LABOUR LAW

TOPIC ONE
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INTRODUCTION

Labour law deals with the relationship between the

employer and the employee or master and servant
relationship. The law does not confine itself on
master and servant relationship but it goes further by
dealing with other incidents arising out of master-
servant relationship e.g. workers organization
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A major concern of labour law is labour i.e. a capacity or

skills of a person to work. Another concern is the
relationship between labour and capital; here capital means
employer and labour means employee. For the labour laws to
apply there must be a contract of service as opposed to
contract for service
 FUNCTIONS OF LABOUR LAW

The major function of labour law is the protection of the

employees by:
 Restricting the powers of the employer to dismiss
employees or to terminate employment: See s 37 of the
ELRA 2004 which deals with unfair termination.
 Regulating the wage to be paid to workers and hence
maintaining the financial capacity of the employee S. 26-
28 of the ELRA 2004 and PART V of the Labour
Institutions Act 2004.
 Cont…

 Regulating conditions of work or employment for

example it provides for rest hours, rest days etc: See
part III sub part B of the ELRA.
 Providing for care and welfare of the employee
such as repatriation of the employee, subsistence
allowance, etc
 Providing the pension and other terminal benefits
after retirement.
 SOURCES OF LABOUR LAW

Constitution: This is the basic law of the land, article 22 (1)

states that every person has a right to work, and as far as
remuneration is concerned article 23 (1) & (2) is very clear
to that effect
Statutes: the most part of the labour law in this country is
codified in the statutes; these statutes are divided in Principal
legislation and subsidiary legislation
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Examples of principle legislations are:
1) The Employment and Labour Relations Cap 366 R.E
2019
2) The labour Institutions Act, 2004 (Act No. 7 of 2004)
3) The Occupational Health and safety Act
4) The Workers’ Compensation Act (Cap 263 R.E 2002)
5) The Public service Act, (Cap 8 of 2022)
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Examples of subsidiary legislations
1) The Employment and Labour Relations (Code of Good
Practice) Rules, 2007 [Government Notice No 42 of 16 th
February 2007]
2) The Labour Institutions (Mediation and Arbitration) Rules,
2007 [government Notice No. 64 of 23rd March 2007]
3) The employment and Labour Relations (Forms) Rules,
2007 [Government Notice 65 of 23rd March 2007]
4) The Labour Institutions and Code of Conduct for
Mediators and Arbitrators Rules 2007, [Government
Notice No. 66 of 23rd March 2007]
5) The Labour Institutions (Mediation and Arbitration
Guidelines) Rules,
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Case Law
Case law from precedents made previous decisions of higher
courts i.e. Court of Appeal and High Court. For instance in
the case of Juwata v. Kiuta, the case was to the effect that,
disputes of management employees are supposed to go
directly to the Industrial Court of Tanzania without passing
through the Conciliation Board
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Received Laws
Received laws are one of the sources of law in Tanzania.
This owed its origin from the time Tanganyika received
from England the English Common Law, doctrines of
equity, statutes of general application under article 17 (2)
of the then Tanganyika Order in Council, 1920
(22/07/1920).
 Cont…

When Tanganyika Order in Council was repealed after

independence the clause which received or rather which
made English laws to be applicable in Tanganyika was
enacted under section 2 (2) of the Judicature and
Application of Laws Ordinance, 1961 Cap 453. Later
after the enactment of the Revised Laws the same is
reflected under section – (2)(3) of the Judicature and
Application of Laws Act, (Cap 358 R.E 2002).
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Others

Books from prominent writers

 TOPIC TWO

THE CONTRACT OF
EMPLOYMENT
 CONTINUE.

1. Contract of Employment:
A contract of employment is one in which a person called an
employer, on one part, enters into a contract with another
person called an employee on the other part.
Rationale of the contract is the rendering of services (labour)
by the employee to the employer.
The employer pays wages to the employee for his labour, that
is, there is exchange between the employer and the employee.
The main law in Tanzania on contracts of employment is
called; Employment and Labour Relations Act, Cap. 366
[R.E. 2019].
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According to this law, Employee and Employer means the
following:
Under s. 4 of the Act, an employee means an individual who:
i. Has entered into a contract of employment;
ii. Has entered into any other contract under which:
a) The individual undertakes to work personally for the
other party to the contract; and
b) The other party is not a client or customer of any
profession, business, or undertaking carried on by the
individual; or
c) Is deemed to be an employee by the Minister under s. 98
(3) of the Act.
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Employer is defined under s. 4 of the Act as any

person, including the Government and an executive
agency, who employs an employee
 Contract of Employment and Contract for
Employment:
The employment and labour Relation Act Cap
366 R.E 2019, and the Labour Institutions Act
Cap 300 R.E 2019, do not provide the meaning
of the term contract of service or contract of
employment. The term contract of service is
given in the Trade Union Act, [Cap 244 R.E
2002] as per s.2, to mean a contract whether
in writing, oral ( express or implied]…..
 Cont…

Therefore, with the enactment of

employment of Labour Relations(General)
Regulations, GN.47 of 2017 the definition
of contract of service has now been
settled.
 Cont…

The regulation define the term as a

written contract to employ the employee
for a period of time or number of days to
be worked or to execute a task or
specific task, to perform a journey and
include a foreign contract of service.
Note:
The contract of employment must
include certain essential clauses
 Cont…

Criteria for contract of service.

Labour Institution Act, as per S.61
provides several criteria that can be used
to establish the presence of contract of
employment.
The criteria are key in establishing
whether there is a labour matter involved
or not.
 Cont…

For the purpose of labour law, a person who work

for, or renders service to another person is
presumed until the contrary is proved to be an
employee, regardless of the form of the contract if
any one of the following is present:
 The manner in which the person work is subject
to the control or direction of another person.
 The person’s hour of work are subject to the
control or direction of another person.
 Cont…

 In the case of the person who works for an

organization, the person is part of that
organization.
 The person has worked for the other person
for an average of at least 45 hours per
month over the last three months.
 The person is economically dependent on
the other person for whom that other
 Cont…

 The person is provided with the tools of

trade or work equipment by the other
person.
 The person only work for, or render
services to another person.
 Cont…

Read the case of:

Amos Henry and 5 others vs.
Tanzania Telecommunication
Company Ltd (TTCL)
High Court ( Labour Division ) at
Dar-es- Salam in revision No. 58 of
2013.
 Cont…

Contract for Service.

