In the recent case of Apollo Tyres SA (Pty) Ltd v NUMSA & Others (2012) ZALCCT 6 LC, it was confirmed that employers may unilaterally change the shift patterns of those employees who were not party to a collective agreement, but not of those who were.
The facts of the case were briefly that around 2004, the employer entered into a collective agreement with some of its employees, one of the terms being a 12 hour, 3 shift system.
In 2011 the employer embarked on a consultation process with the employees to table a proposed amendment to the shift patterns. The parties were unable to reach agreement and the employer unilaterally implemented the changes across the board on 1 February 2012.
The employees viewed the amendments as a change to their terms and conditions of employment.
The court had to determine whether the change to the shift patterns constituted a change to the terms and conditions of employment or a change to a work practice.
The relevance of this distinction is that an employer cannot unilaterally change the terms and conditions of employment, but can change a work practice unilaterally as this falls within the managerial prerogative.
The court found, in respect of those employees who were not party to the collective agreement, that in the absence of a contractual agreement to work specific shifts, the regulation of shift patterns is a work practice which falls within management's prerogative to change unilaterally.
The court found, in respect of those employees who were party to the collective agreement, that the change in shift patterns equates to a change to the terms and conditions of employment. However, the agreement contained a clause stating that the employer could discontinue or modify the shift system to achieve its operational requirements, after consultation with the employees. The employer accordingly acted within the ambit of the collective agreement by changing the shift system. In the absence of this clause, the change would have constituted a unilateral change to the terms and conditions of employment.
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