Labour Law Notes (Uwesu JR) 2

Moshi Co-operative University
From the SelectedWorks of MWAKISIKI MWAKISIKI
Summer April 9, 2019
THE LAW ON EMPLOYMENT AND

LABOUR RELATIONS IN TANZANIA: A
COMPREHENSIVE STUDENT TRAINING
MANUAL
MWAKISIKI MWAKISIKI, Moshi Co-operative University
Available at: https://works.bepress.com/mwakisiki-mwakisiki/37/

Prepared by Tsar Mwakisiki Mwakisiki Edwards (Master of the Rolls)
MOSHI CO-OPERATIVE UNIVERSITY
(MOCU)
THE LAW ON EMPLOYMENT AND LABOUR RELATIONS IN

TANZANIA
COMPREHENSIVE STUDENT TRAINING MANUAL
By
Tsar MWAKISIKI MWAKISIKI EDWARDS
(Master of the Rolls)
Dated this 9th day of April 2019
Mwakisiki, M.E (2019). The Law on Employment and Labour Relations in Tanzania. A
Comprehensive Student Training Manual. Moshi Cooperative University: Moshi Tanzania
“All labour that uplifts humanity has dignity and importance and should be undertaken with
painstaking excellence”.
Martin Luther King, Jr
CONTACTS: +255 757 119 205 or +255 719 634 862: E-mail: Mwakeyeddy@gmail.com
PREFACE
The Law on Employment and Labour Relation In Tanzania: A Comprehensive Student Training Manual-2019
i
“This Training Manual tries to give some insights on the Labour and Employment Relations topics
relating to among others; Fundamental rights and protection, Employment Standards, Freedom of
Associations, Organizational Rights, Trade unions and Employers Association, Collective Bargaining
and Agreement, Strikes and Lock-outs, Dispute Resolution Mechanisms and Machinery, Workers
Compensation, Employment for non-citizens and Social Security System in Tanzania.
The overall aim of this study manual, is therefore, to provide the reader with analysis of theories,
practice and issues including problems emanating from interaction of employees, employers, trade
unions and government on regular basis, from Tanzania and from other jurisdictions, which are very
useful in not only understanding the concepts, but also guiding the practitioners in handling prevailing
workplace cases and issues like negotiations pending strikes, Lockouts and Collective Bargaining and
Agreements just to mention a few.
I understand that it’s difficult to cover each and everything in a short publication like this considering
the vastness of the subject at hand but undoubtedly I have used my best endeavour to at least
underscore all the essentials that an average labour law student is required to grasp” [All mistakes
committed in this publication remains Mine]
ii
ACKNOWLEDGMENT
I am deeply indebted to express my sincere and humble thanksgiving to any person who has
contributed to their best level for ensuring the production and publication of this manual
possible. I shall be devoid of thanksgiving if I cannot thank all the lecturers in department of
law at Moshi Cooperative University for imparting knowledge and shaping my way of
thinking. The same is extended to my begotten parents Mr. & Mrs. MWAKISIKI for their
love and support. May Almighty, God bless them abundantly.
iii
LIST OF STATUTES
The Constitution of United Republic of Tanzania of 1977 as amended from time to time [Cap
2 RE 2002];
Employment and Labour Relation Act 2004, Act No. 6 of 2007;
Labour Institution Act 2004, Act No 7 of 2004; Occupational Health and Safety Act, Act No.
5 of 2003;
Workers Compensation Act [Cap 263 R.E 2015];
Social Security (Regulatory Authority) Act [Cap 135 R.E 2015];
Non-Citizens (Employment Regulation) Act, 2015;
The Public Service Social Security Fund Act 2018.
SUBSIDIARY LEGISLATION
Employment and labour relations (Code of Good Practice) Rules, 2007, GN. No.42 of 2007;
The Employment and Labour Relations (General) Regulations 2017 (GN 47 of 2017); Labour
Institutions (General) Regulations 2017 (GN 45 of 2017);
High Court of the United Republic of Tanzania Labour Court (Labour Division) (Zonal
Centres) (Establishment) Rules (2010), GN No. 209 of 11 June 2010;
Labour Institutions (Regulation of Wages and Terms of Employment) Order (2007), GN. No.
223 of 16th November 2007.
Labour Institutions (Mediation and Arbitration) Rules GN. No. 64 of 2007;
Labour Institutions (Mediation and Arbitration Guidelines) Rules GN No. 67 of 2007;
Labour Institution Act (Ethics and Code of Conduct for Mediators and Arbitrators) Rules,
GN. No. 66 of 2007 dated 23rd March 2007;
Public Service Regulations (2003); Regulation of Wages and Terms of Employment Order
(2010), GN No. 172 of 30th April 2010.
iv
Non-Citizens (Employment Regulations) Regulation, 2016;
The Labour Institutions (Regulation of Wages and Terms of Employment) Order, 2013 GN
No. 196 28/06/2013;
The Public Service Social Security Fund (General) Regulations, 2018 GN No. 466 published
on 17/08/2018;
Social Security Schemes (Benefits) Regulations, 2018, GN. No. 467 published on
17/08/2018.
v
TABLE OF CONTENTS
CHAPTER ONE: .................................................................................................................................. 1
INTRODUCTION TO LABOUR LAW ............................................................................................. 1
Meaning of Labour Law ......................................................................................................................... 1
Labour relations defined ......................................................................................................................... 1
Scope of Labour law ............................................................................................................................... 1
Operation of Labour laws ....................................................................................................................... 1
Significance of labour law ...................................................................................................................... 2
CLASSIFICATIONS OF LABOUR LAW ............................................................................................ 2
Substantive Law ...................................................................................................................................... 2
Procedural Law ....................................................................................................................................... 2
SOURCES OF LABOUR LAW ............................................................................................................. 2
CONSTITUTION ................................................................................................................................... 2
Constitution as the source of Labour Law .............................................................................................. 2
LEGISLATIONS .................................................................................................................................... 3
Employment and Labour Relation Act, 2004 (hereinafter referred to as “ELRA”) ............................... 4
Objectives of the Act .............................................................................................................................. 4
The Labour Institution Act, 2004 (hereinafter referred to as “LIA”)...................................................... 4
Subsidiary Legislations governing Labour matters................................................................................. 5
Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 ................... 5
The Employment and Labour Relations (General) Regulations 2017 (GN 47 2017) ............................. 5
Labour Institutions (General) Regulations 2017 (GN 45 2017) ............................................................. 6
LAW OF CONTRACT ........................................................................................................................... 7
PRECEDENT ......................................................................................................................................... 7
RECEIVED LAWS ................................................................................................................................ 7
INTERNATIONAL INSTRUMENTS ................................................................................................... 7
ILO Instruments ...................................................................................................................................... 7
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) .............. 8
Right to Organize and Collective Bargaining Convention, 1949 (No. 98) ............................................. 9
Forced Labour Convention, 1930 (No. 29) ........................................................................................... 10
Abolition of Forced Labour Convention, 1957 (No. 105) .................................................................... 12
Discrimination (Employment and Occupation) Convention, 1958 (No. 111) ...................................... 12
Equal Remuneration Convention, 1951 (No. 100)................................................................................ 13
Minimum Age Convention, 1973 (No. 138) ......................................................................................... 13
Worst Forms of Child Labour Convention, 1999 (No. 182) ................................................................. 14
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WRITINGS OF PROMINENT JURISTS ............................................................................................ 14

The Security of Employment Act No. 62 of 1964 Cap 387 .................................................................. 16
The Industrial Court of Tanzania Act No. 41 of 1967 Cap 60 (The Permanent Labour Tribunal Act) 17
Trade Union Act No.10 of 1998 Cap 244 ............................................................................................. 17
Severance Allowance Act No. 57 1962 Cap 386 .................................................................................. 17
PITFALLS UNDER OLD LABOUR LAW REGIME ......................................................................... 17
BACKGROUND TO AND PROCESS OF LABOUR LAW REFORMS ........................................... 18
Process of Reform in Tanzania ............................................................................................................. 18
GROUNDS FOR REFORM ................................................................................................................. 18
EXTERNAL FACTORS ...................................................................................................................... 19
Globalisation ......................................................................................................................................... 19
Policy changes-from Planned to Market Economy............................................................................... 19
Regional and Sub-regional Development ............................................................................................. 19
De-linking Trade Unions From the Ruling Party.................................................................................. 19
INTERNAL FACTORS........................................................................................................................ 19
CHAPTER TWO: ............................................................................................................................... 21
FUNDAMENTAL RIGHTS AND PROTECTION ......................................................................... 21
Introduction ........................................................................................................................................... 21
PROHIBITION OF CHILD LABOUR ................................................................................................ 21
Who is a child?...................................................................................................................................... 21
Rule against child employment ............................................................................................................. 22
Prohibition of Child Labour under the Child Act, (No.21) of 2009 ..................................................... 23
Prohibition of child labour under The Employment and Labour Relations (General) Regulations 2017
(GN 47 2017) ........................................................................................................................................ 25
Circumstances permitted to employ a child under the Regulation........................................................ 25
Contract of employment for the child ................................................................................................... 26
PROHIBITION OF FORCED LABOUR ............................................................................................. 26
PROHIBITION OF DISCRIMINATION AT WORK PLACE ............................................................ 27
Introduction ........................................................................................................................................... 27
Prohibition of discrimination in trade unions and employer association .............................................. 30
Recourse against discrimination at work place ..................................................................................... 30
FREEDOM OF ASSOCIATION .......................................................................................................... 31
Introduction ........................................................................................................................................... 31
CHAPTER THREE:........................................................................................................................... 34
EMPLOYMENT STANDARDS ........................................................................................................ 34
Employment Standards defined ............................................................................................................ 34
Objectives of employment standards .................................................................................................... 34
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Employment defined ............................................................................................................................. 35

An Employee ........................................................................................................................................ 35
Presumption as to who is employee ...................................................................................................... 35
The Meaning of Employer .................................................................................................................... 36
EMPLOYMENT CONTRACT ............................................................................................................ 36
Types of employment contract.............................................................................................................. 37
Contract for unspecified time ................................................................................................................ 37
Contract for specific time ...................................................................................................................... 37
Contract for specific task ...................................................................................................................... 37
CONTENT OF EMPLOYMENT CONTRACT................................................................................... 38
Fixed Term Contracts ........................................................................................................................... 38
DISTINCTION BETWEEN CONTRACT OF SERVICE & CONTRACT FOR SERVICE .............. 39
The Control test; ................................................................................................................................... 40
The Organization Test; ......................................................................................................................... 41
Allocation of financial risk/the economic reality test/the multiple tests: .............................................. 42
The 280 days rule;................................................................................................................................. 43
HOURS OF WORK .............................................................................................................................. 43
Introduction ........................................................................................................................................... 43
Hours of work under the ELRA ............................................................................................................ 43
Break in working day ............................................................................................................................ 45
Daily and weekly rest periods ............................................................................................................... 45
Work on public holidays ....................................................................................................................... 46
NIGHT WORKS................................................................................................................................... 46
Prohibition of night works for pregnant women and children .............................................................. 47
REMUNERATION............................................................................................................................... 48
Remuneration and basic wages distinguished ....................................................................................... 48
Calculation of wage rates ...................................................................................................................... 48
Payment of remuneration ...................................................................................................................... 48
Deduction and other acts concerning remuneration .............................................................................. 49
LEAVE ................................................................................................................................................. 50
ANNUAL LEAVE................................................................................................................................ 50
Entitlement for annual leave ................................................................................................................. 50
Time for granting annual leave ............................................................................................................. 50
Conditions regarding annual leave ........................................................................................................ 51
SICK LEAVE ....................................................................................................................................... 52
Entitlement for sick leave ..................................................................................................................... 52
Medical benefits .................................................................................................................................... 53
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MATERNITY LEAVE ......................................................................................................................... 53

Entitlement for Maternity leave ............................................................................................................ 53
Eligibility for Maternity leave .............................................................................................................. 54
Commencement and end of Maternity leave ........................................................................................ 55
Medical entitlement during maternity leave ......................................................................................... 55
Right to breastfeeding ........................................................................................................................... 56
PARTENITY LEAVE .......................................................................................................................... 56
Entitlement for paternity leave .............................................................................................................. 56
Leave without pay (sabbatical leave) entitlements ............................................................................... 57
CHAPTER FOUR: ............................................................................................................................. 58
TERMINATION OF EMPLOYMENT CONTRACT UNDER THE LAWS OF TANZANIA .. 58
Introduction ........................................................................................................................................... 58
TERMINATION OF EMPLOYMENT UNDER OLD LABOUR REGIME ...................................... 58
The doctrine of hire and fire and summary dismissal under old labour regime .................................... 58
TERMINATION OF EMPLOYMENT UNDER NEW LABOUR REGIME...................................... 60
Meaning of termination of employment ............................................................................................... 60
TERMINATION OF EMPLOYMENT FOR EMPLOYEE UNDER PROBATIONARY PERIOD ... 61
Probationary period defined .................................................................................................................. 61
Period for probation .............................................................................................................................. 61
Activities to be done by employer during probationary period ............................................................ 62
Termination of employment under probation ....................................................................................... 62
UNFAIR TERMINATION OF EMPLOYMENT ................................................................................ 64
FORMS OF TERMINATION & PROCEDURE ................................................................................. 65
Termination by Agreement: .................................................................................................................. 65
Automatic Termination: ........................................................................................................................ 65
Refusal to renew a contract: .................................................................................................................. 66
Resignation: .......................................................................................................................................... 67
Constructive Termination ..................................................................................................................... 67
GROUNDS FOR TERMINATION ...................................................................................................... 69
Misconduct.............................................................................................Error! Bookmark not defined.
Procedures ............................................................................................................................................. 71
Burden of proof for the alleged misconduct ......................................................................................... 72
POOR WORK PERFORMANCE ........................................................................................................ 73
Procedures ............................................................................................................................................. 73
INCAPACITY ...................................................................................................................................... 74
INCOMPATIBILITY ........................................................................................................................... 76
OPERATIONAL REQUIREMENTS (Retrenchment) ......................................................................... 77
ix
Procedures for Termination based on Operational Requirement .......................................................... 78

PROVISIONS OF THE CONTRACT OF EMPLOYMENT RELATING TO TERMINATION ....... 79
NOTICE AND PRIOR PROCEDURAL SAFEGUARDS ................................................................... 79
REMEDIES FOR TERMINATION OF EMPLOYMENT .................................................................. 80
Interpretation of Section 40 of ELRA ................................................................................................... 80
Factors for consideration in the award of compensation ...................................................................... 83
An order of reinstatement and or re-engagement.................................................................................. 83
Power of the High Court to vary compensation .................................................................................... 84
PAYMENT ON TERMINATION AND CERTIFICATE OF EMPLOYMENT ................................. 85
Severance pay ....................................................................................................................................... 85
Transport allowance to the place of recruitment ................................................................................... 86
AVANUES FOR REDRESS ................................................................................................................ 87
CHAPTER FIVE: ............................................................................................................................... 89
TRADE UNIONS EMPLOYERS ASSOCIATION AND FEDERATION .................................... 89
Introduction and definition of terms ..................................................................................................... 89
Meaning of trade Union ........................................................................................................................ 89
Meaning of federation ........................................................................................................................... 89
Meaning of Employer’s Association..................................................................................................... 90
TRADE UNION MOVEMENT IN TANZANIA................................................................................. 90
Trends in legislation regulating trade unions ........................................................................................ 92
Requirements for registration of trade, employers association and federation ..................................... 98
Contents of trade union and employers’ organization by-laws constitution ......................................... 99
PROCESS OF REGISTRATION ....................................................................................................... 101
Application for registration ................................................................................................................. 101
Registration or refusal of registration ................................................................................................. 102
Entering the name into the register and issuance of a certificate ........................................................ 103
Lost or destroyed certificate ................................................................................................................ 104
The register for organisation and federations...................................................................................... 104
Effect of registration and legal status of a registered organisation or federation ................................ 105
Change of name or constitution .......................................................................................................... 106
Accounting records and audits of organisation and federations ......................................................... 107
DUTIES OF REGISTERED ORGANISATION AND FEDERATION ............................................ 107
Duty to keep records ........................................................................................................................... 107
Duty to provide information to registrar ............................................................................................. 107
NON-COMPLIANCE WITH THE CONSTITUTION ...................................................................... 108
Application to the labour court for redress ......................................................................................... 108
Factors the labour court should take into account before hearing the application .............................. 108
x
AMALGAMATION OF REGISTERED ORGANISATION OR FEDERATION ............................ 108

Amalgamation defined ........................................................................................................................ 108
Amalgamation of registered organisation or federation...................................................................... 109
Application for registration of amalgamated organisation or federation ............................................ 109
Effects of Amalgamation .................................................................................................................... 109
CANCELLATION OF REGISTRATION.......................................................................................... 110
Application for cancellation by registrar to the labour court .............................................................. 110
Labour court power in entertaining the application ............................................................................ 110
Effects of cancellation of registration ................................................................................................. 110
DISSOLUTION OF TRADE UNION AND EMPLOYER’S ORGANISATION ............................. 110
Dissolution defined ............................................................................................................................. 110
Application for dissolution of trade union and employer’s organisation ............................................ 110
Power of the labour court in dissolution ............................................................................................. 111
EXAMPLES OF TRADE UNIONS AND EMPLOYER’S ORGANISATION ................................ 111
The Association of Tanzania Employer’s (ATE)................................................................................ 111
Management of an organization.......................................................................................................... 112
Vision and Motto of an organization .................................................................................................. 112
Membership of the organisation ......................................................................................................... 113
Employer’s Association of Zanzibar (ZANEMA) .............................................................................. 113
The Trade Union Congress of Tanzania (TUCTA) ............................................................................ 113
vision 114
Goals 114
Zanzibar Trade Union Congress (ZATUC) ........................................................................................ 114
ROLES AND CHALLENGES FACING TRADE UNIONS IN TANZANIA .................................. 115
ROLES OF TRADE UNIONS ........................................................................................................... 115
To recruit new members ..................................................................................................................... 115
To represent union members in negotiations and collective bargain .................................................. 115
To settle labour disputes at the Commission for Mediation and Arbitration (CMA), High Court
(Labour Division)................................................................................................................................ 116
To create unions’ field branches at work places ................................................................................. 116
To collect union dues (union contributions) ....................................................................................... 116
Trade unions conduct meetings and seminars to their members......................................................... 116
To create and maintain workplace committees ................................................................................... 117
Trade unions promote the implementation of proper employment standards ..................................... 117
To enhance mutual relationship with employees, employers and labour stakeholders....................... 117
Trade unions maintain country’s labour movement............................................................................ 118
CHALLENGES FACE TRADE UNIONS ......................................................................................... 118
xi
Trade unions have low voice and limited freedom to criticize the government. ................................ 118
Problem in youth membership ............................................................................................................ 118
Several gaps in the labour laws mainly the Employment and Labour Relations Act No 6/2004 ....... 119
Disunity among the unions and other labour stakeholders ................................................................. 119
The structure and system of trade unions is static............................................................................... 119
CHAPTER SIX: ................................................................................................................................ 121
ORGANISATIONAL RIGHTS ....................................................................................................... 121
Organization rights defined................................................................................................................. 121
Deduction of trade union dues ............................................................................................................ 121
Trade union representation ................................................................................................................. 122
Leave for trade union activities ........................................................................................................... 122
Procedure for exercising organisational rights.................................................................................... 123
Termination of organisational rights ................................................................................................... 123
CHAPTER SEVEN: ......................................................................................................................... 124
COLLECTIVE BARGAINING....................................................................................................... 124
Introduction ......................................................................................................................................... 124
Collective bargaining defined ............................................................................................................. 124
Objectives of collective bargaining..................................................................................................... 125
The law on collective bargaining ........................................................................................................ 125
Scope of collective bargaining ............................................................................................................ 126
The Right to Engage in Collective Bargaining: .................................................................................. 126
Bargain unit......................................................................................................................................... 126
Recognised trade union ....................................................................................................................... 127
Registered trade union ........................................................................................................................ 127
THE BARGAINING PROCESS ........................................................................................................ 127
Recognition of parties: ........................................................................................................................ 127
Withdrawal of recognition .................................................................................................................. 129
Recourse against employer refusal to a CBA ..................................................................................... 130
Bargaining Topics ............................................................................................................................... 131
Bargaining Levels ............................................................................................................................... 131
The duty and obligation to disclose and bargain in good faith ........................................................... 132
Disclosure of Information; .................................................................................................................. 133
COLLECTIVE AGREEMENTS ........................................................................................................ 135
Binding nature of collective Agreements............................................................................................ 135
AGENCY SHOP AND CLOSED SHOP AGREEMENTS................................................................ 136
Introduction ......................................................................................................................................... 136
Agency shop and closed shop distinguished ....................................................................................... 136
xii
Agency shop and closed shop in the laws of Tanzania ....................................................................... 137
The requirements for binding agency shop agreements ...................................................................... 138
Disputes concerning collective agreements ........................................................................................ 140
WORKERS PARTICIPATION .......................................................................................................... 140
COLLECTIVE BARGAINING IN PUBLIC SECTOR ..................................................................... 141
IMPORTANCE OF COLLECTIVE BARGAINING ......................................................................... 142
Collective bargaining develops better understanding between the employer and the employees: ..... 142
It promotes industrial democracy:....................................................................................................... 142
It benefits the both-employer and employees: .................................................................................... 143
It is adjustable to the changing conditions: ......................................................................................... 143
It facilitates the speedy implementation of decisions arrived at collective negotiation: ..................... 143
CHAPTER EIGHT:.......................................................................................................................... 144
STRIKES AND LOCKOUTS .......................................................................................................... 144
Introduction ......................................................................................................................................... 144
Strike and lockouts distinguished ....................................................................................................... 144
The role and object of strikes and lockouts......................................................................................... 145
THE RIGHT TO STRIKE AND LOCKOUTS .................................................................................. 145
Dispute of right and dispute of interest distinguished......................................................................... 145
Restrictions on right to strike or lockout ............................................................................................. 146
Procedure for engaging in lawful strikes or lockouts.......................................................................... 148
Nature of protection of lawful strike or lockout ................................................................................. 151
STRIKE IN ESSENTIAL SERVICES ............................................................................................... 152
SECONDARY STRIKES ................................................................................................................... 153
PROTEST ACTION ........................................................................................................................... 155
Procedure for engaging in protest action ............................................................................................ 155
ILLEGAL STRIKES AND LOCKOUTS AND THEIR CONSEQUENCES .................................... 157
ROLE OF POLICE & PRIVATE SECURITY IN STRIKES AND LOCKOUT ............................... 158
CHAPTER NINE:............................................................................................................................. 159
DISPUTE RESOLUTION................................................................................................................ 159
Introduction ......................................................................................................................................... 159
Dispute defined ................................................................................................................................... 159
DISPUTE HANDLING UNDER OLD LABOUR REGIME ............................................................ 159
DISPUTE HANDLING UNDER NEW LABOUR REGIME............................................................ 161
MECHANISM FOR LABOUR DISPUTE SETTLEMENT .............................................................. 161
MEDIATION ...................................................................................................................................... 162
Mediation defined ............................................................................................................................... 162
Referral of dispute for mediation ........................................................................................................ 163
xiii
Condonation ........................................................................................................................................ 163

Referral Form ...................................................................................................................................... 164
Time frame for conducting mediation ................................................................................................ 165
Representation of parties during mediation proceedings .................................................................... 166
Recourse where the dispute remains unresolved after mediation ....................................................... 166
Consequences of not attending mediation proceedings ...................................................................... 167
Stages in mediation proceeding .......................................................................................................... 168
Postponement of hearing..................................................................................................................... 168
Conclusion of the mediation ............................................................................................................... 169
ARBITRATION ................................................................................................................................. 170
Arbitration defined .............................................................................................................................. 170
Types of Arbitration............................................................................................................................ 171
Disputes that must be arbitrated .......................................................................................................... 171
Procedure for referral of dispute for arbitration .................................................................................. 171
Power of arbitrator .............................................................................................................................. 172
Representation in arbitration proceedings........................................................................................... 172
An award in conclusion of arbitration................................................................................................. 172
Correction of errors in an award ......................................................................................................... 172
Setting aside arbitral award ................................................................................................................. 173
Stages of arbitration process ............................................................................................................... 173
Consequences of failure to attend arbitrator proceeding..................................................................... 174
Postponement of the hearing ............................................................................................................... 174
ADJUDICATION ............................................................................................................................... 175
Adjudication defined ........................................................................................................................... 175
Adjudication by labour court .............................................................................................................. 175
DISPUTE RESOLUTION BY COLLECTIVE AGREEMENT ........................................................ 176
COMBINED MEDIATION AND ARBITRATION .......................................................................... 176
CHAPTER TEN: .............................................................................................................................. 178
LABOUR INSTITUTIONS.............................................................................................................. 178
Labour institutions defined ................................................................................................................. 178
Labour Dispute Settlement Bodies in Zanzibar .................................................................................. 178
LABOUR ECONOMIC AND SOCIAL COUNCIL .......................................................................... 179
Establishment of LESCO .................................................................................................................... 179
Composition of the LESCO ................................................................................................................ 179
Function and power of the LESCO ..................................................................................................... 180
Qualifications for chairman and member of the council ..................................................................... 180
Tenure of the office and remuneration of the members ...................................................................... 181
xiv
Removal of the members and filling of vacancies .............................................................................. 181

Committees of the Council ................................................................................................................. 181
Meetings of the Council ...................................................................................................................... 182
Administration of the Council ............................................................................................................ 182
Annual report of the Council .............................................................................................................. 182
COMMISSION FOR MEDIATION AND ARBITRATION ............................................................. 183
Establishment of CMA ....................................................................................................................... 183
JURISDICTION OF CMA ................................................................................................................. 184
Pecuniary Jurisdiction of CMA .......................................................................................................... 184
Territorial jurisdiction of CMA .......................................................................................................... 184
Function of the commission ................................................................................................................ 184
Power of the Commission ................................................................................................................... 185
Composition of the Commission......................................................................................................... 185
Tenure and condition of service of commissioners............................................................................. 186
Director of the Commission ................................................................................................................ 187
Mediators and Arbitrators ................................................................................................................... 188
Powers of Mediators and Arbitrators .................................................................................................. 189
Witnesses under CMA ........................................................................................................................ 189
Accounts and audit of the commission ............................................................................................... 189
Limitation of Liability and disclosure ................................................................................................. 190
Annual report of the commission ........................................................................................................ 190
ESSENTIAL SERVICE COMMITTEE (ESC) .................................................................................. 190
unctions of the ESC ............................................................................................................................ 190
Composition of the ESC ..................................................................................................................... 191
Tenure of office for chairperson and members ................................................................................... 191
Allowances to the member of the ESC ............................................................................................... 191
Removal of the members of ESC ........................................................................................................ 191
Powers of the ESC .............................................................................................................................. 192
Administration of the ESC .................................................................................................................. 192
WAGE BOARDS (WB) ..................................................................................................................... 192
Establishment of the wage board ........................................................................................................ 192
Factor to be taken into account when fixing wage rates ..................................................................... 193
Composition of the wage board .......................................................................................................... 193
Tenure of office for the member of the board ..................................................................................... 194
Removal of the members from the office ........................................................................................... 194
Allowances to the member of the board ............................................................................................. 195
Function and power of the board ........................................................................................................ 195
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Investigation by the board ................................................................................................................... 195

Report of the wage board .................................................................................................................... 196
MAKING OF THE WAGE ORDER .................................................................................................. 196
Matter to be included in the wage order ............................................................................................. 197
Recourse where the minister fails to make a wage order .................................................................... 197
Period of operation of wage order....................................................................................................... 198
Legal effect of the wage order ............................................................................................................ 198
Regulation of Wages and Terms of Employment Order (2010), GN No. 172 of 30th April 2010. ..... 199
Labour Institutions Wages Order 2013 (GN 196 of 2013) ................................................................. 199
Administration of the wage board....................................................................................................... 199
LABOUR ADMINISTRATION AND INSPECTION ....................................................................... 200
Introduction ......................................................................................................................................... 200
Importance of labour inspection ......................................................................................................... 200
Administration of Labour Laws .......................................................................................................... 201
Delegation of powers .......................................................................................................................... 201
Power of Labour officers .................................................................................................................... 202
COMPLIANCE ORDER .................................................................................................................... 203
Objections to compliance order .......................................................................................................... 203
Appeals from order of Labour Commissioner .................................................................................... 204
Compliance certificate ........................................................................................................................ 205
THE LABOUR COURT ..................................................................................................................... 205
Establishment of the Labour Court ..................................................................................................... 205
Composition of the Labour Court ....................................................................................................... 206
Jurisdiction of the Labour Court ......................................................................................................... 207
Appeals from decision of the Labour Court........................................................................................ 207
Registrar and deputy registrar of the Labour court ............................................................................. 208
Rules of the Labour Court................................................................................................................... 209
Reference by Labour Commissioner to Labour Court and CA........................................................... 209
When to make an application to set-aside an ex parte judgment by the Labour court........................ 210
Leave to appeal to the Court of Appeal of Tanzania: What are the relevant provisions? ................... 210
Court power to revise CMA arbitral awards-Relevant provisions ...................................................... 210
Whether one may apply for revision from decisions of labour court.................................................. 210
Application for extension of time to file a revision–What are the relevant provisions? ..................... 210
How to move the labour court ............................................................................................................ 211
Grounds for review in Labour court ................................................................................................... 211
Content of affidavits filled in labour court.......................................................................................... 211
Extension of time–sufficient cause to be shown ................................................................................. 211
xvi
Extension of time – What are the major considerations for granting similar applications? ............... 211
Content of the judgement or ruling ..................................................................................................... 212
Representative suit in Labour matters ................................................................................................. 212
Limitation of time in labour matters ................................................................................................... 212
CHAPTER ELEVEN: ...................................................................................................................... 213
WORKER’S COMPENSATION .................................................................................................... 213
Introduction ......................................................................................................................................... 213
Background to the enactment of workers compensation Act.............................................................. 213
Applicability of the Act ...................................................................................................................... 214
Objectives of the Act .......................................................................................................................... 214
Definition of important terms ............................................................................................................. 215
ESTABLISHMENT OF WORKERS COMPENSATION FUND (WCF) ......................................... 216
Application of funds ........................................................................................................................... 216
EMPLOYER’S OBLIGATIONS ........................................................................................................ 216
Employers to register with the Director-General ................................................................................ 217
Employers to furnish returns of earnings ............................................................................................ 217
Other obligations................................................................................................................................. 217
THE DIRECTOR GENERAL ............................................................................................................ 218
BOARD OF TRUSTEES OF THE WORKERS COMPENSATION FUND .................................... 218
RIGHT TO COMPENSATION .......................................................................................................... 218
Incidents for Compensation ................................................................................................................ 218
RIGHT TO COMPENSATION FOR OCCUPATIONAL INJURY .................................................. 219
Accident during conveyance ............................................................................................................... 219
Accidents During Training or Performance of Emergence................................................................. 219
RIGHT TO COMPENSATION FOR OCCUPATIONAL DISEASES ............................................. 220
Presumption of cause of occupational disease .................................................................................... 220
Accidents or diseases Contracted Outside Tanzania ........................................................................... 220
Accidents or diseases contracted in Tanzania ..................................................................................... 220
Prescription of claim for compensation .............................................................................................. 221
REFUSAL TO PAY COMPENSATION ........................................................................................... 221
Alienation, reductions, cession or relinquishment .............................................................................. 221
Civil Liability of Employer and third Party-unlimited ....................................................................... 221
Deduction of compensation from Common law award ...................................................................... 222
Recovery of Compensation from Tortfeasors by DG employer or third parties ................................. 222
Offence of Threats and Compulsion ................................................................................................... 222
PROCEDURES FOR CLAIMS OF COMPENSATION ................................................................... 222
1. NOTIFICATION OF AN ACCIDENT .......................................................................................... 222
xvii
Notice of Accident by employee or employer .................................................................................... 222

