Amalgamated Engineering Union v Minister of Labour

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Watermeyer CJ, Centlivres JA, Schreiner JA, Van Den Heever JA and Fagan AJA
• Judgment Date: 21 June 1949
• Citation: 1949 (3) SA 637 (A)
• Hearing Date: 17 May 1949

Fagan, A.J.A.:

This matter has come before us by way of an appeal from a judgment given in the Natal Provincial Division. In the proceedings in that Division the present appellant was the applicant, and the Minister of Labour was cited as the respondent. The applicant (the present appellant) prayed for an order in the following terms:

'That the appointment of W. H. Windsor by the respondent on 9th December, 1947, to settle and determine the dispute between the Amalgamated Engineering Union and the Durban City Council in respect of the latter's failure to grant to engineering artisans and other members of the Amalgamated Engineering Union employed in the Transport Department of the Durban City Council a five-day working week, be and the same is hereby declared to be a valid appointment and that the purported withdrawal thereof by the respondent dated 23rd January, 1948, is of no force or effect.

Alternatively:

That the respondent be and he is hereby ordered, in terms of sec. 46 of Act 36 of 1937, to appoint an arbitrator to settle and determine the dispute between the Amalgamated Engineering Union and the Durban City Council in respect of the latter's failure to grant to engineering artisans and other members of the Amalgamated Engineering Union employed in the Transport Department of the Durban City Council a five-day working week.'

The application was supported by an affidavit made by the secretary of the Natal District Committee of the Amalgamated Engineering Union, a trade union registered in terms of sec. 4 of Act 36 of 1937 (the Industrial Conciliation Act, 1937). It appears from the affidavit that in December, 1946, the Union had applied to the Minister, in the form prescribed by the Regulations to the said Act,

'for the appointment of a Conciliation Board for the consideration and determination of a dispute which exists in the Transport Department of the Durban City Council in respect of its failure to grant to engineering artisans, etc., members of the A.E.U. employed in the Transport Department a five-day working week.'

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The application to the Minister stated further:

'(a)

The number of employees who are members of the trade union is 225;

(b)

the number of employees of the class(es) catered for by the Union involved in the dispute is 270 of whom 225 are members.'

The Minister complied with the application and appointed a conciliation board consisting of four representatives of each of the two parties to the dispute, to wit, the Union and the City Council. The board met in August, 1947, and discussed the matter, but on the 22nd October wrote to the Minister to:

'report in terms of sec. 46 of the Act, that: (a) We are satisfied that further deliberation will not result in a settlement of the dispute; (b) We agree that the dispute shall be referred to a single arbitrator for decision; (c) We agree that the arbitrator be appointed by the Minister.'

In December, 1947, the Minister appointed Mr. W. H. Windsor as arbitrator to determine the dispute. The arbitrator sat on the 7th January, 1948, but on the point being taken that his appointment was invalid, he adjourned the inquiry until the 28th of that month. On the 23rd January, the Divisional Inspector of Labour wrote to the attorneys of the City Council:

'Arbitration: Amalgamated Engineering Union and Durban Corporation re five-day week - With reference to your letter of the 7th January, 1948, I have to advise you that in view of the recent judgment in the case of the City Council of Durban v the Minister of Labour and the Durban Indian Municipal Employees' Society in which it was ruled that under sec. 46 (1) of the Industrial Conciliation Act compulsory arbitration could only be applied to any dispute between a local authority and its employees, the Minister has nullified the appointment of Mr. W. H. Windsor as arbitrator in this matter.'

The Divisional Inspector sent a copy of the letter to the Union's attorneys. The case referred to in the letter is reported in 1948 (1), S.A.L.R. 220.

The applicant Union admitted that the employees involved in the dispute are engaged in the performance of work connected with passenger transportation. This amounts to an admission that sec. 46 of the Act is applicable to a dispute between those employees and the local authority.

The Union submitted that the Minister, having appointed Mr. Windsor, as aforesaid, was not entitled in law to nullify the appointment; alternatively that, if the purported nullification was valid, then the Minister was bound, in terms of sec. 46 of the Act, to appoint an arbitrator to settle the dispute and that he had failed in that duty.

