South African Association of Municipal Employees v Minister of Labour

• Jurisdiction: South Africa
• Judge: Ramsbottom J and Price J
• Judgment Date: 25 September 1947
• Court: Transvaal Provincial Division
• Hearing Date: 10 September 1947
• Citation: 1948 (1) SA 528 (T)

South African Association of Municipal Employees v Minister of Labour
1948 (1) SA 528 (T)

1948 (1) SA p528

Citation	1948 (1) SA 528 (T)
Court	Transvaal Provincial Division
Judge	Ramsbottom J and Price J
Heard	September 10, 1947
Judgment	September 25, 1947

Flynote : Sleutelwoorde

Master and servant — Industrial Conciliation Act, 36 of 1937 — Conciliation Board under section 35 — 'Dispute' — Meaning — May arise after termination of employment — Need not be subject for industrial council agreement under section 24 — Matter affecting single employee — Appeal under section 77.

Headnote : Kopnota

A 'dispute' proper for determination by a conciliation board under section 35 of the Industrial Conciliation Act, 36 of 1937, can arise between an employee and an employer after a lawful termination of the contract of employment, i.e. where the contract has been terminated in accordance with its own provisions.

An issue not covered by the provisions of section 24 as a subject for an industrial council agreement can become such a 'dispute'.

A trade union may turn an issue between a single employee and his employer into a dispute between itself and the employer, even if a question of principle affecting other employees is not involved.

An employee engaged in essential services had been lawfully advised that his employment was to be terminated on the ground of superannuation. The trade union to which he belonged, which was held to be sufficiently representative in terms of the Act, made representations to his employer that his services ought to be retained because he had rendered faithful service, his efficiency was unimpaired and his superannuation benefits were inadequate. On failure of these representations the Minister was requested, but refused, to appoint a conciliation board to consider and determine the dispute.

Held, allowing an appeal under section 77 of the Act, that a dispute existed and the appointment of a conciliation board should be approved.

Case Information

Appeal under sec. 77 of Act 36 of 1937 against a decision of the respondent.

G. S. Findlay, K.C. (with him, S. Bekker), for the appellant: The issue is, (1) is there a dispute and (2), if so, is it a question of law? The dispute concerns the terms on which de Vos shall be retired and the policy regarding age and conditions of retirement. This is a trade dispute: see Halsbury, Laws of England (Hailsham ed., Vol. 32, p. 311 note (d)). As to when a dispute is one of law, see Rustenburg Town Council v Minister of Labour and others (1942, T.P.D., at pp. 227 - 8). As to the kind of dispute cognisable, cf. Johannesburg City Council v Barry (1941 TPD 312). The dispute may concern policy. As to the functions

1948 (1) SA p529

of a conciliation board under secs. 35 - 6, cf. those of an industrial council under secs. 23 - 4. The matter in dispute is likely to lead to unrest and is apt for conciliation. A dispute does not necessarily concern legal rights as much as moral claims: cf. secs. 23 - 4; sec. 64.

D. Gould, K.C. (with him, E. L. Jansen), for the respondent: The appellant did not dispute the Council's right to terminate the employment of de Vos. It merely bargained for his re-employment on new terms and conditions. The new contract of employment was requested as an act of grace, not as a matter of right. The Council's refusal to accede to this request constitutes the sole subject-matter of the alleged dispute. This is not a dispute within the meaning of sec. 35 and cannot form the subject of conciliation board proceedings. A conciliation board is in effect an ad hoc industrial council, and can only be appointed to settle a dispute of a type which would have been cognisable by an industrial council, had one existed (secs. 35 and 36). Only disputes relating to matters which could form the subject of an industrial agreement are cognisable by industrial councils. See secs. 23 and 24; Muehlendorf and Another v Rand Steam Laundries, Ltd. (1945, T.P.D., at pp. 323 - 4). Sec. 24 relates solely to matters regulating the reciprocal relations of employer and employee during the subsistence of a contract of employment. The Act does not impose obligations on persons to enter into contracts of employment - cf. Baker v Ingall (1911, 2 K.B. 132, 139) - nor does it impose fetters on the contractual rights of parties to regulate the duration of such contracts. The termination of a contract of fixed duration can only give rise to a dispute within the meaning of secs. 35 (1) (i) and 64 (6) if the contract is prematurely terminated, but not if the contract is terminated by effluxion of time or on the happening of a stipulated event in accordance with its own provisions. In the latter event the position is equated to that which would have obtained had the employee himself given notice of termination. Cf. Rustenburg Town Council v Minister of Labour and Others (supra).

In any event, the dispute related solely to the dismissal of de Vos, and raised no general issue or question of policy affecting or calculated to affect the 'conditions of employment' of any class of the Council's employees or matters of 'mutual interest' to the Council and any of its employees. An employee can take

1948 (1) SA p530

up the cudgels on his own behalf when he alone is affected; a trade union can be a party to a dispute only if the dispute affects its members as a whole or some of its members as a class. de Vos may not desire re-employment with the Council on the terms suggested by the appellant or at all, and the contemplated conciliation board proceedings might accordingly be grotesque in their futility.

Findlay, K.C., in reply: de Vos does want re-employment. Under sec. 35 we are entitled to raise a dispute not involving a matter of principle; but here a question of policy arised. de Vos is an employee for the purposes of investigating his dismissal. A trade union never has any interests of its own but advances the interests of its members. If a dispute under sec. 35 must relate to matters enumerated under sec. 24, sec. 35 is unnecessary, as its purpose would be served by sec. 64.

Cur adv vult.

Postea (September 25th).

Judgment

Price, J.:

This is an appeal under sec. 77 of the Industrial Conciliation Act, 36 of 1937. The appellant is a Trade Union registered under Act 36 of 1937 and complains that it is 'a person aggrieved' within the meaning of sec. 77 of the Act, because of the following facts:

A certain J. J. de Vos was employed by the Town Council of the Strand, Cape Province, as town electrical engineer. On the 25th January, 1946, he reached the age of 60 years. Thereafter the Council by resolution decided to continue his employment until the end of February, 1947. This resolution was rescinded later and Mr. de Vos was given notice that his services would be retained until the end of January, 1947.

On the 4th April, 1945, the Council passed a resolution making 60 the retiring age of all its employees. This resolution was rescinded on the 5th November...