By: Nyalusi B.

P 2009
LABOUR LAW

LECTURE NOTES

Definitions

 Labour Law sometimes referred to as Employment law or

Industrial Law is that branch of law which is basically concerned
with the various aspects of master-servant, employer-employee
relationship.

o It defines your rights and obligations as workers, union

members and employers in the workplace. 

o Labour law gives specification of rights, obligations and it

regulates and tells the subjects on how they can conduct
themselves on contractual terms and how they can enforce
their rights. In other words, labour law sets a forum or an
institution to enable the effective enforceability of both the
employers’ and employees’ rights.

 A major concern of Labour Law is basically on;

o The aspect of labour power, that is to say capacity of a

person to work.

o Another concern is a relationship between capital and

labour.

 An employee means an individual who1;

o Has entered into a contract of employment

o Has entered into any other contract which;

 The individual undertakes to work personally for the

other party to the contract.

 The other party is not a customer of any profession,

business or undertaking carried out by the individual.

 An Employer is defined to mean any person including the

1
S 4 of The Employment and Labour Relations Act, No. 6 of 2004

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 By: Nyalusi B.P 2009
Government and an executive agency who employs an employee2.

Generally, labour law covers:

o Industrial relations – certification of unions, labour-management

relations, collective bargaining and unfair labour practices.

o Workplace health and safety

o Employment standards, including general holidays, annual

vacations, working hours, unjust dismissals, minimum wage,
layoff procedures and severance pay

 According to Duddington, J 3, employment law (labour Law) is

divided into two parts;

o The relationship between employers and those who work

for them (employees or workers). i.e. individual employment
law (includes right to wages, health and safety e.t.c)

o The relationship between employers and groups of

employees or workers. He reefers this as collective
employment which includes the law on trade unions, strikes
and other industrial actions.

 Labour law may be classified into two categories;

o Substantive Labour Law; this is that branch of labour law

2
Ibid
3
(2007) Employment Law, 2nd Ed p 3

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 By: Nyalusi B.P 2009
that prescribes the standards to be observed by both
employers and employees. Specifically, substantive law
deals with things like contracts of service and for services,
termination of contract/ employment, benefits e.t.c. These
are provided for by the Employment and Labour Relations
Act No. 6 of 2004

o Procedural Labour Law; this is that branch of Labour Law

that prescribes procedures to be followed in all labour
matters. This is done by providing for institutions for
implementation of the substantive standards, and
enforcement of rights. This is provided for by the Labour
Institutions Act No.7 of 2004 and the specific rules issued
in 20074.

Sources of Labour Law

 Statutes/ legislations; this includes both principal and subsidiary

legislations

E.g. The Employment and Labour Relations Act No. 6 of 2004

(ELRA), The Labour Institutions Act No. 7 of 2004 etc.

Prior to the coming into force of the new labour legislations there
existed piece of legislations that dealt with labour matters these
include the following;

 The Employment Ordinance/ Act cap 366

 The Regulation of Wages and Terms of Employment

Ordinance Cap 300

 Wages and Salaries (General Provisions) Act, 1974

Act no. 22 of 1974

 Trade Union Act, 1998 (Act No. 10 of 1998)

 Security of Employment Act Cap 574

 Severance Allowance Act Cap 487

4
GN Nos. 42, 64, 65, 66 and 67 of 2007

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 By: Nyalusi B.P 2009

 Industrial Court of Tanzania Act, 1967 Act No.41 of

1967

However all these laws are repealed by s 103 of the ELRA and they are
listed under the Second Schedule to the Act.

 Case laws; these lay down principals by providing necessary

precedents for courts to follow and fill the gaps left by statutes.

 The constitution; the Constitution of The United Republic of

Tanzania 1977 provides for the right to work and the right to fruits
to one’s labour, art 11, 22 and art 23 respectively.

 International conventions and agreements; these set international

standards for labour matters. These are under the umbrella of
The ILO and include agreements and conventions on, prohibition
of Child labour, forced labour and collective bargaining.

 The law of contract, this is the source of labour law to the effect
that, the relationship of employer and employee is preceded by
the contract of service which must abide to all the principles of
the law of contract. Parties’ agreement cannot be superior to Act
of parliament so it must align with requirements of the Law of
Contract Act.

 Books and writings of prominent scholars are also important

secondary sources of labour law.

Functions of labour law

 Protection of employees, this is done through;

o Limiting the powers of employer to dismiss employees or

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 By: Nyalusi B.P 2009
terminate employment at his will without just cause5.

o Regulating the wages to be paid by maintaining financial

capacity of employees 6.

o By regulating conditions for work through providing for rest

days and leave and hours of work and matters incidental to
standard of work7.

o By providing for care and welfare of employees.

 Balancing conflicts of interests as between employers and

employees. By defining their rights and duties and regulating their
conducts.

 It helps in resolving industrial disputes by establishing a special

institution which has the duty and power to enforce rights and
duties under labour law8.

 Helps in increasing production of goods and provision of social

services. This is done by maintaining industrial peace.

The right to work

 The right to work may imply among other things, the right to
demand for better and fair wages, the right to withhold labour by
use of strikes and other means.

 Article 22 of The Constitution provides for the right to work. This

right is absolute. This right goes hand in hand with the right of
every citizen to be afforded equal opportunity and with equal
condition to occupy any position in the service of the United
Republic 9.

 To the larger extent the right to work is aligned with the very
survival of an individual and the society in whole. It is said to be
closely related to the right to life that being the case the right to

5
Part III sub part E of ELRA
6
Part III sub part c of ELRA
7
Part III of ELRA
8
Part III of the Labour Institutions Act no 7 of 2004 establishes the Commission for Mediation and
Arbitration for this purpose
9
CP Maina (1997), Human Rights in Tanzania: selected cases and material, p 170

5
 By: Nyalusi B.P 2009
work requires legal protection10.

o Lord Denning M.R (as he then was) in the case of Lee v

Showmen’s Guild of Great Britain [1952] 2 Q.B. 329 was of
the view that ’’a man’s right to work is just as important to
him as if not more important than his rights of property. The
courts intervene everyday to protect rights of property. They
must also intervene to protect the right to work

o Mwalusanya, J , in Augustine Masatu v Mwanza Textiles Ltd

H.C at Mwanza, Civil case No. 3 of 1986 (Unreported) had a
view that for work to be sustained, it requires that
opportunities to be set open so that members of the society
can strive their material necessities of life. In his own words
he stated inter alia that ‘’for this right to exist in a real sense,
it is necessary that economic, political and legal order of the
society assure everybody who is capable of working of the
possibility of participating in building his society through
work in accordance with his capacity and education and the
right to earn an income proportion to the quantum of his
work. And so job security is the hall-mark of the whole
system’’

o The right to work is the product of a long term and historic

struggle of the working class against capital and
exploitation of labour.

The big question is the right of work protected in real sense in Tanzania?

The right to fruit of one’s labour

 Article 23 of the constitution provides that every person is entitled

to remuneration commensurate with his work without any kind of
discrimination. This remuneration will take into consideration the
ability of the person working and the nature of work done. These
remunerations must be just.

10
CP Maina (1997), Human Rights in Tanzania: selected cases and material, p 169

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 By: Nyalusi B.P 2009

 It is said that labour is one of the most treasured assets that

human beings have11. Labour does not only guarantee generation
of wealth but also guarantees the very survival of human beings;
therefore its protection is a crucial matter.

Hence labour laws should be able to cutter for this constitutional

provision by providing provisions that protect and profess the
right to work.

The Historic developments of the labour laws and labour forces/ labour
movement

 The history traces back its origin from the slave mode of
production. During this mode a slave was used as a tool of
production. Slave masters owned slaves who owned nothing than
their labour power.

o Slaves and their families had no rights whatsoever because

they were considered as ‘’chattels’’.

o The then labour laws which regulated activities undertaken

by slaves were penal laws and not civil laws. There were no
contract of employment; the law placed squarely the
position of slaves on an inferior position. Slaves had no
rights rather they had only obligations.

 The relation of production changed during the Feudal mode of

production. There emerged classes of feudal lords and tenants

o Exploitative Labour conditions were enhanced through

various ways such as;

 Taxes

 Forced labour

 Labour in kind and tributes payment

11
Ibid Maina p 194

7
 By: Nyalusi B.P 2009
o The rights of tenants were suppressed by feudal lords. The
labour laws were also penal oriented.

 The introduction of industries and the growth of commerce during

capitalism mode changed the relations of production. The
introduction of cash economy lead to the introduction of law of
contract, banking, sale of goods e.t.c.

o With these developments there emerged ‘’freedom of

contracts’’ where by workers/ labourers were left free to
sale their labour in exchange with wages. This paved the
way for development of wage labour and employment
contracts.

 Legal framework of labour laws in Tanzania

o During colonial era

 When Capitalism was at its apex capitalist had to

extend by capitalist powers colonising other territories

 The subjects of colonialism were subjected the laws

and traditions of colonialists governing employment
relations.

o In Tanzania during the German rule, ‘land alienation’ policy

was adopted. This was aimed at depriving the peasants of
their major means production by parting them with the
essential means of livelihood.

 The administration did not just end in depriving their

subjects of their land, they went on and imposed
various forms of taxes which were enforced by
corporal punishment for the defaulters.

 Forced labour was another means of acquiring the

labour force during the German colonial rule.

o During the British rule an exploitative employment culture

was developed to get the native to work in plantations,

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 By: Nyalusi B.P 2009
mines and processing industries. Forms of labour were
developed;

 Communal labour

 Tax defaulters

 Conscription labour

o Various legislations were passed to curter for this;

 The Master and Native Servants Ordinance Cap 29

No. 32 of 1923

 The Minimum Wages Ordinance e.t.c.

o By 1946 necessary labour laws were enacted to implement

the colonial labour legacy. These laws supported a forced
labour regime commonly known as ‘’Manamba’’

o The struggle for independence and the International Labour

Organisation’s (ILO) initiatives to eliminate forced labour
made a major contribution to the change of labour relations
by improving it.

 In 1955 the Employment Ordinance No. 47 Cap 366 of

1955 was enacted to put the labour regime in line with
the ILO conventions for the welfare of employees.

 Other legislations were also enacted to improve the

labour relations in Tanzania;

 The Factories Ordinance Cap 297

 The workman’s Compensation Ordinance Cap

263

 The Accidents and Occupation

Diseases(Notification) Ordinance Cap 330

 The regulation of wages & Terms of

Employment Ordinance Cap 300

 Trade Unions Act Cap 387

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 By: Nyalusi B.P 2009
o The legal framework of the labour laws has passed through
various stages to date, the major revamp occurred with the
enactment of the new labour legislations vide The ELRA
and The Labour Institutions Act.

 Post – colonial era to the present

o This can be categorised into two phases

 The 1961-2004 phase

 The 2004-to the present

The 1961-2004 phase

o A number of piece of legislations existed during this phase

 The Employment Ordinance No. 47 of 1955 Cap 366

 This was an Act to consolidate the law relating

to labour and to regulate conditions of
employment for employers and employees

 This was renamed to the Employment Act in

2002 it dealt with all substantive and procedural
matters concerning employment relations.

 It came into force in February 1957

 The Security of Employment Act No. 62 of 1964 Cap

387;

 This was an Act to provide for the

establishment of Workers' Committees in
certain businesses and undertakings, to restrict
the powers of employers, businesses and

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 By: Nyalusi B.P 2009
employees summarily and otherwise in relation
to the discipline of employees, to provide for the
payment of additional compensation on the
occasion of the termination of employment
except in specified circumstances 12.

 This was the first labour legislation to be

legislated by the union parliament. In a nutshell
it provided for security of employment for
workers, by limiting the powers of employers to
dismiss employees at their will which more or
less the colonial legacy.

 The Industrial Court of Tanzania Act No. 41 of 1967

Cap 60 (The Permanent Labour Tribunal Act);

 This was an Act to establish an Industrial Court

of Tanzania and to make provision for the
settlement of trade disputes by negotiation,
conciliation and reference to the Industrial Court,
and to provide for related matters 13.

 This law created the machinery for settlement

of collective industrial disputes i.e between an
employer and a group of employees. These
disputes were referred to as trade disputes

 These disputes concerned conditions of work,

terms of employment,

 Trade Union Act No.10 of 1998 Cap 244; this was a

piece of legislation to curter for trade unions. These
were defined to mean association of either employers
or employees. Among other things the Act governed;

 The registration and de-registrations of Trade

unions

 Their functions
12
Preamble to the Act
13
See preamble to the Act

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 By: Nyalusi B.P 2009
 And general affairs

 Severance Allowance Act No. 57 1962 Cap 386; the

preamble to this Act provided that this was an Act to
provide for the payment of allowances to employees
on the termination of their employment in certain
circumstances.

 According to Maina C.P, movement of workers started way back in

1930’s and 1940’s where workers had small unions given the size of
working class then14.

 The workers organise serious activities including strikes through

the Tanganyika Federation of Labour.
15
 In 1950’s the workers joined peasants who were organised
through cooperatives and politicians who were organised
through TANU. This was not to be acceptable by the labour
department of the colonial regime.

 After independence this union (of workers, peasants and

politicians) broke off, for politicians these other groups were no
longer important after getting rid of the colonialist. The reason
for this was that the TANU government had inherited from the
colonial regime most of the policies. The unions soon found
themselves in opposition to their own government16.

 The trade unions had either to be swallowed either voluntarily

through co-option of the leadership into political process or by
force through detention or internal deportation of the leadership17.
The government enacted legislations to deal with labour
movements for example the labour movement leaders were the
first victims of the Preventive Detention Act 1962. For example in
1963 this legislation was used to silence Victor Mkello, who was
President of both the Plantation Workers’ Association and the

14
See Maina, p 170
15
In the course of the struggle for independence
16
C.P Maina quoting Bienefeld M.A ‘’Socialist development and the workers in Tanzania’’
17
Ibid Maina p 171

12
 By: Nyalusi B.P 2009
Tanganyika Federation of Labour18.

 The government passed the trade Disputes (settlement) Act

1962, Act no. 43 of 1962 which prohibited strikes unless the
established machinery was exhausted, in an attempt to curb
TFL’s opposition, in this sense strikes were practically
impossible19.

 The Security of Employment Act was enacted in 1964, this was

not a relief to workers because it took labour matters from the
purview of the normal courts and placed them under the Labour
Conciliation Board under a labour officer which was an
administrative body.

 The proceedings were held in camera and advocates had no

locus standi in these bodies
 All appeals from the boards went straight to the Minister for
Labour whose decision was final and conclusive.

 The last nail on the coffin of Trade unionism was nailed by the
dissolution of TFL in 1964, detention of its leaders and formation
of the National Union of Tanganyika Workers (NUTA) which was
established by Act No. 18 of 196420.

 The Secretary General of NUTA was also the Minister

responsible for labour, in this case serious struggle for
workers’ right was technically impossible. The trade union
was turned into a mass organisation of the ruling party.

 With coming into power of Chama Cha Mapinduzi (CCM) NUTA

was reduced to one of the mass organisations of the ruling party
and was renamed J umuiya ya Wafanyakazi wa Tanzania
(J UWATA) which was established through the J umuiya ya
Wafanyakazi Wa Tanzania Act of 1979.

 In 1991 the was an attempt to de-link trade union from the

party by the formation of the Organisation of Tanzania Trade

18
Ibid
19
Shivji, I .G, ‘’the Post-mwongozo proletarian struggle in Tanzania’’ p 142
20
National Union of Tanganyika Workers (Establishment) Act

13
 By: Nyalusi B.P 2009
Unions (OTTU), this did not however lead to a new free trade
union.

 OTTU still retained strong allegiance to the party and the

government. The law establishing OTTU gave the Registrar of
Societies the power to deregister it at any time this was
provided by s 9 of the Organisation of Tanzania Trade Unions
Act no. 20 of 1991. This Act received much criticism
especially from the Nyalali Commission which criticised it as
limiting the right to organise freely by prohibiting the right to
strikes. According to the commission OTTU could not simply
be said to be a Trade Union. The commission recommended
the re-examination of this law and many other laws.

 The ELRA curter for the right to Strikes and lock outs. This is
provided for by part VII of the Act.

 The phase from 2004- to date

o This phase consists of the new Labour legislations namely;

 The Employment and labour Relations Act No. 6 2004

which was passed as law in the parliament on the 14th
April 2004 and assented on the 6th day of J une 2004.

 It is the legislation to make provisions for core

labour rights. To establish basic employment
standards, to provide for framework for
collective bargaining, provide for the prevention
and settlement of disputes and to provide for
related matters 21.

 This law provides for both the substantive and

procedural matters regarding labour law.