Notification of an Accident by Employer to Director General ........................................................... 223
Notification of Occupational Disease ................................................................................................. 224
Notification of death ........................................................................................................................... 224
Care and treatment pending compensation ......................................................................................... 225
2. INQUIRY BY DIRECTOR GENERAL INTO ACCIDENT ......................................................... 225
Particulars in support of the claim ...................................................................................................... 226
Employee to submit to medical examination ...................................................................................... 226
3. SUBMISSION AND REVIEW OF CLAIM FOR COMPENSATION ......................................... 226
Submission for Claim for compensation ............................................................................................. 226
Receipt of a claim by Director General .............................................................................................. 227
Submission of medical report ............................................................................................................. 228
4. CONSIDERATION OF CLAIM BY DIRECTOR GENERAL ..................................................... 229
Formal hearing by Director General ................................................................................................... 229
Party Representation during the conduct of formal hearing ............................................................... 230
Appointment of Assessors .................................................................................................................. 230
5. DETERMINATION OF COMPENSATION ................................................................................. 231
Compensation for Temporary Total or Partial Disablement ............................................................... 231
Temporary Partial Disablement (TPD) ............................................................................................... 231
Compensation for Permanent Disability ............................................................................................. 231
Enhancement of Compensation .......................................................................................................... 232
Payment of Lump sum in lieu of pension ........................................................................................... 232
Compensation for an employee who has previously received Compensation .................................... 232
Constant attendance – Sec. 50 ............................................................................................................ 232
Dependants - Section 52 ..................................................................................................................... 232
MEDICAL AID AND REHABILITATION BENEFITS................................................................... 233
Conveyance of an Injured Employee - Section 61 .............................................................................. 233
CHAPTER TWELE: ........................................................................................................................ 233
OCCUPATIONAL HEALTH AND SAFETY ............................................................................... 233
Introduction ......................................................................................................................................... 233
Laws, Regulations, and Standards of Occupational Health ................................................................ 233
Duties of workers imposed under the law ........................................................................................... 235
General duty of an employer under the law ........................................................................................ 236
Punishment for non-compliance Act by employer or employee ......................................................... 236
ENFORCEMENT OF OCCUPATIONAL HEALTH AND SAFETY .............................................. 237
Establishment of the OSHA ................................................................................................................ 237
Summary of the Challenges and Problems for Occupational Health in Tanzania .............................. 238
xviii
CHAPTER THIRTEEN:.................................................................................................................. 240

EMPLOYMENT FOR NON-CITIZEN.......................................................................................... 240
NON-CITIZEN (EMPLOYMENT REGULATION) ACT OF 2015 ................................................. 240
Introduction ......................................................................................................................................... 240
Application of the Act ......................................................................................................................... 240
Provisions on the Relevant Authorities ............................................................................................... 240
Categories of work permit .................................................................................................................. 241
Procedures for Application of work permits ....................................................................................... 241
Online Application .............................................................................................................................. 242
APPLY IN-PERSON .......................................................................................................................... 242
For Class A Permit .............................................................................................................................. 242
For Class B, C, and D Permit .............................................................................................................. 243
PROTECTION OF LOCAL TALENTS............................................................................................. 243
SUCCESSION PLAN:........................................................................................................................ 243
CRIMINAL PENALTIES: ................................................................................................................. 243
THE NEW NON-CITIZEN EMPLOYMENT REGULATION OF 2016 .......................................... 244
Introduction:........................................................................................................................................ 244
ELIGIBLE CRITERIA AND CONDITIONS FOR GRANTING WORK PERMIT: ........................ 244
Documents required to accompany the application ............................................................................ 244
Stipulated time frame to handle the application.................................................................................. 245
Condition and criteria for issuance of work permit ............................................................................ 245
EMPLOYMENT OF REFUGEES...................................................................................................... 246
EMPLOYMENT OF NON-CITIZEN IN PUBLIC SECTOR............................................................ 246
BULK RECRUITMENT OF NON-CITIZENS.................................................................................. 246
IMPOSED RESTRICTION FOR USE OF A WORK PERMIT AS A RESIDENCE PERMIT: ...... 246
CESSATION OF WORK PERMIT .................................................................................................... 247
WORK PERMIT FOR SHORTER PERIOD ..................................................................................... 247
PROCEDURES FOR EXEMPTIONS TO EMPLOY A NON-CITIZEN: ........................................ 247
Grounds for Exemption....................................................................................................................... 247
SUBMISSION OF A SUCCESSION PLAN...................................................................................... 248
PERIOD FOR RENEWAL APPLICATION ...................................................................................... 248
CHAPTER FOURTEEN: ................................................................................................................ 249
SOCIAL SECURITY IN TANZANIA ............................................................................................ 249
Definition of the term Social Security ................................................................................................ 249
Key element of Social Security in Tanzania ....................................................................................... 249
Scope of Social Security ..................................................................................................................... 250
Benefits offered by social security scheme ......................................................................................... 250
xix
BACKGROUND TO SOCIAL SECURITY IN TANZANIA ........................................................... 250

Before independence ........................................................................................................................... 250
After independence ............................................................................................................................. 250
THE SOCIAL SECURITY SCHEMES IN TANZANIA ................................................................... 251
NSSF Pension Fund ............................................................................................................................ 251
PPF Pension Fund ............................................................................................................................... 252
LAPF Pension Fund ............................................................................................................................ 252
GEPF Retirement Benefit Fund .......................................................................................................... 253
National Health Insurance Fund (NHIF) ............................................................................................ 253
Community Health Fund (CHF) ......................................................................................................... 253
THE SOCIAL SECURITY REGULATORY AUTHORITY (SSRA) ............................................... 254
Functions of the SSRA........................................................................................................................ 254
Powers of the SSRA............................................................................................................................ 255
Operation of the SSRA ....................................................................................................................... 255
Establishment of the Social Security Tribunal .................................................................................... 256
THE PROCESS OF SOCIAL SECURITY REFORMS IN TANZANIA .......................................... 257
THE PUBLIC SERVICE SOCIAL SECURITY FUND ACT, (NO. 2) OF 2018 .............................. 258
Introduction ......................................................................................................................................... 258
Centralized Social Security Schemes .................................................................................................. 258
Establishment of the Public Service Social Security Scheme (PSSSS) .............................................. 259
Establishment of the Public Service Social Security Fund (PSSSF) .................................................. 259
Establishment of Board of Trustee...................................................................................................... 260
REGISTRATION PROCESS ............................................................................................................. 261
Employer to register with the fund ..................................................................................................... 261
Registration of employee .................................................................................................................... 262
Registration of existing employers and members ............................................................................... 262
Issuance of membership card .............................................................................................................. 262
Loss, mutilation or destruction of membership card ........................................................................... 263
Change of particulars .......................................................................................................................... 263
Notification on transfer, change of or cessation of employment ........................................................ 263
Notification of relocation of employer or closure of business ............................................................ 263
Variation of forms ............................................................................................................................... 264
CONTRIBUTION TO THE FUND .................................................................................................... 264
Mode of payment ................................................................................................................................ 265
Additional contributions for delayed remittance of contributions by employer ................................. 265
Treating un remitted contributions as paid ......................................................................................... 265
Protection of the contributions and member’s ability to mortgage ..................................................... 265
xx
Conditions for granting mortgage facility ........................................................................................... 266

Refund of excess contributions ........................................................................................................... 267
Authority to withdraw from fund ........................................................................................................ 267
BENEFITS OF THE MEMBER TO THE SCHEME......................................................................... 268
Qualifying Condition for entitlement of benefit ................................................................................. 268
RETIREMENT PENSION BENEFITS .............................................................................................. 268
Application for the retirement benefits ............................................................................................... 269
Qualifying conditions for old age pension benefit .............................................................................. 269
Notification and delayed payment of benefits .................................................................................... 270
Rates of retirement pension ................................................................................................................ 270
Refund of contributions due to emigration ......................................................................................... 270
MATERNITY BENEFITS ................................................................................................................. 271
INVALIDITY BENEFIT .................................................................................................................... 271
Rate of invalidity benefit .................................................................................................................... 272
Application for invalidity benefit........................................................................................................ 272
UNEMPLOYMENT BENEFITS ....................................................................................................... 272
Application for unemployment benefits ............................................................................................. 272
Duration of Unemployment benefit .................................................................................................... 273
SICKNESS BENEFIT ........................................................................................................................ 273
Rate of Sick Leave .............................................................................................................................. 274
Application for death gratuity benefit ................................................................................................. 274
Application for survivors’ benefits ..................................................................................................... 274
CONTINUING ELIGIBILITY, SUSPENSIONS & TERMINATION OF BENEFITS .................... 274
Basis and duration of benefits ............................................................................................................. 274
Verification of continuing eligibility of beneficiary ........................................................................... 275
Suspension for failure to provide information .................................................................................... 275
Suspension resulting from uncertain address of residence ................................................................. 275
Termination of benefit ........................................................................................................................ 275
Application for review ........................................................................................................................ 276
SUITS BY AND AGAINST THE BOARD ....................................................................................... 276
Savings and Amendments ................................................................................................................... 276
Offences: 277
Vesting of assets and liabilities ........................................................................................................... 277
Transitional Period .............................................................................................................................. 277
ACHIEVEMENTS OF SOCIAL SECURITY SCHEME IN TANZANIA........................................ 277
SHORTCOMINGS IN CURRENT SOCIAL SECURITY SCHEME IN TANZANIA .................... 278
WEAKNESSES OF THE NEW LABOUR LAWS............................................................................ 279
xxi
Employers’ Perspectives ..................................................................................................................... 279

Employees’ Perspectives .................................................................................................................... 279
QUESTIONS FOR FURTHER REFLECTION ............................................................................ 281
SELECTED BIBLIOGRAPHY ....................................................................................................... 282
xxii
CHAPTER ONE:
INTRODUCTION TO LABOUR LAW
1.0 Meaning of Labour Law

Labour law also known as employment law is the body of laws, administrative rulings, and
precedents which address the legal rights of, and restrictions on, working people and their
organizations. As such, it mediates many aspects of the relationship between trade unions,
employers and employees1.
In other words, Labour law defines the rights and obligations of workers, union members and
employers in the workplace.
Alternatively, Labour law is a body of legislation under the Tanzania employment Act that
defines the rights and obligations of workers and employers in their work place. The
Tanzania Labour law basically mediates the relationship between workers (employees),
employers, trade unions and the government2.
1.1 Labour relations defined

The term labour relations, also known as industrial relations, refer to the system in which
employers, workers and their representatives and, directly or indirectly, the government
interact to set the ground rules for the governance of work relationships. It also describes a
field of study dedicated to examining such relationships.
1.2 Scope of Labour law

Generally, labour law covers among others: 1. Industrial relations–certification of unions,
labour-management relations, collective bargaining and unfair labour practices; 2. Workplace
health and safety; 3. Employment standards, including general holidays, annual leave,
working hours, unfair dismissals, minimum wage just to mention a few.
1.3 Operation of Labour laws

Essentially, labour laws operate at two levels: At Individual level and collective level. The
first one concerns the individual labourer regarding his working conditions and the right to
have legal contracts for work which would give him the access to regular salary. The second
right which functions at the collective level relates to the resolution of conflicts between the
tripartite relationship of the management, the employees and the trade unions.
1
The Ministry of Labour and Employment, Government of India
2
See also Section 2 of Labour Institution Act, 2004
1
1.4 Significance of labour law

The significance of labour laws relates to the establishment of a better working culture among
the employees and also makes sure that the interests of all three parties that are the
employees, the employers and the trade unions are protected.
1.5 CLASSIFICATIONS OF LABOUR LAW
Essentially Labour law can be broadly classified into two headings as follows;
1.5.1 Substantive Law
This is the branch of labour law that generally set out the minimum standards they need to be
observed by both employers and employees. Notably, the substantive part of the labour law
deals with among others things like, contracts of service and contracts for services,
termination of employment, benefits just to mention a few. A good example in this regard is
the Employment and Labour Relations Act 20043.
1.5.2 Procedural Law
Unlike the substantive law which prescribe the standards to be observed by both employers
and employees, the procedural part of labour law lay down fundamental procedures to be
followed in enforcement of substantive standards, enforcement of rights and also lay down
the institutional framework to resolve all labour disputed. The good example of procedural
law is the Labour Institutions Act4 and G.N. No. 42, 64, 655, 66 and 67 of 2007.
1.6 SOURCES OF LABOUR LAW

By source we generally refer to where one can find a particular legal norm. In this respect
Labour law draw its sources from the followings;
1.6.1 CONSTITUTION
1.6.2 Constitution as the source of Labour Law
Specifically the provisions of Article 22 and 23 of the Constitution of the United Republic
of Tanzania6, has something to say on matters relating to labour law. Notably Article 22
provides that every person has the right to work and that every citizen is entitled to equal
opportunity and right to equal terms to hold any office or discharge any function under the
3
Act no. 6 of 2004
4
[No. 7 of 2004]
5
Revoked under Rule 41 of the GN No. 47 of 2017
6
[Cap. 2 RE 2002]
2
state authority. In Lee v. Showmen’s Guild of Great Britain7, Lord Denning MR (as he then
was) recognized the right to work.
Furthermore, Article 23 provides that, every person, without discrimination of any kind, is
entitled to remuneration commensurate with his work, and all persons working according to
their ability shall be remunerated according to the measure and qualification for the work.
This article further provides that, every person who works is entitled to just remuneration.
In relation to the provisions above, in Augustine Masatu v. Mwanza Textiles Ltd 8 ,

Mwalusanya J (as he then was) held that the provisions entitling the employer to dismiss the
employee without notice were repugnant to the Bill of Rights contained in the Constitution.
His Lordship was of the view that: A right to work is now a fundamental human right which
is over and above ordinary legislation. And so if the right to work had been taken away by
ordinary legislation, then the same stood a good chance of being declared void and
unconstitutional by 16/3/1988 when the Bill of Rights became justiciable.
Justice Mwalusanya further held as follows: The law regards with care the right of individuals
and unless a statute restricts those rights by language beyond reasonable doubt, they should
be left untouched by the Court. In the case at hand, the Security of Employment Act has not
in a clear language conferred upon an employer the rights to terminate the services of an
employee in the face of reinstatement. There is section 27 of the Act which is a cog in the
wheel held by the employer.
1.6.3 LEGISLATIONS
Responding to deficiencies demonstrated by old labour law regime, in 2004, the Tanzania
parliament enacted two new labour law legislation namely; the Employment and Labour
Relations Act, 2004 and the Labour Institutions Act, 2004.
These legislations complement each other in the sense that; while the latter establishes the
necessary organs, provides for the appointment of the staff, vest them with jurisdiction and
declares their functions and delimit powers, the former promulgates substantive law which is
supposed to be administered by the said organs.
However, the two statutes work together. The new statutes attempts to consolidate all the
existing labour statutory law and in the process aim at a more streamlined regime that avoids
most of the shortcomings of the previous regimes9.
7
[1952] 2 QB 329
8
Civil case No. 3 1986 (Unreported)
3
1.6.3.1 Employment and Labour Relation Act, 2004 (hereinafter referred to as

“ELRA”)
The ELRA was passed 14th April 2004 and assented on 4th June 2004 by William Mkapa
(by then president of URT). As Per the long title of the Act, the legislation is geared forth to
make provisions for core labour rights, to establish basic employment standards, to provide a
framework for collective bargaining, to provide for the prevention and settlement of disputes,
and to provide for related matter.
Section 2 of the Act make the Act applicable to all employees including those in public
service in Tanzania Mainland10. However the same Section excludes the applicability of the
Act to members whether temporary or permanent in defence forces, the Police Force,
the Prisons service or the National service. It also follows that as per Section 2 (3) of the
Act, the provision dealing with prohibition of child labour, forced labour and discrimination
provided under Section 5, 6 and 7 respectively still apply to those member of forces and
service.
1.6.3.2 Objectives of the Act
As per Section 3 of the Act, the principal objects of Act shall be (a) to promote economic
development through economic efficiency, productivity and social justice; (b) to provide the
legal framework for effective and fair employment relations and minimum standards
regarding conditions of work; (c) to provide a framework for voluntary collective bargaining;
(d) to regulate the resort to industrial action as a means to resolve disputes; (e) to provide a
framework for the resolution of disputes by mediation, arbitration and adjudication; (f) to
give effect to the provisions of the Constitution of the United Republic of Tanzania of 1977,
in so far as they apply to employment and labour relations and conditions of work; and (g)
generally to give effect to the core Conventions of the International Labour Organisation as
well as other ratified conventions.
1.6.3.3 The Labour Institution Act, 2004 (hereinafter referred to as “LIA”)
Whereas the Employment Act provides for labour standards, rights and duties, the Labour
Institutions Act constitutes the governmental organs charged with the task of administering
the labour laws. As per the Long title of the Act, the Act was geared forth to provide for
9
It is noteworthy that the new labour laws in Tanzania borrow heavily from the employment and labour laws
which are currently in force in the Republic of South Africa.
10
It goes without saying that the Act is not applicable in Zanzibar and therefore Zanzibar Employment and
Labour Relations Act of 2005 do apply.
4
establishment of labour institutions, their functions, power, and duties and to provide for
other matters related to them.
The Act establishes the Commission for Mediation and Arbitration (CMA) and the High
Court Labour Division under Section 12 and 50 of the LIA respectively. The Act was
passed as a law on 15th day of April 2004 and was thereby assented on 6th day of June 2004.
NB: The two Acts and other laws regulating employment relations in Tanzania have
been amended by The Employment and Labour Laws (Miscellaneous Amendments)
Act, 2015. The said miscellaneous amendments were gazetted to the Gazette of the
United Republic of Tanzania No. 22 Vol. 96 dated 29th May, 2015.
1.6.3.4 Subsidiary Legislations governing Labour matters
The above two principle Act were subsequently in 2007 complemented with several pieces of
subsidiary legislation which were set forth to facilitate the enforcement of labour rights and
standards stipulated in the Employment Act. One of the most significant of these is the
Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007;
others include G.N. No. 64, 66 and 67 of 2007 and GN 47, 45 of 2017.
1.6.3.5 Employment and Labour Relations (Code of Good Practice) Rules, G.N. No.
42 of 2007
The rules are made under Section 99 (1) of ELRA. These rules provide for standard of
conduct of the employers the employees and the organizations, mediators, arbitrators, judges,
assessors and government officials. New labour law Regulations were gazetted and came
into effect on 24 February 2017: These are as follows;
1.6.3.6 The Employment and Labour Relations (General) Regulations 2017 (GN 47
2017)
Key areas: Child Labour Prohibition; Employment Standards and Trade Unions matters;
Employment Standards with new requirements:
Noteworthy provisions: Regulation 11-a contract for specified period for professionals
and managerial cadre shall not be for a period of less than 12 months. Regulation 12-
statement of employees’ rights to be set out in manner prescribed in Form LAIF 9 which has
been provided in the 2nd Schedule.
Regulation 14 (2)-employer shall ensure that no employee is continuously working in

any leave cycle without applying for annual leave. Regulation 15-female employees to be
allowed for a period not less than 6 consecutive months after maternity leave to leave
5
office to breast feed for a maximum of 2 hours during working hours. Regulation 35-
offence for contravention of the provisions and upon conviction liable to a fine not exceeding
TZS 1,000,000 or imprisonment for 1 year or both.
Regulation 40-grievances procedures prescribed in the schedule to the Employment and

Labour Relations (Code of Good Practice) Rules 2007 to be included in the workplace
employment policy, practice, rules or regulations and be displayed in a conspicuous place.
Employer to ensure employees aware and sensitised of the grievances procedure. Regulation
41-Employment and Labour Relations (Forms) Rules 2007 are revoked and new Forms
appear in the Schedules.
1.6.3.7 Labour Institutions (General) Regulations 2017 (GN 45 2017)
Key areas: Appointment of members to: Labour, Economic and Social Council. Commission
for Mediation and Arbitration. Wage Boards. Wage Board consultation. Wage Order Review.
Compliance Certification.
Noteworthy provisions: Regulation 8–Wage Order shall be reviewed within 3 years from the
date of issue and shall provide for a more favourable wage, allowances, terms and conditions
of employment to be negotiated annually between employer and employees at workplace or
at any level in the respective organisation11.
Regulation 9-on outsource requirement whereby inter alia (a) outsource of service from
another person shall be in a written contract committing compliance to labour laws or any
other written laws and (b) different treatment of employee for the work of equal value
outsourced from a different sources or arrangement shall be deemed discrimination in
accordance with ELRA.
Regulation 10-Labour Officers to assess employer’s compliance or non-compliance to labour

laws in accordance with the checklist set out in Schedule (LAIF 3 Form) and to issue
certificates of compliance/non-compliance. Such certificates to be displayed in a conspicuous
place12.
NOTE: As per Section 102A of the Employment and Labour Laws (Miscellaneous
Amendments) Act, 2015, In case of conflict between the ELRA and any other written law
relating to employment standards, the standards stipulated under ELRA shall prevail.
11
Retrieved from https://www.velmalaw.co.tz/category/labourlaw/ on 6th March 2019 at 16:00HRS
12
Retrieved from https://www.velmalaw.co.tz/category/labourlaw/ on 6th March 2019 at 16:00HRS
6
1.6.4 LAW OF CONTRACT

The law of contract is one of the sources of labour law in Tanzania because of the fact that,
the relationship between the employer and employee is preceded by the contract of service,
which must abide to the all principles of the Law of Contract which are found in the Law of
Contract Act.13
1.6.5 PRECEDENT
Court decisions play a very important role in the field of Labor Law. This is not only true
inasmuch as courts specify the general clauses and general terms of law, but also inasmuch as
they have to fill in the gaps left open by the legislator.
In Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Ltd,14 the court held that for
an employee to be able to sue successfully for damages for premature termination of
employment he has to prove either that, he was employed for life or for a period terminating
on reaching the age of compulsory retirement. In this case, the court referred the case of
McClelland v. Northern Ireland General Health Services Board 15 in reaching that
decision.
These cases therefore show how the doctrine of precedent has been used by the courts as a
source of labour law. The gist of these cases have been quoted with approval in a number of
subsequent cases falling within the rule established the said cases.
1.6.6 RECEIVED LAWS
Section 2 (3) of The Judicature and Application Laws Act16, imports the substance of
Common Law, Doctrine of Equity and Statutes of General Application of England, applicable
before the 22 of July 1920 (Reception date for English Law in Tanzania) to have a force of
law in Tanzania. Therefore where our labour law doesn’t cater for a certain matter, recourse
can be made to the received law.
1.6.7 INTERNATIONAL INSTRUMENTS

1.6.7.1 ILO Instruments
The ILO's Governing Body has identified eight conventions as "fundamental", covering
subjects that are considered as fundamental principles and rights at work: freedom of
association and the effective recognition of the right to collective bargaining; the elimination
of all forms of forced or compulsory labour; the effective abolition of child labour; and the
13
[Cap 345 RE 2002], for example issues relating to capacity under Section 11
14
[1988] TLR 237 (HC)
15
[1957] 2 All ER 129
16
[Cap. 358 RE 2002]
7
elimination of discrimination in respect of employment and occupation. These principles are

also covered in the ILO's Declaration on Fundamental Principles and Rights at Work
(1998)17.
The eight fundamental Conventions are: 1. Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87) 2. Right to Organise and Collective Bargaining
Convention, 1949 (No. 98) 3. Forced Labour Convention, 1930 (No. 29) 4. Abolition of
Forced Labour Convention, 1957 (No. 105) 5. Minimum Age Convention, 1973 (No. 138) 6.
Worst Forms of Child Labour Convention, 1999 (No. 182) 7. Equal Remuneration
Convention, 1951 (No. 100) 8. Discrimination (Employment and Occupation) Convention,
1958 (No. 111).
1.6.7.2 Freedom of Association and Protection of the Right to Organize Convention,

1948 (No. 87)
The Freedom of Association and Protection of the Right to Organise Convention (1948) No
87 is an International Labour Organization Convention, and one of eight conventions that
form the core of international labour law, as interpreted by the Declaration on Fundamental
Principles and Rights at Work18.
The Freedom of Association and Protection of the Right to Organise Convention comprises
the preamble followed by four parts with a total of 21 Articles. The preamble consists of the
formal introduction of the instrument, at the Thirty-first Session of the General Conference of
the International Labour Organization, on 17 June 1948.
Part 1 consists of ten Articles which outline the rights of both worker and employers to
"join organisations of their own choosing without previous authorisation 19." Rights are also
extended to the organizations themselves to draw up rules and constitutions, vote for officers,
and organize administrative functions without interference from public authorities20.
There is also an explicit expectation placed on these organizations. They are required, in the
exercise of these rights, to respect the law of the land. In turn, the law of the land, "shall not
be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this
Convention21."
17
https://www.ilo.org/global/standards/introduction-to-international-labour-standards/conventions-and-
recommendations/lang--en/index.htm on 6th March 2019 at 16:00HRS
18
"Conventions and ratifications". International Labour Organization. May 27, 2011. Tanzania Ratified this
Convention on April 18, 2000
19
Article 2 of the Convention
20
21
Article 8 (2) of the Convention
8
Finally, Article 9 states that these provisions are applied to both armed forces and police
forces only as determined by national laws and regulations, and do not supersede previous
national laws that reflect the same rights for such forces.
Part 2 states that every ILO member undertakes to ensure "all necessary and appropriate
measures to ensure that workers and employers may exercise freely the right to organise."
This sentence is expanded upon in the Right to Organise and Collective Bargaining
Convention, 1949.
Part 3, which contains Articles 12 and 13, deals with technical matters related to the
Convention. It outlines the definitions of who may accept (with or without modification), or
reject the obligations of this Convention with regards to "non-metropolitan territory [ies]",
whose self-governing powers extend into this area. It also discusses reporting procedures for
modification of previous declarations in regard to acceptance of these obligations.
Part 4 outlines the procedures for formal ratification of the Convention. The Convention
was declared to come into force twelve months from the date when the Director-General had
been notified of ratification by two member countries. This date became July 4, 1950; one
year after Norway (preceded by Sweden) ratified the Convention.
Part 4 also outlines provisions for denunciation of the Convention, including a ten-year
cycle of obligation. Final discussion highlights procedures which would take place in the
event that the Convention is eventually superseded by a new Convention, in whole, or in
part22.
1.6.7.3 Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
The Preamble of Convention 98 notes its adoption on July 1, 1949. After this the Convention
covers, first, the rights of union members to organise independently, without interference by
employers in Articles 1 to 3. Second, Articles 4 to 6 require the positive creation of rights to
collective bargaining, and that each member state's law promotes it.
Article 1 states that workers must be protected against discrimination for joining a union,
particularly conditions of employers to not join a union, dismissal or any other prejudice for
having union membership or engaging in union activities.
Article 2 requires that both workers and employers' organisations (i.e. trade unions and
business confederations) should not be interfered in their own establishment, functioning or
administration.
22
Resource: International Labour Organization, ILO
9
Article 2 (2) prohibits, in particular, unions being dominated by employers through "financial
or other means" (such as a union being given funding by an employer, or the employer
influencing who the officials are).
Article 3 requires each ILO member give effect to articles 1 and 2 through appropriate
machinery, such as a government watchdog.
Article 4 goes on to collective bargaining. It requires that the law promotes "the full
development and utilisation of machinery for voluntary negotiation" between worker
organisations and employer groups to regulation employment "by means of collective
agreements."
Article 5 states that national law can provide different laws for the police and armed forces,
and the Convention does not affect laws that existed when an ILO member ratifies the
Convention. Article 6 further gives an exemption for "the position of public servants engaged
in the administration of the State".
Article 7 says ratifications should be communicated to the ILO Director General. Article 8
says the Convention is only binding on those who have ratified it, although the 1998
Declaration means that this is no longer entirely true: the Convention is binding as a fact of
membership in the ILO.
Articles 9 and 10 deal with specific territories where the Convention may be applied or
modified. Article 11 concerns denunciation of the Convention, although again, because of the
1998 Declaration, it is no longer possible for an ILO member to profess they are not bound by
the Convention: it is an essential principle of international law.
Article 12 states the Director General shall keep all members notified of which countries
have adhered to the Conventions. Article 13 states this shall be communicated to the United
Nations. Article 14 states the ILO Governing Body shall produce reports on the working of
the Convention.
Article 15 deals with revisions to the Convention (none have taken place yet), and Article 16
states that the English and French versions are equally authoritative23.
1.6.7.4 Forced Labour Convention, 1930 (No. 29)

The Forced Labour Convention, the full title of which is the Convention Concerning Forced
or Compulsory Labour, 1930 (No. 29), is one of eight ILO fundamental conventions24 of the
23
Tanzania ratified this convention on January 30, 1962
24
"Conventions and recommendations". International Labour Organization. 27 May 2011.
10
International Labour Organization. Its object and purpose is to suppress the use of forced
labour in all its forms irrespective of the nature of the work or the sector of activity in which
it may be performed.
The Convention defines forced labour as "all work or service which is exacted from any
person under the menace of any penalty and for which the said person has not offered himself
voluntarily", with few exceptions like compulsory military service 25 . The convention
excludes "adult able-bodied males", to whom legal imposition of forced labour is allowed26.
Article 2 of the Convention excepts from the term forced or compulsory labour the
following: (a) any work or service exacted in virtue of compulsory military service laws for
work of a purely military character; (b) any work or service which forms part of the normal
civic obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence of a conviction in a court
of law, provided that the said work or service is carried out under the supervision and control
of a public authority and that the said person is not hired to or placed at the disposal of private
individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to say, in the event of war, of a
calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or
epizootic diseases, invasion by: animal, insect or vegetable pests, and in general any
circumstance that would endanger the existence or the well-being of the whole or part of the
population;
(e) minor communal services of a kind which, being performed by the members of the
community in the direct interest of the said community, can therefore be considered as
normal civic obligations incumbent upon the members of the community, provided that the
members of the community or their direct representatives shall have the right to be consulted
in regard to the need for such services.
Article 11 of the Convention states that forced or compulsory labour may be imposed only
upon "adult able-bodied males who are of an apparent age of not less than 18 and not more
than 45 years".
25
26
11
1.6.7.5 Abolition of Forced Labour Convention, 1957 (No. 105)

The full title of which is the Convention Concerning Forced or Compulsory Labour, 1930
(No.29), is one of 8 fundamental International Labour Organization conventions. This
Convention commits parties to prohibit the use of forced labour, admitting only five
exceptions to it.
Its object and purpose is to suppress the use of forced labour in all its forms irrespective of
the nature of the work or the sector of activity in which it may be performed. The Convention
defines forced labour as "all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself voluntarily".
In order to implement the 1930 Forced Labour Convention and the 1957 Abolition of Forced
Labour Convention, the Special Action Programme to Combat Forced Labour was set up.
As per Article 1 of the Convention, Each Member of the International Labour Organisation
which ratifies this Convention undertakes to suppress and not to make use of any form of
forced or compulsory labour: (a) As a means of political coercion or education or as a
punishment for holding or expressing political views or views ideologically opposed to the
established political, social or economic system;
(b) As a method of mobilising and using labour for purposes of economic development; (c)
As a means of labour discipline; (d) As a punishment for having participated in strikes; (e) As
a means of racial, social, national or religious discrimination.
Article 2 of the Convention requires each Member of the International Labour Organisation
which ratifies this Convention undertakes to take effective measures to secure the immediate
and complete abolition of forced or compulsory labour as specified in Article 1 of this
Convention.
1.6.7.6 Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

The Convention concerning Discrimination in Respect of Employment and Occupation or
Discrimination (Employment and Occupation) Convention (ILO Convention No. 111) is an
International Labour Organization Convention on anti-discrimination.
It is one of eight ILO fundamental conventions. The convention requires states to enable
legislation which prohibits all discrimination and exclusion on any basis including of race or
colour, sex, religion, political opinion, national or social origin in employment and repeal
legislation that is not based on equal opportunities.
12
This Convention is cited by International Convention on the Elimination of All Forms of

Racial Discrimination in 1969 and the ILO Workers with Facility Responsibilities
Convention in 1981.
1.6.7.7 Equal Remuneration Convention, 1951 (No. 100)

