OLW 311 – Module 1

Nature and Development of Labour Law in Tanzania

Introduction

This module presents the general background of the course. It elucidates the term labour

law and its underlying essentials. The historical part of labour law is also covered. The

module unveils the position of labour law in various periods: pre colonial, during colonial,

after independence and the current position. The aim is to equip learners with preliminary

information regarding labour law in Tanzania.

The module is therefore divided into three lectures:

- Lecture 1: Introduction to Labour Law

- Lecture 2: Evolution of Labour Law in Tanzania

- Lecture 3: Labour Law after Independence

 Learning Objectives

At the end of the module, learners should be able to:

 Describe labour law

 Explain the rationale of studying this course

 Analyze development of labour law in Tanzania in different epochs.

 Understand the current labour laws in comparison with the previous labour laws.

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 Lecture 1

Introduction to Labour Law

1.1. Introduction

Being the first lecture in the course, you will be provided with the general preliminary

information about the course but specifically on the concept of labour law. You will learn

the meaning of labour law, sources of labour law, the importance of labour law and the

basic features of labour law.

 Learning Objectives

At the end of the lecture, learners should be able to:

 Define labour law

 Describe the sources of labour law

 Identify various statutes of labour law

 Understand the importance of labour law

1.2. Meaning of Labour Law

Labour law can be defined to mean the law that consists of rules that govern employment

relationship. In broader meaning labour law can be defined as a normative framework or

the existence and operation of all institutions of the labour market i.e. trade unions,

employers associations, business enterprises and the state. Labour law is concerned with

how employment and labour relations are constituted and governed.

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Labour law basically regulates employer-employee relationship by providing legal

framework for effective and fair employment. The scope of labour law extends from the

individual to the collective, from the contract of employment to relations between the

institutions of organized labour and capital and to the conduct and resolution of conflicts

between them. However, the government intervenes in the relationship. The government

enacts labour laws in order to create harmony in the relationship. This constitutes the so

called ‘tripartite’ aspect of labour laws.

1.3. Objectives of Labour Law

The labour law is intended to meet the following objectives:

- To promote economic development through economic efficiency, productivity and

social justice.

- To provide the legal framework for effective and fair employment relations and

minimum standards regarding conditions of work.

- To provide a framework for voluntary collective bargaining.

- To provide a framework for the resolution of disputes by mediation, arbitration, and

adjudication.

- To implement the rights of workers and give effect to the provisions of the

constitution in relation to employment and labour relations and conditions of work.

1.4. Sources of Labour Law

There are various places where labour laws can be found. The numerous sources range from

legal to non-legal. It is commonly argued that legislation is the main source of labour law.

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However, this is not always supportive in the modern workplace environment. The trend

shows that labour law is still largely generated from within the workplace through workplace

practices and employment contracts; collective agreements often form part of the rules

governing the employment relationship alongside with other sources.

In short, the common sources of labour law are:

- Constitution of the United Republic of Tanzania, first, as a supreme law from which

all other laws, including labour law, derives their validity e.g. article 4(4); and

Constitution protects labour rights as contained in the bill of rights e.g. articles 22

and 23

- Legislation (principal and subsidiary). E.g. The Employment and Labour Relations Act

No. 6 of 2004 and the Labour institutions Act No. 7 of 2004.

- Case laws – decisions from the authoritative courts (High court and court of appeal)

relevant to labour law.

- Received laws as established under section 2(3) of the Judicature and Application of

Laws Act.

- International law: there is no doubt that International Instruments is one of the

sources of labour law in Tanzania. It comprises of the Conventions and

Recommendations adopted mainly under the auspices of ILO as a specialized organ

of UNO dealing with labour matters and seldom under the regional cooperation such

as AU. The role of international instruments is outright evident in the contemporary

labour law. For instance the ILO principles such as abolition of forced labour, non-

discrimination, equal remuneration, minimum age, abolition of child labour, freedom

of association etc as contained in the labour statutes.

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In this regards, it is useful to emphasize the peculiarities of the labour law. Unlike other laws,

labour law applies only to employment matters that concerns employer-employee

relationship. It has numerous non-legal sources to regulate the relationship as stated earlier.

Labour law also has special procedures and institutions for resolution of labour disputes.

1.5. Conclusion

This lecture has exposed you to the subject matter of labour law. At this end, you can define

the term labour law and explain all its underlying features. Furthermore, you can distinguish

labour law from other branches of law. In the coming lecture, you will learn about the

historical background of labour law.