Contract for service is given to be performed
by the independent contractor. A contractor
has a contract for their services with their
client or agency.
In the case of Amos differentiate a contract
for service from that of service by ruling in
line with the interpretation of s.61 of the LIA
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Rules Distinguishing a Contract of Service from a
Contract for Service
For a better understand an employment contact it’s
essential to distinguish between contract of employment
from a contract for employment. This is due to the fact
that the rule governing a relationship between the
parties in a contract of employment are different from
those of a contract for employment, especially on the
following criteria:
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(a) Vicarious/employer’s liability for the
act of servants.
When a person is injured by another the rule
under common law is that the injured party
may sue the actual wrongdoer. Under
employer/employee relations, and in a case
where the wrongdoer is the employee, the
injured part may have the right of action
against the employer although the employer
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E.g the owner of a vehicle and the driver.
Generally, the employer owes a duty of care
to an employee injured in the course of
employment, except where reasonable care
was taken by the employer to prevent the
risk but the employee voluntarily assumed
the risk through contributory negligence.
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(b) Statutory Benefits.
Statutory benefit are usually and practically
attached to employees rather than to
independent contractors who are working
under their own supervision and risk.
Statutory benefits include statutory
maternity pay, unfair termination remedies,
redundancy, sickness allowances, e.t.c
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(c) Social Security Benefits.

Under the contract of employment, an employer is
responsible for the employee’s social benefits.
This is compulsory or mandatory requirement on
the employer, who is registered with a social
security scheme in a country providing for
pension.
The aim of social security schemes is to protect
the income of an employee in case one faces a
contingent event.
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Safety provisions of the workers.
Safety provisions of the workers are binding
in a contract of service. The legislation
relating to safety of workers is highly binding
to an employer. The employer has a duty to
ensure that the workplace is safe for purpose
of protecting the employee while he is at
work.
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The court in England developed some tests to be
applied when determining the differences between a
contract of service and contract for services, for
purposes of providing safe and sound working
conditions as a duty or obligation.
Therefore, the following tests were developed as
hereunder.
 Control test

 Organizational test &

 Multiple test
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Control test
Control test provides that a servant/ employee acts under
the directives, control and supervision of his master and
is bound to conform to all reasonable order given to him
in the course of work.
This is based on the principle of vicarious liability of the
employer. It emphasizes the element of control exercised
by the employer over the employee.
 Cont…

In the case of Roche v. Kelly [1968], it was

held that the principal test is the right of the
master to direct servants as to what is to be
done and how it is to be done
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Organisational test
This is sometimes termed as “Integration test”
Sometimes it is difficult to establish categorically the
nature of employment relationship just by looking on
control test.
Some of employees, because of their professional
skills, the employer cannot be said to be controlling
each and every conducts of such employees.
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The test takes into account the fact the fact that the
more skills required from a worker, the less control is
in determining whether one works under a contract of
service. The employed person told what to do but not
how to do it.
Read the case of Stevenson, Jordan and Harrison Ltd
v. Macdonald and EvansLtd [1952]
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Multiple tests
 The emergence of organisational test did not automatically wither
away the control test, there are situations in which the courts are
faced with cases in which they fail to apply either of the two tests
to solve them.
 This has led to the formulation of another test i.e. multiple test.
According to labour law scholars they argue that multiple test
means the use of common senses.
 The test is the combination of the control test and organisational
test.
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Creation of a contract of employment:
Ingredients: a contract of employment may be made orally or in
writing. In rare cases, it may be implied from the conduct of the
parties.
No special form required for it to be legally binding, however, a
contract of employment must meet all the essential elements of a
valid contract which include:-
Offer, acceptance, consideration, capacity, intention to be bound,
legality of the object, possibility of performance and free consent.
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Written particulars of a contract of employment:
Written particulars of a contract of employment are necessary
as they enable the parties to know the terms and conditions of
their contracts.
Cap. 366 demands that the employer should keep written
particulars of contracts of their employees. Particulars may
vary from one employee to another, but the common ones
include:
i. Name, age, permanent address and sex.
ii. Place of recruitment.
iii. Job description and title.
iv. Date of commencement of job.
v. Scale or rate of wages.
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i. Mode of calculating wages
ii. Conditions as to hours of work; conditions as to
leave and their types;
iii. Conditions as to incapacity for work;
iv. Pensions and pension schemes;
v. Notices-length of notices under the contract;
vi. Collective agreement;
vii. Any other relevant information …
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The importance of the particulars of employment were

emphasized in the case of D.P.P v. Eliatosha Mosha &

Another [1984], T.L.R. 28 (CAT)] as they very much assist

the court in arriving at a conclusion whether a person is an

employee or an independent contractor.

 Duties of the Employer towards the Employee:

The employer has several duties towards the employees either

under the contract of service or according to the laws governing
employer-employee relationship.
These duties can be express or implied as included hereunder:
Duty to pay wages:
one of the fundamental duties of the employer towards his
employee is obligation to pay wages. A contract of employment
will usually give details of the amount of wages payable
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Equipment and safe premises
The employer must take reasonable care to ensure that his
premises are safe for work. Examples of unsafe premises
include defects structural, bad ventilation, slippery floors …
etc. tools and equipment supplied by the employer must be
reasonably safe.
Indemnity: Employer must indemnify his employee who has
incurred the liability while acting on behalf of the employer
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Duty to inform employees of their rights.
Every employer is mandated to display in a conspicuous
place the list of employees rights
 Duties of an Employee towards the employer

The duties of an employee are therefore either implied or are

contained in the contract of employment. The implied and or
expressed duties of an employee include the following:
To attend to work: it is an important obligation that an
employee is bound under a contract of employment to attend
to work at such time and place as specified in the contract of
employment.
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To obey lawful orders: the employee is bound by

employment laws to obey all lawful orders of his employer
which are within his scope of employment.
The employee is however not obliged to obey orders which
might amount to illegality or criminal offence or breach of
public policy or which would risk the servant’s life
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Duty to indemnify: where the employer suffers any loss or

damage caused by the employee, then the employee is bound
to compensate the employer to the extent of such loss or
damage. The employer can recover such loss or damage by
way of indemnity by making deductions from wages of the
employee in question.
Note: The duty to indemnify extends to the third party who
are injured by the act of the employee. Eg a driver who
causes accident by the employer’s car
 Termination of Contract
This is the process through which a contract of employment
comes to an end. It could take either of the following forms;
Automatic termination
Termination by employer
Termination by employee, or
Termination under common law.
The process through which termination undergoes
determines whether it is fair or unfair depending on
circumstances of each case.
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This is provided for under section 36(a)(i)-(v) of Cap 366

and may take either of the following forms:
i. A lawful termination of employment under the common
law.
ii. A termination by employee because the employer made
continued employment intolerable for the employee.
iii. Failure to renew a fixed term contract on the similar
terms if there was a reasonable expectation of renewal;
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iv. Failure to allow an employee to resume work after

maternity or paternity leave granted under this Act or any
agreed maternity leave and

v. Failure to re-employ an employee if the employer has

terminated several employees for the same reasons and has

offered to re-employ few of them.

