IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
HELD AT MBABANE Industrial Appeal No. 15/2004
In the matter between:
LIDLELANTFONGENISTAFF ASSOCIATION (L.I.S.A.) APPELLANT
SWAZILAND NATIONAL PROVIDENT FUND BOARD Respondent
CORAM: ANNANDALE, JP;
For the Appellant Mr. P.R. Dunseith of
Dunseith Attorneys, MBABANE
For the respondent Mr. Z. Jele of Robinson Bertram
JUDGMENT 7 September, 2005
 The appellant comes on appeal before this court being dissatisfied with a judgment of the Industrial court where it was held that employees of the respondent who are members of the Executive Committee are excluded from being members of the Appellant Staff Association and from participating in any of the appellant's activities as members. It contends that the order is in contravention of the employees' basic rights under Section 98(a) of the Industrial Relations Act, 2000 (Act 1 of 2000).
 This section falls under Part IX of the Act, pertaining to Freedom of Association and the right to organise in the workplace. It reads in part:
((Basic employee rights
- An employee may -
(a) take part in the formation of any trade union or staff association or federation as the case may be;
(b) be a member of any trade union or staff association and take part in its lawful activities outside working hours or) with the consent of the employer) within working hours;
(c) hold office In any trade unions) staff association or federation; ... ))
 Thus, prima facie and ex lege the appellant has every right to allow any employee of the respondent to be part of its membership and the respondent must allow it. The question remains as to whether there is any limitation to such right, as was found by the court a quo) or whether the right is absolute and unrestricted. It is this question that forms the basis of the appeal.
(4] In the Industrial Court, the applicant, now appellant, firstly sought an order to direct the respondent employer to grant recognition to the applicant as the employee representative for the respondent's staff concerning all terms and conditions of employment including wages and hours of work. This relief was granted by the court and no issue is taken with it.
 In his judgment, the learned Court President, with concurrence of his two assessors, found, as a factual issue that:
((Inevitably) the Executive Committee on behalf of the respondent will have to engage the unions and the staff associations in matters of collective bargaining inter alia".
 This factual finding is not appealable and remains as fact. The result of this is that some members of the applicant were held to be excluded from being members of the staff association. These are the executive committee comprising of the chief executive officer, the finance director, compliance director, benefits director, administration director, property director and the information director. They were found to be responsible for the formulation of policy, day to day management including decision making, discipline, financial management and advising the board on operational and policy matters.
 This consequence, of the finding by the court a quo) which is the subject of the appeal, was considered by the learned judge. In his reasons, he referred to regulations of the Code of Practice under the Act, Section 109, which has it that "the principal aim of management is to conduct the business of the undertaking successfully' and Regulation 6 which has it that " ... the principal aim of employee organisations is to promote the interests of their members".
Due to the inevitable conflict of interest that arises from such diverse points of departure and goals, he held that (at page 7 of the judgment):
((It is without a doubt that the inter-relationship between management and employee organisations isnot mutually exclusive however, necessary conflict is inevitable in the pursuit of their goals. Indeed, the separation, especially of Executive Management from the employee organisation, constitutes a necessary check and balance in the promotion of efficiency, excellence and good industrial relations at the undertaking."
((It is the court's view that allowing the top echelons of management to join the staff associations including holding executive positions in the associations and leading in collective bargaining and possibly engaging in workers strikes would be counter productive and result in undermining the very existence of the undertaking and put their employment into jeopardy".
[10) In his meticulously prepared and presented argument, Mr. Dunseith urged this court to find that the court a quo had no entitlement to hold contrary to statutory provisions, such as are detailed in Section 92, referred to above. It is indeed so that as creature of statute, the Industrial Court cannot act outside its statute given powers. It does not have unlimited jurisdiction. The submission is that that court erred to exclude members of the executive committee from the bargaining unit, the staff association, thereby infringing on their fundamental right to belong to the association and thereby exceeding its statutory jurisdiction.
 "Staff' is defined in the Act as meaning an employee who
(a) has authority on behalf of the employer to employ, transfer, suspend, layoff, recall, promote, dismiss, reward, discipline other employees or authorise such action, when the exercise thereof is not solely of a routine or clerical nature, but requires the use of independent judgment;
(b) participate in the making of general company policy;
works in a capacity which requires the employee to have full knowledge of the financial position of the employee)' or
has free personal access to other confidential information substantially affecting the conduct of the business of the employer.))
 The definition is very wide and by its very nature, describes some of the functions reflected in the job titles of most members of the executive committee of the respondent.
 A staff association IS defined in the Act as "any combination of staff, the principal purpose of which is the regulation of relations between staff and an employer or employers".
