THE HIGH COURT OF SWAZILAND
the matter between:
PAPER MILLS LIMITED Appellant
WORKERS UNION Respondent
O R A M : DUNN J.
THE APPELLANT : MR P. FLYNN
THE RESPONDENT : NO APPEARANCE
OR ON BEHALF OF RESPONDENT
is an appeal against a ruling of the industrial Court, directing the
appellant to recognise the respondent as the exclusive collective
representative of the appellant's employees. Notice of Set Down of
the appeal was served on the respondent but the respondent did not
avail itself of the opportunity to argue the appeal.
appeal arises, as will be seen from the brief history of the dispute
between the parties which I will set out, from a failure by the
Labour Commissioner to appreciate and properly formulate the
"unresolved dispute" between the parties for referral to
the Industrial Court. The history of the dispute between the parties
is as follows-
respondent applied on the 9th October 1990 to the appellant for
recognition as the exclusive collective
of the appellant's employees. The appellant replied on the 16th
October, 1990 requesting the respondent to specify what category of
the appellant's employees the respondent sought to represent. The
respondent did not respond to this letter and took up the stand that
the appellant was demanding "unnecessary details". A
reading of Section 36(1) of the Industrial Relations Act, 1980 (the
Act) however shows that such details as were requested by the
appellant were not unnecessary and that the respondent was obliged to
provide the same in its application. The section provides:
industry union or staff association which has been issued with a
certificate under Section 18, may apply in writing to an employer for
recognition as the exclusive collective employee representative for
such categories of employee as are named in the application
concerning all terms and conditions of employment including wages and
hours of work.
procedure for recognition by a Union is further set out under
subsections (2) through to (5). It is necessary to set out these
subsections, 36 (3).
If less than forty per cent of the employees in respect of which the
industry union or staff association seeks recognition are fully paid
up members of the organisation concerned, recognition shall be at the
discretion of the employer and the employer shall, within thirty days
of the receipt of the application, reply in writing to the
Where an employer decides to recognise an industry union or staff
association in terms of subsection (3) the conditions under which the
employer agrees to recognise the organisation shall form part of the
reply to be given to the organisation.
If forty per cent or more of the employees in respect of which the
industry union or staff association seeks recognition are fully paid
up members of the organisation concerned, the employer shall, within
thirty days of the receipt of the application and in writing -
recognition to the organisation; or
he decides not to grant such recognition, lodge with the Court his
reasons for the refusal to grant recognition and shall serve a copy
thereof on the industry union or staff association, as the case may
subsections further highlight the obligation to specify the relevant
category of employee by the union in an application for recognition.
respondent proceeded to report the appellant's insistence on
compliance with Section 36(1) as a dispute to the Labour Commissioner
on the 10th December 1990. The Labour Commissioner was able to secure
a settlement of the dispute and the parties drew up a memorandum of
agreement in terms of section 57 of the Act on the 8th January 1991.
1 of the memorandum provides -
The applicant (present respondent) agrees to amend for their part
their application letter to read as follows-
being recognised as the sole representative of all categories of
employees except those that are categorised staff".
further agrees to deliver the said amendment by 9/1/91 to the
For their part management (appellant) agree to embark on a membership
count immediately after receipt of the amendment at l(a) above and in
any case this shall not be later than the 25th day of January 1991.
parties further requested the Labour Commissioner to forward the
memorandum to the Industrial Court for registration as an order or
award of that court. It is not clear from the papers but it may be
safely assumed that the respondent complied with l(a) of the
memorandum. The appellant proceeded to carry out its undertaking in
terms of the memorandum and in so doing secured the assistance of the
Swaziland Federation of Employers (SFE) of which the appellant is a
member. The respondent objected to the involvement of the SFE in the
membership count. No valid reasons were advanced for the objection.
It does not appear that the appellant was prohibited from relying on
outside assistance and expertise in carrying out its obligations
under the memorandum. It is not necessary for me to make a
on this point but the fact is that the respondent should have given
reasons for its objection to the manner in which the appellants
sought to conduct the membership count. The membership count did not
take place as a result.
the objection, the respondent reported the matter as a dispute to the
Labour Commissioner issued a Certificate of an Unresolved dispute in
terms of section 58(1) of the Act. The issue in dispute was
formulated as "Recognition" by the Labour Commissioner. The
Labour Commissioner gave the following reasons for holding that no
useful purpose would be served by continuing to conciliate -
advanced by Applicant Union is that it was not recognised by the
respondent inspite of the application having been made in terms of
section 36(5) of the Industrial Relations Act of 1980.
submitted that efforts to recognise the union were frustrated by its
demands that Mr Peter Dodds should not attend so as to advise how
respondent should handle the membership count."
is quite clear that the dispute (if it may be termed as such) between
the parties was as to the appellant's right to enlist the assistance
of the SFE in the membership count. That is the question which ought
to have been put to the Industrial Court for determination. A ruling
either way by the court would have given direction to the parties as
to the conduct of the membership count. The outcome of the count
would have enabled the appellant to know under which subsection
(36(3) or 36(5)) to proceed in response to the respondent's
25 of the Code of Practice set out in the Schedule to the Act sets
out the practice to be ' followed in applications for recognition
under section 36 of the Act. Section 25 of the Code provides, in part
this process (the membership count) should be voluntary, but in the
event of a dispute the matter can be referred to the Industrial
Court. In replying to an application for recognition, management is
entitled to know how many employees in the undertaking are members of
the union, but not their identities.
the Industrial Court was presented with an application by the
respondent which did not correctly reflect the dispute between the
parties. The respondent sought the following relief -
applicant prays that the court, as a remedy:
that the Respondent (or employer) has no right to join a federation
the Respondent to recognise the applicant forthwith.
Industrial Court did not find it necessary to deal with prayer (a)
and made no ruling thereon. It is, in the circumstances, not
necessary for this court to consider the matter except to state that
this matter was totally irrelevant to the dispute which had arisen
between the parties namely whether or not the appellant was entitled
to enlist the assistance of the FSE in the membership count. The
court granted the relief under (b).
granting the relief under prayer (b) the Industrial Court went beyond
what the parties had agreed to in their earlier memorandum. In terms
of that agreement the respondent was concerned with all the
appellant's employees except those categorised as staff. The effect
of the Industrial Court Order was that the respondent was recognised
as the sole representative of all categories of the appellant's
employees. The order had the further effect of declaring, without any
inquiry, that forty percent or more of the appellant's employees were
fully paid up members of the respondent. This the Industrial Court
was not empowered to do. The order made by the industrial Court is
set aside with costs. The parties are returned to the stage when the
memorandum of agreement was signed by them on the 8th January 1991.
The appellant is to proceed with the membership count, with such
assistance as it may be legally advised to enlist, within 30 days
from to-day's date.