NA TZHC Dar es Salaam2 2

IN-THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR DISPUTE NO. 25 OF 2008 BETWEEN GENERAL SECRETARY RESEARCHERS, ACADEMICIAN AND ALLIED WORKERS . ti UNION [RAAWU] ............. ~ ..................................... COMRJ;tJNANT VERSUS :;~!\,. v e,-...,_,, \ •. KULU MASWANYA - ''fit:' .f~~·~,;; ~tt.'- ·,s _) ACTING SECRETARY MLIMAN BRANCH ..... -~.'t: ~- . ....."':~ ...... RESPONDENT ~(~$~ 11/05/2015 & 05/06/2015 . Mipawa, J. '"·'"' \~(r, ~ .~ii .._,.~:~..-- ?-~ ~ ~~~1~;~~~. This complaint has been filed"-oyllhe applicant namely Researchers Academician and Allied W" ·~.., - er~ Union as against the Respondent Kulu "-':~. 1 . Maswanya, the Aci,,pg "'.,":~n __ Secretary of the Applicant's Mlimani Branch. The proce~ding$. h'"'· e been instituted under Section 53 (1) and 94 (1) (d) -~;t!,; . .i~t/:;~.~tt . ~.!.I? of the Employm,,en'' · ___, cfcabour Relations Act2 • · tti}{t'\1~,~~;,iJt . The rlcf$flyvhich the applicant put forward to rely upon in this . ~?~if?~ compla1Q~~J~ 6asically fo1.1r that is [idestJ:- 1. the Branch Secretary has the duty to collect membership contribution and union dues and remit the money to the Secretary Generaf. 1 Commonly known for its acronomy as RAAWU 2 Act No. 6 of 2004 Cap 366 R.E. 2009 3 Article 4:5 (b) (1) (vi) of RAAWU Constitution 1 2. That the constitution of RMWU required under article 3:6 to retain 20% of the membership union dues to the Branch 80% to be remitted to the Head Office4• 3. It is the duty of the General Secretary to administer and to take care of the union money under article 11 :2 (f) and report to the relevant authorities all union expenditure and tQA insist good ~ 4.t~<•~ administration of union funds'. ,~., ,,f~ ~\t r l~,..~.,/·~ 4. The respondent had failed neglected "or refuse'ct-;;~z,,to ~:remit the ~$,;A~ ~~~- meinbership subscription of 80% t°«l(ae Head'~• Office Tzs. ~-t~ ...--,.;;Jt.-.. J ':, 101, 3'3J , 38'2 1 r6 • u . . ·~"1,, · · ' ',,. ~1f! The Respondent on the other h,9drrar C!,~_,{ n reply to the amended . ~w-~- '~- ~{{w statement of complaint that, thg~ respdng,ent.t as instructed by the branch . -- ~ - ~ ..~:tw:41.tJlrt - - union members not to remit thei(·rponey;_to the Head Quarters for failure to #~~r- .{_:~tfwt$}~ account for it, bad use of'¾'.{the same~s·and for very poor service to the members:'- ·-~!;,,~~''#.l,·.. ... That /siifct;,.~'R.M,,fti!U is a voluntary organization its t# -~~~- -~:-~.i~J.. ~,:.fl7e. b ·~'"-,.. a~~ exclusive liberty and power to refuse to ~~ir a ·i;\i~, ;,~ r··nold their fees if no plausible services is r;~n,r;tJr~l!ifi to their satisfaction by the union leaders they (f '~~ Y}~f/lng... 7 4 ibid article 3:6 5 · ibid article 11:2 (f) 6 Applicants statement of complaint at page 2 7 Respondents reply to the.amended statement of complainant 2 The Respondent further stated that, the General Secretary of RAAWU has no absolute power to command or instruct the Branch Secretary to operate and act the way she want [against wishes of members]8:- ... [That] the branch members of Mlimani have exclusive power and unanimously have instructed the Respondent not to remit their deductions to the General Secretary · on grounds that the Head Quarters h_.t!,ft,_<t tw::· "'&'ii~. tJ:fe\,., ~ ~~. continuously mis-appropriating their deducti/ins "mrtheir ,:, .