 TERMINATION BY AN EMPLOYEE

This may be voluntary or constructive. It is voluntary if the

employee out of his own free will he decides to leave work. In
such case he must give adequate notice as per section 41 of
Cap 366 or give his one month salary in lieu of notice.
It is constructive where an employee does not want to resign
but the employer has made continued employment intolerable.
See section 36 (a) (ii) Cap 366. this could happen for instance
if the employee is sexually harassed or where there is any
other material breach of the contract by the employer
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A material breach is that which goes to the root of the

contract such as refusal to pay wages, verbal or physical
abuse, sexual harassment, discrimination etc. In this case the
employee need not give notice or surrender his salary since it
is basically a termination by an employer).
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The fair reasons for termination by employer are;

Retrenchment

Misconduct

Incapacity

Incompatibility
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Retrenchment
This is sometimes referred to as termination for operational
requirements of the employer. It is where the employer is forced by
economical or technological reasons to reduce the number of employees
because it is not profitable for him to retain them.
Ref the case of:
Tanzania Breweries Ltd
Versus
John Mugabe Madatta & 4 Others
( Rev. No. 81 of 2020)
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Termination by an employer may be fair or unfair. Section 37

of cap 366 provides that termination shall be unfair if there is
no fair reason and the proper procedure is not followed. For
that reason, having a ground for termination alone does not
justify termination unless and until the proper procedure is
followed.
Ref. the case of Coca Cola Kwanza vs. Henry Mballa
(Labour Revision No. 15 of 2023)
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GN No. 42 of 2007 explains each reason and the fair

procedure to be followed in order for termination by
employer to be fair.
Nonetheless, for each reason, after all other
procedures are complied with, a meeting/hearing must
be convened and the decision to terminated must be
given in writing.
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The procedure is set out under section 39 of Cap 366

and Rule 23 of the Code of Good Practice, GN NO. 42
of 2007
Before retrenchment, the employer; Must give notice of
any intention to retrench as soon as possible;
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Disclose all information regarding the retrenchment-e.g.

number of employees to be retrenched, type of employees

to be retrenched, etc.

Make prior consultation on the reasons, timing, method of

selection (and let the employees vote).

In case there is no agreement between parties-then the

matter shall be taken to be a dispute and it shall be referred

to arbitration.
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Misconduct
In order for misconduct to be a fair reason for termination,
the standard of conduct must be set by employer, must be
clear and unambiguous, and be known by the employee in
question.
The law provides under Rule 12 that the first misconduct
shall not justify termination unless it is so serious that it
makes continued employment relationship intolerable
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The procedure is that the employer shall investigate the

incident of the misconduct, warn the employee of such
incident, notify him of the hearing and then conduct the
hearing in the language that he understands. The employee
should be given reasonable time to prepare his defense and
be allowed to call witnesses and an Advocate if he so desires.
 Cont…

The employer is obliged to listen to the employees defence

and if he does not agree he must give reasons for
disregarding the employee’s defence and proceed to give the
decision to terminate in writing. This is pursuant to Rule 13
of the Code of Good Practice (supra)
Anything short of this procedure shall render the
termination unfair
 Incapacity

According to Rule 15 of the Code of Good Practice, an

employee may be incapacitated from performing his duties
properly either due to ill health, injury or poor work
performance
For injury or ill health to be a fair reason for termination it
must be of a nature that makes the employee incapable of
performing his duties
 Incapacity Cont..

However, the procedure is that termination should not be the

first option.
The employer should also give such an employee sick leave
as provided under section 32 of the Act
Rule 19 provides alternatives to be considered before
termination ranging from temporary replacement, early
retirement, pension or light work.
 Incapacity Cont..

The said provision makes it a duty under Sub-rule 2

for the employer to accommodate the ill or injured
employee especially if the illness or injury is work
related.
In case the alternatives have failed and the employee
does not recover, the employer shall convene a
hearing in the manner afore said and finally give a
decision to terminate in writing.
 Incapacity Cont..

NB. It is important to note that HIV illness is no ground for

termination unless it has affected the employee to the extent
that he cannot continue discharging his duties properly. That
is to say, it has made the employee incapable of working.
This is as per Rule 20 and 21 of the Code of Good Practice
(Supra)
 Incapacity Cont..

For poor work performance, it is where the employee fails

to meet the required standard of work.
According to rule 17, It shall be a fair reason for termination
if the standard of performance was set by the employer, the
standard was reasonable and it was made known to the
employee.
 Incapacity Cont..

The procedure is that the employer should investigate the

cause of the unsatisfactory performance, warn the employee
in question, give him time to improve and where necessary
provide the employee with adequate training. This is
pursuant to Rule 18 of the Code of Good Practice (Supra)
If after all that the employee still performs poorly then the
employer may convene a hearing in the same manner stated
herein before and finally give a decision to terminate in
writing
 Incompatibility

his is the failure of an employee to get along with

fellow employees or the employer.

