The changing of an employee’s job content is frequently a highly sensitive and troublesome process which often has the potential to spawn individual labour disputes, and at times, collective conflict. It is not uncommon for employers to hear the refrain, “ .. but that’s not in my job description !” or “I’m the TEA lady, make your own COFFEE!”.
Quite clearly, employers are not entitled to fundamentally unilaterally change or vary an employee’s work obligations in a manner which imposes obligations on an employee for which they are not trained or qualified, or perhaps may move them into a higher job evaluation grade without a commensurate increase in remuneration.
However, the dynamic nature of the present-day workplace is such that very few jobs remain static in content.
Job content invariably evolves as organisations grow and vary strategies to maintain a competitive advantage in the market place. The conundrum faced by employers and employees relates to the point at which a change to job content, particularly when it takes the form of additional tasks and duties to be performed, amounts to a unilateral (and therefore ‘unfair’) change in an employee’s terms and conditions of employment. In the event that an employer were to be deemed to have unilaterally changed terms and conditions of employment, the remedy sought would ordinarily include additional compensation or a restoration of the status quo prior to the change.
So, to what extent can employers vary job content without running the risk of being subjected to section 64(4) of the Labour Relations Act?
In SA Chemical Workers Union obo Mhlongo v. Silicon Technology (Pty) Ltd [Case No.KN6500-02] the commissioner drew an important distinction in the arbitration award between ‘terms and conditions of employment’ and ‘work practices’. “Terms and conditions of employment” were defined as “the core rights and duties of employees under their employment contracts”, whilst ‘work practices’ were defined as to the manner “the contracted work is to be done”.
Of particular significance in the award was the point made by the commissioner that “The practical significance of the distinction between ‘terms and conditions of employment’ and ‘work practices’ is that it is now widely recognised that changes to work practices can be introduced unilaterally without prior negotiation – they fall within the management prerogative”.
However, the commissioner conceded that it may be difficult to distinguish between the two categories at times, and that it would be prudent in such circumstances to treat such changes “as subjects for negotiation with the aim of reaching consensus, if possible.”
In conclusion, the commissioner referred to the matter of A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC) in which the court observed that “employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work”.
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