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 Lecture 2

Evolution of Labour Law in Tanzania

2.1. Introduction

Being part to module one, this lecture is a continuation of lecture one. In the previous

lecture, you have been exposed to the term labour law. In this lecture we will dwell on the

historical background of labour law. The lecture focuses on the genesis of labour law

globally and its emergence in Tanzania as evident during the colonial era as well as the

position immediately after independence.

 Learning Objectives

At the end of the lecture, you should be able to:

 Explain the origin of labour law.

 Identify the labour laws passed during the colonial era.

 Describe the characteristics of labour law during the colonial era.

2.2. Labour law in Early Societies

It would be a mistake to consider labour legislation as a completely new legal discipline.

Ever since, one man has worked for another without belonging to his family. There have

been legal norms for this relationship. It is true that this labour relation has not always been

governed by rules of private law, nor always by the principle of equality between the worker

and his master. Thus, in ancient times, labour was furnished by slaves who were the

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property of their masters. The peasants of the Middle Ages were subject to forced labour

for the lords of the manor, a consequence of their social status that was determined by

public law.

Certain authors insist upon the fact that, although there are no labour relations without

legal norms applicable to them, ancient labour law did not have the special character of its

modern counterpart, which is like a body of rules to protect those who perform work in the

service of somebody else. However, the urge of the employer to abuse his "position of

power" does not date from today. In ancient Greece as well as in Imperial Rome there were

laws designed to protect the slave labourers against the unscrupulous masters. Moreover, in

the Middle Ages we find detailed regulations dealing with "dependent" labourers. These

rules, however, were rarely made by government, whether provincial or municipal. They

were established by the guilds (the word ‘guild’ refers to a medieval association of

merchants or craftsmen).

The guild, in virtue of its power over its members, enacted very strict norms concerning

recruiting, training, wages, treatment, etc. of the workers (apprentices, journeymen, etc.).

However, as for the few administrative regulations in respect of certain trades and industrial

establishments, these guild statutes were not enacted solely in the interest of the workmen.

Their essential purpose was to restrict competition between the "entrepreneurs" and to

achieve prosperity for the trade or craft, as well as for the city and the whole of the country.

2.3. Modern Labour Law

The modern labour law emerged with the industrial revolution. It was birthed as a result of

the dissatisfaction of the working class (the proletariat) which resulted into revolts in 17th

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century Europe but became organized in the 19th century. Causes of the revolt were

nothing but increasing gap between the wealthy and the poor, declining incomes of the

poor, rising inflation and taxation, famine, plagues and war, and religious backlashes.

The development of modern labour legislation is largely due to the initiative of trade-

unions, and sometimes also has been the result of the pressure which they put upon

employers and governments. The strong bargaining power of unions and associations freely

created by workers or employers of their own volition has done away with the weak

bargaining position of the individual; it secures financial and social benefits which an

individual would have found difficult to attain by himself.

2.4. Labour law in Tanzania

The present labour law in Tanzania is tied to the political and economic history of the

country. It emerged with the working class during the colonial era. The colonialists

introduced labour laws to enhance the colonial economy which was exploitative in nature.

The laws meant to discipline the working class which mostly was the natives. This justifies

the fact that there was a very limited labour relations law during the colonial era.

The colonial economy created the need of working class for the settler agricultural sector.

To easy the recruitment process, coercive methods such as land alienation, forced labour,

taxation was introduced to enhance the supply of cheap wage labour. In this case, the

colonial masters passed Ordinances to regulate the relationship between the wage labour

classes. Yet, it is registered that British colonial rule had a profound contribution in the

development of labour law in Tanzania over German.

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2.5. Labour law during the German colonial era

The Germans enacted the following ordinances:

 the House and Poll Tax Ordinance of 1912 (forced natives to sell their labour in order

to get cash for paying tax)

 the Labour Recruiting Ordinance (state to actively and directly participate in the

recruitment of workers)

 the Legal Status of Native Labourers Ordinance (enforcement of employment

contract via criminal sanctions)

2.6. Labour Law during the British Colonial Era

The British period maintained similar labour law of German system of using coercive

methods to create and maintain wage class.