Rule 22 of the Code provides that incompatibility

is in itself a ground for termination if it relates to

the character of the employee or the environment

in which he is working.
 Incompatibility Cont…

The procedure is that the employer shall record the incident

of incompatibility and warn the employee.
Before termination the employer should consider alternatives
such as removing the cause of the disharmony or transferring
the said employee to another work station if the employer
has more than one branches.
 Incompatibility Cont…

If the alternatives fail then the employer may proceed to

convene a hearing and give the decision in writing

Short of this procedure the termination shall be rendered

unfair.
 Remedies for unfair termination
The remedies are provided for under Section 40 of Cap 366
If the arbitrator or a labour court finds termination to be
unfair, then it may order the employer to do the following;
Reinstate the employee from the date the employee
was terminated-that is without loss of remuneration
during the period that the employee was absent from
work –that is due to unfair termination.
To re engage the employee on any terms that the
arbitrator or court may decide;
 Remedies Cont…

To pay compensation to the employee.This remedy is

normally awarded in case the employer is not willing to
reinstate or re engage an employee, the employer shall pay
compensation of 12 months wages in addition to wages due
and other benefits from the date of unfair termination to the
date of final payment.
 Termination Benefit

•These are provided for under sections 42, 43 and 44 of Cap 366
respectively
•Upon termination of an employment; An employer shall be
required to pay to an employee severance pay. Severance pay is an
amount at least equal to 7 days basic wage for each completed year
of continuous service with that employer up o a maximum of 10
years. Severance pay will be effected to an employee only where
the employee has worked for 12 consecutive months with an
employer and where it was the employer that terminated the
contract of employment.
 Termination Benefit Cont…

Repatriation fee
The employer shall transport the employee and his personal
belongings back to his place of recruitment.
This is only payable if the contract is terminated at a place
different from at a place from which the employee was
recruited
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Contract of service
Irrespective of who terminated the contract of employment, an
employer is duty bound to give a certificate of service which is
in a prescribed form
The certificate contains an acknowledgement by the employer
that the employee in question has been his employee and for
how long.
The rationale is to provide an employee with proof of working
experience that will help him in his search for a new job.
 Termination Benefit Cont…

The rationale is to provide an employee with proof of

working experience that will help him in his search for a new
job.
 TOPIC THREE

TRADE UNION IN
TANZANIA-TUCTA.
 Meaning
Introduction:
Trade union as defined by the employment and Labour
Relations Act 2004 ( ELRA) means any number of
employees associated together for the purpose of regulating
relation between employees and their employers or the
employers’ association to which the employees belong
 Cont…

Trade unionism has to do with political matters as well

as labour matters. Even TANU emerged from Trade

union.

Where the employee has the right to resort to the trade

union has given mandate to regulate rights of

employer and employee.

 Cont…

In previous law, it provides for trade union although

the government impliedly prohibit as there were no

rights to strike, lockouts etc. By then the employees

were locking the Managers/employer in office.

 Cont…

Trade Union- Section 4 means a number of

employee associate together for the purpose whether
by itself or with other purpose of regulating
relationship between employee and their employer or
the employer associations to which the employers
belong.
 Cont…

Trade Union(T.U) or employers Association (E.A)

must be registered within six month from the date of
its establishment. S. 45 provides for obligation to
register.
- If trade union or employers Association operates
after six month after its establishment without being
registered or even applying for registration, it will be
an offence.
 Cont…

The requirement for registering Trade union or

employers Association as per section 46(1) provides
for the following:
a) It must be a bonafide Trade union.
b) It must be an association not for gain.
c) It must be an independent of any employer
association.
 Cont…

a) It must have constitution and rules that comply

with provision of section 47.
b) It must have names that does not resemble the
name of any other union so as to mislead or create
confusion.
c) Must have an address in the United Republic of
Tanzania.
d) Must be established at a meeting of at least 20
employees while employer association there
should be at least 4 employers.
 Cont…

Legislation of Federation
Federation is an association of Trade Union or
employers association: eg TUCTA a federation for
employee and ATE for employers.
 Cont…

Requirement for registration are provided under

section 46(3).
- That must be established at meeting of at least 5
registered organization of the same kind.
- It comprises registered organization only.

Note: Trade Union, Employers association or any

federation are required to have a constitution.
 Cont…

The content of the constitution- Section 47.

- Must state that it is an organization not for gain.
- Must prescribe the qualification for meambership
and the grounds and procedure for termination of
membership.
- Must prescribe rules for the convening and
conducting the meetings.
 Cont…

The process of registering a trade union,employers association

and federation section 48.
Section 48 provide for registration of trade Union, Employers
association and….
- The registrar of the organization appointed by the Minister
as appointed under section 43.
- After registration, the registrar will enter the name of the
organization or federation in appropriate register and issue
a certificate.
 Cont…

The effect of Registration.

o Once an organization is being registered it become a
legal person with perpetual succession and common seal.
o Will have the capacity of its own name to sue and be
sued.
o The capacity to contract, hold or purchase or acquire and
disposal of movable or immovable property section 49
49(1).
 Cont…

Cancellation of Registration.

This stipulated under section 55 of ELRA.

If an organization or federation fails to comply with the

requirement of registration or any other provision of the
ELRA, especially part IV. The registrar may apply to a labor
court for an order to cancel registration.

Where the registration of an organization or federation is

cancelled all the rights enjoyed under ELRA will cease, and
the organization or federation will be come to an end.
 Cont…

The registrar has a power to cancel the registration.

DISSOLUTION OF TRADE UNION OR

EMPLOYERS ASSOCIATION S. 56

(a) Dissolution can be applied to the labour court by

the registrar if the organization contravene the
provision of S.45 which is on the requirement of
registration.
 Cont…

(b) Trade union or employers Association may also apply to

the labour court to its dissolution.

(c) The organization may be dissolved by the labour court

upon its cancellation.

(d) Any interested person may apply to a labour court to

dissolve the organization in relation to bankruptcy.

Note: The registration, cancellation, dissolution or change of

any name of the association must be published in the gazette
by registrar. S. 58.
 Cont…

ORGANIZATIONAL RIGHTS, SECTION 60.

As T.U, EA, Organization has rights which are
entitled to include:
(i) Rights to access to employer premises.
This right is given to any authorized member of the
registered Trade Union to enter the employers
premises to recruit members, to communicate, to
meet with members, to hold meeting of the
employees of the employer premises and to vote as
per the union constitution.
 Cont…

The right to free access to employer premises

is also restricted where the employer is
empowered to set reasonable time regarding
time place of conducting the union activity for
the necessity of protecting the life.
 Cont…

(ii) The right to deduct union dues: Union due are

entitled to trade union or organization can be deducted
by the employer or employee wage if that employee
authorize.
However, the employee must authorize the empoyer to
deduct the union dues and after deducting union dues
the employer is subjected to remit the said deduct
within the specified time and reason.
 Cont…

The employer will be liable to pay the T.U 5% of the

total amount.
If the employer wishes not to continue his wages to
be deducted he can give one month notice to the
employer and after expiration of such term. The
employer will cease to deduct, S. 61(4)-(5) of ELRA.
 Cont…

(iii) The right to trade Union representation.