The Convention concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value or Equal Remuneration Convention is the 100th International Labour
Organization Convention and the principal one aimed at equal remuneration for work of
equal value for men and women. States parties may accomplish this through legislation,
introduction of a system for wage determination and/or collective bargaining agreements. It is
one of 8 ILO fundamental conventions.
1.6.7.8 Minimum Age Convention, 1973 (No. 138)

The ILO Convention concerning Minimum Age for Admission to Employment C138 is a
convention adopted in 1973 by the International Labour Organization. It requires ratifying
states to pursue a national policy designed to ensure the effective abolition of child labour and
to rise progressively the minimum age for admission to employment or work. Convention
C138 replaces several similar ILO conventions in specific fields of labour27.
Convention 138 was developed to regulate child labour by setting a minimum age for
admission to employment that the signatories are to respect. This Convention came into force
on 19 June 1976. The minimum working age was set at 15 years (13 years for light work).
For dangerous work, the Convention set the bar for admission to employment at 18 years (16
years under certain conditions).
The Convention allows developing countries, whose economy and educational facilities are
insufficiently developed, to temporarily set the minimum age for admission to employment at
14 years. This decision must be thoroughly justified.
The ILO has also adopted Recommendation R146 to guide members in the application of this
Convention. Convention 138 aims to give children the right to live their childhoods. A child
who is not working has a better chance of developing properly, both physically and mentally,
and thus becoming a healthy adult.
The minimum age was set at 15 years to best ensure the well-being of the child. This
threshold is based on the age when a child’s development (growth, etc.) and basic education
are considered complete.
27
Tanzania ratified this convention on 16 December 1998
13
1.6.7.9 Worst Forms of Child Labour Convention, 1999 (No. 182)

The Convention concerning the Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labour, known in short as the Worst Forms of Child Labour
Convention, was adopted by the International Labour Organization (ILO) in 1999 as ILO
Convention No 182. It is one of eight ILO fundamental conventions.
The ILO also adopted the Worst Forms of Child Labour Recommendation No 190 in 1999.
This recommendation contains, among others, recommendations on the types of hazards that
should be considered for inclusion within a country-based definition of Worst Forms of
Hazards faced by Children at Work.
The worst forms of child labour that should be prohibited in ILO Recommendation No. 190
are: "Any work that exposes children to sexual abuse (physically or psychologically); Any
work that is done underground, under water, at dangerous heights or in confined spaces; Any
work that is done with dangerous machinery, equipment and tools; Any work that involves
the manual handling or transport of heavy loads; Any work that is done in an unhealthy
environment which may, for example, expose children to hazardous substances, agents or
processes, or to temperatures, noise levels, or vibrations damaging to their health; Any work
that is done under particularly difficult conditions such as work for long hours or during the
night or work where the child is unreasonably confined to the premises of the employer28."
NB: The UN General Assembly has adopted also a number of legally binding Conventions
concerning labour matters. The most important ones are the Convention on the Elimination of
All Forms of Racial Discrimination (1969), Elimination of all Forms of Discrimination
against Women (1979), Rights of the Child (1989), Status of the Refugees (1954) and Status
of Stateless Persons (1960).
1.6.8 WRITINGS OF PROMINENT JURISTS

Books and writings of prominent jurists are also important secondary sources of labour law.
These are for example: the New Encyclopaedia Britannica29 which contains a comprehensive
account on the history of labour law including a detailed description on why there was need
for the protection of the rights of employees in many jurisdictions of the world. In Tanzania,
writers such as Issa Shivji have written books such as the “Law, State and the Working Class
in Tanzania”.
28
29
Vol. 5, 1975
14
1.7 HISTORICAL BACKGROUND OF LABOUR LAW IN TANZANIA

Labour law in Tanzania traced back to the colonial period. Literatures assume that; in the
early societies, the working class was inexistent but it emerged during the colonial period.
This is the period when capital symbolized by the colonialists was introduced into colonial
Tanganyika. Before colonial period there was a class of peasants and a class of landlords.
The colonialists regulated labour through legislation known as Ordinances. The colonial
masters passed a number of Ordinances to regulate the relationship between the newly
created classes of semi-proletariats (workers). The Colonial statutes played a major role in
facilitating the aims of colonialism because of the nature of the relation between the
colonialists and the labourers30.
Thus, labour relations were imposed into the territory by force and they carried penal
sanctions through labour legislations. Such colonial legislations included: The master and
Native Servant (Written Contracts) Ordinance Cap.79; The Master and Native Servants
Ordinance Cap.78; the Master and Native Servant (Recruitment) Ordinance Cap. 80;
Employment of Women and Young Persons Ordinance Cap.82; The Porters (Restriction and
Employment) Ordinance Cap.171
It can be observed that most of these statutes were criminally in nature as failure to observe
them led to criminal liability. This reflects the objectives of colonial labour legislation which
were to safeguard the interests of the colonial masters. Therefore, the laws were strict to
ensure that the colonial interests are met even if this resulted to ill treatment of the workers.
However, the main labour statute of the colonial time was the Master and Native Servants
Ordinances of 1929.
This statute underwent various amendments before it was repelled and replaced by the
Employment Ordinance in 1955 (which came into force in 1957) 31 . Ever since, the
Employment Ordinance has been the main statute governing the relationship between
employers and employees from time to time.
Other important statutes that governed labour relations in Tanzania included the Permanent
Labour Tribunal Act of 1967 (the Industrial Court Act), the Security of Employment Act
1964 and the Workmen’s Compensation Ordinance Cap 263. Later, on all of the above named
statutes were repealed and replaced by the Employment Ordinance, Cap. 366.
30
Orde-Brown,G.( 1933). The African Labourer, London, Cass
31
Shivji, I. G. (1986). Law, State and the Working Class in Tanzania, James Shivji, I.G. (1986) Law, State and
the Working Class in Tanzania, Dar es salaam TPH.
15
Position-wise, it can be seen that, the Employment Ordinance was a kind of an umbrella
legislation designed to regulate relations between employers and employees by setting
minimum standards32. The said legislation remains an umbrella legislation today providing
for the minimum standards of a contract of employment despite its novelty.
Shivji (1986) groups the provisions of the Employment Ordinance in three categories: There
were provisions specifically designed to cover long distance migrant labour (contract labour
and irregular local labour); There were provisions which attempts to restrict and in some
cases to eliminate, semi-bondage features of wage labour which were recognized and
reflected in the previous legislation; Provisions which attempted to come to grips with the
development of a permanent labour force.
Most of these provisions were hardly repealed, and this makes the employment Ordinance to
be an old piece of legislation with some provisions which were inapplicable in the modern
contract of employment. A good example of the obsolete provisions included those which
covered the migrant worker and those which concerned relocation33.
1.7.1 The Security of Employment Act No. 62 of 1964 Cap 387

This was enacted to provide for the establishment of Workers' Committees in certain
businesses and undertakings, to restrict the powers of employers, businesses and 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 circumstances34.
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. For example Section 19 of the Act imposes several restrictions on the
part of employer and therefore no employer shall summarily dismiss any employee or
otherwise punish the employee for making any deduction from the wages due from him serve
for the breach of disciplinary code.
Section 5 of the Act establishes the Workers' Committee in every business in which ten or
more union members (being employees within the meaning of the Act) are employed. The
committee discharge the functions provided under Section 6 of the Act. Further Section 10
of the Act establishes the conciliation board.
32
Shivji, I. G. (1986). Law, State and the Working Class in Tanzania, James Shivji, I.G. (1986) Law, State and
the Working Class in Tanzania, Dar es salaam TPH.
33
Ibid
34
See the Long title of the Act
16
1.7.1.1 The Industrial Court of Tanzania Act No. 41 of 1967 Cap 60 (The Permanent
Labour Tribunal Act)
An Act to repeal and replace the Trade Disputes (Settlement) Act, 1962. The Act was
enacted 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 matters35.
This law created the machinery for settlement of collective industrial disputes between an
employer and a group of employees. These disputes were referred to as trade disputes. These
disputes concerned conditions of work, and terms of employment.
For example Section 15 of the Act established a tribunal to be known as the Permanent
Labour Tribunal 36 and as per Section 16 of the Act the Tribunal shall have jurisdiction
among others to hear and determine a trade dispute referred to it under the provisions of the
Act.
1.7.1.2 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 made
provisions regarding registration and deregistration of trade unions, their function and other
matters similar to those mentioned.
1.7.1.3 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.
1.7.1.4 PITFALLS UNDER OLD LABOUR LAW REGIME

The Law gave room for summary dismissal37. Jurisdiction to determine legal matters were
vested in quasi-judicial bodies like Labour Officer/Commissioner, Minister for Labour
affairs, and the Industrial Court (Refer, the Industrial Court Act).
Also, Section 28 (4) of the Industrial Court, made the award (decisions) of the Industrial
Court final and conclusive i.e. not appealable or reviewable in the courts of law. Unlike the
current regime where further determination of labour suits from quasi-judicial bodies goes to
the High court (Labour Division) that deals with labour matters.
35
36
It’s composition is under Section 17 of the Act
37
Section 42 of the Employment Act
17
The Acts were silent as to the issues such as Picketing during strike, use of the
replacement labour in lawful strike or lockout by employer, locking the employer in the
premises. The ELRA, 2004 in under Section 76 (3) prohibit the aforesaid conduct during
lawful strike or lockout.
Another major weakness of these laws was the manner in which labour disputes were
handled. The net effect of these statutes was a lot of confusion, overlap and general
inefficiency that did not conform well with the development of the employment sector and
obviously it was one of the hindrances to the investors.
1.8 BACKGROUND TO AND PROCESS OF LABOUR LAW REFORMS

By mid 1980s the Government of Tanzania realized that the past development policies and
strategies were not adequately responding to the changing market conditions not only in the
regional, and global economy but also within the domestic economy. As a result the
Government adopted and began to implement socio-economic reforms, as mentioned earlier,
which continue to be implemented to date. For the labour law reforms these came in the early
2000s38.
1.8.1 Process of Reform in Tanzania

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 Minister39.
Following the Task Force`s recommendations on those areas two Bills were prepared and
finally enacted into the Employment and Labour Relations Act 2004 and the Labour
Institutions Act 200440.
1.8.2 GROUNDS FOR REFORM

The reforms in the employment/labour sector, like in other sectors, were dictated by various
grounds within the employment sector but as well as external to this sector41.
38
Mtaki, C.K (2005). The New Labour Law in Tanzania: Implications for Employers, Employees and the
Economy. Paper presented at a Policy Dialogue Seminar on New Labour Laws in Tanzania at the Conference
Hall of the Economic and Social Research Foundation, 12th September, 2005
39
Ibid at p. 2
40
Ibid p. 3
41
18
1.8.3 EXTERNAL FACTORS

1.8.3.1 Globalisation
This process has posed additional challenges to developing countries (economies) like
Tanzania. With globalization: competitive pressures on trade, finance, production and market
has increased, much to the disadvantage of developing countries; policies of privatization,
and trade liberalization have been undertaken. These have undermined the effectiveness of
labour laws on employment standards, but also eroded worker`s right and benefits42.
1.8.3.2 Policy changes-from Planned to Market Economy

Since 1980s there has been a fundamental policy change from a planned to a market
economy. As a result employment has shifted from the public to the private sector43.
1.8.3.3 Regional and Sub-regional Development

Of late there have been major developments within SADC and the East African countries to
review their labour legislation and to develop labour market policies that meet the
requirements of the new investment environment with a view of developing a common
market and allow labour mobility within the member states. This calls for harmonization of
social and labour policies and legislation44.
1.8.3.4 De-linking Trade Unions From the Ruling Party

This move has opened a new era in terms of industrial relations. The Government has now
been assigned a new role of balancing the interests of employers on one hand, and those of
workers, on the other45.
1.8.4 INTERNAL FACTORS

These factors related specifically to the existing legal framework regulating employment and
labour relations in Tanzania. The framework is characterized with the following weaknesses:
The laws regulating employment standards are too many and old, some date back to
colonial times and are based on the out-moded concept of master-servant (manamba
42
43
Ibid
44
Ibid
45
Ibid
19
system). These laws have undergone many amendments some of which are extremely
difficult to comprehend46.
Dispute resolution procedures are lengthy and complex. In some cases the Minister is
ultimately responsible for deciding disputes involving termination of employment.
Admittedly, it is not feasible for a single person to decide such cases in a growing economy
without causing hardships to the parties. Moreover, it is not appealing in a market economy
for labour disputes of this nature to be resolved at political level47.
There is a confusion of roles by labour officers. On the one hand, they are required to
conduct labour inspections and investigations and, where necessary, prosecute employers in
courts of law48. On the other, they are required to chair conciliation boards and give decisions
which are binding on employers. In such cases, their neutrality is sometimes doubted.
The legislation does not permit free collective bargaining. Voluntary and negotiated
agreements have to be registered by the Industrial Court of Tanzania before they become
effective49.
Although provision is made for strikes and lock-outs in the existing laws in practice,
strikes and lock-outs are not permitted. The procedure for staging a strike or lock-out is
lengthy land cumbersome. As a result, dissatisfied employees have ended up locking out or
locking in their managers if there is an unresolved dispute.
The industrial relations system is weak and bureaucratic incapable of adapting to the
demands of a free market.
Some legislation are incompatible with the relevant ILO standards for example, senior
employees in the Civil service do not enjoy some of the core rights e.g. the right to form and
join trade unions.
46
47
Ibid
48
Ibid
49
Ibid
20
CHAPTER TWO:
FUNDAMENTAL RIGHTS AND PROTECTION
2.0 Introduction
Noteworthy, the National Employment Policy of 2008 stipulates that ‘the government will
safeguard the basic rights and interest of workers with regard to international labour
standards including equality of treatment’.
Thus, the ELRA has incorporated requirements of Core Conventions of the International
Labour Organisation (ILO) as well as others ratified by Tanzania. Core rights incorporated in
ELRA include: ◦Prohibition of child labour ◦ Prohibition of forced labour ◦ Prohibition of
discrimination ◦ Freedom of Association.
2.1 PROHIBITION OF CHILD LABOUR

There are various other laws providing for prohibition of employment of a child and some of
these are the Constitution of the United Republic of Tanzania, 1977, the Law of the Child
Act, and the Vocational Education and Training Act to mention a few. But when it comes to
employment and labour matters, the Employment and Labour Relations Act, 2004 is the most
relevant one.
2.1.1 Who is a child?

The definition of child depends on the particular law that a person need to apply. The
Constitution of the URT of 1977 as amended, the law of Child Act of 2009 and the
Employment and Labour Relations Act of 2004 defines who is a child.
Article 5 (1) of the URT Constitution of 1977 as amended provides for the Franchise that
is a persons who have attained the age of adult and able to vote. ‘Every citizen of the United
Republic who attained the age of eighteen years is entitled to vote in any public election held
in Tanzania. This right shall be exercised in accordance with the provisions of sub-article
(2), and of the other provisions of this Constitution and the law for the time being in force in
Tanzania in relation to public elections’
Therefore, since any person who has attained the age of 18 years is considered an adult, then
it follows any person below the age of 18 years is considered a child.
21
Again, the Law of Child Act of 2009 defines who is a child as per Section 4 (1), a person
below the age of eighteen years shall be known as a child’. However, in the labour law
context the term child has broader meaning depending on the application of the law.
Section 4 of the Employment and Labour Relations Act, 2004 defines a child as a person
under the age of fourteen years but for the purpose of employment in hazardous sector, it is
defined as a person under the age of eighteen years.
2.1.2 Rule against child employment

Generally the law prohibits employment of a child under the age of fourteen years. It
further prohibits employment of a child under the age of eighteen years in a mine,
factory, as a craw in a ship, or any other work site including non-formal settings and
agriculture where work conditions may be considered hazardous by the Minister.
In this regard the ELRA under Section 5 (1) prohibit any employer to employ a child under
the age of 14 years. The rule provides; ‘No person shall employ a child under the age of
fourteen years.’ This is an absolute prohibition against employment of children under the age
of 14 years without exception.
Section 5 (4) (a)-(b) of the ELRA, makes further provision that no person shall employ a
child in employment that is inappropriate for a person of that age or that places at risk the
child’s well-being, education, physical or mental health, or spiritual, moral or social
development.
However, Section 5 (2) of the ELRA gives an exception to the rule against child
employment to the effect that a child of 14 years can be employed to perform some light
tasks.
This provision reads thus; “A child of fourteen years of age may only be employed to do light
work, which is not likely to be harmful to the child’s health and development; and does not
prejudice the child’s attendance at school, participation in vocational orientation or training
programmes approved by the competent authority or the child’s capacity to benefit from the
instruction received.”
Thus from this provision it can be construed that the law permits employment of a child of
fourteen years in light work which is not likely to be harmful to the child’s health and
development and does not prejudice the child’s attendance at school, vocational orientation or
a training programme. The general welfare of the child must not be prejudiced.
22
Moreover, a child under 18 years of age is prohibited to be employed under hazardous

conditions as per Section 5 (3) of the ELRA which provides; “A child under eighteen years
of age shall not be employed in a mine, factory or as crew on a ship or in any other worksite
including non-formal settings and agriculture, where work conditions may be considered
hazardous by the Minister.”
To that effect the ELRA under Section 5 (6) empowers the Minister to prepare a list of
hazardous sectors and make it available to the public. Currently there is a draft list by the
Minister for Labour and Employment but the same has not come into effect50.
Under Section 5 (5) of the Act, any written law regulating the provisions of training may
permit a child under the age of 18 to work - (a) on board a training ship as part of the child's
training; (b) in a factory or a mine, if that work is part of the child's training; (b) in any other
worksites on condition that the health, safety and morals of the child are fully protected and
that the child has received or is receiving adequate specific instruction or training in the
relevant work or activity.
The ELRA under Section 5 (7) makes it an offence to employ a child contrary to the
provision of the mentioned Act or even to procure a child for employment in contravention of
the Act and the sanction thereof is provided for under Section 102 (2) of the ELRA which
empowers a District and Resident Magistrate’s Court to impose a penalty amounting to a fine
not exceeding five million shillings, imprisonment for a term of one year or to both fine and
imprisonment as the Court may deem fit, depending on the circumstance of the case.
As per Section 5 (8) of the ELRA, if one claim to have been unaware that the person he is
employing is a child or he was misled, that person will have a duty to prove that it was
reasonable for him or any other prudent person to believe that the child was above the
prohibited age. He must show that there was enough due diligent exercise which led him to
believe that he was not employing a child. Evidence of a birth certificate, interview records
with their parents, and any other relevant evidence to establish that he was misled could set
him free of the said offence.
2.1.3 Prohibition of Child Labour under the Child Act, (No.21) of 2009
The law of the Child Act under Section 12 provides for prohibition of employment of the
child which is harmful to his or her health, education, mental, physical or moral development.
50
In 2017, the United Republic of Tanzania made a minimal advancement to eliminate the worst forms of child
labour. The government published regulations to define hazardous work for children in several sectors and, for
the first time, explicitly prohibited hazardous tasks for children in the fishing industry. (See the 1st Schedule to
the Employment and Labour Relations (General) Regulations 2017 (GN 47 2017).
23
Anyone who contravene this part under Section 14 of the same Act is committed an offence
and on conviction will be liable to a fine not exceed five million shillings or to imprisonment
not exceeding six months, but under this Act also the duty of the child to work is recognized
since under Section 15 (b) the child do have the duty to work for the cohesion of the family.
Section 77 (1) of the Act, acknowledge the right to light work 51 for a child and as per
Section 77 (2) of the Act the minimum age for employment or engagement of a child in
those light work shall be fourteen years.
Section 78 (1) of the child Act prohibits a person from engaging a child in any kind of
exploitative work52, and as per Section 78 (4) of the Act, it an offence for engaging a child in
exploitative works within the meaning of the said provision, thus a person who contravenes
this provision he commits an offence and shall, on conviction, be liable to a fine of not less
than one hundred thousand shillings or to imprisonment for a term of three months or to both.
Furthermore the Child Act under Section 79 (1) also prohibits a child from being employed
or engaged in a contract of the service performance which shall require a child to work at
night53. The law under Section 79 (3) makes it an offence for any person who contravenes
any of the provisions of section 79, and upon conviction, be liable to a fine of not less than
one hundred thousand shillings or to imprisonment for a term of three months or to both.
Nevertheless, Section 80 (1) of the Act put some prohibition on forced labour to a child54.
Therefore any person, who induces, procures demands or imposes forced labour to a child,
commits an offence. It’s an offence under Section 80 (3) of the Act to engage a child in
forced labour and upon conviction one will be liable to a fine of not less than two hundred
thousand shillings or to imprisonment for a term of six months or to both.
51
"light work" shall constitute work which is not likely to be harmful to the health or development of the child
and does not prevent or affect the child's attendance at school, participation in vocational orientation or training
programmes or the capacity of the child to benefit from school (Section 77 (3) of the Act).
52
Section 78 (3) defines exploitative work to include any work that (a) deprives the child of his health or
development; (b) exceeds six hours a day; (c) it is inappropriate to his age; or (d) child receives inadequate
remuneration.
53
As per Section 79 (2) of the Act, "Night work" shall be construed to constitute work performance of which
requires the child to be at work between the hours of twenty hours in the evening and six o'clock in the morning.
54
Section 80 (2) For the purposes of this section, "forced labour" includes bonded labour or any other work
exacted from a person under the threat of a penalty but shall not include work that forms part of the normal civic
obligations, minor communal services performed by the members of a community in the direct interest of that
community.
24
In all cases where the child has been employed in compliance with the law, such child by
virtue of Section 81 of the Act has a right to be paid remuneration equal to the value of the
work done, shot of that one will be committing an offence55.
The law also makes it unlawful for anyone to employ a child in hazardous works56. Section
82 (2) of the Act clarifies as what constitute hazardous works and within the meaning of this
section a work shall be construed as or considered to be hazardous when it poses a danger to
the health, safety or morals of a person.
Further Subsection (3) of Section. 82 of the Act mention several areas that may be
considered to be hazardous, namely (a) going to sea; (b) mining and quarrying; (c) porter age
of heavy loads; (d) manufacturing industries where chemicals are produced or used; (e) work
in places where machines are used; and (f) work in place such as bars, hotels and places of
entertainment.
However, under Section 82 (4) of the Act, any written law regulating the provisions of
training may permit a child under the age of 18 to work (a) on board a training ship as part of
the child's training; (b) in a factory or a mine, if that work is part of the child's training; (b) in
any other worksites on condition that the health, safety and morals of the child are fully
protected and that the child has received or is receiving adequate specific instruction or
training in the relevant work or activity.
2.1.4 Prohibition of child labour under The Employment and Labour Relations
(General) Regulations 2017 (GN 47 2017)
Regulation 3 (1) embrace the rule against child employment. According to this provision no
person shall employ or cause to be employed a child under the age of fourteen, however
under sub-regulation 2 a child of fourteen of age and above may be employed to perform
light work which is not listed in the List of Hazardous Works for Children in a manner set out
in the First Schedule of the Regulations.
2.1.4.1 Circumstances permitted to employ a child under the Regulation

As per Regulation 4 (1) no child who is still attending school shall be required or permitted
to work in any establishment in excess of three hours per day.
Regulation 4 (2) is to the effect that A child of fourteen years and above who-(a) is on leave;
(b) has completed his studies; or (c) is not in school for any justifiable reason, may be
employed to work in an establishment for not more than six hours per day.
55
Section 81 (2) of the Act
56
25
The regulation also regulates time for rest and hours of work in the event a child is employed
in the permitted circumstances. As per Regulation 5 a child shall not work for more than
three consecutive hours, without at least, an hour rest. Similarly under Regulation 6 no child
shall be required or permitted to work- (a) overtime; or (b) between 8 pm and 6 am.
2.1.4.2 Contract of employment for the child

Regulation 10 requires that the contract of employment for child shall be in writing and the
child shall be entitled to a copy of the contract before commencing the employment. Further
sub-regulation 2 requires such contract to take into consideration the provisions of the Act,
Regulations, the Law of Contract Act and the Law of the Child Act, and shall be in a manner
set out in the Schedule to the Employment and Labour Relations (Code of Good Practice)
Rules, 2007.
2.2 PROHIBITION OF FORCED LABOUR

The Constitution of Tanzania under Article 25 (2) prohibits all forms of forced labour.
The Employment and labour Relations Act, 2004 under Section 6, also prohibits all forms
of forced labour. As per Section 6 (2) of the Act, forced labour includes bonded labour or
any work exacted from a person under the threat of a penalty and to which that person has not
consented. Any person who procures demands or imposes forced labour, commits an
offence57.
A person who unlawfully compels others to labour against their will commits an offence. The
Child Law prohibits imposing of forced labour or bonded labour on children. A person who
contravenes the provision related to forced labour from Child Law commits an offence and is,
on conviction, liable to a fine of not less than two hundred thousand shillings or to
imprisonment for a term of six months or to both58.
In some scenarios work which might sound like forced labour (no consent of the
employee is granted) does not fall within the ambits of forced labour. These scenarios
include: Any work exacted in cases of emergency; Work exacted under the National Defence
Act, 1966 for work of a purely military nature; Work that forms part of the normal civic
obligations of a citizen of Tanzania; Work exacted from a person who is convicted by a court
of law, provided the work is supervised by a public authority and the convict is not hired or
placed at the disposal of a private person59.
57
58
Section 80 of the Child Act
59
Section 6 (2) (a)-(e) of ELRA which align with Article 2 of Forced labour convention 1930 (No. 29)
26
2.3 PROHIBITION OF DISCRIMINATION AT WORK PLACE
2.3.2 Introduction
The new labour laws further prohibit discrimination in the workplace, of any kind, by the
employer, trade union or employers’ association. The breach of this prohibition amounts to a
criminal offence60. It is instructive that where discrimination is alleged in any proceedings,
the Respondent employer, trade union or employers’ association is legally required to
disprove the same.
For the purpose of determining discrimination at work place, the term the term employer is
defined to include an employment agency and the term employee is defined to include an
applicant for employment 61 . The law under Section 7 (10) of the ELRA require every
employer to take positive steps to guarantee equal remuneration for men and women for work
of equal value.
Discrimination has not been defined under the Tanzanian Labour Laws but Article 1 (a) and
(b) of Convention No 111 on Discrimination (Employment and Occupation) Convention,
1958 defines Discrimination to include:
(a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation.
(b) Such other distinction, exclusion or preference which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation as may be
determined by the member concerned after consultation with representative employers' and
workers' organisations, where such exist, and with other appropriate bodies.
Section 7 (4) of the Employment and Labour Relations Act, 2004 read together with
Rule 29 (1) of the Employment and Labour Relations (Code of Good Practice) Rules,
G.N. No. 42 of 2007, prohibits discrimination whether directly or indirectly against an
employee in any employment policy or practice, on one or more grounds including: colour,
nationality, tribe or place of origin, race, national extraction, social origin, political opinion or
60
According to Section 102 (3) any person convicted with an offence referred under Section 7, 8 and 9 may be
sentenced to a fine not exceeding five million shillings.
61
Section 7 (9) (a) (b) of ELRA
27
religion, sex, gender, pregnancy, marital status or family responsibility, disability,

HIV/AIDS, age or station of Life62.
As per Rule 28 of Employment and Labour Relations (Code of Good Practice) Rules,
G.N. No. 42 of 2007 Subject to Section 7(1) of the Act, the objective of Part III of the Rules
is to eliminate discrimination at the workplace and promote equality of opportunity and
treatment in employment.
Additionally, Section 7 (5) of the Employment and Labour Relations Act, 2004 provides
that harassment of an employee shall be a form of discrimination and shall be prohibited on
the same grounds as discrimination against colour, nationality, tribe or place of origin, race,
national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital
status or family responsibility, disability, HIV/AIDS, age or station of Life. As per Rule 29
(3) of the Rules, Harassment of an employee, whether of a sexual nature or otherwise,
constitutes a form of discrimination.
Under Section 7 (6) of the ELRA read together with Rule 28 (4) (a)-(c) of the
Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007,
the following circumstances can appear as discrimination but under the law they have been
described as not amounting to discrimination: (i) Taking affirmative action consistent with
promotion of equality or elimination of discrimination in the workplace (ii) To distinguish,
exclude or prefer any person on the basis of an inherent requirement of a job (iii) To employ
citizens in accordance with the National Employment Promotion Services Act, 1999.
The first thing, in order to prevent discrimination an employer is required to develop a plan
toward that goal. Thus the law under Section 7 (1) and (2) of the ELRA read together with
Rule 30 of the Employment and Labour Relations (Code of Good Practice) Rules, G.N.
No. 42 of 2007, requires employer to promote an equal opportunity in employment and
strives to eliminate discrimination in any employment policy or practice.
Rule 30 (2) of the Rules63 requires that, in developing the plan the employer is obliged to
consult the trade union leader in developing the plan and must incorporate the plan in a
collective agreement. However, as per Rule 30 (3) of the Rules 64 , where there is no
62
Direct discrimination occurs where an employee is treated prejudicially in the listed form of discrimination.
Indirect discrimination occurs where a requirement or condition which on face of it appears to be neutral, but
has an effect of discriminating against the person or category of persons on any the grounds under Section 7 (4)
of the Act (See Rule 31 (2) (3) of the Rules)
63
The Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007
64
28
recognised trade union in the workplace, the employer shall invite representatives of the
employees to participate in developing plan.
It is the requirement under Rule 30 (4) of the Rules65 that the plan shall take into account, all
employees entitled to equal opportunity and equal treatment, subject to an assessment of their
abilities in relation to the employer's organisational needs.
The species mentioned under Section 7 (9) (c) of the ELRA read together with Rule 30 (5)
of the Rules must generally be embodied in the plan. Thus the plan shall contain policies (a)
with regard to recruitment procedures, advertising and selection criteria, an employer may
direct that interview panels as far as possible comprise men and women, job adverts highlight
any affirmative action policies in existence, or that selection criteria be audited to ensure they
strictly relate to the inherent requirements of a job;
(b) With regard to appointments and the appointment process, an employer may direct that
preference in selection be given to suitably qualified candidates from previously
disadvantaged groups. These groups include, but are not based on any of those grounds listed
above but are not limited to, women and people with physical and/or mental disabilities;
(c) with regard to job classification and grading, remuneration, employment benefits and
terms and conditions of employment, the employer may require an audit to ensure these relate
strictly to objective criteria, such as the inherent job requirements;
(d) With regard to the working environment and facilities, the employer may audit that these
are non-discriminatory that employees with disabilities are not disadvantaged;
(e) with regard to job assignments, training and development, performance evaluation
systems, promotions and transfers, the employer may take steps to ensure these opportunities
are determined objectively, without discriminating against any groups or classes of
employees; and
(f) With regard to demotion, termination of employment and disciplinary measures, the
employer may audit that these are based on fair and objective criteria.
As per Section 7 (3) (b) of the ELRA, the employer is required to register a plan to promote
equal opportunity and to eliminate discrimination with the Labour Commissioner.
By virtue of Rule 30 (8) of the Rules then the employer shall establish a committee, or task
an existing committee, to promote the application of the employment discrimination plan in
65
29
the workplace. The Rules stipulate that the committee must be responsible to take all practical
measures to foster and communicate understanding and acceptance of the principle of non-
discrimination and to promote equality among employees; investigating complaints that the
plan is not being observed and, if necessary, making recommendations or decisions about the
manner in which discriminatory practices may be corrected.
The law further under Rule 37 (1) (2) of the Rules, require every employee to carry out his
employment functions to avoid discrimination and take actions to prevent any discrimination
that may come across in the work place. Thus In order to promote a non-discriminatory work
environment, employees shall (a) comply with the plan's measures to avoid discrimination;
(b) notify the employer or the recognised trade union of any suspected discriminatory
conduct; and (c) refrain from harassing or victimising employees.
2.3.3 Prohibition of discrimination in trade unions and employer association