 It repeals all other old labour laws as provide for

by the 2rd schedule to the Act that is made under
s 103 of the Act
21
Preamble to the Act

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 By: Nyalusi B.P 2009
 This law did not come into force immediately; it
came into force on 5th J anuary 2007 by G.N no.
1 of 2007.

 The Labour Institutions Act No. 7 of 2004 which was

passed as law on the 15th day of April 2004 and was
assented on the 6th day of J une 2004.

 This act is enacted to establish the labour

institutions and provide for the functions,
powers and duties of institutions these
institutions includes the Commission for
Mediation and Arbitration (CMA) and the Labour
Court which are established by part III and VII of
the LIA respectively.

 Apart from these principle legislations there are rules

that are enacted to apply with these principle
legislations these rules are;

 The Employment and Labour relations (Code of

Good Practice) Rules, 2007 which came into
force by GN no. 42 of 16th February 2007.

 These rules are made under s 99(1) of

ELRA

 These rules to provide for standard of

conduct of both the employers the
employees and the organisations,
mediators, arbitrators, judges, assessors
and government officials.

 The Labour Institutions (Mediation and Arbitration) Rules, 2007,

GN no. 64 of 23rd March 2007

 These rules are made under s 15(1)(e) of Act No. 7 of 2004

15
 By: Nyalusi B.P 2009
 These rules point out the procedures to be followed in
mediation and arbitration for arbitrators, mediators and the
parties and all those involved in arbitration and arbitration.

 The Employment and Labour Relations (Forms), Rules, 2007, GN

65, of 23rd March 2007

 These forms are made under ss 48,50, 52, 61, 64, 67, 86 and
98 of Act No. 6 of 2004

 These are forms used for various purposes such as the

process of dispute settlement.

 They are standard forms that are aimed at simplifying the

procedures.

 The Labour Institution (Ethics and Code of Conduct for Mediators

and Arbitrators), Rules, 2007, GN no. 66 of 23rd March 2007

 These are made under s 15(1)(g) and 19(4) of Act no. 7 of

2004

 These provide for ethics to be abided by mediators and

arbitrators in the conduct of their duties

 It gives the do’s and don’ts of Arbitrators and Mediators in

their professional capacity

 The Labour Institution (Mediators and Arbitrators Guidelines),

Rules, 2007, GN no. 67 of 23rd March 2007

 These guidelines are made under s 15(1) (f) of Act No 6 of

2004

 These are aimed at helping arbitrators and mediators in the

exercise of their functions and powers.

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 By: Nyalusi B.P 2009
Employment relationships

 Employment relationships concern various groups of individuals

who may claim rights and be subjected to obligations under both
common law and statutory employment/ labour law. These groups
may consist of employees, employers, casual labourers, agency
workers, professionals, e.t.c.

 The employment relationships in Tanzania are regulated by the

Employment and Labour Relations Act No. 6 of 2004. This is a
benchmark statute regulating the employer-employee
relationship.

 It covers a wide scope of application including, individuals,

those in public service of the Government. The Act does not
apply to the Tanzania Peoples defence Forces, the Police
Force, the Prisons services or the National services. This is
provided for by s 2 of ELRA, however ss 5,6 and 7 which deal
with prohibition of child labour, forced labour and
discrimination respectively will apply to members of forces
and services.

 An Employee is defined by s 4 of the ELRA to mean an

individual who has entered into a contract of employment or
any other contract where the individual undertakes to work
personally for the other party to the contract, that other party
not being a client or customer of any profession, business or
undertaking, furthermore any individual will be considered an
employee if the minister deems him to be so22.

 An Employer is also defined by s 4 of the ELRA to mean any

person including the Government and executive agency who
22
Under s 98(3) of ELRA

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 By: Nyalusi B.P 2009
employees an employee.

o The question as to who is an employer is important when it

comes to matters of enforcing the rights of employees,
such as saving legal documents in claims for unfair
termination, in this case the practical question will be who
is an employer especially when one could not be identified
from any statement of initial employment particulars or
written contract of employment or because none was
issued. When this happens the matter will be of evidence
such as who actually engaged the employee and who paid
the wages.

 Nature of employment relationships

 The nature of Employment contract is that of contract of

service as opposed to the contract for services 23.

 Contract of service; connotes the relationship

between an employer and employee.

 S 2 of the old Act Cap 366 defined it as any

contract to employ or to serve as an employee
for any period of time or number of days to be
worked or to execute any task or piece work or
to perform any journey. There is no provision for
casual employees in the new labour legislations.

23
Sikalumba, A.J , (2003), legal aspects of Employment contracts and Dispute settlement schemes
in Tanzania, p 3

18
 By: Nyalusi B.P 2009

 Contract for services; refers to the relationship

between an employer and an independent contractor
(self employed person).

 Distinction between an employee and an independent

contractor

 An employee is entitled to a number of rights from an

employer such as social security contributions,
whereas an independent contractor is not.

 An employer is vicarious liable for the tort act

committed by his employees in the course of his
employment; on the other hand an independent
contractor does not benefit from this privilege except
where the employer has authorized the wrongful act,
or where the duty owed may not be delegated e.g
hazardous work.

 It is a common law duty of the employer to take

reasonable care for the safety of the employee. This
does not avail to independent contractors except in
exceptional circumstances e.g. where the
independent contractor undertakes a contract from
the employer and sub-contracts it to a third person
the employer can be held liable for the injured
employee if he had the duty of co-ordinating the
work24.

 Statute does not provide a detailed guidance on when there

24
See Sekalumba, p 7

19
 By: Nyalusi B.P 2009
is an employment relationship, the focus naturally shifts to
courts 25. To distinguish between the concepts of contract
of service as opposed to the contract for services case law
has developed number of tests. The tests may be used
simultaneously to determine whether the relationship
existing between the parties is of employer-employee or that
of employer-independent contractor26;

 Control test; (The classic test) this was developed in

Europe around the 17th century. It originates from the
law of domestic relationship of master-servant
relationship. A master had control over the servant.

 This determines the extent of control that the

employer exerts over the employee. The control
is based not only on the ability of the employer
to control what an employee does but also the
manner of doing it.

 If the employer could tell the employee not only

what to do but how to do it, then a contract of
service existed27.

 The indicators of control test includes the

following;

 Control by the employer over the power of

selection of servants

25
See Duddington p 57
26
See Sekalumba p 3
27
Selwyn, N.M (1993) Law of employment, 8th Ed p, 38

20
 By: Nyalusi B.P 2009
 Existence of terms as to payment of
wages and other remunerations

 Control over the methods of doing the

work

 Right of suspension or dismissal

 In Walker v Crystal Palace Football Club ltd

(1910) the issue was whether a footballer was
employed by the club so as to enable him to
claim compensation under the Workmen’s
Compensation Act 1906 as a result of an
accident whilst playing in a match. It was argued
for the club that he was not covered by the Act,
reliance was placed on the words of Bramwell
LJ in Yewens v Noakes (1880) where he defined
an employee as ‘a person subject to the
command of his master as to the manner in
which he shall do his work’. The Court of Appeal
nevertheless held that it was enough that he
was obliged to obey the general directions of the
club even though he clearly exercised his own
judgement as to how to play.

 For agency cases if an employee could not claim

unfair dismissal against the client’s firm, it
would be unlikely that he could claim
successfully against the agency which could
simply say that it had no choice but to follow the
wishes of the client. What should be looked
upon is the extent to which the worker is under
the control of either of these.

 For independent contractors it suffices to give

21
 By: Nyalusi B.P 2009
him what to do, and how to do it remains his
own responsibility, he has only an obligation to
abide with the description and quality of the
work so agreed upon his employer28.

 The application of the control test diminishes in

modern time, this is because of the development
in production process employees are highly
skilled and qualified, and they are employed
specifically because they have professional
training and competence of a particular job, this
being the case the employer is frequently unable
to instruct the employee as to how the work is to
be done. This paved a way to the development
of organisation test.

 Organisation test; this test has its roots in the case of

Stevenson J ordan and Harrison Ltd V Macdonald &
Evans (1952)1 TLR 101 (CA) where Denning LJ
suggested that a person would be n employee if their
work was integrated into the business rather than
accessory to it.

 Under the contract of service a man is employed

as part of the business and his work is done as
an integral part of the business.

 Skilled professional such as doctors are

employees. However how to carry their
assignments remain in their professional know-
how and the employer can not intervene.

28
See Sekalumba p 3

22
 By: Nyalusi B.P 2009
 The control on the employer is exercised at the
time of selection of an employee.

 The fact that the doctor uses the employer’s

premises and tools is relevant.

 A doctor called from outside or called as a

consultant cannot be considered under the
same footing.

 The economic reality test; this test asks whether the

employee is working for himself or herself or is
working for another29.

 If the employee takes the risks of making profits

and losses then he or she is not likely to be held
to be an employee.

 The test originates from the case of USA v Silk

(1946) where the Supreme Court said that the
test was whether workers ’were employees as a
matter of economic reality’.

 In Market Investigations v Minister of Social

Security (1969) Cooke J outlined a number of
factors to assist in deciding whether or not a
person was in business on his or her own
account;

29
See Duddington p58

23
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 Whether he provide his own equipment

 Hires his own helpers

 The degree of financial risk he takes

 The degree of responsibility for investment

and management he has.

 Whether and how he has an opportunity of

profiting from sound management in the
performance of his task.

 The multiple test (Mixed test); this is what is called

the use of common sense. It encompasses both
organisation test, control test and other
considerations.

 It requires the courts to look at all the

surrounding features of the relationship between
the parties, including the power of selection, the
payment of wages, social security and power to
dismiss and suspend.

 It was proposed in by Lord Wright in Young v

Montreal Locomotive works [1974] 1 DLR 161 at
169 that ‘’ in many cases the question can only
be settled by examining the whole of the various
elements which constitute the relationship
between parties’’.

 This test was developed further in the case of

Ready Mixed Concrete (South East) Ltd v
Minister for Pension and National Insurance
[1968] 2 QB 497
24
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 The Court of Appeal of Tanzania has had

expressed its views on the subject in the case of
DPP v Eliatosha Mosha and Another [1984] TLR
28

 Why is it important to distinguish between an

employee and an independent contractor?

 Tax law compliance; every employer has the

duty to pay taxes from the income of the
employee. This is done by taking part of the
earnings of the employee and remitting it to the
authorities. An independent contractor is not
liable for payment of taxes.

 Social security benefits claims; these benefits

are administered by organisations such as PPF,
NSSF, LAPF, PSF e.t.c. This duty to contribute
for social security arises only when there is
employer-employee relationship. Usually the
practice is, the employee will contribute some
percentage and the employer will also contribute
some amount. These contributions are aimed at
helping the employee in his/ her retirement.
Social security law provides that it is an offence
for an employer to fail to remit an employee’s
contributions or part of his contributions.

 Labour law compliance; entitlements,

obligations and rights provided by labour
legislations exist where there is employer-

25
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employee relationship.

 Constitution claims; the constitution provides for

the right to work, articles 11, 22 and 23 provide
for this. Claims for infringement of these rights
will only lie when there is employer-employee
relationship.

 S 61 of Act No. 7 2004 provides for presumption as to who is an

employee, it lists some criterion to be looked upon

 The manner which the person works subject to the control of

another person.

 The person’s hours of work subject to the control of another.

 If the person is part of the organisation.

 if the person has worked for an average of at least 45 hours per

month over the last three month.

 Economic dependency

 Provision of tools

 The person renders services only to one person

What test does this section describe?

26
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 Formation of employment contract

 General principles of the law of contract

 The general rules of the law of Contract apply in

the making of employment contract. In Laws v
London Chronicle [1959] 2 ALL ER 285 at 287
Lord Eversher observed that’’ a contract of
service is but an example of contract in general,
so that the general law of contract will be
applicable’’.

 Parties to the contract; as it is for any other type of contractual

relationship, parties to employment contract voluntarily agree
on the terms of contract that would bind them. This contractual
relationship must be voluntary, this implies that the terms must
be agreed upon without undue influence or coercion.

o S 6 of The ELRA prohibits all sorts of forced labour which

include all work that a person has not consented30.

o It is however argued that the application of this aspect to

employment contracts is more abstract than real31. This is
due to the fact that the employer takes a leading role in the
making of the terms of contract, the employee’s chances
to bargain are so limited, and given the rate of
unemployment in the society there is intensive
competition for available chances, hence an employee will
not put himself at the risk of blowing his opportunity by
trying to bargain on the terms set by an employer.

 Competence of the parties; for the contract to be valid, the

parties must be competent to enter into contract according to
the law which they are subject. Competence refers to age,
mental capability and free from disqualification by any law32.

30
See the definitions of consent and free consent under the Contract Act
31
Ibid Sekalumba p 8
32
S 11 Contract Act

27
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o The ELRA provides the competent age to enter into
employment contract by prohibiting children under 14
years to be employed for works that are harmful for the
child health and 18 years for works in the mining industry,
factory, as crew on a ship or any other work site where
working conditions are considered hazardous. These are
provided for by ss 4 and 5 of the ELRA.

 Consideration; this is rooted in the Latin maxim, quid pro quo

which means nothing goes for nothing. Consideration is the
price paid for the fulfilment of the .promise made. In
employment contracts consideration are the wages an employer
pays an employee for the services he rendered. This is one of
the duties of the employer. S 27 of The ELRA curter for this.

 Legality; employment contracts must be enforceable by law,

that is to say they must be for a lawful consideration and lawful
object.

 Intention to create legal relations; parties in employment

contracts must have intended to be legally bound by the terms
of their agreement.

 Formation of employment contracts

 For a contract of employment to be formed no specific type of

work is required, kinds of work is immaterial, save only it is
lawful. It may be manual works or clerical works.

 AJ Sikalumba33 gives a mode of a procedure for formation of an

employment contract;

o First stage is related to what is called in contract an

invitation to treat, in this stage the prospective employer
will make a public advertisement on the availability of
vacancies in this advertisement he will point out;

33
Legal aspects of Employment contract and dispute settlement schemes in Tanzania, p 11

28
 By: Nyalusi B.P 2009
 The description of the nature of work
 The duration of the contract
 The qualifications needed for the prospective
applicant

 Sometimes the benefits attached with the work

o The applicants must submit their applications in which
they should indicate the attributes they possess which in
their opinion may influence the decision making of
employers

o Usually shortlisted applicants will be called in for interview

to find the most suitable candidate for the advertised
position. Apart from interview an employer may take other
considerations into account such as education
background, experience in the field applied and
performance in the previous employment.

o The contract of employment is conclusively made when

the prospective employee signs on the records of the
terms which are usually prepared by an employer. After an
employee is signed the parties become bound by the
terms of employment. It is necessary to read the terms of
employment thoroughly before signing them because the
employee’s signature will signify acceptance to the terms
and he cannot later on claim that he did not understand
the terms because he has the liberty of signing or not
signing if he thinks the terms are not suitable for him.

 Content of the employment contract

o Employment contracts may contain both implied and

express terms.

o These terms usually contain duties and obligations of both

the employer and the employee.

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 By: Nyalusi B.P 2009
o Express terms may contain;

 The scale or rate of payment

 The mode of payment the work load

 Holiday entitlement

 Existence of any pension schemes

 The job title and description

 The length of notice each party is required to serve if

he opt out of the contract.

 S 15 of the ELRA provides for the requirement for an

employer to provide an employee with the written
statement of particulars.

o Implied terms are inferred from the circumstances of the

employment and facts of any given employment.

o Implied terms may be implied by statute, common law,

usage or customs of trade. However the terms implied
must be certain, general and reasonable34 i.e. there should
be no degree of doubt of its existence in the general
circumstance of the case so that a reasonable person
would appreciate its application.

 If custom of a trade or business is certain and

reasonable and applies throughout a particular trade,
business or area it may constitute an implied term eg.
In Sagar v Ridehalgh (1931) a custom in the
Lancashire mills of deducting wages for bad work
was held to be binding on employee.

 An example of terms implied by courts may be seen

in the case of J anet Lesilwa v Tausi Swalehe [1981]
TLR 14 Lugakingira J was of the view that ’’the
duties of an employee to his employer are inter alia
the exercise of diligence, skill and care in the running
34
Smith I.J & Wood J .C (1989), Industrial Law, p 142-143

30
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of the employer’s business and rendering of profit
and other moneys earned or received. These are
matters that are implied in any contract of service.
Deviation an act of negligence and tantamount to
breach of the contract. This would give the employer
the right of action for damages to compensate the
loss occasioned by the breach’’.

 Duties and obligations of employer and employee; duties of

employer are for the most part the rights of employers. Both the
rights of employee and obligations of employer will be provided
in the contract of employment by express and implied terms.

o Obligations of the employer

 The employer has obligation to provide work or

assignments to employee. If an employee fails to
provide work to employee he will still have to pay the
wages to him for the whole time he failed to provide
work. The employment Act Cap 366 provided for this.
It provided inter alia that, this obligation will be
maintained unless the employee has broken his
contract or there is an Act of God. There is no
corresponding provision that provide expressly for
this in the new labour legislations.

