INDUSTRIAL COURT OF APPEAL OF SWAZILAND
HELD AT MBABANE
In the matter between:
SWAZILAND RAILWAY Appellant
PUBLIC AND PRIVATE SECTOR TRANSPORT
WORKERS UNION 1st Respondent
CONCILIATION MEDIATION AND
Neutral citation: CORAM:
ARBITRATION COMMISSION 2nd Respondent
Swaziland Railway vs Public and Private Sector Transport Workers Union & Another [15/2017]  SZ1CA 01
J S Magagula AJA, D Tshabalala AJA, N Maseko AJA
17 April 2018 03 May 2018
For Appellant: ND Jele (Robinson Bertram)
For Respondents: VZ Dlamini (VZ Dlamini Attorneys)
Summary: The appeal against Industrial Court order dismissing application
for an order: interdicting the worker’s union and the Conciliation Mediation and Arbitration Commission from holding balloting exercise for intended strike action; interdicting the workers ’ union from pursuing or embarking on a strike action for wage increments; declaring the strike [notice] issued by the union unlawful; and costs in the event of opposition. The issues for decision on appeal are: whether the court a quo denied the appellant opportunity to address it on an issue on which it made a finding against the appellant; whether the court a quo erred in deciding the matter on the basis of section 86(9) read with 84(1) of the Industrial Relations Act of 2000; whether or not the provisions of sections 86(9) and 84(1) apply to the agreement alleged by the appellant. Held: the appeal dismissed for want of merit on all the grounds.
JUDGMENT  
decision of the Industrial Court in which it refused to grant an order interdicting the 1st and the 2nd respondents from conducting a balloting exercise for a strike action contemplated by the union; restraining the union from embarking on the intended strike action, and further declaring the said intended strike action unlawful.
< >The union and the employer reached a deadlock in negotiations over increases in salaries,1 allowances  and irregular shift allowance, whereupon the union lodged a dispute with CMAC and the parties appeared for conciliation. The parties having failed to reach a common ground, CMAC then issued a certificate of unresolved dispute dated 13 October 2016. It is common cause that the unresolved dispute between the appellant and the union, per the certificate issued by CMAC concerned an increase in allowances and irregular shift allowance. Subsequent to issuance of the certificate, several months later (in March 2017) the union invited its members, the employer and CMAC to a balloting exercise, a precursor to an intended strike action. The appellant filed an urgent application in the court a quo for an interdictory order against the balloting exercise and the intended strike action, and an order declaring the intended strike action unlawful. The court a quo dismissed the application, leading to the present appeal.
The appellant argued before this court, as it did in the court a quo, that there was a tacit agreement between the employer and the union on how to resolve the dispute,
namely, by referring it to a consultant. Based on the alleged tacit agreement the appellant maintains that the balloting exercise and any strike action would be unlawful and therefore the union ought to be interdicted. The appellant’s case on appeal impugns the court a quo’s decision to dismiss the application. Five grounds of appeal are summarized below.
That the court a quo erred -
< >in finding that section 86(9) read with section 84(1) of the Industrial Relations Act of 2000 (IRA) makes it mandatory for agreements reached between the parties post the certificate of unresolved dispute to be in writing. Further that the court erred in applying the said sections 86(9) and 84(1) in the matter.
in not finding that the union waived its right to strike by taking part in the salary review exercise, notwithstanding clause 15 of the recognition agreement.
in finding that consensus ad idem was a requirement in a tacit agreement, averring that the conduct of a party is central to the inquiry as opposed to consensus.
in not finding that the union tacitly agreed that the issue of allowances ought to be dealt with by the consultant and therefore waived its right to strike.
in making a costs order against the appellant
From the foregoing, three issues arise for determination of the appeal and can be formulated thus:
Whether the court a quo denied appellant a fair hearing before making a decision based on sections 86(9) and 84(1) of the IRA;
Whether sections 86(9) and 84(1) of the IRA are applicable to the case;
Whether there was an agreement between the parties as alleged, and whether the union had waved its right to strike.
The appellant’s grief in relation to the first issue concerns applicability of the provisions of sections 86(9) and 84(1) of the IRA which it alleges was not pleaded by the union nor did it form part of the union’s evidence. The appellant submits that therefore the court a quo ought to have invited the parties to address it on the issue prior to relying on it in its judgment but failed to do so. The appellant alleges that the issue relating to applicability of section 86(9) came to its attention for the first time in the judgment of the court a quo. In relation to the second issue the appellant challenges the finding of the court that the IRA makes it mandatory for an agreements made by parties on how to resolve a dispute should be in writing. The appellant argues that the two sections  can only be invoked in cases where a dispute is resolved and results in the signing a collective agreement.“Where, at any time, the dispute which has been certified as unresolved within the meaning of
section 85 is resolved by agreement between the parties, the procedure specified in section 84 shall
be followed.” [Underlining added].
It is opportune to capture some of the relevant parts of sections 85(1) and 84.
(1) For the purpose of this section, an unresolved dispute means a dispute in respect of which a certificate has been issued under section 81(5).”°
(1) If a dispute has been determined or resolved either before or after conciliation, the parties shall, with assistance of the Commissioner -
< >prepare a memorandum of agreement setting the terms upon which the agreement was reached, and
lodge the memorandum with the Commission, and the Commission shall lodge it with the Court.(2) Upon registration the memorandum shall have the same force and effect as a registered collective agreement.”
