THE HIGH COURT OF SWAZILAND
Case No. 2064/95
the matter between:
MANUFACTURING AND ALLIED WORKERS
SWAZILAND LIMITED Respondent
APPLICANT Mr. Shabangu
RESPONDENT Mr. Flynn
applicant, the Swaziland Manufacturing and Allied Workers Union,
which is duly registered with its Head Office at 2nd Floor, Sikhulile
House, Masalesikhundleni Street, Manzini has applied on Notice of
Motion for an order in the following terms:-
the applicant's members are entitled to payment of their wages for
the period during which the respondent has placed them on a short
time working programme later labelled by the respondent as lay-off
the respondent to pay to the applicant's members affected by the
aforesaid short time working programme their
and other benefits in accordance with their conditions of service.
the aforesaid wages be paid with interest at the rate of nine percent
per annum calculated from the date on which such wages became due to
date of payment.
of this application.
and/or alternative relief."
support of this application, a founding affidavit has been attested
by Mduduzi Patrick Khumalo, an employee of the respondent and a
member of the branch committee of the applicant Union.
am satisfied that the applicant has properly instructed its attorney
by whom it is represented and the question of Khumalo's authority to
"make this affidavit on behalf of the applicant" is not an
issue in these proceedings.
applicant is in terms of the Industrial Relations Act (THE ACT) and a
recognition agreement between itself and the respondent, concluded as
contemplated in the Act the collective employee representative of
those of the respondent's employees on whose behalf this application
relief sought by applicant arises from action taken by the respondent
to curtail production. All employees were advised on the 27th July
1995 in what appears to be a circular memorandum of the respondent's
intention to introduce "short time working".
this memorandum, the respondent told its employees that South Africa
had been flooded with cheap imports, and that the company had been
unable to maintain the level of its yam order book. In order to
preserve the company's cash resources, Management had determined to:
all overtime except that which has been prescribed by negotiation or
vital for operational purposes.
all casual labour.
all new employment.
austerity measures were to be introduced which are of no significance
in this application.
workers were also advised that although shift patterns were to stay
the same, the production shifts in Weaving and Finishing Divisions
would not work Saturdays or Sundays for consecutive weekends
commencing on Saturday the 12th August and ending on the 24th of
memorandum also informed those to whom it was addressed that the
Management regretted having to institute these unwelcome decisions,
and an undertaking was given to lift short time working as soon as it
is possible to do so.
the 25th August 1995, the applicant delivered a memorandum to the
respondent's Management in which the following points were made:
applicant's members who were on short time presented themselves on
the 19th August 1995 only to find that their clocking cards had been
applicant's members were still willing to come to work in the
Management can actually change her mind over the short time issue, we
are even more ready to come."
losses incurred during the short time period would be claimed.
memorandum required Management's response before the end of the day.
the 29th August 1995, the respondent replied to the memorandum of the
25th August 1995 and pointed out that the points made therein had
dealt with both in meetings on the complex and at the Labour Office
in Manzini. The Management observed that the workers did not want to
recognise that the profound effect, that the lack of fabric orders
has had on the company's ability to operate on a continuous basis in
the Weaving and Finishing Divisions and had necessitated a lay-off
situation having to be implemented whether they liked it or not. Here
I pause to remark on the significant change made in the use of words
to describe the curtailment of working hours. In the first letter the
words "short time" were used whereas in the second letter
the words "lay-off" were used.
stressed that the workers were aware that it was not Management's
wish to cut employees wage packets unnecessarily, but for the sake of
the company and its employees the sooner the situation was restored
to normality the better it would be for everyone. The notice
concluded in the following terms: "However, you were given
sufficient notice of the situation and of Management's intentions in
the matter and any claims for alleged shortages in wage packets that
cannot be substantiated will be rejected."
will be observed that until this last memorandum, the situation was
described in terms of "short time working", but in the
memorandum of the 29th August, Management claims that a "lay-off"
had been effected.
points in dispute were brought into sharp focus when the applicant's
attorney wrote to the Managing Director of the respondent. After
advising that he acted for the applicant, the applicant's attorney
stated that the management of the respondent had placed a number of
their employees on a "short time" working programme with
the aim on management's part that the employees would not be paid for
the time that the management has placed on short time. This, it was
said was a breach of the contracts of employment of the workers
concerned. The workers tendered their services and requested
Management to inform the branch committee of the acceptance or
rejection before 5.00 p.m. on Thursday 31st August 1995. The letter
went on to warn that if Management did not accept this tender,
proceedings would be taken to recover the workers' wages for the
period that they had been placed on short time.
this the respondent replied by saying that they categorically refuted
that certain of the union members who are also its employees had been
placed on what the union described as a short time working programme.
