IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 52/89
In
the matter between:
SWAZILAND
RAILWAYS Applicant
VS.
SWAZILAND
TRANSPORT AND ALLIED Respondent
WORKERS
UNION
CORAM:
J.A.
HASSANALI President
MR
MOTSA For
Applicant
MR
DODDS For
Respondent
MR
MIKGOKONG & MR MATSEBULA Assessors
HASSANALI,
P.
This
Application is brought by the Swaziland Railways under Section
36(5)(b) of the Industrial Relations Act.
The
Respondent Union has objected to the Application on the ground that
it had not been filed within 30 days as required under the aforesaid
section and therefore has asked that the Application be dismissed. In
the circumstances the question that has to be decided is whether
the requirements under Section 36(5)(b) have been complied with.
Before I do so, I wish to set out the salient facts, whcih led to
this application.
The
Respondent Union by its letter dated 16/1/89, applied to the
Swaziland Railways for recognition under Section 36(5) of the
Industrial Relations Act. In its reply of 20/1/89, the Railways made
the Union understand that it had no intention of granting recognition
on the ground that the Union had failed to name the categories of
employees which it intends to represent, in its application. The
Union wrote back on 31/1/89 that it represented all its employees and
if the Railways had any doubts about it, it should comply with the
requirements laid down under Section 36(5)(b) of the aforesaid
Act.
2
Since
the Applicant failed to grant recognition or take the matter to
Court, the Respondent on 27/2/89 reported this matter as a dispute
under Section 50 of the said Act to the Labour Commissioner, with a
copy to the applicant Railways. Meanwhile the applicant and the
Respondent undertook a voluntary membership count on 22/5/89 but the
required 40% membership of the Union could not be established during
ths exercise. Hence no agreement was reached. However on 21/6/89, the
Labour
Department
intervened and through conciliation a settlement was reached on a
number of issues. The issues being -
"(1)
that because of the lapse of time since the application for
recognition was first made the parties
will disregard the phrase "fully paid up membership" for
the sake of progress -
(2)
that they will disregard the fact that thrity days had long lapsed
since the application for recognition
was first made.
(3)
that the check off forms which were rejected by management be
re-instated with proof of authenticity
of the signatures
(4)
that Union Members assist management in checking the signatures
appearing on the check off
forms against signatures appearing on the company employment recards
(5)
that the exercise be completed on or before the 14th July, 1989."
As
a result of this Agreement another membership count was conducted on
11/7/89 and it was established that the Respondent Union had the
necessary 40% membership of the Railways Workforce. On 11/7/89 the
Applicant and the Respondent signed an agreement with a view to
entering into a recognition agreement later on. This did not
materialise and the applicant decided to bring this matter to court
under Sec. 36(5) (b) which reads as follows: -
"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
3
application
and in writing -
(a)
grant
recognition to the organisation or
(b)
if
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 be."
According
to the above provision, it is clear that if an employer decides not
to grant recognition to a Union, such employer should bring an
application to Court .within 30 days of the receipt of the
application for recognition. This however did not happen in this
matter. The Union wrote to the Railways on 16/1/89 and the present
application was brought to Court only on 17/7/89 After a lapse of 6
months and after the Union had notified this failure as a dispute to
the Labour Commissioner. In my view the Applicant has not complied
with the requirements envisaged under Section 36(5)(b) and in the
circumstances I have no other alternative but to dismiss the
Application.
Application
dismissed.
My
Assessors agree with my decision.
J.
A. HASSAN AL I,
PRESIDENT
OF THE INDUSTRIAL COURT