·, "'~;,~ . 9 own benefit... ~~"'"-rJt ··"~t~s . •fi't"';, It was the contention of the respondentd~ -;Js r;~f to the statement . . ~~ ~;;,. ·~&, of complaint that, the respond,~ ~c it~,- perating under the instruction/mandate of the Mlim,:fni' BrS,nc m.emffers who elected him and 2·:-.. ~~•~-;,,,. "'?} ·whom have instructed him to wi'fhhold th§'irc:bntribution 10 • - ~};· ·,,f;~}JJ/1,,Jw During the hearing,r,~!'~'11-~~ complaint the applicant was represented ' by Mr. Nzowa, Learnedb{:oun$_el~while - the Respondent enjoyed the service ~a~x1~~. ~t!;:.:. ~:~ - of Mr. Mwarabu, L~'Ei'rn'ed.Y,,;,,Cbdnsel. <~*$0 Evarist Mwalongo Zonal RAAWU Seereta main complaint is about members ' "'~ contnll not been remitted to the General Secretary· t the Head Quarters. He produced as exhibit in Court a letter of 4th October, 2007 written by the employer University of Dar es Salaam on the deduction of monthly contribution of members and which contribution 8 ibid at page 2 9 op. cit note 7 at page 2 10 op. cit note 7 at page 3 3 is remitted through a cheque to the Branch 11 • He also produced a letter completing the employer to remit members contribution direct to the Secretary General 12 • ·He also told the Court that he was informed by the Chief Accountant that Branch contributions were not being remitted to the Head Quarters - - ,-:;'5-,,. e.""':::1t~. about 141 million Tzs. They wanted the employer t~¼i9heret t:~ Ac¼£Jo. 6 {JP ~:, 1;·\(c -~· of 2004 section 61 that it was his duty to remit the tonti\gutedfJtl6ney to ~;~¾., the National General Secretary. However PW1 con..tluded th'at, he was not t~r~ informed that members did direct the Branch L~if~iJfship,_ not to remit the . fY..-,. ~j~. ·~~i1Jt contribution to the head office because the,y wen~ "-/g~tting poor services. He ~% <"~~- ~~~ concluded that you can contribute withontgettingj~ervices. ,. . . (' The Applicant prayed that/toe COLI' ·1ac{grant an order to compel the .. ' '"'"" respondent to remit the unr~fnitt;~~lmioi dues to the Head Office and any -;~~~%.:,_ ' ,/4, other order the court may<g~erQJit to grant. ;~~~~~~~~~~,,~•i~~ The Respong,,enf~\f;1r";t~>Kulu Maswanya told the Court that as an employee ~ft~14~en;)t, of Dar es Salaam since June, 1903, they have ) ..,::.,;.c"<.•• ...~, two traq~v~,b~t:!?h{t_J},§lnely Researchers Academicians and Allied Workers .,.. '<,' ;,1.,.- ··,;;.,. ,;,;so UrWb.Q. style4(.~wu and Tanzania High Learning Trade Union THTU 13 • The ~.~~ · -~:;-stff.1t · THTU -~.aS.,::fbr;;,ed after the members were dissatisfied with the services ~!Jl'" . RAAWU was providing to them 14. 11 th Exhibit P. 1 letter dated 4 October, 2007 12 Exhibit P. 3 letter to the employer dated 1ih Feb. 2008 wrote by RAAWU asking the employer University of Dar es Salaam to remit the contribution to the Secretary General 13 THTU was formed in the year 2008 from RAAWU 14 Members formed riew trade union styled THTU due to poor services RAAWU provided and misuse of the members contribution 4 The Respondent further testified that he was elected as an Acting Branch Secretary of Mlimani from March, 2008. After taking office, he found in the office a decision or resolution of members at the General Meeting that their contribution should no more be remitted to the Head Office of the Applicant RAAWU. The reasons were that the members were not getting services from RAAWU Applicant. The contribution,,ceased to be sent to the Applicant in the year 2007. . ,/( q:,;,,\ '®,, The Respondent further added that the merp,bers haverpowers with ) their contribution according to RAAWU constitJ~{~1.