As per Rule 38 of the Rules Trade union leaders and representatives also plays an important
role on behalf of their members in preventing discrimination and in promoting equal
opportunity and good employment relations.
Section 8 of the ELRA read together with Rule 38 (2) of the Rules states that Trade unions
shall not discriminate by unfairly refusing membership or offering membership or offering
less favourable terms of membership on any discriminatory grounds such as those referred to
in Section 7(4) of the Act. Section 8 (2) of the ELRA makes it an offence for anyone who
contravene the above provisions.
Under Rule 38 (3) of the Rules, trade unions shall accept that discriminatory conduct by their
members may be treated as a disciplinary offence by employers.
Rule 38 (4) of the Rules requires trade unions to provide training and information for
officials and representatives on their responsibilities for equal opportunity, and must co-
operate in developing, implementing and monitoring plans to eliminate discrimination and
promote equality.
2.3.4 Recourse against discrimination at work place

It should be noted that any person who contravene the provision of subsection (4) and (5) of
Section 7 commits an offence as per Section 7 (7) of the ELRA. Thus, an employee who
feels that he or she have been unfairly discriminated against, or that an employer has
contravened the laws, he or she can lodge a complaint at the Commission for Mediation
and Arbitration (CMA) within 60 days of the alleged unfair discrimination taking place.
30
If the CMA is not able to resolve the dispute through mediation, the matter can either be
referred for arbitration or to the Labour Court for adjudication. If the alleged act of
discrimination was committed by a fellow employee, it can first be dealt with internally as a
grievance.
In the case of Antony Francis Muniygo v. Total Tanzania Ltd & Others 66 , R.M
Rweyemamu, J stated that “....Therefore in a case of employment discrimination the
employee must establish the following ingredients to prove his claim (a) That, there is
differentiation in treatment between the complainant and employee who are doing similar
works and are similarly situated. That would entails establishing comparable similarities in
qualifications, job expert and productivity (b) that the said differentiation is based on
prohibited ground traits enumerated under Section 7(4). (c) That the complainant is
discriminated on such grounds.
Section 7 (8) (a) (i)-(ii) of the Act, is to the effect that where the employee makes out a
prima facie case of discrimination by the employer on any grounds prescribed under
subsection 4, it shall be the duty of the employer to prove that the discrimination did not take
place or that the discriminatory act or omission is not based on any of those grounds.
The employer must also prove a defence in terms of subsection (6) if the discrimination did
take place on a ground stipulated in subsection (5). In resolving the dispute Section 7 (8) (c)
of the ELRA require the Labour court or arbitrator as the case may be to take into account
any plan registered with labour commissioner.
2.4 FREEDOM OF ASSOCIATION

2.4.2 Introduction
Under the new labour regime, every employee has the right to form or join a trade union and
participate in its lawful activities. However, a senior management employee is barred from
joining a trade union that represents non-senior management employees of the employer.
On another note, every employer is entitled to form or join an employers’ association and
participate in its lawful activities. The Constitution of Tanzania under Article 20 provides
for freedom of association while the Employment and Labour Relations Act allows the
workers and employer to establish and join unions.
66
Labour Complaint No. 30 of 2009, High Court (Labour Division) (unreported)
31
Section 9 of the ELRA67, guarantees employee’s right to freedom of association as such

employee shall have the right to form and join a trade union and participate in the lawful
activities of the trade union.
This is clearly reflected under Article 2 of the Freedom of Association and Protection of
the Right to Organise Convention68, which also discusses the same thing that employees are
allowed to form trade unions or association69
Equally Section 10 of the ELRA guarantees the employers right to form and join an
employer’s association and to participate in lawful activities of an employers association.
Despite the fact that the law guarantee the right to form and join association but there are
some limitations regarding magistrates, prosecutors and senior management employees. In
this respect the provisions of Section 9 (2) (a)-(c) are instructive. According to this
provision a magistrate may only form and join a trade union that restricts its membership to
judicial officers. In the same vein the prosecutor may only form and join a trade union that
restrict its membership to prosecutors or other court officials and in respect to senior
management employee may not belong to a trade union that represent the non-sector
management employees of the employer.
It’s a trite law that no person shall discriminate against an employee on the ground that the
employee exercise the right to form and join a trade union under the Act Section 9 (3) and
Section 10 (2) of the ELRA, no person shall discriminate against an employee or employer
on the grounds that the employee or employer exercises or has exercised the rights under the
Act or even discriminate an employee on the ground that he belongs to or has belong to a
trade union or employer’s association or even discriminate an employee or employee on the
ground that he participates or he participated in lawful activities of a trade union or employers
association.
Also the law prohibits discrimination against an official or official bearer of trade union or
employers association or federation for reprinting it or participating in its lawful activities and
it’s an offence under Section 9 (5) and Section 10 (4) for any person who contravene the
provision of Section 9 (3) (4) and that of Section 10 (2) and (3) and where one is convicted
with such offence the law under Section 102 (3) imposes a sentence to a fine not exceeding
67
No. 6 of 2004
68
1948 (No. 87)
69
The said Article reads thus; Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing
without previous authorisation.
32
five million shillings. As per Section 11 of the ELRA, every organisation has the right to
plan and organise its administration and lawful activities, join and form a federation,
participate in the lawful activities of a federation.
The above position is evidently reflected under Article 3 (1) of the Freedom of Association
and Protection of the Right to Organise Convention, the said Article reads thus; “Workers'
and employers' organisations shall have the right to draw up their constitutions and rules, to
elect their representatives in full freedom, to organise their administration and activities and
to formulate their programmes”. This provision has definitely clarifies both employers and
employees to form organisation or association in full freedom so that to organise their
activities and programmes as reflected by our National laws.
It is also provided under Section 11(c) (d) (e) of the ELRA, that every organisation has the
right to join and form federation; participate in the lawful activities of a federation and
affiliate with, and participate in affairs of any International workers’ organisations or
International employers’ organisation or the International Labour Organisation, and to
contribute to, or receive financial assistances from those organisations.
The same thing has been reflected from Article 5 of the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No.87) whereby workers’ and
employers’ shall have rights to form federation and the same shall have the right to affiliate
with international organisations of workers and employers70.
The Act under Section 4 defines the word Organisation to mean the trade union or an
employers’ association. Article 10 of the Convention defines the same word to mean “any
organisation of workers or of employers for furthering and defending the interests of workers
or of employers”. Under the Employment and Labour Relation Act, No. 6 of 2004 both
Section 9 and 10 give the right to both employees and employers to form and join trade
union and association in that nature as it is also reflected under Article 11 of the Convention
No. 87. In this Article the law requires all state parties to this Convention applies in their
domestic laws to allow both employees and employers to form and join their associations or
trade union of their choice71.
70
Workers' and employers' organisations shall have the right to establish and join federations and confederations
and any such organisation, federation or confederation shall have the right to affiliate with international
organisations of workers and employers.
71
Each Member of the International Labour Organisation for which this Convention is in force undertakes to
take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right
to organise.
33
CHAPTER THREE:
EMPLOYMENT STANDARDS
3.0 Employment Standards defined

This refers to set of benchmarks established by Tanzanian labour laws and regulations, below
which no employment relationship should fall. Essentially these provisions are intended to
lay down the minimum terms and conditions of employment which employers and employees
must respect when making, and during the subsistence of, a contract of employment. The
standards are derived from various ILO Conventions. The standards include inter alia;
leave72, reasonable working hours, as well as fair and just remuneration.
As per Section 13 (2) (a)-(c) of the ELRA, An employment standard constitutes a term of a
contract with an employer unless for example a term of contract contain a term more
favourable to the employee. A provision on wage determination that stipulates a minimum
term and condition of employment shall be an employment standard73.
Exceptions: Provisions do not apply to seafarers whose terms and conditions of employment
are regulated under the merchant shipping Act 2003 except for Seafarers who work for
fishing vessels and in the event there is any conflict between the MSA and its regulations, the
provisions of ELRA shall prevail74.
Where the provision of any written law to vocational training regulates an employment
standard stipulated in Section 13 (1) of ELRA, the provision of that other law shall apply75.
3.1 Objectives of employment standards

The objective of employment standards is to protect workers from contracting to their
detriment. Accordingly, employment standards are supposed to:◦ Protect the core rights of all
employees.◦ Provide minimum standards that can be flexibly varied by either collective
bargaining or individual contracts but within carefully considered limits e.g. hours of work.◦
Recognize and take account of the diversity of the modern labour market.
72
Annual leave, maternity leave, sick leave, and compassionate leave
73
Section 13 (1) of the ELRA
74
Section 12 (1) and (2) of the ELRA
75
34
3.2 Employment defined
According to Section 4 of the Employment and Labour Laws (Miscellaneous

Amendments) Act, 2015, “employment” means the performance of a contract of
employment by parties to the contract, under employer-employee relationship;
3.3 An Employee
According to Section 4 of the ELRA, an employee means an individual who-has entered into
contract of employment or has entered into any other contracts under which, the individual
undertakes to work personally for the other party to the contract; and the other party is not a
client or customer of any profession, business or undertaking carried on by the individual Or
an individual who is deemed to be an employee, by the minister under Section 98 (3).
Section 98 (3) of the ELRA provides that “the Minister may after consultation with the
council, may, by notice in the Gazette, deem any category of persons to be employees for the
purpose of this section, any provisions of this Act or any other written law in respect of which
the Minister is responsible”
But also, an employee can be defined as any person who perform work or service for another
person for remuneration or reward on such terms and conditions as agreed upon by the parties
or as provided for in the respective employment legislation.
Under the Tanzania Labour laws a person who renders service to any other person including
for specific task is presumed to be an employee until the contrary is proved if one or more
scenarios itemized under Section 61 of the Labour Institutions Act exists.
3.4 Presumption as to who is employee
Section 61 of the Labour Institutions Act (LIA) Act No 7 of 2004 76 provides For the
purpose of a labour law, a person who works for, or renders services to, any other person is
presumed, until the contrary is proved, to be an employee, regardless of the form of the
contract, if any one or more of the following factors is present: (a)The manner in which the
person works is subject to the control or direction of another person, (b) The person’s hours
of work are subject to the control or direction of another person, (c) In case of a person who
works for an organization, the person is a part of that organization. (d) The person has worked
for that other person for an average of at least 45 hours per month over the last three months.
(e)The person is economically dependent on the other person for whom that person works or
76
This provision codifies some of the common law tests of determining contract of service
35
renders services, (f) The person is provided with tools of trade or work equipment by the
other person; or (g) The person only works for or renders services to one person.
In Tanganyika Instant Coffee Co. Ltd vs. Jawabu W. Mutembei77; it was held that (i) A
casual labour is an employee if he satisfies the requirements of section 61 of the Labour
Institutions Act, Act No 7 of 2004.
3.4 The Meaning of Employer
Employer according to Section 4 of the ELRA is any person, including the government and
an executive agency, who employs an employee. Generally an employer is determined by the
contract of employment between the two people thus one is an employer and the other who is
subordinate to him is an employee.
3.5 EMPLOYMENT CONTRACT
Generally, the Law of Contract Act governs all types of contracts in Tanzania. But for
specific types of contracts there are specific laws governing the same. For example the
Employment and Labour Relations Act specifically provides for Employment Contracts. It is
therefore correct to state that the Employment and Labour Relations Act, 2004 together with
the Law of Contract Act govern employment contracts.
The term employment contract can be traced to the Roman concept of “locatio conductio78”
thus letting and hiring of services. This is what which is alternatively known as a contract of
service79.
There are three types of locatio conductio; thus Locatio conduction rei- (letting and hiring
specific item in return for money payment), Locatio conductio operis-(letting and hiring
services by an independent contractor), Locutio conductio operarum- (letting and hiring
personal service for money). It is this last category of Locutio conductio operarum, which
gives rise to an employment contract.
Tanzanian labour Law requires that workers should be provided written employment contract
at the start of employment except those who work less than 6 days in a month for an
employer80.
Section 14 (2) of the ELRA has been amended under Section 5 of the Employment and
Labour Laws (Miscellaneous Amendments) Act, 2015, which amended Section 14 (2) of
77
Revision No. 210 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam. (Unreported).
78
In Roman law, locatio conductio is a consensual contract, by which a person becomes bound to deliver to
another the use of a thing for a certain time, or to do work at a certain price.
79
Madhuku, L. Labour Law in Zimbabwe, Weaver Press, Zimbabwe, 2015, 25
80
36
the ELRA by inserting the words “within or” between the words “work” and “outside”
appearing in subsection (2). Thus by virtue of this amendment Employment contract must
be in writing if it provides that the worker is to work within or outside the United Republic of
Tanzania.
Noteworthy, oral contracts are permissible; however an employee must be supplied with a
Written Statement of Particulars containing terms listed under the Act. It is however not
advised to enter into an oral contract of employment because in case of any legal proceedings
the burden of proving or disproving an alleged term of employment shall be on the employer.
If an employer fails to produce a contract of employment or written statement of particulars
he/she will then fail to prove any term contained therein and the dispute might be decided
against him/her. It is therefore very important to supply an employee with a written contract
or at least a Written Statement of Particulars.
3.5.1 Types of employment contract
As per Section 14 (1) of the ELRA, the employment contract may be of definite or
indefinite period or for a specific task. Thus the ELRA categorized employment contracts
into three categories: Unspecified time, specified time (reserved for professionals and
managerial cadre), and specific task contract81.
3.5.2 Contract for unspecified time
A contract for an unspecified period of time: As the name explains, for this type of
contract the duration of employment is unspecified, meaning not provided for. Some call it a
permanent contract.
3.5.3 Contract for specific time
Contract for specified period of time: This is a type of contract in which the duration is
specified. Under this contract if the specified duration has expired then the contract
automatically comes to an end. A contract for a specified period of time could be of duration
of one month, three months, one year, two years etc.
3.5.4 Contract for specific task
Contract for a specific task: This is a kind of contract in which a person is employed to
perform a specific task. Once the task is completed then that contract comes to an end. For
example, it could be that a person is employed to offload crates of soda from a truck and once
that task has been completed then the contract ends. Section 4 of the Employment and
81
Section 14 (1) (a) (b) and (c) of the ELRA
37
Labour Laws (Miscellaneous Amendments) Act, 2015, defines “specific task” means a
task which is occasional or seasonal and is non-continuous in nature;”
In Nzito Furniture (T) Ltd vs. Said Rashid Mwambo and 3 others82; it was held that
where an employee is employed to perform a specific task, his employment ends at the
completion of the task. However, when employee continues to work, it ceases to be a contract
for a specific task.
3.6 CONTENT OF EMPLOYMENT CONTRACT
As per Section 15 (1) of ELRA, An employment contract must state the following
information: name, age, permanent address and sex of the worker; place of recruitment; job
description; date of commencement; form and duration of the contract; place of work; hours
of work; remuneration, the method of its calculation, and details of any benefits or payments
in kind, and any other prescribed matter.
However, by virtue of Section 15 (2) of the Act, the employer may dispense with this
requirement if these particulars have already been provided in employment contract, thus the
employer may not furnish the written state of employment particulars.
Section 15 (3) of the ELRA, place the duty on the shoulders of the employer to ensure that
all the written particulars are clearly explained to the worker in a manner understandable by
the worker. If there is a change in any of the written particular, the employer is required to
revise the written particulars in consultation with the worker to reflect the changes. Employer
must notify the worker about the change in writing83.
The employer is obliged to keep the written particulars for a period of five years after the
termination of employment84. If an employer fails to produce a written contract in any legal
proceedings, the burden of proving or disproving an alleged term of employment is on the
employer85. Every employer has to display a statement of employee's right in a conspicuous
place86.
3.6.1 Fixed Term Contracts
Tanzanian labour Law prohibits hiring fixed term contract workers for tasks of permanent
nature. A contract of employment may be concluded for an unspecified (indefinite) period of
time, for a specified period in the case of professionals and managerial cadre and for a
82
Revision No. 248 of 2013: High of Tanzania (Labour Division) at Dar es Salaam (Unreported)
83
84
85
86
Section 16 of the ELRA
38
specific task. There is no other provision in the Employment and Labour Relations Act, 2004
on number of times a fixed term contract may be renewed or the maximum length of fixed
term contracts.
Employment and Labour Relations (General) Regulations, 2017 under Regulation 11,
stipulate that the fixed term contract for professionals and managerial employees cannot be
less than 12 months. If a worker continues working after the expiry of fixed period, the rights
and obligations remains the same, in the absence of any agreement to the contrary, as they
were at the expiration of the term.
3.7 DISTINCTION BETWEEN CONTRACT OF SERVICE & CONTRACT FOR

SERVICE
Frankly speaking, unlike its predecessor (the Employment Act, Cap 336), the ELRA doesn’t
define the term contract of service. Under the repealed Act the term contract of service is
defined to mean interlia 'any contract whether in writing or oral, whether express or implied
to employ or to service as an employee for any period of time or number of days to be
worked, or to execute any task or piece of work or any journey….'. This is not very helpful
definition in contemporary labour disputes since it is repealed, save for transitional disputes
which rose before December, 2006.
Essentially in any dispute, be it of interest, right or tortuous as the case for vicarious liability,
it’s crucial to determine the relation between disputing part because this will go a long way to
determine on how such rights and obligations accruing in that particular relation should be
enforced.
In this respect therefore it’s important to make distinction between contract of service
(reserved for employees) and contract for service (reserved for independent contractor).
Therefore it can be said that the range of obligations imposed to the employer differs
significantly where on is working under contract of service and where one is working under
contract for service.
However it’s not easy sometimes to draw distinction between the two as the two concepts in
certain occasion may appear blurred and hence difficult to draw the distinctions. For the
purpose of drawing distinction various test have been established through case laws and these
includes the followings;
39
3.7.1 The Control test;
This test is all about who has the right to tell an employee what to do. If one person can tell
another what job to do, how it is to be done and when, where, and with whom, then that party
is an employer in law and the other an employee and the contract thereto is known as the
contract of service. To make it simple, a person is an employee when one person controls not
only what he or she does but also the manner of doing it87 .
This was the traditional test. In Collins v. Hertfordshire 88 CC, Hilbery J said: "The
distinction between a contract for services and a contract of service can be summarized in this
way: In one case the master can order or require what is to be done, while in the other case he
can not only order or require what is to be done, but how it shall be done."
But in Cassidy v. Ministry of Health 89 , Somervell LJ pointed out that this test is not
universally correct. There are many contracts of service where the master cannot control the
manner in which the work is to be done, as in the case of a captain of a ship. He went on to
say: "One perhaps cannot get much beyond this 'Was the contract a contract of service within
the meaning which an ordinary person would give under the words?'".
In Yewens v. Noakes90 , it was held that a servant is a person subject to the command of his
master as to the manner in which he should do his work.
In the case of Short v J & Handson Ltd 91 , lord Thankerton laid down four tests for
determining a contract of employment. These are:- (a) The master’s power of selecting his
employees (b) The payment of wages or other remunerations (c) The master’s right to control
the method of doing the work and (d) The master’s right of suspension or dismissal.”
He however continues to add that the control test is the best is the most important to
determine the relationship between the employer and employee. This position is further
supported by Mercey Docks and Harbrum Board v. Coggins and Griffith 92 . In
determining which employer is liable, the court laid down four major principles:
Firstly, there is a strong presumption that the general (original) employer continues to be the
master; secondly, that the burden is on the general employer or permanent employer to prove
that there is transfer of services, thirdly, that this burden can be discharged by proving that
entire and absolute control was transferred to the hirer and that the employee has expressly or
87
Rideout, R., Principles of Labour Law, 4th edn. London, Sweet & Maxwell, 1983, at p. 4
88
[1947] 1 All ER 633
89
[1951] 1 All ER 574
90
[1880] 6 QB
91
[1951] ALL ER 574
92
[1946] 2 ALL ER 345
40
impliedly consented to the to the transfer. Fourthly, that a term in the contract between the
general employer and the hirer stipulating as to who shall be the master of the servant.
Lord Porter observed: “I think the most satisfactory test by which to ascertain as who is the
employer at any particular time is to ask who is entitled to tell the employee the way in
which he is to do the work upon which he is engaged.”
The Control Test is used to determine the type of relationship involved, therefore establishing
whether vicarious liability will apply. Mason J in Stevens v Brodribb93 , pointed out that the
control test was based on the right to control the activities of the employee. The court looks
more to the practice of the parties rather than the contract itself. If the Master controls what
the employee does and how it is done, then the employee is a servant. The relationship will
give rise to Vicarious Liability.
3.7.2 The Organization Test;
This is sometimes known as integration test , under this to determine whether a person is
under a contract for service or a contract of service the question normally asked is whether a
person is an integral part of a given organization in which he works? . If the answer is yes
then there is a contract of service. If not then it is a contract for service.
This test was proposed by Lord Denning in Stevenson, Jordan and Harrison Ltd v Mc
Donald and Evans94: 'It is often easy to recognize a contract of service when you see it, but
difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the
staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-
man, and a newspaper contributor are employed under a contract for services. One feature
which seems to run through the instances is that, under a contract of service, a man is
employed as part of the business; whereas, under a contract for services, his work, although
done for the business, is not integrated into it but is only accessory to it.'
Under this test, skilled persons and professionals qualifies as employees although the
employer has no control over the manner in which they discharge their duties. The major
difference between this test and control test is that there is still an element of control, while
under the control test the employer controls ‘ how’ the work is done under the organisational
test the employer controls the ‘when’ and ‘where’.
93
Stevens v Brodribb Sawmilling Co Pty Ltd [1986]
94
[1952] 1 TLR 101
41
In the case of Rosen v. Queen95 , the organization test was used to determine whether a
university professor who used to lecture in three universities was serving under a contract for
service or a contract of service. This was important for income tax purposes. It was argued by
the professor that he was an independent contractor.
This submission was dismissed by the court on the ground that he was doing what any
university professor would do and so he was serving under a contract of service because what
he did formed an integral part of the business of the university.
3.73 Allocation of financial risk/the economic reality test/the multiple tests:
This is sometimes called pragmatic because it is not based on rigid doctrines. It is multiple
because it draws its conclusion from multiplicity of factors. In order to know whether there is
a contract of service or a contract for service the answers to the following indicators are
important:-Whether the person performing the services in a given concern is doing so in his
own account; Whether there is power to hire and fire the employee; Whether there is a direct
payment of some form of remuneration; Whether there are any deductions made on
remuneration.
Lord Wright suggested a complex test involving (i) control; (ii) ownership of the tools; (iii)
chance of profit; (iv) risk of loss (Montreal v Montreal Locomotive Works [1947] 1 DLR
161). In a later case, Cooke J referred to these factors and said that the fundamental test was:
'Is the person who has engaged himself to perform these services performing them as a person
in business on his own account?' If the answer is yes, it is a contract for services; if no, it is a
contract of service.
There is no exhaustive list of considerations relevant to determining this question, and no

strict rules about the relative weight the various considerations should carry in a particular
case. Factors which could be of importance were: (i) whether the person hires his own
helpers; and (ii) what degree of responsibility for investment and management he has (Market
Investigations v Minister of Social Security [1968] 3 All ER 732).
These factors were considered to be significant in: Ready Mixed Concrete v Minister of
Pensions and NI96, where ‘owner-drivers' who delivered concrete in vehicles purchased on
HP from an associated company, painted in company colours and which could not be used for
private purposes or other haulage business, were employed under a contract of carriage than
95
[1976] CTC 462
96
[1968] 1 All ER 433
42
of service. Ownership of the assets (the vehicle), the chance of profit and the risk of loss were
the driver's. These factors were inconsistent with a master-servant relationship.
The alleged employee should establish to the satisfaction of the court that there existed a legal
obligation on both parties to provide work and to do work respectively. Furthermore, the
worker may establish that he or she worked for the purported employer only.
3.7.3 The 280 days rule;
Under common law and the transitional employment law a worker once established that he or
she had worked for a person for 280 days annually qualified as employee thus the contract of
service exist between the two. In LIA the alleged employee is required to prove only that he
or she worked for the presumed employer for 45 hours per month over the last 3 months thus
at the expiration of the said time one may be deemed as an employee.
3.8 HOURS OF WORK

3.8.1 Introduction
Regulating working time is a major and the oldest concerns of labour legislation. Recognizing
its importance, ILO adopted its very first convention in 1919, which limited hours of work (8
hours a day, 48 hours a week). The said convention also provides for adequate (daily and
weekly) rest periods.
According to ILO Conventions 1 and 30, the standard or normal working hours should not
exceed forty-eight hours in a week and eight hours in a day. Convention 01 is applicable to
the industrial undertakings which include among others mines, quarries and other processes
for extractions of minerals, construction, maintenance and repair of buildings, railways,
telephone installations, gas works, transport services, etc. On the other hand, Convention 30
covers those employees, which are engaged in commerce sector and administrative
activities/office work.
3.8.2 Hours of work under the ELRA
The Employment and Labour Relations Act of 2004 regulates working hours in terms of the
number of hours that a worker can be engaged in a day, night work, and overtime97. Section
Section 18 of the ELRA, defines “day” to mean a period of 24hrs measured from the day the employee
97
normally starts the working week and “daily” has the corresponding meaning. The section also defines
“overtime” to mean the work over and above ordinary hours of work. Under the section also the term “week”
43
19 (1) of the ELRA, sets the maximum hours that a worker may be permitted to work: It
prohibits an employer to allow an employee to work for more than 12 hours in any day.
The same section under subsection 2 (a)-(c), the maximum number of ordinary days or hours
that an employee may be permitted or required to work. The employee ordinarily is required
to work for a maximum of nine hours a day, six days in any week, and 45 hours in any week.
On account of competition and productivity, again, the Minister responsible for labour
matters is empowered under Section 100 of the ELRA to exempt some employers from the
enforcement of the legal limits of working hours. In this way, when the employer feels like
the working hours prescribed by law should not apply to their workplaces they would apply
for exemption to the Minister. Similarly, the Minister can grant the exemption on his own
volition. Although the Minister has not issued any exemptions relating to working hours, no
doubt the powers may be invoked at any time if need be.
Irrespectively, ELRA provides that those working more than 9 hours a day are entitled to
overtime payment and that in total, overtime hours should not exceed 50 hours in any four
week cycle98. Compensation for overtime hours is set at not less than one and one-half times
the employee’s basic wage99.
The 50 hours limit is the maximum irrespective of whether there is any agreement in respect
of overtime work100. Also, as noted above, it is prohibited for an employee to be required to
work more than 12 hours in any day. The practice however, is significantly different:
employees are required or circumstantially forced by their employers to work more than 12
hours a day.
In Omary Mwinyimvua and others v. M/S Sengo101, it was held that the extra hours work
have to be proved. The same have to be claimed at the end of each month when and as they
accrue
It is notable under Section 17 (1) of the ELRA that the hours of work provisions contained in
the ELRA do not apply to employees who manage other employees on behalf of the employer
and who report directly to a senior management employee. Equally under Section 17 (2) of
has been defined to mean a period of seven days measured from the day the employee starts working week and
“weekly” has a corresponding meaning.
98
99
100
101
Rev. No. 157 of 2009 ·
44
the ELRA the provision will not be applied in the case where an employee has to work in an
emergency which cannot be performed by employees during ordinary hours of work.
Related to working hours are rest periods: daily break, daily rest and weekly rest periods
to which employees are entitled to as hereunder detailed;
3.8.3 Break in working day
To begin with daily break, the ELRA under Section 23(1) pegs at 60 minutes breaks in a
working day. Where an employee is required by the employer to work during the break, the
Act under Section 23 (3) imposes an obligation on the employer to pay the employee for the
break that the employee has worked. However subject to the provision of Section 23 (2)
recognise two circumstances on which the employer may require an employee to work
during overtime, and this is where the work cannot be left unattended or cannot be
performed by another employee.
3.8.4 Daily and weekly rest periods
Apart from a break in a working day, an employee is also entitled to a daily rest, which
according to Section 24 (1) (a) (b) of the ELRA, is a minimum of 12 consecutive hours
between ending and recommencing work.
However, in terms of Section 24 (2) (a)-(c) of the ELRA, where there is a written agreement
in respect to working hours and rest periods, or where ordinary working hours have been
interrupted by an interval of at least three hours or where the employee lives on the premises
of the workplace, then daily rest period may be reduced up to 8 hours.
An employee under Section 24 (1) (b) of the ELRA is also entitled to a weekly rest
period which is fixed to at least 24 hours between the last ordinary working day in the
week and the first ordinary working day of the next week.
However, the law under Section 24 (3) (a)-(b), provides that a written agreement may
provide for a rest period of at least 60 consecutive hours every two weeks or a reduced
weekly rest period by eight hours if the rest period in the following week is extended
equivalently.
Nonetheless, under Section 24 (4) of the ELRA, the employee may work during the weekly
rest period if s/he has agreed to do so in which case the employer is compulsorily required to
45
pay the said employee double the employee’s hourly basic wage for each hour worked during
the period.
More often than not, when employees work during their weekly rest period, compensation to
that effect is calculated on the basis of overtime payment, thus one-half times the employee’s
basic wage and not double the hourly basic rate (ILO, 2009).
3.8.5 Work on public holidays
This is also the case for employees who work on public holidays, thus according to Section
25 of the ELRA, where an employee works on a public holiday specified under the Cap. 93,
the employer is obliged to pay such an employee double the employee’s basic wage for each
hour worked on that day.
The public holidays are regulated under the Public Holidays Ordinance, 1966. It includes the
following holidays: New Year Day (January 01), Zanzibar Revolution Day (January 12),
Maulid Day (January 03), Good Friday (April 03), Easter Sunday (April 05), Easter Monday
(April 06), The Sheikh Abeid Amani Karume Day (April 07), Union Day (April 26), Workers
Day (May 01), International Trade Fair/Saba Saba Day (July 07), Nane Nane (Peasants) Day
(August 08), Eid-el-Fitri (July 17), Mwalimu Nyerere Day (October 14), Idd-El-Hajj
(September 23), Independence and Republic Day (December 09), Christmas Day (December
25), Boxing Day (December 26). Dates of Muslim festivals are subject to the sighting of
moon and thus are liable to change.
NB: Holidays falling on Saturday or Sunday are kept on those days. Act No.10 of 1994 has
been repealed and holidays falling on Saturday or Sunday are no longer compensated.
3.8.6 NIGHT WORKS
According to the ILO convention 171, night work is "all work which is performed during a
period of not less than seven consecutive hours, including the interval from midnight to 5
a.m.". The 'period' and 'specified time limit' are determined by the competent authority (in a
country) after consultation with worker and employer organizations.
Thus Section 20 (1) of the ELRA, defines night work as work performed between 8.00 pm
and 06.00 am, which is also very common in many establishments, an employer is required to
pay an employee at least 5% of that employee’s basic wage for each hour worked at night and
46
if the hours worked are overtime hours, the 5% shall be calculated on the employee’s
overtime rate102.
Section 20 (4) of the ELRA, imposes a duty on employer to transfer any employee working
night shift who becomes certified as unfit to do night works unless its impracticable.
From the foregoing, it would seem that employees, who work in shifts and their shifts fall
within the night time, would be entitled to, over and above their normal salaries, the 5% extra
pay.
However, the 5% for night work has been qualified by the Labour Court to only be available
for workers who can “show that the hours were worked at night, and the work was over and
above the normal duty of the employee. “As such, employees working on a night shift would
not qualify for the extra pay for night work as s/he would have worked the normal hours.
3.8.6.1 Prohibition of night works for pregnant women and children
Section 20 (2) (a) and (b) (i) and (ii) of the ELRA, prohibits night work for pregnant
women two months before expected date and two months after the date of birth, or in both
cases, without regard to the two months limit set, if there is a medical certificate 103 to
indicate that a pregnant woman or mother is unable to perform night work. Furthermore the
law under Section 20 (2) (c) and (d), prohibits night works for children under 18, and an
employee certified as unfit to do night work.
ILO Convention 171 talks about maternity protection for women night workers. It requires
that an alternative to night work must be available for (pregnant) women night workers before
and after child birth, for a period of at least sixteen weeks of which at least eight weeks shall
be before the expected date of childbirth. This period of exemption from night work (of 16
weeks) can be extended on production of a medical certificate stating that night work may be
harmful for the health of mother or child. During this period, a women worker can't be
dismissed or given dismissal notice, except for just cause, which is not connected with
pregnancy or child.
102
103
Within the meaning of Section 20 (5) of the ELRA, medical certificate means a certificate issued by a
registered medical practitioner or any other medical practitioner a accepted by the employer, which acceptance
may not be unreasonably withheld.
47
3.9 REMUNERATION
In accordance with Article 23 of constitution of Tanzania, every person without

discrimination of any kind is entitled to remuneration commensurate with work and all
persons working according to their ability are remunerated according to the measure and
qualification for the work. Every person is entitled to just remuneration.
3.9.1 Remuneration and basic wages distinguished
Section 4 of the Employment and Labour Relations Act 2004 differentiate between
''remuneration'' and "basic wage". Remuneration is the total value of all payments, in money
or in kind, made or owing to a worker arising from the employment of that worker. Basic
wage means that part of a worker's remuneration paid in respect of work done during the
hours ordinarily worked but does not include allowances (whether or not based on the
worker's basic wage) and pay for overtime work.
3.9.2 Calculation of wage rates
The Employment and Labour Relations Act regulates the payment of wages to all classes of
workers. According to this Act, wages can be calculated on hourly, daily, weekly or monthly
basis and be determined in accordance to Table provided in 1st Schedule. Workers employed
on a basis other than time worked are paid weekly and their wages are calculated on the basis
of average amount earned over 13 weeks or according to their period of employment (if it is
less than 13 weeks)104.
3.9.3 Payment of remuneration
As per Section 27 (1) (a)-(c) of the ELRA, employers are obliged to pay the worker his/her
monetary remuneration during the working hours at the place of work on agreed pay day in a
sealed envelope, if payment is made in cash or through cheque. Remuneration may be deposit
directly into an account designated by the worker in writing 105 . Minister responsible for
labour matters may allow partial payment of remuneration in-kind instead of cash for the
personal use of the worker and his/her family106.
104
105
106
48
Regulation 13 (1) of the Employment and Labour Relations (General) Regulations, 2017
provides that, Notwithstanding the type of contract or the basis of employees’ remuneration,
payment thereof shall be done monthly or in any other period agreed by the parties basing on
the nature or technical requirements of the job.
Section 27 (2) of ELRA provides that, an employer should provide pay slips to all workers
along with payment in cash or by cheque; or given to a worker in sealed envelope in case of
direct deposit.
Regulation 13 (2) of the Employment and Labour Relations (General) Regulations, 2017
have detailed provisions on the particulars of the pay slip. Thus according to this
regulation a written statement of particulars issued shall be contained with the following
particulars: (a) name of employee; (b) date, month and year of payment in respect of which
payment is made; (c) name of employer or logo; (d) employment or check number; (e)
statutory deductions; (f) other deductions; (g) gross or basic salary; and (h) net salary.
3.9.4 Deduction and other acts concerning remuneration
The payment of remuneration to an employee must be in the form of money; not in kind.
Section 28 (1) of the ELRA raise a general rule that an employer is not entitled to make any
deductions from an employee’s remuneration. But this general rule is not without any
exceptions. Thus Section 28 (1) (a) (b) of the ELRA contains an exception to the general
rule.
The exception thereto is where the deduction is permitted by written law, collective
agreement, wage determination, court order or arbitration award. Where the deduction is not
based on any of the above grounds, the employee must agree in writing to such deductions
from his remuneration. Indeed, the legal restriction on deductions from remuneration has
been contentious, especially where the employer unilaterally deducts from the remuneration a
sum of money to recover loans and advance payments made to an employee.
The labour tribunals and the courts of law have been consistent that in the absence of a
written agreement between the parties or court order sanctioning the deduction, such
deduction is unlawful.
In terms of Section 28 (2) of the ELRA, deduction can also be made if a worker agrees in
writing to the deduction in respect of a debt or to reimburse the employer for loss or damage
49
caused by the worker. Total amount of deduction must not be more than one quarter of the
worker's remuneration in cash107.
3.10 LEAVE
According to the Employment and Labour Relations Act no 6 of 2004 and the Public Service
Act no 8 of 2002 as amended in 2007, the following are the types of leaves; annual leave, sick
leave, maternity leave, paternity leave, and leave without pay.
The Public Service Act no 8 of 2002 provides other three more types of leaves not provided
for under the Employment and Labour Relations Act of 2004; these types of leaves are
sabbatical leave, secondment and leave pending retirement. These types of leave are covered
below.
3.11 ANNUAL LEAVE

