INTRODUCTION

DEFINITION OF KEY CONCEPTS

Employment

This refers to a set of benchmarks established by laws and regulations below which no
employment relationship should fall, i.e., it sets the basis of negotiations between the employer
and employee with regard to the rights and obligations among the parties. 1 In other words, the
law establishes the minimum terms and conditions of employment from which no employer can
abrogate or violate, except as permitted by the law.

Under s.13 of the ELRA an employment standard is meant to be any stipulation providing for the
minimum term and conditions of employment. The provisions on employment standards cover
such aspects as hours of work, remuneration, maternity leave, annual leave, responsibility leave
and sick leave.

The Objects of Employment Standards

As previously shown, employment standards stipulate the minimum terms and conditions of
employment. Thus, the objects of employment standards throughout the world include the
following:

(i) To protect the core or fundamental rights of employees due to vulnerability of

employees to oppression and exploitation by employers
(ii) To provide minimum standards that can be flexibly varied by collective agreements
or individual contracts of employment.
(iii) To recognize and take into account the diversity of modern labour market.

According to s.13 of the ELRA, employment standards in the law are not static creatures, but
they can be varied. However, these provisions can be varied or changed provided that any
alteration made should provide for better terms and conditions of employment. The ELRA

1
Rutinwa et al .,The Employment and Labour Relations Law in Tanzania: An Analysis of Labour Legislation in
Tanzania, p.58
provides that the provisions on employment standards can be improved through the following
ways:
(i) Where the employer and employee conclude a contract containing better terms and
conditions. This is done through negotiations between the employer and employee.
(ii) Where there is a collective agreement at a work place providing for various aspects of
employment. This is an agreement between the employer (employer’s association)
and the trade union representing the majority of employees at a workplace. This trade
union must have been registered and it should be recognized by the employer as a
bargaining unit. The collective agreement remains binding on the parties to it (as long
as it was duly signed and registered) until the parties conclude another agreement.

(iii) Where there is a wage determination order stipulating the minimum wage payable to
a particular sector.2This is usually done by the wage boards established under s.35 of
the Labour Institutions Act after carrying out investigation taking into account such
factors as ability of employers to carry on their businesses successfully, cost of living,
alleviation of poverty, minimum subsistence level and other factors provided by the
law.

Where the minister exempts an employer or employee from the application of specified
provisions of the law. Section 100 of the ELRA empowers the minister to exempt an employer
from the employment standards contained in Sections 19 (hours of work), 20 (night work), 23 to
25 (break in working day, daily and weekly rest periods, and public holiday, respectively), 27
(remuneration), 31 to 34 (annual leave, sick leave, maternity leave, paternity leave and
responsibility leave), 41(notice of termination), 42(severance pay) and 43 (transport to place of
recruitment). To grant the exemption, the minister must follow the following principles and
procedures:
 The employer (association) must satisfy the minister that he consulted the
employees to be affected by the exemption.
 The minister must notify the affected employees (or trade union) of the
proposed exemption by the employer, and must request them to make their
own representations.

2
This is made by the Minister under S.39 of the Labour Institutions Act 2004
  The minister must take into account the representations made by the
employees or trade union.
 The minister must strike a fair balance between the interest of the employees
and employer taking into account any applicable ILO conventions or
recommendations.
 If exemption is related to a class of employers it must be published in
Government Gazette.
 Exemption must be given in prescribed form, signed by the minister and
stating the duration of exemption.
If anyone is aggrieved by the exemption order, he may challenge it in a labour court by way of
application for review.

Type of Contracts Covered Under Employment Standard Provisions

Contract for unspecified period: These are the ones whose duration of employment is unknown,
because the parties do not specify when the contract comes to an end. Such contracts remain in
force until terminated by agreement or terminated by giving the contractual notice of termination
or if one of the parties attains retirement age. A good example of such contracts is where one is
employed on permanent and pensionable terms in the private or public sector.

