A contract of employment commences once both parties have agreed on the essential terms of the offer. Put differently, the contract is complete, or perfecta, once the employee has accepted the offer of employment made by the employer.

Unless the provisions of the contract provide otherwise, neither party may unilaterally vary the terms of the agreement. This principle applies regardless of which party will accrue the benefit of the variation. For example, the employer cannot compel the employee to work seven days per week if the contract only provides that the employee must work five days per week. On the other hand, an employee cannot compel an employer to decrease daily hours of work.

Notwithstanding the above restrictions, an employer is entitled to implement and amend certain policies and practices within the workplace, without agreement from the employee. As long as these policies and practices do not alter the terms and conditions of the employment contract, they may be implemented. An example would be the introduction of a cellphone usage policy which may regulate the use of company-issued cellphones. Therefore, the relationship between the parties may be amended from time to time.

There is a fine line which exists between a unilateral change to the employment contract and the change to workplace policies and practices, which was illustrated in A Mauchle t/a Precision Tools v NUMSA. In this case, the employer instructed employees to operate two machines as opposed to one machine, which they had done previously. The court concluded that the change did not amount to a unilateral variation of the terms of employment but rather a change in practice. It stated:

“Employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work. It is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner.

As it was not a term of the contracts of employment that an operator was obliged to operate one machine only, there was no requirement in law or fairness for the company to negotiate with the union. What was required of the company, as a matter of fairness and sound industrial relations practice, was to attempt to persuade the applicants to cooperate and accept the change in practice.”

The parties to an employment contract may agree to vary the conditions of employment between themselves. The parties may, however, be restricted by the provisions of the original contract. If the contract expressly stipulated that the parties may only vary the conditions of employment in writing, then only a written variation is effective.

Parties may further be restricted by the provisions of relevant legislation. The BCEA and various bargaining council’s main agreements limit certain variations to the terms of employment, as well as the manner in which the variations are concluded.

Section 23 of the Labour Relations Act provides that a collective agreement (an agreement between an employer and a trade union representing its members) varies any contract of employment between an employee and employer who are both bound by the collective agreement. Once again, it is irrelevant which party accrues the benefit of the change, the provisions of the collective agreement will prevail.

In certain circumstances, an employer may serve its employees with notices in terms of S189 of the Labour Relations Act (retrenchment notice) and offer the affected employees alternative positions. Although this is not strictly speaking a variation to the employment contract, the effect can amount to the employee working for the same employer under different terms and conditions that were originally agreed to. It is recommended that employer’s seek expert advice prior to embarking on this process as there are legislative requirements which require compliance.

In conclusion, an employer should always attempt to agree to variations in terms and conditions of employment with employees. Failure to find consensus on the variation may leave the employer with limited options to enforce the change.

Article by: Stephen Kirsten
Provincial Manager – Cape Town