adminLabour Column Davies Ndumiso Sibanda
WITH the economic meltdown continuing to affect more businesses many employers find themselves having to look very closely at all costs including the cost of labour resulting in a number of unilateral decisions that workers see as violating their contractual rights.
Common areas of unilateral decisions by employers include salary reduction, changes in commission structure, withdrawal of fuel allowance, imposing punitive restrictions on use of company vehicles, downgrading hotel grades to be used, cancelling overtime payment, removing or reducing schools fees allowances and many others.
At times the employer has good reasons for wanting to cut costs through withdrawal of a costly benefit and if properly explained workers are likely to co-operate and even offer better solutions. The problem arises when the employer unilaterally takes a decision without consulting or getting agreement of workers.
Employers need to appreciate that they do not have a blank cheque to manage; there are occasions where the employer is required by law to consult workers first. Section 25A of the Labour Act spells out areas where consultation of workers is a legal requirement.
However, the Act is also express in that where the employer has consulted and workers disagree, he is only obligated to give workers the reasons for not accepting the workers’ position and can proceed thereafter with his plans.
The spirit of the legislation in consultation is to ensure the interests of the workers are captured in management decision-making as the employer exercises his right to manage.
The employer’s right to manage however does not go as far as granting the employer the right to unilaterally change the contract of employment. There is a legal requirement for parties to agree to changes to the employment contract.
Unilaterally changing contracts of employees, results in a poisoned working environment and in most cases workers litigate and either the employer will be forced to backtrack or courts will force the employer to restore the workers’ contractual rights at a huge cost financially and in terms of labour relations management.
Where the employer unilaterally changes the contract of employment, the workers’ relief is to approach the Labour Officer in terms of Section 93 of the Labour Act who will conciliate the dispute and if not successful will refer the matter to arbitration.
Workers however need to be careful in that not all benefits are contractual. Those benefits that originate from policy at times may be withdrawn without any breach of the contract. The custom and practice argument does not always work. It all depends on how the policy decision was made and how the benefit was given to workers.
Those benefits that flow from collective bargaining agreements cannot be unilaterally varied. There is a need for the employer to negotiate any variation and parties reach an agreement before any changes are made.
In conclusion with the present harsh economic environment, workers are also keen on keeping jobs and as such when approached correctly they will be willing to negotiate some benefits downwards thus avoiding complications related to unilateral variation of contracts.
l Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235
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