Fixed term contract/specified period contract: This is available for professionals and those in
managerial positions. In the case of Mtambua Shamte and 64 Others vs Care Sanitation and
Suppliers3 it was held that a contract is considered to be of fixed term when “an agreement to
work is in respect of a fixed time or upon completion of a task”, while the contract is considered
to be of permanent term where the agreement to work is without reference to time or task as per
rule 3(4) (a) of the Code of Good Practice.

Generally speaking, it is a contract whose duration is determined at the time of concluding the
contract; and it automatically terminates upon expiry of the specified period unless it is renewed
by the parties. If after the agreed time for termination the employee remains in employment and
3
Revision No.154 of 2010; High Court of Tanzania at Dar es Salaam (Unreported)
the employer continues to pay the agreed remuneration the contract is deemed to have been
renewed. The terms of such contract will be deemed to be the same as those under the expired
contract unless the parties provide to the contrary.

Where there is reasonable expectation of renewal of a fixed contract, the employer is obliged to
give a notice of termination; otherwise the employer will be deemed to have terminated the
contract unfairly.4 But, generally the provisions on fair termination under s.35 of the ELRA do
not apply to fixed term contracts as it was held in the case of Sefue Lyimo vs A.K.Management &
Personell Services.5

Contract for a specific task: This is the one in which a person is employed to do a specific task
and upon the completion of the task, the contract is discharged. This is most exhibited in the
industrial areas to casual employees who are usually paid on daily basis 6. This contract as well
does not benefit from unfair termination provisions. Such contracts start in the morning and end
at the end of the working day, so no terminal benefits can be given including severance
allowance save for notice pay.7

The Ordinary Hours of Work

The regulation of working time is one of the most important employment standards entrenched in
legislation. Regulating hours of work is increasingly seen as a measure to protect safety and
health of employees. The first international labour instrument to regulate hours of work was the
Hours of Work (Industry) Convention No. 1 of 1919. It established the standard of “a 48 working
hours in a week” and “an average of 8 working hours per day”.

Thereafter, another instrument known as the “Hours of Work (Commerce and Offices)
Convention No.30 of 1930”, was adopted and it extended the 48 working hours per week and 8
hours per day.8 The employer and employee would agree to increase an extra one hour in a day;

4
Dar es Salaam Baptist Sec.School vs Enock Ogala; Revision No.53 of 2009, High Court of Tanzania at Dar es
Salaam
5
Revision No.230 of 2008, High Court of Tanzania-Labour Division)
6
Refer the case of Omary Mkele& 20 Others vs M/S Shipping Freight Consultant; Labour Dispute No.6 of 2008; High
Court of Tanzania at Dar es Salaam
7
2000 Industries Ltd vs Rehema Juma& 6 Others ; Labour Revision No.39/2008, High Court of Tanzania.
8
Article 2 read together with article 3 of Convention No.30 of 1930
but the maximum number of hours was 10 hours in a day. 9 This Convention extended coverage
to a large group of workers (both in the public and private) who were excluded by the first
convention. The groups were:
(i) commercial or trading establishments, including postal, telegraph and telephone
services and commercial or trading branches of any other establishment;
(ii) establishments and administrative services in which the persons employed are mainly
engaged in office work;
(iii) mixed commercial and industrial establishments, unless they are deemed to be
industrial establishments.10

However, this convention did not apply to persons employed in establishments for the treatment
or the care of the sick, infirm, destitute or mentally unfit; hotels, restaurants, boarding-houses,
clubs, cafes and other refreshment houses; and, theatres and places of public amusement, unless
otherwise such establishments are included in the list. 11 Furthermore, member states would
exempt from the application of the Convention establishments in which only members of the
employer’s family are employed; offices in which the staff is engaged in connection with the
administration of public authority; persons occupying positions of management or employed in a
confidential capacity; travelers and representatives, in so far as they carry on work outside the
establishment.12

Likewise, the Employment and Labour Relations Act, 2004 provides for the minimum and
maximum number of hours that an employee may be required to work for an employer.
Section19 (2) of the ELRA provides that an employee may work for nine hours in a day
(ordinary hours), 45 hours in a week and a maximum of six days in a week. The counting of
hours and week depends on the time and day that a person starts working, i.e., hours are
calculated from the reporting time of the employee, and the day such a person starts working.
This is to say, there is no uniformity on the determination of the hours and days provided the
employer observes the maximum limits set by the law.