 In the case of Mathew Leonard Kato v National

Poultry Co. Ltd. Civil Case No. 122 of 1990
(Unreported) H.C the court issued a declaratory
judgment to the effect that the appellant was in
continuous employment all the time of his
termination Mackaja j Stated that, ‘so long as
payment of wages is one of the express terms of the
contract of employment, the employee fulfils his part
of the bargain by placing himself under the control of
his employer who at once is required to assign him
31
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work. Whether or not work is assigned, the employee
becomes entitled to his wages’’.

 The provision of work need not be a daily routine, it

is enough that the employer properly instructs the
employee his duties either in the statement of the
particulars as per s 15 of the ELRA or in the contract
of employment. The fact the employer has properly
instructed an employee of what is required of him
does not preclude the employer to assign him other
duties incidental to his employment unless it is
above standard workload. This may call for overtime
payment.

 The employer has an obligation to pay remunerations

and any other employment entitlements to the
employee as agreed in the contract of employment as
a consideration for the work done. S 27(1) of the
ELRA [s 149(a) of Cap 366] makes it mandatory for
the employer to pay remunerations to the employee
and makes it an offence for any employer who
contravenes this requirement as per s27(5) of ELRA
this was also decided in the case of R v Sarwan Singh
[1973] LRT 32 (HC)

 This payment must be paid in cash in a sealed

envelope unless the employee agrees otherwise
where payment will be by cheque or direct
deposit into a designated account s 27.

 The payments must be accompanied by a

written statement of particulars in a prescribed
form.

 S 28 of ELRA provides that the employer must

not make any deductions to the employee’s
remunerations unless required or permitted by
written law, collective agreement, wage
determination court order or arbitration award.

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 By: Nyalusi B.P 2009
 The wages must be paid at the end of contract
period provided the employer may pay an
advance before the due date on a mutually
agreed day s27(3) ELRA if a day is not agreed
then remunerations may be paid at least once
on completion of half contract period. These
advances are not loans and they should not
attract interest.

 The ELRA provide for method of calculation of

wages, this is under s 26 and the first schedule
to the act.

 The other obligation of the employer is to retain the

employee for an agreed contractual period.

 The employer has also a duty to take reasonable care

with regards to the health and working conditions of
employee. This may be done by providing for proper
equipment of works, selection of competent staff. In
the case Waltons and Morse v Dorrington (1997) the
applicant left her employment and claimed
constructive dismissal because of the employer’s
failure to deal adequately with her complaints about
being exposed to cigarette smoke from other
employee. Her claim was upheld that the provision of
a safe working environment suitable for performance
of contractual duties is an implied term in contracts of
employment.

 According to Sikalumba, A.J 35 a rule of practice

suggest that an employee has a duty to obey his
employer’s lawful orders and the employer has to
reciprocate that by treating the employee with respect,
high level of confidence and trust .

 In the case of Kihanira Kilunge Kibaya v

UnitedAfrica Company of Tanzania Ltd Civil

35
See above p16

33
 By: Nyalusi B.P 2009
Appeal no 36 of 1987 (Unreported) the appellant
complained that his supervisors victimised him
when they served him a notice of termination of
contract. He was not promoted instead his
juniors were promoted and his supervisor
assigned his tasks to unskilled juniors to spoil
his reputation, because the basis of his
termination was that he performed poorly. The
court was of the view that public policy in this
country prohibits victimization in employment.

 Duties of the employee

o The employee is duty bound to obey all lawful

and reasonable orders and instructions
concerning his work from his employer. Failure
to abide to this duty may result to disciplinary
actions against the employer either by
established code of conducts by the employer
or by general disciplinary actions as
established by labour laws.

 The orders by the employer must not be

to perform an illegal act in Morrish v
Henly (1973) the employee was
dismissed because he refused to
acquiesce in falsification of records. The
employer contended that, as it was
common practice to do this, the
employee’s refusal to agree to it was
unreasonable. The dismissal was held to
be unfair.

 The employer cannot order the employee

to do something which would put him or
her in danger, in Ottoman Bank v
Chakarian (1930) the employee was held

34
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to have been justified in disobeying an
order to remain in Constantinople where
he had previously been sentenced to
death and was in danger of a further
arrest.

o A duty to co-operation and adaptability to

changes with regards to technological
advancement. In Cresswell v Board of Inland
Revenue (1984) the High Court held that Inland
Revenue employees had a duty to adapt to a
new computerised system which replaced the
manual system of tax coding.

o A duty of loyalty and good faith, this includes

non-disclosure of confidential information and
to conduct himself in good manners for the
good of the employer’s business.

o A duty to attend in time at the work place and

to remain there for the duration of work as
established by employment legislation.

 Forms of employment contract

o The Employment Act cap 366 provide for two major forms
of employment contracts that is oral contracts and written
contracts

 Oral contracts; these are employment contracts that

are not required to be in writing these are provided
by s 32 of Cap 366 [R.E]

 Oral contract shall be valid and binding only if the

employment commences within one month from the
date of the contract. S 33 of Cap 366.

 Oral contracts are deemed to be contracts for the

period by reference to which wages are calculated, if
wages are calculated on daily basis then the
contract will be daily contract, in a week, weekly or in
35
 By: Nyalusi B.P 2009
a month, monthly contracts.

 S 40 of Cap 366 requires employers to prepare and

maintain, or cause to be prepared or maintained, a
record of contract for every employee employed by
him under an oral contract of service.

 Failure to keep record is an offence and when a

dispute arises as to the terms of contract and the
employer didn’t keep records as per the requirement
of s 40, the statement of the employee as to the
nature of the terms and conditions shall be
receivable as evidence of such terms and conditions.
Read Mahazamu v Salumu [1972] HCD 65 (H.C)

 Upon termination of oral contract which was for a

period not exceeding one month it will be presumed
that parties have entered a new contract on the
same terms and conditions, automatic renewal will
not be possible if there was notice and it has expired,
termination by payment in lieu of notice, lawful
cause, this is provide for under s 35 Cap 366.

 Termination of oral contracts may be by;

 Service of notice; Under the old laws Cap 366

and the SEA it is required that either of the
parties to the contract may serve a notice of
termination. The contract will come to an end
only when the notice period expires. S 36 of
Cap 366 provides for this.

o The purpose of the notice is to help both the

parties to find alternatives i.e secure
alternative employee or employment as the
case may be.

o S 36 Cap 366 provides that, If there is no

agreement as to the duration of the notice
36
 By: Nyalusi B.P 2009
the notice shall be considered to be;

 Twenty-four hours where the contract is

for a period of less than a week

 Fourteen days where the contract is

a daily contract under which, by agreement
or custom, wages are payable not at the
end of the day, but at intervals not
exceeding one month;

 Thirty days where the contract is for

a period of one week or more.

o Notice may be either verbal or written and

may be given at any time, and the day on
which the notice is given shall be included in
the period of notice.

o Where notice is given, there shall be paid to

the employee on the expiration of the notice,
all wages and benefits due to him.

 Payment in lieu of notice (twenty four hours

notice); s 37 of Cap 366 provides that;

o Any party to the contract of employment

may terminate the contract without notice by
payment to the other party of a sum equal to
all wages and other benefits that would have
been due to the employee if he had
continued to work until the end of the
contract period.

 Expiration of time; If the contract if for a

specified time, then after the time expires,
before that the defaulting party pay all
remunerations the victim could acquire in a
month if there was no termination. But
consider the fact that whenever there is an oral

37
 By: Nyalusi B.P 2009
contract that has come to an end then there is
a presumption that a new contract that is
formed (presumption of continuity) s 35 of Cap
366.

 By summary dismissal; if there is misconduct

or, where employee disobeys lawful orders.
This is defined as termination of contract of
employment without notice. It ia a disciplinary
measure taken by the employer. Read Kitundu
Sisal estate v Shingo Mshuti & others [1970]
E.A 557

o S 20 of the SEA summary dismissal is

prohibited except where there is breach of
disciplinary code set out in the 2nd schedule
to the Act eg late for work for more than 5
times or unjustified assault, use of drugs in
work place.

o Resignation is also the form of summary

dismissal but in this case it is the employee
who dismisses his employment.

o S 42 of Cap 366 provides for provides for

circumstances where an employee may be
summarily dismissed;

 Where an employee is guilty of

misconduct, whether in the course of his
duties or not, inconsistent with the
fulfilment of the express or implied
conditions of his contract of service;

 For wilful disobedience to lawful

orders given by the employer;

 For lack of skill which the employee

expressly or by implication warrants
himself to possess;

38
 By: Nyalusi B.P 2009
 For habitual or substantial neglect of
his duties;

 For absence from work without the

permission of the employer or without
other reasonable excuse.

o The procedure for summary dismissal

includes first the notification to the employee
who is required to reply and indicate if he
intends to resist to the conciliation board
then the field Brach should be notified.

o The effect of being summarily dismissed is

losing all wages and salaries.

o S43 Cap 366 is to the effect that if an

employee is dismissed for a lawful cause he
shall be entitled to be paid his wages up to
the date of the occurrence which was the
cause of his dismissal.

o The ELRA repeals previous legislation that

allows summary dismissal. References to
summary dismissal that precede the Act are
to be dealt with as if the repealed law had not
been repealed see 3rd Schedule S 8(1).

 By retrenchment or redundancy; this involves

deliberate deduction of the number of
employees in any particular business or
establishment. The rationale being either to
increase production or due to technological
advancement.

o Though it was practiced it was not covered

by the old labour legislations.

o Under the new labour legislations this is

39
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what is referred to as termination based on
operational requirements as per s 38 of the
ELRA. Under this circumstances the
employer must comply to various
requirements;

 Give notice as soon as retrenchment is

contemplated

 Disclosure of relevant information with

regard to intended retrenchment for proper
consultation.

 Consult prior to retrenchment on, the

reasons for retrenchment, measures to
minimize the impact, methods of selection
of people to retrench, timing and
severance pay.

o The consultation will be to trade union, any

registered trade union with members in the
work place, any employee not represented by
a recognised or registered trade union.

o When there is no agreement between the

parties the matter shall be referred to
mediation.

o Written contracts; these are those employment contracts

made in writing. These include

 Those made for the period exceeding 6 month

 Foreign contracts of services

 Those which differ materially from those customarily

in the district of employment for similar work

 Consent of employee is necessary in written

contracts this is by signing or a thumb; this is aimed

40
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at binding the parties.

 Termination of written employment contracts;

 No presumption of continuity

 It will be terminated by expiry of the term in the

contract

 Death of employee before expiry s57 cap 366

 Parties may voluntarily agree s 52 there must

be approval by labour officers.

 Under the new labour legislations, the ELRA provides for oral
employment contract though not expressly. S 14(2) requires
only contracts which provide that employee is to work outsides
Tanzania.

o S 15 requires the employer to furnish to the employee

written statement of particular.

o S 15(2) impliedly recognises written contracts; it provides

that if the particulars in s 14 are stated in a written
contract and the employer has supplied employee with
that contract then the employer is not required to furnish
written statement.

o These written statements of particular must be kept by

employee 5 years after the termination.

 Termination of contract under the new labour legislations

o S 36 of Act No. 6 list what is included as termination of

employment

 A lawful termination.

 A termination by an employee.

 Failure to renew fixed terms if there was reasonable

41
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expectations of renewal.

 Failure to allow an employee to resume work after

leave.

 Failure to re-employ an employee after termination.

o S 41 of the ELRA provides that when the contract of

employment is terminated by notice the duration of that
notice must be;

 For seven days if it is given in the first month of

employment if more than one month of employment;

 4days if the employee is employed on daily or weekly

basis

 28 days if the employee is employed on the monthly

basis.

 The notice may be longer if the parties agree to that.

 The notice must be in writing and it must state the

date and the reason for the notice.

o In lieu of notice of termination the employer may choose

to pay the employee the remuneration that the employee
would have received if the employee had worked during
the notice period. This is provided by s41(5) ELRA

o In case the employee refuses to work during the notice

period then the employee may deduct from any money
due to the employee on termination, the amount that
would have been due to the employee if he had worked
during the notice period.

 Entitlement after termination

o Severance pay; upon termination of employment an

employer is supposed to pay severance pay, s 42 of the
ELRA is to this effect. Severance pay is defined under this

42
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section to mean an amount equals to at least seven days’
basic wage for each completed year of continuous service
with the specific employer up to a maximum of ten years.

 Severance pay will be paid only when;

 The employee has completed 12 month

continuous service with the employer

 If the employer has terminated the employment

but that termination should not be based on
fair termination due to misconduct or due to
capacity compatibility or operational
requirement of employer but employee
reasonably refused alternative employment be
it with other employer or the same employer.

o Transport to place of recruitment; s 43 of ELRA provides

that when the termination happens other than where the
employee was originally recruited then the employer is
duty bound to;

 Transport the employee and his personal effects to

the place he was recruited or pay for the
transportation place of recruitment refers to the
place where solicitation of the employee for
employment was done by either the employer or his
agent;

 Pay him an allowance for transportation to the place

of recruitment and daily subsistence expenses
during the period, if any between the date of
termination of the contract and the date of
transporting the employee and his family to the
place of recruitment. This allowance shall be equal
to at least bus fare to the bus station nearest to the
place of recruitment.

o All payment due if any s 44 of ELRA; this include

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 Any remuneration for work done before termination.

 Any annual leave pay that is due for leave that the
employee has not taken, any annual leave pay
accrued during any incomplete leave cycle.

o S 44 also provides that on termination of employment the

employer is supposed to issue a prescribed certificate of
service.

 Unfair termination of contract of employment

o S 37 of the ELRA makes it unlawful for the employer to

terminate the contract of employment with an employee
unfairly. Termination will be unfair when an employer fails
to prove that;

 The reason for termination is valid and fair in relation

to;

 The employee’s conduct, capacity or

compatibility or;

 Based on the employer’s operational

requirements

 That a fair procedure was followed in termination of

the employment.

o S 37(3) ELRA provides for circumstances where the reasons

for termination will not be considered fair;

 That an employee has disclosed information he is

entitled to or required to disclose to another person.

 That an employee has failed or refused to do anything

that the employer may not lawfully permit or require
the employee to do. See Morrish v Henly (1973).

 The employee has exercised any right conferred by

agreement or by the ELRA or any other law.

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 That an employee belongs or belonged to any trade
union.

 Participates in the lawful activities of a trade union

including lawful strike.

 For reasons related to pregnancy, disability or

constitutes discrimination under the employment law.

o When the issue as to whether the termination is unfair or

not comes for determination, the onus will lie on the
employer to prove that the termination was fair. S 39 ELRA

o S 37(4) ELRA in deciding whether a termination is fair ,

employer, arbitrator or labour court shall take into
consideration the code of good practice under the
Employment and Labour relations (Code of Good Practice)
Rules, 2007.

o Remedies for unfair termination s 40 of the ELRA;

 If it is established that there has been unfair

termination of contract of employment the court or
arbitrator may order an employer;

 To reinstate the employee from the date the

employee was terminated without loss of
remuneration during the period that the
employee was absent from work due to the
unfair termination

 To re-engage the employee on any terms that

the arbitrator or the court may decide

 To pay compensation to the employee of not

less than twelve months’ remuneration. This
order for compensation is not a substitute of any
amount which an employee is entitled in terms
of any law or agreement s 40(3) ELRA.

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 S 40(1) of the ELRA gives discretion to the employer to
choose between the three remedies, in case the employer
may choose not to reinstate nor re-engage the employee
but pay him compensation, in this case he is required pay
compensation of twelve month wages due and other
benefits from the date of unfair termination to the date of
final payment.

 Employment standards under the ELRA N0.7 of

2004

 These are provisions that determine the terms and

conditions of the employment contract. They provide for the
minimum standards to be adhered in any contract of
employment, i.e they are part and parcel of the Employment
contract

 Hours of work; the ELRA impose provisions that

require an employee to work for a specified number of
hours, days and weeks.

 Day work; an employer shall not require or permit

an employee to work for more than 12 hours in any
day. This is provided for under s 19(1) of ELRA. The
maximum number of ordinary days or hours that an
employee may be permitted or required to work are;

o Six days in a week

o 45 hours in any week

o 9 hours in any day.

 S 18(a) of ELRA defines what ‘’day’’ means, it

means a period of 24 hours measured from the
time when the employee normally starts work
and ‘’daily’’ has also the same meaning.

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 S 18(c) ELRA defines ‘’week’’ and ‘’weekly’’ to
mean a period of seven days measured from the
day the employee normally starts the week

 Overtime; it is a requirement of s 19(3) ELRA that

an employer is not allowed to require or permit an
employee to work overtime more than 50 overtime
hours in any four week circle.