A trade Union plan to establish it at work place where 10

or more of its member are employed S. 62.Where there is
one member, there will be represented. (Note: Read
Section).
o Representatives are the one who had to be in the union
field branch, where there is above 100 members. The
representative will be 15 and among those 5 women.
 Cont…

FUNCTION OF THE TRADE UNION

REPRESENTATIVE.
a) To represent member of grievance and displinary
hearing.
b) Make representation on behalf of members in
respect of health, welfare
c) To consult the productivity in workplace.
d) Monitor the employer to comply the labour laws.
 Cont…

(iv) Right to leave for trade union activity, S. 63

ELRA.
Employer is required to provide a reasonable paid
leave for T.U representative to attend trade union
activity, training and other duties of the Trade Union.
 Cont…

COLLECTIVE BURGAINING:
According to Black Law Dictionary, collective
bargaining to mean a negotiation between the
employer and the representative of organized
employees to determine the condition of
employment.
 Cont…

The law provides for an avenue to collective bargain

in case there is violation by Trade Union and
employer or employers Association.
 Cont…

Essential for effective collective Bargaining.

a) Freedom of Association-without distinction
whatsoever, without previous authorization and
freedom of choice.
b) The right to organize; there is access to employer
premises, provision of facilities and leave for T.U
activities and protection against an act of Union
discrimination.
c) The right to strike and lockouts.
 Cont…

Section 66- Is an interpretation section with regard to

collective burgaining. It provides for burgaining
Unit.
 Read Section 66(a)(i) and (ii).
 Section 66 (b)-Recognized Trade Union.
 Collective agreement S. 4 ELRA
 Section 66 (c) Registered Trade Union
Cont…
Cont…
 TOPIC FOUR

FUNDAMENTAL RIGHTS
AND EMPLOYMENT
STANDARDS
 Continue…

FUNDAMENTAL RIGHTS
The ELRA contain provisions which prohibit child labour,
forced labour and discrimination. It also guarantees the right to
form and join association to both employer and employee.
Child Labour
Child Labour includes all forms of employment or work done
by children under a given. The law in Tanzania defines a child
as a person below the age of 18. As far as labour law is concern
and particularly child labour, a child is a person under 14 years.
 Continue…

When it is in relation to hazardous work he is a person under

18 years
Section 5 (1) of the act restrict and or prohibit Child labour
specifically for children below the age of 14 years. A child of
fourteen years of age may be employed to do light works
which is not likely to be harmful to the child’s health, and
does not interfere with a child’s participation in extra-
curricular activities.
 Continue…

Therefore, the employers should know that a child under

eighteen years of age should not be employed in hazardous
places such as in mines and factory.
 Continue…

Therefore, the child definition can be categorized

Into the following:
o Child below 14 years.

o Child above 14 years.

o Child below 18 years.

Generally, employment of a child under 14 is prohibited.

Section 5 of ELRA and regulation 3(1) of GN of 2017, provides
that “ No person shall employ or cause to be employed….”
 Continue…

However, a child of 14 of age and above may be employed

to perform light work which is not in the list of hazardous
work for children.[ Regulation 3(2) of GN No. 47.
A child who is still attending school shall be required to
work for not more than 3 hours per day.
A child of 14 years and above who:
 Is on leave
 Has completed his studies
 Continue…

 Or is not in school for any justifiable reason may be

employed to work for not more than 6 hours per day and
the employer shall be responsible for the safety of the
child so employed at the work place.
A child work for more than 3 hours shall be given at least
one hour break.
Overtime and night work [ 08 Pm to 06Am] is prohibited.
 Continue…

Forced Labour
The term forced labour includes bonded labour or any work
exacted from a person under the threat of a penalty and to which
that person has not consented Section 6 (2). Exception to this is
where: -
The only exception to this requirement is for works exacted under
the National Defence Act 1966, works that forms part of the
normal civic obligation of the United Republic of Tanzania, works
exacted as a result of conviction in a court of law and works
exacted in cases of emergency.
 Continue…

Any person who contravenes the provisions of the Act

regarding child labour and forced labour commits an offence
and on conviction, he shall be liable to pay fine not
exceeding 5,000,000/=, to imprisonment for a term of 1 year
or to both fine and imprisonment demanding on the gravity
of the offence.
 Continue…

Discrimination
Under section 7 (1) the employer is obliged to ensure that he
promotes an equal opportunity in employment and strives to
eliminate discrimination in any employment policy or
practice. In doing so, section 7 (2) requires an employer to
register with the labour commissioner, a plan to promote
equal opportunity and to eliminate discrimination in the
work place.
 Continue…

Freedom of Association
Section 9 of the Act recognize and guarantees the right to
form and join associations. That means employers have
rights to freely form and join employer’s association of their
own with the purpose of strengthening their interests. On the
other hand, employees have rights to form and join
employees associations
 Continue

•It shall not be unlawful for an employee to engage himself

in any lawful activity of the trade union. Again, no person
shall discriminate against an employee on the basis that he
has engaged himself in activities of a trade union or he has
joined a trade union.
•Any person convicted with the offence as a result of any
discriminative act, he shall be sentenced to a fine not
exceeding 5,000,000/=
 Employment Standards

•Part III of Act No. 6 covers the employment standards-that is

matters of hours of work, leave, remuneration, termination etc.
•The Act provides for three forms of contract of employment.
That is;
–A contract for unspecific period of time (sometimes
referred to as permanent or pensionable contract)
–Contracts for specific period of time for professionals and

–Contract for a specific task

 Continue…

•An employer is obliged to provide an employee with a written statement

of particular describing the nature of work, name of parties, age,
permanent address, sex of the employee, place of work, job description,
hours of work, remuneration, commencement and expiry of the contract
and any other related matter. In case of termination of the employment,
the employer is under obliged to keep the written statement of
particulars for a period of five years commencing on the date of
termination.

