In response to POPCRU`s letter of 7 July 2005, management wrote a letter of 18 July 2005 in which it reiterated the observations made to sapU, but expressly denied that the circular constituted a unilateral change in the terms and conditions of employment. Let us first turn to the court order: on March 18, 2005, my colleague Broster AJ ordered a transaction agreement relatively concluded by sapS, Western Cape and SAPU. The agreement was reached on the basis of an urgent request to suspend the execution of the instructions of the Regional Commissioner for the Southern Cape of 17 February 2004 and 9 March 2005 concerning flexible working hours and weekend services. Paragraph 3 of the Concordat Agreement stipulates that under customary law, an employer who unilaterally modifies the terms of the employment contract violates the contract and gives workers the right to terminate, claim damages or pursue a particular benefit. Similarly, non-compliance by an employer with the provisions of a collective agreement governing terms and conditions of employment may constitute a unilateral offence. Article 1 of Agreement 5/2002 made it a condition that a worker`s normal working hours `be carried out in shifts of 8 or 12 hours`. According to the Commissioner, the unions agreed on this point, forcing both members and non-members to allow workers to work in both shifts. The choice of the stratum to be applied is a matter of working practice that falls within the prerogative of the Commissioner. In addition, it is also alleged that neither the competence in the field of unfair labour practices nor Agreement 5/2002 are entitled for trade unions to be consulted beforehand, so that the Commissioner re-exists his prerogative to apply the 8-hour bracket adapted to all surfaces.
Mr. Bruinders, who appeared on behalf of the respondents, responded that when the Commissioner made the decision, he was not exercising public authority or performing any public function. Regulation 31 has two objectives. Article 31(a) authorises the Commissioner to fix the weekly working time and the daily working time of workers. Rule 31(b) authorises it to fix the opening and closing hours of the workplaces it controls. M. Bruinders argued that the fixing of the opening and closing hours of police services was clearly the exercise of public power or the exercise of a public function, whereas the fixing of daily working time or shiftwork time would not be so, in particular because it derives from the prerogative of management in the conduct of employment relations. and, as he saw, an authority that is in the collective agreement. The next question is whether there was a contractual obligation to consult with workers or trade unions before changing labour practices. . .