The Labour Relations Act 66 of 1995, as amended (the Act), entitles employees to embark on a protected strike action despite not having a certificate issued by the CCMA / Bargaining Council, which would ordinarily render the strike protected.
The Act recognises five instances in which an employee will not have to comply with the requirements of section 64(1) of the Act. This article will focus on circumstances where an employer has unilaterally changed its employee’s conditions of employment.
What are the conditions of employment?
Conditions of employment are certain basic entitlements that employees enjoy when they start employment with an employer. These entitlements (rights) can be obtained from a specific piece of legislation, a collective agreement, agreed upon in a contract of employment or due to a custom established by the employer. What is noteworthy to mention is that once an employee has gained a specific right, then that right cannot be changed unilaterally.
Example:
Person X started at Company ABC in January 2013 and entered into a contract of employment entitling him to a meal interval of 60 minutes every day. His contract also states that he will work 8 hours a day (excluding meal intervals) for five days a week.
In 2022 Company ABC realised that in order to be more competitive, they need to have their staff work 9 hours a day and employees’ lunchtime to only 30 minutes a day. They then issued a letter to all employees informing them of the changes, which will start the following week. There was no attempt to consult with the staff prior to this change.
Section
64(4) of the Act states that an employee or trade union who refers a dispute about a unilateral change to terms and conditions
of employment to a council or the CCMA in terms of subsection (1)(a) may, in
the referral, and for the period referred to in subsection (1)(a):
- require the employer not to implement the change unilaterally to
terms and conditions of employment; or
- if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of employment that
applied before the change.
- if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of employment that
applied before the change.
Section 64(5) of the Act further states that the employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral on the employer.
These two subsections deal with the situation where an employer has unilaterally introduced or intends to introduce changes to the terms and conditions of employment of employees.
To ensure that the pending dispute will be between parties who are on relatively equal footing, and to deter unilateral conduct, section 64(4) needs to be referred to. This section of the Act provides that the employees or a union which has referred the dispute about the unilateral change to a council or the CCMA, may, in the referral itself, also require the employer to either refrain from implementing the changes or, where the change was implemented unilaterally, to restore the terms and conditions of employment that applied to the employees before the change.
In terms of section 64(5), the employer must comply with this requirement within 48 hours of service of the referral on the employer. The employer must also maintain or revert to its “old” conditions of employment for 30 days from the date of the referral of the dispute to the council or CCMA. During this time, the conciliation process will be used to try to resolve the dispute.
If the employer, after being served with the referral documentation about the dispute in terms of section 64(4) of the Act, does not maintain or revert to its “old” conditions of employment as requested in the referral documentation, then the employees or trade union my then embark on a protected strike action.
About the author:
Martin Fick started his career at SEESA in May 2010 and is currently a Senior Legal Advisor at SEESA’s Klerksdorp branch. He obtained his LLB degree from UNISA.
Resources: Labour Relations Act 66 of 1995, as amended