Pieces of Legislation enacted by the British were under two phases. 1 st phase was before

WW1 with the following labour ordinances:

 the Involuntary Servitude (Abolition) Ordinance, 1922 (prohibited forced labour)

 Native Authorities Ordinance No 18, 1926 (indirectly allowed forced labour by native

authority to requisite mandatory communal labour & tribal turnouts)

 Hut and Poll Tax Ordinance No. 12, 1922 and House Tax Ordinance No 26, 1926

(forced labour through tax-defaulters and conscription)

 Master and Native Servants Ordinance, 1926 (the earliest legislation dealing with

employment standards)

 Employment of Women Ordinance, 1938

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  Trade Union Ordinance of 1932 (regulate (limit) labour relations in the absence of

trade unions at that time)

The 1st phase was generally characterized by semi-permanent labour force with a limited

labour relations law.

In the 2nd phase (after WW2) a flood of legislation with different themes was enacted.

 the Employment Ordinance of 1956 (employment standards)

 the Factories Ordinance of 1950 (employment standards)

 the Workmen Compensation Ordinance, 1948 (employment standards)

 Trade Dispute (Arbitration and Enquiry) Ordinance, 1947 (collective labour law)

 Trade Unions Ordinance, 1956 (enacted to give effect to the Britain’s ‘voluntarist’

system).

In spite of the voluntarist system, the colonial government intervened industrial relations by

adoption of a labour law policy which preferred craft over industrial unions; introduced

‘joint consultation model’ to exclude unions in dispute resolution process.

2.7. Summary

We have learnt that labour law as known today has a long history but, in Tanzania, it

emerged with colonialism. We have also noted that the colonialists enacted the ordinances

to regulate the wage class. Largely the ordinances were in favour of the colonialists and to

the detriment of the working class who substantially were the natives. We have further

learnt that the collective rights and trade unions were much discouraged in the colonial law.

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 Lecture 3

Tanzanian Labour Law after Independence

3.1. Introduction

Labour laws in Tanzania are largely a reflection of our colonial heritage. By virtue of

this, many principles of British labour law featured prominently in our labour

statutes. However, the various social, economic and political reforms in Tanzania

since independence have resulted into many changes of the labour laws. This lecture,

therefore, navigates on the labour laws since independence up to the current

position.

 Learning objectives

At the end of this lecture, you should be able to:

- Understand the evolution of labour law in Tanzania.

- State changes of labour law since independence.

- Delineate factors that influenced enactment of the current labour law.

- Explain the current labour law.

- Describe the list of statutes that regulate labour law in Tanzania.

3.2. Labour Law after Independence

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Labour law after independence can be divided into four periods: immediately after

independence; Arusha Declaration; the period of 1980’s; and the current period. Throughout

the periods, a myriad of labour statutes enacted along with the inherited English laws.

3.2.1. Labour Law at the Independence Period

Labour law at the independence period was characterized by two fundamental features:

adoption of the colonial labour laws and enactment of new labour laws.

An independent government inherited a considerable number of labour laws from the

British colonial government. The colonial laws adopted were such as the Employment

Ordinance, Cap. 366 and the Regulation of Wages and Terms of Employment Ordinance, Cap

100.

The new labour statutes were also enacted. Initially the laws aimed to achieve rapid

economic development and later to accommodate a socialist economy. On employment

standards, legislation enacted to improve industrial democracy, working conditions and

benefits of employees: the Security of Employment Act No 62, 1964; the Severance

Allowance Act No 57, 1967; the National Provident Fund Act No 34, 1964.

With regard to collective labour law, statutes enacted to eliminate strikes and solve

collective disputes: the Trade Union Ordinance (Amendment) Act No 51, 1962; Trade

Disputes (Settlement) Act No. 43 1962; the Civil Service (Negotiating Machinery) Act No 52,

1962; the National Union of Tanganyika (Establishment) Act, No 18 1964 (referred to as ‘the

NUTA Act’)

3.2.2. 1967 and after

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Adoption of Arusha declaration shifted the country from being capitalist to socialist.

Nationalization of all major means of production was done and the government turned to

be the sole investor.

In this era, the main characteristic of labour law was over dependency on state and

legislation in addressing all labour issues. The income policy was adopted to control wage

increases and the Permanent Labour Tribunal Act of 1967 was enacted to repeal and replace

the 1962 Act.

All aspects of collective bargaining up to the stage of impasse was regulated by the National

Union of Tanzanian Workers under the NUTA Act. In 1979, the NUTA Act was also repealed

and replaced by the Jumuiya ya Wafanyakazi Act. The latter disestablished NUTA and

established JUWATA as the sole trade union representing all workers in Tanzania.

