IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 334/2011
In the matter between:-
ZHENG YONG SWAZILAND APPLICANT
SWAZILAND MANUFACTURING 1STRESPONDENT
& ALLIED WORKERS UNION (SMAWU)
SWAZILAND PROCESSING REFINING 2NDRESPONDENT
ALLIED WORKERS UNION
T.A. DLAMINI : ACTING JUDGE
D. NHLENGETFWA : MEMBER
P. MAMBA : MEMBER
FOR APPLICANT : Z. SHABANGU
FOR 1ST RESPONDENT : NO APPEARANCE
FOR 2NDRESPONDENT : N. MANANA
Dispute between Employer and Employee unions – Interdict on illegal strike -Declaratory order on dispute not conciliated under s76 of Industrial Relations Act - strict observance of the dispute resolution procedures under Part VIII of the Act.
JUDGEMENT – 19.03.2012
1. The Applicant in this matter approached this Court on an urgent basis seeking an order in the following terms:
- Interdicting and/or restraining the Respondents and/or their members employed in the Applicant’s establishment from engaging in a strike action in an attempt to force the Applicant to pay them seventeen (17) days annual leave;
- Declaring that the Applicant has a right in law to grant the Respondents’ members employed in its establishment thirteen (13) days annual leave/holiday with full pay or such other number of days as may be stated in law from time to time by legislation or other legal instrument;
- That costs of suit be paid by the Respondents.
- Directing that pending finalisation of this application, an interim order be granted in terms of prayers 1 and 2 herein above, to operate pending finalisation of this application.
- Further and/or alternative ancillary relief.
2. The 1stRespondent did not file any papers in opposition whereas the 2ndrespondent vehemently opposes the application and duly filed an affidavit to that effect.
3. The case of Applicant is as follows;
- In the year 2008, following the Applicant company’s above average general performance and financial position it offered its employees bonus benefits for that current year to commend them for their efforts in maximizing productivity and for having met set targets for that year. These bonus benefits included additional bonus pay, additional annual holiday or leave days with full pay that amounted to 17 working days.
- Apparently in the following year the Applicant’s business slumped as a result of the increase in the number of factories engaged in the same business as the Applicant and the now proverbial global economic meltdown. As a result it could not grant its employees the bonus leave days but undertook to grant only the statutory 12.5 days annual leave with full pay.
- The employees embarked on a strike action to force the Applicant to pay them the 17 days and this industrial action forced the Applicant to pay the 17 days. This, the Applicant contends, was done to avoid further unrest.
- Again in the year 2010 the employees engaged in another strike action still demanding payment for 17 days annual leave. The Applicant approached this court for remedy and that strike action was declared illegal.
- In December 2011 the Applicant employer engaged the Respondent unions to have the issue of the 17 days annual leave addressed but the Respondent unions insisted that their members, who are the Applicant’s employees, should be paid the 17 days leave. This, apparently, is despite the fact that the Applicant’s financial position is precarious and as such it cannot afford to pay the over 2500 employees the 17 days annual leave.
4. It is on that basis therefore that the Applicant approached this court in the manner alluded to herein above seeking the orders therein spelt out.
5. The 2ndRespondent, as mentioned afore, opposes this application by the Applicant and in that regard filed papers in opposition in which it raised a point in limine and further answered to the Applicant’s application.
- The point of law raised by the 2ndRespondent relates to the affidavit of Judy Kwok. The contention by the 2ndRespondent is that it does not disclose sufficient averments to prove authority for the said Judy Kwok to institute the present proceedings on behalf of the Applicant, a juristic person. On the date set for arguments of this matter this point was argued simultaneously with the merits of the matter.
6. Mr. Shabangu, the Applicant’s counsel in this matter, submitted that the Wages Order for the Textile and Apparel Industry allows 12.5 leave days as opposed to 17 days. However, and at its own discretion, the employer graciously increased the leave days of its employees to 17. This he argued, did not then mean that because the employer granted the employees bonus leave days in 2008 then even in the next year it was now bound to grant the extra 4.5 days. Shabangu’s contention herein was that the extra 4.5 days was granted gratuitously by the employer because of its good financial standing then. There was no legal requirement that the employer should pay 17 days annual leave, he further submitted.
7. Counsel for the 2ndRespondent, Mr. Manana, on the other hand
started of his arguments by addressing the point of law raised. Manana argued that the Applicant in this matter is a juristic person and as such the deponent to its founding affidavit, Judy Kwok, should disclose sufficient averments to prove authority to institute the present proceedings on behalf of the applicant.