A replying affidavit by the Minister showed that the objection

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to the validity of Mr. Windsor's appointment, when he sat as arbitrator on the 7th January, was taken on behalf of the Durban Corporation, whose attorneys on the same day wrote to the Union's attorneys (sending a copy of the letter to the Assistant Government Attorney) to draw attention to the decision of the Natal Court and to state that as soon as they had the requisite authority from the Corporation they would set the legal machinery in motion and would ask for costs against the Minister and the Union. The Minister admitted the facts set out in the Union's affidavit as I have shortly indicated them above, but disputed their legal submissions. He said that when Mr. Windsor was appointed as arbitrator, the Department of Labour had not yet received a copy of the Natal judgment of 31st October, 1947, and was unaware that the Court had held that sec. 46 of the Act did not apply to a dispute between a local authority and a trade union. A single arbitrator had been appointed under sec. 46 of the Act by agreement between the parties to the dispute on the assumption that the parties were obliged to go to arbitration in terms of the said section, the employees involved in the dispute being engaged in essential services. When, however, the Department were advised of the intention of the Durban City Council to apply to Court to have the arbitrator's appointment set aside as ultra vires, the Minister, in order to avoid unnecessary legal proceedings, approved, in the light of the abovementioned judgment, of Mr. Windsor's appointment being regarded as a nullity. The Minister submitted that in the light of the said judgment the appointment of Mr. Windsor was a nullity and that it is not competent to appoint an arbitrator in terms of sec. 46 of the Act to settle the dispute between the Durban City Council and the applicant Union. He therefore prayed that the application should be dismissed with costs.

BROOME, J., who heard the application in the Natal Provincial Division together with DE WET, J., and who delivered the judgment (in which DE WET, J., concurred) on the 26th October, 1948, considered himself bound by the earlier judgment of that Division referred to in the correspondence mentioned above, which had decided that the compulsory arbitration machinery of sec. 46 (1) could only be applied to a dispute between a local authority and its employees and not to a dispute between a local authority and a trade union. He dealt, however, with the contention, put forward by counsel for the applicant, that the present case was distinguishable from the earlier one on the ground that the dispute in this

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case was in substance a dispute between the Durban City Council and individual members of applicant Union who were employees of the Council engaged upon essential services, and that the applicant Union was acting throughout as agent and not as principal. The learned Judge said:

'If the papers before us establish this proposition I have no doubt that the case would not be covered by the judgment in the Durban City Council case supra, for I do not regard the fact that it was the applicant Union that applied for a conciliation board and instituted the present proceedings as establishing conclusively that the dispute in question was one between the Durban City Council and the Union and not one between the Durban City Council and its employees. It is therefore necessary to examine the documents in order to ascertain who in truth are the parties to the dispute.'

His Lordship then discussed the affidavits and annexures in their bearing on this point, and came to the conclusion that:

'There is not sufficient material before me to enable me to come to a definite decision on the question in issue. The indications are that the dispute is one between the applicant Union and the Durban City Council but I am not satisfied that all relevant information is before me. If applicant Union desires to distinguish the Durban City Council case it must lay before the Court facts which will establish its contention that the dispute is in truth one between the Durban City Council and its employees. This applicant has failed to do. The application is therefore dismissed with costs.'

The applicant noted an appeal to this Court, and the matter was set down to be argued on the 17th May of this year. On the 13th May the Assistant Registrar of this Court informed the appellant's and the respondent's attorneys, first by telephone and then by confirming letter:

'That when the appeal in this matter is argued the Court will raise the question whether it is competent to make an order without joining the Durban Corporation, which appears to be vitally interested in the result of these proceedings.'

The respondent's attorneys replied, on the 14th May, to the effect that they had received the following telegram from the Assistant Government Attorney, Durban:

'My records disclose Durban Corporation served copy of application papers and notice of hearing before Provincial Division. Letter from Corporation Attorneys shows Corporation considered advisability intervening.'

The appellant's attorneys wrote on the 16th May to say:

'that a copy of the...