IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO. 206/06
In the matter between:
ZHENG YONG SWAZILAND (PTY) LIMITED APPLICANT
and
SWAZILAND PROCESSING REFINING
AND ALLIED WORKERS UNION RESPONDENT
CORAM:
NKOSINATHI NKONYANE: ACTING JUDGE
(Sitting alone with the consent of the parties)
FOR THE APPLICANT: N. J. HLOPHE
FOR THE RESPONDENT: B.S. DLAMINI
JUDGEMENT-13/06/06
[1] This is an application brought before the court by the Applicant against the Respondent on a certificate of urgency on the 12th May 2006.
[2] The Applicant is seeking an order in the following terms:
"1. Dispensing with the normal provisions of the rules of this Honourable Court as relate to form, service and time limits and hearing this matter as an urgent one.
2. Interdicting and restraining the Respondent and those acting at its behest from inciting and/or encouraging its members to participate in the strike action currently obtaining at Applicant's premises.
3. Interdicting and /or restraining the Respondents members and those acting at its behest from participating and/or acting in furtherance of the strike action currently obtaining at Applicant's undertaking.
4. Declaring the strike currently obtaining at the Applicant's undertaking illegal and not in conformity with the provisions of the Industrial Relations Act.
5. Declaring that the relationship between the Applicant and the Respondent is governed by the Terms and Conditions currently obtaining at Applicant's undertaking as agreed with the Swaziland Manufacturing and allied workers Union.
6. Alternatively interdicting and restraining those employees partaking in the strike from coming within a 100 metres radius from Applicant's undertaking.
7. Directing that prayers 2, 3, 4, 5 and 6 operate with immediate and interim effect pending the outcome of this matter.
8. Granting the costs of this application.
9. Granting applicant any further or alternative relief."
[3] The application is opposed by the Respondent. An Opposing Affidavit was accordingly filed by the respondent. The Applicant thereafter filed its replying affidavit.
[4] The court on the 12th May 2006, when the matter first appeared before it, granted an interim relief in terms of paragraphs 1 -7 of the Notice of Motion.
[5] The court on several occasions and for various reasons was unable to form a quorum. The parties then agreed in terms of Section 6 (7) of the Industrial Relations Act No. 1 of 2000, to have the judge hear the dispute sitting alone.
[6] The brief history behind this application is as follows: The Applicant granted recognition two unions to operate at its undertaking. These unions are the respondent union and another one by the name of Swaziland Manufacturing and Allied Workers Union (hereinafter referred to as "SMAWU").
[7] Both unions were granted recognition to be the collective representatives of the same workforce at the Applicant's undertaking. The Respondent union then approached the Applicant and requested that the parties sign a collective agreement. The Applicant refused to do that and argued that there was already in place a memorandum of agreement between it and SMAWU, and further that, as the Respondent was recognized at the discretion of the Applicant, the Applicant had the right to choose what terms and conditions would be applicable between it and the Respondent union. The Respondent union then reported a dispute with the Conciliation mediation and Arbitration Commission (hereinafter referred to as "CMAC"). CMAC was unable to resolve the dispute, and accordingly issued a certificate of unresolved dispute.
[8] After the certificate of unresolved dispute was issued, the Respondent served a strike notice and thereafter its members engaged in a strike action. The Applicant ran to court to seek its intervention and especially declaring that the strike action was unlawful for reasons of not being in conformity with the provisions of the Industrial Relations Act.
[9] The first enquiry that the court will get into is which of the two unions was first recognized by the Applicant. In the Founding Affidavit the deponent thereof stated in paragraph 6.2 that the Applicant had already recognized another trade union, SMAWU, when it granted recognition to the Respondent. The deponent further stated in that paragraph that the Respondent was granted recognition at the discretion of the employer in terms of Section 42 (3) of the Industrial relations Act of 2000. The letter of recognition was annexed and marked "ZY1".
[10] The Respondent in its opposing affidavit denied that SMAWU was the first union to be granted recognition. It stated in paragraph 10 of the opposing affidavit that the Applicant granted recognition to both trade unions by a letter dated 18th September 2002.
[11] The Applicant did not annex the recognition agreements of the unions. The court was however later served with a Memorandum of Understanding between the Applicant and SMAWU, dated 23rd September 2002.
[12] The burden of proof that SMAWU was recognized earlier than the Respondent rested on the Applicant. The Applicant failed to bring any documentary evidence to that effect. The court will therefore accept the evidence by the Respondent that both unions were granted recognition by the Applicant on the same day on the 18th September 2002.
[13] There was no evidence or indication as to what category of employees at the workplace each union was representing. At this point the observation made by the former President of this court in the case of Swaziland Pulp and Paper Manufacturing and Allied workers union v Usuthu Pulp Company Limited, (1st Respondent ) and Swaziland Agriculture and Plantation Workers Union, (2nd Respondent) Industrial Court Case No. 6/2002 is apposite:-
[14] At page 3 of the judgement the President observed that;
"The trade union as defined in the 2000 Act has revoked the restriction imposed by the definition of an industry union in the 1996 Act. The consequences of the lifting of this restriction is that a trade union may represent any category of employees under one employer provided that the employees fall within a clear classification or division, whether or not they are engaged in similar service or produce a similar product/s".
