THE HIGH COURT OF SWAZILAND
the matter between:
PLANTATIONS LTD APPLICANT
AGRICULTURE AND PLANTATION FIRST RESPONDENT
EMPLOYEES OF THE APPLICATION WHO HAVE BEEN
UPON BY THE FIRST RESPONDENT
ACTION ON 27TH JULY 1994 FURTHER RESPONDENTS
: DUNN J
THE APPLICANT : MR PRETORIUS
THE RESPONDENT : MR FLYNN
26TH AUGUST 1994
applicant, a registered company, is a sugar cane grower at Big Bend.
The 1st Respondent is an industry union as defined under section 2 of
the Industrial Relations Act No. 4 /1980 (the Act) representing
employees in the agricultural sector. A dispute arose between the 1st
Respondent and Mhlume Sugar Company (Mhlume) over terms and
conditions of employment of the 1st respondent's members employed by
Mhlume. The dispute led to a strike by the 1st respondent's members
employed by Mhlume.
1st respondent then proceeded to give notice that it intended calling
upon its members employed by other companies, including the
applicant, within the agricultural sector to commence strike action
in sympathy with the employees at Mhlume and for purposes of forcing
Mhlume to agree to the 1st respondents demands. The applicant
contends that a strike by members of the 1st respondent in its employ
would, in the circumstances outlined, be illegal in terms of the Act.
The applicant approached this court for an interim interdict
restraining the 1st respondent from proceeding with the strike
action, pending the determination by this court of the question as to
whether or not the intended sympathy strike is legal under the Act.
relations in Swaziland are governed by the Act. The Act provides for
the collective negotiation of terms and conditions of employment and
for the establishment of the Industrial Court for the settlement of
disputes arising out of employment. Provision is made for the
establishment of employer and employees organisations; the
establishment of negotiating fora; the regulation of collective
agreements and the procedures to be followed in the settlement of
action is permissible under the Act if it complies with the
provisions of part VII thereof. Sections 50 to 58 of part VII set out
in detail the procedure to be followed when a dispute, as defined,
arises. Sections 59 to 65 deal with strike and lockout action
following a failure to resolve a dispute.
59(1) of the Act provides-
to this section and section 58, if there is an unresolved dispute,
either party may take action by way of lockout or strike.
strike is defined under section 2 as-
complete or partial stoppage of work carried out in concert by two or
more employees, or any other concerted action on their part designed
to restrict their output of work, if such action is done with a view
to inducing compliance with any demand or with a view to inducing the
abandonment or modification of any demand.
is accepted in the present application that the strike at Mhlume was
in conformity with the provisions of Part VII of the Act.
submission on behalf of the 1st respondent is that the parties to the
Mhlume dispute are the 1st respondent as constituted by all its
members in Swaziland on the one hand and Mhlume on the other On this
basis, it is argued that the 1st respondent can call out all its
members on strike irrespective of who their employers are. Support
for this view, it was submitted, can be found in the definition of a
strike in which there is no requirement that the employees must be in
the employ of the employer to whom a demand is made. Further support,
it was stated, can be found in the definition of an Industry Union
which is set out as follows under section 2 of the Act.-
combination of employees, other than staff, the principal purpose of
which is the regulation of relations between employees and employers
in a particular industry.
latter definition, it was submitted, recognised a union as operating
within a particular industry and not necessarily with individual
argument put forward on behalf of the 1st respondent is a simple one.
One simply looks to Section 59 which entitles either party to an
unresolved dispute to go on strike. If a union is a party it is all
the union members within a particular industry that are on strike and
individual employers who have no dispute with the union simply have
to wait for a resolution of the dispute that has led to the strike.
On this argument the question of a sympathy strike does not arise as
the withdrawal of services by union members from various employers
within a particular industry is viewed as one act by the union.
applicant's approach to the issue to be decided centres on a more
detailed consideration of who the parties to a dispute are, in cases
where an industry union is concerned. A union it is submitted is a
body corporate governed by a constitution and registered in terms of
Section 17 and 18 of the Act. The recognition of a union as a
collective employee representative is governed by Section 36(1) which
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.
an organisation has been granted recognition as the exclusive
collective employee representative, it shall be the duty of that
organisation to provide full and proper representation of the
all employees covered by the recognition agreement whether or not
they are fully paid up members of the organisation.
point emphasised by the applicant is that a recognition agreement
under this section is one between a union and an employer and not one
between a union and an industry. a recognition agreement it was
submitted creates a relationship between an employer and a union in
respect of the employees (of the particular employer) covered by such
next section considered in the argument on behalf of the applicant is
section 50(1) which prescribes who may report and as such become a
party to a dispute. A dispute may, in terms of the section, only be
organisation which has been recognised in accordance with section
member of a works council;
member of a joint industrial council;
no organisation has been recognized in terms of section 36, any
other organisation active in the undertaking concerned in the
no organisation is active in the undertaking concerned in the
dispute by any employee in the undertaking.
1st respondent, it is common cause, is a party to the Mhlume dispute
under sub-paragraph (b). This sub-paragraph refers to section 36
which limits the employee representative capacity of a union to
employees of a particular employer. It is submitted by the applicant
that the word "party" in section 59(1) must, where it
refers to a union, be construed subject to the limitations of section
36. On this construction of sections 36(1); 36(8); 50(1) and 59(1),
it is submitted by the applicant, the 1st respondent is a party to
the dispute at Mhlume only as constituted by the employees it
represents in the employ of Mhlume.
is in my view much to be said for the argument on behalf of the
applicant. First, section 36 provides for recognition agreements with
an employer which must in the normal course of things be negotiated.
A union in such circumstances has to negotiate with an individual
employer in respect of employees in the employ of such employer.
Different agreements may be struck with different employers within
the same industry. Had the legislature intended to make provision for
the recognition of a union as the collective employee representative
of employees within a particular industry the necessary machinery for
this would have been provided for. Employers within a particular
industry would have to be given an opportunity of taking part or
being represented in the negotiation of a recognition agreement.
the Act provides for the procedure to be followed in cases where a
dispute arises. The interpretation which the 1st respondent seeks to
attach to the provisions of the Act dealing with strikes runs
contrary to this procedure. A wide interpretation of the word "party"
under section 59(1) as advocated by the 1st respondent would have the
effect of subjecting innocent employers to the full rigour of the
ultimate weapon in organised labour namely, a strike.
employer who has no dispute with his employees and who has no
knowledge of a dispute between an employer (within the same industry)
and his employees may on the 1st respondent's argument find himself
being the victim of a strike arising from a dispute over whose
resolution he may have no influence. The clear procedures set out in
the act for settlement of disputes militate against such an
interpretation. It could not, in my view, have been the intention of
the legislature to penalise innocent employers who have not been
party to the disputes procedure under part II of the Act.
words dispute; employee; industry union and strike as defined and
upon which the 1st respondent has relied in support of its
interpretation of the Act must, in my view, in the final analysis be
interpreted in the sense imported by the narrower interpretation of
the word "party" under section 59(1) read with sections
50(1) and 36.
dispute in this application is between Mhlume and the 1st respondent
as the collective employee representative of employees of Mhlume,
covered by the recognition agreement with Mhlume. No dispute exists
between the applicant and its employees represented by the 1st
respondent. The applicant's employees represented by the 1st
respondent cannot in the circumstances, take strike action against
the applicant arising from the dispute with Mhlume. The intended
strike would in the circumstances be illegal.
1st respondent is to pay the costs of this application.