 From these definitions, the court a quo was entirely correct, no issue taken with it either, to hold that all members of the staff of the Fund are eligible to be members of the applicant, but the vexed issue, the exclusion of the executive committee, is argued to be a wrong legal conclusion.
 The argument of the appellant holds good insofar as that the staff may belong to the union, but the exclusion of
the executive of the employer, from also being included in this category, requires further scrutiny to determine whether indeed the Industrial Court erred or not.
 Regard has to be had to the object of the Act, its stated aim and purpose, as found in Section 4(1), which is mandatory, under Section 4(2), when "applying or interpreting any Provision" thereof.
[1 7] Section 4( 1) reads that:
((4(1) The purpose and objective of this Act is to:-
(a) promote harmonious industrial relations)' (b) promote fairness and equity in labour relations)'
(c) promote freedom of association and expression in labour relations;
(d) provide mechanisms and procedures for speedy resolution of conflicts in labour relations)'
(e) protect the right to collective bargaining)') and continues to state further laudable objects.
 The core issue seeks harmonious, equitable fairness and rights of workers to be free, bargain collectively and that
they may associate with who they want, to secure industrial harmony.
 As stated above, the ratio of the Industrial Court was that if the executive committee of the fund were to be allowed to participate in union activities, or to belong to the appellant staff association, a conflict of interest would arise with the result that the objectives of the act would be compromised in the process.
 The Swaziland National Pension Fund is a statutory body, managed by its Executive Management. Subject to Ministerial approval, the Board employs the Chief Executive Officer and Financial Director, with the other directors employed by the executive management, subject to approval by the Board. An "employer" is defined under the Act as meaning "a person who employs another person as an employee or any other person so acting on behalf of an employer". Clearly, the executive committee that manages the operations of the employer does so on behalf of the employer, the Fund, and they are to be regarded as being dissimilar to the staff of the Fund, despite the very wide definition of "staff' aforementioned.
 It is therefore that Mr. Dunseith cannot be faulted by arguing that per definition, members of the Executive
Committee can well be said to be also incorporated under "staff' as defined and therefore do what staff may do, such as joining the staff association. However, such a technically strict interpretation falls foul of the objectives of the Industrial Relations Act, as interpreted by the Industrial Court, which held that "it would be counter productive and result in undermining the very existence of the undertaking (the fund) and put their employment in jeopardy'.
 The short answer to the appeal is yes, as members of the staff everyone may join the association but no, as members of the executive committee of the fund, there is a limitation on the right to also be members of the staff association, necessitated by the position they hold in the statutory body which has to remain in harmony with the objects of the Act.
 Furthermore, it is common cause that the conventions and recommendations of the International Labour Organisation are part of the labour law of Swaziland. See inter alia STANDARD BANK OF SWAZILAND LIMITED v WISEMAN SIMELANE, Case No. 25/2001 in the Industrial Court of Appeal.
 The Governing Body of the International Labour Organisation (ILO) set up in 1951 its own Tripartite Committee on Freedom of Association to deal with complaints about infringement of freedom of association of employers and of workers. The ILO regularly publishes a digest of decisions and principles of the Freedom of Association Committee of the Governing body of the ILO.
 Paragraph 230 in the fourth (revised) edition thereof reads as follows:
«8. Managerial and supervisory staff
As concerns persons exercising senior managerial or policy making responsibilities, the committee is of the opinion that while these public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their, own organisations."
 It refers to their decision noted in the 295th report, Case No. 1792 paragraph 546, emanating from Kenya.
 Further, the learned authors David Tajgman and Karen Curtis in their work Freedom of Association: A User's Guide, which deals with the standards, principles and
procedures of the ILO, refer to the abovecited restriction as follows in paragraph 18:
((Permissible restrictions and their limitations on special categories of workers.
Executives) managers) confidential employees: prohibited from joining or forming organisations open to lower grade workers:
( ... restrictions are compatible with freedom of association provided that two conditions are met: first) that the persons concerned have the right to form their own organisations to defend their interests; and) second) that the category of executive and managerial staff is not so broadly defined as to weaken the organisations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their actual or potential membership_ )))
 None of these aspects form an impediment to the conclusion that the Industrial Court drew in the matter before it. The executive Committee of the respondent find themselves in a position where their right of association is restricted by the very nature of the positions they hold in the entity of the employer. However much freedom of association is akin to being
sacrosanct, an unbridled and over liberal application thereof would inevitably result in the worst case scenario so vividly painted in the court below.
 It is for these reasons that the appeal against the decision of the Industrial Court, namely that the members of the Executive Committee of the respondent Provident Fund, designated as Directors, cannot, be members of the Applicant, must be dismissed, with costs to follow the event. It is so ordered.
"-l. A, JA