The President pointed out further on the same page that:
"The current Act, it would appear made room for a multiplicity of unions in an undertaking but did not provide for a mechanism for the entry of a new union where there is an existing recognized union."
[15] In the present case the two unions were granted recognition on the same day. There was no demarcation as to which category of employees each union was representing. This was clearly a recipe for chaos arid confusion.
[16] The evidence revealed that before the granting of the recognition to the unions on the 18th September 2002, there was in existence an informal recognition of SMAWU by the Applicant. That was why the Applicant was arguing that SMAWU was recognized earlier than the Respondent. That arrangement will not be considered by the court as it was not in accordance with the Industrial Relations Act. Section 2 of the Act states that:
"Recognition" means recognition as collective employee representative as provided by section 42."
[17] The Applicant having granted recognition to both unions, it is not clear why the Applicant thinks it was not reasonable of the Respondent to request that a collective agreement be entered into between the parties. The demand by the Respondent was not unlawful as the Applicant had failed to provide the conditions under which it was recognizing the Respondent as envisaged by Section 42(4) of the Act, that is, if one accepts the argument that the Respondent was granted recognition as a minority union.
[18] The Applicant also argued that the Respondent was granted recognition at the discretion of the Applicant in terms of Section 42(3) of the Act.
Section 42 (4) of the Industrial Relations Act, however states that :-
"Where an employer decides to recognize a trade union or staff association in terms of subsection (3), the conditions under which the employer agrees to recognize the organization shall form part of the reply to be given to the organization".
[19] The provisions of this section are peremptory that the conditions of the recognition shall form part of the reply to the union. The Applicant failed to provide the conditions in this case. The Respondent therefore took it upon itself to approach the Applicant to have a collective agreement entered into between the parties. Can the Respondent be faulted for the step that it took? It clearly cannot as it became obvious that its recognition was in name only.
[20] The next question that must address is who was supposed to vote. As already pointed out, there was no indication as to which category of employees each of the union was going to represent. The Applicant's argument was that the respondent was representing the minority workers. The basis of this argument was not clear. If it is accepted for a moment that the Respondent represented the minority workers, there was no evidence as to how many were these workers. There was no evidence that a majority of them did not vote in favour of the strike.
[21] The onus was on the Applicant to show that the majority of the Respondent's members did not vote in favour of the strike action. The Applicant clearly failed to discharge that onus.
[22] The other argument raised by the Applicant was that the strike was illegal because no sufficient notice of the strike action was given by the Respondent. The Applicant argued that it was given less than forty eight hours as required by the Act.
[23] The evidence revealed that the notice to go on strike was given to the Applicant on Friday the 5th May 2006. The Applicant received the notice at 15:15 hours. The Respondent said the strike action was going to commence on Tuesday the 9th May 2006 at 07:30 hours. Clearly that was short notice as the forty eight hours period was going to lapse at 15:15 hours on that day.
[24] The strike did not however commence on the said time and date. The evidence revealed that Applicant objected to the short notice and also to the inclusion of Saturday in the computation of the hours. The Respondent responded to that objection by a letter dated the 8th May 2006 marked "ZY8". In that letter the respondent reminded the Applicant that Saturday was a working day at its undertaking. In that letter the Respondent agreed to extend the date of commencement of the strike to Wednesday 10th May 2006.
[25] That letter states in part as follows:
"3. Again kindly appreciate that Saturday is a working day in your undertaking hence we have given you proper notice in terms of the Act.
4. However in recognition of your proposal for an urgent meeting you are hereby advised that the commencement date of the intended strike shall be the 10th May 2006 at 0.700 hrs if no solution is found on the meetings of the 9th instant."
[26] The letter of the 8th May 2006, was clearly not a second strike notice. The Respondent was extending the commencement date of the strike action in view of the meeting to be held by the parties on the 9th May 2006. The Respondent having extended the commencement date of the strike action, the argument that the Respondent did not comply with the provisions of the Act in giving the strike notice, will therefore be dismissed.
[27] The last issue that the court will address is that of the distance that must be maintained by the workers engaged in the strike. The employees have a right to engage in a lawful strike action. During the strike the employees have a right to express their demands to the employer. In order for the workers to effectively express themselves, they are entitled, if they are not violent, to be within a reasonable distance of the employer's premises.
[28] The court was also asked to make an order declaring that the relationship between the Applicant and the Respondent was governed by the terms and conditions currently obtaining at the Applicant's undertaking as agreed upon with SMAWU. There was no sufficient evidence placed before the court to enable it to make an order in this regard. The conditions under which each of the unions was granted recognition were not clear. The evidence only showed that they were granted recognition at the same time to represent the same workers at the Applicant's undertaking.
[29] Taking into account all the afore-mentioned observations, the court will make the following order:
1. That the rule nisi is discharged.
2. That the parties are to agree on a reasonable distance to be maintained by the striking workers.
3. That the costs will follow the results.
NKOSINATHI NKONYANE
ACTING JUDGE - INDUSTRIAL COURT
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