3.11.1 Entitlement for annual leave
As per Section 31 (1) of ELRA, employees are entitled to paid annual leave of at least 28
consecutive days, including public holiday which fall within 28 days, in a leave circle of 12
months. However Section 31 (2) of the ELRA provides that the number of days for annual
leave may be reduced if the employer had granted the employee paid occasional leave prior to
the granting of the annual leave.
As per Section 29 of the ELRA, A worker with less than six months of service is not entitled
to paid leave under the Employment and Labour Relations Act, unless the worker is
employed on a seasonal basis or has worked more than once in a year for the same employer,
and the total period worked for that employer exceeds six months in that year108.
3.11.2 Time for granting annual leave
As to when the leave may be granted, Section 31 (3) of ELRA is instructive. Under this
provision the employer has been given the mandate to determine when the annual leave may
be taken provided that it is taken no later than six months after the end of the leave cycle of
12 months if the employee has consented and the extension is justified by the operational
requirements of the employer.
107
Section 28 (2) (e) of the ELRA
108
Section 29 (2) (a) and (b) of the ELRA
50
Nevertheless, Section 30 (2) of the ELRA provides that the employer and the employee may
agree to a standard leave cycle provided that an employee’s entitlement to paid leave is not
prejudiced.
3.11.3 Conditions regarding annual leave
To ensure that the employee’s annual leave is not prejudiced, the employer under Section 31
(6) of ELRA is prohibited to require or permit the employee to work for him/her during any
period of annual leave. It has been the law that an employer must not require or permit an
employee to work during any period of annual leave.
However the said section has been amended under Section 6 (a) of the Employment and
Labour Laws (Miscellaneous Amendments) Act, 2015, thus dispense with the old
restriction.
Thus with the consent of an employee, the employer may require or permit such employee to
work for the employer during a period of annual leave on condition that such employee shall
not work for a continuous period of two years109.
The new regulations appear to contradict the position of the principal law. Regulation 14 (2)
of the Employment and Labour Relations (General) Regulations 2017 (GN 47 2017),
provide that an employer must ensure that no employee is continuously working in any leave
cycle without applying for annual leave, notwithstanding an agreement between the employer
and employee to work for payment in lieu of annual leave.
The new regulations seem to allow an employee to work during his or her annual leave
provided that he or she has applied for the leave.
The employer under Section 31 (5) of the ELRA is prohibited to require or permit an
employee to take annual leave in place of any other leave that the employee is entitled to such
as sick leave, maternity leave and paternity leave.
Section 31 (7) of the ELRA, prohibits the employer to pay an employee an amount of money
in substitution for the annual leave to which the employee is entitled whether or not the
employee agrees to such payment. This section also has been amended under Section 6 (b) of
the Employment and Labour Laws (Miscellaneous Amendments) Act, 2015.
109
Section 6 (a) of the Employment and Labour Laws (Miscellaneous Amendments) Act, 2015
51
Thus the amending section provides that, the employer should pay the employee one-month
salary in lieu of annual leave to which that employee is entitled or was called upon to work.
Under Section 31 (4) of the ELRA, a worker is entitled to his normal wages in the duration
of his/her annual leave. The payment has to be made before leave is taken.
An employer is prohibited to pay compensation in lieu of annual leave except on termination

of employment or the expiry of each season in respect of a worker employed on a seasonal
basis110. Apart from this provision, any agreement providing compensation in lieu of annual
leave is null and void.
The amount of compensation is calculated at the rate of one day's basic wage for every 13
days the worker worked or was entitled to work111. By virtue of Section 31 (9) of the Act, an
employee will not be entitled to any pro rata amount for accrued annual leave if the
employee has not taken the leave within periods and circumstances prescribed under Section
31 (3).
However, the powers given to the Minister under section 100 to exempt some employers
from the application of the above provisions in view of economic development through
economic efficiency, productivity and social justice, it is argued, waters down essentially all
employees rights under the well-structured and worded labour.
3.12 SICK LEAVE

3.12.1 Entitlement for sick leave
Under Section 32 (1) (2) (a) and (b) of the ELRA, an employee is entitled to sick leave for
at least 126 days during one leave cycle. The employee is entitled to full wages during the
first 63 days of the sick leave. For the second 63 days, the ailing employee is entitled to half
wages. An employer under Section 32 (3) (a) and (b) of ELRA is not obliged to pay an
employee wages during sick leave if the employee does not produce a medical certificate112
issued by a medical practitioner or the employee is entitled to pay sick leave under any law,
fund or collective agreement.
110
111
112
Within the meaning of Section 32 (4) of the ELRA, medical certificate means a certificate issued by a
registered medical practitioner or any other medical practitioner a accepted by the employer, which acceptance
may not be unreasonably withheld.
52
During this period, a sick employee should be assured job security. According to Section 102
of the Occupational Health and Safety Act, 2003, an employer cannot dismiss a worker
during his/her period of sickness and occupational disease. If an employee is unable to work
due to bad health condition, his employer may terminate his contract in accordance with the
procedure prescribed for termination of employment.
3.12.2 Medical benefits
Medical benefits are available for insured workers and these include general medical care,
specialist care, medicine, hospitalization, and transportation. According to Standing Order
K.1 (1) of the Public Service Standing Orders, 2009 113, “all public servants serving in
whatever terms are entitled to medical and surgical attention covered by National Health
Insurance Fund, National Social Security Fund and any other health insurance scheme
recognized by the Government”.
Standing Order K.1 (2) provides that the employer should pay for the medical or surgical
attention to the public servant, spouse, children and dependants in case such medical attention
is not covered by the National Health Insurance Fund, National Social Security Fund or other
health insurance schemes.
3.13 MATERNITY LEAVE
Maternity (or pregnancy) leave entitlements were first introduced to protect the health of
working mothers and their new-born children. They ensure women a period of rest from work
before and after childbirth and a return to their previous job within a limited number of weeks
after childbirth.
This is a forms of leave provided for under the law. However, a Collective Bargaining
Agreement or an internal policy can provide for more forms of leave. Maternity Leave is
covered under Sub-Part D of the Employment and Labour Relations Act, 2004.
3.13.1 Entitlement for Maternity leave
As per Section 33 (6) (a) and (b) of the ELRA, employees are entitled to 84 days paid leave
within any leave circle. Leave may be increased to 100 days if more than one child is
born. Moreover, under Section 33 (7) of the ELRA, an employee is entitled to an additional
113
Made pursuant to S.35 (5) of the Public Service Act, Cap.298
53
84 days paid maternity leave within a leave cycle if the new-born dies within a year of
birth.
These days include rest days and Public Holidays. However if due to any birth/ delivery
complications thus an employee require extra days, one should hold a discussion with the
employer in terms of the possibility of using Sick Leave days, or some days from Annual
Leave, or getting extra unpaid leave days.
Section 33 (8) of the Employment and Labour Relations Act 2004, requires an employer
to grant paid maternity leave to an employee only four times during the entire duration
of the service. Thus it’s clear that as per the laws governing private sectors an employee can
have up to four terms of Maternity Leave in the course of employment with the same
employer. Where the employee ask for maternity leave let say on fifth time the employer
cannot be refused your Maternity Leave, but it will be without pay.
As per Section 33 (5) of the ELRA, pregnant and nursing workers cannot work in hazardous
places. Accordingly in the event where the employee performs work that is hazardous the law
under Section 33 (9) require an employer to offer her suitable alternative work if practicable
on the terms and conditions that are no less favourable than her terms and conditions.
An employer is under the law required to give an employee on Maternity Leave only her
usual salary that an employee would be entitled if she had attended work. However, if
additional benefits have been provided under internal policies of the organisation/enterprises
then the employer will be obliged to pay.
Section 33 (3) of the ELRA prohibits an employee to work within six weeks of her birth
child unless the medical practitioner certifies that she is fit to do so.
3.13.2 Eligibility for Maternity leave
An employee becomes eligible for Maternity Leave after completion of six months’ work
from the commencement of your employment contract. Another criterion for eligibility of
Maternity Leave is the requirement of the law for an employee to give written notice to the
employer of her intention to take Maternity Leave at least three months before the expected
date of birth. Such notice must be supported by a medical certificate as defined under
Section 33 (11) of the Act. It’s therefore advisable for an employee to give three months’
54
notice because an employer can refuse to give a paid Maternity Leave because of failure to
follow the laid down procedures.
3.13.3 Commencement and end of Maternity leave
As per Section 33 (2) (a) and (b) of ELRA, An employee may commence her Maternity
Leave at any time from four weeks before the expected date of confinement or on an earlier
date if certified by Medical Practitioner that it is important for the health of the mother or
unborn child.
The law under Section 33 (4) requires the employee to resume the employment on the same
terms and conditions of employment at the end of her maternity leave.
One can be terminated from employment she is pregnant or soon after returning from
Maternity Leave but the reason should not be related to pregnancy or giving birth. An
employer can terminate the employment for other reasons such as misconduct or
underperformance, but only after adhering to the laid down procedures. Thus it is prohibited
under Section 37 (3) (b) (i) of the Employment and Labour Relations Act, 2004 to
terminate an employee on grounds of pregnancy.
3.13.4 Medical entitlement during maternity leave
The law provides that the employer will have a duty to cater for her employee’s medical bills
if the employee leave under the employer’s premises or the same has been negotiated and put
under a Collective Bargaining Agreement, or if the employer has an internal policy which
provides for medical services for employees.
Some pension funds like the National Social Security Funds do have a product on Maternity
Benefits. Maternity Benefits have two elements, Maternity Medical Care and Maternity
Cash Benefit.
A woman who is registered with NSSF can receive these, provided she meets the following
conditions: (i) In the period between first registering with the fund and the expected week of
confinement, she must have paid 36 contributions; (ii) In the 36 months immediately
preceding the expected week of confinement, she must have paid 12 contributions. If both
those conditions are satisfied, the woman will qualify for both benefits. If either condition is
not satisfied, she will not qualify for either of the benefits.
55
3.13.5 Right to breastfeeding
Section 33 (10) of the ELRA, provides that where the employee is breastfeeding, the
employer is obliged to allow her time off, not exceeding two hours, to feed the child during
working hours.
Also, it should be noted that with regards to female employees' right to breastfeed their
children, they are now under Regulation 15 of the Employment and Labour Relations
(General) Regulations, 2017, allowed leaving the office for a maximum of two hours at their
convenience during working hours to breastfeed their children. This right extends
consecutively for a period of six months after maternity leave.
The previous labour law did not provide a period for which new mothers may go and
breastfeed, however, the two hours were granted. This provision now places uniformity to all
employers which previously would have varied.
3.14 PARTENITY LEAVE

3.14.1 Entitlement for paternity leave
The labour reforms have factored in the concerns of working male parents as well. Thus male
employees are entitled to a paid paternity leave of 3 days. Section 34 (1) (a) (i) and (ii) of
Employment and Labour Relations Act 2004 provides for paid paternity leave of at least 3
days114 (in a leave cycle of 12 months) for a new father if this leave is taken within the 7 days
of the birth of a child.
The only conditions stipulated under the said Section are that the employee must be the father
of the newly born child and that the leave must be taken within the first days of the birth of
the child.
The employer under Section 34 (2) of the ELRA may require reasonable proof of birth of
child prior to paying for paternity leave. The employee must be employed with the same
employer for at least six months in the 12 months before the birth or be employed on a
seasonal basis by the same employer.
114
As per Section 34 (3) (a), the three days are the total number of days to which the employee is entitled
irrespective of how many of the employees children are born within the leave cycle.
56
The Employment Act further provides for what we may refer to as “compassionate leave”.
An employee is entitled to 4 days115’ paid leave in the event of death or sickness of the
employee’s child. Upon the death of the employee’s spouse, parent, grandparent, grandchild
or sibling, the employee is nevertheless entitled to 4 days’ paid leave116.
3.15 Leave without pay (sabbatical leave) entitlements
Standing Order H.19 (2) of the Public Service Standing Orders of 2009 provides for the
leave without pay which may be granted to a public servant who stands for political elections
or who attends higher education, a course or training or accompanying a spouse outside the
country which is not in the training programme of the employer.
In order for this leave to be granted, applications for leave without pay described above shall
be made through the employer who shall forward it with recommendations to the Permanent
Secretary (Establishments), for approval.
On the other hand, the Public Service Management Policy of 1999 provides clearly on
sabbatical leave, which is normally initiated by the employee’s desire to work outside his or
her organization for a maximum period as restricted by the law, for the purpose of gaining
new skills and experiences from a different working environment with quite different
organizational arrangements.
As per the Standing Order H. 19 (1) of the Public Standing Orders, 2009, the Permanent
Secretary (Establishments) may grant leave without pay to public servants provided that
he/she is satisfied that it is in the public interest to do so. An employee is obliged to obtain
such approval before he/she goes on leave without pay.
115
As per Section 34 (3) (b), the four days are the total number of days to which the employee is entitled
irrespective of how many events prescribed in that paragraph occur within leave cycle, but the employee may
take more days as authorized by employer for the event and other subsequent events within the same leave cycle
provided that such extra days will be without pay.
116
Section 34 (1) (b) (I) (ii)
57
CHAPTER FOUR:
TERMINATION OF EMPLOYMENT CONTRACT UNDER THE LAWS OF
TANZANIA
4.0 Introduction
The central source of legislative regulation on the termination of employment in the United
Republic of Tanzania is the Employment and Labour Relations Act, 2004, (ERLA) and the
Rules made under the Act117.
The ELRA repeals the Security of Employment Act 1964, the Employment Ordinance 1956
and the Severance Allowance Act 1962 in whole under Section 103 (1) of the ELRA118.
The repealed legislation was previously the main source of regulation for termination.
Essentially 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.
It worth nothing to note that the law on termination of employment in Tanzania align with the
ILO termination of Employment Convention, 1982 (No. 158).
4.1 TERMINATION OF EMPLOYMENT UNDER OLD LABOUR REGIME

4.1.1 The doctrine of hire and fire and summary dismissal under old labour regime
Frankly speaking the doctrine of hire and fire119 originated from common law jurisprudence
and so to speak the doctrine is premised on the notion that the employer may dismiss or fire
the employee on his own pleasure without for example assigning the reasons for termination
of the employment.
Notably, being the common law doctrine, the same was imported into our laws by virtue of
Section 2 (3) of Cap. 358 which generally made the substance of common law applicable in
Tanzania. Generally during the colonial period the doctrine was instrumental in oppressing
African labour who worked in different colonial economic setups.
117
Employment and Labour Relations (Code of Good Practice) Rules of 2007, which together with the ELRA
depict several forms of termination employment, their procedures, justification and their resultant repercussions.
118
See also the 2nd Schedule to the Act
119
In the case of Macmillan Aidan Limited v. Blandina Luca Mohamed Revision no 292 of 2008,High court of
Tanzania (labour division ) at Dar-es-salaam (unreported), Labour court put clear that right to hire and fire is not
part of Tanzania labour laws.
58
As the result of being part of our law the doctrine was subsequently injected in our laws. For
example Section 42 of the Master native Servant Ordinance protected much the interest
and will of the masters at the expense of the servants who were native Africans. The
provision provided that employer can dismiss the worker as he wishes without following
procedures.
Section 37 of the employment Ordinance which adopted the doctrine of hire and fire under
the name of summary dismissal gave power the employer to dismiss the employee summarily
without giving reasons.
With the inception of the Security of Employment Act, it was viewed that the doctrine of
hire and fire could to an end though it was not the case. The Act generally restricted the
termination of employment in various sectors for the purpose of security of tenure of workers,
consequently the Act created procedure of how to terminate the employment contract.
Section 21 (1) of the Security of Employment Act, empowers the employer to dismiss the
employee summarily for misconduct listed under the schedules of the Act. The Act further set
the procedure to be followed in the event of commission of the misconducts warranting
penalty by summary dismissal.
The said procedure were that; • Commission of the misconduct–preliminary investigation

then the Letter to show cause and the response • Where the response does not set the
employee free of the offence then the Disciplinary Committee is formed as an impartial body
to investigate and recommend • Imposition of the penalty to the employee. • Appeal to the
Labour Reconciliation Board. • Further appeals to the Minister for Labour. • Judicial Review
to the High Court of Tanzania.
The concept of summary dismissal was also reflected under Section 42 of the repealed
Employment Act, Cap 366 where the reasons that may warrant summary dismissal were
unequivocally stated. The amendment of security employment Act of 1975 generally gave a
leeway to an employee who has been summarily dismissed to refer the dispute to the labour
conciliation board and the board was empowered under the Act to order reinstatement or re-
engagement.
In the case of Kitundu Sisal Estate v. Shingo and Others120, the court, Law, J. A., gave a
definition of summary dismissal which has since been followed as a classic authority on what
constitutes summary dismissal. The court said Summary dismissal means dismissal without
120
[1970] EA 555
59
notice, and the plaintiff’s contention that their services were wrongly terminated without
notice can only, in our view, be construed as a contention that they were summarily
dismissed.
Summary dismissal had its own dispute resolution machinery which started with the labour
conciliation board; appeals lied to Honourable Minister responsible for labour matters whose
decision was final and conclusive challengeable by way of judicial review only to the High
court121.
Under summary dismissal the employee is not paid any terminal benefits such as repatriation,
subsistence allowance, and one month salary in lieu of notice. In the event the one month
salary is paid in lieu of notice then that is not summary dismissal.
Section 28 of the Security of Employment Cap. 574 of the Laws, ousters the jurisdiction of
other courts and other quasi-judicial bodies to deal with summary dismissal.
The Section reads: - (1) No suit or other civil proceedings (other than proceedings to enforce
a decision of the Minister or the Board on a reference under this part) shall be entertained in
any civil court with regard to the summary dismissal or proposed summary dismissal, or a
deduction by way of a disciplinary penalty from the wages of an employee.
NB: In Elidhiaha Fadhili v. The Executive Director, Mbeya District Council122; it was
held that (i) the new labour laws are not applicable for causes of action arose before the new
laws came into effect. It goes without saying that the old law on termination of employment
contract has no place in current labour law regime which generally requires fair reasons and
procedures before terminating the contract and thus replacing summary dismissal.
4.2 TERMINATION OF EMPLOYMENT UNDER NEW LABOUR REGIME

4.2.1 Meaning of termination of employment
Termination of employment means ending the employer-employee relationship between an
employer and employee. Termination of employment can be initiated by any of the parties to
a contract of employment.
Article 3 of ILO termination of Employment Convention, 1982 (No. 158), states that for
the purpose of this Convention the terms termination and termination of employment mean
termination of employment at the initiative of the employer
121
Sections 24, 25, 26, 27, 28 & 29 of the Security of Employment Act Chapter 387 R. E. 2002
122
Civil Appeal No 24 of 2014; Court of Appeal of Tanzania at Mbeya (Unreported)
60
The law emphasis on both substantive as well as procedural requirements of termination of

employment. Section 36 of the ELRA states that for the purpose of Sub-Part E, ‘termination
of employment’ includes: lawful termination under the common law; termination by the
employee because the employer made continued employment intolerable for the employee,
failure to renew a fixed term contract on the same or similar terms if there was a reasonable
expectation of renewal, failure to allow the employee to resume work after taking maternity
leave granted under the ELRA or any agreed maternity leave, failure to re-employ an
employee if the employer has terminated the employment of a number of employees for the
same or similar reasons and had later offered to re-employ one or more of them123.
4.3 TERMINATION OF EMPLOYMENT FOR EMPLOYEE UNDER
PROBATIONARY PERIOD
4.3.1 Probationary period defined
The ELRA does not regulate probationary period as such. A probationary period in an
employment setting is a set period of time wherein an employee’s performance is monitored
closely in order to assess their capabilities. Probationary periods are often applied to new
employees as a means of determining their capabilities in a new job.
Probationary periods, or simply “probation”, may vary according to the nature of the
business involved.
The purpose of probationary period is stated under Rule10 (3) of the Code of Good Practice
Rules, 2007, and according to this provision the purpose is normally to enable the employer
to make an informative assessment of whether the employee is competent to do the job and
suitable for employment. The law requires under Rule 10 (2) of the Code of Good Practice
Rules, 2007, terms of probation to be made known to the employee before the employee
commences employment.
In Edi Secondary School v. Ezekiel Damas Sinyangwe 124, it was stated that unless the
employer provides for the terms of probation to an employee and procedure for termination
during the probationary period, termination shall be unfair.
4.3.2 Period for probation

Under Rule10 (4) of the Code of Good Practice Rules, 2007, the period should be of a
reasonable length of not more than twelve months, having regard to factors such as the
nature of the job, the standards required, the custom and practice in the sector.
123
See also Rule 3 (1) of the Code of Good Practice Rules, 2007
124
Revision No. 10 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported).
61
However under Rule 10 (5) of the Code of Good Practice Rules, 2007, an employer may,
after consultation with the employee, extend the probationary period for a further reasonable
period if the employer has not yet been able to properly assess whether the employee is
competent to do the job or suitable for employment.
4.3.3 Activities to be done by employer during probationary period

Under Rule 10 (6) of the Code of Good Practice Rules, 2007 during the period of probation,
the employer shall-(a) monitor and evaluate the employee's performance and suitability from
time to time: (b) meet with the employee at regular intervals in order to discuss the
employee's evaluation and to provide guidance if necessary. The guidance may entail
illustration. Training and counselling to the employee during probation.
Rule 10 (7) of the Code of Good Practice Rules, 2007, adds that where at any stage during
the probation period the employer is concerned that the employee is not performing to
standard or may not be suitable for the position the employer shall notify the employee of that
concern and give the employee an opportunity to respond or an opportunity to improve.
The employee under this respect by virtue of Rule 10 (9) of the Code of Good Practice
Rules, 2007 he shall be entitled to be represented in the process by a fellow employee or
union representative.
4.3.4 Termination of employment under probation

Under Rule (8) of the Code of Good Practice Rules, 2007, the employment of a
probationary employee shall be terminated if-(a) the employee has been informed of the
employer’s concerns;(b) the employee has been given an opportunity to respond to those
concerns; (c) the employee has been given a reasonable time to improve performance or
correct behaviour and has failed to do so
It’s important to note that, under Section 35 of ELRA the employee with less than 6 months
employment with the same employer whether under one or more contract are not covered
with the provisions contained in sub-part E of the Act which is on unfair termination of
employment125.
This is evident in the case of Mwaitenda Ahobokile Michael v. Interchick Co. Ltd126:
where it was stated that an employee is excluded under section 35 of ELRA as a beneficiary
125
Rule 10 (1) of the GN. 47, provides that all employees who are under probationary periods of not less than 6
months, their termination procedure shall be provided under the guidelines.
126
Labour Dispute No. 30 of 2010: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
62
of the ELRA for suing or filing complaint under the guise of unfair termination when the life
of his employment was less than six months.
In the same vein the Court in Patrick Tuni Kihenzile v. Stanbic Bank Tanzania Limited127
excluded employee under probation with less than 6 months not covered by section 35 of
employment and labour relation Act. It was held that a probationary employee my challenge
termination only under certain circumstance other than unfair termination.
In Christina Christopher v. Board of Progressive Islamic Education Foundation128, the

court in this case dealt with the question as to Whether Section 35 of the ELRA excludes
employees who have worked for less than six month from the protection of unfair
termination. It was held thus; the proper position is that section 35 has to be read together
with section 36 of the ERA so that employees on fixed term contracts are covered under the
unfair termination provisions where there is reasonable expectation of renewal.
Also in the case of Commercial Bank Of Africa (T) Ltd v. Nicodemus Mussa Igogo129
(The major issue raised is whether an employee on probation is protected under the unfair
termination under provision of section 37 of the employment and labour Relation Act.
Among other thing court said that the employee work under probation period does not
protected under unfair termination and also fair termination principle does not applied under
employee working under probation period.
Another crucial issue raised by the court is whether employee on probation period
automatically assumes employment status where the stipulated period of probation has
expired without employer making decision to confirm or not confirmed.
In deciding the matter the court also referred the case of Mtenga v. University Of Dar Es
Salaam130. The relevant facts in that case were that applicant was employed on probation he
was kept on continued working after expire of the probation period but he was also given
salary increment the argument of automatic termination was raised in the high court of
Tanzania but dismissed by the late Biron J holding that being kept on after expiry of
probation period does not amount to confirmation.
127
Labour court revision no 47 2011 high court( labour division) Dar er salaam (unreported)
128
Revision No. 16 of 2013: High Court of Tanzania (Labour Division) at Mwanza (Unreported).
129
Revision no 40 of 2011
130
[1971] HCD 247
63
4.4 UNFAIR TERMINATION OF EMPLOYMENT

Section 37 (1) of the ELRA states that employees may not be dismissed unfairly by an
employer. By virtue of Section 37 (2) (a), (b) (I) (ii) and (c) of ELRA, termination of
employment is unfair if the employer fails to prove that the reason for the termination is
valid, that the reason is fair and that the employment was terminated in accordance with fair
procedure.
A ‘fair’ reason is one that is related to the employee’s conduct, capacity or compatibility; or
is based on the operational requirements of the employer. In Barclays Bank Tanzania Ltd v.
Kombo Ally Singano131; it was stated that fair procedure demands that before hearing is
conducted, investigation should be done and the report should be tabled before the
disciplinary committee. (iii) An arbitrator has no power to amend CMA F1 suo motto.
In Tanzania International Container Terminal Services (TICTS) Ltd v. Shabani

Kagere132; it was held that (i) Compensation is only awarded where termination is found
to be unfair either substantively or procedurally.
Article 4 of the ILO termination of Employment Convention, 1982 (No. 158), provides
that the employment of a worker shall not be terminated unless there is a valid reason for
such termination connected with the capacity or conduct of the worker or based on the
operational requirements of the undertaking, establishment or service.
As per Section 37 (3) (a) (i)-(v) and (b) (I)-(iii) of ELRA, is not seen to be fair to dismiss
the employee if the employee discloses information that the employee is entitled to or
required to disclose, fails or refuses to do anything that an employee may not lawfully permit
or require the employee to do, exercises any right conferred by agreement, belongs to a trade
union or participates in lawful activities of a trade union, including a lawful strike. It is also
seen to be unfair to dismiss an employee for reasons related to pregnancy, disability or
reasons that constitute discrimination under the Act.
According to Article 5 the ILO termination of Employment Convention, 1982 (No. 158),
the following, inter alia, shall not constitute valid reasons for termination: (a) union
membership or participation in union activities outside working hours or, with the consent of
the employer, within working hours; (b) seeking office as, or acting or having acted in the
capacity of, a workers' representative; (c) the filing of a complaint or the participation in
proceedings against an employer involving alleged violation of laws or regulations or
131
Labour Revision No. 65 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported)
132
Misc Application No. 188 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
64
recourse to competent administrative authorities; (d) race, colour, sex, marital status, family
responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e)
absence from work during maternity leave.
Section 37 (5) of the ELRA, prohibits termination of the employee where the reasons for
termination is an offence whose criminal proceedings are pending. A criminal proceeding
starts when the criminal case is filed in court and the employee is charged. So, termination
contrary to the quoted provision is unfair. The only right of the employer is to suspend the
employee on full pay. However, the employer may terminate an employee for a different
misconduct even if there is a pending criminal case. Also the employer should not terminate
employment just because the employee is in police or court custody.
4.5 FORMS OF TERMINATION & PROCEDURE