8. On the merits, Manana’s arguments were to the effect that the Regulation of Wages Order for the textile and apparel industry sets minimum standards that have to be adhered to. In the case of the present parties before court, they negotiated and agreed on the 17 days. As such the employer cannot then unilaterally reduce the leave days.
9. Further argument by Manana was to the effect that the Applicant had not engaged the Unions before bringing the present proceedings to this court. As such, as employee representatives, they were not aware that indeed the company was in a precarious financial position.
10. It is trite law that in cases of juristic persons, such as the present Applicant, there must be proof that the juristic person has authorized the bringing of the application in its name. It has been repeatedly pronounced that the annexing of a copy of a resolution to that effect is not always necessary, but sufficient proof that the application was properly authorized must be put before court. In the founding affidavit of the Applicant in casu, Judy Kwok deposes as follows;
“…I am an adult female employed by the Applicant as Factory Manageress based at Nhlangano in the Shiselweni District. I am authorized to institute these proceedings for and on behalf of the Applicant”(Court’s emphasis)
Cleary the above statement by the deponent is sufficient proof, under the circumstances of the present case – an urgent application – that the application was properly authorized. We accordingly find that the objectionin limine by Manana on this issue is without substance and accordingly dismiss same.
11. Perhaps an important submission by Manana is that on the Applicant having not engaged the Respondents before running to court on this matter. We must hasten to add here that it is desirable that matters of this nature be conciliated, and always, by way of alternative dispute resolution mechanism which provides a friendlier, informal, expeditious and less expensive environment. This is provided by Part VIII of the Industrial Relations Act, 2000, (as amended). The importance of the Conciliation, Mediation and Arbitration Commission’s role is such that these provisions should be strictly observed.
- In this Court the Applicant bears the onus of showing why it did
not follow the laid down dispute procedures as enunciated in Part VIII of the Industrial Relations Act, as amended.
13. Since the landmark decision of Hannah CJ, as he then was, in the case of Swaziland Fruit Canners (Pty) Ltd v Phillip Vilakati & Another Industrial Court of Appeal Case no 2/87, this court has always insisted on the use of the procedure laid down in Part VIII of the Industrial Relations Act. The ratio decidendi of the decision is as follows;
“Not every party to an industrial dispute is entitled to have the dispute determined by the Industrial Court…the policy of the Industrial Relations Act is that before a dispute can be ventilated before the Industrial Court, it must be reported to the Labour Commissioner who is obliged to conciliate with a view to achieving a settlement between the parties…where the dispute remains unresolved the Labour Commissioner is obliged to issue a certificate to that effect and then, and only then, may application be made to the Industrial Court for relief.(Now CMAC)
- We point out here that it is most desirable that industrial
disputes be settled, if possible, by means of conciliation rather than determined in the more formal surrounds of a court. It is without a shadow of doubt that the existence of a statutory conciliation procedure saves the Industrial Court from hearing many time consuming cases which are capable of resolution with the assistance of a neutral and expert third party. In the case of Phylyp Nhlengethwa & Others v Swaziland Electricity Board IC case no.272/2002, Judge President Nduma, as he then was, had this to say on CMAC;
“The creation of this institution has increased the need for the Industrial Court to enforce strict observance of the dispute resolution procedures under Part VIII of the Act because we now have a more suitable structure of expeditiously, conveniently and less expensively resolving industrial disputes which otherwise find their way unnecessarily to this court, and in the process aggravating the backlog the court has suffered for a longtime.”
15. Shabangu in his answer on this issue argued that the Applicant is before court seeking a declaratory order, which CMAC cannot grant. We do not agree with the Applicant’s counsel. Whether it be a declaratory order or not that a party seeks, if, after conciliation, the dispute remains unresolved they can always refer it to this court for adjudication. They can also exercise their right and choose the expeditious process of arbitration by the Commission. And whatever decision the Commission would arrive at would be binding on the parties as if it were an order of this court.
16. It is for the aforementioned reasons that we find it unnecessary to make a pronouncement on the merits of this matter. Be that as it may, this court cannot sit back and look at a flagrant disregard of the law. The Applicants states that it has a real fear that violence, consequent from the intended illegal strike action, would ensue, thereby putting lives and property at risk, unless interdicted by this court. This court cannot allow that. For these reasons the Court accordingly makes an order as follows;
- The Respondents and/or their members employed in the Applicant’s establishment are hereby interdicted and/or restrained from engaging in a strike action in an attempt to force the Applicant to pay them seventeen (17) days annual leave.
- The rest of the prayers in the Applicant’s notice of motion are dismissed.
- The Court makes no order as to costs.
The members agree.
T. A. DLAMINI
ACTING JUDGE – INDUSTRIAL COURT