20151009 TZHC Mbeya2

1. ø- CeJ

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT MBEYA REVISION NO. 29 OF 2015

TANZANIA ZAMBIA RAILWA AUTHORITY

VERSUS FRANCIS MUGASA & OTHERS ........I.........It.%RESPONDENTS •I, N MP 2911012015 & 0911012015 Aboud,) \ The respondents F?r~ anci\Mugasa & Others are employees of the applicant, Tanzania —Zariibia Railwa Authority (Tazara) based at Mbeya ti workshop.<jhe..-repondents successfully referred a dispute against the Jr'-2 applicant clarming fär overtime payment at the Commission for Mediation and Arbion?Ci. In its award issued on 4th November, 2013 the CMA Arbitrator four'd the respondents are entitled to overtime payment ction 9 (6) (b), (i) and (ii) of the Employment and Labour according .to Se Relations Act, No.6 of 2004 (to be referred as the Act in this judgement). Dissatisfied with the CMA award the applicant filed this revision. The issues that arise from the facts 4.se as reflected in ~~ paragraph 7 of the affidavit in support of the 1 13 Whether the award was properly pro u — Whether the respondents are To what remedy the parties are entitled to. At the hearing the applicant was represented by Mr. Msovela and Mr. Mabala, learned Advocates while Mr. Muya, Advocate represented the respondents. 4 1 Arguing the application Mr. Msovela submitted on thrst\issue that the respondents are not entitled to any of the cllnhed overtie according to the Tanzania Zambia Railway Authority ActNo\143 of 1995, under First Schedule, paragraph 12 which reads asfd "Condition of service

1(1)übjctJ€6 %\\# the provision \ of this Act, the Boardmay makeGeneral Orders for determining the conditions of service of employees -J and for regulatingtheir conduct while on duty and in particular butwithqutprejudice to the generality of the foreg may relate to- (a t, dismissal, discipline, hours of er pay and leave of employees." VMr. said, the Board basing on paragraph 12 (1) was empowei categorize staffs on the day to day execution of the emolovm t. He submitted that the Board had two categories of employment staff, the first being unionized employees and the second being management employees. He further submitted that the management staff who are from grade 8 to 11 was not entitled for any overtime allowance. However the Board approved the payment of USD. 30.00 for 2 '' each Management Staff who worked over and above-th.C .. I hours which was termed as responsibility allowance fMhagement staffs. He said the unionized staffs of the applicant who were from grade 1 to 7 were entitled for the overtime allowance. Mr. Msovela concluded that it was not legally proper for the respondents who were in a group of Management staff tQmbe awarded overtime allowance by the Arbitrator. On the other hand Mr. Mabala, learned advocate [ \the.applicant submitted that the award was improperly procuéecause tI1e Arbitrator based on the collective agreement which warentêd before him to show

that the respondents were not covëedby such agreement rather respondents were covered by the ReOItiioiofIie Board. He said, the t7 \ Board had such power under First Schedule, Para 12 of the Tazara Act, 1995, Cap 143 of the laws. Sà basing on Collective Agreement and Employment and LabourN Relations Act, No. 6 of 2004, the Arbitrator misdirected himself. Mr. Mabala cpncluded.that the Arbitrator was supposed to decide on the basis oithèBôai - dRolution which the Board allowed the respondents to be paidUSD3O.O0 as responsibilities allowance and not the Collective 01 AgreQ1ent. .3 Mr. Muya, learned counsel on behalf of the respondent submitted that the Arbitrator correctly delivered the award basing on the Collective Agreement of 2009 to 2011 (Exhibit TZR "1") in CMA records which was the governing law by then pertaining to overtime allowance, and by that time it was expired. Mr. Muya submitted further that Respondents tendered their salary slips (exhibit TZAR "2", "3" and "4") to 3 the CMA records which shows that after the dispute ar,,6u",.a c ~s figasa in October, 2013 was paid responsibility allowance. He said the salary slips of 2010 reveals that Amon Mgeni was a Unionized Staff and was deducted Tshs 14,8721= as contribution to a trade union. According to Mr. Muya the respondents were not in Management Staff group but were in unionized staff and hence were covered by the

Collective Agreement. He supported his argument with the Collective Agreement ("TZR 1')4ic1finescUnion staff by using the word union to mean Tanzania Railway'orkers Union (TRAWU) and Workers Union of Tanzara, Zambia UTAZ). He maintained .(..( that since the respondents were deducted theirsalary'to,contribute to the union fee means that they were in a unionized staffand not otherwise. Mr. Muya contended that there i'dr on records of the CMA \\\ ( that the applicant tendered any. record 'ofBoard Resolution to prove what they have submitted in this court.. 4 concluded by praying that the revision be dismissed. N In rejoinder Mr. Mabalarn'aintained that the respondents dispute was ) handled and was agr e ed,\that.they will be paid USD 30.00 as responsibility allowance as'reflectèdin',Exhibit TZR "2", "3" and "4") in CMA records. Mr.,Mabala-...aamitted that respondents were paying Union Service 4' feehle said 1 in'the salary slips of the respondents it is just written "Trade Union"Mt is not indicated whether union fee or Union Service fee. Mr. Mabala told the court that it was a practice that all Management staffs were to contribute union service fee because they were also using Trade Union Service in case of any need like when a member of Management Staff is terminated. 4 On the categorization of staffs, Mr. Mabala su cNbat in the Collective Agreement there is a job grading matrixf