9
Article 5 ibid
10
Article 1(1) ibid
11
Article 1(2) ibid
12
Article 1(3) ibid
The parties are allowed to allocate the working hours in a way to suit the employer’s business.
For instance, if the employee works for nine hours in a day then he is expected to work for five
days in a week. This means, the employee will not be required to attend at the work place the
next day since the maximum number of hours is 45 per week (i.e., 5 times 9=45). However, the
employee may wish to work for the sixth day if the employee requests for him to attend provided
there is an agreement or collective agreement as to overtime pay.13 Where an employee works
for 8 hours in a day, it is obvious that he or she will be required to work for 6 days whereby one
will attend for 5 hours in the sixth day, i.e., for five days one will have attended a total of 40
hours (8 times 5) and then the remaining five hours can be exhausted on the sixth day.

Moreover, the overtime arrangement has been limited under s.19 (3) (b) of the ELRA to 50 hours
in a four week cycle. This means that taking 50 hours divide to 4 weeks; one gets a total of 12.5
hours in a week. Furthermore, the law prohibits the employer to require an employee to work for
more than 12 hours in a day. Logically, if an ordinary working hours in a day is 9 hours and the
maximum is 12 hours, it means an employee can use the 3 hours as overtime. But, overtime
hours’ limit of 50 hours in the four weeks circle should be strictly observed. The amount payable
as overtime payment depends on the agreement between the parties; however, if there is no such
agreement then the amount payable as overtime pay shall be not less than one and one half times
the employee’s basic wage for any overtime worked.14

Furthermore, under s.21 of the ELRA, the parties may agree in writing as to compressed working
hours whereby the employee is obliged to work for the 12 hours without overtime payment.
Where there is such arrangement, the limits as to 45 hours in a week must be observed (i.e., 45
hours divide by 12=3 days and 9 hours to be worked on the fourth day). However, where there is
an agreement as to compressed working hours the overtime hours is limited to ten hours in a
week. That is to say, in a compressed working week an employee cannot work for a period
longer than 55 hours.

On the other hand, the law allows employees through a trade union to conclude an agreement
with the employer on how to allocate hours to suit the employer’s business in a year (at a given
workplace). This is known as averaging of working hours. It is where the working arrangement
13
Refer to S.19(3) (a) of the ELRA
14
Refer to S.19(5) of the ELRA
is not on a weekly basis. Averaging is a mechanism through which hours of work can be
unequally distributed between weeks, provided the average number of hours worked in a
particular cycle is not greater than the hours agreed by the parties. It allows for redistribution of
working time in a manner that may be better with the employers need for production than an
equal spread of hours between weeks. Employees benefit from his arrangement by achieving an
overall reduction in working hours, while employers benefit from having their overall wage bills
by saving on overtime pay.

Furthermore this arrangement seeks to give employers opportunity to increase production due to
the market forces, i.e., allow employer to produce to meet the demands. The condition imposed
by the law is that averaging of hours is limited to a period not more than 40 hours (ordinary
hours) of work per week calculated over the agreed period; and the overtime hours should not
exceed 10 hours per week.

On the other hand, the law treats differently work attended between 20:00 hours and before
06:00 am in which the employer is obliged to pay the employee at least 5% of that employee’s
basic wage for each hour worked at night or 5% of the overtime rate if the hours worked are
overtime hours.15 This is additional payment to the basic salary received by a particular
employee. However, not every employee is allowed to work at night. Section 20(2) of the ELRA
prevents pregnant women who are within the last two months before their expected confinement
date, unless medically certified as fit to work at night. Also, nursing mothers are not allowed
(strictly prohibited) to attend night work within two months after the delivery date or if it
certified that the mother’s and child’s health would be affected. A child below 18 years
irrespective of consent cannot work at night. Any person who has been medically certified as
unfit to do night work is also not allowed to work at night.

