COURT CONFIRM ORDER STOPPING STRIKE OVER ANNUAL BONUSES

MBABANE - The Industrial Court has confirmed an interim order stopping the strike over annual bonuses by employees of Eswatini Meat Industries –Limited.

The order interdicts the employees and their representatives from proceeding with the strike that commenced in the afternoon of December 16, 2021. The court also called upon Victor Zwane, Ndumiso Dlamini and Amon Maziya, who engaged management on behalf of the employees, to take all appropriate steps to prevent or persuade the employees from participating in the illegal work stoppage. The judgment was issued by Acting Judge Banele Ngcamphalala. Eswatini Meat Industries (EMI)-Limited was represented by Kenneth Motsa of Robinson Bertram in the matter.

Result

EMI informed the court that in its last Board meeting on December 7, 2021, it resolved that the company would not be able to pay its employees any annual bonus. This, according to EMI, was as a result of losses suffered by the company in 2021 to the amount of E2 795 312. The resolution of the Board was to be communicated to the employees on December 16, 2021. The employees are said to have become aware that their salaries would not contain the annual bonus. Zwane, Dlamini and Maziya, according to the company, approached senior management and requested to address them, advising that the employees had mandated them to address the management and demand their annual bonus.

The Senior Manager, Nombulelo Mhlanga, is said to have advised them that the company had made a loss in that year and the Board had resolved that the company would not pay them any bonuses. Upon hearing this, the employees stopped work and left cows on the slaughter line and carcasses unattended. They are said to have left the company premises and advised that they would not proceed with work until their bonuses were paid. On December 17, 2021, according to EMI, the employees reported for work but did not carry out their normal duties. They are said to have engaged in a sit-in and made it clear that they would not continue with any work until their bonuses were paid.

Affidavit

The trio of Zwane, Dlamini and Maziya stated in their affidavit in court that they did not have authority to represent other employees and that EMI should have joined Swaziland Manufacturers and Allied Workers Union (SMAWU) as a party. Motsa, on behalf of EMI, told the court that in 2010, EMI recognised SMAWU as a union. He said a dispute arose within SMAWU which saw over 75 of the employees terminating their membership with the union. The employees, according to Motsa, requested to be paid back their monthly subscriptions to SMAWU as they were no longer members of the union. Motsa also told the court that EMI wrote to the two factions of SMAWU, advising them that pending the resolution of the conflict, it would not forward any subscriptions to them. EMI informed the court that to date, no subscriptions were forwarded to the unions, despite both directing that the subscriptions be paid to them.

“The respondent, as a result, informed the applicant (EMI) that they had formed a Workers Committee and advised the applicant that until the impasse has been resolved within SMAWU, they would deal with matters concerning the workers’ welfare. Applicant avers that it has been dealing with the first to third respondent (Zwane, Dlamini and Maziya) as representatives of the Workers Committee to date,” said Motsa. EMI informed the court that the strike was causing a disturbance to its business and had brought operations to a halt, affecting both businesses locally and its exports. The company also submitted that it had requested the employees to return to work and stop the work stoppage. However, they refused and the company approached the Industrial Court.

The respondents, Zwane, Dlamini and Maziya, told the court that they did not have authority to represent the employees and that SMAWU should be joined as a party to the proceedings. They argued that EMI recognised SMAWU. They submitted that even though they were no longer members of SMAWU, the further respondents - employees of EMI who are represented and willing to participate in the strike – were still members of SMAWU and paid subscriptions.

Representatives

They argued that EMI had no right to cite them as representatives of the further respondents and to vest them with power to act on their behalf. The respondents told the court that they did not have authority to represent them and that there was no Workers Committee in the workplace but a recognised union. The trio submitted that when they approached management on the issues relating to management, they did so in their personal capacities as employees of the company and not on behalf of other employees. Only a registered and recognised trade union or workers’ council, according to the respondents, can be recognised as lawful representatives of the workers in the workplace.  Their attorney told the court that SMAWU had the right to bargain on the rights of the employees who were not fully-paid up members of the union.

Judge Ngcamphalala said the factional dispute within SMAWU had rendered the relationship between EMI and the union to be non-existent. Zwane, Dlamini and Maziya, according to the judge, conceded that as a result of the factions within SMAWU, they had resigned and further directed EMI to stop paying their subscription to the union. “The court is of the view that the non-joinder of SMAWU into the proceedings cannot be said to adversely affect SMAWU or the respondents. Further, the court cannot see how SMAWU would be prejudiced by not being cited and the possible order issued being executed as it has long ceased working with the applicant and was merely a representative of the employees on paper. The point of non-joinder therefore fails,” said Judge Ngcamphalala.

Function

The court also considered that since SMAWU, due to the factional dispute, no longer served its function to represent the interests of employees collectively, it was Zwane, Dlamini and Maziya who performed that function. Judge Ngcamphalala went on to urge the Commissioner of Labour to intervene and work towards ensuring that the factional dispute was resolved, since it was evident that the impasse had an adverse effect on the rights of the employees who are represented by SMAWU. According to Judge Ngcamphalala, there could be no doubt that if the strike was allowed to continue, EMI would suffer severe financial prejudice ‘in an already difficult market’. The judge said the employees needed to comply with the dispute resolution mechanisms prescribed by the Industrial Relations Act to have their disputes and grievances lawfully addressed.

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