Labour Course Work

7/23/2019 Labour Course Work

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Question

Discuss the impact of the case of Dr. Sam Lyomoki and others v AG

Constitutional Petition No.8 of 2!on the development of the law trade of

trade unions.

In this paper, we are going to mention the history of Trade Unions, give a brief

background and history of the malgamated Transport and !eneral "orkers

Union #T!"U$, its scope and %urisdiction, its aims, ob%ectives and its

membership. "e shall then proceed to the brief facts of the Dr. &am 'yomoki

and others case, the issues raised in that case and how those issues were

resolved. "e shall then focus on the impact of the case on the 'abour Union

laws to date and sum it all up with a conclusion.

"istory of #rade $nions

Trade Unions were (rst governed by the Trade Union )rdinance, *+-. The Trade

Union )rdinance remained in force until it was repealed by the Trade Unions ct,

*+ which came into force on the -nd/uly *+. The ma%or purpose of the ct

was to amend and consolidate the law relating to the registration of tradeunions. The ct gave power to the 0inister to appoint a 1egistrar and ssistant

registrars whose main duty was to keep and maintain a register of trade unions

in which particulars as may be prescribed by the minister were recorded and

such other books and documents as the minister may direct. Under the

provisions of the ct, a trade union would obtain registration after the

application had been signed by at least ten members of the union. trade union

was as well deemed to be formed if it had thirty employees agreeing in writing

to form a trade union. This re2uirement could be considered waived in case of a

trade union where the employees were not more than thirty. It was of basis that

no trade union that was not registered under the act would be allowed to

operate. Under the ct, trade unions were free with prior consent of the

1egistrar to amalgamate and form federations by whatever name called. The


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only re2uirement was that it had to be registered with the 1egistrar. &ection 3

e4cluded soldiers, police men, and prison o5cers from membership of trade

unions. Under the ct, the 0inister e4ercised purely regulatory powers through

the 1egistrar and did not supervise or control the operations of trade unions.

"ithin provisions of the ct, there was no national trade union center that

needed all other unions to a5liate to it.

The 6inaisa 7ommission 1eport on Trade Unions of *+8 was published

immediately after the above ct. This brought an end to the arrangement of the

Trade Unions ct, *+. This report brought into e4istence the Trade Unions act,

*+9: which came into force on ;*stDecember *+9:. The purpose of this act was

to establish and regulate integrated employees< trade union to dissolve the

former Uganda 'abour 7ongress and all other trade unions registered under the

Trade Unions ct *+. The ct established a trade union that was considered

the only Trade Union in Uganda which was the Uganda 'abour 7ongress. The

union had a number of branches country wide which were re2uired to be

registered with the 1egistrar as long as they had at least *::: employees. The

rest of the provisions in the *+ Trade Unions ct were retained apart from the

re2uirement of having a minimum of *::: members.

fter the take=over of !overnment by Idd min 0ilitary regime, the Trade Unions

ct of *+9: was amended by the Trade Union ct, *+9: #mendment$ Decree,

*+9; whose purpose was mainly to amend the Trade Unions ct, *+9: and re=

establish the freedom of employment. This was to be done through forming

autonomous Trade Unions. The new decree abolished the name Uganda 'abour

7ongress and replaced it with >ational )rgani?ation of Trade Unions from here

on to be referred to as >)TU. The decree as well re=established the formation of

trade unions whose minimum membership had to be at least *:::. ll the

unions were re2uired to a5liate to >)TU and to be registered by the 1egistrar.

The decree enforced that an employer would not be bound to recognise or

negotiate with a union unless *@ of his employees were registered with the

union. >)TU was therefore conferred powers by the decree beyond mere

regulation of trade unions as had been the case hitherto. The decree provided


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>)TU with a number of purposes some of which included formulating policy

relating to proper management of trade unions and general welfare of

employees. part from the above changes, the rest of the *+9: ct was

maintained. The new section introduced was * which portrayed the provision

for formulation and registration of union branches of the very registered Trade

Unions. malgamation of the Unions could as well be done with the prior

consent of the 1egistrar.

In *+9, the trade unions decree *+9 was enacted whose purposes were

mainly to amend and consolidate the law establishing and regulating the

>ational )rganisation of Trade Unions and providing for the formations by

employees of autonomous trade unions and branch unions of their own choice.

part from the consolidation of The Trade Unions ct, *+9: and The Trade Union

ct *+9: #mendment Decree$ *+9;, this *+9 Decree did not really introduce

signi(cant changes in the substance of the trade union law. The Trade Union

Decree *+9 is now reAered tp as the Trade Union ct, *+9 and is the one

whose impugned provisions were the sub%ect of this petition.

