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Caseno5598 16 Resp BOA P 1 2 3 4 5 6 7 8 9 10 AMALGAMATED ENGINEERING UNION v MINISTER OF LABOUR 1949 (3) S... Page 1 of 17 11 AMALGAMATED ENGINEERING UNION v MINISTER OF LABOUR 1949 (3) SA 637 (A) 1949 (3) SA p637 Citation 1949 (3) SA 637 (A) Court Appellate Division Judge Watermeyer CJ, Centlivres JA, Schreiner JA, Van Den Heever JA and Fagan AJA Heard May 17, 1949 Judgment June 21, 1949 Annotations Link to Case Annotations Flynote : Sleutelwoorde Practice - Joinder of parties - When required - Effect of non-intervention - Necessary parties - Master and servant - Industrial Conciliation Act, 1937 - Application for order on Minister to appoint arbitrator - Other party to dispute should be joined - Appeal - Appeal Court taking point of non-joinder mero motu - Form of order. Headnote : Kopnota The fact that, when there are two parties before the Court, both of them desire it to deal with an application asking it to make a certain order, cannot relieve the Court from inquiring into the question whether the order it is asked to make may affect a third party not before the Court and, if so, whether the Court should make the order without having the third party before it. If a party has a direct and substantial interest in any order the Court might make in proceedings or if such order could not be sustained or carried into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings, unless the Court is satisfied that he has waived his right to be joined. Mere non-intervention by an interested party who has knowledge of the proceedings does not make a judgment in such proceedings binding on him as res judicata, nor can such non-intervention after receipt of a notice short of citation be treated as a representation that the party concerned will submit to and be bound by any judgment that may be given, so as to set up an estoppel. At appellant's request respondent had appointed an arbitrator to consider and determine a dispute in regard to working conditions between appellant and the D. City Council, but subsequently on representations from the Council 1949 (3) SA p638 'nullified' the appointment on the ground that the dispute was not one to which compulsory arbitration could be applied under section 46 of the Industrial Conciliation Act. Appellant unsuccessfully applied to a Provincial Division for an order declaring that the appointment of the arbitrator was valid or alternatively ordering respondent to appoint an arbitrator. Copies of the papers in the application were sent to the Town Clerk, who subsequently informed the respondent that he did not propose to recommend to the Council that it should intervene. On appeal from the decision of the Provincial Division, the Appellate Division mero motu raised the question whether it was competent to make an order without joining the Council, and both parties contended that the Council was not a necessary party and desired the Court to hear argument and give judgment without having the Council before it as a party. http://ipproducts.jutalaw.co.za/nxt/gateway.dll/salr/3/32223/32631/32678?f=templates... 09/11/2016 AMALGAMATED ENGINEERING UNION v MINISTER OF LABOUR 1949 (3) S... Page 2 of 17 12 Held, that the Council should have been cited as a party to the proceedings. Held, further, that the non-intervention of the Council after notification of the proceedings did not entitle the Court to decide the issue in the expectation that the Council would consider itself to be bound or would in fact or law be bound by the judgment. Held, therefore, that final judgment on the merits of the appeal should stand over to enable the Council to file with the Court through its own attorneys a consent to be bound by the judgment. Case Information Appeal from a decision in the Natal Provincial Division [BROOME, J., and DE WET, J.]. See 1948 (4), S.A.L.R. 876. The facts appear from the judgment of FAGAN, A.J.A. G. Findlay, K.C., (with him E. R. Browne), for the appellant: As to the kind of representation that characterises the position of appellant, which involves interpretation of the phrase in sec. 35, Act 36 of 1937, 'sufficiently representative of the employees involved in the dispute', the representation for which the Act has regard is merely such influence and spokesmanship as will make conciliation with the representative effective to prevent industrial unrest and not legal representation as of principal and agent: the word 'sufficiently' rules out legal agency; it is not absolute representation in the legal sense in which the voice of the agent is, at law the voice of the principal but statutory representation analogous to that of members of Parliament or of town councillors who