iried Staff starting from TSG 1 to 7, that mean employee or staff under TSG. 8 to 10 where the respondents fall are not part of Unionized Staff, therefore not covered by the Collective Agreement as per Section 71(4) ,(5) of the Act which is to the effect that employees who are not part of the Collective Agreement are not bound by it. Having gone through the available records of the GMA ahd parties submissions I find the issue for determination is whether the respondents are Unionized Staff or Management Staff. According to the records there arernatters vhich are not in disputed \\ -...J to wit, the Unionized Staffs ,are entitled.\to overtime allowance and - '\ I Management Staffs are not entiled.3Z) The applicant counéismaintains that the respondents are part of Managerial Staffs thusare"dniV'èntitled to be paid USD 30.00 according to the Board Resol \hkh > allowed the respondents to be paid responsibilitiesãllowanc& The counsels also maintain that employees from \ TSG 1 to 7-areWnionized Staff and employees or staffs under TSG. 8 to 10 ', where the repondents fall are not part of Unionized Staff therefore not \ J) coveredby the Collective Agreement. In other words the respondents are part of managerial staffs. On the other hand the Mr. Muya maintains that respondents are part of Unionized Staffs and backed his position with exhibit TZAR "2", "3" and "4" to the CMA being salary

slips which shows that one of the respondent Francis Mugasa, in October, 2013 after the dispute arouse was paid 5 responsibility allowance. He also relied on the salary to the effect that one of the respondents Amon Mgew-'ted Tshs 14,872/= as contribution to a trade union which implies that respondents are Unionized Staffs because only Unionized Staff pay contribution to the Union. In his decision the arbitrator found the respondents are entitled to /K overtime payment. He gave the reasons for his decisi&'that the collective agreement Exhibit TZR "1" to the CMA records which. applint retied to show that the respondents are not part of UniO1d Staffs had already c \ th expired since 30 of June, 2011 therefore isvoidand could not be relied upon. He also relied on the testimony...of the applicant s witness at CMA, one Hassan Hayeshi who testified thatemployees of TSG 8-11 which the respondents fall are Middle Level Staffs and TSG 12-14 are Senior Management Staffs. The Ar&itratorthfore found the respondents are not part of the managementstaffs therefore they are entitled to overtime payment according Secipr9(6) (b) (i), (ii) of the Act. I haègd €iroh the collective agreement Exhibit TZR "1" to the CMA recqrdst y,,git was no longer in existence at the time of dispute t clèaçy' flëcts that employees on TSG 8-11 are not bound or covereJTthe collective bargaining. Furthermore exhibit

"Ki" to the CMA recx?ds, being part of the Collective Bargaining Agreement in the year 2011 to 2013 which was tendered and explained by the applicant witness Raphaeli Lazaro Karyoba, TRAWU Branch Chairman of the applicant clearly reflects the fact that only employees under TSG 1-7 are bound by the collective bargaining agreement. the respective TRAWU Branch Chairman further testified at the CMA that he was involved inptioe collective agreement which excludes the respondentsw o'"falls under the category of TSG 8-14. The applicant's testimony (Hassan Hayeshi) in CMA proceedings was to the effect that employees of TSG 8-11 are Middle Level Staffs and TSG 12-14 are Senior Management Staffs and according tothe2espondent's policy they are not entitled to overtime, rather I theyare etitled to responsibility allowance. I have also seen TAZA19IRCULARExhibit TZR "IV") issued on 13th July, 2011 by the Board ofDiFctors which instructed for the Middle Management Staffs TSG 8-fl\tf'd"be id USD 30.00 as " I responsibilities allowance. The records showthe Circu lar (Exhibit TZR IV - ') was issued by the Board of Directos<fter\ the respondents and other employees of the applicant underTSG 811 - declared a strike complaining 1 against the applicant that he "failed to pay them overtime. The management referred thè "?ntter before the Board which issued the Circular for payment-of respdnsibility

allowance to employees of TSG 8-11. ft__\ The applicant'sitnessat CMA one Hassan, testified that responsibility allowance wà'pre\'ioiisIy' paid separate but it was latter on included in the f\ salary and according to the records the respondents did not dispute the fact tht they.re entitled to responsibility allowance. Basing on the entire evidence in record I find the respondents are not entitled to overtime allowance. It is clear that the respondents and other employees of the applicant falling under TSG 8-11 are part of the management staffs and are entitled to responsibility allowance thus paying them an over time will be a double payment as submitted by the applicant. 7 • In the circumstance of the case, I am of the view thLErator misdirected himself in finding the respondents were entitled to the overtime allowance. Thus I hereby revise the CMA award. In the result the application has merit and is hereby allowed. It is so ordered. LD.ABOUD J

JUDGE 09/10/20 I H. Date: 09/10/2015 Coram: Hon. I.D. Aboud, J Applicant: For Applicant: Mr. Mabala, Advocate Respondent: AU present in person. For Respondent: CC: G. Mushi Order: Judgement delivered on O9/1O/2O15? the presnce of Mr. Mabala, learned Advocate for the Applicant(\ iNRepondents are in person. . I.DAboüd

JUDGE O9/10/2015 e