< >Regarding the 3rd issue formulated for determination, the appellant submits that the conduct of the respondent amounted to or gave rise to a tacit agreement to waive its right to strike. Some of the conduct of the respondent cited is the failure to embark on a strike action immediately after the certificate of unresolved dispute was issued, instead the respondent actively participating and contributing to the salary review- exercise. The appellant submits that the fact that the terms of reference for salary review incorporated the issues or some of the issues on which the appellant and the union had failed to agree, lends strong support to the view that the union tacitly agreed to suspend its right to strike and to await the outcome of the review exercise.
-..—The,,appellant did not dispute, the union’s submission that the union had no knowledge of the consultant’s terms of reference and that it did not contribute to the formulation thereof.
< >The union refutes the contention that the appellant was denied a hearing on a legal point concerning the application of sections 86(9) and 84(1) to the matter. The respondent points out that the provisions of section 86(9) were raised in its answering affidavit. This is found at Paragraph 6.3 of the answering affidavit deposed to by Nonhlanhla Mbingo which reads as follows:“Moreover there was no agreement between the parties to engage the consultant, hence the issuance of the certificate of unresolved dispute. The lsl Respondent did partake in the salary review
because it is the Applicant’s policy to review salaries every three years. If the Applicant wanted the salary review policy to be amalgamated with the cost of living salary increase, it should have approached CMAC in terms of section 86(9) of the Industrial Relations Act, so that an agreement incorporating both issues be signed by the parties.” [Underlining added].
The union submitted that it was up to the appellant to reply thereto, but the appellant elected not to address the issue.
< >The respondent denies any agreement was reached with the respondent either for engagement of the consultant or to suspend its right to strike. This appears clearly at paragraph 6.3 of the answering affidavit quoted above. The respondent denies that there was any tacit agreement. The respondent submits further that the parties could not enter into an agreement tacitly in view of the statutory requirements of section 86(9) read with section 84 to the effect that an agreement reached by the parties to a dispute shall be in writing. The respondent denies that it waived its right to strike in the absence of a communication to the appellant in that regard.Findings on the appeal
< >From the four substantive grounds of appeal filed and argued before this court, three issues for determination have been formulated, see the preceding paragraph  in this judgment. The grounds of appeal are interrelated and will be dealt with jointly where necessary. When CMAC issued the certificate of unresolved dispute the appellant pinned its hopes on the then planned salary review exercise, which it announced during conciliation. The appellant was of the view that it was logical for both parties to await the outcome of the review exercise as it might address the issues
in dispute, and that given those circumstances the union would not exercise the right that it otherwise had to strike, until the review exercise was completed. There was however, no agreement with the union on this. Hence the appellant’s reference to a tacit agreement. The appellant’s claim for an agreement that the union would stay the right to strike, tacit or otherwise is untenable and is not supported by facts. The court a quo articulated reasons for its finding in this regard. The court a quo found that the relationship between the appellant and the union was governed by section 86(9) of IRA. The provisions of the section are quoted at paragraph  of this judgment. The court a quo rightly in my view found that the agreement alleged by the appellant must be in writing in terms of the said section 86(9) read with section 84(1). The court a quo's finding on this point is unassailable. The appellant’s narrow interpretation of these sections and the limited scope it seeks to assign to the nature of agreements they apply to is unjustified. The appellant’s ground of appeal in this regard accordingly fails.
- 1 also find no merit in the complaint that the court a quo erroneously failed to invite the appellant to addressAt on the applicability of sections 86(9) and 84(1) prior to invoking those provisions and dismissing the application. I note that applicability of these provisions was clearly pleaded by the union in the answering affidavit wherein it pointed out that the appellant should have taken steps in terms of the said sections to have a signed agreement incorporating the review exercise. Failure on the part of the appellant to follow up with a counter to the union’s views on the issue cannot vitiate the decision of the court a quo. The appellant had ample opportunity to present a counter argument to the views of the union and needed no prompting from the court to do so. Besides the fact that the relevance of the said
sections was raised by the union, the court a quo reserved the right to determine the case based on the law and or relevant provisions of the IRA. The ground of appeal based on denial of a fair hearing accordingly fails.
D Tshabalala AJA
N Maseko AJA
The appeal is dismissed with costs.
D Tshabalala AJA
 The appellant is Swaziland Railway, a category A statutory public enterprise responsible for provision of transport services. The 1st respondent, Public and Private Sector Transport Workers Union is a trade union representing employees of the appellant who are eligible for union membership. The 2nd respondent is Conciliation Mediation and Arbitration Commission (CMAC) and is not contesting the appeal. The appellant and 2nd respondent will herein also be referred to as “the employer” and “the union,” respectively. The appellant is seeking an order setting aside the
15 % across the board.
 15 % across the board.
Exhibit "SR2" filed at page 30 of the record.
 The consultant, LCC Capital was contracted by the appellant, post the issuance of the Certificate of Unresolved Dispute, to carry out a salary review for its employees, including members of the respondent.
 Sections 86(9) and 84(1).
 Section 81(5) provides for the issuance of a certificate by the conciliating commissioner stating a prescribed form whether a dispute he/she conciliated over was resolved or not.
 See page 41 of the Book of Pleadings.
 See paragraph  above.
 Sections 89(6) and 84(1). Page 8 of 9