Bor this research, one of the re2uirements was conducting an interview with any

trade union or labour union as referred to in the current law. The purpose of

which is to (nd out how labour unions operate and how the issues raised in the

aforementioned case aAected the trade union law to date. "e conducted an

interview with malgamated Transport and !eneral "orkers Union from here on

to be referred to as T!"U. T!"U is one of the labour unions in Uganda

among others. The interview was conducted out by the group members and a

one /ohn 0ark 0wanika who is the Pro%ect 7o=ordinator of T!"U who was of

great help in research for this course work paper.

malgamated Transport and !eneral "orkers union #T!"U$ is an autonomous

and democratic voluntary )rganisation. It is formed, owned, funded and run by

workers in accordance with its constitution.

&a'k(round of the la)our union*


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T!"U is a dynamic labour union that traces its genetic roots from Uganda

0otor Drivers ssociation, formed in*+;8 by Ignatius C. 0usaa?i and /ames Civu.

It is considered the (rst labour organi?ation in the country. It was re=registered in

*+93 as TU 9 under the Trade Union ct of *+9: as malgamated Transport and

!eneral "orkers< Union after merging with other unions.

S'o+e and ,urisdi'tion*

T!"U organises and represents workers in companies operating in the

industries of

1oad Transport Industry

7ivil viation Industry

'ogistics, Integrators and Delivery &ervice Industry

)il Industry

Pharmaceuticals and 7hemical Industries

Private &ecurity Industry

Property &ervice Industry and

!eneral "orkers in &upport &ervices.

Aims and -)e'tives*

T!"U aims at eAectively organising workers in the above industries into a

strong and well=informed labour union that is capable of facing the growing

challenges in the world of employment. 7hief among the Unionegotiating and maintaining sound terms and conditions of employment

for its members


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Establishing and maintaining mutual respect and trust between workers

and employers

Providing guidance and support to members on labour related matters

Developing institutional capacity through information, education andtraining

EAective handling of members< grievances and resolution of disputes at

workplaces

>etworking with other labour unions and )rganisations in the pursuance of

workers< rights

Empowering members to actively participate in labour union activities.

0embership

0embership of the union is open to all workers within the mentioned

industries. n eligible worker can %oin T!"U by signing a membership

declaration form.

Every member has the right to fully en%oy and bene(t from the services of

the union without discrimination, and to participate fully in the business

and activities of the Union, including providing leadership at any level.

Every member is obliged to respect and uphold the union constitution and

to strengthen and protect the Union

T!"U has a paid up membership of over ;-:: members and a potential

membership of over *:,::: members.

&rief fa'ts of the 'ase

The Trade Union Act of 1976 establishes one organi?ation called the National

Organisation of Trade Unions (NOTU). ll Trade Unions in Uganda then were

compelled to a5liate with >)TU. The petitioners in this case being unhappy with

the manner >)TU was being managed decided to form another center called the


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Central Organisation of Free Trade Unions (Uganda) (COFTU). )n seeking its

registration under the ct, the government declared that 7)BTU was unlawful

and therefore refused registration, hence this petition.

ssues raised in the 'ase

The issues raised in this case were (ve but the ma%or issues of contention were

four which were

1. "hether sections *#e$, l#cc$, #;$ and *9#*$#e$ of the Trade Union ct *+9

are inconsistent with and contravene articles -+#*$#e$ and3:#;$#a$ and #b$

in as far as they limit members re2uired for the formation of Employees

ssociations, Trade Unions and set a minimum for recognition of Trade

Unions by the Employers.2. "hether section -#*$ of the ct is inconsistent with and contradicts

articles -+#*e$ and 3:#;$ #a$ and #b$ of the *++ 7onstitution of the

1epublic of Uganda.

3. "hether &ection -8 of the ct is inconsistent with and contravenes articles

-+#*e$ and 3:#;a$ and #b$ of the *++ 7onstitution of the 1epublic of

Uganda.

4. "hether &ection 9: of the Trade Union ct *+9 is inconsistent with and

contravenes article -: of the *++ 7onstitution of the 1epublic of Uganda.

"o these issues ere resolved

ssue 1*"hether sections *#e$, l #cc$, #;$ and *9#*$ #e$ of the Trade Union ct

are inconsistent with and contravene articles -+#*$ #e$ and 3: #;$ #a$ and #b$ in

as far as they limit members re2uired for the formation of Employees

ssociations, Trade Unions and set a minimum for recognition of Trade Unions by

the Employers.

&ection * #f$ de(nes an employee association. In the Trade Union ct *+9 the

minimum number of members re2uired to form an employee association is ;:.

In his %udgment, Twinomu%uni /. held that section *#e$ of the ct contravenes

freedom of association guaranteed under articles -+#*e$ and 3:#;$ of the


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7onstitution. It does so to the e4tent that it prescribes a minimum of ;:

employees in order for the association to be formed. The %udge was of the view

that even two people should be free to associate for purposes of protecting their

social, political, economic welfare and for other lawful purposes.

