finance industrial banking utilities commercial and agro processing industries trade union fibuca vs international commercial bank tanzania limited 2022 tzhcld 977 5 o

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR DISPUTE NO.l OF 2021 FINANCE, INDUSTRIAL BANKING UTILITIES COMMERCIAL AND AGRO PROCESSING INDUSTRIES TRADE UNION (FIBUCA)......... ...................COMPLAINANT VERSUS INTERNATIONAL COMMERCIAL BANK (TANZANIA) LIMITED ................................ RESPONDENT JUDGEMENT K. T. R. MTEULE, J. 29th September 2022 & 5th October 2022 This is a Labour dispute seeking for an order to compel the respondent International Commercial Bank (Tanzania) Limited (ICB) to meet with the complainant, Finance, Industrial Banking Utilities Commercial and Agro Processing Industries Trade Union (FIBUCA), for further negotiation to conclude a collective agreement recognizing the complainant as the exclusive bargaining agent of the majority of the membership in the respondents workplace. In 2016 the complainant being workers' union held a discussion with the employer for establishing workers union in the respondent's working place. The complainant was given access to meet the employees of the i respondent and started to recruit members. In the process of recruiting members, the complainant managed to get 17 members out of 60 employees of the respondent. After a long discussions and exchange of correspondences, a draft agreement was prepared for recognition of the complainant as an exclusive bargaining agent in the respondent's workplace. The respondent did not sign the agreement on the reason that there was no consent of majority employees regarding exclusive bargaining unit. Being aggrieved with the respondent's decision, the applicant unsuccessfully referred the dispute to the Labour Commissioner. Desiring to have the matter resolved, the complainant lodged a labour dispute with the Commission for Mediation and Arbitrator for mediation purposes. The mediation failed, hence the present application. Upon hearing, the complainant called one witnesses, namely, Abdallah Kinenekojo, who testified as PW1. The witness identified himself as the executive secretary of the complainant who has been working as such after being promoted from other positions in which he worked since the establishment of FIBUKA and he is currently the Executive Secretary with duties to manage all daily activities of FIBUCA. He testified that they once came across the respondent's employees who were interested in their services. They wrote a letter to the Respondent (exhibits Pl) 2 to request access of organizing her employees in their trade union. He recalled the initial discussion with the respondents employees where he commenced the process of establishing FIBUCA as a worker's organization within the Respondent's work place. According to PW1, the letter was addressed to the Managing Director of the respondent requesting meeting with employees and respondent agreed in reply. He said that after accessing the employees, they managed to register more than 30 employees, and by that time there was no any other trade union operating in the respondent's office. He further testified that in the discussions, they managed to prepare a draft of recognition agreement which was made ready for signing. The draft of recognition agreement was tendered and admitted as exhibit P4. He continued to state that after presenting the agreement to the respondent, no response was given and after a long silence they made reminders for several times with no success. The witness tendered the reniinder letters as exhibit P5 collectively. PW1 continued to testify that after seeing no action on the part of the respondent, they referred the matter to the Labour Officer to intervene, but the efforts became fruitless. He stated that the matter was referred to the Commission for Mediation and Arbitration where mediation failed leading to this dispute in this court. 3 On cross examination, PW1 said that the terms of contract were discussed in the meeting and each side agreed to the contents, and the respondent told them that the agreement is taken to the Board. He admitted that the number of employees dropped from 30 to 19 due to respondent's threat. On re-examination, PW1 stated that to be recognized as exclusive bargaining unit, firstly one must have members, secondly there must be a branch of the union and thirdly must have more members if there is a competition of union and if there is only one single union nothing bars that existing union to acquire the status of being exclusive bargaining agent. The defense side had one witness, DW1, who identified herself as a head of legal department. In her testimony, she remembered FIBUCA as a union seeking recognition as exclusive bargaining agent in the respondent's office. She stated that exclusive bargaining agent is a representative of employees with majority members and according to her, majority members means members who are majority in terms of percentage of the number of all the employees except the member of the management. DW1 stated further that by the time they started communication with the applicant in 2017 the Bank had 60 employees and 7 of them