tanzania plantation and agricultural workers uninon vs tanzania union of industrial commercial workers union tpawu another 2023 tzhc 22015 13 october 2023

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LABOUR REVISION NO. 16 OF 2022 (Arising from Dispute CMA/MOR/138/2020 and the settlement between the parties dated^'^ August2022) TANZANIA PLANTATION AND AGRICUTURAL WORKERSUNION (TPAWU) APPLICANT VERSUS TANZANIA UNION OF INDUSTRIAL, COMMERCIAL WORKERS UNION (TUICO) 1^^ RESPONDENT KILOMBERO SUGAR COMPANY 2^° RESPONDENT JUDGEMENT Date of last order: 01/08/2023 Date of Judgement: 13/10/2023 BEFORE: G. P. MALATA.3 This application for revision intends to challenge the award of the Commission for Mediation and Arbitration of Morogoro in Labour dispute number CMA/MOR/138/2020. The background of this application as gleaned from a chronology of events narrated from the applicant's Page 1 of 20 affidavit depicts that; the respondent and the applicant had entered into a recognition agreement whereby the applicant was recognized as the collective bargaining agent at the 2"^ respondent work place. In 2020, a dispute arose between the applicant and respondent herein on the organizational rights, whereby the respondent requested the 2"^ respondent (employer) to grant her access to exercise organizational rights at its work place. The 2""^ respondent delayed to respond to the respondent's request as a result the first respondent referred the dispute to the Commission for Mediation and Arbitration (CMA) for mediation. The applicant filed an application to be joined as an interested party which prayer, the application was granted. Apart from the present dispute, the parties had other disputes in the CMA, the parties agreed to resolve the differences under mediation. In solving the same, the applicant and the respondent appointed two mediators, CMA officer and the General Secretary-TUCTA. The matter was marked settled following signing of Consent order/judgement on 5^*^ August, 2022. It was the applicant's complaint that, after thoroughly perusal of the agreement, it came to her attention that, the Consent order/judgement contains material irregularities, including offending some fundamental Page 2 of 20 provision of the law, following that discovery the applicant wrote a letter to the mediator and co-mediators indicating the material irregularities contained in the consent order/judgement communicating its intention to disown the Consent order/judgement. Following discontentment, the applicant approached this court seeking to revise and set aside the consent order/judgement made by the CMA at Morogoro in Labour dispute No. CMA/MOR/138/2020. When this matter came for hearing, the parties were represented, the applicant was represented by Mr. Kitua Kinja, learned counsel, while the respondent was represented by Mr. Noel Nchimbi and the second respondent was represented by Mr. Danstan Kaijage, both learned counsels. Submitting in support of application Mr. Kinja prayed to adopt affidavit in support of the application as part substantive evidence in support of the application and submitted that under Section 9 of Employment and Labour Relations Act, Cap 356 RE (ELRA) depicts that employees are free to join any Trade Union within the work place. Section 47(1) of the ELRA, requires that every Trade Union to have constitution which govern the enrolment of members and all other activities of the Trade Union. Page 3 of 20 Mr. Kinja submitted that, CMA was legally required to ensure that what the parties conclude in the settlement Deed should not be in violation of the law. He stated that the applicant is a Trade Union dealing with workers engaged in agricultural sector, the respondent deals with workers engaged in Industrial commercial. Financial and services. It was his submission that, the ELRA permits, the respondent to access and recruit members outside within parameters of her constitution. That, the settlement Agreement permit the respondent to access and recruit members at the work place of the 2"^ respondent whose workers are already members of the applicant. There are contracts between applicant and 2"^ respondent recognizing the applicant as an entity with exclusive bargaining powers at the work place. Part of Consent order/judgement such as items 1, 2, 3, 13, 14, 15 and 18 are in item of the contravention with paragraph 6 in the sense that it allowed the 1^ respondent to access and recruit members from other places already having Trade Union, in the 2"^ respondent inclusive. Mr. Kinja submitted that, the mere that there is Trade Union at that work place, the 1^^ ought not to have allowed