Rule 3 (2) of the Code of Good Practice Rules, 2007, provides that a lawful termination of
employment under the common law shall be as follows-(a) termination of employment by
agreement; (b) automatic termination (c) termination of employment by the employee; or (d)
determination of employment by the employee;
Rule 3 (3) of the Code of Good Practice Rules, 2007, states that the rules regulating the
termination of a contract of employment shall depend on the duration of the contract.
Rule 3 (4) further states that (4) The agreed duration shall be applicable where there is- (a) an
agreement to work for a fixed term in respect of a fixed time or upon completion of a task: or
(b) an agreement to work without reference to limitation of time or task in accordance to the
agreement.
4.5.1 Termination by Agreement:
This occurs when the employer and employee agree to bring a contract of employment to an
end in accordance with an agreement. For example, if there is a contract for a period of one
year and the agreed period expire then the contract will obviously come to an end unless the
contract provides otherwise133.
4.5.2 Automatic Termination:
A contract of employment may be terminated automatically in circumstances such as death or

loss of business or bankruptcy of the employer or employee. It also follows that unless the
contract of employment provides otherwise, a contract of employment may terminate
133
Rule 4 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
65
automatically when the employee reaches the agreed or normal retirement age 134. In other
words, it may be an implied term of an indefinite contract that the contract terminates on
retirement.
As per Rule 5 (3) of the Code of Good Practice Rules, 2007, where there is no agreed
retirement age the normal retirement age shall be implied from the employer's practice in the
past and the practice in the industry.
In the event where the employee continues to work after attaining the retirement age, the law
states that the contract shall be renewed and the normal rules of termination of employment
apply, unless the employee and the employer agreed to something different135.
Rule 5 (2) of the Code of Good Practice Rules, 2007, require a person taking over the
business in such circumstances, shall first consider the employment of the employees whose
employment have been terminated as a result of the death or sequestration, before any other
employees are hired.
4.5.3 Refusal to renew a contract:
Section 36 read together with Rule 4 (4) of the Code of Good Practice Rules, 2007, that it
is termination of employment if there is failure to renew a fixed term contract where there
was reasonable expectation of renew. It will be unfair termination of employment where in
the circumstances of each case an employee had reasonable expectation of renew of
employment after the expiry of the preceding fixed term contract.
Depending on the circumstances of each case, where a fixed term contract comes to an end
but the employee continues with business as usual, that is rendering services and the
employee accepts such services the employment will be deemed to be renewed by default.
In respect to reasonable expectation of renewal by employee Rule 4 (5) provides guiding

criteria, that for instance a record of previous renewals or employer's undertaking to renew
the contract may form a reasonable ground of an expectation on part of the employee for
another renewal.
134
Rule 5 (3) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
135
Rule 6 (5) of Code of Good Practice Rules, 2007
66
4.5.4 Resignation:
This is the first avenue available to the employee (on fixed term contract) is if the employer
commits material or fundamental breach of the terms of contract. In the absence of the
material breach by the employer another avenue is by the employee letting the employer
agree to an early termination of a contract of employment136.
In respect of a contract for unspecified period of contract, under Rule 6 (2) of the Code of
Good Practice Rules, 2007, the employee is at liberty to terminate a contract of employment
without much condition such as those required for a fixed-term contract. An employee under
an unspecified period of time contract can decide unilaterally to terminate a contract of
employment by issuance of a notice of termination or without a notice if the employer has
materially breached the contract.
Rule 6 (3) of the Code of Good Practice Rules, 2007, clarify as to what it means by material
breach. From the wording of this provision a material breach means a serious breach that goes
to the core of the contract. Nevertheless the provision of Rule 6 (4) (a)-(d) of the Code of
Good Practice Rules, 2007, went further to clarify conducts which shall amount to
material breach of contract of employment. They include: refusal to pay salary or wages,
verbal or physical abuse or sexual harassment, unfair discrimination or any other form of
breach of contract.
In respect to the notice, Rule 6 (5) states that notwithstanding section 41 of the Act, the
minimum period of notice to be given by an employee on a lawful termination of contract, an
employer and employee may agree to a longer notice.
4.5.5 Constructive Termination
Rule 7 (2) of the Code of Good Practice Rules, 2007, enumerates situations in which an
employee can be deemed constructively dismissed or forced to terminate the contract of
employment. These include sexual harassment or failure on the part of the employer to
protect the employee against such sexual harassment.
Another scenario that may warrant constructive dismissal is where the employee has been
unfairly treated provided such an employee has taken steps to exhaust the administrative
136
Rule 6 (1) of Code of Good Practice Rules, 2007
67
procures available to remedy her grievances unless there are fundamental reasons on the part
of the employee justifying his or her failure to exhaust such procedural procedures.
The case of Security Group v. Rajabu Masudi Nzige;137, dealt with several issues regarding
constructive termination and it was held thus (i) Constructive termination takes place where
an employer makes an employment intolerable which may result to the resignation of the
employee.
(ii) Constructive termination may happen or takes place also when the employee resigned
because of the employer’s harsh antagonistic and hostile conduct and further that the
resignation must be ascribed to some form of coercion and the prospect of continued
employment must be unbearable.
(iii) Constructive termination may also take place in cases of sexual harassment where
employees who have been subjected to continued harassment have been constructively
terminated if they resign in desperation.
(iv) What makes an employment intolerable are twofold; that is, the employee must establish
that there was no voluntary intention by the employee to resign and that the conduct of the
employer judged reasonably and sensibly is such that the employee cannot be expected to put
up with it.
Also in the case of March L. Lumanija & Another v. Tanganyika Bus Service Co. Ltd138,
the respondent (employer) in this case (revision) had unilaterally changed the terms of the
contract of employment from monthly pay to daily pay and forced the applicants (drivers) to
sign a new contract of employment on new terms being paid daily instead of monthly rates
without prior consultation. In protest to the change each applicant packed a vehicle he was
otherwise supposed to drive as they refused to sign a new contract followed by reporting a
dispute to the Commission for Mediation and Arbitration (CMA): in the CMA, the arbitrator
found that the termination was fair and that the applicants (both in the CMA and High Court)
were not entitled to terminal benefits, on ground of misconduct.
Aggrieved by the arbitrator’s decision the employees applied for revision of the arbitrator’s
award to the High Court. The High Court held that respondent's (employer's) action
137
Revision No. 164 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported).
138
Revision no.223 of 2008
68
amounted to constructive termination of the applicants employment as provided under

section 36 (a) (ii) (iii) and section 37 of ELRA read together with Rule 7 of the Code.
4.6 GROUNDS FOR TERMINATION
2007 (GN No. 42, 2007), enumerate several reasons that may warrant termination of contract
of employment by the employer, these reasons are, namely; misconduct, incapacity,
incompatibility and operational requirement.
The above position is repeated under Article 4 of the ILO termination of Employment
Convention, 1982 (No. 158), this provision is the effect that a worker shall not be terminated
unless there is a valid reason for such termination connected with the capacity or conduct of
the worker or based on the operational requirements of the undertaking, establishment or
service.
4.6.1 MISCONDUCT
Misconduct is doing something which is against the law or which is contrary to the
Employer’s policy and codes of conducts. Examples of misconducts include stealing,
violence at the work place, absence from work without permission, negligence, and
insubordination just to mention a few139.
In Peter D. Nene v. Chine New Era International Engineering Corporation140; it was

held that (i) Misconduct implies and act done wilfully with a wrong intention and conveys the
idea of wrongful intention. (ii) When an employee fails to attend disciplinary hearing, the
employer has discretion to proceed with disciplinary hearing or not in the absence of the
employee.
In Paul Mahindi and Another v. Williamson Diamond Ltd141, it was held that (i) For there
to be misconduct the employee must have committed gross cheating or any cheating or
breach of trust or theft or violation of work rules. (ii) Although the employer has power to
terminate an employee, his decision must not be unfair and unjustified and the courts or
arbitrators may interfere with such unfair decision of the employers.
139
See Rule 11(1) & 12 (3) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007
140
Revision No. 29 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported)
141
Revision No. 9 of 2014: High Court of Tanzania (Labour Division) at Shinyanga (Unreported)
69
Once an employee commits one of these acts, the employer has no legal right of outright
dismissal. He must make sure that the required disciplinary procedures are followed step by
step to the conclusion that termination is warranted. Rule 12 (2) provides further that the first
offence of an employee shall not justify termination of employment unless the misconduct is
proved to be so grave to make the continued employment relationship intolerable.
Essentially, Rule 11 (1) of the the Employment and Labour Relations (Code of Good
Practice) Rules, 2007 (GN No. 42, 2007), impose a duty on the shoulders of employers to
implement disciplinary policies and it procedures that establish the standard of conduct
required of their all employees. The said disciplinary policies and procedures shall obviously
vary in terms of content and form depending on the size and nature of the employer's
business142.
In National Microfinance Bank PLC v. Aizack Amos Mwampulule143, it was held that (i)
when it comes to misconduct of an employee, the acceptable principle is that the employer is
the one who has the right to prescribe the rules regulating the conduct of the workers at work
place.
(ii) Sources of rules to regulate conduct of employees are (i) written disciplinary code (ii)
contract of employment (iii) Employer’s policy or personal manual or even on notice boards
in work place. Another very important source of rules to regulate the conduct of workers is
common law source.
(iii) The fact that a rule is not covered in the employer’s disciplinary code or in any
documentation dealing with employees conduct does not prevent the employer from acting
against the employee who has committed misconduct.
(iv) A rule or standard will be reasonable and valid if it is lawful and can be justified with
reference to the needs and circumstances of the business. (v) A court should not lightly
interfere with sanction imposed by the employer unless the employer acted unfairly in
imposing the sanction.
(vi) In order to determine whether or not termination is appropriate sanction factors

mentioned in Rule 12(1) (4) (5) of GN No 42 of 2007 must the considered and weighed up
142
Rule 11 (2) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (GN No. 42,
2007)
143
Revision No. 6 of 2013: High Court of Tanzania (Labour Division) at Lindi, (Unreported)
70
together. (vii) When an employee waives his or her right to a pre-termination hearing then the
employer will in the circumstances not conduct a disciplinary hearing because waiver in law
occurs when a person with full knowledge of a legal right abandons it unreasonably and
without lawful excuse.
The provision of Rule 11 (4) of the Employment and Labour Relations (Code of Good
Practice) Rules, 2007 (GN No. 42, 2007), provides that the efforts shall be made to correct
employee's behaviour through a system of graduated disciplinary measures such as
counselling and warnings. Thus the employer ought to counsel and warn the employee
first rather than terminating the employment outright.
The effect of warning as per Rule 11 (5) of the Employment and Labour Relations (Code
of Good Practice) Rules, 2007 (GN No. 42, 2007), is to notify the employee that a further
offence of a similar nature may result in more serious disciplinary action being taken.
Rule 11 has been tested in both the CMA and the Labour Court in the case of Knight
Support Ltd v. Chrisprinus S Kaloli144. The facts of the case were that the respondent
(employee) had been away from the job for five consecutive days for what he averred to be
due to illness, the fact that the applicant (employer denies).
In application for revision of the arbitrator's award in the labour Court the applicant argued
that the respondent did not follow a proper procure in booking his sick sheet and abiding to
the Organisational Rules in obtaining the claimed treatment from a hospital or clinic not
recommended by the employer and that the respondent has continued to be away from
employment without leave.
4.6.1.2 Procedures
The procedures required to be taken are as follows: (i) The Employer must conduct
investigation145 for reason of establishing whether a disciplinary hearing is to be conducted or
144
Labour Revision No. 35 of 2009
145
In Fredrick Mizambwa v. Tanzania Ports Authority Labour Revision No. 35 of 2009 it was held that (i) It
is mandatory for an employer to conduct investigation and table the report during hearing at the disciplinary
Committee level for there to be a fair procedure. (ii) It is mandatory that an employee should be informed of the
hearing in writing. (ii) Right to be heard is so basic that a decision which is arrived at in violation of it will be
nullified, even if the same decision would have been reached had the party been heard, because the violation is
considered to be a breach of the principle of natural justice.”
71
not146. (ii) Once the Employer finds out that a disciplinary hearing is to be conducted, must
draw a charge of offences and submit it to the Employee;
(iii) The employee must be given time for example 7 days to respond in writing about the
charges; (iv) A hearing date must be ascertained and an employee should be informed to
attend by himself together with his co- employee or representative of the Union or his
advocate. (v) During the hearing, the Employee will be allowed to bring witnesses and also to
cross examine witnesses of the Employer.
(vi) After the hearing, the Hearing (Disciplinary Committee) shall prepare a report and submit
it to the employer for decision. (vii) Where the committee finds the employee guilty of the
offence charges, the Employer will write to the Employee informing him/her about the
outcome of the hearing and a decision thereof147.
NB: It is important to note that the hearing committee must be chaired by a person who is
neutral. He might also be someone from outside the office.
4.6.2 Burden of proof for the alleged misconduct
In Tanzania International Container Terminal Services (TICTS) Ltd v. Shabani

Kagere148; it was held that (i) though the burden of proof lies on the employer to prove the
misconduct but the burden of proof is not beyond reasonable doubt as in criminal matters.
The burden in labour matters is only on a balance of probabilities. (ii) What is important is
not application of the Code in checklist fashion, rather to ensure that the process used adhered
to basics of fair hearing in the labour context depending on circumstances of the parties so as
to ensure the act to terminate is not reached arbitrary. Therefore, every case should be treated
according to its circumstances.
146
Rule 13 (1) of the cited G.N 42 of 2007 provides that an employer shall conduct an investigation to ascertain
whether there are grounds for a hearing to be held. This provision imposes a mandatory obligation upon the
employer to ascertain whether there are grounds for a hearing. It doesn't give discretion upon the employer to
opt for a hearing or otherwise as a first step. The initial step to be undertaken is to investigate whether there are
grounds for a hearing to be held. Therefore it is not an automatic option nor does it give an automatic right to the
employer to depart from hearing. The right is subject to compliance with Rule 13(1) of the Code of Good
Practice G.N 42/2007.
147
See the Schedules to the Rules
148
72
4.6.3 POOR WORK PERFORMANCE

In respect to poor work performance as a component of employee's incapacity to perform the
work, Rule 17(1) of the of the Employment and Labour Relations (Code of Good
Practice) Rules, 2007 (GN No. 42, 2007), requires any decision maker (employer, arbitrator
or Labour Court) required to make a determination as whether the termination of employment
on ground of poor work performance is fair to consider a number of factors.
These include a) whether or not the employee failed to meet a performance standard; b)
whether the employee was aware, or could reasonably be expected to have been aware, of the
required performance standard; c) The reasons why the employee failed to meet the standard;
and (d) Whether the employee was afforded a fair opportunity to meet the performance
standard.
Although the employer has the managerial prerogative to set performance standards, the
standards should not be unreasonable. Poor performance is a question of fact to be
determined on the balance of probabilities against the set standards. If the standards are found
to be unreasonable, the employer will miss justification of termination. Once the Employer is
found not to have justification, the termination will be unlawful.
4.6.3.2 Procedures
However, even if the reasons for termination are valid (justifiable), there are procedures that
must be complied with by the Employer before terminating a non performing employee.
These procedures are as follows:
The employer must investigate the reasons of unsatisfactory performance. This shall reveal
the extent to which is caused by the employee. (ii) The employer must give appropriate
guidance, instruction or training if necessary, to employee before terminating the employee
for poor work performance; (iii) the employee must be given reasonable time to improve. The
reasonable time depend on the nature of the job, extent of poor performance, status of
employee, length of service and the employee past performance record.
(iv) When the employee continues to perform unsatisfactorily, the employer must issue a
warning to the employee that employment may be terminated if there is no improvement. (v)
Before the employer makes a final decision to terminate a non performing employee, must
call a meeting with the employee who must be allowed to attend with his fellow employee or
trade union representative;
73
(vi) At that meeting the employer must outline the reasons for action to be taken and allow
the employee and/or the representative to make representation before finalizing a decision.
(vii) The employer must consider any representation made and if does not accept them must
explain why; (viii) the outcome of the meeting must communicated to the employee in
writing with brief reasons.
All these procedure needs evidence of record that what is required to be done by the employer
was actually done. Records such as job description, performance standards/targets,
performance appraisals, warning letters and records of minutes for various meetings must be
available for verification to support the action of the Employer.
4.6.4 INCAPACITY
The employer may also terminate the employee on ground of incapacity due to ill health or
injury thus generally speaking justifying termination of employment by the employer.
However, the substantive and procedural fairness in relation to termination of employment on
ground of ill health are governed by Rules 19, 20 (particularly on HIV/AIDS) and 21 of the
Code of Good Practice Rules, 2007.
Rule 19 (1) of the Code of Good Practice Rules, 2007, provides for the factors that an
employer contemplating to terminate the employment of an employee on ground of ill health
or injury should take into account.
The factors include: (i) The cause of the incapacity; (ii) The degree of incapacity ;(iii) The
temporally or permanent nature of incapacity; (iv) The ability to accommodate the incapacity;
(v) The existence of any compensation or pension.
Rule 19 (2) Code of Good Practice Rules, 2007, enjoins the employer to go to greater
lengths to accommodate the employee in terms of the ability to accommodate where an
employee is injured at work or is incapacitated by a work-related illness.
Where it is discovered upon investigation that the employee is likely to be absent for a time
that is unreasonably long in the circumstances of a particular case (for example taking into
account the nature and duration of the employment contract and or inherent requirements of a
job) the employer is enjoined to investigate possible to accommodate the employee or to
consider all possible alternatives short of termination
74
Rule 19 (6) Code of Good Practice Rules, 2007, lists possible alternatives short of
termination as including: temporary replacement, light duty, alternative work, early
retirement, pension or any other acceptable alternative. The factors that may be relevant in the
investigation include the nature of the job, the period of absence, the seriousness of the illness
or injury, and the possibility of securing a temporary replacement or adapting the job.
Where the employee is injured at work or is incapacitated by a work related illness the
employer is required to do all what is possible to accommodate the employee. In so doing, the
employer is required to be guided by an opinion of a registered medical practitioner in
determining the degree and extent of incapacity.
Where the employee is just temporarily unable to work and is likely to be absent for a time
that is unreasonably long in the circumstances, the employer is required to investigate
possible ways to accommodate the employee or consider all possible alternatives short of
termination.
The possible short term alternatives include: (i) Temporally replacement; (ii) Alternative
work; (iii) Early retirement; or (iv) Any other acceptable alternative.
Where an employee is permanently incapacitated, the employer is advised to secure

alternative employment for the employee or adopting the duties or work circumstances of the
employee to accommodate the employee’s disability. Where the causes of incapacity are due
to alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an
employer to consider.
Where it is established that the employee disability cannot be accommodated, the employer is
required to consider the availability of alternative work.
In all these process, Rule 21(1) requires the employer to consult the employee. The employee
is at liberty to suggest alternatives to the employer. If the employer does not accept the
employee’s alternatives, he must give reasons. The employee has a right to be represented by
his fellow employee or trade union representative. The outcome of the meeting must be
communicated to the employee in writing.
75
In the of the University of Dodoma v. David Andrew Hellar & Another 149; the court
considered two major issues namely; Whether failure to attain academic excellence for a
university lecturer amounts to incapacity; and difference between procedural and substantive
unfairness in terms of reliefs.
It was held thus :-(i) Failure by an employee to attain academic excellence is a form of
incapacity that falls within the ambit of work performance and may serve as a fair reason for
termination.
4.6.5 INCOMPATIBILITY
This also constitutes a fair reason for termination. In view of Section 37(2) (b) (i) read
together with Rule 22 (1) (a) and (b) of the Employment and Labour Relations (Code of
Good Practice) Rules, 2007 (GN No. 42, 2007), incompatibility constitutes a fair reason for
termination of employment. According to Rule 22(1) of the Employment and Labour
Relations (Code of Good Practice) Rules, 2007 (GN No. 42, 2007), there are two types of
incompatibility.
The first type is one which refers to unsuitability of the employees to his work due to his
character or disposition and the second is one which refers to the incompatibility of the
employee to his work environment in that he relates badly with fellow employees, clients or
other persons who are important to the business.
Similarly, In the case of The Parastatal Pension Fund v. Siriel Mchembe150, it was held
that (i) Incompatibility conveys a notion of inability to work in harmony either within the co-
operate culture of the business or with fellow employees. (ii) There are two types of
incompatibility which are; unsuitability due to character and unsuitability of the employee
due to work environment where the employee relates badly with others. (iii) Termination for
incompatibility would be unfair if the reasons are from personality clashes; and the employer
is obliged to assist an employee who is allegedly causing disharmony before acting against
him.
The employer contemplating termination of the employment of employee on ground of

incompatibility is required to treat the matter in a similar way as to incapacity for poor work
149
Revision No. 2 of 2014: High Court of Tanzania (Labour Division) at Dodoma (Unreported)
150
Revision No. 389 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
76
performance151. The steps required set in Rule 18 of GN No.47 of 2007, are applicable read
with changes required by the context.
In particular, the employer is required to record the incidents of incompatibility that gave rise
to concrete problems or disruption. The employer is also expected to warn and counsel the
employee before termination. This should include advising the employee of unacceptable
conduct, who has been adversely affected by the conduct, and what remedial action is
proposed152.
And before terminating employment on this ground, the employer is required to give
employee a fair opportunity to: (a) Consider and reply to the allegation of incompatibility; (b)
Remove the cause for disharmony; or (c) Propose an alternative to termination153.
4.6.6 OPERATIONAL REQUIREMENTS (Retrenchment)
As per Rule 23 of GN No. 47 of 2007, this ground for termination arising from the
operational requirement of the business. Section 4 of the ELRA defines operational
requirement requirements based on the economic, technological, structural or similar needs of
the employer. Therefore this ground is commonly based on the economic, technological,
structural or similar needs of the employer.
As a general rule, the circumstances that might legitimately form the basis of a termination of
employee based on operational requirements. These are: (i) Economic needs that relate to the
financial management of the enterprises; (ii) Technological needs that refer to the
introduction of new technology which affects work relationship either by making existing
jobs redundant or by requiring employee to adapt to the new technology or a consequential
restructuring of the workplace (iii) Structural needs that arise from restructuring of the
business as a result of a number of business related causes such as the merger of businesses, a
change in the nature of the business, more effective ways of working, a transfer of the
business or part of the business154.
In Tanganyika Instant Coffee Co. Ltd v. Jawabu W. Mutembei155; it was held that (i)
Economic needs of a Company as one of the reasons for operational requirements covers all
151
Rule 22 (2) of the GN No. 47 of 2007
152
Rule 22 (3) (a) and (b) of the GN No. 47 of 2007
153
Rule 22 (4) (a)-(c) of the GN No. 47 of 2007
154
Rule 23 (2) (a)-(c) of the GN No. 47 of 2007
155
Revision No. 210 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam. (Unreported).
77
needs that relate to the economic wellbeing of the company or business. (ii) The courts have
the duty to investigate unto the good faith of the employer and the merits or soundness of the
decision to terminate for operational reason and the court are also entitled to determine
whether this decision is the best or most reasonable one under the circumstances. (iii) An
employee is entitled to subsistence allowance from the date he was terminated to the date of
the transportation. Subsistence allowance is the daily wage calculated on the basis of the
monthly salary.
4.6.6.2 Procedures for Termination based on Operational Requirement
The obligations placed on an employer are both procedural and substantive. The requirement
of Section 38 (1) of the employment and Labour Relations Act No. 6 of 2004156, provides
that in any termination for operational requirements, the employer must comply with the
following principles:
Give notice of intention to retrench as soon as it is contemplated; (ii) Disclose all relevant
information on the intended retrenchment for purpose of proper consultation; (iii) Consult
prior to retrenchment or redundancy on:-(a) The reasons for intended retrenchment; (b) Any
measures to avoid or minimize the intended retrenchment;(c) The method of selection of
employees to be retrenched; (d) The timing of retrenchment; and severance pay in respect of
retrenchment.
The purpose of the consultation required by section 38 is to permit the parties, in the form of
a joint problem-solving exercise to reach agreement on:-(i) The reasons for intended
retrenchment; (ii) Any measures to avoid or minimize the intended retrenchment (iii) Criteria
for selecting employees for termination;(iv) The time for retrenchment;(v) Severance pay and
other conditions on which termination take place; and (vi) Steps to avoid the adverse effects
of the terminations such as time off to seek work.
Where there is not agreement reached between the employer and employees must be referred
the matter CMA for mediation157. As per Rule 23 (9) the employer may not implement the
retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the
parties. Once this period has passed, the employer may proceed with the retrenchment
unilaterally. The fairness of the employer's actions may be disputed and referred to
arbitration, once the mediation fails.
156
Amended under Section 7 of the Employment and Labour Laws (Miscellaneous Amendments) Act, 2015
157
78
In Festo Kyando v. Security Group (T) Ltd158; In this case the court dealt with the question
as to whether consultation is mandatory in termination based on operational requirements, it
was held thus; When the employer’s contract with a third party ends, there is no need to
consult employees before effecting termination based on operational requirements as the
employer is not undertaking any operational or structural reforms.
4.7 PROVISIONS OF THE CONTRACT OF EMPLOYMENT RELATING TO

TERMINATION
Where a written agreement stipulates the procedure of its termination, the employer and the
employee must comply with those provisions. Any termination which contravene with the
provisions of the contact of employment on termination is rendered unfair hence illegal.
But if the contract of employment contains no provisions relating to termination of

employment; the employer has to read and act according to legal provisions on termination
provided under Section 41 of the Employment and Labour Relations Act.
4.7.1 NOTICE AND PRIOR PROCEDURAL SAFEGUARDS
Essentially from the wording of Section 41 (1) (a) and (b) (I)-(ii) of the ELRA, employment
may be terminated on notice, but the period of notice should not be less than seven days, if
notice is given in the first month of employment. If the notice is given after the first month
of employment then the notice should not be less than four days if the employee is
employed on a daily weekly basis; or 28 days if the employee is employed on a monthly
basis.
However under Section 41 (2) of the ELRA, the employer and the employee may agree for a
notice period that is longer the stated one provided the agreed period is of equal duration for
both the employer and the employee.
It is the requirement under Section 41 (3) of the ELRA the notice of termination to be in
writing, and in this aspect it must include the reasons for termination and the date on which
notice was given. However under Section 41 (2) (a) and (b) of the ELRA, notice may not be
given when the employee is on leave, and may not run concurrently with any period of leave.
158
Revision No. 44 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported).
79
The law under Section 41 (5) of the ELRA allows the employer to pay the employee the
remuneration that the employee would have received if the employee had worked during the
notice period instead of giving an employee notice of termination. It also follows that If an
employee refuses to work during the notice period, the employer may deduct from the total
amount owed the amount that would have been due if the employee had worked during the
notice period159.
In termination for operational requirements, Section 38 (1) (d) of the ELRA require the
employer is required to give notice, disclose all relevant information and consult any trade
union recognized by the ELRA, any registered trade union with members in the workplace
not represented by a recognized trade union, or any employees not represented by a
recognised or registered trade union.
Article 11 of the ILO termination of Employment Convention, 1982 (No. 158), provides
that, a worker whose employment is to be terminated shall be entitled to a reasonable period
of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is,
misconduct of such a nature that it would be unreasonable to require the employer to continue
his employment during the notice period.
4.8 REMEDIES FOR TERMINATION OF EMPLOYMENT

Section 40 of the Employment and labour relations Act of 2004 provides three optional
remedies to employees who have been unlawfully terminated, these includes: reinstatement
without loss of remuneration for the period of unlawful termination, re-engagement,
compensation of at least twelve months’ salary. The employer may opt to pay twelve months’
salary in lieu of reinstatement or re-engagement. The remedy section gives discretion to the
arbitrator or judge to award in the event the termination is found to be unfair.
4.8.1 Interpretation of Section 40 of ELRA

As it is noted above, Section 40 of ELRA empowers the arbitrator to remedy the employee in
the event where the termination of employment is adjudicated to be unfair. The said section
has brought conflicting views and the centre of concussion is embodied under Section 40 (1)
(c) of ELRA which generally empowers an arbitrator to order compensation for not less than
twelve months.
Before dealing with the matter in controversy it is imperative to reproduce the said Section
here. This Section reads thus; 40 (1) If an arbitrator or labour court finds termination is unfair
159
80
the arbitrator or court may order the employer: (a) 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 duet to the unfair termination; or (b) to re-engage the employee on any
terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of
not less than twelve months remuneration.”
The plain reading and the wording of this section seems to suggest that the arbitrator is
restricted to order payment of compensation to the employee for not less twelve months
remuneration. It goes without saying that once arbitrator order payment of compensation
which is less than twelve months remuneration will generally be said to have faulted the
gist of this provision.
The above position was amply supported in the case of Abel Nyenye and Another v. Coca
Cola Kwanza160, it is the law of practice that in most instances where the Court finds that
there is unfair termination, twelve (12) Months compensation is awarded to the employee for
procedural unfairness.
In the same vein in Felix Musisi v. South Beach Resort161; the court held that an employee
is entitled to 12 months salaries in case of unfair termination even if the contract is for a
specific period.
Apart from that the provision of Rule 32 (5) (a)–(f) of the Labour Institutions (Mediation
and Arbitration Guidelines) Rules, 2007 (GN No. 67 of 2007) (‘Mediation and
Arbitration Guidelines Rules, 2007’), seems to be inconsistent with the provision of the
main Act, as this provision requires the arbitrator when awarding compensation to take into
account the species mentioned under paragraph (a)-(f) of the said provision. Thus gives the
arbitrator a discretionary power to award the compensation basing on the circumstances of
each case.
But it is the settled principle that whenever the subsidiary legislation is inconsistent with the
principal legislation the letter will always prevail162.
Yet in another perspective Section 40 (1) (c) of the ELRA, is interpreted as conferring
discretion powers to the arbitrator to order compensation of even less than 12 months
160
Consolidate Revision No. 53 and 54 of 2013: High Court of Tanzania (Labour Division) at Mbeya
(Unreported)
161
162
See Section 36 of Cap. 1. In the case of Makunzo & Another vs. R [2006] 1 EA 204 where it was held:
“Where a subsidiary legislation is in conflict with a substantive Act of Parliament, the Act must prevail over the
subsidiary legislation.”
81
remuneration and thus the provision is not coached in mandatory terms. The basis of this
argument is the expression “may” appearing in the wording of the said section which under
the purview of Section 53 (1) of Cap. 1 the use of word may imports discretion.
Section 88 (8) of the ELRA empowers the arbitrator to make an appropriate award confers
discretionary powers to the Arbitrator to make an award even of less than twelve months.
The above position is reflected in the case of Joakim Mwanikwa v. Golden Tulip Hotel163;
where It was held that (i) Section 40 of the ELRA gives discretion of the Court to decide
which amount to be paid as compensation and such discretionary powers should not be
applied suo moto, but only when the complainant has indicated in CMA F.1 the amount he
claims as compensation.
In equal footing the court in the case of Deus Wambura v. Mtibwa Sugar Estate Ltd164,
Madam Judge Rweyemamu (as she then was) held: “Under the law (the ELRA), an arbitrator
has discretion to award or not to award any of the remedies provided under Section 40 (1) (a)
or (b) or (c) following a finding of unfair termination. It is my view that, with such discretion,
an arbitrator can award compensation which is more or less than 12 months, provided that he
has justifiable grounds for doing so, grounds such as those enumerated under rule 32 (5) (a)
to (f) of the GN 67/2007”.
Equally, in case of Michael Kirobe Mwita v. AAA Drilling Manager165, it was held that “In
my opinion the learned arbitrator trekked in the correct avenue when he ordered the
compensation of six months, he had discretion to order compensation of less than twelve
months remuneration where appropriate”.
However in Vedestus S. Ntulanyenka and 6 Others v. Mohamed Trans Ltd 166; it was held
that Section 40 (1) (c) of ELRA does not mandate the arbitrator to order compensation of 12
months’ pay in all cases of unfair termination.
From the above authorities it’s clear that the court widens the interpretation of the said
Section which on its literal meaning seems to restrict payment of compensation to 12 months
remuneration. Thus in the light of the above cases it is now settled that the arbitrator can
order compensation which is less or even more than twelve months remuneration provided
that he has a justifiable reasons or grounds to do so.
163
Revision No 268 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
164
Revision No. 3 of 2014 at p. 3
165
Revision No. 194 of 2013 (Unreported)
166
Revision No. 4 of 2014: High Court of Tanzania (Labour Division) at Shinyanga (Unreported).
82
4.8.2 Factors for consideration in the award of compensation