were in 4 management so only 53 staff remain with qualification to join a trade union. According to her, the applicant has remained with 17 members and every month, there is a list of employees whose payment used to be sent to applicant (FIBUCA). Further to that, DW1 currently the employer has 55 employees and only 48 of them have qualification to join Trade Union and out of them only 13 members of staff are members of FIBUCA. She stated that she knows the list because every month the accounts section makes deduction of the employees' salaries and send the contribution to FIBUCA. The bank documents were tendered and admitted as exhibit DI collectively. DW1 was in one with the correspondences between the complainant and the respondent concerning the recognition as exclusive bargaining unit. She tendered these correspondences as exhibit D2 collectively. She claimed that the complainant did not meet the criteria to be recognized as an exclusive bargaining agent in the respondent workplace. DW1 admitted the fact that parties had a draft contract of recognition, but it was not signed by the respondent because upon consultation, the respondent was advised that the complainant was not qualified to become an exclusive bargaining agent because she had 19 members which was only 32% of the entire respondent's staff. She disputed existence of threat to the employees who wants to join FIBUCA. 5 On cross examination DW1 stated that in getting majority percentage of membership, computation should be made out of the entire staff and the members must be more than 50 percent of the entire staff. On further cross examination, DW1 admitted that there is no other Trade Union in the applicants work place apart from the complainant (FIBUCA), who came to organize members. Parties filed their final closing submissions. The complainants submissions were filed by Levina K.P Kagashe, Advocate while the Respondent was represented by Mr. Raphael Rwezahula Advocate. I appreciate their industrious work done in their respective submissions which will be taken into account in making this judgement. Having considered the evidence adduced by the parties as well as their submission, I now address the issues framed by the Court and the parties, which are firstly, whether the complainant had the majority membership to make it an exclusive bargaining argent at the respondent's working place and secondly, to what relieves are the parties entitled. Before I venture into the disputed questions, I find it wise to explore the legal foundation of recognition of a trade union as an exclusive bargaining unit. I am in one with the parties' submissions on the application of Sections 60 and 67 of the Employment and Labour 6 Relation Act, Cap 366 R.E 2019 which provides that; - 60. -(1) Any authorized representative of a registered trade union shaii be entitied 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 shaii provide a union recognized 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. Section 67 of the same Act, provides; - 67. -(1) A registered trade union that represents the majority of the employees in an appropriate bargaining unit shall be entitled to be recognized as the exclusive bargaining agent of the employees in 7 that unit. (2) An employer or employers' association may not recognize a trade union as an exclusive bargaining agent unless the trade union is registered and represents the majority of the employees in the bargaining unit. From the provisions of sections 60 and 67 of Cap 366, it is an established principle that for the registered trade union to establish a field branch at any workplace there must be ten members who are employed therein. As well, for the trade union to be recognized as exclusive bargain unit/agent, it must be registered and represent the majority of the employees in the bargaining unit. It is not disputed neither in the evidence nor in the parties' submissions that the respondent has refused to sign an agreement recognizing the complainant as an exclusive bargaining agent in the bargaining unit. The reason assigned by the respondent for such refusal according to DW1 is lack of majority member in the complainant's membership. Therefore, the epicenter of the dispute lies on whether the complainant hold the majority of the membership in the respondent's bargaining unit in accordance with Section 67 (1) of Cap 366. Parties seems to differ on how to compute the majority of the membership. While DW1 believes it to be supposed to be counted from 8 the majority of the entire staff, the respondent believes that it needs to be compared with another existing trade union. To resolve the above debate, it is important to define what amounts to Bargaining Unit. It is to be noted that Section 67 (1) of Cap 366 requires majority of the members to be computed from the "employees in an appropriate bargaining unit" According to Thomsom Reuter, Practical Law from Legal Information Institute, the phrase "Bargaining Unit" in the labor context, means; "a group of two or more employees who share common interests in their terms and conditions of employment and who either: Are represented by a union for the purpose of bargaining over terms and conditions