 There can be an agreement on the extension of

the number of overtime hours to be worked by
an employee; however this agreement may not
require an employee to work more than the 12-
hours limit.

 Overtime means work over and above ordinary

hours of work.

 An employer is required to pay an employee not

less than one and one half of the employee
basic wage for overtime worked s 19(5) of ELRA.

 Night work; this means the hours after twenty four

hours and before six hours s 20 ELRA, an employer
is prohibited to require or permit children under 18,
employees certified as medically unfit to work at
night;

 Pregnant employee shall not be allowed to work

at night two month before the expected date of
confinement or earlier if the employee produces
a medical certificate certifying that she is not fit
to perform night work.

 For mothers they are not to work for the period

of two months after the date of birth. But a
mother may be allowed to work before the
expiry of two month if she produces a medical
certificate to the effect that her and the baby’s
health shall not be endangered.

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 A mother may also produce a medical certificate
certifying that even after the expiry of two
month after the baby is born she can still not be
able to work at night because her health or the
baby’s health does not permit.

 A medical certificate must be issued by a

registered medical practitioner or any other any
other medical practitioner accepted by the
employer.

 The employer shall pay the employee for night

work at least 5% of the employee’s basic wage
for each hour worked at night. If the hours
worked are overtime then 5% will be calculated
on the overtime rate.

 Compressed working week; this is an agreement

between an employee and an employer for the
employee to work for a longer period in a day than
the usual working hours in exchange for working
for shorter week.

 This agreement must be in writing where the

employee agrees to work up to twelve hours in a
day, inclusive of any meal interval without
receiving overtime pay s 21 ELRA.

 This agreement shall not permit an employee to

work for more than 5 days in a week; more than
45 hours a week; more than 10 hours overtime a
week.

 S 22 of ELRA provides that the averaging of

ordinary and overtime hours of work over an
agreed period shall be provided by collective
agreement. This is a mechanism through which
hours of work can be unequally distributed

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between weeks provided that the average
number of hours worked within a cycle is not
greater than the specified time.

 The collective agreement for averaging shall be

for a period longer than a year and shall not
require or permit an employee to work more
than average of;

 40 ordinary hours per week calculated

over the agreed period

 10 hours overtime per week calculated

over the agreed period.

 Break in working day; s 23 of ELRA a employee is

required to give an employee who works
continuously for more than five hours a break of at
least 6o minutes. However if the work that is done
cannot be left unattended or the work cannot be
performed by another employee then the employer
may require an employer to work during break.

 The employer is not duty bound to pay an

employee for the period of break unless the
employee works during the break.

 Daily break; an employer is required to give an

employee a daily rest of at least 12 consecutive
hours between ending and recommencing. S 24
ELRA provides for that.

 By a written agreement daily rest period may be

reduced to 8 hours or where the ordinary
working hours are interrupted by interval of at
least three hours or if the employee lives on the
premises of the workplace.

 Weakly break; an employee is required to give an

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employee a weekly rest period of at least 24 hours
between the last ordinary working day in the week
and the first ordinary working day of the next week.

 By written agreement weekly rest period may be

 60 consecutive s every two weeks

 A reduced weekly rest period by 8 hours

if the rest period in the following week is
extended equivalently.

 The employee may work on weekly rest only if

the employee has agree to that and the
employer shall pay the employee double the
employee’s hourly basic wage for each hour
worked during the period s 24(4) of the ELRA.

 An employee is not required to work on a public

holiday specified in the public holiday act, and if the
employee works the employer shall pay the
employee double the employee’s basic wage for
each hour worked on that day. This is provided by s
25 of the ELRA. Some of these public holidays
include New Year's Day - 1st J anuary, Revolution
Day - 12th J anuary. Id-ul-Fitr - two days, Christmas
Day and Boxing Day.

 Payment of remuneration; the ELRA provides for

determination of the remuneration for employees be it
hourly, daily, weekly or monthly. The table to the first
schedule of the Act provides for the ways of determining
wages rates.

 S 27 ELRA an employer is required to pay an

employee any monetary remuneration which the
employee is entitled. The payment should be
effected during working hours at the place of work
on the agreed pay day.
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 The payment should in cash unless the
employee agrees otherwise then payment will
be either by cheque payable to the employee
in a sealed envelope or by direct deposits into
an account designated by the employee in
writing.

 Each payment must be supported by a written

statement of particulars in the prescribed
form, which should accompany the payment
if the payment is in cash or by check, and if
the payment is by a direct deposit then it
should be given to the employee in the sealed
envelope.

 Remuneration shall be due and payable at the

end of contract period, employer may pay
advance before due day on a mutually agreed
day. If it is not agreed at least once on
completion of half the contract period. An
advance is neither a loan nor shall it attract
interest.

 The minister may by regulations provide for

partial payment of remuneration in form of
allowances in kind. All these payment of
allowances in kind shall be for the personal
use of the employee and his family and the
value attributed to such allowance shall be
fair and reasonable.

 An employer who default the requirements of

payment of remuneration will be committing
an offence.

 Deductions; s 38 of the ELRA provides that an

employer is prohibited to make any deductions
from employee’s remuneration unless the

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deduction is required or permitted under written law
or under collective agreement, wage determination
or court order, arbitration award or when an
employee agrees in writing the deductions in
respect of a debt. Eg Taxes and social security
funds contribution read Sikalumba pp 36-38

 An employer shall not require or permit an

employee to;

 Repay any remuneration except for

overpayments previously made as a
result of an error in calculating the
employee’s remuneration.

 Greater Acknowledge receipt of an

amount greater than the remuneration
actually received.

 Any employer who contravenes the

provisions concerning deductions is
committing an offence s28(7).

 Leave; only employees that have more than six month service are
entitled to paid leave. However an employee who is employed on
seasonal basis is entitled to paid leave and an employee who has
worked for less than six years but has worked for the same
employer more than once in a year and the total period worked
exceeds six months the employee will be entitled to paid leave.

 An employee and employer may agree to a standard leave cycle

provided that employee’s entitlement to paid leave is not
prejudiced.

 Annual leave; an employer is required to grant an employee

at least 28 consecutive days’ leave in respect of each leave
cycle. The leave will be inclusive of any public holiday that
may fall within the period of leave s 31 of ELRA.

 The number of days in the leave may be reduced by

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the number of occasional paid leave that were granted
to the employee at his request during the leave cycle.

 The employer may determine when an employee may

take annual leave provided it is taken not later than six
month after the end of leave cycle; twelve months
after the end of leave cycle if the employee has
consented or the extension is justified by the
employers operational requirements.

 Before the commencement of the leave an employer

must pay an employee the remuneration the employee
would have been paid had the employee worked
during the leave.

 An employer is not required to permit an employee to

take annual leave in place of any leave to which the
employee is entitled and the employer shall not
require an employee to work for employer during any
period of annual leave.

 An employer is not allowed to pay an employee an

amount of money in substitution for the annual leave
whether or not the employee agrees to such payment.
And if the employee has not taken leave within the
prescribed period that employee is not entitled to be
paid a pro rata (in proportion/ equivalent) amount for
accrued annual leave.

 An employer shall pay an employee pro rata amount

for annual leave accrued at the termination of
employment or at the expiry of each season for an
employee employed on a seasonal basis.

 Sick leave; according to s 32 of the ELRA an employer is

required to grant an employee sick leave for 126 days in any
leave cycle.

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 The calculation of the sick leave shall be the first 63

days shall be paid full wages and the second 63 days
shall be paid half wages

 An employee will not be paid sick leave if the

employee fails to provide medical certificate from a
registered medical practitioner or any other medical
practitioner accepted by an employee or if the
employee’s leave is paid for under any law, fund or
collective agreement.

 Maternity leave; s 33 of the ELRA provides for maternity

leave for female employees who are about to give birth.

 The employee must first give notice to an employer of

her intention to take maternity leave at least three
month before the expected date of the birth. The
notice must be accompanied by a medical certificate.

 Maternity leave may commence, at any time from four

weeks before the expected date of confinement or on
an earlier date if a medical practitioner certifies that it
is necessary for both the health of the mother and that
of her unborn child.

 No employee shall work within six weeks of the birth

of her child unless a medical practitioner certifies that
she is fit to work. She may resume employment on the
terms and conditions of employment at the end of her
maternity leave.

 An employer is not allowed to require or permit a

pregnant employee or an employee who is nursing a
child to perform work that is hazardous to her health
or that of her child. And where she performs work that
is hazardous the employer shall offer her suitable
alternative employment, if practicable on terms and
conditions that are no less favourable than her terms

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and conditions.

 An employee shall be entitled within a leave cycle at

least 84 days paid maternity leave if she delivers a
single child and 100 days paid maternity leave if she
delivers more than one child at the same time. And if
the child dies within the year of birth the employee is
entitled an addition 84 days paid maternity leave
within the leave cycle. An employer is only obliged to
grant paid leave for 4 terms of maternity leave to an
employee under these circumstances.

 If an employee is breast feeding a child the employer

shall allow the employee to feed the child during
working hours up to a maximum of two hours per day.

 Paternity leave; s 34 of the ELRA provides that a male

employee is the father of the newly born child he is entitled
to at least 3 days paid paternity leave if the leave is taken
within 7 days of the birth of a child.

 The number of the days taken by the employee are

irrespective of how many of the employee’s children
are born within the leave cycle.

 An employee will be entitled to 4 days paid leave

when the child is sick or has died or upon the death of
the employee’s spouse, parent, grandparent,
grandchild or sibling. The 4 days are the total number
the employee is entitled irrespective of how many of
the events occurred within the leave cycle, however
the employee may take more days with the
authorisation of the employer provided those extra
days will be unpaid.

 Resolution of labour disputes

o Under the old legislations

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 The procedure for settlement of Labour disputes and

enforcement machinery under the old labour
legislations were provided by the Employment Act, The
Security of Employment Act (SEA) and The Industrial
Court Act.

 The Employment Act Cap 366

 The main purpose of this legislation was to achieve

a prompt determination of employment disputes so
that workers should concentrate on production
rather waste the valuable time in courts prosecuting
cases.

 The resort to the court of law is required to be the

last resort. Administrative officers must do their best
to dispose off any labour dispute expediently and
promptly as may be practicable.

o The administration of Employment disputes is

placed under the labour commissioner or labour
officers. Under s 8 of Cap 366 the labour officer
and Labour Commissioner or any labour officer is
empowered to institute proceedings in respect of
any contravention of any of the provisions of this
Act or any regulations made and may prosecute
and appear in his own name in respect of such
proceedings.

 Cap 366 applies to all departments of the of

Government, district local government authorities
and all persons in the employment, and also all
persons in the service of the Government in
Tanzania in the same manner as if they were private
employers or employees but it does not apply to
members of the Defence Forces in their employment
as such; members of the Police Force; members of
the Prison Service; and member of the National
Service.

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 The procedures provided for handling labour
disputes are simplified. Part xii of cap 366 provides
for the procedure to be followed in dispute
settlement

o It is provided under s 139 of Cap 366 that if an

employer or employee is aggrieved by

 The other party’s refusal to fulfil the terms of

any contract of service.

 Whenever any question, difference or dispute

shall arise as to the rights or liabilities of
either party to a contract of service.

 Touching any misconduct neglect or ill-

treatment of or by such party.

o The party aggrieved may report the matter to a

labour officer who shall thereupon take such
steps as may seem to him to be expedient to
effect a settlement between the parties.

o The labour officer has power to make a

decision on whether the matter is civil or
criminal. Read Shaban H. Msengesi v National
Milling Corporation H.C, Civil Appeal No. 44 of
1994 and J anet Lesilwa v Tausi Swalehe [1983]
TLR 14. S 140 of Cap 366, if the labour officer
is of the view that an offence has been
committed he shall report it to the police.

o S 141 of Cap 366 provides that if the labour

officer fails to resolve the dispute he will have
recourse to the court of law by submitting a
written report (a memorandum) to the
magistrate setting out the facts of the case.
This may be done at the request of either party
or the labour officer may do it suo motto. The
purpose of the facts is to reveal the resolution

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he had made and which has actually resulted
to the dissatisfaction of the aggrieved party.
Read the case of Mathias Kanondo v TANU
Regional Secretary [1976] LRT 34.

 Procedure before the court s 142 of Cap 366

 The District Court has exclusive jurisdiction to deal with

labour dispute reported to it by labour officer. The district
magistrate irrespective of whether he is a civil magistrate or
not is empowered by law to deal with labour matters
reported to him.

 The district court can award any amount claimed unlike in

ordinary civil cases where the court is bound by the
pecuniary jurisdiction.

 When the magistrate has received the matter and is satisfied

it is of civil nature, then he shall issue the process to cause
the parties or either of them to attend before him. Then the
normal procedures as provided for by CPC will apply.

 According to s 143(3) of Cap 366 in determining the matter

the magistrate shall hear and determine such proceedings
according to substantial justice without undue regard to
technicalities of procedure. In Moses Swebe v The Cooper
Motors (T) Ltd Misc Civil Appeal No. 2 of 1981 (H.C) it was
held that the exemption of procedural matters is limited only
to substantive determination of the dispute and does not
apply in execution of decrees arising from the suit.

 The procedures involved in referring the labour dispute to

court is different from that imposed by the CPC, in
employment dispute under Cap 366, the parties need not to
submit no formal pleadings, the magistrate act on the report
submitted to him by the labour office; the normal procedure
under the CPC is that the parties will commence their case
by filing a formal plaint prescribed in the CPC.

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 In employment disputes magistrate may summon any
person who they think may furnish necessary
information on the matter this is different from the
normal conduct of civil procedure that is based on the
adversarial system where each of the parties has a duty
and liberty to choose his own witnesses.

 In employment disputes the magistrate is empowered to

convert a criminal case into a civil suit if he is of the
opinion that the matter would be fairly dealt and
remedied accordingly in a civil suit than it would be in a
criminal suit, this is provided for under s 144(1) Cap 366.

 According to s 148 of Cap 366 when there is a claim

against the employer for wages due to more than one
employee a labour officer or one of the employees my file
a representative suits on behalf of the others provided he
attaches in a schedule the names their addresses and
descriptions and the details of wages due to each of
such employees. the normal procedures under the CPC
as provided by O1 r 8 where it is mandatory to obtain the
leave of the court to file a representative suit.

 The main purpose of simplifying the procedure is to

effect a rapid determination of labour disputes so that
production is not in any way adversely affected.

 The labour commissioner or any officer dully authorized

by him has a right of audience on any appeal to the High
Court arising out of any criminal or civil proceeding under
s 151 of Cap 366 and may represent any party to such
appeal where he satisfies the court that he has been duly
authorised by such party to so represent him. There is no
clear provision that allows the labour officer to appear in
the Court of Appeal however practice shows that the
assistance of the Attorney General is to be sought.

 The requirement under the CPC for parties filing the case
is that those parties must pay fees for all the documents

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they file before the court unless the law under which the
case is filed waives the requirement and the court may
award cost of the suit. Under s 153 of Cap 366 there is an
exemption, No fees or costs shall be payable in respect
of any proceedings filed under Cap 366. However the
court may in its own discretion order the general costs of
the proceedings to be paid by the employer if a
conviction shall be had or judgment given against any
employer or if any proceedings shall appear to the court
to be frivolous or vexatious, the court may in its
discretion order the party initiating such proceedings to
defray the general costs, and in default of payment the
said party shall be liable to imprisonment for such period
not exceeding one month as may be ordered by the court.

 S 154 of Cap 366 provides for the powers of the

subordinate court in labour dispute proceedings, the
court is empowered to;

 To order specific performance of employment

contract i.e it may order the fulfilment of the contract
in case any breach of the terms by the party which is
at fault, the includes re-instatement or re-engagement
in cases of wrongful dismissal.

 The court may also order payment of damages or

compensation for breach of contract, negligence or
unlawful act or omission. The court may order the
defaulting party to find security in place of the whole
or part of the damages or compensation awarded in
place of the whole or part of the damages or
compensation awarded and if the party neglects or
refuses to find security, the court may commit him to
prison until he finds it, but the term of imprisonment
shall not exceed three months.

 The court may rescind the contract upon such terms

as to the apportionment of wages or other sums due
under the Act and as to the payment of wages,

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damages, compensation or other sums due as the
court thinks fit.

 Where there is loss or damage of employer’s property

due to negligence or unlawful omission. The court is
also empowered to fix the amount of compensation
for such loss or damage, and make such order as to
the payment either at once or by instalments out of
wages to be yet earned or otherwise, as shall seem
reasonable and just, this is in accordance to s 155 of
Cap 366. The instalment paid must not exceed one-
third of the employee's monthly wages if the
instalments are ordered to be paid monthly or one-
third of the employee's weekly wages if the
instalments are ordered to be paid weekly.

