Consolidated Frame Cotton Corporation Ltd v Minister of Manpower and Others

• Jurisdiction: South Africa
• Judge: Booysen J
• Judgment Date: 29 March 1984
• Citation: 1985 (1) SA 191 (D)
• Hearing Date: 27 January 1984
• Court: Durban and Coast Local Division

Booysen J:

This is an application for an order declaring that a dispute between the applicant, an employer, and the third D respondent, a trade union, which was referred to the industrial court (the second respondent), no longer exists and did not exist at the time of such reference; secondly, an order setting aside the reference; thirdly, an order declaring that an undertaking given by the applicant not to recognise the fourth respondent, another trade union, as the collective bargaining representative of its employees or to grant any E facilities to it at its Frametex mill is no longer binding upon the applicant.

The matter has a fairly long history. The applicant is a public company which is part of a large group of companies manufacturing textiles at 18 different complexes throughout Southern Africa, and known as "The Frame Group of Industrial Organisations". The first respondent is the Minister of F Manpower; the second respondent the president of the industrial court of South Africa; the third respondent is the National Union of Textile Workers, and the fourth respondent the Textile Workers' Industrial Union (South Africa).

The New Germany complex of the group comprises the Frametex mill (consisting of one spinning with two weaving mills and one G polypropylene mill); the Seltex spinning mill, and the Pinetex mill (consisting of two spinning mills and one weaving mill) which are all owned by applicant and the Nortex mill (consisting of one woollen mill, one semi-worsted mill and one weaving mill) and the NKM knitting mill which are owned respectively by two other companies in the group.

During 1981 and 1982 the fourth respondent was granted H recognition as the collective bargaining representative for the workforce at the Seltex-Nortex, NKM and Pinetex mills. Both the third and fourth respondents had members at the Frametex mill. At a meeting between respresentatives of applicant and third respondent, held on 1 October 1982, third respondent I claimed that it had recruited as members a majority of the weekly paid Black workforce at the Frametex mill and claimed recognition as the collective bargaining representative for that workforce. Whether the applicant at that meeting agreed to recognise the third respondent or not and whether such agreement was enforceable at law subsequently became hotly disputed. During April

Booysen J

A 1983 the third respondent applied to first respondent in terms of s 35 of the Labour Relations Act 28 of 1956 for the appointment of a conciliation board for consideration and determination of its dispute with applicant.

In annexure "A" to that application, the third respondent gave B the necessary information in regard to the matter in dispute. Because of the argument advanced before me, I quote paras 3 - 12 of that document.

"3.

On 1 October 1982, and at Pinetown, the union represented by John Copelyn and Jabulani Gwala (officials of the union) met with the company, represented by Abe Frame and another member of management. C At that meeting the company agreed that:

3.1

The company would recognise as the sole collective bargaining representative of its weekly paid employees at its Frametex mill that union which commanded majority support amongst such employees. The majority was to be demonstrated by way of a clerical check of stop order authorisations given under the hand of such employees at the Frametex mill.

3.2

D The company would:

3.2.1

negotiate bona fide with such recognised union on all matters concerning the relationship between it and its employees of the Frametex mill;

3.2.2

grant organisational facilities in the Frametex mill to such a recognised union, such as stop order facilities.

3.3

The company would observe an attitude of impartiality E to the union's quest for recognition and would not:

3.3.1

foster, promote or advance the interests of one union at the expense of another;

3.3.2

encourage, persuade, coerce or compel its employees at the Frametex mill to prefer, whether by enrolling for membership, evincing support or otherwise, one union above another;

3.3.3

F allowing any recruitment by, or organisational activity on behalf of, any union in preference to any other;

3.3.4

extend any facilities, assistance or co-operation to any one union in preference to another.

4.2

The above agreement embodies the company's labour policies and practices in respect of union recognition at its Frametex mill.

5.