•Working hours is covered under the Act and that an employer shall not
allow an employee to work for more than 12 hours in a day.
 Continue…

•The maximum period an employee can work is as follows;

–6 days in a week;
–45 hours in a week;
–9 hours in a day.
•An employer is required to pay 5% of the employees basic
wage for hours worked at night. It should be noted that night
work is prohibited to a pregnant woman even if she has
consented (that is particularly 2months before and after birth.
 Continue…

An employer shall not require or permit an employee to

work for overtime except where there is an agreement with
an employee. Even where there is an agreement, the period
of overtime should not exceed 50 hours in any 4 week cycle
(s. 19 (3)) and should not make an employee work more than
12 hours in a day.
 Continue…

In the Act, night work means working after twenty hours and
before six hours.
The law prohibits an employer to permit or require a
pregnant woman to work at night. (especially during the 2
moths before and after giving birth) or before that time if she
has produced a medical certificate to the effect that she is can
not work at night. (s. 20)
 Continue…

•The employer is also prohibited from permitting or

requiring an employee who is below the age of 18 years or a
person who is medically unfit to do night work.
•The Act provides for a right for an employee to break
during the day.(s. 23-that an employer shall give an
employee who works continuously for more than five hours,
a break of at least 60 minutes.
 Continue…

However, an employer may require an employee to work during that

time of break, where the work cannot be left unattended or where that
work cannot be attended by another employee.

•The Act also provide for a rest during the end of the day and a week
that a daily rest period of at least 12 consecutive hours between ending
hour of work and commencing hour of work and a weekly rest of at
least 24 hours between the last working hour and the first working day
of the next week.

•A day rest period may be reduced to 8 hours if there is an agreement to

that effect.
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•An employer is under obligation to pay remuneration to an

employee, and failure to do so make the employer liable and in

case of a conviction then he will be sentenced to pay fine of
1,000,000/=

•An employer shall not make any deductions from an employee’s

remuneration unless such deduction is permitted under the law,

collective agreement, employee agrees in writing that the amount
be deducted in respect of a debt or where there is a court order to
that effect.
 Continue…

however, the total deduction from an employee’s

remuneration should not exceed 1/3 of the employee’s
remuneration
 Leave

•The Act has provisions regarding leave of employees.

• An employee with less than six months services shall not be

entitled to paid leave. however, a person who has worked for
less than six moths but who has worked more than once in a
year for the same employer, shall be entitled to paid leave
provided that the total period worked in that year exceeds six
months. It should be understood in this part that paid leave.
•The nature and amount to be paid may be captured in the
contract of employment.
 Continue…

•An employer shall grant an employee at least 28 days annual

leave and such leave shall be inclusive of public holidays.

•An employer may determine when the annual leave is to be

taken but the same cannot be taken six months after the end of

the leave cycle or 12 months after the end of the leave cycle.

•An employer is under obligation to pay an employee his basic

wage for that period of leave as if the employee had worked

with the employer.

 Continue…

•An employer shall not require an employee to take annual

leave in place of any other leave- eg, maternity leave, sick
leave, sabbatical leave, etc.
•The law prohibits an employer to allow an employee to work
during any period of his annual leave.
•An employer is also prohibited from paying an employee an
amount of money in substitution for the annual leave to which
an employee is entitled. Even where an employee has
consented, the employer should not do so.
 Continue…

Employees are entitled to sick leave whenever they fall sick.

Such an employee shall be entitled to 126 days leave. The
calculation of the leave cycle is to the effect that during the
first 63 days, an employee will be entitled to be paid his fully
wages, but for the remaining 63 days, an employee will be
entitled to be paid half wages. However, an employer will
not be required to pay an employee for sick leave if that
employee fails to produce a medical certification to that
effect.
 Maternity Leave

Maternity leave is also covered in the Act as a for of leave a

female employee is entitled to. Such an employee is
statutorily required to give at least 3 months notice (before
the expected date of giving birth) to the employer,
expressing his intention to take maternity leave. The notice
must be supported by a medical certificate proving the fact
that such an employee is expected to give birth on the date
indicated therein.
 Continue…

•An employee who has given notice of her intention to take

maternity leave may take such leave any time in the four weeks
before the expected date or may commence earlier if there is a
certification that she is no longer fit to work.
•An employee who has taken maternity leave shall not be required to
work for the employer within six weeks of the birth of her child,
unless there is a certification that she is fit to work.
•After the completion of maternity leave, an employee will resume
her employment basing on the same terms and condition of the
employment.
 Continue…

•An employee is entitled within any leave cycle to 84 days paid

maternity leave and in the circumstances she has given birth to more
than one child then to 100 days. An exception may only be where an
employee’s child has died within a year of birth-that means an
employee will be entitled to other 84 days paid maternity leave.
•An employer is not obliged to grant paid maternity leave for four
terms of maternity leave.
•After resuming work, an employee will be entitled to 2 hours to
feed her child.
 Paternity Leave
A male employee shall be entitled to 3 days leave which
must be taken within 7 days of the child’s birth and that the
employee is the father of the child.
 Other Forms of Leave

An employee shall be entitled to at least four days leave

where there is sickness or death of the employee’s child or
where there is death of the employee’s spouse, parent,
grandparent, grandchild or a sibling.
Employer may grant more than 4 days as the provision says
“at least”.
 TOPIC FIVE

DISPUTE RESOLUTION
UNDER NEW LABOUR
LEGISLATION
 MEDIATION

Mediation entails the use of the service of the 3 rd person.

According to rule 3(1) of the labour institution mediation
and Arbitration guideline GN 67/2007 mediation is defined
to be the process in which a person and the parties to the
dispute has appointed as mediator to assist the parties to
resolve the parties and attempt to assist the parties to set their
dispute amicably
 Continue
S. 86 of ELRA 2004 requires the labour institution that the
dispute to be referred to CMA. If the dispute is about the fairness
of an employee termination of employment such must be referred
to CMA within 30 days from the date of termination or from the
date of employer made final decision to termination.

In case of any other dispute referred to CMA should be made

which the 60 days from the date the dispute arose as per rule 10
(2) of labour institution (mediation and Arbitration) Rule GN
64/2007.
 Continue

Case: Hidaya Chande vs Matanda Investment Co. Ltd.

(2014)
In this case the dispute was dismissed for being
reffered at the commission out of time without being
accompanied with CMA form No 7.
Held: It is established principle that those who seek the aid
of law in court of justice must file proceedings within the
prescribed time.
 Continue…

In case the dispute for mediation remains unsolved within 30

days as required under S. 86 (4) the parties to the dispute

may if it is the dispute of interest give notice of the intention

to commence a strike or lock- out in accordance with S. 80-

82 of ELRA. But if the dispute is a complaint the parties

may refer the same to arbitration or to the labour court.

