COMPLAINT NO 06 OF 2023 CHAWAMTA VRS MIGHT LOGISTICS LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR-ES-SALAAM COMPLAINT NO. 06 OF 2023 BETWEEN CHAMA CHA WAFANYAKAZI WA MALORI TANZANIA (CHAWAMATA)......................................................... APPLICANT VERSUS MIGHT LOGISTICS L T D ........................................................ RESPONDENT JUDGEMENT Date of last Order: 23/ 10/2023 Date of Judgement: 10/ 11/2023 MLYAMBINA, 3 The Applicant herein is an association of workers of lories in Tanzania which was registered with registration No. 032 on 28/05/2015. It is alleged that after registration, the Applicant served the Respondent a letter along with a form No. TUF14 seeking to conduct a meeting with workers at the employers' area. The form was served on 28/3/2023. The letter suggested the meeting dates to be 28/3/2023, 05/04/2023 and 12/04/2023. The Respondent never acted upon it. Thereafter, the Applicant decided to lodge a complaint at the Commission for Mediation and Arbitration (herein CMA) Temeke on 10/05/2023. Despite of several summons issued by CMA to the Respondent, the latter never appeared. On 14/06/2023, the Mediator issued a Certificate of failure to Mediate as reflected in exhibit C3. Following failure to mediate, the Applicant resorted to come to this Court pursuant to Section 64(4) o f the Employment and Labour Relations Act [Cap 366 Revised Edition 2019] (herein ERLA). At this Court, the matter started with mediation before Hon. Kassian, Deputy Registrar as per Rule 24(7) and (8) o f the Labour Court Rules, GN. No. 106 o f 2007. The Mediation failed. Consequently, the matter proceeded to arbitration stage. Before the Court the Applicant prays for the following orders: i. That, this Honourable Court be pleased to order the Respondent to comply with the legislations o f the United Republic o f Tanzania with respect to the organization rights o f the Labour Trade Union CHAWAMATA who is the Complainant ii. That, this Honourable Court be pleased to order to conduct meetings and recruit/continue to recruit members as per the law. iii. That, this Honourable Court be pleased to order the Respondent to pay fine for intentionally refusing to comply with the provisions o f the Employment and Labour Relations Legislations o f Tanzania. iv. That, this Honourable Court grants any other reliefs as it deems just, fair and fit to be granted. The matter was argued orally. The Applicant was represented by Mr. Jimmy Mnkeni, the Applicant's Principal Officer. On the other hand, Mr. Hassan Salum, learned Counsel appeared for the Respondent. Arguing in support of the application, Mr. Mnkeni adopted the Applicant's affidavit to form part of his submission. He contended that CHAWAMATA has been given duties under Section 64 o f ERLA, which were complied with. It served the Respondent with form No. TUF 14 together with a letter served on 28/03/2023. It was argued that the duty to enter the Employer's premises is stipulated under Section 60(1) o f ERLA. That, any employee of the Registered Association will have a right to enter the employer's premise in order to recruit employee (members), conduct meeting or meet them in the employer's premises. Mr. Mnkeni went on to submit that; after compliance with the law, as per Section 63(2)(e) o f the Labour Institutions Act [Cap 300 Revised Edition 2019], it is illegal to delay or obstruct a person discharging duties under this law or any other labour law. He further argued that Section 102(3) o f ERLA (supra) requires whoever found liable in violation of Section (7), (8) & (9) o f ERLA (supra) will be liable to a fine not exceeding TZS five Million (5,000,000/=). It was the Mr. Mnkeni's submission that, since the Respondent denied the Applicant's right of association, such act was contrary to Section 9 o f the ERLA (supra). Given the fact that CHAWAMATA was denied right of access to the Respondent's premises, it means the members of CHAWAMATA were denied the right of association. In the upshot, he prayed for the reliefs sought to be granted. In response to the application, Mr. Salum pointed that on the part of the Respondent, they are not affected with the prayers sought. They left it to the Court to issue the necessary orders. He admitted that TUF 14 and a letter were received by the Respondent on 28/3/2023 but they never complied. He stated that the Respondent did not understand the meaning of TUF 14, that is why the Applicants were denied access. Mr. Salum further admitted that ignorance of the law is not a defense. He stated that the Respondent engaged them as counsel while the matter was before Hon. Kassian, Deputy Registrar at the