Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers Union of South Africa (NUMSA) and Others (D68/12)  ZALCCT 6 (15 February 2012)
Unless specifically entrenched contractually, the right to regulate shift patterns is a work practice that falls within the prerogative of the employer.
The employer sought a declarator that its proposed changes to its shift patterns did not constitute a unilateral change to the employees' terms and conditions of employment. The purpose of seeking this declaratory order was to get an interdict to prevent the employees from embarking on a strike until they complied with the provisions of s 64 of the LRA.
The employer's Durban factory production is designed in accordance with 24 hour 7 day week production schedule. In April 2004, the parties entered into a collective agreement regarding the implementation of a 12-hour 3-shift system in respect of those employees employed in the Durban factories "truck and radial [tyre] department". At a later stage the parties orally agreed to extend the shift system to the rest of the applicant's factory.
Despite the fact that the parties recorded that the stated intention or purpose of the collective agreement was '... for [Apollo] to cease operating illegally and in contravention of the Basic Conditions of Employment Act and to implement a shift pattern which complies with the requirements of the Basic Conditions of Employment Act', it appears that the newly shift pattern did not achieve this purpose and the employer was obliged to apply for ministerial determinations in accordance with the Basic Conditions of Employment Act (BCEA), which were granted, the last of which expired on 30 June 2011.
Shortly after the expiry of the last determination, the employer commenced a consultation process with the union with a view to amending the shift patterns set out in the agreement of 2004.
This case confirms the distinction between terms and conditions of employment -which must be negotiated and agreed, before being amended - and work practices - which may be the subject of consultation or negotiation but in respect of which the employer may thereafter act unilaterally.
This case also involved an investigation as to what constitutes a collective agreement. One of the restrictions on the right to strike (in s 65 of the LRA) is the existence of an applicable collective agreement regulating the issue in dispute. That collective agreement can then vary individual contracts of employment in terms of section 23(3). The court applied the definition of a collective agreement in s 213, which requires it to be in writing to constitute a collective agreement for the purposes of the LRA. Extract from the judgment:
 I am not persuaded that there is any merit in the distinction the parties wish to draw from the terminology or that these terms are relevant to the determination of this dispute. The crux of the issue to be decided is simply this: Do the applicant's proposed changes to a shift system (to use a neutral term) constitute a unilateral change to terms and conditions of employment or does it fall within the realms of a work practice and accordingly fall with management's prerogative to effect the change. Accordingly this matter will not be determined by the details of the proposed changes but whether in the specific circumstances of this matter the shift pattern recorded in the collective agreement constitutes a term and condition of employment.
 The parties were unable to reach consensus on the proposed changes during the consultation process and the applicant gave notice that it intended implementing the changes with effect from 1 February 2012.
 The respondents relied on the collective agreement and the extension thereof as the basis upon which the shift patterns had been agreed contractually to constitute part of the second and further respondents' terms and conditions of employment.
 It is necessary however at the outset to consider whether a change to shift patterns constitutes a unilateral change to terms and conditions of employment and what constitutes the exercise of the applicants managerial prerogative. The issue of what falls within the managerial prerogative to change and what constitutes a change to terms and conditions of employment has been dealt with extensively in our courts.
 In two recent decisions of this Court, the Court has accepted that a change to shift systems does not in itself a unilateral change to an employee's terms and conditions of employment but merely a change to the employer's work practice. In both matters, the court held that in the absence of a contractual right to work the previously agreed shift pattern the regulation of shift times constituted a work practice and fell within management's prerogative to change.
 The respondents argued that the collective agreement had established this contractual right to work the agreed shift patterns change and accordingly they formed part of the second and further respondents' terms and conditions of employment.
 Whilst conceding that the agreement specifically refers only to employees in the applicant's "truck and radial [tyre] department" the respondents argued that when the shift patterns were by agreement extended to the rest of the factory the terms of the agreement became terms and conditions of the employees to whom the contact was extended. It was common cause that the extension of the agreement was not recorded in writing.
