Increases in remuneration, as well as improvements in employment conditions and workplace practices, are generally well received by employees. But how does an employer introduce changes that are not to the employees' advantage without damaging the employment relationship or facing legal challenges?
The employment relationship does not remain static, but evolves with time. Although every employment relationship is underpinned by a contract of employment – which may be concluded in writing, verbally or even tacitly – the content of the contract is subject to change due to changing market and other circumstances. This may take the form of a change in terms and conditions of employment, the introduction of new workplace rules, expansion of employee responsibilities and the like. While employees will seldom challenge change that is to their advantage, e.g. improved benefits or promotion, things can be very different when the change is to their disadvantage, depending on how the change is introduced and managed.
Take the situation, for example, where the company embarks on a process of restructuring due to operational requirements arising from changing market circumstances, or the introduction of new technologies. This may go hand-in-hand with a proposal to employees that they should, for example, accept increased responsibilities, or a downgrading in status or benefits. What limitations are there on management’s ability to drive these changes and what opportunity is there for employees to resist the change?
The law clearly permits change in the workplace: it assumes that companies have to adapt to changing circumstances and that employees must be prepared to accept a measure of change during the existence of the relationship, within certain parameters, of course. Those parameters are, firstly, that the change must be introduced in a procedurally fair manner, i.e. through consultation. The relevant provisions of the LRA must be adhered to. Secondly, agreed terms of employment cannot be altered unilaterally by the company. The common law adage, "a deal is a deal", applies here. This means that management will have to negotiate and agree with employees before agreed terms (such as a guaranteed thirteenth cheque) can be changed. However, failing agreement, management has some powerful means available to try to enforce consent, including locking out employees who resist, or retrenching those who refuse to agree. The latter option is not so simple and would have to be implemented with great caution because of certain relevant legal constraints..
If the change does not involve agreed terms of employment, but workplace "practices", or rules that management has previously introduced unilaterally, e.g. performance standards or rules of conduct, management does not require employees' consent to implement and enforce the change, but is required to consult with affected staff before implementation.
Consultation is not simply a process of one-way communication in which management tries to "sell" their views to staff. In fact, it requires that management should inform staff about their intentions; provide reasons and relevant information in support thereof; invite representations from staff; listen to and respond to staff members' input if management does not agree with it; and allow a reasonable time for implementation.
Unfortunately many organisations, when they implement change, focus only on the legal risks involved. Very often the implications that change hold for relationships -, both for staff who are affected and those who are not (but who observe what’s happening to others in their organisation) -are huge. If change is managed well, with a genuine desire on the part of management to involve staff and to provide sufficient opportunity for input, it makes the implementation and acceptance of change so much easier. It also builds trust. On the other hand, if change is managed without due regard to the implications for workplace relations and trust, it becomes so much harder to make the changes work. Trust levels also suffer tremendously, not to mention the impact it could have on the organisation’s core values and public value statements.
To conclude: while change is inevitable in today’s organisation, and while employees must be prepared to adapt so that their employer can meet the challenges it faces, management needs to be alert to the dangers of driving change by merely looking at the financial side of things and doing the minimum that the law requires of them. While these factors are obviously important, the need for management to build or maintain credibility and trust when important decisions are taken that impact on staff is equally important. This is where genuine consultation, as opposed to merely going though the legal motions, is of critical importance..
Barney Jordaan of Maserumule Employment Consultancy (Pty) Ltd for www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or email@example.com.