A change in a contract of employment is like writing a new contract. An employer may not unilaterally change the terms and conditions of employment of an employee. This means changing the contract on their own without any form of consultation with the employee. An employer can change the contract after proper negotiation even if the employee does not agree to the changes. A change in a contract is like a new contract. To change the contract, the employer must give notice of the proposed change to the employee and must attempt to negotiate the new terms and conditions with the employee. If the employer and employee/s cannot agree on the changes in the contract, then the employer may decide to go ahead to introduce the changes. If the employee accepts the new conditions and goes on working, then the new conditions become part of the contract.

If the employee does not agree to the changes, then the following options will apply:

OPTION 1:

Refer a dispute to the CCMA or Bargaining Council in terms of section 64(4) of the Labour Relations Act. The employee can ask the CCMA to issue a notice to instruct the employer to not proceed to change the terms of employment or to reinstate the previous terms of employment which applied before the change took place. The employer must comply with this notice within 48 hours of receiving it, failing which the employees (there must be two or more) or trade union may embark on a protected strike.

OPTION 2:

Refer a dispute to the CCMA or the Bargaining Council (if one is in that industry) for conciliation. If conciliation fails, then that employee and other employees covered by the dispute may go on strike after giving the employer 48 hours’ notice of the strike. Remember, individual employees may not strike but can only do so as a collective group. Employees are entitled to go on strike after following the correct procedures, even if they do not belong to a trade union.

OPTION 3:

If the employee refuses to accept the changes, and the employer then dismisses the employee, it might well be an automatically unfair dismissal in terms of Section 187 of the LRA. This is because an employer is not able to unilaterally amend the contract of an employee or employees and the ‘employee has been dismissed because of their refusal to accept a matter of mutual interest between them and the employer.’

OPTION 4:

Where an employer can justify the need to change the terms and conditions of employment and there is no agreement between the employer and the affected employee even though consultations have taken place, then the employer has the right to consider possible retrenchments if the employee is not prepared to accept the reasonable offer of alternative terms of employment, instead of being retrenched. This should be the last resort and cannot be based on arbitrary reasons. For example, if a change to the contract could prevent a business from closing then this would be seen as a justifiable reason.

• If the employer wants to change the terms of an employment contract and can justify the need to do this but is unable to negotiate these changes with the employee in consultations in terms of Section 189 of the LRA, then the employer could approach this as a possible retrenchment in terms of Section 189 of the LRA and dismiss the employee for refusing to accept a reasonable alternate offer to that of retrenchment.
• Finally, the employer could engage in a lock out after failed Conciliation at the CCMA, to pressure employees to accept the new terms and conditions of employment.
• If the employee was forced to resign, or was retrenched or dismissed as a way to get the employee to accept the changes, it will be considered an automatically unfair dismissal. Employers may not use the threat of dismissal to force an employee to agree to a new contract.

NOTE: The National Minimum Wage Act (NMWA) states that it is an unfair labour practice for an employer to unilaterally change wages, hours of work, or other conditions of employment if this is a result of the implementation of the national minimum wage. If there is a collective agreement, the employer must negotiate with the trade union(s) concerned before changing the terms and conditions of employment that form part of that collective agreement.

OPTION 5:

Where a registered trade union has signed a collective agreement with the employer and where the employer changes this agreement without the agreement of the union, the union and its members can go to the CCMA or the Bargaining Council (if this applies) to claim that the employer has broken the Collective Agreement. This referral of the dispute will be in terms of Section 24 of the LRA and will ask for an arbitrator to decide whether the employer has breached the collective agreement.