represent constituencies or the Society of Advocates representing the Bar, in none of which there is legal agency. Such statutory industrial representatives have legal procedural rights under the Act; appellant can therefore require the statutory procedure in which it functions to be carried through; see Bakers, Ltd v National Union of Operative Biscuit Makers & Bakers of SA and Presmeg (1946 NPD 10); S.A. Municipal Employees Association 1949 (3) SA p639 v. City of Cape Town and Another (1933 CPD 585 at p. 591). It is submitted that City Council of Durban v Minister of Labour and Another (1948 (1), S.A.L.R. 220), was incorrectly decided on the second issue relating to the 'Provident Fund'; the learned Judge overlooked the fact that the dispute was being defined in sec. 46 not by reference to the statutory spokesman or 'formal' parties, involved in it but by the actual parties materially or substantially involved in it; see S.A. Association of Municipal Employees v Schoeman, N.O. and Others (1949 (2), S.A.L.R. 287). Disputes can be identified in three ways, (a) by their content, e.g. as to conditions of employment, as to wages, etc., (b) by the parties involved (1) formally, i.e. the 'A.E.U.' dispute, the 'B.W.I.U.' dispute or (2) substantially, i.e. the essential-service men's dispute, the Firemen's dispute, etc.; where the aim of sec. 46 is to prescribe the parties who may appear as spokesmen, as in sec. 35, it refers to the dispute between the 'formal' parties; where the aim is to make special provision for essential municipal services, it must identify the dispute by referring to the parties substantially interested in it. For the purposes of sec. 46 it is quite irrelevant who happens to be conducting the dispute as spokesman; it is not the formal disputant, but the substantial disputant, whose relationship constitutes an essential service; it is necessary therefore to refer to the persons substantially involved; to do so, however, does not rule out the formal representation; it merely identifies the particular kind of dispute more directly. The use of the words 'the parties to the Council or the employees and employers represented on the Board' in sec. 45 (1) suggests that, whoever might be such 'parties', the intention of the Legislature was that, except in the case of services referred to in sec. 46, the dispute might, by agreement, be submitted to arbitration and, where the dispute related to the case of services referred to in sec. 46, the dispute must go to arbitration. The aim of sec. 46 must be gathered from its place in the Act as a whole; compulsory arbitration appears to have a two-fold purpose, viz., (a) it gives the parties concerned a compensatory privilege in view of the deprivation of their right to strike or to lock-out, and (b) it gives an additional safety valve against illegal striking and locking-out and so reinforces the prohibition. In saying, in Town Council of Benoni v http://ipproducts.jutalaw.co.za/nxt/gateway.dll/salr/3/32223/32631/32678?f=templates... 09/11/2016 AMALGAMATED ENGINEERING UNION v MINISTER OF LABOUR 1949 (3) S... Page 3 of 17 13 Minister of Labour and Another (1930 TPD 324 at p. 328), that compulsory arbitration was an inroad upon civil 1949 (3) SA p640 rights and must therefore be restrictively construed, TINDALL, A.J.P. (as he then was), overlooked its character as a compensatory privilege and as a statutory safety valve; compulsory arbitration is provided not because the parties choose to be represented in a certain way but because vital services in cities must be kept going. The contrary view would lead to gross absurdities, e.g. a local authority would lose its right to insist on compulsory arbitration in order to change conditions of service if the employees insisted on being represented (as they have a right to be) by a trade union. Similarly, the essential-service men would lose their right if the Council insisted on being represented by an Association of Municipalities. Compulsory arbitration involves reciprocal rights, intended to be enforced from both sides to relieve an impasse. Further. it would be grossly inconvenient if the procedure up to the board stage, lawfully taken by a trade union, then became abortive and if the individual employee then had to commence de novo; that would be contrary to the policy of the Act which encourages and protects trade unionism and collective, as against private, bargaining; see secs. 66. 78, 79, 80. It is more important to conciliate unions, the inevitable instruments of upheaval, than individuals; it is futile to conciliate the wrong people. The person conciliated should be 'sufficiently' represented in terms of sec.
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