-ao4~ the Employment • ~~.t.:.!t,~ . ~•it~ . '<!;"f~t~· 15 and Labour Relations Act • That when ~t,!ll~'tQ,- e17f\~fails or does not sent '•.:~~ ·•~¢~ ·;:-:,., contribution for three consec~~~~ive;~d11.Q,t"tQ,.~~,1:Re is dismissed from · membership or lost his member{fu"~' au1q ,~,all,6 > t-;•~ \,1..,_ .. 3.9 (a) Mwanachama-tt,atakoma kuwa mwanachama iwapo~ ,(_ "°~;~'111 (1) ,,,.l:faPan1,asilL§_ha michango yake kwa miezi ··rt~:; ~'{.f~·,. ·--.$~~ ,;t;.7if~r:¥0it{t[!:'J(!lfululizo kwa makusudi. ir. 1;~;~.. ·:&~~¥ ,·- -!_) ~{aJiuzulu uanachama kwa kuandikia ,;~lb~:. ~.:;11 . "y.tFfalmashauri ya Tawi lake juu ya uamuzi - wake. (4) ... (not applicable) (5) ... (not applicable) (6) ... (not applicable) (7) ... (not applicable) - 15 op. cit note 2 16 RAAWU constitution article-3:9 (a) 5 The Respondent testified further that if he could have collected members contribution contrary to the members wishes they could have fired him out of office. He did not misuse any members contribution or acted against the constitution 17 • ...;--'!.?::'i. • After the members had stopped to set contributjqh's tcftf)_e appl,icant L~1!:.;~¾~ ~~- vi~· 18 they decided to form a new trade union called THTU ~\,~_ich f~9uld deal '~ with their problems. Their contribution remaine4rin RAAWO'zaccount but ~~~-ls, later on it was used to strengthen the nevf.ly f6rJ:ri~d trade union 19 • • ~:,~ "1,~- -"f:~:e:f.tt However not all members shifted to the "~new"'i:'trade union and their --~~)11-. ··~~~Y.:1:-i -~:.~. contribution was remitted to· RAAWU ~"i,J:_4-., ti.Head'{'oJficle': -•: , . "-½~:{.g.~ The Respondent and others shifted to the new trade {,inion. "'1\,~. ,ii ,,,,.~~i',?2' f:,!. _iW. The charges of misaR8fopriatiti°hz6f funds that was preferred against ~~~~ the Respondent was wash~ei\ 9way by the Director of Public Prosecution ~-~.. "\.-~~¾.. -~b-4~>. - that the respondent - '~;,'\ "fcpncerned 20 • He produced a letter from the Director o - · · ·,., -ga ions to that effect21 • ;) In ~on~ usifl9~$;,~he respondent told this Court that he is no longer a .,~ '5._._. ·-;~. RAAWU met;p ~1;.,and the contribution dues of the members who remained ~J:-... ~~ ·~4ifo ~~~ . in RAAWU trade union were remitted to RAAWU Head Office. 'wf>.;(i,'.W' ~%"'· 17 ibid 18 Tanzania High Learning Trade Union formed in the year 2008 after breaking from RAAWU 19 ibid 20 The OPP wrote to the Police Criminal investigation Department that he was [Respondent] not concerned 21 Exhibit D letter from DCI Director of Criminal investigation Department of 20/07/2007 reference no. CID/HEAD QUARTERS/C. 8/11/Vol. V/114 6 The issues which were agreed inter-parties at the hearing of the complaint were basically four (4) which may be summarized as follows:- 1. Whether the Respondent by virtue of his position as Branch ·Secretary had failed neglected or refused to remit to the Head Office of the Applicant the 80% of the unions dues collected despite being reminded to do so. ,,. .,:fJt ~'-l'fif: fk 0 ~;,:,.k.P 2. Was the Act of the Respondent to refuse to4.'