tanzania union of industries and commercial workers tuico vs serengeti breweries limited sbl 2023 tzhcld 1293 3 april 2023

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM LABOUR DISPUTE NO. 07 OF 2022

TANZANIA UNION OF INDUSTRIES AND COMMERCIAL WORKERS (TUICO) ….................................…. COMPLAINANT

VERSUS SERENGETI BREWERIES LIMITED (SBL) ................................ RESPONDENT

RULING Date of last Order: 07/03/2023 Date of Ruling: 13/3/2023 B. E. K. Mganga, J. Applicant filed the dispute at CMA for implantation and enforcement of the Collective Bargain Agreement that was signed on 8th April 2021 so that the same can be mediated. It happened that mediation failed, as a result, on 15th August 2022, the parties signed a certificate of Non- settlement(CMA F6). On 20th October 2022, applicant filed this dispute before this court. The dispute was assigned to the Deputy Registrar for Mediation. It is undisputed by the parties that on 8 th February 2023, the parties signed a non-settlement order in terms of Rule 10(4) of Labour Court Rules, GN. No. 106 of 2007. In the said non-settlement order, 1 respondent raised a preliminary objection that the court has no jurisdiction to determine claims which were not mediated at CMA hence this Ruling. When the application was called on for hearing, Mr. Erick Denga advocate for the respondent submitted that, this Court lacks jurisdiction to determine the prayers (i) that the Court should order respondent to provide and pay all unprovided and unpaid benefits of all collective bargain Agreement to all employees and (ii) the prayer relating to discrimination because the said prayers were not mediated at CMA. Counsel submitted that; the nature of the dispute is implementation of collective bargain between the parties

inter-alia relating to salary review. When probed by the court, he conceded that in CMA F6, it was only written that dispute not settled. He conceded further that in CMA F6, there were no reliefs that were prayed by the applicant. He also conceded that the nature of the dispute in CMA F6 is application/interpretation/implementation of any law or agreement relating to employment and that he signed the said CMA F6 on 15th August 2022. He conceded further that the nature of the dispute indicated in CMA F1 is the same as indicated in CMA F6 and that the issue of sidelined employee was amongst the complaints by the applicant at CMA. He however, maintained that the Court has no jurisdiction to determine the issue of discrimination of the sidelined. 2 Counsel for the respondent conceded further that, after failure of mediation at CMA, the matter was placed before the Deputy Registrar for mediation and that after failure of mediation, a non-settlement order was drafted and signed by all parties. He argued that the issues that were not mediated at CMA were included in the non-settlement order that was signed before the Deputy Registrar. In his submissions, counsel for the respondent conceded that Mediation was done before the Deputy Registrar because that is the requirement of the law. With all that, counsel for the respondent prayed that claims that were not mediated at CMA should

be dismissed. On his part, Mr. Jamal Ngowo, from TUICO, the applicant submitted that the nature of the dispute is interpretation and implementation of the collective bargain agreement. He submitted further that, respondent sidelined some employees and increased salary to few, leaving others, hence discrimination. He submitted further that; the same issues were raised before the Deputy Registrar at mediation hence the non-settlement that was signed by the parties. He added that, the nature of the dispute is within the jurisdiction of the Court and prayed the preliminary objection be dismissed and order the matter be heard on merit. 3 In rejoinder, Mr. Denga, learned counsel for the respondent reiterated his submissions in chief. From submissions of the parties, it is undisputed that, the dispute was filed at CMA for mediation in compliance with the Provisions of section 74(a) of the Employment and Labour Relations Act[Cap. 366 R.E 2019]. It is also undisputed that, upon failure of mediation, applicant filed this dispute before this court in compliance with the provisions of section 74(b) of cap. 366 R.E. 2019 (supra). Rule 3(1) of the Labour Court Rules, GN. No. 106 of 2007 provides clearly that this is a court of record, law, equity, and mediation. In terms of Rule 10(1) of GN. No. 106 of 2007, upon completion of pleadings, parties must hold a pre-trial conference before

the Registrar or the Mediator attached to the court. The aim of holding pre-trial conference is to help the parties to reach an amicable settlement by any means available including mediation as it is provided under Rule 10(2) of GN. No. 106 of 2007(supra). In my view, and, as it was correctly conceded by counsel for the respondent, the dispute must be mediated by the Registrar or Mediator attached to the Court before it is placed before the judge for hearing. Rule 10(2) of GN. No. 106 of 2007 (supra) requires parties to mediate on inter-alia facts that are in common, facts that are in dispute, the issues that the court is required to decide upon, precise relief 4 claimed. I have read the non-settlement order that was drafted and signed by the parties before the Deputy Registrar and find that it complied with Rule 10(2) of GN. No. 106 of 2007 (supra). I therefore hold that the court has jurisdiction to determine the issues raised and grant reliefs claimed. I should point out that, the dispute that was filed at CMA for mediation is the same to the dispute that was filed before this court. For the foregoing, I dismiss this preliminary objection for lack of merit. Dated in Dar es Salaam on this 13th March 2023. B. E. K. Mganga

JUDGE Ruling delivered on this 13th March 2023 in chambers in the presence of Jamal Ngowo, for the Applicant and Erick Denga, Advocate for the Respondent. B. E. K. Mganga

JUDGE 5