to exercise organizational rights. Moreover, he submitted that, at the 2"^ respondent's work place there is no workers engaged and falling within the constitution of the 1^^ Page 4 of 20 respondent, thus allowing her to have organizational rights at that work place. It was therefore, Mr. Kinja's submission the consent order/judgement did contravene the law thus a nullity to that extent. In reply thereof, Mr. Kaijage learned counsel for the respondent supported the applicant's version. He submitted that, thlst respondent has been granted right to have organization at the 2"^ respondent while there are no employees engaged in the business for which the respondent has right to register employees. He submitted that, the 2"^ respondent is neither the 2"^ respondent nor her employees are engaged in industrial, commercial, financial services thus eligible to be considered for registration as member of the respondent. As such, he was of the opinion that, it is not proper for the respondent to have organizational right at the 2"^ respondent's works place. In view thereof, he was in support of the applicant's version. Mr. Nchimbi learned counsel for the respondent commenced his submission by stating that, the Consent order/judgement is legally valid. He stated that, section 64(1) of ELRA provides that, any registered Trade Union may exercise a right at work place. The first respondent is a registered Trade Union thence has right to access an organization Page 5 of 20 right under Section 9 of ELRA, as there is no law prohibiting any Trade Union to work or have members where there another existing Trade Union. However, such right is exercised subject to the respondent's registered constitution. To cement his argument, he succumbed that, the respondent is registered and legally mandated to recruit member at industrial sector, commercial sector, financial sector and consultancy services. He further submitted that, the 2"'^ respondent is an industrial place dealing with manufacturing of sugar commonly known as, Kilombero Sugar. Therefore, the 2"^ respondent's work place falls within industrial place, thence in the constitution of the respondent. He further submitted that, the law allows to have more than one Trade Union in one work place and the consent order/judgement sanctioned and contains the same, therefore in line with the law. Submitting against what ins contained in the affidavit by the Applicant, he stated that, there is no illegality pointed out to warrant this court invoke revision and reverse the Consent order/judgement. Thus, the consent order/judgement is lawful and the applicant's application has no merits. He finally prayed for dismissal of the application. Page 6 of 20 By way of rejoinder Mr. Kinja submitted that, every employee has right to have access and have organization rights, the rights conferred under Section 64 of the ELRA are subjected to their Constitution. The Trade Union's activities are registered according to sector. The respondent has no relation whatsoever with the activities by the 2"^ respondent. Allowing the Respondent to work at the 2"^ Respondent is completely against the law and he prayed the settlement Deed be nullified on that ground. This marked the end of parties' submission. It is now a time for this court to deliberate and decide on what the parties have hold horns. In reaching to the destination this court one key issue to determine that; Whether the applicant has raised plausible reasons for revising and setting aside impugned Consent order/judgement/consent Order To start with, consent order/Judgement can be elucidated as, a judgment issued by a judge based on an agreement between the parties to a lawsuit to settle the matter, aimed at ending the litigation with ajudgment that is enforceable. The deed of settlement entered is accordingly recorded and form part of this consent judgment as held by the Court of Appeal in the case of Motor Vessel Sepideh and Another Versus Yusuph Mohamad Page 7 of 20 Yusuph and two Others, CM! Application No. 237 of 2013, unreported, where the Court held that "Where there is a lawful agreement or compromise, the Court Is bound to record settlement once It Is arrived by the parties" Based on the above guidance including that of the court of appeal, Courts/Tribunals and parties are bound to the terms of Settlement Agreement and should enforce it to the dictates. However, courts in some peculiar circumstances can interfere with Settlement Agreement if a party seeking the court to do so can prove beyond sane of doubt that, there exist such peculiar circumstances. Therefore, for the consent order/Judgement to be revised