 Continue

The mediator shall not be bound to resolve the labour dispute within

30 days as per S. 86 (4) if either of the parties fails to attend the

mediation, the mediator may extend the period stipulated under S.

86 (4) for another 30 days.

Moreover if the parties fail after the extension of that time the

mediator may dismiss the complaint or decide it expert. The

mediator decision is capable of being enforced in the labour court as

a decree of the court of competent jurisdiction as per S. 87(4)

ELRA.
 ARBITRATION

Arbitration is a process in which a person appointed as arbitration

for resolving the dispute.

Under the labour laws not all dispute can be referred to arbitration.

The disputes which can be referred to the some are those provided

under S, 88 of ELRA as follows:

-A dispute of interest if the parties are engaged in essentials services.

-A complaint over the fairness or wrongness of an employees,

termination of employment
 Continue

-A complaint over breach of employment contract

-Any dispute which may be referred to the arbitration by H.C
(Labour division) S. 94 (3) (a) (ii).
Once the dispute has been referred to arbitration, the
committee shall appoint an arbitrator, and determine the time
and place, and advice the parties on the details stipulated
under S. 88 (2) (a) and (b) of ELRA.
.
 Continue
.
According to S. 88(5) a part to a labour dispute which has
been referred to arbitration may if wishes call witnesses and
represented by a member or official or a trade union which
he belongs
 Continue

In case of employer may be represented by a member or an

official of members association or an advocate.
The decision of the arbitrator is called an AWARD and it is
binding on the parties to the dispute and must be given
within 30 days from the date of conclusion of arbitration
proceedings. It must also signed by the arbitrator as per S.
88(9) of ELRA.
 Continue
.
In the course of making an award the arbitrator cannot make
an order for cost like in civil cases.
An award can be challenged. If the disputant not satisfied
with the award cannot APPEAL against the award but rather
than may challenge the award by making an application to
the H.C (Labour division) to have the award set aside.
Normally the dissatisfied part moves the court to revise the
award and application must be supported by grounds upon
which be based his dissatisfaction
 Continue
.
The application must be made within 6 weeks from the date award was
sealed or given.
Upon application for revision the labour court may set aside the
arbitrators awards on procedural grounds.
According to statutory provision the labour court can revise or set aside,
the arbitrators award if;
a). There was misconduct on the part of the arbitrator. This may be
happen if the arbitrator receive evidence from are disputant and denies
the other part.
 Continue
.
b).The award was improperly procured this may be an issue
if it appears that an award was obtained by fraud or it’s
obvious that an award was based on documentary evid which
was obtained in a documentary which is invalid
 ADJUDICATION
.
According to black’s law dictionary the terms adjudication
defined to mean legal process of resolving the dispute
contemplates the claims of disputants are to be considered
and consequently brought to an end.
The labour court has powers to review and revise arbitrator’s
award and decision of the essential service committed
 Continue
.

If the mediator fails to resolve the dispute within the time specified
under the act, the same may be referred to the labour court.
S.94 cap 366 the labour court has exclusive jurisdiction in relation
to labour matters.
Labour court is established by S. 50 (1) of the cap 300.
The labour court shall consist such numbers of judge as the chief
justice may consider necessary together with two panels as
assessors.
 Continue
.
The labour court shall be properly constitute one judge
when presiding the matter sitting with at least two assessors
not related from the two panels dominated by the panels as
per S. 53 (4) cap 300.
There is circumstance where the court may sit expert
assistance according to S.50 (3), (a), (b), and (c) of cap 300
this court may sit without assessors under.
 Continue
.
1. When it hears an application to revise the award.
2. When the parties to the dispute agreed to have their
dispute conducted without assistance.
3. Where both disputant are of the opinion that to sit
without assistance is necessary for expedition of the
dispute resolution.
 Continue

The judge of the labour court shall have decision after taking into
account the opinion of the assessor. However, he is not bound to
take them, and where he agrees to such effect as per S. 50 (4) cap
300.
In all cases the judge has the final decision and therefore no fee
or costs or interest shall be payable in respect of any proceeding
before the labour court.
The powers of the labour court are the same as those of the H.C
as per S. 52 CAP 300.
 Continue

The disputants before the labour court may be represented

either by on official of the registered trade union or of the
employer’s organs, or by person representative chosen by a
disputant as per S. 56 of CAP 300.
If the disputant is dissatisfied with the decision of the court,
he can challenge by lodging an appeal to the court of appeal
of Tanzania, however this can be entertained only if it
involves the POINT OF LAW as per S. 57 of cap 300.
 Continue

The decision of the court of appeal must be end the dispute

but where no point of law is involved the decision of the
labour court is final and conclusive.
 TOPIC SIX

LABOUR DISPUTE
SETTLEMENT MECHANISM
(LABOUR INSTITUTION)
 Continue…

The two legislation provide for three methods of labour

dispute settlement. These are mediation, arbitration and
adjudication. The Labour Institutions Act establishes the
organs which are responsible to settle labour disputes while
the Employment and Labour Relations Act provides for the
procedure to be used in settling labour disputes.
 Continue…

The Institutions for Settling Labour Disputes

Commission for Mediation and Arbitration

This is established under s. 12 of the LIA as an independent

department of the government. Its composition is:

- a chair person, appointed by the President who shall not be a

member or office bearer of trade union or employer’s

association or an employee in the public service

-two commissioners representing the interests of the employees

 Continue…

-two commissioners representing the interests of the employers

-two commissioners representing the interests of the government

(s.16)

NB: the chair person is appointed among list of three

persons recommended by the Council while the other
commissioners are appointed by the minister upon
recommendation by the Council. The commissioners hold
office for three years and are eligible for re-appointment
(s.17).
 Continue…

Its functions include:

a) To mediate any dispute referred to it under any labour
law
b) To determine any dispute referred to it by arbitration
where it is so required by law or agreed by the parties or
referred to it by Labour Court to be so determined
c) To facilitate the establishment of a forum of workers
participation if so required. (s. 14(1)
 Continue…

he Commission in performance of its functions has the following

powers:

-power to appoint a director, mediators and arbitrators

-power to assign mediators and arbitrators to mediate and arbitrate

disputes in accordance with the provisions of any labour law

-power to establish offices

-power to establish divisions of the Commission

-power to publish the code of ethics for mediators and arbitrators

 Continue…

-power to make rules to regulate internal administration,

practice and procedure for mediation, practice and procedure
for arbitration, practice and procedure of essential services
committee etc
-power to publish the code of ethics for mediators and
arbitrators
 Continue…