£tef;!}/t IF ~,,,., the\~0% \t ,.& f:of the ··">;>,~,. 'wd.ilf' union dues collected contravened RAA WU constitUtfo(J ana illegal. . *~, .&,., i<,,,t.,Y -~==-~,.,,, · 3. Whether or not the Respondent was instrU<ted by members not to remit the unions dues22 • zcJf ~tti1~ 1;1~: {~}74,. .,_,.__ 4. Whether the members have exc{µsi~e~.powers to instruct their _..•:l:'1?.<:s~ -~{t~. "fl•~i~ - Branch Secretary not ta r,.?m/fthe~t~0%~tof the union dues to the . 3 Head OffiaJ. · 1\ '¾··~l~ ,tii~ 1 a> "'\">,,,,()~ The Learned counsels for both parties filed their final written <* ,,,~~it. submission pursuant tqJh-~to ~f,J\,.ij,JO this Court24 • ~- V' The.~omglpili:j:mt s wvri ·en submission was that under clause 4.5 (b) ti'%'""-- ~., (i) (vi) of th ., .f;J; /(AA~~., '"'1'·~.. ,;, nstitution 25 , the union field branch secretary has a 1,#,l;;,,;;,.,, ~-;;; .»,i . duty to Q'6I1~~1,t)n~mbership contributions and union dues and remit the ,.Q~: "">q-15.. same~~ thJi~~lral Secretary [union's Head Quarters] 26 • ·,~ 22 See the amended statement of complaint and the submission of the respondent and the complainant on the agreed legal issues 23 ,, ., op. cit note 22 24 th The order was given on 9 July, 2014 by the Court 25 RAAWU constitution [2005] 26 Complainant's written submission finale at p. 1 7 That under clause 36 of the RAAWU constitution 27 , 20% of the membership union dues collected is retained by branch and remaining 80% is required to be remitted to Head Office . .. .3. 6 Mgawanyo wa ada ya uanachama asilimia ishirini ada ya uanachama itabaki tawini na asilimia themaninF 80% itapelekwa Makqp Makuu... 28 -l#"f,;. It is the duty of the General Secretary [a~~:E~~r the co.~stitution] to ~·;.iI~t~ administer and take care of union funds and_ Jo ·~:k •;,r~port to the relevant · ""•;f~s .. ' t..rl ~l~•. ,. ,~. .t."''· union's organs on how the union's monies has'~~~,i~Q~t1ptil~td 29 • 1 ~~9 . 'i(ti~'•<}., of,:f'4s,'> 4't~h • The complainant submitte9,l1JrthgFlfiatfnttlieir view once union dues !f:.X•t ~~t.; ~~ · -_: -- is deducted from members salaiiy it bec6rn_g$/Unions property and the field . --,t~~:--:.. f}~.. ,...p · - branch secretary is required J9 remit .~Q% of it to the Head Office without ~~~:~~· .~:.,;.. ;€':,_;-.t~ any excuse and short ofrSp:at~~!s contravention of the union's constitution and the law30 • He furthe;;tfo1J'~\he court in his submission the duties of . /~~®"' ' If;;;':i> · trade union repres~ntatt~e at" work place as required by the Employment <t~ and Labour'Relation ~t~~--~ , -_ 11 :.j ~ - J '· that:- ~·Actru- . tf'-'$"it6Ji:t4)%;/;itTrade union representative shall perform the f ·i,i~ following functions:- ~--1t ~b*' (f) To perform trade union functions under the unions constitution32 • 27 op. cit note 25 28 op. cit note 25 the Kiswahili version as quoted from the complainant's written submission 29 Clause or Article 11.2 op. cit note 25 30 op. cit note 26 at page 2 31 Act No. 6 of 2004 Cap 366 R.E. 2009 32 ibid 8