and reversed there must vibrantly exist circumstances that; one, it was entered in contravention of the law, including but not limited to legal incapacity of the parties to it, two, procured by fraud or misrepresentation, three, it is against public policy, four, it is against moralities like homosexual and others, f/Vefor any other genuinely, compelling and justifiable reasons Short of that, the consent order will and must withstand as it honestly, unequivocally and irrevocably represents parties' willingness to do something in the agreed manner and as contained in the Deed of Settlement which resulted into consent order. Courts have been reluctant and must continue to be in order to enhance and protect Page 8 of 20 parties' expectation and benefits arising therefrom. Otherwise, our society will be turned into chameleon which usually changes it's colour immediately or at any time as it arrives to another destination. In the business world that kind of person who keeps changing from time to time in terms of commitment can be called conman. To deter such kind of unflattering character, section 123 of the Evidence Act, Cap. 6 R.E. 2022 provides for an answer. The section provides that; 'When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed, in any suit or proceedings between himselfand that person or his representative, to deny the truth ofthat thing. Courts, all over the world, Tanzanian courts inclusive, have in its numerous numbers of decisions, strictly insisted on observance of sanctity of contract. It is settled that, the role of the court in the circumstances is to enforce the terms of the contract not to re-draft or order otherwise as against the freely agreed clauses of the contract. To cite some few examples, in the case of Philipo Joseph Lukoode v. Faraji Ally Saidi, Civil Appeal No. 74 of 2019, the court of appeal propounded that; Page 9 of 20 Where parties have freely entered into binding agreements, neither courts nor parties to the agreement, shouid not interpoiate anything or interfere with the terms and conditions therein, even where binding agreements were made by iay peopie. Moreover, the court of appeal in the case of Mlrsam E. Maro vs Bank of Tanzania, Civil Appeal No. 22 Of 2017 and Simon Klchele Chacha vs. Aveline Kilawe, Civil Appeal No. 160 of 2018 had these to say; "It is the law that parties are bound by the terms of the agreement they freely entered into. We find soiace on this stance in the position we took in Unilever Tanzania Ltd vs. Benedict Mkasa t/a Bema Enterprises, Civii Appeal No. 41 of 2009 (unreported) in which we reiied on a persuasive decision of the Supreme Court of Nigeria in Osun State Government vs. Dalami Nigeria Limited, Sc. 277/2002 to articulate: 'Strictly speaking, under our laws,r once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves. It was up to the parties concerned to Renegotiate and to freeiy rectify Page 10 of 20 clauses which parties find to be onerous. It is not the roie of the courts to re draft clauses in agreements but to enforce those clauses where parties are in dispute." In the case at hand, the parties entered into a Deed of settlement which was later registered and become Consent Order/Judgement. In other words, the Deed of Settlement is constitution/law made by the parties themselves at their own volition. The CMA has just registered the parties' made-up constitution/law. The law creates rights and responsibilities to employers and employees when it comes to Organizational rights. Organization right is a mandatory worker's right as is expressed under paragraph 4 of the third schedule to the (ELRA). Under section 4 of the ELRA organisation is defined to mean a trade union or employers' association. Section 9 provides for employees right to freedom of association. The section states that; (1) Every employee shaii have the right -(a) to form andjoin a trade union; or (b) to participate in the lawful activities of the trade union. Section 11 (1) of ELRA provides for the right of Organisation which include the right to determine its own constitution. And section 47 (1) Page 11 of 20 (b) of the ELRA provides for the requirements of the Organization Constitution which include to prescribe the qualifications for membership. Thus, Trade Unions as workers' organization is required to have registered constitution describing its purposes, qualification/eligibility for its memberships and how it shall operate and be beneficial to the members. Trade unions are bound by the membership requirements as defined in their own constitution. A trade union may only enforce its organisational rights at the work place within the parameters of the constitution, beyond that it will be wilfully violation of the applicable law, the labour laws. Exercising organisational rights in contravention thereof, lead to commission of criminal offence. This is echoed under Regulation 23(1) (2) of the Employment and Labour Relations (General) Regulations, GN No. 47 of 2017 which provides that; (1)Subject to the provisions ofsections 9 and 47 of the Act, a trade union or an empioyer's association shaii expressiy state in its constitution the areas from which it recruits its members.