20140925 TZHC Arusha1

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

ATARUSHA LABOUR DISPUTE NO 1 OF 2013 RAAWU FIELD BRANCH AT TPRI.. ........................... .' ..... CO

VERSUS I 26/5/2014 & 25/9/2014 ! I \ R.M.RWEYEMAMU, J:- · i ,, ii ' ,it~(t~: i ,i i ,f.', ' ~ ·11:~. ".i,'il, . :\ ' i/'.1;;·, f\<l!':; In thi§. matter, I am called~~n to decided whether or not a trade union field branch •fb._ ~ has mandate ··t~tt~r\lr,'law, to seek recognition from an employer as an an exclusive bargaining· agent of t'ff~milfhees in the employers• work premises. This dispute is over such ,;i. ~;» rec~~,ltion und~r the Employment and Labour Relations Act, 6' of 2004 (the ELRA): ' ~'\;,'''f;.~~~e:,r:,-,~~. J,:;.;~}J~ The Complainant herein, is .a union field branch at the' respondent's work premises (work unit), of the Researcher, Academicians and Allied Workers Union, a registered trade union best known by its acronym RAAWU. The parties are referred to herein as; the field branch, the employer unit and RAAWU. {1] ,~·\a.~- ,, ~- ~ \ iI I i· \ \ The dispute between the parties arose when the field branch applied to the employer \ '• i i unit to be recognized as the exclusive iargaining agent of the employees in the employer unit1 \ ' I i in terms of Section 67 (1) and (3) of the ELRA. The request was refused. The -result~nt ! dispute was unsuccessfully mediated by the .CMA and subsequently referred to this Court. i \l Before hearing of the dispute commenced! the employer unit raised Preliminary Objection \ (PO) on grounds that:- \ \ . "(1)That the complainant

above me~tloned does not have the ~~us \t\gd to file this matter before this honourable court11 . . ~~ .· - -~ • 1 i-;,iJ/, .-t!i~-' . .. In the matter both parties were represented by Ad··· atesl Mr. Makange and Mr. W. , I - ' Mawala for the field branch and employer unit. res _..· ..... ly. Due to unavoidable _ -· circ_umstances, hearing of the PO proceeded b . ~9.f Written submission. ""1-!,, '1ffiJ,. ' l \~ \ 1 • In' support of the objection 1Mr Mawala fo -,~player unit submitted that, the only ~-\,,, \ iI party with mandate to refer a recog]aition dispute to this court, following failure of mediation · ,, I . . ~w - . . . 1 under Section_ 67 (6) of the ELRA· 004 is a. registered trade union, not such union s field \I branchl which is what the complainan{\\ Mr. Makange's response in opposition tq the PO \ - . \ ! was that; the issue wh~ik ~- ·~~ union branch has locus is not a point of law·, which can be . ·••s, .. \ \ disposed of by way of. P~~ ,er rule in Mukisa Biscuit Manufacture Co. Ltd Vs. West End Distri~~ts· Ltd. _lo support of his argument he quoted the relevant part of the ~ ~ . ' . . deel~ig,~ inM~,,~elowJ I reproduce only part of his submission 1being the opinion of Law JA th at·· :-4t;l~J: _ ,~,i;...._.,-.,..~ ·:, r ':'-,\· "So far as I am aware, a preliminary objection consists of a point of law which has been·pteaded, or which arises by clear implication out

of pleadings, and which if argued as preliminary point may a dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 11 [2] \ \ I \. I ; ,-. C ,•, .r.•· •.'> ~ ·,. ~ Counsel went on to submit that, according to common law principles as enunciated by Lord Denning in the Treatise, The. Judge and the Law "... as a way of promoting good industrial relations, as opposed to being an end in itself ... even individual workers ... may be represented by the union .of their own choice". Therefore, the issue of locus is that of fc~ct, which has to be ascertained, consequently, it cannot be raised as PO. \.,\ 'l~"i. .·~. The issue for decision is this: whether or not the question whefb1~?''a trade union branch can be recognized as "an exclusive barga • \. agent of employees" at the .. employer premises' is a pure point of law. ~~. With due respect, I do not subscribe to 1 ~,~;\l',~:ing above of Counsel Mr. Makange. It is my firm view that becaus e issue ofp · ~~Jlo Collective Bargaining (CB), between employers and employees is . rly provided for under the ELRA, there is no need to resort to principles of common la~~j..~r-.rJ;ection 67'(1) of the ELRA, the right of . '•:~':'~~~? recognition as an exclusive barg~ining agent

of employees is granted to "a registered trade union", i1u1ii., . not a union field branch. Un,_ ··r, · le 2 of the ILO Collective Bargaining Convention 154 of 1981, the term CB is defined a otiations which take place' between an employer.. ... a group of employers or one o.r mote- _employers organization on ... one hand, and one or more workers organizations, on the otherhand." 1~~~11;!it;.• ·. lndid ard to imagine successful CB between employers and their employees, ' aving collective power, with the famous solidarity, employees are able to muscle the ability to bargaining as equals with employers only through that collective power, conventionally, represented by trade unions. It is in line with this; that the right to bargain on behalf of employees in a given bargaining unit is given to a registered trade union, not a branch of such union. ' [3] ~,I \ I I I In concluding, I am not oblivious of the fact that it is legally possible under the ELRA, I \ for a loose collective of employees instead of a registered trade union· to collective bargain II \I with their employer. in a workplace, but the extent to which that can happen in Tanzania is · \ provided for under· Section 73 of the E.LRA. For ease of reference, I quote the section ! \. below:- \ "Section 73(1} ELRA A recognized trade union and an ·t'~Joyer or an e~J,loyer'~. i . I. association may conclude a collective

agreement esta'l5tishi~ I .\ participation in a workplace~. \ \ In this case, is apparent from pleaded facts ~ift, what was sought by the \ complainant was not to "... establish ... a forum for worker's p;~ tion,.but to be recognized as \I an exclusive bargaining agent, which as explained. abo.ve, -,s only a prerogative of a \ \ I registered tra.de union. ('t:- · \ \ I In the final result of all I have explainel!~, ... I sustain the respondent's PO and \ r . di~_miss~d t~e dispute accordingly. dfr, \ \ ~~ :l -~'l.. ··~ i .;; ".f," "iW!- ~'\ . 1 ! ~. ~~'t,._, _3:0,._--- !ll:i~--;.,...- \I .,.~~ R:M. Rweyem 1 I, JUDGE I , --;;:fl. _ . 25/09/2014 .' -·~.- - Or~r: -This c:i¥nd the signed ruling are submitted to the Deputy Registrar, wit insfrtt~~?ns that she causes the same to be forwarded to Arusha, where parties should be .._:h. ,, summonl-~1~:. a ;f the ruling. delivered to them by· th~ DR, Arusha (DR Labour Court Sub- registry). .M. Rweyemam I JUDGE - \ l • 25/9//2014 . [4]