As already stated, the arbitrator is not bound to award compensation of not less than 12
months only instead the arbitrator may award more or less than 12 months remuneration
depending on the circumstances of each case. This is on the basis on the provisions of Section
88 (8) of the Act which empowers the arbitrator to award appropriate compensation
depending on the circumstances of each case.
Furthermore, Rule 32 (5) (a) – (f) of the Mediation and Arbitration Guidelines Rules,
2007 which require the arbitrator to consider the following in the award of compensation: (a)
any prescribed minima or maxima compensation. (b) The extent to which termination was
unfair. (c) The consequences of unfair termination for the parties including the extent to
which the employee was able to secure alternative work or employment. (d) The amount of
employee’s remuneration. (e) The amount of compensation granted in the previous similar
cases. (f) The parties conduct during proceedings and other relevant factors.
4.8.3 An order of reinstatement and or re-engagement

Section 40 (1) (a) & (b) of the ELRA, empowers the arbitrator to order reinstatement and/or
re-engagement after a finding on unfair termination. The remedy of reinstatement is given
when termination is found to be unfair both substantively and procedurally.
This was stated in the case of NBC v. Aliamin Mbeo167, where it was held: “In practice, a
remedy of reinstatement is awarded where terminated is adjudged unfair both procedurally
and substantively”
The above position was further confirmed in the case of Vedestus S. Ntulanyenka and 6
Others v. Mohamed Trans Ltd168; where it was held as follows: “…a reading from the
other Section of the Act gives a distinct impression that the law abhors substantive unfairness
more than procedural unfairness, and if compensation is for redressing a wrong done to the
employee, the remedy for the former attracts heavier penalty than the latter… the arbitrator is
mandated not to order reinstatement “where termination is unfair because the employer did
not follow a fair procedure”…”
The above excerpt means that procedural unfairness attracts a lesser penalty compared to
substantive penalty. Therefore, an order of reinstatement cannot be issued when the impugned
termination is faulted on procedure alone but it should be both substantive and procedural
unfairness. Furthermore, an order of reinstatement cannot be issued where the employer does
167
Revision No. 55 of 2013 at p. 4
168
83
not wish to be reinstated or continued employment is deemed intolerable. This is per the case
of NATIONAL BANK OF COMMERCE (Supra).
In the of the University of Dodoma v. David Andrew Hellar & Another169, it was stated
that under labour law substantive unfairness may attract a reinstament order but an arbitrator
is mandated not to order reinstatement where termination is unfair because the employer did
not follow a fair procedure.
In Pangea Minerals Ltd vs. Ernest Wililo170; it was held that once an employee is paid
terminal benefits, the matter should end at this juncture and he cannot be reinstated after
having been paid his terminal benefits.
4.8.4 Power of the High Court to vary compensation

The Labour Court is vested with powers under Section 91 (1) and (2) (a)–(c) of the Act to
revise the award by the arbitrators at the Commission of Mediation and Arbitration. In
Hassan Sadick Mloto vs. Knight Support (T) Ltd171; it was held that (i) The Court’s power
to revise CMA arbitral award is provided for under section 91(1) and (2) of the ELRA, No. 6
of 2004 read together with Rule 24(1),(2) and Rule 28(1) of the Labour court Rules, GN 106
of 2007.
In John Lume v. Arusha Gymkhana Club172; it was held that (i) The relevant provisions to
properly move to court to revise awards of the CMA are Section 91(1) and (2)(a) or 2(b) or
2(c) which specifies whether revision sought on ground of 91(2) (a) “....... Misconduct on the
part of the arbitrator” or that 2 (b) “.... the award was improperly procured” or that 2(c) “........
The award was illogical or irrational. The said provisions are to be read together with relevant
sub-rules of Rule 24 and 28(1)(a) to (e) of the Labour Court Rules. Rule 28(a) (e) amplifies
on grounds for which an award may be faulted on basis of section 91 (2) (a), (b) or (c). (ii) It
is a trite principle of law and practice observed by both the superior Court and the Labour
Court that incomplete/improper citation of enabling provisions of the law makes an
application incompetent. And that; the only remedy for an incompetent application is to have
the same struck off the register.
It is important to note that the award of compensation is a matter of exercise of discretion by

the arbitrator. The circumstances which would justify the higher court to interfere with the
169
Revision No. 2 of 2014: High Court of Tanzania (Labour Division) at Dodoma (Unreported)
170
171
Labour Revision No. 266 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
172
Revision No. 94 of 2013: High Court of Tanzania (Labour Division) at Arusha (Unreported)
84
exercise of discretion of the trial court were listed in the case of Selcom Gaming Ltd v.
Gaming Management (T) & Gaming Board of Tanzania173, to include the following:
(i) That it was based on a misunderstanding of the law or evidence before that court, or. (ii)
Upon an inference that particular facts existed or did not exist, or (iii) Upon the ground that
there has been a change in circumstances which would have justified the court to vary the
order; and (iv) An order given contrary to the cardinal principles of natural justice.
4.8.5 PAYMENT ON TERMINATION AND CERTIFICATE OF EMPLOYMENT
Section 44 (1) (a)-(f) of the ELRA, provides that on termination of employment for
whichever reason, the employer is required to pay an employee the following: (a) Any
remuneration for work done before termination; (b) Any annual leave pay due to an employee
for that leave the employee has not taken; (c) Any notice due if termination is by notice; (d)
Any severance due (e) Transport allowance to the place of recruitment. On top of payment,
the employer is required to issue an employee with a prescribed Certificate of Service 174 as
required under Section 44 (2) of the Act.
Similarly, under Article 12 of the ILO termination of Employment Convention, 1982 (No.
158), a worker whose employment has been terminated shall be entitled, in accordance with
national law and practice, to-(a) a severance allowance or other separation benefits, the
amount of which shall be based inter alia on length of service and the level of wages, and
paid directly by the employer or by a fund constituted by employers' contributions; or (b)
benefits from unemployment insurance or assistance or other forms of social security, such as
old-age or invalidity benefits, under the normal conditions to which such benefits are subject;
or (c) a combination of such allowance and benefits.
4.8.6 Severance pay
The Act under Section 42 (2) defines ‘severance pay’ as an amount equal to seven days
basic wage for each completed year of continuous service with that employer up to a
maximum of ten years. An employer is required to pay severance on termination of
employment if the employee has completed 12 months of continuous service with an
employer and the employer terminates the employment175.
173
[2006] TLR
174
See Regulation 17 and LAIF. No 10 contained in the 2 nd Schedule of GN no. 47
175
Section 42 (2) (a)-(b) of ELRA
85
As per Section 42 (3) of the ELRA, Severance is not required to be paid:- if the
termination is fair on grounds of misconduct, or to employee who is terminated on grounds of
capacity, compatibility or operational requirements who unreasonably refuses to accept
alternative employment with that employer or any other employer. It should further be noted
that the payment of severance does not affect the employee entitlements conferred by other
written law176.
Rule 26 of the GN No. 47 of 2007, provides that when an employment contract terminates,
the employer shall pay the employee severance pay at least equal to 7 days basic wage for
each completed year of continuous service with that employer, up to a maximum of 10 years.
Under Sub-rule 2, the employer is not required to pay severance pay if the employment is
terminated (a) before the completion of the first year of employment; (b) fairly on grounds of
misconduct; (c) on grounds of incapacity, incompatibility or operational requirements and the
employee unreasonably refuses to accept alternative work with the employer or alternative
employment with any other employer. What constitutes an "unreasonable refusal" will
depend on the circumstances of each case.
In Dar es Salaam Corridor Group Ltd vs. Stephen Mrema 177; it was stated that when an
employee is terminated on the ground of misconduct, he is not entitled to payment of
severance allowance. In the same vein the court in Vedestus S. Ntulanyenka and 6 Others
vs. Mohamed Trans Ltd178, stated that an employee is not entitled to severance pay where
he is terminated of misconduct.
4.8.7 Transport allowance to the place of recruitment

As per Rule 8 of the GN No. 47 of 2007, an employer may terminate the employment of an
employee if among other thing he complies with the provision requiring payment of
allowance for transport to the place of recruitment.
As per Section 43 (1) and (2) of the ELRA, where an employee's contract of employment is
terminated at a place other than where the employee was recruited179, the employer must pay
the employee an allowance for transportation to the place of recruitment, an allowance which
must be equal to at least a bus fare to the bus station nearest to the place of recruitment.
176
177
178
179
As per Section 43 (3) of ELRA, recruit means the solicitation of any employee for employment by the
employer or the employer’s agent.
86
An employee must also be paid daily subsistence expenses during the period between the day
of termination of the contract and the date of transporting the employee and his or her family
to the place of recruitment. These expenses are quantified to the daily basic wage of the
employee or as may, from time to time, be determined by the relevant wage board.
4.9 AVANUES FOR REDRESS

The Labour Court, i.e. the Labour Division of the High Court, has exclusive jurisdiction over
the application, interpretation and implementation of provisions of the ELRA subject to
compliance with the Constitution of the United Republic of Tanzania, 1977.
An employee who wishes to contest a dismissal may refer the dispute to the Commission for
Mediation and Arbitration established under Section 12 of the Labour Institutions Act of
2004 (No. 7).
The Commission will appoint a mediator to mediate the dispute, decide the time, date and
place of the mediation hearing and advise the parties of this180. The mediator should resolve
the matter within thirty days of the referral or longer if the parties agree to it. Under certain
circumstances enumerated in Section 87, the mediator may unilaterally shorten or lengthen
the thirty-day period or dismiss the claim181.
In mediation, the parties may be represented by their trade union, or an advocate182. The
Commission may reverse the decision made by the mediator if for example application is
made in the prescribed manner and if the Commission is satisfied that there are good grounds
for failing to attend the hearing.
Where the mediator fails to resolve the complaint within the agreed upon period of time, it is
referred to either arbitration or to the Labour Court. The Labour Court may refuse to hear a
complaint if the complaint has not been referred to mediation, if the mediation has not been
conducted according to the ELRA, or if the application is not urgent183.
For the purposes of arbitration, a dispute is defined to include a complaint over the fairness or
lawfulness of an employee’s termination employment184. Having failed to resolve the dispute
in mediation, the Commission appoints an arbitrator, determines the time, date and place of
the arbitration hearing and advises the parties of this 185 . The arbitration is decided and
180
Section 86 (3) of ELRA
181
182
Section 86 (6) of ELRA
183
184
Section 88 (1) (b) of the ELRA
185
87
conducted in a manner that the arbitrator sees as appropriate186. In an arbitration hearing, the
parties may be represented by the party’s trade union or an advocate 187. An arbitration award
made under the ELRA is binding upon the parties to the dispute 188. An arbitration award may
be served and executed in Labour Court as if it were a decree of a court of law
Any party that alleges a defect in the arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for a decision to set aside the arbitration award
within six weeks of the date the award was settled on the applicant or if the award involves
improper procurement, within six weeks of the date the applicant discovers the fact. The
Labour Court may set aside an arbitration award under the ELRA on the grounds that there
was misconduct on the part of the arbitrator and that the award was improperly procured 189.
Where the award is set aside, the Labour Court may resolve the dispute in a manner it sees
appropriate190. The Arbitration Ordinance does not apply to an arbitration conducted by the
Commission.
In any proceedings concerning unfair termination of an employee by an employer, the

employer has to prove that the termination is fair191. If an arbitrator or Labour Court finds a
termination is unfair, they may order the employer: to reinstate the employee; or to pay
compensation to the employee of not less than twelve months’ remuneration192.
NOTE: Section 88 of the Employment and Labour Relations Act was amended by
Written Laws (Miscellaneous Amendments) Act No. 8 of 2006 to include tortuous liability
and vicarious liability.
186
Section 88 (4) and Section 88 (5) of the ELRA
187
188
189
190
191
192
88
CHAPTER FIVE:
TRADE UNIONS EMPLOYERS ASSOCIATION AND FEDERATION
5.0 Introduction and definition of terms
The Constitution of Tanzania provides for freedom of association while the Employment and
Labour Relations Act allows the workers and employer to establish and join unions.
5.1 Meaning of trade Union
According to Section 4 of the Employment and Labour Relations Act193, trade union is
defined to mean any number of employees associated together for the purpose, whether by
itself or with other purposes, of regulating relations between employees and their employers
or the employers' associations to which the employers belong.
In other words, Trade unions refer to the organizations established by workers to protect and
defend their rights and interest to their employers. Trade unions play the significant roles in
promoting and maintaining industrial harmony such as representing their members in
negotiations and collective bargaining as stipulated in Section 67 of ERLA, also representing
their members in settling disputes before the Commission for Mediation and Arbitration
(CMA) and High Court (Labour Division), educating their members about labour laws, create
union branches at work places, guiding their members about labour matters and others.
5.2 Meaning of federation
Federation means either an association of trade unions or an association of employers

association194. In other words a federation is defined to mean an umbrella organisation of (at
least five) registered trade unions, or employers' associations. Thus, a federation is a coalition
or alliance of more than one trade union. After being registered, a trade union or employers'
association or federation is considered to be a body corporate195.
193
Act no. 6 of 2004
194
195
89
5.3 Meaning of Employer’s Association
Employers' association' means any number of employers associated together for the purpose,
whether by itself or with other purposes, of regulating relations between employers and their
employees or the trade unions representing those employees.196"
5.4 TRADE UNION MOVEMENT IN TANZANIA
Historically, the first trade union in Tanganyika was known as ‘’Motor Drivers Union’’
which was introduced by the drivers in 1927 (Moshi region), it attempted to call a strike for
the purpose of fighting for worker’s wage197.
However, The African Civil Servant formed the Tanganyika African Government
Association in 1930’s but this union was a white collar elitist organization formed by Martin
Kayamba’s territory. In 1930’s the Asian Assistant and Artisan tried to organize a trade union
in order to solve the problem of working hours which were 50 hours per week and during this
time trade unions believed that strikes was a better way of fighting for their rights.
Another trade union was established by the Asia workers in 1937, it was called Asiatic
Labour Union and it helped to the birth of other unions in Tanzania, this is according to
TUCTA 2003, Also, Chambua 2001 states’’ the government registered and recognized 5
trade unions up to the end of 1947 which were Stevedores Association and Dockworkers
Union, Africa Cooks, Washer men and House servant Association, The Morogoro Personnel
Servants Association and Dar es Salaam African Motor Drivers Association, all mentioned
unions embarked the struggles against poor working conditions especially low wages, forced
labour and other oppressive situation198.
Up to 1955, seventeen trade unions merged to form the Tanganyika Federation of Labour
(TFL), Moreover, Tanganyika African National Union (TANU) was a political party formed
in 1954 under the influence and efforts of Mwalimu Julius Kambarage Nyerere, the party
fought for the independence of the country and it received strong supports from trade unions,
therefore, trade unions also facilitated the political struggles of the country.
196
197
Kapinga, W. 1985 ‘’State Control of Working Class Through Labour Legislation’’ in I, Shivji (ed). The State
and the Working People in Tanzania, London: CODERSIA
198
Chambua, S.E 2002. Constraint /Obstaclesto increase Trade Union Membership in Tanzania, Research report
submitted to the ILO, Dar es Salaam Tanzania.
90
In 1964 the government enacted National Union of Tanganyika workers (NUTA) which
replaced the Tanganyika Federation of Labour (TFL) as an umbrella of trade unions in the
country.
Likewise, TANU and Afro Shirazi Party (ASP) merged to form Chama Cha Mapinduzi
(CCM) in 1977, CCM means revolutionary party in English, and this party played key roles
in promoting and facilitating trade union movements in Tanzania. On the other hand, in 1979
an Act of parliament was passed to replace NUTA Act with Jumuiya ya wafanyakazi wa
Tanzania (JUWATA) or Union of Tanzania workers which was intended to save all workers
around the country. However, TUCTA 2003 revealed that ‘’ organization of trade unions
formed the act which contravened one of the basic rights and Convention No 87 of ILO
which describe the issue of Freedom of Association’’, hence, the government decided to
establish OTTU as a trade union body in Tanzania.
OTTU and its affiliated unions decided to change the name to Tanzania Federation of Free
Trade Unions (TFTU). Also, Mr. Bruno Mpangala was elected as a secretary general and the
total membership of TFTU was approximately 348,000. Likewise, the study of Chambua
(2001) revealed that, TFTU failed to bargain with the employers at many times199.
In 1998, the Trade Union Act No 10 allowed trade unions to be independent from the
government and this was because of the efforts initiated by trade unions to facilitate the
freedom of trade unions in the country, According to this Act ‘’ Any twenty workers can join
to form a union and two unions can join to create a national center, the Register, which is
authorized and responsible for administrating the provision of the Act may, however, cancel
or refuse the registration of the union if there are any reasonable factors’’.
The government introduced The Trade Union Congress of Tanzania (TUCTA) which is an
umbrella of all trade unions in Tanzania and it operates in the part of Mainland only while
ZATUC is functioning in Zanzibar. TUCTA has 23 affiliated members like TUICO,
CHODAWU, TUGHE, TAMICO, CWT and others, it also affiliated with the International
Trade Union Confederation (ITUC).
Again, there are 29 trade unions in Tanzania mainland including Tanzania Union of Industrial
and Commercial Workers (TUICO), The Conversation, Hotels, Domestic and Allied Workers
Union (CHODAWU), TAMICO, TUGHE, CWT, and others, and there are about 588,000
199
Chambua, S.E 2002. Constraint /Obstacles to increase Trade Union Membership in Tanzania, Research report
submitted to the ILO, Dar es Salaam Tanzania.
91
union members who are represented by these unions, two out of five (40 percent) are women
and the trade union density is estimated 2.5 percent of the total labour force. Other data
revealed that the number of women in trade union leadership increased from 435 in 2009 to
461 in 2013 in the Trade Unions Congress of Tanzania (TUCTA) which equals a growth at
5.6 percent. However, Tanzania has ratified 35 ILO conventions including the core 8
conventions.
5.4.1 Trends in legislation regulating trade unions
The concept of trade unions was introduced into Tanzania (then Tanganyika) through the
enactment of the Trade Unions Ordinance, 1932 which followed closely most of the
provisions of the Trade Unions Acts of 1871 and 1876 United Kingdom and several other
pieces of legislation which were enacted thereafter designed to control and regulate trade
unions200.
The legislation of the Trade Unions Ordinance, 1932 followed on the heels of an emerging
permanent wage-labour. It was intended to avert the growth of independent radical workers
movement by providing a legal mechanism by which the colonial State would use to ensure
that trade unions toe the line. The State chose to practice a kind of enlightened paternalism to
serve its own interests201.
The Ordinance borrowed a lot from the English Acts. In addition to the definition of trade
union it also took aboard the provisions designed to control trade unions and those related to
the civil and criminal liabilities of trade unions202
The vast powers of the Registrar of Trade Unions on registration, control, cancellation of
registration of trade unions were adopted. The only marked difference was that while in the
English Acts registration of trade unions was voluntary affair, the Tanganyika Ordinance
provided the converse. Under Section 6 of the English Acts registration of trade unions was
voluntary but Section 5 of the Tanganyika Trade Unions Ordinance stipulated that
registration of trade unions was compulsory and made non-registration a criminal offence203.
200
Law Reform Commission of Tanzania (2001). Report on Labour Law. A report presented to the Minister for
Justice and Constitutional Affairs: Dar es salaam
201
Ibid
202
Ibid
203
Ibid
92
In addition under Section 18 such an unregistered trade union could not avail itself of the
immunity provided by of the Ordinance. This had a consequence of making unregistered
trade union vulnerable to the common law illegalities such as conspiracy and restraints of
trade. It also made a member of the unregistered union who participated in its proceedings
guilty of an offence204.
(Amendment) Ordinance, No.7 of1939 that changed the appellate authority to be the High
Court. Later the Trade Unions (Amendment) Ordinance, No.30 of 1941 introduced
immunity of trade unions from action in tort for tortious acts done in furtherance of trade
disputes. However, while allowing peaceful picketing the Ordinance made it an offence to
intimidate or to do any act calculated to intimidate even if in furtherance of a trade union. It
introduced such a wide definition of intimidation and injury that even peaceful picketing was
a risky undertaking. In addition those participating in illegal strikes were subjected to legal
sanction205.
The state attempted to further control trade unions by enacting the Trade Dispute
(Arbitration and Inquiry) Ordinance, No. 11 of 1947 which provided for a standing
statutory machinery for tripartite conciliation and arbitration of trade disputes which apart
from trade unions, involved Labour Officers and Arbitration Tribunal appointed by the
Governor206
This machinery had to have been fully utilised before any further industrial action could be
taken. Though under the Act the Assumption was that the state would exercise neutrality but
in practice it usually leaned towards the employers. It also enacted the Trade Disputes
(Arbitration and Settlement) Ordinance, No. 43 of 1950, which introduced the concept of
essential service for which a special procedure for settlement of their trade disputes was put
in place207.
The procedure involved the use of the Labour Commissioner and a Tribunal and restriction of
the use of strikes and lockouts by making them illegal unless the two stage statutory dispute
settlement machinery was exhausted. By making strikes illegal inessential services, like
harbours, railways, telecommunication and posts, and providing mandatory arbitration the
204
Section 10 of the Ordinance
205
206
Ibid
207
Ibid
93
state managed to divide workers. All this portrayed the real intention of the colonial state to
hinder trade union initiatives208.
The Trade Unions Ordinance, 1932 was repealed and replaced by another such
Ordinance of 1956. Though the intention of the change was recorded as to ensure that trade
unions continue to develop and establish themselves on a sound basis, the real aim was to
provide provisions for more state control of trade unions209.
More conditions for registration and compliance of trade unions were prescribed and the
Registrar was given more power to exercise control and supervision over unions in areas of
funds, appointment of officers and rules of a union. All this portrayed a wolfin a sheep skin.
The real intention of the colonial State was to keep under leash trade union activities210.
When mainland Tanzania gained independence the wave of strikes did not abate.
Through strikes, workers continued to demand for higher wages and to oppose oppressive
management. The Tanganyika Federation of Labour (TFL) which was a trade union per
excellence registered under the relevant law had participated in the nationalist struggle for
independence in partnership with Tanganyika African National Union (TANU)211.
Political leaders also had in turn fought besides TFL and other trade unions against the
colonial government on its control over trade unions. However, immediately thereafter a
serious cleavage developed between the government and TFL notwithstanding that the
government team included tested trade unionists like Mr. Rashid Kawawa and Mr. Michael
Kamaliza. The contention was especially over two major issues, i.e. citizenship and
africanisation. The union-party alliance was transformed into a union-party rivalry212.
The government sought for ways to bridge this rift in order to reduce strikes and bring the
trade union more under its control. Hence the Trade Union Ordinance, Cap. 381 were
heavily amended by the Trade Unions Ordinance (Amendment) Act, No. 51 of 1962. The
amendment resulted in giving more power of control to the minister for Labour to appoint
208
Ibid
209
210
Ibid
211
Ibid
212
Ibid
94
any federation of workers trade union as designated federation of trade unions to which every
registered trade union was obliged to affiliate213.
Although the federation was obliged to register every trade union, which applied for
registration, however it could not cancel or revoke membership of registered trade union
without the Minister approval. The Act also provided the Minister with powers over the
finances of the designated federation over and above those already held by the Registrar.
The Minister had powers to direct the designated federation as to the purposes to which its
moneys were to be applied and the federation was obliged to give effect to such direction 214.
On his part the Registrar was empowered to suspend officers of the federation if he was
satisfied that its funds had been used or were being expended in an unlawful manner or on an
unlawful object 215 . Under such financial situation the Registrar had additional powers to
apply to the High Court for the appointment of receiver of the assets of the trade union216.
In addition the Trade Dispute (Settlement) Act, No. 43 of 1962 repealed and replaced the
Trade Disputes (Arbitration and Settlement) Ordinance, Cap. 296. It was enacted to set
up a standing industrial dispute settlement procedure and machinery involving negotiation,
conciliation and-arbitration. The Act obliged trade unions and employers to exhaust the
machinery before they could resort to strikes or lockouts. It made participation in strikes and
lockouts an offence unless the conditions provided were exhausted217.
This Act was later amended by Trade Union and Trade Disputes (Miscellaneous
Provisions) Act, No. 64 of 1964 and the Trade -Disputes (Settlement) (Amendment) Act,
No.'47 of 1965. It was however repealed and replaced by the Permanent Labour
Tribunal Act, No. 41 of 1967, which established the Permanent Labour Tribunal for, inter
alia, the settlement of industrial disputes. The latter Act was itself later amended changing the
tribunal into an Industrial Court by the Industrial Court of Tanzania Act, No.3 of 1990218.
As Act No. 43 of 1962 did not cover government employees; correspondingly the Civil
Service (Negotiating Machinery) Act, No. 52 of 1962 (Cap. 484) and the Local
Government Service (Negotiating Machinery) Act No. 66 of 1963 (Cap.542) were enacted
213
See Section 7, 13 and 14 of the Act
214
Section 41B (1) of the Act
215
Section 47 A (1) of the Act
216
217
Ibid
218
Ibid
95
to cater for employees of the central and local government respectively. The latter Act was
initially repealed and replaced by the Local Government (Negotiating Machinery) Act, No.
11 of 1982, which in turn suffered amendment by the Local Government Laws
(Amendment) Act, No. 8 of 1992219.
Due to trade unions strong opposition to the Trade Disputes (Settlement) Act, No. 43 of 1962,
the Trade Unions (Revocation of Special Powers) Act, No. 44 of 1962 was enacted. It
revoked the powers of the Minister to give directions to a designated federation as to the
purpose to which funds received shall be expended.
Meanwhile the Tanganyika Federation of Labour (TFL) was designated; The Tanganyika
Federation of labour is hereby appointed, with effect from 24th August 1962, to be the
designated federation for the purposes of the Trade Unions Ordinance. This cooled the
tempers of TFL leadership.
However, the TFL hostilities toward the government subsided only for a while. It erupted
seriously in January 1964 when the President announced that the government was to abolish
racial distinction in recruitment for jobs, training and promotions. Thereafter followed the
army mutiny, which, it was claimed, had the support of some of the TFL leaders. This led to
the downfall of TFL as some of its leaders were detained and on 21st February 1964 the
government banned it. With the total eclipse of TFL this country witnessed the formation and
development of monolithic statutory trade unions under firm state tutelage220.
The National Union of Tanganyika Workers (NUTA) was instead established by the
National Union of Tanganyika Workers (Establishment) Act No. 18 of 1964 (Cap. 555)
dissolving TFL and its member unions and placing the labour movement under the care and
control of the government and TANU221.
This brought to an end the autonomy of trade unions against ILO Conventions. Though
it was required to promote the policies of and encourage its members to join TANU the new
union was also assigned the same dominant role of its predecessor, TFL, i.e. the task of
219
Ibid
220
221
Ibid
96
protecting and improving the wages and working conditions of the Union members through
collective action222.
In 1979, NUTA was replaced by Jumuiya ya Wafanyakazi wa Tanzania (JUWATA)

established by the Jumuiya ya Wafanyakazi wa Tanzania Act, No. 24 of 1979 and
followed in 1991 by the Organisation of Tanzania Trade Unions (OTTU) which was
established by the Organisation of Tanzania Trade Unions Act, No. 20 of 1991223.
There was also the formation of the first National Congress for labour in August 1995 known
as the Federation of Free Trade Unions (TFTU) by 11 unions as founding members.
TFTU was headed by Secretary General assisted by two deputies, one for Mainland Tanzania
and the other for Zanzibar elected by union members. It should be noted that the TFTU and
its affiliated unions were denied registration by the ministry of labour due to existence of the
OTTU Act which recognised only OTTU and affiliated (sectorial) unions224.
Therefore, the TFTU was not authorised to negotiate, usually negotiations took place between
a respective trade union and an employer or employers' association. For such an agreement to
be registered in the Industrial Court (as per the law), the unions had to use OTTU's forum 225.
In theory, at this time, TFTU and OTTU co-existed as distinct umbrella organisations, but in
practice, the duo were two sides of the same coin. It goes without saying that, OTTU was
retained as an official name for the purposes of the OTTU Act, but in real sense, TFTU was
an unofficial name for OTTU226.
Again, at this period the TFTU called on the government to ratify two ILO conventions
related to the freedom of association, rights to organize, child labour, forced labour, and equal
pay for equal work. As a result, the OTTU Act, 1991 and The Trade Union Ordinance,
1956 were repealed and replaced by the Trade Unions Act, No. 10 of 1998, which came
into operation in 1st July 2000. Henceforth, OTTU was resolved, the eleven Trade
Unions under TFTA were re-registered and unanimously decided to form a single
222
Ibid
223
Section 4 thereof stated: 4 (1) OTTU shall be the sole trade union body representative of all employees in the
United Republic. (2) OTTU shall, with effect from the effective date, be deemed to be a trade union and the
Registrar shall, upon appropriate application being made, register it in that behalf under the [Trade Unions]
Ordinance.
224
225
http://jabashadrack.blogspot.com/2012/07/trade-unionism-and-freedom-of.html Retrieved on 25th March
2019 at 16:00HRS
226
Ibid
97
federation named and registered as the Trade Union Congress of Tanzania (TUCTA) as a
new umbrella organisation in April 2001227.
The structure of TUCTA is very similar to that of TFTU/OTTU with only one major
difference i.e. TUCTA only covers Mainland Tanzania (not Zanzibar) since the Trade Unions
Act, 1998 did not extend to Zanzibar228.
The Trade Unions Act, 1998 did not last longer as in 2004 it was repealed by section 103
(2nd schedule) and replaced by Part IV-VIII of the Employment and Labour Relations
Act, No. 6 of 2004229. In essence, there is no substantial change between the two laws as the
3rd Schedule to the ELRA, 2004 makes comprehensive savings of provisions of the Trade
Unions Act, 1998 as well as organisations registered thereunder230.
Therefore, in Tanzania Mainland (as per the ELRA and the Constitution), all employees in
the private and public sectors have the right to form or join trade unions and to bargain
collectively, except for members of the Tanzanian People's Defence Forces, the Police Force,
the Prisons Service, and National Service231.
5.4.2 Requirements for registration of trade, employers association and federation
Trade unions in the Tanzania are obligated to be registered under Part IV of the ELRA.
Section 45 (1) of ELRA provides that “A trade union, or employer’s association shall
register itself under this part within six (6) months of its establishment”. Therefore the
period within which the trade union is required to be registered is six months from its
establishment.
The requirement for the registration of trade unions are provided under Section 46 (1)
(a)-(g) of the ELRA, and according to this provision in order for trade union to be
registered it must be (a) a bona fide trade union (b) an association not for gain (c) it is
independent of any employer or employers association (d) has been established at the meeting
of at least 20 employees (e) has been adopted its constitution (f) it has adopted a name that
227
Ibid
228
Ibid
229
The Act also repealed and replaced the NGOs Act of 2002
230
http://jabashadrack.blogspot.com/2012/07/trade-unionism-and-freedom-of.html Retrieved on 25th March
2019 at 16:00HRS
231
Ibid
98
does not resemble the name of another union so as not to mislead or create confusion and (g)
it has an address in the united republic of Tanzania.
Section 46 (2) of the ELRA, set out the requirements for registration of employer's
association and thus according to this provision before an employer’s association to be
registered it must (a) be a bona fide employer’s association (b) it is an association not for
gain (c) be established at a meeting of at least 4 employer’s (d) it has adopted a constitution
and rules that comply with section 47 (e) it has adopted a name that does not resemble the
name of another union so as to mislead or create confusion (f) it has an address in the united
republic of Tanzania.
For a federation the condition precedent for its registration is that it must satisfy the
requirements set out under Section 46 (3) (a)-(g) the Act, and this is according to Section 45
(2) of the ELRA. These requirements are (a) a bona fide federation (b) it is federation not for
gain (c) it has been established at a meeting of at least 5 registered organization of the
same kind (d) it has adopted a constitution and rules that comply with section 47 (e) it has
adopted a name that does not resemble the name of another organization or federation so as
not to mislead or create confusion (f) it comprises registered organisation only; and (g) it has
an address in the united republic of Tanzania.
As per Regulation 22 of the Employment and Labour Relations (General) Regulations

