IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE                                                         CASE NO. 494/2010

In the matter between:

SWAZILANDNATIONAL ASSOCIATION

OF CIVIL SERVANTS (SNACS)

(on behalf of SWAZILAND NATIONAL

FIRE AND EMERGENCY EMPLOYEES)                      APPLICANT

And

THE SWAZILAND GOVERNMENT                                1^STRESPONDENT

THE PRINCIPAL SECRETARY

THE MINISTRY OF HOUSING AND

URBAN DEVELOPMENT                                                 2^NDRESPONDENT

THE PRINCIPAL SECRETARY

MINISTRY OF PUBLIC SERVICE

AND INFORMATION                                                          3^RDRESPONDENT

CORAM:

NKOSINATHI NKONYANE                                   :           JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                              :           MEMBER

FOR APPLICANT                                                   :           A. LUKHELE

[1]     The Applicant instituted the present application on Notice of Motion under a certificate of urgency for an order in the following terms;-

“1.     Dispensing and waiving the usual requirements of the rules regarding notice, service and form of application and directing that this application be heard as one of urgency.

2.      Staying and suspending the implementation of the new four shift system until such time as discussions with regard to the system are held between the Applicant and the Respondents and until the new four shift system is agreed between the Applicant and the Respondents.

3.      That a rule nisi, to operate with interim effect, is to issue calling upon the Respondents to show cause on a date to be determined by this Honourable Court why an order in terms:-

3.1.   that pending finalisation of this application and/or determination of the matter by C.M.A.C. the Respondents be and are hereby interdicted and restrained from giving effect and implementing the new four shift work system;

3.2    that pending finalization of this application, the Respondents be interdicted and restrained from preventing the Applicant’s members from carrying out their functions following the old shift system.

1. Directing and ordering the Respondents to engage the Applicant and its members in discussions concerning all issues pertaining to the implementation of the new four shift work system.

1. That the Respondents be ordered to pay the costs of this application.

6.       Further and/or alternative relief.”

[2]     The application is opposed by the Respondents on whose behalf an Answering Affidavit was filed, deposed thereto by John Ndlangamandla who stated that he is the Under Secretary in the 2^nd Respondent Ministry.  The Applicant accordingly filed its Replying Affidavit.  The matter was briefly argued before the court on 13^th October 2010.  The parties on that day agreed to a consent order being issued by the court that they go and engage in negotiations with each other and come back to report to the court after fourteen days.  The court accordingly issued a temporary order that pending the outcome of the negotiations, the old shift system will be retained and the parties undertook before the court to commit themselves to genuine negotiations.  The matter was accordingly postponed until 29^th October 2010.

[3]     On 29^th October 2010 the matter was called and the parties reported that they were unable to reach a compromise after having met twice on 22^nd and 25^th October 2010.  The matter was postponed until 10^th November 2010 for argument and the Respondents’ Counsel filed a Supplementary Affidavit.  The consent order issued on 13^th October 2010 that the status quo should be maintained was extended to 10^th November 2010.  On 10^th November 2010 the Respondents’ Counsel formally applied to file the Supplementary Affidavit.  The application was granted as it was not opposed by the Applicant’s Counsel.  The court on that day heard full arguments and also considered all the sets of Affidavits filed including the Supplementary Affidavit.

[4]    The evidence before the court revealed that the Applicant is a duly registered union and has instituted the present application on behalf of its members who are employed by the Swaziland Government under the National Fire and Emergency Services.  The Swaziland National Fire and Emergency Services is under the Ministry of Housing and Urban Development.  The employees of the Swaziland National Fire and Emergency Services are currently working under a three shift system.  The result of this system is that the employees get paid overtime and extended duty allowance.  This arrangement is the result of a negotiated agreement between the parties signed in July 1994.  The employer says this arrangement is expensive to it, and now wants to change and introduce a four shift system.  The employer accordingly engaged in consultative meetings with the shop stewards of the Applicant.  After these consultations the employer started to implement the four shift system.  The Applicant has now come to court to seek its intervention and to stop the implementation of the four shift system because it was not engaged by the employer prior the implementation of the new four shift system.

 [5]   The question for the court to answer therefore is whether the employer was obliged to consult and/or negotiate with the Applicant union before it implemented the new four shift system.