Lunch Hours

Section 23 of the ELRA provides that if an employee works for more than five hours
consecutively, the employer must allow a 60 minute break (one hour).The employer is not
obliged to pay an employee for that one hour except where the employer requires an employee to
15
S.20(4) of the ELRA
continue working during the 60 minute break, if it was impossible to leave work unattended or
such work could not be performed by another employee. This time may be counted as part of the
working hours or not depending on the discretion of the employer.

Exclusion on Provisions Relating to Hours of Work and Overtime Payment

The provisions on hours of work do not automatically cover all categories of employees in the
industry. The senior management employees (i.e., employees who manage other employees on
behalf of the employer and who report directly to the employer) are excluded from the
application of the provisions on hours of work. This is because the offices they hold contain
fringe benefits in form of responsibility allowance, transport allowance and so forth; therefore,
they cannot claim overtime payment.

Furthermore, the provisions on hours of work do not apply when there is an emergency or act of
God or ‘force majeure” upon which the employee will be required to work over and above the
standard hours of work. This is the reason why the law does also exclude the issue of a person
being required to work during emergence cases from forced labour.

Standards on Remuneration

Consideration for the work done in employment contract is remuneration; so any contract of
employment without a provision of remuneration is void. The term remuneration is also referred
to as wages. Wages or remuneration of an employee is protected by ILO through Protection of
Wages Convention, No.95 of 1949.16 Under this Convention a term ‘wages’ is defined to mean
remuneration or earnings, however designated or calculated, capable of being expressed in terms
of money and fixed by mutual agreement or by national laws or regulations, which are payable in
virtue of a written or unwritten contract of employment by an employer to an employed person
for work done or to be done or for services rendered or to be rendered.17

16
It entered into force on 24 September 1952
17
Article 1 of Convention No.95 of 1949
It provides, inter alia, that wages should be paid only in legal tender or in other forms such as
bank cheque, postal cheque or money order as determined by the appropriate authority. 18 It also
allows partial payment of wage in the form of allowances subject to national laws or regulations,
collective agreements or arbitration awards; but it prohibits payment of wages in form of liquor
of high alcoholic content or of noxious drugs.19 It requires the employer to pay wages directly to
the worker except as provided by law, collective agreement or arbitral awards.20

Generally, wage may be referred to as remuneration or earnings capable of being expressed in

terms of money, payable by an employer to the employed person for work done or to be done.
Section 4 of the Employment and Labour Relations Act defines remuneration as ‘the total value
of all payments, in money or in kind, made or owing to an employee arising from the
employment of that employee.’

The manner and mode of Payment of Remuneration

Section 27 of the Employment and Labour Relations Act 2004 provides that employees shall be
paid any monthly remuneration to which they are entitled during working hours on the place of
work on the agreed pay day. It means that an employer is required to pay the employee agreed
amount of money on the date specified in the contract, and it should be done at the work place.
This seems to be based on traditional mode of payment where employer pays money directly to
the employee face to face. Moreover, the use of banking system in effecting payment of
remuneration does not seem to fall within the requirement that salary be paid at the workplace.
However, such practice is allowed provided an employer gives the salary slip to an employee
showing the amount deposited in the employee’s bank account.

The basis for calculation of wages is provided under section 26 of the Act which states that
calculation of wage(s) is based on hourly, weekly or monthly pay rates as provided in the First
Schedule to the Act.

Furthermore, remuneration may be paid in cash unless the employee agrees otherwise. In such
case the remuneration may be paid by cash or by deposit into the bank account designated by the
18
Article 3 of Convention No.95 of 1949
19
Article 4 ibid
20
Article 5 ibid
employee. If made in cash or cheque the employer must pay remuneration in a sealed envelope.
Payment of remuneration must be supported by a written statement of particulars. Such payment
shall become due and payable at the end of contractual period.