(2)A trade Union or an empioyer's association which is recruiting members from areas other than specified in its constitution, commits an offence. Page 12 of 20 The centre of this dispute is derived from clauses in the consent order/settlement agreement under mediation which provides among others that; 6. Kwamba, madhumuni Chanya ya kuruhusiwa chama zaidi ya kimoja mahali pa kazi iHkusudia kupanua wigo wa upatikanaji wa huduma na uhuru wa wafanyakazi kujiunga na chama anachokipenda. 12. Vyama vyote vina hadhisawa mbele ya sheria kuh'ngana na usajiH wake. 13. Kila chama kina haki na uhuru wa kuendesha shughuU zake kwa mujibu wa sheria^ katiba ya chama na kanunizake iUyoklsajili. 14. KUa chama kina haki ya Kwenda mahaii popote pa kazikwa madhumuni ya kuingiza wanachama. The applicant submitted that, as per the agreement entered with the 2"^ respondent, the applicant had exclusive right over the Trade union activities at the 2"^ respondent's work place, thus the tripartite Settlement Agreement is illegal as it allowed the respondent to have rights at the 2"^ respondent' work place. According to the clauses cited above, the consent order/judgement permits presence of more than one Trade Union organisation in the Page 13 of 20 specified area of work. And those are among the provisions which troubled the applicant to challenge the consent order/judgement. The applicant in this application is faulting the CMA consent order/judgement/ agreement to be invalid as it allowed the first respondent to access organisation rights to recruit members outside of the parameters of its constitution which is in violation of law. The question which needs to be tackled is the applicable law prohibits existence of more than one Trade Union in a place of work. Undeniably, the parties are in agreement that, the ELRA permits existence of more than one Trade Union in a place of work as per above cited provisions of the law. What matters as per the law is that every trade union must discharge its duties within the parameters of the constitution in recruiting members. TPAWU stands for Tanzania Plantation and Agricultural Workers union (Chama cha Wafanyakazi Mashambani na Kilimo Tanzania) 3.1.2.1 Sekta na sehemu za kazi Uanachama utagawanyika katika sehemu na sekta kufuatana na aina ya kazi za wafanyakazi kama ifuatavyo; /■ Wafanyakazi katika mashamba ya miwa, makampuni ya sukarf viwanda na shughuii zote zinazofanywa na Page 14 of 20 mwajiri katika ukodishaji wa huduma katika eneo hUo. a. Wafanyakazi katika mashamba ya katani/mkonge na viwanda vinavyotengeneza bidhaa zitokanazo na zao ia mkonge. Hi. Wafanyakazi katika viwanda vya chai, viwanda vyake na shughuii zote zinazofanywa a mwajiri za ukodishaji wa huduma katika eneo hiio. iv. Wafanyakazi waiioajiriwa katika mashamba ya korosho, misitu, nafaka, mifugo, tumbaku, pareto, pamba, kahawa, mashamba mchanganyiko ya mazao ya viwanda. V. Wafanyakazi katika vyama vya ushirikap bodiza mazao, makampuni ya ununuzi wa mazao ya kiiimo na viwanda vyake na watumishi katika chama. vi. Wafanyakazi katika mashamba ya maua, mbogamboga, matunda, migomba, vaniia na viwanda vyake. Page 15 of 20 TUICO stands for Tanzania Union of Industrial and Commercial Workers (Chama cha Wafanyakazi wa Viwanda, Biashara, Taasisi za fedha, Huduma na Ushauri) 3.2 wanachama wapya 3.2.1 wanachama wapya watatokana na wafanyakazi waiioajiriwa/ waiioajiajiri katika sekta za viwanda, biashara, taasisi za fedha, huduma na ushauri na shughuii zinahosusina na sekta hizo. The excerpt above provides for limits under which the applicant and the respondent can recruit their members. It was Mr. Kinja's submission that, the applicant is the trade union dealing with workers engaged in agriculture, while the respondent deals with workers in Industrial and Commercial workers, thus according to his constitution recruiting the workers from Kilombero Sugar Company (2"^ respondent) is violation of law. The respondent submitted that, the 2"^ respondent is an industry, therefore it is within constitution of the respondent to access organisational rights. In order to arrive at