During December 1982 to March 1983 the union submitted 2429 G stop order forms given under the hand of employees at the Frametex mill as proof of its representativeness. The forms were submitted in batches and, by 4 March 1983, the union had submitted forms from a majority of the employees of the Frametex mill.

6.

The union claimed its rights in terms of the undertaking given on 1 October 1983 on the basis of such majority support. The company refused to recognise the union as H aforesaid on various grounds. This is the first issue in dispute between the parties.

7.

The company denies that the union has demonstrated majority support of the Frametex mill because the company rejected 1010 forms submitted by the union on various grounds. The union contends that the vast majority of rejections are not fair and is simply a device to avoid its obligation to recognise the union. This constitutes the second issue in I the dispute between the parties.

8.

The company denies that the union has a majority support at the Frametex mill because an opposing union, the Textile Workers Industrial Union (SA) (the 'TWIU') has, the company contends, majority support at the Frametex mill. The union denies that the TWIU has majority support at the Frametex mill. The union further contends that the company has actively assisted the TWIU in order to defeat the union's claim to representativity at the Frametex mill.

Booysen J

8.1

The company has permitted the TWIU through its members A and otherwise to recruit during working hours and on the premises despite the company's stated labour policy to the contrary.

8.2

Senior members of staff such as Ashwell and Nyembezi of the labour office have participated in the recruitment of members for the TWIU during working hours and on the premises.

8.3

Employees have been induced to join the TWIU by B threats of dismissal from their superiors.

8.4

Requiring and permitting appointed members of the liaison committee to urge employees to join the TWIU during working hours and on the company's premises.

Instances of the conduct are contained in the affidavits attached to the union's application in terms of s 43 of the Labour Relations Act.

The above conduct of the company constitutes the third issue in C dispute between the parties.

9.

In order to resolve the above disputes, the union proposed on 4 March that a secret ballot be held at Frametex in order to determine which union had majority support for the purposes of recognition. At a meeting on 25 March 1983, the company rejected the proposal without good reason. In order to break the deadlock, the union went further and proposed that an official of the Department of Manpower interview D those employees whose stop order forms the company had put in dispute. This proposal was also rejected without good reason. The union contends that the company has failed or refused to adopt and observe that impartiality necessary for its role as an arbiter of the competing interests of the two unions and that a secret ballot scrutineered by both unions and the company is the only fair way in the circumstances to resolve the dispute. This is the fourth E issue in dispute between the parties.

10.

Notwithstanding these outstanding disputes between the union and the company, the company has nevertheless evinced the intention to go ahead and recognise the TWIU and thereby impose on its employees a union that does not command majority support. This is the fifth issue in dispute and is the subject of a status quo application in terms of s 43 of the Labour Relations Act pending the F resolution of the dispute by the above conciliation board, alternatively by the industrial court in terms of s 46 (9) of the Act.

11.

The above five issues in dispute between the parties constitute separate unfair labour practices in that:

11.1

the failure to recognise a representative union constitutes an unfair labour practice because the relationship between employer and employee may be G detrimentally affected thereby; labour unrest may be created or promoted thereby; and because the industrial court has already held such practices to be unfair;

11.2

the interference with the principle of freedom of association constitutes an unfair labour practice in that the moral and social welfare of employees may be unfairly affected thereby; labour unrest may be created or promoted thereby; and the relationship between employer and employee may be detrimentally H affected thereby;

11.3

inducing employees to join or not to join a trade union under threat of dismissal constitutes an unfair labour practice in that employees' work security is unfairly jeopardised thereby; labour unrest may be created or promoted thereby; and the relationship between employer and employee may be detrimentally affected thereby;

11.4

the imposition of a trade union which has not fairly demonstrated majority support is an unfair labour I practice in that labour unrest may be created or promoted thereby and the relationship between the employer and employee is detrimentally affected thereby.

12.

The above five issues constitute the dispute between the parties and the subject-matter for resolution by the conciliation board, failing which determination by the industrial court in terms of s 46 (9) of the Labour Relations Act."

Booysen J

A...