IN
THE INDUSTRIAL COURT OF SWAZILAND HELD AT MBABANE
CASE
NO. 87/88
In
the matter between:
S.
M. A. W. U. Applicant
vs
SWAZI
TIMBER PRODUCTS Respondent
CORAM:
J.A. HASSANALI President
MR
MOTSA For Applicant
MR
DODDS for Respondent
MR
MOKGOKING & MR MATSEBULA Assessors
A
W A R D
(Delivered
on 8th June, 1989)
HASSANALI,
P
In
this matter the Applicant Union, a Union registered under Section 18
of the Industrial Relations Act applied under Sec. 36(5) to the
Respondent Company for Recognition by its letter dated 17th August,
1987 (Ex.'E') which reads as follows -
The
General Manager, Swazi Timber Products, Villiers Street, Manzini.
Dear
Sir,
RECOGNITION
APPLICATION
In
terms of Section 36(5) of the Industrial Relations Act No. 4 of 1980,
we hereby apply for being recognised as the sole representative of
all your employees.
For
the benefit of convenience, please receive names and addresses of our
Executive Committee.
As
provided by the aforesaid law, we hope to hear (from) you within 30
days.
Kindly
co-operate with us so that we progress the soonest possible time.
Yours
faithfully,
Hi
SIPHO
MOTSA EXECUTIVE "OFFICER c.c. The Commissioner of Labour P.O.
Box 198, MBABANE.
The
Respondent company replied the applicant Union by its letter dated
26th August, 1987 (Ex.'D') as follows.
26th
August, 1987
The
Executive Officer, Swaziland Manufacturing And Allied Workers Union
P.O. Box 1158 Manzini
Dear
Sir
We
are in receipt of your letter dated 17th August, 1989. Please comply
with Sec. 36(5) of the Industrial Relations Act Number 4 of 1980 by
supplying us with the categories of employees you intend
representing.
Thanking
you
Yours
faithfully M. RAMKOLOVAN
Section
36(5) reads as follows -
If
forty percent 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 employers shall within
30 days of the receipt of the 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.
However
this matter remained a stalemate for sometime until the parties met
and decided to conduct a membership count on 14/12/87 (Vide Ex.'A'),
but this count did not materialise and consequently the Union
reported it to the Labour Commissioner under Sec. 50 of the said Act
as a dispute (Ex.'A')
It
seems to me that the dispute between the parties is on the question
of whether the 40% or more of the Union membership were its fully
paid up members.
During
the course of the arguments, Mr Motsa representing the Applicant
Union submitted that the Company unjustly rejected the membership
cards, receipt book and the Register handed over to Mr Ramkolovan,
the Representative of the Company, by Mr NdlangamandIa Labour Officer
on behalf of the Union in support of its claim that it had more than
40% fully paid up members. Mr Motsa further submitted that though
more than 40% of the Company's employees supported the Union on a
count conducted subsequently by the Company on its own volition, the
Company still refused to grant recognition to the Union which action
he said was unreasonable and unjust.
Mr
Dodds representing the Company maintained that the Company had very
rightly rejected the membership register of the Union on the ground
that it did not conform to the requirements of Sec. 36(5) in
that it did not state whether the members were fully paid up members
of the Union. On the question of the Count conducted by the Company,
he argued that it did not in any way suggest that those who voted for
the Union were its fully paid up members. The Union had to establish
this and since it had failed to do so, the Union he said was not
entitled to recognition.
4
On
the evidence placed before Court I am satisfied that the Union did
submit its Membership Cards, receipt book and Register to prove it
had more than 40% of the Company's workforce as its members.
The
Company however rejected the Union's claim on the ground that its
membership Register did not state whether those members were fully
paid up members. Mr Ndlangamandla, Labour Officer maintained that he
had inspected the said Register and found that the members had
been paying their subscriptions regularly. Mr. Ramkolovan on the
other hand took the opposite view. Nevertheless I am inclined to
accept the evidence of Mr Ndlangamandla in preference to that of Mr
Ramkolovan especially on the ground that he was an independent
witness. In the circumstances I hold that the membership register did
conform to the requirements of Sec. 36(5) .
I
find it hard to understand as to why the Company failed to lodge its
reasons for its refusal with the Industrial Court when it decided not
to recognise the Union, as envisaged under Sec. 36(5). As such it
would not be fair and just for the Company to challenge the Union's
Application.
In
any event the Company at a later date, on its own volition conducted
a count of its employees to check whether the Union had the necessary
40% support. The count very explicitly did demonstrate that the Union
did have the support. On this count alone the Respondent should have
extended its recognition to the Union forthwith, without embarking on
a collision course on such a technical matter as the rectification
of the Membership Cards (Vide Ex.B). This sort of obstruction is most
unfortunate and does not in any way help to foster good industrial
relations.
5
Having
considered the evidence, I find that the Respondent Company has been
unreasonable in not recognising the Union as required under Sec.
36(5)(a). In the circumstances I order the Respondent Company to
grant Recognition to the Applicant Union without verification, and
direct that it should be done forthwith.
My
Assessors agree with my decision.
This
decision is entered as an Award of this Court.
J.A.
HASSANALI,
PRESIDENT