[6]     On behalf of the applicant it was argued that the conduct of the employer of by-passing it and engaging the shop stewards was unlawful as it was contrary to the Recognition Agreement signed by the parties, providing that changes in the terms and conditions will be subject to negotiations between the parties.  It was argued further on behalf of the Applicant that the court has a duty to protect the Applicant’s right to collective bargaining enshrined in the country’s Constitution and the Industrial Relations Act, 2000 as amended.

[7]    On behalf of the Respondents it was argued that:-

7.1    The employer did consult the workers on the implementation of the new four shift system as early as February 2009.

•  The employer has the right to regulate and run the department in the best possible manner, and to improve efficiency by ensuring that employees do not work long and arduous hours.  The four shift system will result in the employees working normal eight hours per day.

7.3    The workers simply do not want the new four shift system because they will no longer work overtime and will also not get the extended duty allowance.

7.4    The new four shift system does not constitute a change in the terms and conditions of employment, it is merely a change in work practice and therefore not subject to negotiations, but the employer could only consult the employees.

7.5    The new four shift system is not part of the issues that are subject to negotiation in terms of Article 7 of the Recognition Agreement.

[8]    The parties have a Recognition Agreement in place.  In terms of Article 7 of the Recognition Agreement the parties agreed on the issues which will be subject to negotiation.  Article 7 states that:-

         “7. Subjects for Negotiation

It is agreed that the subjects for negotiation between the   Employer and the Association are as follows:-

1. Principles of Engagement Dismissal and Termination of Service, including Redundancy, Probation, Transfer, Promotion and Housing;

1. Leave and leave pay including Public Holidays and maternity leave;

1. Hours of work.

1. Sick leave and sick pay;

1. Rates of pay – normal and overtime hours – and allowances;

1. Uniforms and protective clothing;

1. Sickness benefits/medical schemes.

1. Training;

1. Safety measures;

1. Loans

1. Any other matters affecting conditions of service as may from time to time be agreed to by both parties.”

[9]     Respondents’ Counsel argued that the introduction of the four shift system does not fall in any of the above subjects for negotiation.  He argued that the introduction of the four shift system was merely a change in work practice not amounting to a unilateral change of the contract of employment.  The court was referred to the cases of A Mauchle  (Pty) Ltd t/a Precision Tools v. National Union of Metalworkers of S.A. & Others (1995) 16 ILJ 349 (LAC) and that of S.A. Police Union & Another v. National Commissioner of the S.A. Police Service & Another (2005 26 ILJ 2403 (LC).  These two cases are clearly distinguishable from the present application.  In the present application the parties expressly provided in their Recognition Agreement that matters affecting hours of work and rates of pay including normal and overtime hours and allowances would be negotiated.  The new four shift system will no doubt affect the hours of work, overtime hours and allowances.  The parties bound themselves that such items are subjects for negotiation.  The Respondents’ Counsel took the approach that since the employees would be affected positively by the change in the hours of work, in the sense that they will now work the normal eight hours, it was therefore not necessary for the employer to negotiate the changes.  We do not agree with the Respondents’ Counsel.  As long as the changes will affect the hours of work, overtime hours and allowances, the parties bound themselves that these would be subject to negotiation.

[10]   Further, the present three shift system, overtime hours and extended duty allowances are based on a negotiated agreement between the parties signed in July 1994, annexed to the Applicant’s Replying Affidavit as “SNACS 2’’. Prima facie, the employer therefore knew, or ought to have known that it had to engage in another process of negotiations with the Applicant if it now wanted to change or introduce a new four shift system. The argument by the Respondent’s counsel therefore that the employees have no right to work overtime and to be paid the extended duty allowance is clearly untenable in the present case in the light of the agreement reached by the parties in July 1994.

[11]   The Respondent’s counsel also argued that the court should not grant the order sought because in their papers they are saying they were not consulted yet in court they say there should have been negotiations. This argument will be dismissed by the court as it is clear in the main prayers, 2 and 4 of the Notice of Motion that all that the Applicant wants is that discussions  be held between the parties. Both consultation and negotiation involve discussions. The Applicant used the words consultation and discussions interchangeably in the Founding Affidavit.

