IN
THE INDUSTRIAL COURT OF SWAZILAND HELD AT MBABANE:
CASE
NO: 28/89
In
the matter between:
SWAZILAND
UNION OF FINANCIAL INSTITUTIONS
AND
ALLIED WORKERS Applicant
AND
SWAZILAND
BANK EMPLOYERS ASSOCIATION Respondent
CORAM
: J.A. HASSANALI President
MR
D. BERGER (Advocate) For
Applicant
MR
P. DODDS For Respondent
MR
MOKGOKONG & MR MATSEBULA Assessors
A
W A R D
(Delivered
17th August 1989)
HASSANALI,
P
In
this matter the parties negotiated and entered into a Collective
Agreement on 28th November, 1988. The Agreement to become effective
from 1/1/1989 for a period of two years. It is a matter of great
regret that such enlightened parties having negotiated, concluded and
signed the Collective Agreement are now in serious disagreement over
its interpretation on the Article covering overtime and are seeking
the Court's assistance to resolve the dispute.
When
the matter was taken up for enquiry, Mr Dodds representing the
Respondent Banks, applied that the preliminary objection raised in
his reply be taken up first and disposed of, before enquiring into
the issue in dispute. Mr Berger representing the Applicant Union
raised no objection to this.
The
preliminary objection raised by Mr Dodds was that this Court had no
jurisdiction to hear and determine this matter on the ground that the
Collective Agreement in Case No. 8/88 was only registered without a
decision being taken by the Court. I have to disagree with him on
this. The Collective Agreement was in fact registered under Sec.
44(1) of the Industrial Relations Act, on a decision made by this
Court, after due enquiry. In the circumstances I
2
overruled
the objection.
Coming
now to the main point, the parties are seeking an interpretation of
Article 2.1 of the Collective Agreement as to whether it means -
(1)
that
overtime worked in excess of normal hours per day will qualify for
payment only if in access
of 176 hours per four week cycle
or
(2) that
overtime worked in excess of normal hours per day will qualify for
payment only if in access
of 44 hours per week
or
(3)
that
overtime worked in excess of normal hours per day shall qualify for
payment at the expiration
of the four week cycle -Article 2.1 reads as follows -
"Overtime"
Overtime
shall be paid for hours worked by employees in excess of normal
hours. Such overtime worked shall be payable at 1 ½
times the hourly rate. The rate applicable for work undertaken on
Sundays or Public Holidays shall be at 2 times the hourly rate.
However, time off in lieu of overtime earned may be availed of by
mutual consent between the employee and his employer."
In
order to appreciate the full significance of the above Article a look
into Article of 2 of the said Agreement is very necessary. It states
as follows -
"Hours
of work"
Normal
hours of work for clerical and non-clerical employees will be 176
hours per four week cycle and 44 hours per week , but credit will be
given for public holidays. When employees are not required to work on
Saturdays mornings credit will not be given for hours not worked.
Employees who
3
are
absent on Annual, special, sick or unpaid leave will be credited with
the normal hours of work in respect of each days absence (except
Sundays) on the following basis -
Monday
to Fridays : Eight hours (including a luncheon
break
of one hour).
Saturdays
: Four hours. Hours of work in respect of office employees where no
work on Saturdays is required will be on the following basis -
Four
Working days : 8 3/4 hours (including a luncheon break of one hour).
One
Working day : 9 hours (including a luncheon break of one hour).
"Hours
of work in respect of departments"
requiring
shift working do not form part of this agreement and are subject to
separate negotiations with the number bank concerned."
Perusing
the above Articles it seems to me that the normal hours of work have
been clearly determined for both Clerical and non-Clerical employees.
The /so that the hours purpose of this in my view is to identify the
duration of the normal working hours/
which
are worked in excess of the regular hours could be distinguished as
overtime. The normal working hour will earn the basic wage and once
that is complete, any excess hours will earn overtime or premium
rates.
I
have also perused some of the Regulations on Wages prevalent in this
Country and all of them follow the pattern established by the
International Labour Organisation; that is to identify the normal
working hours and thereafter the hours worked in excess of the normal
hours to be considered as overtime. Therefore it seems to me that
Articles 2 and 2.1 of the Collective Agreement are similarly,
based
as the recommendation of the International Labour Organisation (See
Conventions and Recommendations of I.L.O. Pages 1029 and 1030).
Prior
to the signing of the Collective Agreement on 28/11/88 the standard
practice in operation at the Barclays Bank of Swaziland Ltd. and Bank
of Credit and Commerce International (Swaziland) Ltd was to pay its
employees overtime for the hours worked in excess of 44 hours. The
Standard Chartered Bank Swaziland Ltd paid its employees the overtime
in excess of 176 hours per four week cycle and these have been
identified as the normal working hours. Though the Applicant Union
made attempt through consultation with the Respondent to change this
practice so as to bring it in line with its way of thinking and have
the same embodied in the Agreement, it failed because of the
Respondent's opposition to such change. As a result the Collective
Agreement was signed without any change in the existing practice
relating to overtime and was registered in Case No, 8/88 by mutual
consent. It now appears to me that the Applicant Union is seeking to
introduce a new element into this Agreement which in my view would
constitute a variance in an already negotiated and signed agreement.
This is undesirable and should be discouraged during the subsistence
of an Agreement.
It
was brought to the Notice of the Court by Mr Dodds that the Standard
Chartered Bank was agreeable to fall in line with the other two Banks
in the event the Court interprets the Article 2.1 as stated in
paragraph 2 of the Application to the Court - Form D.
After
carefully considering the above points, I have come to the
conclusions that the reasonable interpretation on the overtime claim
(Article 2.1) in the Collective Agreement should be as follows -
That
overtime worked in excess of Normal hours per day will qualify lor
payment only if in excess of 44 hours per week.
My
Assessors agree with my interpretation and this interpretations is
entered as an award of this Court.
J
A HASSANALI
PRESIDENT