 Resolution under the Security of Employment Act cap 577 (SEA)

 SEA is applicable whenever there is an employee within the

meaning of Cap 366. It does not apply to members of
military force , members of police force and prison, persons
in the services of united Republic of Tanzania other than
auxiliary grade [s 40(1) SEA], casual employees and any
employee employed in the management of the business of
his employer see J UWATA v KIUTA [1988] TLR 146

 The SEA is mostly applicable to cases of disciplinary actions

such as cases on summary dismissal and disciplinary
penalties.

 The SEA ousts the jurisdiction of ordinary courts from

dealing with disciplinary matters of employees unless those
employees are declared by the labour officer to be employed
in the management of their employer’s business, in this case
the employee may seek assistance of court. There is no
clear test to determine if an employee is in management of
employer’s business in practice the test is whether the
employee are vested with disciplinary control over others.
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However the declaration of the labour officer on the status of
employee is a mere opinion and the court is not bound to
follow it. This was discussed in the case of David
Kamugisha Mulimbo v Bukop Ltd [1994] TLR 217 (CA)

 The SEA establishes three organs to deal with disciplinary

matters at work place these are the field branch, the
conciliation board and the Minister responsible for labour
matters.

 The field branch

 These are branches of trade union representative of

employees at the place of work.

 They are established at every place of work in which

ten or more union members being employees within
the meaning of the Act are employed this is provide
for by s 8 of the SEA.

 The right of employees to be members of trade union

is secured by law this is provided for by s 15 of Cap
366 which provides for employees’ freedom of
association.

 The role of the field branch is basically advisory in

the resolution of labour disputes. s 6 of the SEA
provides that the functions of the field branch include;

o To consult with the employer on matters relating

to the maintenance of discipline and the
application of the Disciplinary Code.

o To discuss with the employer, at regular intervals

and at least once every three months, means of
promoting efficiency.

o To consider and advise the employer on safety

and welfare arrangements for persons employed
in the business.

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o To attend at the place of work and make
inspections and report on working conditions.

o To investigate and report to the appropriate

authority on any non-compliance with the
provisions of a wage regulation order.

o To consider and advise the employer on any of

the employer's rules for the place of work.

o To consult with the employer concerning any

impending redundancies and the application of
any joint agreement on redundancies.

o Generally to assist in the furtherance of good

relations between the employer and persons
employed in the business and to exercise such
other functions as are conferred on a Committee.

 Procedure where field branch is established s 22 of

the SEA

o The employer must by notice inform both the

employee and the chairman or deputy chairman
of the field branch of his intention to impose
penalty. The notice must be in writing.

o Then the field branch is afforded an opportunity

of three days to deliberate on whether to support
the employer or the employee.

o Upon the expiry of the three days the employer

has not received no written representations
against his proposed penalty from the field
branch he may proceed to impose the penalty or
even the lesser penalty. But if the field branch
presents a written representation against the
proposal the employer and the field branch shall
discuss the same as soon as is practicable then
the employer may impose the proposed or lesser

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disciplinary penalty.

o In case of disagreement, the employer shall not

summarily dismiss the employee, unless the
employee informs the employer and the field
branch that he does not intend to make reference
to the board. Where the employee is not
supported by the field branch and is not satisfied
with the penalty he can within 14 days refer the
matter to the board. If 14 days expiry without
action from the employee then the employer may
proceed dismissing the employee. Where a
reference is made within 14 days, the employer
will proceed imposing summary dismissal if the
reference is abandoned by employee, or if the
proposed summary dismissal is not confirmed by
the board, but it is confirmed by the Minister
upon reference to him.

o Any action that is taken out of the prescribed

time will be taken to be incompetent. In Tanzania
Diaries Ltd v Chairman Arusha conciliation Board
& Isaac Kirangi [1994] TLR 33 the board went on
to consider the matter even though it was filed
out of time, the court held that ‘’once the law puts
a time limit to a cause of action, that limit cannot
be waived even if the opposite party desists from
raising the issue of limitation thus the board
acted ultra vires when it heard and decided on a
reference after the time provide by the law had
expired’’.

o The employer is entitled to suspend the employee

on half pay any time after he has discussed the
representations with the field branch. The
employee cannot demand to be suspended.
When the employee is suspended on half pay and
it is found out that the employer was no justified

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to suspend the employee, then the employer will
have to pay the remainder of the half pay for all
the suspension months. But if it was a justified
suspension then such requirement to pay the
outstanding amount will not stand.

 Procedure where no field branch is established

o This involves the labour officer; when an

employer imposes a disciplinary penalty other
than summary dismissal for breach of
disciplinary code, he shall inform the employee
and report the same to the labour officer s 23(2)
SEA.

o Where an employer proposes a summary

dismissal he shall inform an employee and report
the same to the labour officer with his reasons
and circumstance. The employer is not required
to impose the penalty before the expiry of three
days

o If within the three days the local representative of

the union after consultation with the employer
informs him in writing that he supports the
employee in an intention to refer the matter to the
board

o If no reference is made to the board by an

employee within the period of 14 days after an
employee has been informed by the local
representative of the union or where the
reference is made to the board within that period
and is abandoned the employer may proceed
dismissing the employee. Or otherwise if the
Minister on further reference to him confirms the
dismissal.

o An employer may also dismiss an employer on

half pay.
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 The conciliation Board

 S 11 of the SEA the Minister shall establish

conciliation boards throughout Tanzania. These are
quasi-judicial boards consisting of the chairman
appointed by the minister for labour affairs and two
members appointed by the chairman, one member
representing employee and the other representing
employers s 12 of the SEA.

 The main function of the conciliation board is to hear

reference made to it and make decision s 25 of SEA.

 Basically the powers of the Board include

confirmation, revision and varying the imposition of
disciplinary penalty. It can order re-engagement, re-
instatement of an employee who has been dismissed
or suspended pending its decision. [the order for re-
instatement and re-engagement does not apply to
domestic servants]

 An employee make reference to the board in various

circumstances or situations 24 SEA;

o Where an employee has been summarily

dismissed.

o When he is informed of the employee’s intention

to summarily dismiss him.

o When a deduction has been made in his wages

due to him from his employer as a disciplinary
penalty.

o Where he has been terminated from employment.

 A reference to a Board shall be made within fourteen

days (14) of the employee being dismissed, being

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informed of the proposal to dismiss him, or suffering
the deduction, as the case may be.

 The Board shall, so far as is reasonably practicable,

hear the reference and give its decision thereon within
seven days (excluding Saturdays, Sundays and public
holidays) of the reference being received by it.

 S 27 of the SEA provides for the right of appeal for

the aggrieved party, the appeal is to be made to the
Minister.

 The Minister for labour

 S 27 of the SEA provides that the Minister responsible

for labour is a final authority in administering
disciplinary matters under the disciplinary code found
in the schedule to the SEA, the Minister receives
references from the Board and the decision he
renders is final and conclusive and binding and may
be enforced in the court of competent jurisdiction as
if it were a decree s 28 of the SEA.

o The finality of the minister’s decision does not

preclude the power of the court to intervene
where there is exceeding of jurisdiction. the
intervention of the courts comes where there is
jurisdiction error or any violation of the principles
of natural justice and is done through judicial
review or by seeking declaratory judgement in the
ordinary suit this was discussed in the case of
D.R Kaijage v Esso Standard Tanzania Limited
Civil appeal No. 10 of 1982 (CA) (Unreported) .

 The reference to the Minister from the board must be

made 28 day after receipt of the notice of the decision
of the board. The reference is made when there is
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confirmation or non confirmation of either summary
dismissal or proposed summary dismissal by the
Board.

 The minister has the power to, confirm, reverse or

vary the imposition of the disciplinary penalty.

 Read Sikalumba from pg 71-78 to see the changes

introduced to 1975 amendment to the SEA

 Settlement of industrial disputes under the Industrial court of

Tanzania Act Cap 60

 Industrial disputes are characterized with

collective bargaining i.e negotiations
involving a number of employees and their
employer. Usually this bargaining is on the
terms and conditions of work.

 The nature of collective bargaining is that it has an

element of representative democracy, employees are
represented by respective trade unions.

 The Industrial court of Tanzania Act deals with

disputes settlement between employers and
employees in private sector and parastatal
organisations 36.

 The Industrial Court Act Cap 60

 This act governs industrial or trade disputes

between employees in the private sector and
parastal organisations and their employers.

 The act deals with both collective and individual

trade disputes settlement schemes.

36
The civil servants are governed by the Civil service Negotiating Machinery Act, The local
government employees are governed by the Local Government Negotiating Machinery Act and the
Defence forces are governed by their special laws.

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 S 3 of the Industrial Court Act defines trade

dispute to mean any dispute between an
employer and employees or an employee in the
employment of that employer connected with
the employment or non-employment or the
terms of the employment, or with the conditions
of labour of any of those employees or such an
employee.

 The meaning of an employer under this act is

that ascribed by the Employment Act.

 Collective disputes

 This may take the form of a grievance involving more

than a single employee arising out of the common
cause such as unfavourable working conditions, poor
packages or demands for payment of arrears; it may
also take the form of a grievance between a single
employee and an employer in such a way that other
employees choose to side with the individual employee
against the management, this may be as a result of
victimization, discrimination or oppression.

 The requirement for a collective dispute is that there

must be an individual or group of individuals who
ignites the complaints and convince others to have a
common support.

 It is difficult to establish as to when did a collective

dispute commence or to pin point any particular period
at which the dispute arose, this was laid down by the
Court of Appeal in the case of J UWATA v KIUTA [1988]
TLR 146

 A trade dispute is at two stages; it may be

apprehended or it may be existing. It comes to
existence only when it is declared by referring the
matter to the labour commissioner; if it is not referred
to the commissioner it will amount to no more than
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apprehended trade dispute capable of being dealt with,
J UWATA v KIUTA.

 Individual trade dispute

 This is a grievance between an employer and a single

employee. This individual employee must be declared
by the labour officer as to have been employed in the
management of his employer’s business. S 10 is to the
effect that no employee shall institute a trade dispute
under the Industrial Court Act without a certificate of a
Labour Officer that he is employed in the management
of the business of his employer.

 In determining whether an employee is employed in the

management the labour officer will use subjective test,
in practice he will take into account matters like, the
position of an employee in relation to other employees
such as whether he the employee has a disciplinary
control over others at the place of work.

 Employees employed in the management of the

employer’s business are also excluded from the
purview of the SEA, their only recourse is the ordinary
courts.

 Procedure of settlement of dispute

 The machinery for labour dispute resolution under the

Industrial court Act can be set in motion by the
employer, employee, the labour office or labour
commissioner.

 According to s 4(2) of the Industrial Court Act where a

dispute arises or there is an apprehended trade dispute;

 A member of a trade union shall first report a trade

dispute to the union branch at the place of work
within seven days of its occurrence.

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 The union branch shall within fourteen days report
the trade dispute to the Labour Officer.

 Where there is no union branch, the trade dispute

shall be reported within fourteen days to the
District Secretary of the registered trade union or if
he is not a member of a trade union or he is the
employer, to the District Labour Officer.

 The act provides four methods for the settlement of

dispute;

 Compulsory conciliation and negotiation s 4(3) Cap 60

 Where a dispute is referred to the union branch or

District Secretary of a registered trade union or
District Labour Officer, as the case may be, that
officer appointed by the Labour Commissioner
shall, within 21 twenty-one days from the date the
dispute is reported to him, use his best endeavour
to conciliate the parties to the dispute and effect a
settlement of the dispute, and may for that
purpose make use of any machinery for the
settlement of the trade dispute which may exist in
the trade or industry or branch thereof in which the
dispute has arisen.

 When a settlement is reached it shall be recorded

in writing and on being endorsed by the Labour
Commissioner shall be known, and referred to as a
negotiated agreement. When the labour
commissioner receives a negotiated agreement he
should transmit it to the court for registration.

 According to s 5(3) of Cap 41 a negotiated

agreement shall not be operative or binding upon
parties unless it is duly registered by the Court and
once registered it shall be deemed to be an award
hence binding on the parties s 24(4) Cap 60.

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 S 24(5) Cap 60 where the Court refuses to register
any negotiated agreement, the Minister shall refer
the matter back to the conciliator for further
negotiations with the parties concerned and,
notwithstanding the negotiated agreement, the
dispute between the parties shall be deemed to
have revived and the reference back to the
conciliator shall be deemed to be a reference to a
conciliator under subsection (2) of section 4.

 Compulsory adjudication s 6 of Cap 60

 Where a Labour Officer is unable to effect a

settlement of the trade dispute, he shall report in
writing to the Labour Commissioner within 21
twenty-one days of receiving the dispute.

 On receipt of a report, the Labour Commissioner or

any Labour Officer authorised by him in that behalf
shall, within twenty-one days from the date the
dispute is duly reported to him, transmit the
dispute and any comments which he may wish to
make thereon to the Court.

 Where a trade dispute has been referred to the

Court, the Court shall proceed to consider the
dispute and make an award thereon.

 Inquiry s 8 of Cap 60

 Where any trade dispute exists or is apprehended,

the Labour Commissioner may on his motion or
where the trade dispute is referred to him;

 Inquire into the cause and circumstances of the

dispute and refer to the Court any matter
appearing to him to be connected with or relevant
to the dispute;

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 Refer to the Court for advice on any matter
relating to or arising out of any trade dispute
which in his opinion ought to be so referred;

 Refer to the Court any matter connected with the

economic or industrial condition and affecting
labour conditions, terms of service or any other
aspect of relations between employers and
employees or relating to wage policy,

 The Court shall inquire into the matter referred to it

and make an award or advise the Labour
Commissioner accordingly.

 Establishment and jurisdiction of the industrial court of

Tanzania

 The industrial court is established by s 16 of the

industrial court of Tanzania Act. Since it was
established to deal exclusively with employment
matters it is said to be a court of competent
jurisdiction in that respect this was stated in the
case of NMC v Hamisi J uma and 90 Others Misc
Civ App No. 141 of 1994.

 The jurisdiction of the court is provided under s

16(2) of Cap 60

 To hear and determine any trade dispute

referred to it under the provisions of Cap 60

 To register negotiated agreements and voluntary

agreements, and to hear and determine matters
relating to the registration of such agreements;

 To inquire into any matter referred to it under Cap

60 and to report to the Minister on such matters;

 To advise the Labour Commissioner on any

matter referred to it by him.
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 To exercise such other functions and powers as
are conferred upon it by Cap 60 or as may be
conferred upon it by any other written law.

 Constitution of the Court

 According to s 17 of Cap 60 the court shall

compose of;

 The Chairman of the Court, who shall be

appointed by the President, upon advice by the
Minister and after consultation with the Chief
J ustice, from amongst the J udges of the High
Court; and

 Such number of Deputy Chairmen as the

President may approve, each of whom shall be
appointed by the President.

 The chairman and Deputy Chairmen shall hold

office for the period of three years and shall be
eligible for reappointment.

 The Deputy Chairmen shall exercise the

jurisdiction of the court and any other duties as
directed by the Chairman.

 The corum of the court is provided under s 20

Cap41; the Court shall be properly constituted
when presided over by the Chairman or as the
case may be the Deputy Chairman, sitting with two
assessors selected by him from a list of assessors
appointed by the Minister.

 Where neither the parties nor the court indicate

that they will be assessors, the court shall be
properly constituted when presided over by either
the Chairman or a Deputy Chairman as the case
may be.

 Where the Court is holding a preliminary or

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interlocutory proceeding, it shall be properly
constituted when presided over by the Chairman
or the Deputy Chairman.

 The Chairman or the Deputy Chairman, as the

case may be, shall not be bound by the opinions
of the assessors but if he disagrees with the
opinion of any of them he shall record the opinion
of that assessor and the reasons for his
disagreement.

 S 23 of Cap 60 provides for the duties and

powers of the court they include to hear, receive
and consider any submissions, arguments or
evidence made, presented or tendered.

 S 28 of Cap 60 every award and decision of the

Court shall be final and not liable to be challenged,
reviewed, questioned or called in question in any
court save on the grounds of lack of jurisdiction in
which case the matter shall be heard and
determined by a full bench of the High Court.

 The remedy available for an aggrieved party is to

apply for revision to the industrial court s 28(7)
Cap 60.

 In proceedings before the court a party may

appear in person or by an advocate s 31 Cap 60.

 If there is default in appearance without

reasonable or good reason and the defaulting
party is the complainant it may lead to the
dismissal of the application or dispute.

 If the defaulting party is the employer or

management, the court may proceed to
determine the dispute or the matter ex-parte.

