Swaziland Manufacturing And Allied Workers Union v W And W Garments (Pty) Ltd (70 of 2006) [2006] SZIC 33 (3 May 2006)

NKOSINATHI NKONYANE ACTING JUDGE

DAN MANGO MEMBER

GILBERT NDZINISA MEMBER

FOR APPLICANT MR. S. MADZINANE

FOR RESPONDENT MR. G. MASUKU

JUDGEMENT-03/05/06

(1) This is an application by the applicant for an order in the following terms :

"1. Directing the respondent to pay the Applicants members tine additional notching allowance to its long serving employee in terms of the collective agreement dated the if* November 2004.

2. Directing the respondent to pay costs of the suit at attorney client scale.

3. Further and alternative relief."

(2) The respondent filed its replies in opposing and also raised points in limine. The applicant thereafter filed its replying affidavit.

(3) This being an application, the rules relating to application proceedings ought to apply. The applicant's application is founded upon the founding affidavit deposed to by one Sipho Mamba. Ordinarily in opposing the application, the respondent ought to have filed an answering affidavit. That is not, however, what happened in this case. Instead the respondent filed a document titled ''Respondents Replies".

(4) This was clearly an irregularity as the respondent was supposed to file an answering affidavit. The court will however disregard this technical irregularity as it was not objected to by the applicant, further, the court will overlook this technical irregularity in light of the provisions of section 11(1) of the Industrial Relations Act no. 1 of 2000 which provides that:

"The court shall not be strictly bound by the rules of evidence or procedure which apply in civil proceedings and may disregard any technical irregularity which does not or is not likely to result in a miscarriage of justice"

(5) The respondents raised seven points of law. Only one of these will be addressed by the court as the others are not strictly speaking questions of law. The only point of law raised that the court will address is the one that related to jurisdiction of this court to hear the application as there is no certificate of unresolved dispute annexed.

(6) In its submission that this court has jurisdiction, the applicant referred to the case of Mthimkhulu v Commission for Conciliation Mediation and Arbitration and Another (1999) 20 1U 620 (labour Court) at p. 623 where the Labour Court of South Africa pointed out that precedence must be given to products of collective bargaining.

(7) The rules of this court provide under rule 3 (2) that:

"The court may not take cognizance of any dispute which has not been reported or dealt with in accordance to Part VI1 of the Act."

(8) Part Vll of the Act relates to the disputes reporting procedure. In the present application there is no dispute about the terms of the collective agreement. The applicant is merely saying that the respondent is not complying with some of the terms of the collective agreement. We do not think therefore that the present application is one that is contemplated by rule 3 (2) of the Industrial Relations Act.

(9) The applicant only wants the court to make an order directing the respondent to comply with the terms of the collective agreement.

(10) The point in limine is therefore dismissed.

(11) The question before the court therefore is whether or not the respondent is complying with the terms of the collective agreement. If the court finds that the respondent is complying, cadit questio.

(12) The collective agreement was annexed to the founding affidavit and marked "SMAWU1". The relevant portion is clause 5 which provides for long service allowance, it was stated there that:

"upon signing of the agreement, long serving employees will receive a notching additional to their hourly rates as follows:

1. year = EO.S/h

2. years= EO.lO/h."

(13) In terms of clause 19 of the agreement the effective date is 1^st August 2004 until 1^st August 2005.

(14) The respondent says that it is paying the said amounts to the applicant's members. The respondent was able to refer the court to annexures XC2", *CC3" and TC4" as proof that it was paying the applicant's members the said amounts. The respondent's attorney was also able to take the court through the paces explaining the contents of the annexures. Mr. Masuku told the court that when the collective agreement was entered into, the parties were using the 48 hours rate and that after the agreement was signed, the respondent changed and used the rate that was agreed upon of 45.5 hours. Indeed annexure TC4" shows that the new rate of 45.5 hours was being used.

(15) In paragraph 10 of the applicant's replying affidavit it was stated that:

"Contents herein are denied and respondent is put to strict proof thereof.

I submit that as to whether applicants members were paid that money is a quotation of calculation with strict reference to the provisions of the Legal Notice No. 129 of 2004 of the REGULATION OF WAGES (TEXTILE AND APPAREL INDUSTRY ORDER 2004), the first schedule thereto.

For example a machinist in terms of the Wages regulations is supposed to earn E205.50per week and then divide mat with 45.5hour week.

Accordingly, I maintain and humble submit mat respondent had not implemented the agreement in respect if me additional notching allowance until the fortnight which needed on the 24^th February 2006 after receipt of this application and only back paid them for only four weeks. It remains owing our members from the 1^st August 2004 to the 27^th January 2006.

Furthermore the reduction of the hours of work from 48 hours per week to 45.5 hours was a result of the agreement. Over and above as the court directed the reduction of the weekly hourly did not necessarily entail that respondent had Improved or paid the additional notching allowance. It only sought to set the denominator for calculating hourly rates of respondents employees as the used of 48 hours per week had resulted In underpayment of the Applicant's members yet they were having a 45.5 hours week. Annexed hereto is a copy of the judgement of court marked ⁿSMAWU2".

(16) It is not clear to the court why the applicant says "it remains owing our members from the 1^st August 2004 to the 27^ January 2006" as the collective agreement clearly stated the period as between 1^st August 2004 to 1^st August 2005.

(17) From the evidence presented before the court, the respondent was able to demonstrate that it was complying with the terms as the collective agreement as was seen in annexure "CC2", ^ttCC3" and TC4".

(18) If there are any outstanding periods of time for which the workers were not paid, the parties should meet and agree on the outstanding amounts.

(19) Taking into account the aforestated observations, the application will be dismissed with costs.

The members agree

NKOSINATHI NKONYANE

ACTING JUDGE- INDUSTRIAL COURT

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