Management then went on to suggest that it was the lay-off provisions
of the current wages order which was applicable. In the light of this
management was of the view that no question of the tendering of
services arose. Management then referred the applicant to its
attorneys in the event of the latter wishing to litigate on the
terms of Legal Notice No. 60 of 1994 promulgated in terms of the
Wages Act of 1964, regulations relating to wages in the Manufacturing
and Processing Industry were made operative. These it was common
cause are applicable to the respondent's employees on whose behalf
the applicant seeks relief. Regulation 13 and regulation 17 are
apposite. The former provides for "short time" and the
latter for "lay-off." Regulation 13 reads as follows:
an employer finds it necessary for reasons beyond his control to
employ an employee on short time, he may do so subject to the Labour
Commissioner consenting in writing to such an arrangement, and on the
understanding that the employer intends resuming full time working
within three weeks.
an employee has been placed on short time under sub-regulation (1) he
shall be paid not less than fifty percent of his weekly wages where
he is employed for periods which, in aggregate, are equivalent to or
less than fifty percent of his normal weekly hours of work.
reduction shall be made in an employee's earnings where the employee
has been placed on short time,and works in aggregate, more than fifty
percent of his normal weekly hours of work during any week he has
been placed on short time."
17 reads as follows:-
to circumstances beyond his control an employer may lay-off employees
for up to fourteen working days, without pay provided
at the end of this period he shall either re-employ the employees in
their original jobs, or give them notice of termination of service in
accordance with the provisions of the
the period of any lay-off, the employer shall not engage other
employees to replace the employees he has laid off.
employer shall give:-
permanent employee fourteen days' notice before the lay-off.
seasonal employee twenty-four hours' notice before the lay-off.
employer may apply for a temporary exemption for a specified period
according to the circumstances of the enterprise, from the
application of regulation 17(3) (a), after consultation with the
employees organisation, for a reduction of the period of notice to be
given to employees, before lay-off."
will be seen that the two regulations envisage different situations.
is no definition of the words short time or lay-off in the
regulations. The proper course therefore is to interpret the words in
their context in accordance with the normal dictionary meaning.
the employer used the words "short time" in its original
memorandum does not necessarily describe the category of work
curtailment introduced by the respondent. In order to determine the
question in issue, the actual steps taken by the respondent must be
compared with the provisions of the respective regulation.
the use of the words "short time" in its original
memorandum, the respondent has perhaps given rise to the present
terms of regulation 13 "short time" may be introduced
subject to the Labour Commissioner's consent in writing to such an
arrangement. No such consent, it is common cause was ever sought or
obtained, and no objection was taken on this ground. If the
respondent considered that it was acting in terms of Regulation 13,
it would surely have observed the requirements of the Regulation and
sought the Labour Commissioner's consent.
short time may be introduced only on the understanding that the
employer intends resuming full working hours within three weeks.
There was clearly no such intention as the arrangements of which the
workers were notified was that Saturday and Sunday shifts would not
be worked for a period of seven weeks. It is clear therefore that
notwithstanding the use of the words "short time" in the
original notification, the respondent was not acting in terms of
actual arrangements made by the respondent on the other hand are in
accordance with Regulation 17 which allows the employer to lay-off
employees for up to fourteen working days without pay. The regulation
does not require that the fourteen days be consecutive but does
require that at the end of the period the employer is obliged to
re-employ the employees in their original jobs, or give them notice
of termination of services in accordance with the provisions of the
Employment Act of 1980. The number of days affected was fourteen,
i.e. two days per week for seven weeks. It is surely not coincidence
that this period of fourteen days is the period specified in
a short time situation obtained, the respondent would be obliged to
make payment to its employees in accordance with the provisions of
the regulation. If on the other hand the employees had been laid off,
they are not entitled to pay. Having regard to the structure of the
regulations, it appears that the correct interpretation of "short
time" is a reduction of a number of hours per day to be worked
by an employee while still obliging the employee to work on those
days which in terms of his contract of employment are working days. A
lay-off situation on the other hand refers to a situation where one
or more full days of employment are declared to be non-working days,
workers involved are not required to present themselves for service.
The steps taken by the respondent in my view fall in the latter
category and the workers were laid off in terms of regulation 17 and
not placed on short time in terms of Regulations 13.
follows that the applicant is not entitled to the relief claimed and
the application is dismissed with costs.