 What is good reason depends on the

circumstances of the case. The party affected by
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the setting aside or ex-parte decision has the
access for restoration and setting aside of the ex-
parte decision.

 S 32 of Cap 60 grants immunity from prosecution

to members of the court for acts or omissions
bona fide in the exercise of his duty. By member of
the court it means the Chairman, a Deputy
Chairman, an assessor or an official member
exercising functions under Cap 60.

 Voluntary agreements s 41 of Cap 60

 This is an agreement between a trade union

representing employees and the employer. The
agreement may in respect of wages or terms of
employment.

 The agreement should be recorded in writing and

submitted to Zonal labour office who shall submit
it to the labour commissioner who shall submit it
to the minister. The Minister shall transmit the
voluntary agreement, the Labour Commissioner's
report and any comments which he may wish to
make thereon to the Court.

 Where a voluntary agreement is submitted to the

Court, the Court shall examine such agreement,
the Labour Commissioner's report and any
comments which the Minister may have made
thereon and shall proceed to decide whether or not
to register the agreement.

 S 41(6) Cap 60 No voluntary agreement shall be

operative or be binding on the parties thereto
unless it is registered by the Court. Where the
Court does not register a voluntary agreement
within three months, the employer and the
employee may commence implementing the
voluntary agreement.

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 Where a voluntary agreement is submitted to the
Court, the court may;

 Register the agreement as an award without any

modification.

 Register the agreement as an award after making

such modifications thereto as the parties to the
agreement may consent to;

 Refuse to register the agreement.

 Where a voluntary agreement is registered,

whether with or without any modification, the
agreement so registered shall be deemed to be an
award and shall take effect from the date on which
it is specified in the award that it shall take effect.

 Strikes and lock-outs

 A strike is defined by s3 of Cap 60 as

 The cessation of work by a body of persons

employed acting in combination.

 It is a concerted refusal under a common

understanding of any number of persons
employed to continue to work for an employer.

 A concerted interruption of work or performance

of work on a go-slow basis by any number of
employees, done as a means of compelling their
employer or any person or body of persons
employed, or to aid other employees in
compelling their employer or any person or body
of persons employed, to accept or not to accept
terms or conditions of or affecting employment.

o Strikes come when the efforts to

make an agreement has ended in

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vain37. Strikes are said to be
traditional weapon for the working
class in collective bargaining.

 Lock-out is also defined by s 3 to mean;

 The closing of a place of employment.

 The suspension of work.

 The refusal by an employer to continue to employ

any number of persons employed by him.

o Lock-outs are employers’ traditional

weapon and are done in
consequence of a trade dispute, not
with the intention of finally
determining employment, but with a
view to compelling those persons, or
to aid another employer in
compelling persons employed by
him, to accept terms or conditions of
or affecting employment.

o In practice, employees are the ones

who illegally lock-out the employers
or the management due to various
grievances e.g. on Wednesday 27th
2002 Mtanzania News paper
reported on page 3 about the Aga
Khan Hospital workers who locked-
out the hospital management
following the failure to reach a
compromise on an impending
redundancy package.

 According to the provisions of s 11 of Cap 60 an

employer may take part in a lock-out and an
employee may take part in a strike if the
37
Sikalumba, p 94

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prescribed time elapses since the date–

 The dispute is reported to the union branch, local

District Secretary or local District Labour Officer,
as the case may be; and there has been attempt
to effect a settlement to the dispute and neither
has the dispute been reported or referred to the
Labour Officer.

 The dispute is reported to the Labour Officer and

he has not referred it to the Labour
Commissioner.

 The matter is reported to the Labour

Commissioner and he has not referred the matter
to the Court.

 The Court made an award thereon but no step is

taken within fourteen days to comply with the
Court's award, and that the Court has not taken
action to accept the award.

 S 11(2) an employee is not required to take part in

a strike unless there is held a secret ballot under
supervision of the Labour Officer and two thirds or
more of all employees involved in the dispute vote
for a strike. This is more or less sarcastic because
a labour officer who is vested with this power may
in one way or the other, be the one to blame for
failure to reconcile the dispute or default in
transmitting the records to the labour
commissioner.

 S 12 of Cap 60 prohibits;

 Employees to take part in any act of locking in or

locking out, their employers.

 The striking of the employees and the taking part

in a lock-out by employers in any employment or
services in the Third Schedule rendered to the
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Government or any other person, the interruption
or continued interruption of which would
endanger the life, health or personal safety of the
whole or part of the population. E.g. of such
services are water services, electricity, health
services, fire services, e.t.c.

 Any person to procure or incite another person to

take part in a lock-out or strike

 The striking or taking part in lock-outs contrary to

the procedure under this Act.

 S 13 Cap 60 any employee who strikes or lock-out

or in unlawfully commits an offence and upon
conviction is liable to a fine not less than fifty
thousand shillings but not more than one hundred
thousand shillings or to imprisonment for a term
not exceeding six months or to both such fine and
imprisonment.

 S 14 empowers police officer to arrest without

warrant any person whom he reasonably suspects
of having lock-in or out or strike unlawfully.

Read Sikalumba from pp 97-101 for dispute

settlement for local Government authorities.

 Settlement under the new labour legislations.

 Under the ELRA, Part VIII of the act provides for

dispute resolution. The ELRA provides for the
procedure to be used in settling labour disputes.

 Disputes under the ELRA can be categorised into

two:-

 A complaint; This is defined as any dispute

arising from the application, interpretation or
implementation of:

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o An agreement or contract with an
employee.
o Collective agreement
o The ELRA or any other written law
administered by the minister for labour.
o Part VII of the Merchant Shipping Act,
2003 ( this part concerns engagement and
welfare of seafarers which encompasses
things like wages, the property of the
deceased seafarer, safety, health, manning,
qualification, civil liability as well as
offences by seafarers etc)

 Disputes of interest; The Act defines a

dispute of interest as any other dispute
which is not a complaint. Thus, all other
types of disputes which are not concerned
with application, interpretation or
implementation of an agreement, the ELRA
or other laws administered by the minister
for labour or part VII of the Merchant
Shipping Act, 2003 (the engagement and
welfare of seafarers).

 Labour disputes must be resolved by;

 Mediation or Arbitration conducted by the

Commission for Mediation and Arbitration
(CMA) which is established by s 12 of the

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Labour institution Act

 By adjudication by referring the matter to the

Labour court established under s 50 of the
labour institution Act.

By Mediation

 This is a process of resolving dispute in

which an independent neutral third party
known as a mediator assists the parties to
come together and negotiate and resolve
their dispute by agreement.

 S 86 of ELRA provides that all dispute

referred to the CMA shall be in a prescribed
form (form number 1) and he must satisfy
the commission that he has served a copy of
the referral to the other party.

 When the commission receives the referral it

shall; appoint mediator to mediate the
dispute, decide the time, date and place of
the mediation hearing and advise the parties
on the same.

 S 86(4) the mediator is required to resolve

the dispute within thirty days of the referral
or longer if the parties agree in writing.

 In mediation a party may either appear in

person or may be represented by a member
or official of that party’s trade union or
employers’ association or by an advocate.

 When the mediator fails to resolve the

dispute within the prescribed time then a
party may give notice of its intention to
commence a strike or lock-out if the dispute
is a dispute of interest or a party may refer
the complaint to arbitration or the Labour
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court.

If a party fails to attend mediation and the

dispute is the dispute of interest;

 The commission may extend the period by

further 30 days if an employer or employer’s
association fail to attend the hearing
arranged by the commission.

 Shorten the 30 days period if the employees

or trade union party to the dispute fail to
attend the hearing.

If it is a complaint

 The commission will dismiss the complaint

if the party who referred the complaint fails
to attend a mediation hearing.

 Decide the complaint if the other party to the

complaint fails to attend a mediation hearing.

The decision made may be enforced in the

Labour Court as a decree of a court of a
competent jurisdiction.

If the commission is satisfied that there are

good grounds for non-appearance in the
hearing then he may reverse a decision or
upon receive application made in the
prescribed manner.

By Arbitration

 This is a dispute settlement method in

which an independent third party
determines a dispute between the parties.

 Under the commission arbitration may

be compulsory or voluntary.

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Compulsory arbitration

 A dispute may be of interest if the parties

to the dispute are engaged in an essential
service.

 It can be a dispute of complaint over the

fairness or lawfulness of an employer’s
termination of employment; any other
contravention of the labour law or breach
of contract in which the amount claimed
is below the pecuniary jurisdiction of the
High Court; or any dispute referred to
arbitration by the labour court.

 Reference to arbitration will come after

the parties have failed to resolve their
dispute in mediation. The commission
will appoint arbitrator and determine time
date and place of arbitration and advice
the parties on the same.

 The arbitrator may conduct the

arbitration in the manner he considers
appropriate in order to determine the
dispute fairly and quickly; he shall deal
with substantial merits of a dispute with
the minimum of legal formalities.

 Party to a dispute may give evidence, call

witnesses, question witnesses and
present argument this is subject to the
discretion of the arbitrator.

 The parties may give their consent to the

arbitrator to suspend proceedings in
arbitration and resolve their dispute in
mediation.

 A party may be represented by a member

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or official of that party’s trade union or
employers’ association or an advocate.

 An arbitrator may not make order for

costs unless a party or a person
representing a party acted in a frivolous
or vexatious manner.

 S 88 (9) Arbitrator is supposed to make

an award with reasons signed by the
arbitrator within thirty days of the
conclusion of arbitration proceedings.
The award shall be binding to the parties
and may be served and executed in the
Labour Court as if it were a decree of a
court of law.

 An arbitrator may on his own motion or

upon application by the parties in the
arbitration proceedings correct any
clerical mistake or error arising from any
accidental slip or omission.

 A party who alleges a defect in any

arbitration proceedings under the
auspices of the commission may apply to
the Labour court for a decision to set
aside an award;

 Six weeks after the award is

delivered unless the alleged defect
Involves improper procurement in
which the application shall be
within six weeks of the date that the
applicant discovered that fact.

 The court may set aside the award on the

grounds of misconduct on the part of
arbitrator or where an award was
improperly procured. When an award is

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set aside the labour court may determine
the dispute in the manner it considers
appropriate or make an order it considers
appropriate.

Voluntary arbitration

 Parties may by agreement submit their

dispute to arbitration s 93 ELRA

 The arbitration Act will apply to agreed

submission of a dispute to arbitration

o Any a dispute may be submitted to

arbitration

By Adjudication

 Parties may settle their dispute by

adjudication by referring the matter to the
Labour court established under s 50 of
the labour institution Act.

 The labour court is by The Constitution

of the United Republic Tanzania vested
with exclusive jurisdiction over the
application, interpretation and
implementation of the provisions of the
ELRA.

By collective agreement

 A dispute may also be solved by collective

agreement between trade union and
employer or employers’ association. This is
provided for by s 95 of the ELRA.

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 Under The Labour Institutions Act

o The Labour Institutions Act establishes

the organs which are responsible to settle
labour disputes For the purposes of
dispute settlement the Act provides for;

The CMA

 It is established by s 12 to mediate and

arbitrate labour disputes.

 The act is to provide for a framework for

resolving disputes arising from work
relationship.

 It is an independent department which is not

subject to control or direction of any other
authority such as the Minister for labour, the
labour court or the President.

Composition

 The CMA is composed of mediator and

arbitrators appointed by it on part time and
on full time basis.

S.16 of LIA the CMA 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.
 Two commissioners representing the
interests of the employers

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 Two commissioners representing the
interests of the government
 According to S 17 of the LIA 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

 In performance of its duties the CMA shall

work freely subject to the code of conduct
prepared by the commission.

Powers of mediators and arbitrators

 To summon any person for questioning or

to attend mediation hearing.

 Summon any person who is in possession

of any document or object relevant to the
dispute.

 To administer oath and accept affirmation

 Question any person on any matter relevant

to the dispute. According to s 20 of Act No.
7 refusal of any person to react positively to
the summons served will be guilty of
contempt of the commission which is an
offence. The ruling that a particular conduct
amounts to contempt or not must be
confirmed by the District Court.

Distinction between mediation and

arbitration

 In Mediation a mediator is the 3rd

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party to a dispute who helps the
parties to reach into an agreement.
His/ her role is to start and facilitate
the negotiation process. The end
result is the decision of the parties
themselves and not the mediator’s

 Whereas in arbitration an arbitrator is

the 3rd party to the dispute who
determines a dispute between the
parties by looking on the rights of
respective parties to a dispute
considering the legal provisions
available. The end result of the
process is the decision of the
arbitrator known as an AWARD which
is binding on the parties.

The Essential Services Committee

 This is an organ which is established

within the Commission under s 29 for
determination of disputes about
whether or not an employee or
employer is engaged in a designated
essential service.

 S 31 of 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.

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The tenure of the committee is three
years but a member may be
reappointed at the end of his term of
office.

 S 30 LIA The functions of the Essential

Services Committee are:

o To designate essential services

in terms of the provisions of the
ELRA, 2004;

o To determine disputes about

whether or not an employee or
employer is engaged in a
designated essential service
(s.30).

 S.32 LIA In the performance of its

activities, the Committee has the
following powers:

o It may summon any person for

questioning where it considers
that the attendance of this
person will assist in the
performance of its functions;
o 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;

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o It may administer an oath or
accept an affirmation from any
person called to give evidence;
and
o It may question any person about
any matter relevant to the
performance of its functions.
 The Commission shall pay the
prescribed witness fee to each person
who appears before a mediator or
arbitrator in response to a subpoena
issued in this regard s. 32(3) LIA.

The Wage Board

 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.

 The Board is appointed by the Minister according to s 35

among other things to promote collective bargaining between
registered trade unions, employers and registered employers’
associations.

 The 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)).

 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

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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).

 The functions of a wage board are;

o To conduct an investigation on minimum remuneration

and other conditions of employment.

o 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.

The Labour Court

 It is established under s 50 of Act No. 7 which is the

Division of the High court.

J urisdiction of the court

 It has exclusive civil jurisdiction over any matter reserved

for its decision by the labour laws, s 51 of the Act.

 S 94 of the ELRA provides that the Court shall have the

power to decide;

o Appeals from the decisions of Registrar

o Reviews and revisions of arbitrators’ awards and the

decisions of the essential Service Committee

o Reviews of decisions, codes, guidelines or regulations

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made by the Minister.

o Complaints, other than those that are to be decided by

arbitration.

o Any dispute reserved for the decision by the Labour

Court

o Applications including a declaratory order in respect

of any provision of the act or an injunction.

 The court has power to refuse to hear

the complaint if the complaint was not
referred to mediation by the
commission or when the application is
not urgent.

 When the court receives a dispute and

the dispute is that which is required to
be referred to it may decide the dispute
or refer the dispute to the commission
to be decided by arbitration. if the
dispute or complaint was required to
be referred to arbitration, the court
shall refer the complaint to the
commission for it to be dealt with or it
may decide the complaint provided
that it may make an appropriate order
as to cost.

Composition of the Court s 50 of the

LIA

 The court shall consist of such number

of J udges as the Chief J ustice may
consider necessary; two panels of
assessors s 53;

o An employer panel drawn from

the list of names nominated by
the member of the council
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representing the interests of
employees

o An employee panel drawn from a

list of names nominated by the
members of the Council
representing the interests of
employees.

 In some cases a J udge is not forced to

seat with assessors, particularly in
application proceedings, or where the
party to the proceedings agree or if it is
necessary for a quick resolution.

Decision of the court

 The decision of thee court is given by

the J udge after considering the
opinion of the assessors. However the
J udge is not bound to follow the
opinion of the assessors.

 The decision is binding and in form of

judgement unlike the decision of the
Industrial court which was in form of
an award

 S 57 of the LIA an aggrieved party

may appeal to the Court of Appeal
only on points of law and not on the
merits of the courts decision.

 S 56 of LIA a party to a dispute before

the Labour Court may either appear

o In person

o Be represented by an official of
a registered trade union or
employers’ organisation,

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o A personal representative of the
party’s own choice

o An advocate

 The Labour Commissioner and Labour Officers

 According to s 43(1) of the LIA the law entrusts the power to
administer labour laws to the Labour Commissioner and
Deputy Labour Commissioner who are appointed by the
President.

o The term Labour Commissioner is defined under LIA to

mean Labour Commissioner appointed in terms of
section 43(1) and in the absence of the Labour
Commissioner, the Deputy Labour Commissioner.

o S 43(2) The Assistant Labour Commissioners are

appointed by the minister. S43(3) The minister also
appoints the Registrar of Organisations and Deputy
Registrar who are responsible for the regulation of
trade unions, employer organisations and federations.

o S 44(1) LIA in writing the Labour Commissioner can

delegate any of his duties, functions and powers to the
Deputy Labour Commissioner, Assistant Labour
Commissioners or any Labour Officers.

