Employment law update – Change in shift pattern

September 1st, 2012
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By Talita Laubscher

The applicant in Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (Numsa) and Others [2012] 6 BLLR 544 (LC) sought to change the shift pattern at its Durban factory, at which approximately 600 employees were employed. When the National Union of Metalworkers of South Africa (Numsa) did not agree, the applicant sought a declarator that the proposed changes to the shift pattern did not constitute a unilateral change to the employees’ terms and conditions of employment, as well as an order interdicting the employees from striking until they had complied with the provisions of s 64 of the Labour Relations Act 66 of 1995 (LRA).

The applicant’s factory operated on a 24-hour, seven-days-a-week basis. In April 2004 the applicant and Numsa concluded a collective agreement regarding the implementation of a 12-hour, three-shift system. The intention of this agreement was to enable the applicant ‘to cease operating illegally and in contravention of the Basic Conditions of Employment Act [75 of 1997]’. The new shift pattern did not, however, achieve this purpose and the applicant accordingly had to apply for ministerial determinations, the last of which expired on 30 June 2011. Shortly thereafter, the applicant commenced a consultation process with Numsa with a view to amending the shift pattern set out in the 2004 agreement. It described its proposal as an amendment to ‘shift rotations’ only, which it alleged fell within its managerial prerogative.

The court, per Gush J, noted that the crux of the matter was whether the proposed changes constituted a unilateral change to the employees’ terms and conditions of employment or whether it was a work practice that the applicant could change at its discretion. It held that a shift pattern could only constitute a term and condition of employment if the employee has a contractual right to work the shift pattern concerned. The 2004 agreement only applied to employees in the applicant’s ‘truck and radial (tyre) department’. It was, however, extended to the other employees at the factory, but this extension was not done in writing. The court noted that the LRA defines a collective agreement as ‘a written agreement concerning terms and conditions of employment or any other matter of mutual interest’ concluded between an employer and a trade union. Because the extension of the 2004 agreement to the other employees at the factory was not ‘in writing’, the court held that this extension was not a collective agreement for purposes of the LRA. The determination of these employees’ shift patterns accordingly remained within the applicant’s prerogative as a work practice. The court further observed that the 2004 agreement itself permitted the applicant, after consultation, to ‘discontinue or modify’ the shift pattern to ‘achieve its operational requirements’. Therefore, even if the shift pattern of the employees outside of the truck and radial department was a contractual entitlement, they would be in the same position as the employees employed in this department, meaning that the applicant was contractually permitted to ‘discontinue or modify’ the shift pattern for its ‘operational requirements’. The court held that the reasons advanced by the applicant for the proposed change in shift pattern clearly fell within what can be described as ‘operational requirements’.

In the circumstances, the court held that the applicant was entitled to change the shift pattern for reasons related to its operational requirements. Further, the employees were interdicted from embarking on strike action until and unless they complied with the provisions of s 64 of the LRA.

Con-arb

The applicant in Modikwa Platinum Mine (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2012] 6 BLLR 578 (LC) applied for the review of an arbitration award that was issued in its absence.

Consequent to his dismissal, the employee in this matter referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The matter was set down for con-arb (a process that allows for both conciliation and arbitration to take place as a continuous process on the same day), to which the applicant objected in terms of s 191(5A)(c) of the Labour Relations Act 66 of 1995 (LRA). The objection was addressed to the Witbank office of the CCMA, but was faxed to Polokwane. A copy of the objection was, however, delivered to the satellite office of the CCMA in Burgersfort, where the hearing was scheduled to take place.

Both the applicant and the employee attended at the CCMA on the date the matter was set down for con-arb. Conciliation was unsuccessful and the commissioner insisted on proceeding with arbitration. He refused to accept the written notice of objection to the con-arb process on the basis that it should have been sent to the Witbank office. The commissioner further stated that he could not accept the objection as there was no indication that it had been ‘upheld’ by the CCMA prior to the date of set down.

The applicant’s representative, Letsebele, requested a short adjournment in order to fetch witnesses for the arbitration from the applicant’s workplace, which was a short distance away. The commissioner refused this request on the basis that it was not ‘the commission’s responsibility to mollycoddle parties to attend processes’. Letsebele, who had not prepared for the arbitration and who was without any witnesses, asked to be excused and the arbitration continued in his absence. The arbitrator subsequently issued an award holding that the employee’s dismissal was unfair and ordered the employee’s reinstatement.

The court, per Seedat AJ, noted that s 191(5A) of the LRA permits commissioners to immediately arbitrate a dispute if conciliation has failed. Such a process is referred to as ‘con-arb’ and is compulsory in disputes relating to probation. In other disputes, a commissioner can only proceed to arbitration if none of the parties has objected to the matter being dealt with as con-arb. Considering the commissioner’s reasons for proceeding with the arbitration, the court held that the commissioner had committed a reviewable irregularity; neither s 191(5A) nor r 17 of the CCMA rules requires the CCMA to consider or ‘uphold’ an objection to con-arb. Mere objection is sufficient to preclude arbitration from taking place immediately if conciliation fails.

The court also considered the commissioner’s failure to allow the adjournment requested by Letsebele and held that this, too, amounted to a reviewable irregularity. Letsebele did not request a postponement; he merely asked for an adjournment of approximately an hour in order to collect witnesses. The employee would not have suffered any irreparable harm or prejudice if the matter had stood down for approximately an hour.

In the circumstances, the court reviewed the award and the dispute was referred back to the CCMA for a rehearing before another commissioner.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2012 (Sept) DR 51.