[12]   A lot of time was spent on arguments whether or not the employer was supposed to consult or to negotiate with the Applicant union.  The meanings of these two concepts in labour relations were dealt with aptly by the courts in the cases of Usuthu Pulp Company t/a Sappi  Usuthu v Swaziland Agricultural Plantation Workers Union & Another, case No. 16/2006 (ICA), and that of Swaziland National Association of Civil Servants (SNACS) & Two Others v. Swaziland Government case No 331/02 (IC).  The courts pointed out that consultation involves seeking information or advice on, or reaction to, a proposed cause of action and that negotiation is used synonymously with collective bargaining, and refers to the voluntary process whereby management and labour  endeavour to reconcile their conflicting interests and aspirations through the joint regulation of terms and conditions of employment.  In case 331/02 the court held on page 6 that:-

          “The distinguishing mark between the two terms is that, in negotiations the parties work towards an agreement or compromise, whereas in consultation, though advice, permission or approval is sought, parties need not agree or reach compromise.”

          In this matter, the position of the court is that as the new four shift system will impact on the hours of work, overtime hours and allowances the parties had to engage in negotiations before it could be implemented by the employer as provided for in Article 7 of the Recognition Agreement.

[13]   The respondents had raised two points of law relating to urgency and interdict.  The matter having already argued in court on its merits and the parties having agreed to engage in negotiations with each other on 13^th October 2010, these have since been overtaken by events, especially the question of urgency. The court having already opened the door for the Applicant, the question of urgency could not be raised thereafter. On the question of a final interdict, the court comes to the conclusion that the requirements have been met by the Applicant. The Applicant does have a clear right to be engaged in negotiations by the employer in terms of Article 7 of the Recognition Agreement. Secondly, there was a reasonable apprehension of harm as the employer had started to implement the four shift system in violation of the Applicant’s right to be engaged in negotiations. Thirdly, the Applicant had no alternative relief but to approach this court on an urgent basis as CMAC has no power to issue an injunctive relief.

[14]   The next enquiry is whether the employer has fulfilled its obligation to negotiate with the employees after the consent court order issued by the court on 13^th October 2010 that the parties go to the negotiation table.  Indeed the parties did hold two meetings on 22^nd and 25^th October 2010.  The Respondents’ Counsel argued that the employer should now be allowed to continue with new four shift system as it has negotiated with the Applicant.  The Applicant’s Counsel argued to the contrary that the negotiations were a sham and did not serve any meaningful purpose as there was no commitment on the part of the employer.  The minutes of the two meetings are attached to the Respondents’ Supplementary Affidavit as Annexures “TM3” and “TM4”.

[15]   From Annexure “TM3” it seems that the parties were merely laying down the ground rules.  The Applicant union pointed out that the Government Negotiation Team (GNT) should have prepared a write up of the presentation( proposal) which would then be followed by a written response (counter proposal) by the Applicant  and that these would then form the basis of the discussions.  That suggestion by the Applicant was in fact the correct procedure to have been followed.  The party that wants the change writes the proposal to the other party.  The other party then responds by writing its counter proposal.  The chairman would then convene the meeting to discuss the matters raised which form the agenda of the meeting.  That had not happened in the first meeting.  The meeting was accordingly adjourned to allow the GNT to present a written proposal.  The GNT did that and the meeting was postponed until 25th October 2010.  On this day Applicant presented its written response to the GNT’s proposal.  The minutes of the meeting of 25^th October 2010 are contained in Annexure “TM4”.  The minutes show that the parties were engaged in the discussions with the understanding that they will have to report back to the court on 29^th October 2010 as per the consent court order issued on 13^th October 2010.  Further, the minutes show that the employer was of the view that it was a consultation meeting.  This is apparent from paragraph 77 of the minutes which states that:-

          “In response, the GNT appreciated the opportunity to consult and noted that they were sensitized of some irregularities that they had to follow up on ….”

[16]   The employer was of the view that the meeting was for consultation purposes because that was position it had adopted from the beginning when it consulted the Applicant’s shop stewards.  That, however, was before the matter was brought to the court to make a determination on the question whether or not the employer was obliged to first negotiate with the Applicant before it could implement the four shift system. The court has now made its finding on the matter. The matter having been fully argued on the merits, the court will now make a final order.  The court having found that the introduction of the four shift system is subject to negotiations in line with Article 7 of the Recognition Agreement, it follows that the Applicant’s application should succeed.

[17]   The court will accordingly make an order in terms of  prayers  2, 4 and 5 of the Notice of Motion.

          The members agree.

          NKOSINATHI NKONYANE

         JUDGE OF THE INDUSTRIAL COURT