Conditions for Payment of Remuneration in kind

An employer is allowed by the ELRA under s.27 (4), to pay part of remuneration in kind if such
arrangement forms customary practice or is desirable in the respective industry (establishment).
However, the employer should ensure that:
 such payment must not be in the form of alcoholic beverages or noxious drugs
 the payment must be for the personal use of the employee and his family e.g medical
benefits, housing, water facilities, transport facilities and so forth.
 The value of the articles offered must be fair and reasonable.

Deductions of Employees Wage

The ELRA takes into account the fact that an employee is not free from contingent risks
(economic risks) that may face him before the end of the month or otherwise before one receives
the monthly payment. Section 28 of the ELRA allows the employer to make deductions on
employee’s wage. The condition attached thereon is that the employer may make deduction if
permitted by a written law,a collective agreement, a wage determination or court order, and
arbitration award. Such deduction may also be effected where the employee agrees to be
deducted in cases of loss to the employer or advance payment in form of a loan. The employer is
obliged to comply with the laws on deductions; otherwise the act may amount to an offence. 21
Generally, deductions can be made under the following circumstances:

i) Where the employee causes financial loss or damage to the employer provided such
damage accrued in the course of employment, and it is associated with the employees
fault. The employer must have submitted in writing to the employee the cause,
amount of the debt to be paid subject to assessment and employee must agree to such
deductions. The Act requires the employer to give reasonable time to the employee
to challenge the cause and the amount calculated. Furthermore, the Act provides that
21
S.28(6)of the ELRA
 the amount of debt should not exceed the amount of actual loss or damage; and the
deduction should not exceed ¼ of the employee’s remuneration.
ii) Where deductions are required or permitted by the laws, collective agreements, court
orders or arbitration award. This includes payment with respect to income tax
(PAYE), social security deductions (NSSF, PSPF, GEPF, LAPF, etc), trade union
membership contributions (e.g., RAAWU, CWT, TUGHE, DACASA,etc); in case of
bankruptcy or winding up of an employer, the claims of employees relating to
remuneration which accrued in respect of the 26 weeks immediately preceding the
date on which the declaration is made, shall take precedence over all other claims.
Likewise, if there is a court order as to maintenance of the spouse or children, or any
other order directly affecting the employee’s wage, the employer will be required to
make deductions, failure of which may amount to contempt of court order.
iii) Where the employee takes a loan from the employer or financial institutions such as
banks; the employer is obliged to deduct the agreed amount and interest (if any)
according to the contract.

Note: The basis for calculation of wages is provided by the law.Section26 of the Actstates
thatcalculation of wage(s) is based on hourly, weekly or monthly pay rates as provided in the
First Schedule to the Act. (Please refer to the table for calculation of comparable wage rates
under the First Schedule of the ELRA)

Standards on Leave
This includes annual leave, maternity and paternity leave, sick leave and compassionate (family
responsibility) leave. These are statutory forms of leave. Other types of leave not provided by
law may be obtained through a collective bargaining process, contract of employment or through
the policies of the employer. Leaves provided under ELRA will only be enjoyed by employees
who have worked with the employer for more than 6 months either under one contract or several
contracts in the same year.22

Annual Leave

22
S.29 of the Employment and Labour Relations Act 2004
An employee, just like any other person, is entitled to a rest period so as to be able to rejuvenate
and continue working in a health state. Apart from daily rest periods, an employee is entitled to a
leave within a year. The obligation on the employer to grant annual leave can be traced from the
Holiday with Pay Convention No.52 of 193623 whereby a person who worked for a continuous
service for one year was entitled to an annual holiday with pay of at least six working days (or
twelve working days if a person is under sixteen years of age) excluding public and customary
holidays, and interruptions of attendance at work due to sickness.24

It was then revised in 1970 by Holidays with Pay Convention No.132 of 1970, 25 which applies to
all employed persons, with the exception of seafarers. A number of paid holiday shall not be less
than three working weeks for one year of service (as determined by the proper authority), subject
to improvements by state parties, but it shall not include public and customary holidays. 26 The
length of a period for qualifying to take the paid annual holidays shall be determined by the
competent authority, but shall not exceed six months.27

The labour law in Tanzania, under s.31 of the ELRA provides that an employee who has worked
with the employer for consecutive 6 months is entitled to 28 days paid leave including public
holidays. The leave circle for purposes of annual leave is 12 months. The employees are bound
to take their annual leave. They cannot exchange it for remuneration.28However, this is restricted
to the employer and not against other employers. It follows one may work for another employer
during the annual leave. This is not regarded as an offence since the person voluntarily assumes
the risk.