Labour Court
The Labour Institutions Act provides for the establishment of
a labour division of the High Court which shall consist of
such number of Judges as the Chief Justice may consider
necessary and two panels of assessors appointed in terms of
one panel representing the interests of the employees and
another panel representing the interests of the employers (ss.
50, 53)
 Continue…

The Labour Division of the High Court shall be duly

constituted when a Judge sits with at least two assessors one
from either panel of assessors. The Labour Court shall have
exclusive jurisdiction over any matter reserved for its
decision by the labour laws.
 Continue…

Essential service committee

This is an organ which is established within the Commission
under s.29 of the LIA. The organ comprises of 5 persons
appointed by the minister in consultation with the Council. The
qualifications for these members include knowledge and
experience in labour law and labour relations. Among these
members, the minister shall appoint a chairperson of the
committee (s.31). The tenure of the committee is three years but
a member may be reappointed at the end of his term of office.
 Continue…

The functions of the Essential Services Committee are: to

designate essential services in terms of the provisions of the
ELRA, 2004; and to determine disputes about whether or not
an employee or employer is engaged in a designated
essential service (s.30). However, in the performance of its
activities, the Committee has the following powers:

-It may summon any person for questioning where it

considers that the attendance of this person will assist in the
performance of its functions;
 Continue…

-It may summon any person believed to have the possession

or control of any book, document, or object relevant to the
performance of its function to appear for questioning and
production of such a document;
-It may administer an oath or accept an affirmation from any
person called to give evidence; and
-It may question any person about any matter relevant to the
performance of its functions (s.32)
 Continue…

It should be noted that a person shall not be required to

answer any question or furnish any information, book,
document or object if there is a lawful ground for not doing
so. Also the Commission shall pay the prescribed witness fee
to each person who appear before a mediator or arbitrator in
response to a subpoena issued in this regard (ss. 32(2) and
(3)
 Continue…

The Labour Economic and Social Council

This is an organ established under s. 4(1) of the LIA as a Council for Labour,

Economic and Social matters. It is composed of a Chairperson and sixteen

other members all of whom are appointed by the Minister. Provided that a

member, official or office bearer of a trade union, employer’s association or

federation or an employee in the public service of the government of the

URT shall not qualify to be appointed as a Chairperson. The idea here is to

avoid an interested person from acting as a chairperson because he may be

biased in his decisions. The sixteen other members are appointed by the

Minister are as follows:-

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-the permanent secretary and three other members to

represent the interests of the government
-four members to represent the interests of the employers
-four members to represent the interests of employees
-four members appointed because of their expertise in
labour, economic and social policy formulation
 Continue…

It should be noted that the Minister appoints the

representatives of trade unions and workers associations
from the list of members nominated by such trade unions.
Duration of membership into the Council is three years but a
member may be re-appointed (s.6)
 Continue…

The Council has the following functions among others. (s.5)

a) To advise the government through the Ministry on the

matters of measures to promote economic growth and social

equity, economic and social policy, promotion of a

coordinated policy on labour economic and social matters.

b) To advise the Minister on national labour market policy, any

proposed labour law before it is submitted to the cabinet, any

issue arising from the International Labour Organisation,

 Continue…

c) To ensure employers and employees nominate assessors

for appointment to panels, members for appointment to
governing board of the Commission and individuals for
appointment as members of the Essential Services
Committee.
d) To survey and analyse social and economic affairs
e) To keep abreast of international development in social
and economic policy etc etc
 Continue…

For the purposes of performance of its functions, the Council

may establish committees to perform specific functions. The
committees established shall be tripartite (comprising the
representatives from the trade unions, employer’s
associations and the government). The committee must also
comprise at least three of the Council’s members (s.8).
 Continue…

However, despite the fact that the Council may establish

committees, it may only assign any of its functions to a
committee, subject to the approval of the Minister. In
addition to this, the Council may assign such a functions on
conditions it may deem necessary to impose. Any function
performed by the committee in these terms shall be deemed
to have been performed by the Council (s.8(3)
 Continue…

The Council shall operate by meetings. There shall be at least three

meetings in a calendar year, meetings of the council in accordance
with its rules, and a special meeting of the council all of which
shall be summoned by the chairperson (s.9). The special meeting
of the council shall be either at the written and motivated request
of four members or at the request of the minister. The Chair person
shall preside over all meetings of the Council at which he is
present and where he is not present the members shall elect one of
them to be a chairperson in that meeting.
 Continue…

In the meeting of the Council the quorum shall be constituted

by the majority of the members provided that there is at least
one member representing the interest groups (ie. The
employers, employees and the government) and the decision
of the majority members of the Council present in a meeting
shall be the decision of the Council.
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In case of a tied vote the presiding member shall

(chairperson in that meeting) shall have a casting vote (s.
9(6). The Council is required to keep written record of its
meetings.
The Council is required to submit an annual report of its
activities in each calendar year to the Minister before 30 th
June of the next year (s.11)
 Continue…

Other Institutions Established by LIA

There are other institutions which are established under this
law which deal with the labour matters. These are discussed
below:
Wage Boards
These are ad-hoc boards established by the Minister in
respect of a sector and area to investigate remuneration and
term and conditions of employment in any area (s.35(1)).
The members of these boards are appointed by the Minister.
A board is made up of a Chairperson, a member nominated
by the Council who represents the interests of the employees
and a member nominated by the Council to represent the
interests of the employers (s.35(3)).
 Continue…

The Minister publishes a notice in the gazette prescribing the

names of the members, and the terms of reference of the
investigation. The terms of reference of the investigation
include the sector and area to be investigated, the categories
and classes of employees to be included as well as the
matters to be investigated. A member of a board remains in
office until the Minister discharges the wage board or until
he is removed by the Minister due to misconduct, illness,
bankruptcy, conviction of a crime etc (s.35(4),(5).
 Continue…

The functions of a wage board are to conduct an

investigation on minimum remuneration and other
conditions of employment; to promote collective bargaining
between registered trade unions, employers and registered
employer’s associations; and to make recommendations to
the Minister on a minimum wage and conditions of
employment.
Thus, board reports to the Minister on its findings and
recommendations