Thursday, 28 June 2007

Transport for Overtime Workers


Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.


Basic Conditions of Employment Act 75 of 1997:

1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.

2. The full text of section 17(1) & (2) reads:

"17 Night work

(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.

(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-

(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."

3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.

4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.

5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.

Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)

6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.

7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.

8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.

Bargaining Council Agreements and Minister of Labour Variations

9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.

10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.

11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.


The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.

Roland Darroll
Thursday, 28 June 2007

Monday, 25 June 2007




1.1 A multinational company bought the business of Darrolls Attorneys' clients. The multinational then now required the staff of the purchased business to sign certain undertakings.

1.2 The questions that arise are the following:

1.2.1 is the staff obliged to sign such undertakings ? If so,

1.2.2 are the undertakings reasonable ?


2.1 The situation with regard to unilateral changes of terms of employment under the current Labour Relations Act 66 of 1995 ("LRA") is uncertain. Unilateral changes are only mentioned once in the Act, and then only in the context of the right to strike. It seems, therefore, that unlike the common law, the LRA itself places no limitation on the employer's right to vary their employees' terms and conditions of employment.

2.2 The precise nature of a unilateral change to terms and conditions of service has also received relatively little judicial attention. A court has held that employees 'do not have a vested right to preserve their working conditions completely unchanged as from the moment they first begin to work'. It is only if the changes are 'so dramatic as to amount to a requirement that the employees undertake to do an entirely different job' that they could refuse an instruction to abide by the new working rules or claim that the employer has breached their contracts by introducing the new working practice.

2.3 The law therefore clearly permits change in the workplace. It assumes that companies have to adapt to changing circumstances and that employees must be prepared to accept change within certain parameters, ie:

2.3.1 consultation. The relevant provisions of the LRA should be adhered to in this regard, ie management needs to inform staff about its intentions, provide reasons and other relevant information justifying the change, invite representations from staff and listen to and respond to staff members input;

2.3.2 agreed terms of employment, unlike non-drastic working practice changes, cannot be altered unilaterally by the employer without sound commercial reasons. This means that management has to negotiate and agree with employees before previously agreed terms can be changed.

2.4 Failing agreement, management has some powerful means available to try and enforce consent, including locking out employees who resist or retrenching those who refuse to agree. The latter option requires great caution on the part of the employer because of certain relevant legal constraints.

2.5 If the change does not involve agreed terms of employment but instead practices or rules that management had previously introduced unilaterally (eg no-smoking rules or performance standards) management does not require employees' consent to implement and enforce the change, but is required to consult with affected staff first.

2.6 Section 64(4) of the LRA suggests that the only remedy available to employees when there is a dispute over a unilateral variation of terms, is to strike. However a unilateral variation of employment terms is nevertheless a breach of contract under the common law. Employees therefore retain their right to accept the employer's 'repudiation' of their contract and sue for damages or alternatively to hold the employer to the original contract.

2.7 The case law provides no clear answer to the question as to whether an employer may dismiss employees who refuse to comply with changes to their employment contract. This is partly because the answer depends on the facts of each particular case. It is therefore difficult for the legal adviser to indicate any one course of action with confidence. That being so it might well be that employees should seek to agree to as much as they consider to be reasonable and provided that the employer consults and motivates the changes first.

2.8 It needs to be said that if employees play too hardball with an employer who has a genuine 'commercial rationale' for the variations, they run the risk (depending on the court's view of the facts) of retrenchment, alternatively being dismissed on the basis of misconduct (insubordination). Care should therefore be taken that, while remaining firm on their rights, employees do not expose themselves to the point where the employer considers that it would be justified in trying to dismiss them.


3.1 Section 197(2) of the LRA provides that, if a transfer of a business takes place, the new employer is automatically substituted in the place of the old in respect of all employment contracts and the rights between the old employer and an employee at the time of the transfer continue as if they had been rights between the new employer and that employee.

3.2 Section 197(3) of the LRA goes on to say that the new employer complies with subsection (2) if it employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.


On the assumption that, because of the grey area in the law as to the rights of employees in the face of an employer's unilateral change in their terms and conditions of service, the employees do decide to sign certain undertakings where they had not been required to do so before, the question then arises as to whether they should sign all or only certain of the undertakings. In order to decide this one will have to look at each undertaking in turn.


5.1 In the first place, the employees should meet among themselves in order to establish a common policy towards the documents.

5.2 Then, employees should insist that the new Employer call a meeting to consult with them and motivate the reasons why they should sign these two documents.

5.3 Thereafter new documentation should be drawn up along the lines agreed, so that it is in a form that the employees can sign.

5.4 By following the above procedure, the employees will be able to protect themselves as far as changes to their terms of employment are concerned (which they can refuse to accept, unless there is a 'commercial rationale') and changes to working practices (which they will have to accept unless they are unreasonable).

5.5 In this way employees will obtain the best possible deal while exposing their jobs to minimum risk.

Roland Darroll
Darrolls Attorneys
Newlands, Wednesday, 20 June 2007