3.2.3. Economic liberalization period

From the mid 1980s Tanzania underwent economic reforms which shifted from a planned to

a market oriented economy. A number of statutes were enacted to divorce the socialism

policy and operationalize free labour market. The statutes mainly considered the aspect of

labour organization and trade disputes as follows:

 Organization of Tanzania Trade Unions Act, 1993 (deregistered JUWATA)

 Trade Unions Act, 1998 (repealed and replaced the OTTU Act)

 Permanent Labour Tribunal (Amendment) Act, 1990

 The Industrial Court (Amendment) Act, 1993

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Yet, the laws were seen to be inadequate in responding to the changing market conditions

not only in the regional and global economy but also within the domestic economy. While

globalization posed external influence on the labour law reformation, the framework of the

laws was pointed to be characterized with the following weaknesses:

- The laws regulating employment standards were too many and old, some date back

to colonial times and were based on the out-moded concept of master-servant

(manamba system).

- Dispute resolution procedures were lengthy and complex. In some cases the Minister

was ultimately responsible for deciding disputes involving termination of

employment.

- There was a confusion of roles by labour officers. On the one hand, they were

required to conduct labour inspections and investigations and, where necessary,

prosecute employers in courts of law. On the other, they were required to chair

conciliation boards and give decisions which are binding on employers. In such cases,

their neutrality was sometimes doubted.

- The legislation did not permit free collective bargaining. Voluntary and negotiated

agreements were to be registered by the Industrial Court of Tanzania before they

became effective.

- Although provision was made for strikes and lock-outs in practice, strikes and lock-

outs were not permitted. The procedure for staging a strike or lock-out was lengthy

and cumbersome. As a result, dissatisfied employees ended up locking out or locking

in their managers if there was an unresolved dispute.

- The industrial relations system was weak and bureaucratic incapable of adapting to

the demands of a free market.

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 - Some legislation was incompatible with the relevant ILO standards for example,

senior employees in the Civil service did not enjoy some of the core rights e.g. the

right to form and join trade unions.

As a result the process of labour law reforms in Tanzania began in October, 2001 when the

Minister for Labour, Youths Development and Sports appointed a Task Force chaired by

Honourable Mr. Justice Mrosso of the Court Appeal of Tanzania to review labour market

policies, labour laws and institutions and to make recommendations to the Minister. In

particular, the Task Force was required to look into the following main areas of labour laws:

employment law; labour relations law; dispute prevention and settlement machinery; the

legal structures and regulatory framework; occupational health and safety; workers`

compensation; and employment promotion.

Recommendations were drawn by the Task Force after consultations with stake holders in

the labour sector. Hence, the Employment and Labour Relations Act, 2004 (ELRA) and the

Labour Institutions Act, 2004 (LIA) were enacted to promote fundamental workers rights

and employment standards in compliance with International Labour Standards.

3.3. New Labour Laws

The major statutes that currently regulate labour matters in Tanzania are the Employment

and Labour Relations Act and the Labour Institutions Act of 2004. The two statutes work

together. While the latter establishes the necessary organs, provides for the appointment of

staff, vests them with jurisdiction and declares their functions and delimits their powers; the

former promulgates substance law which is supposed to be administered by the said organs.

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The provisions of the new labour laws put in place policies and laws and regulatory

structures which promote good governance, poverty reduction, sound labour relations,

labour productivity, job creation and employment promotion.

The new labour legislation has entrenched in its provisions the core labour rights together

with the employment standards. It also provides a framework for collective bargaining that

permits employers, employers’ associations and trade unions to develop their own

frameworks. Besides, the new law regulates the right to strike and the use of lockout in

resolving labour disputes. Further, the new law promotes mediation as a means for

resolving labour disputes. Arbitration would be used as an alternative to adjudication.

Equally important, prevention of disputes would be promoted by the publication of codes of

good conduct, administrative guidelines and model procedures and agreements by the

Minister in consultation with the Labour Economic and Social Council, which is one of the

new labour institutions established to replace the current Labour Advisory Board.

3.4. Summary

In this lecture we have analyzed the labour laws from the time of independence up to the

contemporary position. We have learnt that political and economic contexts have a great

role in shaping the development of labour law in Tanzania. We have further learnt that

currently we have two main labour statutes in Tanzania mainland: the Employment and

Labour Relations Act and the Labour Institutions Act.

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