the conclusion that, the respondent acts uitravires when registering its membership, the applicant must prove that, the respondent is acting outside the scope defined in , its constitution. There must be tangible evidence proving that what the Page 16 of 20 respondent is doing falls outside its constitution but not mere words. The applicant did not tender any evidence to that effect. As already stated herein above, the respondent has legal rights to exercise any trade union organisational rights at any place of work so long as the activities and recruited members falls within the four corners of its constitution. However, the applicant tabled nothing to prove the same. The next question then would be is Kilombero Sugar Company Limited deals with industrial, commercial. Finance and consultant services, thus allowing the respondent to exercise its organisational rights? At the outset, neither the applicant nor the 2"^ respondent provides for anything tangible evidence to show that, Kilombero Sugar Company limited is not dealing with an industry matter. However, following the consent order/judgement which was mutually agreed and voluntarily entered, the parties were aware of each parties' constitutional activities. Certainly, for that reasons the applicant did engage into mediation, agreed, read and sign the Settlement Agreement after having satisfied that, it is not in violation of any law. Settlement Agreement was later registered and became Consent order/judgment. It is trite law that, once parties to contract or settlement Agreement concluded and signed on it, the parties thereto become bound to the terms and conditions enshrined therein. The settlement Agreement will Page 17 of 20 be shielded by principles of sanctity to contract and estoppel as well described herein above. An attempt to challenge the consent Order/judgement by way of revision can be limitedly amenable on proof beyond reasonable doubt that, there exists ground for invoking revision powers. The circumstance is so limited to prove of existences of; one, that it in contravention of the law, including but not limited to legal incapacity of the parties to it, two, procured by fraud or misrepresentation, three, it is against public policy, four, it is against moralities like homosexual and the like, five for any other genuine, compelling and justifiable ground. Affirmatively and without malingering of doubt, in the present case, the applicant has failed to demonstrate existence of any of ground that it exists, let alone attempt. What is clear is that, the 2"^ respondent is engaged in sugar cane growing (Agriculture sector), manufacturing of sugar "Kilombero Sugar" (industry) and engaged in sugar business (commercial sector). That, the allegation made by the applicant is premature as the respondent was in pursue of obtaining organisational rights at the 2"^ respondent place of work, meaning that there was no recognition agreement entered between the and 2^^ respondent yet to make the 2^^ respondent be recognised as the collective bargaining agent at the Page 18 of 20 2"^ respondent. It is after signing the consent order/judgement the respondent became recognised as a collective bargaining agent at Kilombero Sugar Company Limited. That being the case, the Consent order has to be implemented in strict observance of their constitutions and recruitment of members must be within the such domain. I, am thus inclined to agree with Mr. Noel Nchimbi learned counsel for the respondent. In the event therefore, the answer to the raised issue is in negative. Having found that, the Settlement Agreement was lawfully entered, thus forming a valid consent order, and in the absence of any grounds for invocation of revisional mandate for setting the impugned consent order, this court hereby orders that, the Settlement Agreement/Consent Order is in line with the parties' constitutions and is not in violation of any law, labour laws inclusive. The parties are called upon to respect their Agreement and engage in activities for socio-economic development. Consequently, the Application for revision stands dismissed with no order as to costs. IT IS SO ORDERED. Page 19 of 20 DATED at MOROGORO this 13^^ October, 2023 G. P. MA A JUDGi 13/10/2023 Court: Judgement delivered this 13^^ October, 2023 in the presence of Mr. Kitua Kinja Learned Counsel for Applicant and in the presence of Mr. Noel Nchimbi Learned Counsel for 1^ Respondent, and Mr. Dustan Kaijage Learned Counsel for 2"^ Respondent. A. W. rWBANDO DEPUTY REGISTRAR 13/10/2023 Court: Right to appeaS to the Court of Appeal explairaed. A. W.TIMBANDO DEPUTY REGISTRAR 13/10/2023 Page 20 of 20