 Collective agreements are defined in the LRA as
''collective agreement' means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-
(a) One or more employers;...'
 Section 23 of the LRA regulates the Legal effect of a collective agreement:
 Considering these provisions of the LRA, the first question to be answered is whether the collective agreement which was orally extended to the remaining employees satisfies the requirement that a collective agreement must be in writing. The second issue is whether the agreement 'regulates terms and conditions of employment' and therefore satisfies section 23 (3) and whether the applicant is entitled to change the shift patterns in accordance with the agreement.
 Regarding the first question, I am of the view that the extended agreement is not a collective agreement in respect of those of the second and further respondents other than those employed in the applicant's "truck and radial [tyre] department". The agreement in so far as they are concerned is not a collective agreement in that it is not a written agreement and accordingly does not alter their terms and conditions of employment. The determination of their shift patterns remains within the applicant's prerogative as a work practice. However even if I am wrong in this, the collective agreement, for the reasons set out below contractually entitles the applicant, after consultation, to 'discontinue or modify' the shift pattern to 'achieve its operational requirements', and these employees are in the same position as are the employees in the applicant's "truck and radial [tyre] department"..
 Secondly, as regard the effect of the collective agreement on the terms and conditions of the employees in the applicant's "truck and radial [tyre] department", it is clear from the wording thereof that it was always the intention of the parties that it should regulate their terms and conditions of their employment.
 It is however necessary to consider the extent to which the agreement, which regulates the terms and conditions of employment of the employees employed in the applicant's "truck and radial [tyre] department", allows the applicant to change the shift patterns after consultation, specifically given the provisions of clause 12 of the agreement.
 This clause reads as follows:
In the event that demand for product declines, or that the 12-hour 3-shift system proves not to be cost effective, after consultation between the parties, Dunlop [applicant] will discontinue or modify the 3-shift system to achieve its operational requirements'
 The term operational requirements is a term of art defined in the LRA as follows: 'operational requirements' means requirements based on the economic, technological, structural or similar needs of an employer;
 Having regard to the reasons advanced by the applicant for wanting to change the shift patterns it is clear that they fall squarely within the definition. Of operational requirements. This being so the applicant was required merely to consult prior to deciding to 'discontinue or modify' the shift system. This it has done.
 It is clear that unless specifically entrenched contractually, the right to regulate shift patterns is the prerogative of the employer. In light of the specific wording of clause 12 of the collective agreement, I am of the view that it does no more than entrench in the respondents' terms and condition of employment the applicant's right to regulate shift patterns. The agreement specifically records the applicant's contractual right to, after consultation, to 'discontinue or modify' the shift system in order to 'achieve its operational requirements'. It is trite that consultation does not as a prerequisite require that the parties will agree. It simply requires that the applicant in this matter engage the respondents in consultation before it changes the shift pattern.
 I am therefore of the view that whilst the shift patterns which are the subject of the collective agreement are terms and conditions of employment in respect of the employees in the applicant's "truck and radial [tyre] department" so too does the collective agreement regulate the applicant's right to discontinue or modify these shift patterns to achieve its operational requirements. The import of this clause of the agreement is no more than a recordal of the applicant's right to change shift patterns, which are terms and conditions of employment, after consultation.
 In the circumstances, I am satisfied that in respect of those respondents other than those employed in the applicant's "truck and radial [tyre] department" the new shift patterns do not constitute a change to their terms and conditions of employment and that the applicant was entitled to change the shift patterns. Regarding those respondents employed in the "truck and radial [tyre] department" the applicant, by virtue of clause 12 of the collective agreement, was entitled to change the shift patterns despite the fact that they constituted terms and conditions of employment...
 Accordingly, the second and further respondents may not rely on the provisions of section 64(4) of the LRA and are required to tender their services in accordance with new shift patterns.
 This does not however preclude the respondents pursuing the dispute regarding the imposition of the new shift patterns as a dispute of interest in accordance with the provisions of section 64(1) of the LRA.