of employment. The bargaining unit is usually defined in the collective bargaining agreement and described by the employees’ type of work, Job classification or location.” From the above definition, bargaining unit is a portion of employees involved in trade union membership. From Section 67 the majority of the employees needs to be computed from the bargaining unit. Having defined the phrase collective bargaining unit, I now address the disputed 9 question on the qualification of the applicant to form an exclusive bargaining unit or argent in the respondents working place. In this matter PW1 and DW1 testified that the applicant had recruited more than ten members as indicated by ICB list of members as per Exhibit P 10. Further to that DW4 on cross examination admitted that at the respondent working place, FIBUCA was the only trade union who recruited respondents employees. That means the collective bargaining unit had only the complainants members since there was no any other trade union at the respondents working place other than the complainant who had ail the membership in the bargaining unit. In this respect, I agree with Ms. Levina that computation of membership is compared by the trade unions available in the workplace. The majority is looked at which trade union recruited more members amongst the already organized members who I constitute the bargaining unit. Basing on Sections 60 and 67 (1) and (2) of Cap 366, the only criteria of establishing trade union at employer's working place, is that the trade union must have 10 members who are employed and for the union to be recognized as an exclusive bargaining unit, first it has to be registered and secondly must have majority member of the employees in the bargaining unit. In this matter it is not disputed that the complainant's organization namely FIBUCA was already registered and till this time it is io the only workers organization which exist at respondents working place. I am guided by Chodawu v. Mkonge Hotel, Lab. Dispute No. 01 of 2011, High Court of Tanzania, Labour Division, at Tanga (unreported). In this case, similar situation featured where the court was confronted with the issue of what constitute exclusive bargaining agent. Chodawu being a single trade union, it was found to be excusive bargaining unit. It was held that; - "Following a Recognition Agreement signed between the union and the employer, the union became exclusive bargain agent (also known as, majority union) of the employees in the work premises for the purpose of negotiating and concluding Collective Bargaining (VB) agreement" As well, Ms. Levina Kagashe cited the case of Tanzania Union of Industrial and Commercial Workers (TUICO) versus DAWASCO, Labour Dispute No. 2 of 2011 (unreported) where a similar holding was made by the court in circumstances similar to the instant one. She quoted the following words from page 5 of that decision:- ”... there is no ambiguity to the term 'possess a majority of employees' in the context of applications of principles of Freedom of Association provisions of ii the Act in a workplace. Under section 60 of the Act, the only qualification for a union to establish a branch at any work premises, is to be registered and have more than 10 members at that work premises. It is in that spirit of multi unionism, the term has to be understood. In that light, term clearly means, a union with a majority of employee members compared to other unions with a branch at such work premises. It is my decision therefore, that the term the majority of employees refers to a de-facto majority, such as would be ascertained if one conducts a ballot of affected employees. " The position in above authority, applies to this application since the applicant met the requirement provided under Section 60 and 67 of the ELRA, the respondent had a legal duty to recognize the complainant as an exclusive bargaining agent by negotiating and conclude recognition agreement. I therefore cannot agree with Mr. Rwezahula that the baseline of computing the majority is the entire staff of an organization in which the trade union is seeking recognition. From the above deliberation, I find the issue as to whether the complainant had the majority membership to make it an 12 exclusive bargaining argent at the respondent's working place answered affirmatively. What then are the reliefs of the parties. The applicant has prayed for the order of this court to compel the respondent to meet with the complainant for further negotiation to conclude a collective agreement recognizing the complainant as the exclusive bargaining agent of the majority of the membership in the respondents workplace. From what is already found, I see no reason not to grant what is sought by the complainant. From the foregoing, I find the compliant with merit and allow it with the relief sought therein. Thus, I order the respondent to meet the complainant for further negotiation to conclude a collective bargaining agreement recognizing the complainant as the exclusive bargain agent at her working place. I give no order as to cost. It is so ordered. Dated at Dar es salaam this 05th Day of October, 2022. H- KATARINA REVOCATI MTEULE JUDGE 05/10/2022 13