Davies Ndumiso Sibanda
MANY workers allege unfair variation of their employment contracts when employers withdraw certain benefits arguing that they can no longer afford to give the benefit to the employees or argue that the employer has changed the payment model.

When workers go to Works Council to make a request for certain benefits and the employer agrees to the workers’ request, it does not necessarily mean there is a binding agreement between the parties, which cannot be unilaterally altered by one of the parties.

The starting point is to look at how the benefit was delivered to the workers. It is important to read the wording of the document that delivered the benefit to the workers.

In the majority of cases the benefit can be delivered as a policy decision or a mutual agreement.

Where workers go to the employer and ask for financial cushioning due to economic hardships, the employer may give workers an interim wage increase, which will be factored into wages once the NEC wages are announced.

Here workers cannot cry foul if the employer collapses the increase into the next wage increase. There are cases where workers can get a hardship or cost of living allowance accompanying pronouncement by management that the allowance shall be available depending on affordability.

When the employer can no longer afford to pay, he can withdraw the allowance at any time but has to demonstrate to the workers he can no longer afford to pay.

There are allowances such as transport and housing that are given to workers as a policy decision.

Where the employer provides housing or transport the allowance can be withdrawn to avoid double dipping.

However, the position is different where the allowances are part of the employment contract or collective bargaining agreement (CBA) then the employer will have to negotiate with workers. However in most cases CBAs allow for either options.

Where a benefit is sitting on a policy decision then the employer reserves the right to alter it or withdraw it although the withdrawal must be reasonable and done in a reasonable manner.

On the other hand, where parties had negotiations, which ended in an agreement that was signed and witnessed by both parties, then a party that wants to withdraw from the agreement will have to negotiate its way out.

There are, however, agreements that are embedded in minutes. In such cases we read the wording of the minutes. If the minutes say the parties “agreed” and were signed and confirmed by the parties then the agreement will be binding.

On many occasions employers are reluctant to sign Works Council agreements preferring to make policy decisions as they fear that once workers are given a benefit it is unlikely that the workers can agree to vary or diminish the benefit to their detriment.

In conclusion, before claiming a right, workers have to check and establish how the benefit was given and if an agreement was reached, the employer has to negotiate his way out and if a policy was crafted, the employer can do anything about it in the interest of the business.