 Functions of Labour Officers

o According to s 43(4) there shall be as many labour
officers as are necessary to administer and enforce the
labour laws.

o Labour Officer is defined to mean a labour officer

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stipulated in s.43 (3) and it includes the Labour
Commissioner or Deputy Labour Commissioner. Thus,
the Labour Commissioner and Deputy Labour
Commissioner are Labour Officers. The section
provides further that the Minister shall appoint
Assistant Labour Commissioners;

 To head the sections of Labour Relations

 Labour Inspection and Social Security.

o S 45(1) of LIA For the purposes of the administration of

labour laws, a labour officer with a prescribed
certificate and at a reasonable time may enter
premises and:

 Require that premises or any part thereof shall

not be disturbed during an inspection;
 Search and examine any information books,
document or object;
 Seize, make a copy of any information, book,
document or object;
 Take sample of any object found;
 Take measurements, readings recordings or
photographs; and
 Question any person on the premises
o Order, in the prescribed form, any person to appear
before him at a specified date, time and place and to
question that person
o Require any person who has control over any
information, book, document or object to furnish it and

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explain any entry in the information, book or document
or the object;
o Examine, make copy or seize any book, document or
object
o Give directions on where notices required in terms of
the LIC are to be posted.
o Request the member of the Police Force to assist in
the exercise of the labour officer’s powers.
o Request any person to assist as an interpreter or
otherwise in the exercise of the powers of the labour
officer.
o Institute proceedings ain the Resident’s Magistrate
Court in respect of any contravention of any labour law
and may appear and prosecute in the name of the
Labour Commissioner.

 The labour officer is empowered by s 46 of LIA to issue a

compliance order in a prescribed form to any employer
whom he reasonably believe that has not complied with the
provisions of the labour laws.

o The employer is required to comply with a compliance

order issued and the Labour officer may apply to the
Labour Court to enforce the compliance order if the
employer has not objected or complied with the order.

o S 47 LIA The employer may in writing object a

compliance order within 30 days of the receipt of that
order.

 The employer may appeal to the Labour Court against an

order of the Labour Officer within 30 days of the receipt of
the order s 48 of LIA

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 According to s 49 of the LIA any person will be said to
commit an offence if that person;

o Hinders or obstruct the labour officer in performance

of his duties

o Refuses without any good cause to answer questions

posed to him by Labour officer.

o Refuse to appear before the Labour officer when

summoned.

o Refuses to furnish information or wilfully furnishes

false or misleading information.

o Refuses or fails to comply any lawful request or order

by Labour officer.

o Falsely claims to be a Labour officer.

 Strikes and Lockouts under ELRA

 Part VII of the ELRA provides for strikes and lockouts.

Strikes

 S 4 of the ELRA defines a “strike” as a total or partial stoppage

of work by employees if the stoppage is to compel their
employer, any other employer or an employer’s association to
which the employer belongs, to accept, modify or abandon any
demand that may form the subject matter of a dispute of
interest.

o For the employees and employer to have a right to strike

and lockout respectively, the dispute must be a dispute of

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interest.

o S 75 of the ELRA provides for the right to every

employee to strike in respect of a dispute of interest. On
the other hand the employers are also accorded a right to
lock out in respect of a dispute of interest.

o Section 83 provides that a lawful strike or lawful lockout

shall not amount into a breach of contract or a tort or a
criminal offence.

 S 83(2) an employer is prohibited from terminating

employment on the ground that an employee has
participated in a lawful strike or for not acceding to
an employer’s demand in a lockout.

 S 83(3) no civil or criminal proceedings shall lie

against any person for participating in a lawful
strike or lawful lockout.

 S 83(4) provides that an employer shall not be

obliged to remunerate an employee for services
that the employee does not render during a lawful
strike or lawful lockout. But the employer is bound
to continue doing the following during a lawful
strike or lawful lockout:

 He shall continue to make his contribution and

employees contribution to any funds that the
employee is required to belong to by the law or
under the contract of employment.
 If the employer provides accommodation, the

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provision of food or other basic amenities of life,
the employer shall continue to provide that
accommodation, food or amenities of life.

 After the end of the strike or lockout, the employer

may;
 Deduct any of the employee’s contribution
made to the fund during a strike or lockout from
the remuneration of the employee.
 The employer may also deduct the agreed
monetary value of the accommodation, food or
amenities from the employee’s remuneration
with the consent of the employee. Where the
employee does not consent to the deductions
the employer may refer the matter to mediation
and further to the Labour court for decision.

 S 84 provides that where a strike or lockout is not in

compliance with this Act, or a trade union or
employer or employer’s association engages in a
prohibited conduct, the Labour Court shall have
exclusive jurisdiction to issue an injunction to
restrain a person from;
 Engaging in an unlawful strike or lockout.
 To engage in any prohibited conduct.
 The Court will also have the exclusive
jurisdiction to order the payment of just and
equitable compensation for any loss attributable

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to the strike, lockout or conduct having regard to
the degree of fault, the cause of the strike,
lockout or conduct, the ability to pay, the extent
of harm, the interest of collective bargaining and
the duration of the strike or conduct.

 Procedures for a engaging a lawful strike s 80 of ELRA

o The dispute in respect of the strike must be a dispute of

interest
o The dispute must have been referred in the prescribed form to
the Commission for Mediation and Arbitration and remained
unresolved owing to the failure of the Commission to do so at
the end of the period of mediation.
o The strike must be called by a trade union and a ballot has to
be conducted under the trade union’s constitution in which a
majority of the voters, votes for the strike for it to be lawful.
(this is different from the old legislations where a secret ballot
was conducted by the labour officer)
o The employees or their trade union must have given a 48 hours
notice to their employer of their intention to strike after the
failure by the Commission to resolve the dispute.
o S 80(2) If the dispute relates to the unilateral alteration of the
terms of contract, the employees or trade union may require
the employer not to implement any proposed change to terms
and conditions or if he has implemented them to restore the
terms and conditions of employment which applied before the
change. If the employer doesn’t comply with such requirement
within 48 hours, the employees may commence the strike

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without waiting for the determination in mediation or getting
the approval of majority or issuing the 48 hours notice.

o S 80(4) A Trade union and an employer or employers’

association may agree on their own strike procedure in a
collective agreement.

 The law provides that where procedures for engaging in a lawful

strike or lawful lockout have not been followed, no person is
allowed to engage or to take part or to conduct himself in a
manner that contemplates a strike or lockout.

 Restrictions on the right to strike or lockout

o The right to strike as enshrined in the ELRA is said not to be
an absolute one but a restricted right. The following are the
restrictions that are said to be available in this right:-

 Persons who can strike

 The law provides for a right to strike to employees

and lockout to employers, however there are some
categories of employees and employers who are
not vested with these rights, these includes;

 S 76(1) Persons engaged in an essential

service. The essential services are listed
under s. 77(2) as including water and
sanitation, electricity, health services and
associated laboratory services, fire-fighting
services, air traffic control and civil aviation
telecommunications and any transport
services required for the provision of these

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services and any other service the Essential
Service Committee may designate as
service that an interruption of which will
endanger the personal safety or health of
the population or the party of it.
o According to s76(2) persons employed and employers in
essential services can strike or engage in a lockout if there is
a collective agreement providing for minimum services
during a strike or lockout and that agreement has been
approved by the Essential Services Committee.
 Persons engaged in minimum services. The
employer and employees may enter into a
collective agreement for the provision of
minimum services during the strike or
lockout. Alternatively, the employer may
apply in the prescribed manner to the
Essential Services Committee for the
designation of a minimum service if a
minimum service is necessary to prevent
damage to property, machinery or plant
during a strike or lawful lockout and there is
no collective agreement providing for
minimum services during a strike or lockout.
When this agreement has been reached or a
designation has been made by the Essential
Services Committee for the provision of
minimum services, those employees
engaged in such minimum services have no

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right to strike (ss. 76 and 79)
 Persons bound by an agreement that
requires the issue in dispute to be referred to
arbitration. Where parties to a dispute have
entered into an agreement that their dispute
is to be referred to arbitration, then neither of
them can engage in a strike or lockout.
 S 76(1) (c) Persons bound by an agreement
that requires the issue to be referred to
arbitration. Or persons bound by a collective
agreement or arbitration award that regulate
the issue in dispute.
 Persons bound by a wage determination
that regulates the issue in dispute during the
first year of that determination.
 Magistrates, prosecutors and other court
personnel.
 If a dispute is a dispute of complaint.

 Secondary strike
o Section 81 defines the term “secondary strike” as a strike that
is either in support of a lawful strike (the primary strike) by
other employees against their employer (the primary employer)
or a strike that is in opposition to lockout (the primary lockout)
imposed by another employer (the primary employer) against
its employees.

This is a new feature in the Tanzanian labour laws. This shows

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that there can be a series of strikes but all premised on one
major strike (primary strike) or on a lockout.

o S 81(2) provides for Procedure for a secondary strike

 It must be called by a trade union.
 There must be a relationship between the secondary and the
primary employer that may permit the exercise of the
pressure.
 A fourteen days notice of the commencement of the
secondary strike must have been given to the secondary
employer.
 The secondary strike must be proportional by taking into
account;
 The effect of the strike on the secondary employer.
 The possible effect that the strike may have on
resolving the dispute giving rise to the primary strike or
primary lockout.
Employees in essential services or agreed or determined
minimum services are prohibited to be engaged in
secondary strike.

Lockouts

 This is also a new feature that was not provided for by the old
labour legislations.

 S 4 defines a Lockout as a total or partial refusal by one or more

employers to allow their employees to work, if that refusal is to
compel them to accept, modify or abandon any demand that may

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form the subject matter of a dispute of interest.

o A lockout is a remedy of an employer.

 S 82 provides for Procedures for a engaging in a lawful Lockouts

o The dispute must be a dispute of interest

o The dispute must have been referred to the Commission in
the prescribed form and the Commission must have failed to
resolve the dispute within the prescribed time.
o The employer must have given a 48 hours notice of intention
thereof to their employees or trade union.
o A Trade union and an employer or employers’ association
may agree on their own lockout procedure in a collective
agreement.

Protest Action
 S. 4 defined the phrase “protest action” as a total or partial
stoppage of work by employees for the purpose of promoting or
defending the social-economic interests of workers but not for the
purpose referred to in the definition of strike or a dispute in
respect of which there is a legal remedy.

 According to s 85 (1) An employee may take part in a protest

action if:

o The protest action has been called by a registered trade union

or a registered federation of trade union.
o The trade union or federation has served a notice on the
Council stating the reasons for the protest action and the
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duration and form of the protest action.
o Thirty days have elapsed from the date the notice was served
and
o The union or federation has given at least 14 days notice of the
commencement of the protest action.
o Employees engaged in the essential services and minimum
services are prohibited from taking part in protest actions.
 S 85 (3) Upon receipt of the notice, the Council shall convene a
meeting within 30 days of the notice to resolve the matter giving
rise to protest action and on failure to resolve, it may secures an
agreement with the trade unions or federation of trade unions
calling for the protest action on the duration and form of the
protest action in order to minimize the harm that may be caused
by the protest action.
 To resolve the protest, the Council may;
o Establish a tripartite committee to perform its functions.
o Appoint a mediator after consultation with the Commission
to mediate.
o May apply to Labour Court for a declaratory order of
injunction.
 Collective Bargaining

 The ILO Convention 154 describes collective bargaining as a

concept extending to ‘’ all negotiations which take place between
an employer, a group of employer or one or more employers’
organisations, on the one hand or more workers’ organisation, on
the other to determine working condition and terms of
employment, regulating relations between employers and
employees.

 Part VI of the ELRA (SS 66-74) provides for collective bargaining.

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 Collective bargaining is a means of settling disputes concerning
wages and terms and conditions of work by voluntary
negotiations between trade unions representing employees and
employers’ organisations representing the interests of the
employers.

 Workers are involved unitedly but are represented by

individual known as shop steward it is called collective
bargaining because it involves give and take and ordinarily
the making of contract.

 The aim of collective bargaining is to facilitate the

improvement of minimum terms and conditions of
employment. Employers and employees have to be social
partners.

 In Tanzania employees are organised in various trade unions

and employers are organised in employers’ organisations e.g.
Tanganyika employer’s Association.

 Terminologies in Collective bargaining

 Bargaining unit; s 66 (a) of ELRA defines this as any unit of

employees in respect of which a registered trade union is
recognised or is entitled to be recognised as the exclusive
bargaining agent.

o It includes a unit of employees employed by more than one

employer.

o In Tanzania unlike other jurisdictions trade unions must be

registered by the Registrar of trade unions. S 67(2) provides
that an employers’ association may not recognise a trade
union as a bargaining unit unless it is registered.

o The trade union must be recognised because there is

possibility of having more than one trade union hence that
which has more representation (members) will be
recognised thus a bargaining unit. S 67 is to the effect that
a registered trade union that represents the majority of the
employees shall be entitled to be recognised as the
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exclusive bargaining agent of the employees in that unit.

o Formally the trend of trade union was monolistic from

National Union Tanganyika (NUTA) to J umuiya ya
Wafanyakazi Tanzania (J UWATA).

 Recognised trade union; s 66(b) this is a trade union

recognised by a collective agreement or in respect of an order
made by the labour court.

 A registered trade union; this includes two or more registered

trade unions acting jointly.

o According to s 67(3) a registered trade union may notify the

employer or employer’s association that it shall seek
recognition as exclusive bargaining agent within an
appropriate bargaining unit. This should be done in a
prescribed form (form no. 2).

 When this notice is served an employer shall meet to

conclude a collective agreement recognising the trade
union within thirty days.

 When there is no agreement or the employer fails to meet

within thirty days the union may refer the dispute to the
commission for mediation. 30 days period may be
extended by agreement. If the CMA fails to resolve in
mediation the dispute may be referred to the Labour
Court for decision

 The labour court may decide any dispute over the

representativeness of the trade union by arranging any
appropriate person to conduct a ballot of the affected
employees.

o The labour court shall consider the following factors in

determining the appropriateness of a bargaining s 67(8);

 The wishes of the parties

 The bargaining history of the parties

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 The extent of union organisation among the employees

of the employer or employers

 The employee similarity of interest

 The organisational structure of the employer or

employers

 The different functions and processes of the employer or

employers and the degree of integration.

 The geographical location of the employer or the

employers.

o S 69 provides that, where a recognised trade union ceases

to be representative in the bargaining unit (to present the
majority), the employer is required to give the trade union a
notice requiring it to acquire majority within three month, if
it fails to that then the employer shall withdraw exclusive
recognition.

 When this happens any other trade union may request for
new elections in order to demonstrate that the union has
become the most representative.

o All collective agreements shall be in writing and must be

signed by the parties, and it is binding on the parties to the
agreement, any members of the parties to the agreement
and any employees who are not members of the agreement
but their trade union is recognised as the exclusive
bargaining agent of those employees.

 Collective agreements must be conducted in good faith S 68 of

ELRA imposes a duty to every employer or employers’
association to bargain in good faith with a recognised trade
union. The same duty is imposed to the trade union to bargain in
good faith with the employer or employers’ association that has
recognised it. This implies that;

 Efforts should be made to reach into an agreement

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 Conducting genuine and constructive negotiations

 All unjustified delays should be avoided

 All agreements that are concluded must be complied with.

 Obligation to disclose information

 S 70 of the ELRA imposes a duty to an employer who has

recognised a trade union to allow it to engage in collective
bargaining effectively. This implies the disclosure of relevant
information among other things. If an employer withholds
information from the trade union, the bargaining will not be
effective.

 However an employer is not obliged to disclose information

that is either;

o Legally privileged

o That contravenes a law or an order of the court

o That is confidential

o That is private personal relating to an employee without his

consent

 Agency shop; a workplace in which a union represents both union

and non-union workers and requires payments from non-union
workers 38. S 72(9) defines ‘’agency shop’’ as a union security
arrangements in terms of which employees in a bargaining unit,
who are not members of the recognised trade union , are required
to pay an agency fee to the trade union.

 Agency shop agreements are those kinds of agreements

in which employees who are not members of a trade
union but have benefited from the bargaining of the trade
union are required to pay agency fee to the trade union.

38
Microsoft® Encarta® 2007. © 1993-2006 Microsoft Corporation.

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 S 72 make all agreements to compel employees to

become members of a trade union unenforceable

 A recognised trade union and an employer may conclude

a collective agreement providing for agency shop but for
that agreement to be binding certain requirements must
be adhered these requirements are listed under s 72(3)
they include;

 That the agreement applies to employees in the

bargaining unit only.

 Employees who are not members of the trade union

are not compelled to become members.

 Any agency fee deducted from the remuneration of

non-members is equivalent to or less than the union
dues deducted from the remuneration of a member.

