5 July 2009 by

Changing conditions of employment

Nampak Metal Packaging Limited (Bevcan) vs Numsa and others (JR 1949/08: 19 December 2008)

Bevcan has a discretionary plant incentive scheme in place, which has operated since 1998. The bonus is triggered if a particular 'efficient machine utilisation' (EMU) target is met. If an 85% budgeted EMU is achieved, then production employees would receive 2,8% of their basic wage for each 1% achieved above the EMU target.

Bevcan indicated its intention to increase the line speed from 1600 to 1800 cans per minute. This prompted NUMSA to declare a dispute against Bevcan. It claimed that any increase in line speed would result in Bevcan unilaterally changing the terms and conditions of employment of its members. It was NUMSA's contention that such an increase in the line speed would make it difficult for its members to cope.

NUMSA wanted to take advantage of an expedited route to a protected strike in terms of Section 64(4) of the Labour Relations Act, 1995. To do so, there needed to be 'a change to conditions of employment'. What does this actually mean? The exact limit of this expression has not been finally determined by the Labour Court (the Court); however, the author Grogan states that:

"It seems, (it) must concern a change to the terms under which the employees' work, or their benefits, rather than a mere work practice. The difference between terms and conditions of employment and working practices is generally determined by whether the employees are able to demonstrate that the changes affect their contractual rights, whether emanating from their individual contracts of employment or from a collective agreement. A shift change may, for example, fall within the terms of the remedy; an instruction that work will be done in a particular manner may not."

Bevcan contended that it was not altering any condition of employment stipulated in the employees' contracts of employment.

It was seeking to enhance business efficiency by increasing the actual speed of its machines as this would increase the number of beverage cans that could be manufactured per shift. There was no extra work necessary by the employees. It did not extend their working hours nor did it increase the effort on their part.

NUMSA issued a notice of intention to strike. Bevcan successfully obtained an interdict in the Court in order to prevent the strike from taking place.

Bevcan argued that no change to terms and conditions of employment was intended. The interdict centred upon a distinction between an employer changing conditions of service and a contemplated change in work practice.

The Court found that "none of the changes affect(ed) the employees' terms and conditions of service. The bonus payable to employees would be assessed on the same formula. The target remains at 85% of the EMU. .... Although the modified machines will produce 200 cans more per minute, the employees have to exert no greater effort to produce the extra cans."

The Court further found that NUMSA produced no evidence to suggest that the modification of the machinery would change any conditions of employment, the employees' hours of work, shift patterns or wages.

The Court concluded that NUMSA's case was no more than a demand for a wage increase that was camouflaged as a dispute based on erroneous complaints about unilateral changes to the conditions of employment.

Fiona Leppan

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