If it happens that annual leave is not taken due to employer’s operational requirements, then the
leave must be taken 6 months after the end of the leave cycle or 12 months after the end of leave
cycle provided the employee consents.29

23
It entered into force on 22 September 1939
24
Article 2 of Convention No.52 of 1936
25
It entered into force on 30 June 1973
26
Article 3and 6 ibid
27
Article 5 ibid
28
S.31(6) and (7) of the ELRA
29
S.31(3) ibid
Annual leave must be applied for by employee and granted at the discretion of employer
depending on employer’s business.

Further, an employee will be paid money on pro rata basis where the contract of employment is
terminated. On the other hand, the employer is allowed to reduce the number of days for
purposes of annual leave, if at all an employee had been granted occasional leave and such leave
was remunerated.30 That is to say, if the employer granted unpaid leave as requested by the
employee, then he cannot reduce the days provided by the law.

Sick Leave
This is provided for under s.32 of the ELRA. The leave circle for sick leave is 36 months. An
employee is entitled to a total of 126 days of paid sick leave in 36 months circle. The first 63
days will be on full pay and the remaining 63 days will be on half pay.

Where a person remains sick for a period longer than 126 days, then the employer has discretion
to continue retaining his or her service. In most cases, such a person is entitled to invalidity
benefits payable to a person who becomes incapable for illness from the social security funds
such as NSSF, PSPF, LAPF, GEPF, as the case may be. Likewise, the employer may terminate
the contract on the ground of incapacity but he should comply with the substantive and
procedural rules under s.37 of the ELRAread together with rules 19 and 21 of the Code of Good
Practice Rules 2007 {GN.No.42 of 2007}

Section 32 (3) of the ELRAprovides that an employer may refuse to grant sick leave if the
employee fails to produce medical certificate or if the employee is paid sickness benefits under
any other fund.

Maternity Leave
Maternity leave is defined as rest days given to an employee who is an expectant woman or a
lactating mother as the case may be.31 It is particularly given to protect the life of the mother and

30
S.31(2) ELRA
31
Rutinwa et al ‘ The New Employment and Labour Relations Law in Tanzania p.84
the child before and after giving birth. The government of Tanzania ratified several international
instruments seeking to guarantee rights of pregnant women and infants. These include:
(i) Maternity Protection Convention (Revised), No.103 of 1952,32 which applies to
women employed in industrial undertakings and in non-industrial and agricultural
occupations, including women wage earners working at home.33 It provides that a
woman (i.e., a female person, irrespective of age, nationality, race or creed, whether
married or unmarried), on the production of a medical certificate stating the presumed
date of her confinement, may be entitled to a period of maternity leave of at least
twelve weeks, including a period of compulsory leave after confinement not less than
six weeks. The competent authority may prescribe for an additional leave in case of
illness arising out of pregnancy.34 Other protection of a mother or woman who has
taken maternity leave include:
(a) Protection against dismissal by the employer 35
(b) Nursing period/time during working hours as determined by appropriate
authority or agreement.36

Furthermore, the woman will be entitled to receive cash and medical benefits (pre-
natal, confinement and post natal care) by qualified midwives or medical practitioners
as well as hospitalization; freedom of choice of a doctor and freedom of choice
between a public and private hospital.37

(ii) The Night Work Convention No.171 of 1990,38defines night work as all work which is
performed during a period of not less than seven consecutive hours, including the
interval from midnight to 5.00 am, to be determined by a competent authority. 39 It
applies to all employed persons except those employed in agriculture, stock raising,

