Smawu And Others v Ngwane Mills (Pty) Ltd (623 of 2009) [2010] SZIC 35 (17 March 2010)

IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE

CASE NO. 623/09

In the matter between:

SWAZILAND MANUFACTURING & ALLIED

WORKERS UNION 1^st APPLICANT

JOSEPH SIBANDZE 2^nd APPLICANT

PATRICK MDLULI 3^rd APPLICANT

PETER SIMELANE 4^th APPLICANT

TERENCE MNQUBE 5^th APPLICANT

BONGINKHOSI DLAMINI 6^th APPLICANT

AND

NGWANE MILLS (PTY) LTD RESPONDENT

CORAM:

D. MAZIBUKO: JUDGE

A. M. NKAMBULE: MEMBER

M. MTHETHWA: MEMBER

FOR APPLICANT: SHADRACK MASUKU

FOR RESPONDENT: LINDELWA MNGOMEZULU

1. The 1^st Applicant before Court describes herself as Swaziland Manufacturing and Allied Workers Union, a trade union duly registered in terms of section 27 of the Industrial Relations Act No. 1/2000 as amended.

2. The 2^nd to 6^th Applicants are members of the 1^st Applicant and serve in the shop stewards committee. The 2^nd to 6^th Applicants are employees of the Respondent and have filed affidavits in support of the 1^st Applicant's application.

3. The Respondent is Ngwane Mills (Pty) Ltd a company duly incorporated in accordance with the laws of Swaziland.

4. The 1^st Applicant and Respondent have signed both a Recognition Agreement and a Collective Agreement, the latter has been updated from time to time.

5. During the year 2008 the parties entered into negotiations with an intention to conclude a new collective agreement. In the course of negotiation each of the parties were able to identify areas of interest which should be debated upon and regarding which it was desirable that an agreement be made. Despite their efforts the parties failed to arrive at an agreement and thereafter declared a deadlock. The parties issued a joint statement in writing in which they listed items on which they were deadlocked. This statement was by consent of both parties sent for conciliation to CMAC (Conciliation, Mediation and Arbitration Commission) established in terms of section 62 (1) as read with section 64 (1) (b) and (c) of the Industrial Relations Act 1/2000 as amended. In their joint statement the parties submitted to CMAC the following items for conciliation; wages, housing allowances, food rations, medical aid and pension fund.

6. An attempt to resolve the deadlock at CMAC failed. Therefore the dispute which had been taken to CMAC remained unresolved. In terms of procedure, CMAC had to issue a 'certificate of unresolved dispute.' While awaiting delivery of the 'certificate of unresolved dispute' the Applicants had a change of heart. They indicated to the Respondent that they had a mandate to conclude an agreement with the Respondent and they withdrew the dispute from CMAC.

7. A collective agreement for the year 2008/2009 was subsequently drawn and signed by the parties on the 16^th February 2009. That agreement is now the subject of litigation before Court.

8. It is not clear as to why the Applicants delayed in coming to Court on an agreement which was signed on the 16^th February 2009. From the Notice of Motion it appears that the cause of action was instituted on the 10^th November 2009.

9. The Applicants have moved an application before Court in which they claim relief as follows;

"1. That the Collective Bargaining Agreement signed the 16 February, 2009 be for the period; 1^st October, 2008 and ending on the 30^th September, 2009.

2. That the improved terms and conditions of employment including wages shall commence on the 1^st October, 2008 and end on the 30^th September, 2009.

3. That clause 26 of the Collective Bargaining Agreement maintains its status quo as per the Collective Bargaining Agreement 2007/2008.

4. That the commencement date of 16^th February, 2009 is declared null and void and of no force or effect.

5. Directing Respondent to pay costs of this application.

6. Granting Applicants any further or alternative relief.

10. The first complaint which was raised by the Applicants is that the 2008/2009 agreement though signed on the 16^th February 2009 should have retrospective effect. The agreement should start operating from 1^st October 2008. It should operate for a period of one (1) year and end 30^th September 2009.

11. The agreement which is the subject of litigation contains rights and interests which are of benefit to the Applicants. Some of these rights have economic value such as wages. Those rights and benefits will be devalued if the commencement date of the agreement has no retrospective effect. The Applicants will not be able to claim back-pay if the commencement date is not altered from 16^th February 2009 to 1^st October 2008.

12. According to the Applicants the 2008/2009 agreement was drafted by Respondent. In drafting the agreement the Respondent acted unlawfully and unfairly when it inserted therein the commencement date as 16^th February 2009 instead of 1^st October 2008. The conduct of the Respondent was a unilateral act. The consent of the Applicant was neither solicited nor obtained.

13. According to the Applicants the parties had previously agreed to the 1^st October 2008 as the commencement date of the 2008/2009 agreement. In paragraph 18.2 of the founding affidavit the 1^st Applicant states as follows;

"18.1 DURATION: The management negotiating Committee changed the duration period from the previously agreed 1st October, 2008 to now 16^th February 2009 or as at the date of signing: This was the 16^th February 2009."

14. The Applicants do not state where and when was the alleged
previous agreement entered into. It is clear from the quotation in paragraph 13 of this judgment that the alleged agreement preceded the 2008/2009 written collective agreement, the latter being the subject of litigation. It is not stated whether the alleged previous agreement was oral or in writing. If it was in writing a copy of that agreement is not before Court. If oral, the terms thereof have not been pleaded in the papers before Court.

