Open letter to South Africa’s students‚ universities and government‚ represented by Minister in the .
In terms of Section 29 of the Basic Conditions of Employment Act, when an employee starts working, the employer must supply the employee with a contract of employment. The employment contract should, among other things, contain:
l the name of the employee and the occupation or a brief description of the work for which the employee is employed;
l the place of work, and where the employee is required or permitted to work at various places, an indication of this;
l the employee's hours of work;
l the employee's wage or the rate and method of calculating wages;
l the rate of pay for overtime;
l any payments in kind that the employee is entitled to and the value of the payment in kind.
In terms of the law of contract, after two parties have entered into a contract, the terms of such a contract may not be varied by one party without the consent of the other party.
Section 64(4) empowers an employee or a trade union to refer a dispute about a unilateral change to terms and conditions of employment to the Commission for Conciliation, Mediation and Arbitration (CCMA).
In his referral the employee may require the employer not to change the terms and conditions of employment. In the event that the employer has already implemented the change, the employee may require the employer to restore the terms and conditions of employment that applied before the change.
The employer must comply with such a request within 48 hours.
If the employer fails to do this, the employee may bring an application in the Labour Court to interdict the employer's conduct.
In order to succeed, the employee must, however, firstly show that unilateral changes were made to the terms and conditions of the employment contract and secondly that there was no consent to the changes.
Not every change to the nature of employment for which the employee is employed for, qualifies as a unilateral change under the provisions of section 64(4). In order for the change to fall under section 64(4), the change in the nature of employment must be to such degree that it was no longer the work that the employee had agreed to perform under the terms of his contract.
The employer may not continue with the change for 30 days after the referral to the CCMA. This is to restore the terms and conditions of employment until the conciliation stage (at the CCMA) of the dispute is exhausted.
If the employees wish to restrain their employer from unilaterally varying terms and conditions of employment for a period longer than 30 days, they can do so only by going on strike.
Seeing that a change to terms and conditions of employment without consent would make the contract of employment invalid, in addition to the remedies contained in section 64(4), an employee whose terms and conditions of employment have been unilaterally changed is entitled to either claim damages or hold the employer to enforce the contract.
However, it is important to note that changes to terms and conditions of employment are permissible, if they are implemented during a bona fide retrenchment exercise to avoid the retrenchment of an employee.
- Lavery Modise is a director and Lebogang Kutumela, an associate, at Routledge Modise in association with Eversheds.