
new methods and techniques."
22. In Cresswell (supra) it was held, as summarised in the headnote,
".......... that an employee was expected to adapt to new methods and
techniques in performing his duties provided the employer arranged
for him to receive the necessary training in the new skills and the
nature of work did not alter so radically that it was outside the
contractual obligations of the employee; that it was a question of fact
whether the introduction of new methods and techniques altered the
nature of the work to such a degree that it was no longer the work
that the employee had agreed to perform under the terms of his
contract."
23. Finally, as to the reasonableness or otherwise of the instruction in question, the
technical functions of the machines have obvious relevance. I do not propose
to review the exhaustive evidence adduced by both the company and the
Applicant in that regard. To do so would burden this judgment unnecessarily.
Suffice it to say that, in my view, on the conspectus of that evidence, coupled
with the fact, which I am satisfied has been established, that what was required
with the fact, which I am satisfied has been established, that what was required
had been intermittently done in the past, thereby endorsing its feasibility, the
refusal of the operators to implement that aspect of the Respondent's
rationalisation programme was one sourced not in any rational contention of
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unreasonableness or impossibility of performance, but directly in the
remuneratory ramifications of what they considered to be an increased burden
of work. That much was frankly admitted, under cross-examination, by the
witness Nkele, who, asked whether one of the reasons for the workers'
unhappiness was that they perceived that they should be paid more, conceded
that this was the case and that if there had been agreement on the wage
aspect of the matter, the "doubling-up" was physically possible.
24. On the specific issues thus canvassed, I am not persuaded that the additional
tasks required of the individual operators in the context of the company's
rationalisation programme, amounted to so great a variation of the work which
they were contracted to perform as to constitute the "major work
reorganisation" contemplated by s33(3) of the main agreement. The issue of
requisite consultation in that context does not therefore arise and I would
merely record, in that regard, that the Applicant's silence on that specific issue
throughout the period of intense and confrontational negotiation which
followed the presentation of the rationalisation plan, does not support any
contention that this was an issue with which they were materially concerned.
25. I am also satisfied that, in the context of the analysis set out in the case
authority to which I have referred, the "doubling-up" requirement did not
constitute a unilateral change to the terms and conditions of the employment
contracts of the individuals concerned. It was one, in my view, which did not
alter the nature of their work to such a degree that, as defined in Cresswell
(supra), it was no longer the work that the employees had agreed to perform
under the terms of their contracts. Nor, finally, was the requirement
unreasonable in the light of the reasons advanced by the Respondent in its
unreasonable in the light of the reasons advanced by the Respondent in its
presentation of its proposed rationalisation programme to its body of
employees. As early as September 1997, what the company described as "an
unfortunate combination of ........ facts and circumstances", had been
comprehensively conveyed to the Applicants and the commercial rationale
dictating the necessity for the programme was at no time substantively or
materially challenged.
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26. The work stoppage on 8 December 1997 which manifested the individual
operatorss' refusal to implement that aspect of the rationalisation programme
was therefore, in my view, unwarranted, unreasonable and unlawful. It was in
breach not only of the agreement concluded between the respective Attorneys
for the parties, but of the express provisions precluding it in the procedural
agreement concluded in August 1997. Those, in my assessment, were
exacerbating factors which, coupled with the undisputed disruption of the
productive capacity of the Respondent's entire operation in circumstances and
conditions which, on the analysis to which I have referred, were already
straitened, justified the sanction of dismissal imposed upon the participants in
that misconduct following disciplinary procedures which were at no time
challenged.
27. I have concluded, for these cumulative reasons, that the Applicant and its
members are not entitled to any element of the relief sought by them in their
Notice of Motion and the order that I accordingly make is the following:
27.1 The application is dismissed.
The First and further Applicants are ordered jointly and severally to pay
the Respondent's costs.
ÄÄÄÄÄÄÄÄÄÄÄÄ
B M JAMMY
Acting Judge of the Labour Court
24 August 2000
Dates of hearing: 5, 6, 7 June 2000
17, 18, 19 July 2000
Representation:
For the Applicants: Adv T Bruinders, instructed by Cheadle Thompson &
Haysom.
For the Respondent: Adv R Sutherland SC, instructed by Hofmeyr Herbstein
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Gihwala Cluver & Walker Inc.
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