High Court Labour Revision. Mr. Salum contended that there is no proof of summons to show that the Respondent was served but never appeared before CMA. There is no such proof. He stated that they were served to appear before the High Court. He urged the Court not to issue a fine of five million because the service procedure was not proper before CMA. Rejoining the application, Mr. Mnkeni admitted that it is true the affidavit does not reveal when the Respondent was served. He prayed the fine be paid because they did not want to settle before the Deputy Registrar. I have cautiously considered the submissions of the parties, Court records as well as relevant law. The issue for determination before the Court is whether the Applicant is entitled to the reliefs sought. The Applicants stated that they were exercising duties conferred to them under Section 60 o f the ELRA (supra). The relevant provision is hereunder reproduced for easy of reference: 60.-(1) Any authorised representative of a registered trade union shall be entitled to enter the employer's premises in order to— (a) recruit members; (b) communicate with members; (c) meet members in dealings with the employer; (d) hold meetings of employees on the premises; (e) vote in any ballot under the union constitution. (2) A registered trade union may establish a field branch at any workplace where ten or more of its members are employed. (3) The employer shall provide a union recognised in terms of section 67 reasonable and necessary facilities to conduct its activities at the workplace. (4) The rights under this section shall be subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent undue disruption of work. As clearly stated, Section 60 o f the ELRA (supra), authorizes a representative of a registered trade union to enter into the employer's premises in order to recruit members, communicate with members and conduct meetings of employees in the employer's premises. In line with Section 60 o f the ELRA (supra), the Applicant notified the Respondent through TUF 14 and a letter which were admittedly received by the Respondent on 28/3/2023. The notice was served pursuant to Section 64 o f the ELRA (supra). For the reasons which were not clearly stated, the Respondent neglected to respond to the served letter, an act which prevented the Applicant to exercise the right conferred. It is a trite law that every law enacted by the parliament must be obeyed to its letter. No one can be left at liberty to disobey the laws of the land. Such act will defeat the purpose of enacting the law in question. Any violation of the law without lawful justification will attract to penalty. Adherence to the laws of the land is also a constitutional obligation provided under Article 26(1) o f the Constitution o f the United Republic o f Tanzania, 1977which provides that: 26.-(l) Every person has the duty to observe and to abide by this Constitution and the laws of the United Republic. The obligation to obey the law was also emphasized in the case of Iringa Retco (2000) Company Limited v. Permanent Secretary of Ministry of Finance and Planning & 32 Others, Civil Case No. 02 of 2020, High Court of Tanzania at Iringa Sub Registry (unreported) where it was held that: As the matter of fact, laws are enacted to be obeyed, the procedure to be followed and not otherwise. The Court has been vested with the mandate to interpret the law and make sure that the purposes are achieved. In the matter at hand, as stated above, the Respondent did not state any justifiable reason for failure to allow the Applicants to exercise their organizational rights. The rights exercised is dully conferred by the labour laws and all the procedures were followed accordingly. The Applicant argued that as per Section 63(2)(e) o f the LIA (supra), the Respondent committed an offence and he is liable to a fine. Much as the Respondent admitted having failed to comply with the provisions of the law, this Court has no jurisdiction to impose fine against him. Such mandate is within the District Court or Court of Resident Magistrate. This is in accordance with Section 102 (1) o f the ELRA which is to the following effect: A District Court and a Resident Magistrate's Court have jurisdiction to impose a penalty for an offence under this Act. In the result, I find the present application has merit. The Respondent is ordered to comply with the provision of the law by allowing the Respondent to conduct meetings and recruit or continue to JUDGE 10/11/2023 Judgement pronounced and dated 10th November, 2023 in the presence of Jimmy Mnkeni, Legal Officer for the Applicant and Counsel Hassan Salum for the Respondent.