&ection *#cc$ and #;$ both hint on trade unions where section *#cc$ de(nes

what a trade union is while &ection #;$ stipulates that the minimum number of

members ought to be *::: before it attains registration.

The opinion of the %udge as regards this matter was that Parliament would make

the necessary ad%ustments if need be. Fe based his conclusion on the fact that

though the limitation appears, not to remove but to limit freedom of association,

the limitation is %usti(able and the two sections do not contravene the

7onstitution.&ection *9#*$#c$ re2uires that for an employer to recognise a trade union *@ of

his employees should be registered members of that union. The %udge agreed

that the provision places a limitation on the freedom of association guaranteed

by articles -+#*e$ and 3:#;$ of the 7onstitution. Fe however was of the opinion

that it would be chaotic if an employer was faced with a situation where in one

business or industry, he had to negotiate with two or more trade unions

representing employees with common interests. The %udge therefore found the

section %usti(able.

ssue 2*"hether section -#*$ of the ct is inconsistent with and contrary to

articles -+#*e$ and 3:#;$ #a$ and #b$ of the 7onstitution

&ection -#*$ provided that the >)TU shall be the only principal organi?ation of

employees in Uganda and all registered trade unions shall a5liate thereto. In asmuch as the %udge agreed that it would be a sound policy to encourage trade

unions to a5liate under one national center, it is unconstitutional to form one

organisation by legislation and to re2uire all trade unions to a5liate to it. Fe

therefore held &ection - of the ct inconsistent and contravened articles -+#* e$

and 3:#;a$ and #b$.


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ssue %*"hether &ection -8 of the ct is inconsistent with and contravene

articles -+#*e$ and 3:#;a$ and #b$ of the 7onstitution.

&ection -8 provided that Gny two or more registered trade unions may, with the

prior consent in writing of the registrar and sub%ect to any conditions as may be

speci(ed by the registrar, amalgamate together as one trade unionH. The

/udge ruled in favour of the limitation since did not think the provision intended

to limit the freedom of association or the right to %oin and form a trade union. Fe

was of the view that its intension is to introduce transparency. 1e2uiring

consent from the 1egistrar to amalgamate is therefore reasonable and does not

contravene articles -+#*e$ and 3:#;a$ and #b$ because it is %usti(able under

article 3; of the 7onstitution.

ssue !*"hether &ection 9: of the ct in inconsistent with and contravene

article -: of the 7onstitution.

&ection 9: provides for the ineligibility for membership in Trade Unions and

inapplicability of certain law. It simply provided for those who are not eligible to

become members of trade unions. The petitioners had a problem with this

because they felt that this section empowered the minister to amend the second

schedule from time to time by statutory instrument. The main contention is that

freedoms of association guaranteed by articles -+#* $#e$ and 3:#;$#a$ and #b$

are so important that it would be contrary to article -: to leave them at the

whims of one person, the 0inister. The %udge held that this does not in any way

infringe the 7onstitution because incase the 0inister e4ceeds these limits, the

&tatutory Instrument made by him is liable to be challenged in court.

In conclusion, /udge Twinomu%uni stated that the Trade Unions ct, *+9, was

enacted long before promulgation of the *++ 7onstitution making a number of

its provisions not to conform to the &upreme law of the land. rticle -9;#*$ of

the 7onstitution re2uires that all such laws be brought into conformity with the

7onstitution. Fe further stated that the eAect of his %udgment is not to condemn


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The Trade Union ct *+9 or >)TU out of e4istence. Its eAect is only modify

those parts which have been declared inconsistent with and in contravention of

the 7onstitution.

Brom the discussion of the above discussion we have clearly portrayed

foundation of the formulation of the 'abour Unions ct -:: that replaced the

Trade Union ct *+9. The new law concerning labour unions is very important

for the unions since it is concerned with protecting the rights of workers in the

country. s seen from the above discussion Dr. &am 'yomoki and others were

vigilant in ensuring that the law was in line with the 7onstitution of Uganda

#*++$ and the International 'abour )rganisation 7onvention 89 #from here on

to be referred to as I')$.

The case clearly had an impact on developments of the law of trade unions both

directly and indirectly. &ome of the changes that are visible to have been a

direct result of the case include the following. 1emoval of the *@ employee


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2uite di5cult since it involved going through a veri(cation e4ercise by the labour

commissioner. This brought about fear among workers since the e4ercise could

e4pose them to employers. s a result employers could probably decide to

terminate their services on learning that they wanted to %oin a workers

organi?ation. In our interview with /ohn 0ark 0wanika he supplemented about

this. Fe said once a worker is a fully paid member to a labour union then he or

she has the problems e4perienced at work handled by the union. Fe insisted

however that issues handled have to be directly in the sphere of the work place

and the worker ought not to have done something intentionally wrong and

e4pect help from the union. &uch fear therefore workers e4perienced is therefore

dealt away with.

Labour Course Work

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