 The amount deducted from both members and non

members must be paid into a separate account
administered by the trade union. That money shall
only be used to advance or defend the socio-
economic interests of the employees in that
workplace. It will not be used for any political
purposes either as affiliation fees for a political party.

 Where a trade union is not representative it shall be

suspended or where its recognition has been
terminated it shall be terminated.

 According to s 73(2) a registered trade union,

employer or employers’ association may request the
commission to facilitate the establishment of the
forum for workers’ participation, and the commission
may do the same taking into account any code of
good practice.

 Social security law

 Social Securities are as old as the society that is to say they can
trace their origin form the formation of the society. Societies used

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traditions and norms in providing social security among its
members.

 The earliest social security legislation was enacted in the 16th

century in England for the purpose of protecting the poor people.
In 1883 the National Health Scheme law was enacted which lead
to the establishment of social security schemes by different
countries in the world.

 Social security laws in Tanzania dates back to the colonial period

when the colonial government provided social security to civil
servants.

 The Social Security Programmes in Tanzania today have taken

various forms which are all public programmes such as;

 Pension Schemes
 Provident Funds Schemes
 Social Security Scheme

 The Pension Schemes

 These schemes aim at assisting an employee after retirement

from employment. The employee has to make his contribution
to the schemes so that upon his retirement his contributions
will be a replacement for his salary which he can no longer
earn. This is different from a gratuity which is paid in lump
sum upon retirement where as pension is paid annually.

 The laws that regulated pension schemes included;

o The Pensions Ordinance, Cap. 371. Under this law pension

is an old age payment to the employees of the government
(civil servants) who were employed in the pensionable
offices. This law was repealed and replaced by the Public
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Service Retirement Benefit Act, 1999.

o The Parastatals Pensions Scheme Act, 1978, this law was

enacted during the time when public sector was the leading
employer in the economy. It established a scheme for the
employees in permanent employments with the public
parastatals who held pensionable offices. Thus, the
temporary employees as well as the casual employees were
not covered by this law.

 In 2001 this law was amended due to the changes

experienced in the country’s economy that affected
the employment area this included the move from
planned economy into free market economy.

 These new policies insisted on the reduction of the

public sector and the increase in the private sector
(privatisation of the parastatals which meant the
retrenchments and redundancies in a bid to cope with
the new forms of ownership and control of the
economy). The government was slowly moving from
becoming the major employer into becoming a
regulator.

 The Political Leaders Pensions Act, 1981

 This law was passed in order to regulate the pension to

be given to the political leaders on retirement from their
political positions. In 1986 this law was amended by
the Specified State Leaders Retirement Benefits Act,
1986.

 The 1981 Act covered all leaders in general while the

1986 Act covered the specified state leaders namely the
President, Vice President and The Prime Minister.
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 The two legislations were 1999 repealed and replaced

by the Political Service Retirement Benefits Act, 1999.
This law covers all leaders including the President, Vice
President, Prime Minister, Ministers, Deputy Ministers,
and the Speaker of the National Assembly, Assistant
Speaker, Members of Parliament, Regional
Commissioners and District Commissioners.

 Provident Fund Schemes

 There have been three types of these schemes in Tanzania

namely the National Provident Fund, the Government
Employees Provident Fund, and the Local Government
Authorities Provident Fund.

 The provident schemes were aimed at covering the non

pensionable employees that is to say the employees who were
saving for the time after retirement. These were governed by
the Provident Fund (Government Employees) Ordinance, 1942
which was for the benefit of the government employees who
were not in pensionable offices, Provident Fund (Local
Authorities) Ordinance, Cap. 53 which covered for the benefit
of the employees working under the Local Government in non-
pensionable offices.

 These laws were repealed by The Local Authorities Provident

Fund, which creates a fund for the benefit of the non-
pensionable officers and employees of the Local Government.

 The National Provident Fund Act, 1964, this law covered the
employees in the parastatals who were not pensionable
together with the employees under other employers who were
not working for the Central Government or the Local
Government. This law was repealed by the National Social
Security Fund Act, 1997.

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 National Health Insurance Schemes

 There have been health insurance schemes to cover the

employees in respect of their health and the health of their
dependants. In Tanzania the law which deals with this aspect is
the National Health Insurance Fund Act, 1999. This law
establishes a National Health Insurance Fund and provides for
the manner of contributing as well as the benefits available to
the employees.

 This law excludes the employees in the local governments,

military, prisons, as well as those already covered under the
NSSF Act. The reason for such exclusion is that they are already
covered by schemes offering the same benefits with this one,
offering benefits in the nature of the health insurance.39

 Social Security Schemes

 Social security has been defined by International Labour
Organisation (ILO) in 1948 as follows:-
“The protection which the society provides for its
members through a series at public measures,
against the economic and social distress that
otherwise would be caused by the stoppage or
substantial reduction of earnings resulting from
sickness, maternity, employment injury,
unemployment, inability, old age and death, the
provisions of medical care and the provisions of
subsidies for families with children.”40

39
SS. 21 (g) and 41 of the NSSF Act, 1997
40
“Social Security Schemes in English Speaking African Countries,” Hifadhi News, Quarterly J ournal
of NSSF, Vol. 3, J une 1999- August 1999

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 It is argued that social security schemes are more important
than private insurance schemes because it is the society itself
which tries to protect itself internally, through obligatory
schemes against the dysfunctional effects of income
interruption. However this is done so as to prevent the citizens
from being a burden on the rest of society.41

 There is also a contention that the social and economic

changes increase the need for social security. For instance
changes such as mechanisation and automation give rise to the
use of less labour and as a result, it gives rise to the less use of
labour a result of which creates unemployment, hence a need
for social protection.

 The National Social Security

 In 1997 there was a change from the National provident fund

scheme to the National social security scheme. This was
governed by the NSSF Act of 1997. It can be observed that
the NPF was created for the dependent workers who had a
regular income and employers who could be obliged to pay
contributions directly to the social security institutions while
the NSSF included the self employed as well, provided that
they can contribute the statutory amount.42

Factors which led to the replacement

1. Changes in the social economic and political pattern from the mid
1980’s to 1990’s. This is the time when multiparty system was
introduced in the country. It is the time when liberalisation of
economy was the main policy. Thus such market oriented policies
such as privatisation and promotion of private sector
development were becoming popular. These changes brought
new aspirations and expectations among Tanzanian working
class and society at large. As a result of these the government

41
Berghman, J . “The Resurgence of Poverty and the Struggle Against Exclusion: A new Challenge
for Social Security in Europe?” In International Spcial Security Review, No. 1 of 1997 by International
Social Security Association (ISSA), Geneva.
42
Boseert, A., Traditional and Modern Forms of Social Security in Tanzania, “An Examination of
Their Development,” University of Augsburg, 1967

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retrenched part of its workforce. For instance over 10,000 civil
servants were retrenched for the year 1995/ 6 alone.43 This
caused NPF to pay substantial amount of terminal benefits.
These changes necessitated a transformation of the national
provident fund into a social insurance scheme. Therefore the
formation of NSSF was inevitable.
2. Fragmentation of Social Security Scheme
This was evidenced by the existence of social security
institutions reporting to different parent ministries with different
operating policies. For instance, NPF reported to the ministry of
finance, and the Local Authorities Provident Fund reported to the
prime minister. This fragmentation of social security scheme
needed rectification, so as to have a comprehensive national
social security policy under which to coordinate all those systems.
3. Poor Institutional Framework
Since 1964 to 1990 benefit processing and payment functions
were centralised at the NPF headquarters. This led to
inconveniences to its members. In 1991 the system was
decentralised leading to 11 paying centres scattered through
regional office. But the members accounts were not updated in
time due to the use of external computers. This continued even
after installation of own computers owing to computer literacy.

4. Failure to meet the ILO standards

The NPF scheme was short of ILO standards for minimum social
protection.44 The standard which stipulated that, cash benefits
should be in the form of periodical payments and not lump sum
payments, the duration of which may be limited in respect of
medical care and cash benefits for sickness, maternity and
employment, but should be throughout the contingence with
regards to employment injury, old age, permanent invalidity and
survivorship, cash should replace last earnings to a prescribed
extent, the state at least should assume general responsibility for
the provision of benefits and the representatives of the
participants in the scheme as contributors and beneficiaries

43
Ref. NPF Annual Report, 30th J une, 1996, Dar es Salaam, p.6
44
ILO Convention no. 102 of 1952

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should be involved in the management of the scheme and
associated in an advisory capacity.

5. Other Reasons
Other reasons include the weaknesses of provident funds as a
means of providing protection against contingencies. Generally
they lacked principles of insurance (risk pooling) and solidarity.
The employees are dependent on income from employment, when
work is cut off they have to entirely depend on their own
contributions, risk are not shared.
Also the fund had a narrow scope of coverage as they cater for
employment sector only but with the result of the civil service
sector reform, restructuring and privatisation of parastatal
organisations and other economic hardships brought by the
liberalised economy, the trend is towards more informal sector
which calls for a wider social security scheme.
The provident fund system had no mechanism of adjusting the
lump sum paid to inflationary trends. There had not been any
categorical proposal of indexation of benefits to inflation brought
by micro-economic instability and a salary system which is not
indexed to inflation.

 Membership in these schemes is either compulsory or voluntary

membership

o Compulsory membership happens upon employment, where

an employee automatically becomes a member in a particular
scheme. This means the employee is taken to be a member in
a scheme merely because of the employment that he secures.
Examples of laws that appear to offer compulsory
memberships include the following;

 Public Service Retirement Benefits Act, 1999, under

Section 5 of this law all employees who have been
confirmed in the pensionable offices are regarded as

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members of this scheme.

 Political Service Retirement Benefit Act, 1999,

Membership to this scheme is compulsory upon
appointment to a political post. Under section 4 a leader
is defined to mean a person who has ever served or is
serving as the president, vice president, prime minister,
speaker, minister, deputy minister, deputy speaker,
Member of Parliament, regional commissioner or district
commissioner.

 National Social Security Fund Act, 1997, Membership to

this fund is compulsory to all employees employed in the
private sector or in the central government but who are
not pensionable or covered by the Parastatals Pension
Fund Act, 1978.

 The Local Authorities Provident Fund Act 2000,

membership in this Fund is compulsory to all employees
in the Local Authorities and the associated institutions
such as the employees in the local government loans
board and the employees in this Fund.

o Voluntary Membership; an employee may choose a fund or a

scheme in which to belong. However, this is only possible to
employees who are not by virtue of their employent required to
be under a particular Fund or Scheme. Some of the voluntary
schemes may be found under the following laws:

 Parastatals Pensions Fund, the period between 1978 to

2001, the membership to this scheme was compulsory
and direct only. A person could become a member on
being employed into a pensionable permanent office only.
However, following the 2001 amendments, it became
possible for a person to choose to be a member under
this scheme by his own choice.

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 Local Authorities Provident Fund, Act 2000, under this
law there is a voluntary membership and compulsory
membership as well. The compulsory membership is for
those employed by the local government however any
person who is not covered by any other scheme may
become a member in this scheme.

 The roles of the employer and employee

 The roles of an employer include making sure that their

employees are registered under the Funds, to contribute and to
remit both their contributions and the contributions of their
employees to the Funds.

 The role of an employee on the other hand is to contribute to a

particular fund in which they are registered.

 The laws governing these schemes in particular provide for

procedures of making the contributions, time for remitting the
contributions, amount to be contributed and remitted as well as
the penalty to be issued in case of non-adherence to the law or
refusal or failure to contribute or to remit the said contributions.

 The Public Service Retirement Service Act, 1999, this law

establishes a Public Service Pensions Fund. Under section 37
the sources of funds have been identified to include the
contributions from the employers and employees, funds
available from the investments of the Fund and any amount
availed to the Fund by the parliament.

o This law requires the employers to contribute to the Fund

every month. Normally, the employer shall deduct the
employee’s contribution from the salary of that particular
employee and pay the same directly to the Fund. The rate
of contribution is 5% of the employee’s salary. And an
employer is required to contribute 15% of the salary of
the employee.

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o An employer who gives false statements or false
documents intentionally, or who fails to disclose any
factor which is important in relation to the contributions
to the Fund commits a criminal offence. Also any person
who fails to pay his contributions in time or who prevents
the functioning of the officers of the Fund commits a
criminal offence as well.

 The National Social Security Fund Act, 1997 both employer and
employee have the duty of contributing the 10% of the employee’s
salary to the Fund as required under the law.

o The employer is required to remit the contributions to the

Fund at the end of every month. Delay in remitting the
contributions attracts a payment of an additional amount of
5%of the amount due as a penalty for such a delay.

 The National Health Insurance Act, 1999, under this law a fund
known as the National Health Insurance Fund is established
under section 4. It is in this Fund that all contributions to from the
members and the moneys obtained under this law are kept and
managed.

o Under section 9 the employers are required to contribute to

the Fund a sum equal to 3% of the employee’s salary and
the employee is as well required to contribute a sum equal
to 3% of his salary every month. The law gives the duty of
remitting the contributions to the Fund to the Treasury since
the employees covered here are government employees
whose salaries are paid by the Treasury.

 The Local Authorities Act, 2000, under the provisions of section 4

of this law a Fund known as the Local Authorities Provident Fund
is established.

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o The employees covered by this law are known as the

depositors while the employers are known as contributing
employers. Generally, the depositors have the duty to
deposit a sum equal to 5% of their salaries every month to
the Fund. The contributing employers on the other hand
have the duty to contribute a sum equal to 15% of the
employee’s salary to the Fund every month.

o It is a crime to furnish a false statement or false document

with an intention of evading or reducing the lawful
contributions. Failure to keep the important records
concerning the contributions and deducting a greater
amount than the one required by law is also a criminal
offence.

 Benefits and conditions

 Every scheme if different with respect to a number of the benefits,

the amount in respect of a benefit, and the conditions for their
realisation are concerned.

 The benefits the benefits under this law are given as a right to a
member and not a privilege. Include;

 The pension; this is an old age benefit availed to an employee

after retirement from employment.
o Conditions for granting of pension include the attaining
of 55 years or retirement on the grounds of sickness,
compulsory retirement for the purposes of facilitating
investment, removal for public interest, retirement from
service with consent of the president and transfer to
public service in circumstances in which he is permitted
by law or such service to retire on pension or gratuity.

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 Gratuity, this is a lump sum payment made to an employee on
retirement

o Where an employee dies while in service, the Board shall

give a certain amount of money to his legal
representative, which does not exceed either his annual
pensionable emoluments or his commuted pension
gratuity, if any, whichever is greater.

 Invalidity payments, is payable to an insured person who is

suffering from permanent invalidity, is under pensionable age,

 Survivorship payments, in cases of the death of a member who

had completed not less than 10 years in service of a
pensionable office his dependants may be granted a survivors
benefit.

 Sickness and funeral benefits, This grant is given as a

reimbursement to medical expenses and to a family member
who incurred expenses for the burial of the deceased insured
person. The amount payable is to be determined by the board
having regard to general economic conditions. It should be
noted that the funeral grant is not claimable except as
reimbursement.

 Political Service Retirement Benefit Act, 1999

 The benefits obtainable under this law include the pension,

gratuity, winding up allowance and many other benefits offered to
political servants. These benefits differ in terms of application,
the post held and the amount to be payable to a particular
member.

 The circumstances under which these benefits are granted

include retirement from a political office following the end of a
tenure of office, retirement on medical grounds, abolishment of
an office as well as death. In this law we shall only discuss the
benefits available to the president.

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 Benefits to President

 On retirement the president is entitled to the following

benefits under this law.

o Annual pension that will be payable to him every month

at the rate of 80%of the incumbent president.

o He will also be entitled to a gratuity the amount of

which is 50% of the total salaries received when in
office as a president.

o Winding up allowance the amount of which is the total

salaries accorded to the incumbent president for 24
months.

o Other benefits include the diplomatic passport, for him

and the spouse

o Health insurance for treatment in the United Republic of

Tanzania

o The service of two vehicles availed to him by the

government, a full furnished house with not less than
four rooms (self contained) together with the servant
quarter.

o Maintenance allowance for every month the amount of

which shall be equal to 80% of the salary of the
incumbent president.

o He shall also be entitled to security services to him and

his family, one personal assistant, one personal
secretary, office attendant, one cook, one laundry man,

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one laundry man, domestic servant, one gardener, two
drivers and he will also be entitled to use the VIP lounge.
45

 If the president dies while in power or after retirement but

before receiving his benefits the dependants shall be entitled
to a gratuity the amount of which is equal to the total of all
salaries which were received by the president while in
power.46 Again where a retired president dies the widow shall
be entitled to a pension of 25% of the salary of the incumbent
president.

45
S. 9 Ibid
46
S.10, Ibid

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