The Court is not in a position to refer to the alleged previous agreement. There is no evidence before Court to support the existence of the previous agreement as alleged by Applicants. The Applicants have the onus to support their allegation with evidence. The Applicants have failed to discharge that onus regarding the alleged previous agreement. According to the evidence before Court the 2008/2009 written agreement is the only collective agreement between the parties for the relevant period.

15. The 2008/2009 agreement states as follows in clause 31;

"DURATION

The duration of this agreement, which shall commence on the 16 February 2009, shall be for a period of at least twelve months and will remain in force until at least 30 January 2010. This matter is subject to court interpretation. Any changes or amendment shall be effected as per Court instruction."

(emphasis added)

From the above quotation it appears the parties agreed in writing that the commencement date of the 2008/2009 agreement shall be 16 February 2009. The wording is clear and requires no interpretation or instruction.

16. In addition, clause 23 of the same agreement states as follows;

"All employees, as defined in Section 4.2 of the Recognition Agreement, shall have their hourly wages increased by 10.0% with effect 16^th February 2009 as per the grades set out below. This matter is subject to Court interpretation of clause 31: Duration of this collective agreement. Any changes or amendment shall be effected as per Court instruction".

(emphasis added)

A reading of clause 23 of the 2008/2009 agreement reveals that it is consistent with clause 31. Both clauses confirm that the commencement date of the 2008/2009 agreement is 16 February 2009.

17. Furthermore, clause 33 of the same agreement states as follows;

"By signing this Agreement both the Employer Representatives and the Union Representatives confirm that they fully understand the contents and the effects of this Agreement and undertake to deal with all matters arising from the interpretation of this Agreement strictly in accordance with the Ngwane Mills/SMAWU Recognition Agreement, the Industrial Relations Act no. 1 of 2000, the Employment Act of 1980 and the Employment (Amendment) Act No. 5 of 1997. It is further understood that this agreement replaces all previous agreements and/or matters arising out of previous agreements."

(emphasis added)

The Applicants' allegation that the parties had a previous agreement regarding dates of commencement of the 2008/2009 agreement is contradicted by clause 33 quoted above. It is the finding of the Court that the 2008/2009 agreement replaces all previous agreements and matters arising therefrom. The written agreement is the final record of the negotiation between the parties. As stated in paragraph 14 of this judgment, there is no evidence that there is an agreement made by the parties prior to the 2008/2009 collective agreement concerning some terms which have since been altered in the said collective agreement. Even if there was such previous agreement it would be inadmissible by virtue of section 33 of the 2008/2009 Collective agreement.

1. The Applicants do not state the reason they signed an agreement whose contents they now contest. At the hearing of this matter the Applicants' representative a certain Mr. Masuku admitted that the signatories to the 2008/2009 agreement who represented the Applicants were at the time of signing aware of the contents of clauses 23, 31, and 33 of the said agreement. Actually the said Mr. Masuku is one of the signatories to the agreement in his capacity as Secretary General of the 1^st Applicant. It therefore follows that Mr. Masuku and his co­signatories signed the agreement with full knowledge of its contents and thereby assented to the contents therein.

2. While the parties were engaged in negotiation they exchanged a series of letters. One of those letters dated 25^th August 2008 written by Respondent to Applicants is attached to the Applicants' founding affidavit and is marked 'SM2' In clause 6 of that letter, it reads as follows;

"6. Backpay

It is in the best interest for all parties that we conclude the negotiations process timeously, there will be no back pay effected if we fail to meet the deadline (agree and sign-off) on the anniversary of the current existing agreement - i.e. 01^st October 2008.

The effect of this letter is that any subsequent agreement will not be backdated to 1^st October 2008 or any other date. This fact was brought to the Applicants' attention as early as 25^th August 2008.

20. In paragraphs 9.2 of their founding affidavit the Applicants state
as follows;

"On the 25^th August, 2008 negotiations commenced between the two [2] parties and the Respondent presented her counter proposals to the Applicants' party; which is annexed and attached hereto and marked "SM2."

21. The Applicants admit to have received the letter marked "SM2'.
Further the Applicants admit to have read and understood its
contents. It is the Applicants evidence that the letter 'SM2" contained the Respondent's counter proposal in response to the 1^st Applicant's proposals dated 24^th July 2008. If the Applicants were not in agreement with clause 6 of annexure 'SM2' they should have protested there and then and engaged the Respondent in further negotiation regarding the commencement date of the 2008/2009 collective agreement. There was no point in the Applicants signing an agreement which contains terms
which the Applicants do not accept. The Applicants' first complaint has no merit.

22. The second complaint raised by Applicants relates to payment
of bonus to the Applicants for regular and punctual attendance at work. According to Applicants the parties had agreed as follows in the 2007/2008 collective agreement on this item;

"ATTENDANCE AND TIME KEEPING BONUS

An attendance bonus will be paid fortnightly based on 100% attendance and 100% time keeping for that period subject to an allowance of 15 minutes accumulated lateness for that period."

23. In the 2008/2009 collective agreement the parties have provided
differently in clause 29 regarding this item as follows;

"An attendance bonus will be paid fortnightly based on 100% attendance and 100%) time keeping for that period."

According to the Applicants the removal of the 15 minutes tolerance for late coming in the 2008/2009 agreement was neither negotiated nor agreed to. In the absence of an antecedent agreement between the parties, the Respondent should not have inserted a different clause in the 2008/2009 agreement but should have inserted the 2007/2008 clause without alteration. The Applicants had assumed that the clause regarding attendance bonus in the 2007/2008 agreement will be repeated verbatim in the 2008/2009 agreement. That assumption, according to Applicants is based on the fact that the parties did not agree to change that clause in their 2008/2009 negotiation.