32
It entered into force on 7 September 1955
33
Article 1 of Convention No.103 of 1952
34
Article 3 ibid
35
Article 6 ibid
36
Article 5 ibid
37
Article 4 ibid
38
It entered into force 4th Jan 1995)
39
Article 1 of Convention No.171 of 1990
 fishing, maritime, transport and inland navigation. 40 The Convention provides the
following safeguards:
(a) right to undergo a health assessment before taking up an assignment as a night
worker and time thereafter;41
(b) protection against dismissal for employees certified as unfit, and being given an
alternative job;42
(c) protection of pregnant mothers and nursing mothers from attending night work,
unless where it is medically certified that one is fit for such duties;43
(d) Providing compensation for night workers in the form of pay; and appropriate
social services for workers performing night work.44

Likewise, the ELRA contains provisions seeking to guarantee maternity leave. As a matter of
minimum standard, an employee is entitled to a paid 84 days leave or 100 days leave in case of
multiple births. The conditions for an employee to get maternity leave are three: one, the
employee must have worked for six months or more for the same employer; two, the employee
must not have taken maternity leave within 36 months (3 years) or exhausted the four term
period; and, the employee must give a notice of intention to take maternity leave to an employer
three months before the expected date of confinement.45

If the child dies in the first year of birth, the right to maternity leave revives. The employer is
prohibited from treating maternity leave as annual leave. A person will be entitled to take her
annual leave if it accrues but subject to consent of the employer. Practice shows that employers
usually deny employees who come from maternity leave to subsequently take annual leave, but
allow them to take the same within six months. This conforms to the requirement of the laws.

An expectant mother is allowed to apply for maternity leave four weeks before the expected
confinement date or on an earlier date is so required by a certified medical practitioner.
However, the Act does not compel the expectant mother to stop working during the four weeks.

40
Article 2(1) ibid
41
Article 4 ibid
42
Article 6 ibid
43
Article 7 ibid
44
Articles 8 and 9 ibid
45
Refer to Ss.33(1), 29(2) and 30 (b)(ii) of the ELRA
Thus, to such person who proceeds to work until the birth date, the leave accrues soon after the
delivery.

The Act further prohibits a lactating mother (woman) to resume work within six weeks after the
birth of the child, except where a medical practitioner certifies that she is fit to work. Likewise,
pregnant and lactating mothers are prohibited to work in hazardous places. Employers are urged
to give such mothers alternative employment. Furthermore, the Act does prevent the employer to
require a pregnant employee to attend night work two months before the expected date of
confinement (unless medically certified as fit for work), and two months after birth of the child
(strictly not allowed).46

Paternity Leave

Unlike mothers, a father of a child is entitled to paternity leave of at least 3 days, which should
be taken within seven days of the birth of the child. This is to ensure that the father provides for
the family during the first days of the birth. Indeed where a mother delivers by cesarean section,
the three days seem to be inadequate.

The only condition for entitlement of this leave is for one to prove that he is a father of the child
(biological father).47 One may prove paternity by presenting documents or other evidence
showing/proving the paternity. The law does not state that such a child should have been born
within wedlock. This seems to take into account the nature of the African societies which were
and still are traditionally polygamous. However, the paid paternity leave is calculated on the
same basis of 36 months. The 3 days granted to an employee is the total number of days
regardless of children the employee may have in that circle. 48Likewise, this tries to accommodate
the family planning objective within the Act. Similarly, where an employee has more than one
birth, the employer has discretion to grant unpaid leave or deny the same. It is a matter to be
addressed through agreement by the parties.

Compassionate Leave

46
Refer to S.20 of the ELRA
47
Section 34(1)(a) of the ELRA
48
Section 34(3) (a) of the ELRA
This type of leave is covered under s.34 (1) (b) of the ELRA. It is a leave granted upon
occurrence of specified events, namely: the employee’s child, employee’s spouse, parent,
grandparent, grandchild or sibling falls sick or dies. It is limited to four days within the leave
circle; however, the employer and employee may agree as to better terms. In any case, a person
will be entitled to unpaid leave if the leave taken for the specified reasons does exceed the
statutory period of four days.

Challenges Facing the Provision of Labour Standards to Employees in Tanzania

CONCLUSION
RECOMMENDATIONS