2017 (GN 47 2017), a federation or confederation shall not be registered unless it sets clearly
a bona fide motive of its establishment by giving the Registrar any information as he may
require for such purpose or do anything that he may consider necessary.
The law under Section 45 (3) of the ELRA makes it an offence for either a trade union or
employer association to operate as union or an association after 6 months has expired of its
establishment if it has not applied for registration under part IV of the Act; or unless it is
registered under the said part".
5.4.3 Contents of trade union and employers’ organization by-laws constitution
As it has been observed under Section 46 (1)-(3) of the ELRA that the condition precedent
for registration of a trade union or employer’s is that such organisation must have adopted a
constitution and rules which basically comply with the provision of Section 47 of the Act.
99
Having the constitution is important as they are required to be presented during the
registration of the organisation232.
It is imperative to note that the constitution or the rules adopted by the trade union or the
employer’s association shall not be in conflict with -(i) the basic rights and duties set out in
Part III of the Constitution of the United Republic of Tanzania,1977; (ii) the provision of the
ELRA or any other written law; or (b) evade any obligation imposed by any law"233.
Therefore, Section 47 (1) (a)-(t) of the ELRA, provides for matters that must be embodied in
the organisation constitution for it to be registered. This includes the followings;
The constitution and rules of a trade union, employers' association or federation shall: (a)
state that it is an organization not for gain; (b) prescribe the qualifications for membership
and the grounds and procedure for termination of membership; (c) prescribe the membership
fee or any method of determining the fee; (d) prescribe rules for the convening and conduct of
meetings, including the quorum required, and the minutes to be kept of, those meetings; (e)
establish the manner in which decisions are made; (f) establish the office of secretary and
define its functions; (g) provide for office bearers, officials and define their respective
functions;
(h) prescribe a procedure for the nomination and election of office bearers; (i) prescribe a
procedure for the appointment or nomination or election of officials- (j) establish the
circumstances and manner in which office bearers, officials and trade union representatives
may be removed from office; (k) establish the circumstances and manner in which a ballot
shall be conducted; (l) provide for the conduct of a ballot of the members in respect of whom-
(i) in the case of a trade union, the union may call upon to strike; (ii) in the case of an
employers' association, the association may call upon to lock out; (iii) in the case of a
federation of trade unions, the federation may call upon to engage in protest action;
(m) provide for banking and investing of money; (n) establish the purposes for which its
money may be used; (o) provide for acquiring and controlling of property; (p) prescribe a
procedure for the amendment of the constitution and rules; (q) prescribe a procedure for
affiliation, or amalgamation- (i) in the case of trade unions, with other registered unions; (ii)
in the case of employer associations, with other registered associations; (iii) in the case of
federations, with other federations; (r) prescribe a procedure for affiliation to an international
232
See Section 48 (1) (c) of the ELRA
233
100
workers' association or an international employers, association; (s) prescribe a procedure to

dissolve the organisation or federation; (t) any other prescribed matter.
NOTE: Section 47 (1) (t) of the ELRA is a residual provision which accommodate all other
matters that may be embodied in the constitution but not being mentioned under the Section.
Rule 23 of the Employment and Labour Relations (General) Regulations 2017 (GN 47
2017), require a trade union or an employer’s association to expressly state in its constitution
the areas from which it recruits its members. Rule 23 (2) of the Employment and Labour
Relations (General) Regulations 2017 (GN 47 2017), creates an offence for a trade union or
an employer’s association which is recruiting members from areas other than specified in its
constitution.
5.5 PROCESS OF REGISTRATION

5.1 Application for registration
Albeit the law provides procedures for registration any organisation or federation in
Tanzania. By virtue of Section 48 (1) (a)-(c) of the ELRA, an organization or federation may
apply to the registrar for registration by submitting to the same (a) a prescribed form that has
been properly completed and signed by secretary of organisation or federation 234 (b) a
certified copy of attendance register and minutes of its establishment meeting prescribed in
Section 46 (1) (d) , 2 (c) or 3 (c) and (c) a certified copy of its constitution and rules.
However the registrar in terms of Section 48 (2) of the ELRA may require further
information in support of the application in additional to those provided under the Section. It
has been argued that this is one of section that creates difficulties environment for registration
of the organisation or a federation.
The aspect of not mentioning what is such “further information” it may sometimes cause
difficulties and double standards. This may be difficult for the registration of an organization
for two reasons. One it may prolong the procedures for registration and two, the registrar
234
By virtue of Regulation 18 of the Employment and Labour Relations (General) Regulations 2017 (GN
47 2017), the forms for the purpose of registration for organisation, federation and confederation are those
which have been provided under Second and Third Schedules of the Regulations.
101
may not be willing to register trade union and therefore, use that power under section 48 (2)
to undermine the registration235.
Under Regulation 20 of the Employment and Labour Relations (General) Regulations

2017 (GN 47 2017), a trade union shall be registered upon application to the Registrar using
the prescribed form TUF. 1 set out the Third Schedule to the Regulations and on the
payment of application fee prescribed in the Forth Schedule of the Regulations.
Accordingly, under Regulation 20 (2) of the Employment and Labour Relations

(General) Regulations 2017 (GN 47 2017), an employers association shall be registered
upon application to the Registrar using the prescribed form TUF. 2 set out the Third
Schedule to the Regulations and on the payment of application fee prescribed in the Forth
Schedule to the Regulations.
As per Regulation 21 of Employment and Labour Relations (General) Regulations 2017

(GN 47 2017), A Federation or confederation shall be registered upon confederation
application to the Registrar using the prescribed form TUF. 3 set out in the Third Schedule
to the Regulation. The law under Regulation 20 (3) provides that the registration under
sections 46 and 48 of the Act shall be done within thirty days from date of application.
NOTE: The form provided under third schedule to the Regulation are not restrictive and thus
the said forms may be adopted, modified or otherwise altered by the Minister in expression to
suit the purpose for which they were intended, and this is according to Regulation 34 of
Employment and Labour Relations (General) Regulations 2017 (GN 47 2017).
Note also that for the application of registration the fee chargeable is Tshs. 200,000/= as per
the fourth Schedule of the Regulation. But the law under Regulation 33 exempt the
Government Departments and Institutions from payment of fees under these Regulations.
5.5.1 Registration or refusal of registration
As per Section 48 (3) of the ELRA, in case the registrar is satisfied that all the requirements
under Section 46 and 47 and other maters incidental thereto has been duly complied he shall
register the organisation or federation.
235
Rugeiyamu, R et al (2017). The Major Milestones for Development of Trade union in Tanzania: Is the
Environment for operation Conducive? at p. 49
102
Under Section 58 (1) (a) (2) of the ELRA, the Registrar is required to publish a notice in the
Gazette stating that an organisation or federation has been registered and it shall contain a
statement to the effect that, any person may view the constitution of that organisation or
federation at the Registrar's office. However the registrar may refuse the registration of a
purported organisation or federation if he is of the opinion that the provision of Section 46
and 47 of the Act have not been complied with.
In the event where the registrar has refused to register the organisation or federation then
under Section 48 (4) (a)-(b) of the ELRA, the registrar may afford an applicant an
opportunity to rectify the application within a stipulated time or he may generally refuse the
application and send the applicant with written notice of the decision and the reasons thereof.
The above provision should be red together with Regulation 24 of Employment and
Labour Relations (General) Regulations 2017 (GN 47 2017), which provides that where
the Registrar refuses to register an organization, federation or confederation, he shall, within
thirty days, notify the applicant in writing the reasons of such decision, as prescribed in the
form TUF. 4 set out in the Third Schedule to the Regulations.
Under Regulation 27 of Employment and Labour Relations (General) Regulations 2017

(GN 47 2017), the registrar is empowered to issue a notice of intention to cancel registration
in a form TUF. 8 prescribed in the Third Schedule to the Regulations.
5.5.2 Entering the name into the register and issuance of a certificate
In case the registrar register the organisation or the federation he is required under Section 48
(5) (a) and (b) of the ELRA to enter the name of the registered organisation or a
federation in appropriate register and also issue a certificate of registration. As per
Regulation 25 of Employment and Labour Relations (General) Regulations 2017 (GN 47
2017), the Registrar is required to issue a certificate of registration in the forms TUF. 5,
TUF. 6 and TUF. 7 (Reserved for trade unions, employers association and confederation or
federation respectively) in a manner set out in the Third Schedule to the Regulations.
However under Regulation 19 (2) of Employment and Labour Relations (General)

Regulations 2017 (GN 47 2017), the registrar is empowered to refuse to issue a
certificate of registration to the organisation or federation in a manner set out under the
third schedule.
103
The issued certificate in my view is an evidence that the federation or the organisation has
been duly registered under part IV of the Act and more specifically, is an evidence that all the
requirements under the Act and other matter incidental thereto has been complied with. In
terms of Section 49 (5) of the ELRA a dully issued certificate is evidence that the registered
organisation or federation is a body corporate.
5.5.3 Lost or destroyed certificate
In the event where the certificate issued is lost or destroyed the provision under Regulation
26 of Employment and Labour Relations (General) Regulations 2017 (GN 47 2017),
cater for the matter.
This regulation requires the respective executive to report in writing to the registrar for re-
issuance of a new certificate. Regulation 26 (3) of Employment and Labour Relations
(General) Regulations 2017 (GN 47 2017), the applicant shall also produce (a) in case of
a lost certificate, a loss report issued by Police; and (b) in case of a destroyed certificate, a
copy of such certificate.
Thereby if the registrar satisfied of such loss or destruction, and on receipt of the prescribed
fee, re-issue a new certificate236.
5.5.4 The register for organisation and federations
Regulation 19 (1) the Employment and Labour Relations (General) Regulations 2017
(GN 47 2017), requires the registrar to keep the register for-(a) trade union; (b) employers’
association; (c) federation; and (d) confederation. As per Regulation 20 (4) the Employment
and Labour Relations (General) Regulations 2017 (GN 47 2017), the Register shall
contain- (a) the name of the organization, federation or confederation; (b) physical and postal
address, fax number, email address and telephone numbers of the registered office; (c) the
titles and names of executive officers and trustees at the time of registration; and (d) the date
of registration.
The register and documents thereof shall be open to public and may be accessible upon
making a written request and on payment of the prescribed fee specified in the Fourth
Schedule to the Regulations237.
236
Regulation 26 (2) of Employment and Labour Relations (General) Regulations 2017 (GN 47 2017), and the
fee chargeable in this occasion are those stipulated under fourth schedule to the regulations.
104
For inspection of register entries and documents filed by or with registrar relating to any
organization the chargeable fee is Tshs. 30000/=. Copies of or extracts may be issued by the
Registrar within three days from the date of the request238.
For a copy or extract from any document in the custody of the registrar the fee chargeable is
Tsh. 5000/= per page, in addition to the fee for authentication by the Registrar, where such
authentication is required is Tshs. 10,000/=.
5.5.5 Effect of registration and legal status of a registered organisation or federation
The legality of either organisation or a federation is generally agreed upon to exist and is
vested on the organisation or federation upon appropriate registration. It is able to, once it has
been registered; carry out any acts (s) which are in furtherance to its objects. Thus, it is
unarguably established that an organisation or a federation has a legal status to its name upon
registration, and unregistered trade unions have no recognised legal existence.
Under Section 49 (1) (a) (b) (I)-(iii) of the ELRA, A registered organisation or a federation
is a body corporate with perpetual succession and a common seal, It can sue and be sued in its
own name, can enter into contract with its own name and It can acquire, hold sell or transfer
any movable or immovable property. However under Section 49 (2) of the ELRA, the
registered organisation or federation shall not be an association in restraint of trade.
In the wording of Section 49 (3) of the ELRA, the fact that a person is a member of a
registered trade union or a registered employers' organisation does not make that person liable
for any of the obligations or liabilities of the trade union or employers' organisation.
Section 49 (4) of the ELRA provides that a member, office-bearer 239 or official of a
registered trade union or a registered employers' organisation or, in the case of a trade union,
a trade union representative is not personally liable for any loss suffered by any person as a
result of an act performed or omitted in good faith by the member, office-bearer, official or
trade union representative while performing their functions for the trade union or employers'
organisation.
237
Regulation 30 (1) of Employment and Labour Relations (General) Regulations 2017 (GN 47 2017), and the
fee chargeable in this occasion are those stipulated under fourth schedule to the regulations.
238
Regulation 30 (2) of Employment and Labour Relations (General) Regulations 2017 (GN 47 2017)
239
In view of Section 49 (6) of ELRA, the expression office bear in relation to trade Union includes a trade union
representative prescribed under section 62 of the Act.
105
5.5.6 Change of name or constitution
Basically, a registered trade union or a registered employers' organisation may resolve to

change or replace its constitution and such change according to Section 50 (1) of the ELRA
may only have effect when approved by the registrar. In that case the organisation or a
federation which has resolved to change its name or replace its constitution it is required
under Section 50 (2) of the ELRA to make application to the registrar for such change and
submit to the same the followings; the prescribed form duly completed and signed by the
secretary240; copy of the resolution and a certificate signed by its secretary stating that the
resolution complies with its constitution241.
However the registrar under Section 50 (3) of the ELRA may require further information
apart from those mentioned under the Section.
Regulation 28 of the Employment and Labour Relations (General) Regulations 2017

(GN 47 2017), any organization or federation wishes to change the name, constitution or
rules of organization shall notify the Registrar and fill in a prescribed form TUF. 9 set out
in the Third Schedule.
On considering the application and further information supplied to him, the registrar may
approve the change and issue the prescribed certificate approving such change but only when
he is satisfied that the change of the constitution and the rules complies to the provision of
section 46 and 47 of the Act242.
It also follows that in case also when the registrar is satisfied that the change of name does
not resemble the name of another union so as to mislead or create confusion, will approve
such change by means of issuing a new certificate of registration reflecting the new name243
Under Section 50 (5) of the ELRA read together with Regulation 29 of the Employment
and Labour Relations (General) Regulations 2017 (GN 47 2017), the registrar shall, in
writing, notify an organization or federation, of his approval or refusal to approve any change
of name, or change to the constitution and rules of a registered organization, in a relevant
form prescribed form TUF. 10 and 11 as set out in the Third Schedule.
240
TUF. 9 set out in the Third Schedule of the Regulations, 2017.
241
Alteration of rules, change of name, re-registration of officers the fee chargeable is Tshs. 50,000/=
242
243
Section 50 (4) (c) of the ELRA
106
Under Section 58 (1) (c) of the ELRA, the Registrar is required to publish a notice in the
Gazette stating that the a change of a name or amalgamation affecting any registered
organisation or federation has been registered;
NB: Any person aggrieved by a decision of the Registrar may appeal to the Labour
Court, against that decision and this is in accordance to Section 57 of the Act.
5.5.7 Accounting records and audits of organisation and federations
The law under Section 51 of the ELRA requires every registered trade union and every
registered employers' organisation must, to the standards of generally accepted accounting
practice, principles and procedures to (a) keep books and records of its income, expenditure,
assets and liabilities; (b) for each financial year ending on 31 December prepare the financial
statements in the prescribed form; (c) arrange an annual audit of its book and records of
accounts and its financial statements by registered auditor (d) by 31 March of the following
year, submits auditors report to a meeting of members or their representative as provided for
in constitution of organisation or federation and to the registrar.
Further the law under Section 51 (2) of the ELRA requires the registered organisation and
federation to keep at their office its auditors report and financial statements which should be
available to its members for inspection.
5.6 DUTIES OF REGISTERED ORGANISATION AND FEDERATION

5.6.1 Duty to keep records
These duties are provided for under Section 52 of the ELRA in addition to the records
required by section 51 of the Act. These duties include; keeping for five years (a) a list of its
members in the prescribed form;244 (b) the minutes of its meetings; (c) the ballot papers.
5.6.2 Duty to provide information to registrar
Duty to provide to the registrar (a) by 31 March of the following year, an annual statement
certified by the secretary showing the total number of members as of 31 December of the
previous year; (b) within 30 days of a request from the Registrar, a written explanation of
anything relating to the statement of membership, the auditor's report or the financial
statements: (c) within 30 days of any appointment or election of its national office bearers,
244
See TUF. 17 and 18 contained in GN no. 47 of 2017
107
the names and work addresses of those office bearers; (d) 30 days before a new address for
service of documents will take effect, notice of that change of address.
Regulation 32 of the Employment and Labour Relations (General) Regulations 2017

(GN 47 2017), requires any registered organization or federation to notify the Registrar in
writing of any change made under section 52 (2) (c) and (d) of the Act, as prescribed in a
form TUF. 13 set out in the Third Schedule to the Regulations.
In respect to the financial affairs of an organization the provisio to Section 52 of the ELRA
provided that the Registrar shall not inquire into the financial affairs of any organisation
unless there are serious grounds for believing that the organisation has infringed the law or
that the funds of the organisation have been embezzled or otherwise misused;
5.7 COMPLIANCE WITH THE CONSTITUTION

5.7.1 Application to the labour court for redress
In the event where a federation or registered Organisation fails to comply with its
constitution, the Registrar or member of the federation or registered Organisation is
given power under Section 53 (1) of the ELRA, to apply to the Labour Court for any
appropriate order including (a) setting aside any decision, agreement or election; (b) requiring
the Organisation or federation or any official thereof to (i) comply with the constitution; (ii)
take steps to rectify the failure to comply; (c) restraining any person from any action not in
compliance with the constitution.
5.7.2 Factors the labour court should take into account before hearing the application
Before hearing the application above referred to it, the labour court shall satisfy itself that (a)
the Organisations or federation's internal procedures have been exhausted; or (b) it is in the
best interests of the Organisation or federation that the application be heard notwithstanding
that any internal procedures have not been exhausted. This is according to Section 53 (2) (a)
and (b) of the ELRA.
5.8 AMALGAMATION OF REGISTERED ORGANISATION OR FEDERATION

5.8.1 Amalgamation defined
Amalgamation when used in reference to organisation or federations it refers to a legal

process by which two or more trade unions or federation joined together to form a new entity
108
and as a consequence the amalgamating trade union or federation loses its legal existence and
thus its members become the members of new entity.
5.8.2 Amalgamation of registered organisation or federation
As per Section 54 (1) (a)-(c) of the ELRA, any registered (a) trade union may resolve to
amalgamate with one or more registered trade unions; and (b) employer's association may
resolve to amalgamate with one or more registered employer's associations; (c) federation
may resolve to amalgamate with one or more federations to form a confederation.
5.8.3 Application for registration of amalgamated organisation or federation
Under Section 54 (2) of the ELRA, the amalgamating organisations or federations may apply
to the Registrar for registration of the amalgamated organisation or federation and the
provisions of section 48, relating to registration process shall mutatis mutandis apply in
relation to the application.
The law under Section 54 (3) of the ELRA requires the registrar once he has registered the
amalgamated organisation or amalgamated federations to cancel the registration of each of
the amalgamating organisation or federation by removing their names from the appropriate
register.
5.8.4 Effects of Amalgamation
The registration of an amalgamated trade union or an amalgamated employers' organisation

takes effect from the date that the registrar enters its name in the appropriate register245.
Under Section 54 (5) of the ELRA, Where the Registrar has registered an amalgamated
organisation or federation(a) all the assets, rights, obligations and liabilities of the
amalgamating organisations or federations shall devolve upon and vest in the amalgamated
organisation or federation; and (b) the amalgamated organisation or federation shall succeed
the amalgamating organisations or federations in respect of (i) any right that the
amalgamating organisations or federations enjoyed; (ii) any fund established under this Act or
any other law; (iii) any collective agreement or other agreement; and (iv) any written
authorisation by a member for the periodic deduction of Levies or subscriptions due to the
amalgamating organisations.
245
109
5.9 CANCELLATION OF REGISTRATION

5.9.1 Application for cancellation by registrar to the labour court
It should be noted that cancellation of registered trade unions or associations shall be done by
the Labour Court and not the Registrar of Organisations and that’s why under Section 55 (1)
of the ELRA the registrar is empowered to make an application for cancellation of
registration of a registered organisation or federation to the labour court in the event where
such organisation or federation fails to comply with requirements of registration and the
provision of part IV of the Act. Thus the two species mentioned are proper ground that may
warrant the cancellation of registration by the labour court.
5.9.2 Labour court power in entertaining the application
In entertaining the application the labour court under Section 55 (2) (a)-(b) of the ELRA
may do either of the following (a) cancelling the registration of an organisation or federation;
(b) giving the organisation or federation an opportunity to remedy any failure to comply.
5.9.3 Effects of cancellation of registration
Under Section 55 (3) of the ELRA, where the registration of an organisation or federation is
cancelled (a) all the rights enjoyed by it under Act shall cease; and (b) the organisation or
federation shall be dissolved in accordance with the provisions of section 56.
Under Section 58 (1) (b) of the ELRA, the Registrar is required to publish a notice in the
Gazette stating that the registration of any organisation or federation has been cancelled.
5.10 DISSOLUTION OF TRADE UNION AND EMPLOYER’S ORGANISATION

5.10.1 Dissolution defined
Simply put dissolution means bringing to an end the affairs of the trade union or the
employer’s association and thereby such organisation cease to exist as a body corporate.
Under the Act, the process of dissolving a trade union or the employer’s association starts
with the application made to the labour court.
5.10.2 Application for dissolution of trade union and employer’s organisation
Under the Act various person may seek an order of the labour court by way of an application
to dissolve a trade union or employer’s association on various ground these persons includes
110
(1) The registrar under Section 56 (1) of the Act on the ground that the organisation
contravenes the provision of Section 45 of the Act (2) An organisation or federation under
Section 56 (2) of the Act246 (3) any interested person under Section 56 (5) of the Act on any
ground of bankruptcy247.
5.10.3 Power of the labour court in dissolution
As per Section 56 (6) of the ELRA, in granting an order of dissolution the Labour Court may
(a) appoint any suitable person as a liquidator on any appropriate conditions; (b) decide where
any residue of assets shall vest if the constitution and rules fail to do so.
Under Section 55 (2) of the ELRA as seen above the labour court is vested with power to
make an order to cancel the registration of an organization or federation and in additional to
that under Section 56 (3) of the ELRA, the labour court when making such order it may also
make an order dissolving the organisation or federation.
NB: Under Section 58 (1) (d) of the ELRA, the Registrar is required to publish a notice in
the Gazette stating that the registered organisation or federation has been dissolved.
5.11 EXAMPLES OF TRADE UNIONS AND EMPLOYER’S ORGANISATION
In Tanzania, trade unions represent workers under Trade Union Congress of Tanzania
(TUCTA) while employers are represented by Association of Tanzania Employers (ATE).
5.11.1 The Association of Tanzania Employer’s (ATE)
The Association of Tanzania Employers (ATE) is the most representative Employers

Organisation in Tanzania. It was formed in 1960 to represent and protect the interest of
Employers on Labour and Employment issues248.
Formerly known as the Federation of Tanganyika Employers (FTE), ATE is one of the
three tripartite forums that address all industrial relations and labour related issues at sectorial
and national levels in Tanzania. Other forums are Government of Tanzania and Trade
246
The law is silent on what grounds the organisation or federation may apply on its own dissolution but
logically the ground that may make an organization to apply for dissolution on its own motion is for example
where the organisation cease to carry the objectives for which it was established
247
Section 56 (5) of the ELRA makes the law relating to bankruptcy (eg. The bankruptcy Act, Cap 25) applicable
for all application brought under the ground of insolvency and any reference to a court in those laws shall be
interpreted as referring to the Labour Court.
248
https://www.ate.or.tz Retrieved on 26th March 2019 at 19:00HRS
111
Unions. The Association represents employers in all sectors of the national economy
excluding the civil service249.
ATE is affiliated to several international networks including the International Organisation of

Employers (IOE) and the Pan African Employers’ Confederation (PEC). ATE has good
working relationships with the Government represented by the Minister of State in the Prime
Minister’s Office responsible for Policy, Parliament, Labour, Employment, Youth and PWDs,
the Trade Union Congress of Tanzania (TUCTA) and other stakeholders250.
ATE’s development partners include the International Labour Organisation (ILO), Norwegian
Business Enterprise (NHO) and Dutch Employers Cooperation Programme (DECP). Other
partners are SWHAP, BEST Dialogue, DECP, DI, GAN and CEFACEFA251.
5.11.2 Management of an organization
The highest organ within ATE is the Annual General Meeting (AGM) followed by the
Management Board. The AGM deliberates and decides on matters referred to it by the
Management Board which is responsible for controlling and administering the affairs of ATE.
Daily operations are performed by a Secretariat led by an Executive Director appointed by the
Management Board. ATE has two Zonal Offices in Arusha and Mwanza and plans are
underway to open another Zonal office in Dodoma252.
5.11.3 Vision and Motto of an organization
ATE’s vision is “to be the most preferred organization addressing the evolving business
needs of employers in Tanzania”. The Association’s mission is “to represent and advocate for
the business interests of employers.”
ATE strives to live up to its motto “Every good employer is a member of the Association of
Tanzania Employers” and, through its own initiatives and with support from its development
partners has strengthened its capacity to represent and service member companies and
continues to improve its competitiveness and human resources. ATE is currently in the third
249
Ibid
250
Ibid
251
Ibid
252
Ibid
112
year of implementing Business Plan 2015 – 2017 towards achieving the goals as stipulated in
the 10 years Corporate Plan 2015-2025253.
5.11.4 Membership of the organisation
ATE’s membership base continues to grow and currently has about 1400 registered direct
members and about 6000 indirect members drawn from private business firms, companies
and some parastatal organizations whereby the majority of members are based in Dar es
Salaam (70%) and the rest are in other parts of the Tanzania mainland (30%)254.
Membership of ATE is open to all Tanzanian Employers: individuals, partnerships,

companies, public corporations, local and other public authorities or associations of
employers and is currently classified into 8 divisions namely: Agriculture, Commerce,
Industry, Mining, Banking and Finance, Oil Division and Utility and Services as well as
Private Security divisions255.
5.11.5 Employer’s Association of Zanzibar (ZANEMA)
Zanzibar's employers’ organization is Employers Association of Zanzibar (ZANEMA).

Main activities are to represent the private sector in policy advocacy and to conduct training
workshops for members. ZANEMA maintains good working relations with ZATUC, but the
organization faces constraints in terms of manpower resources.
5.11.6 The Trade Union Congress of Tanzania (TUCTA)
The Trade Union Congress of Tanzania (TUCTA) is the only registered Trade Union
Federation in Tanzania, with Registration No. FED 01. It was established in April 2001 and
Registered in May 2001 under then Trade Union Act of 1998 and later updated its
registration under the Employment and Labour Relations Act 2004256.
TUCTA is a national umbrella organization of thirteen sectorial based trade unions with total
membership of around 650,000 by June 2016, whose main function is to coordinate and
liaise the trade union movement in the country257.
253
https://www.ate.or.tz Retrieved on 26th March 2019 at 19:00HRS
254
Ibid
255
Ibid
256
http://www.tucta.or.tz Retrieved on 27th March 2019 at 10:00HRS
257
Ibid
113
The organization is promoting the interests of workers through among many other ways
including Promoting Social Dialogue and advocacy for Decent work in harmonizing labour
relation at all levels. It also embraces the issue of building/strengthening organizational
capacities in increasing and maintaining membership base258.
TUCTA has 13 affiliates, namely:-Tanzania Teachers Union (TTU); Tanzania Union of

Industrial and Commercial Workers Union (TUICO); Researchers, Academicians and Allied
Workers Union (RAAWU); Tanzania Local Government Workers Union (TALGWU);
Tanzania Mines and Construction Workers Union (TAMICO); Tanzania Plantations and
Agricultural Workers Union (TPAWU); Tanzania Railways Workers Union (TRAWU);
Tanzania Union of Government and Health Employees (TUGHE); Tanzania Seamen’s Union
(TASU); Communication and Transport Workers’ Union of Tanzania (COTWUT);
Conservation, Hotels, Domestic and Allied Workers’ Union (CHODAWU); Telephone
Workers’ Union of Tanzania (TEWUTA); Dock Workers’ Union of Tanzania (DOWUTA).
5.11.6.1 vision
To have a continuous community, where employees and employers collaborate in creating a

stable, neat and sustainable jobs.
5.11.6.2 Goals
Fighting, protecting, defending workers' rights and promoting trade unions to be stable and
united while exercising freedom and true democracy in Tanzania.
5.11.7 Zanzibar Trade Union Congress (ZATUC)
Labour issues in Zanzibar have historically not been accommodated in constitutional matters.
The Zanzibar House of Representatives was compelled to enact the Zanzibar Trade Union
Act of 2001, which allowed registration of trade unions in Zanzibar. Subsequently, the
national trade union centre - Zanzibar Trade Union Congress (ZATUC) - was established in
2003.
ZATUC has 6 representatives on board the Tanzania constitutional review process and has
continued to strengthen its working relations with the Government of Zanzibar as well as
258
Ibid
114
employers’ organization. ZATUC presented a proposal for public sector negotiation

machinery to the Government and succeeded having it established.
ZATUC also played a major role in the development of the Zanzibar Youth Employment
Action Plan and developed a strategic plan and guidelines for combating HIV/AIDS in
private sector
5.12 ROLES AND CHALLENGES FACING TRADE UNIONS IN TANZANIA

5.12.1 ROLES OF TRADE UNIONS
5.12.1.1 To recruit new members
Trade unions play a vital role in recruiting new members and join them to unions; this process
is done through meetings and seminars where trade unions request the employers to hold the
meetings with employees, hence, union officials use this opportunity to persuade workers
about their services and roles.
However, being a member of a trade union is not free in Tanzania; this is according to laws
and unions’ constitutions. For the example the constitution of TUICO requires all active
members to pay 2% of their basic salaries. This is amount of money is deducted from their
salaries and directed to trade union for the unions’ purposes259.
5.12.1.2 To represent union members in negotiations and collective bargain
Section 70 (1) of ELRA No 6 of 2004 requires the employers to allow trade unions to engage
in collective bargaining, Through negotiations and collective bargaining trade unions
managed to bind Collective Bargaining Agreements and Recognitions Agreements which
enhance better working condition to the workers, to strengthen relationship of employees,
employers and trade unions and others. CHODAWU and TUICO signed many Collective
Bargaining Agreements in Tanzania, for example TUICO signed CBAs in CRDB Bank,
TANESCO, Bank of Tanzania, Coca Cola Kwanza Ltd and others places260.
259
Mashaka, R (2018). Roles and Challenges of Trade unions in Tanzania: The view of trade unionism in
Tanzania Mainland. A paper submitted in the course of Trade Union strategy in global economy (HO 818)
260
115
5.12.1.3 To settle labour disputes at the Commission for Mediation and Arbitration
(CMA), High Court (Labour Division)
The ELRA No.6 of 2004 allows trade unions to represent their members before the court or
Commission at any time. For example, CHODAWU settled different disputes which faced
hotels and services workers while TUICO solved many disputes including the dispute of
Mufindi Papers Mills Limited (MPM), the former Southern Papers Limited (SPM), Tanzania-
China Friendship Textile Co. Ltd and others, therefore, trade unions facilitate workplace
harmony through different ways like settling disputes261.
5.12.1.4 To create unions’ field branches at work places
Trade unions create branches in order to facilitate unions’ activities at workplaces; this is
according to ELRA and unions’ constitutions, trade unions always hold seminars and
meetings with the union branch leaders so as to maintain workers’ rights and interests.
Likewise, union branches help trade unions to solve some workplace problems but it also
intensify mutual relationship between workers, employers and trade unions. TUICO created
union branches at BOT, CRDB, NMB, TANESCO, COCACOLA KWANZA LTD,
BARCLAYS HQ, NBC, BLUEPEARL HOTEL and others262.
5.12.1.5 To collect union dues (union contributions)
All active members of trade unions are required to pay subscription fees of their membership
to the subscribed trade union, the amount of money deducted from workers help the union to
run its services for the benefits of the members, this contribution is mandatory and it is
stipulated in the laws and unions’ constitutions. Moreover, if a trade union binds a CBA in a
particular area then all employees are going to be charged the agency fee shop including non-
union members263.
5.12.1.6 Trade unions conduct meetings and seminars to their members
Trade unions conduct meetings and seminars to their members, the employees’ address their
problems, needs and interest and other working circumstances to trade union officers in order
261
Ibid
262
Ibid
263
Ibid
116
to get the solution. However, trade unions use seminars and meetings to teach workers about
labour laws and other issues related to their employment.
Meanwhile, a trade union must request an employer to conduct the meeting with employees
but if an employer will be reluctant or deny the meeting, trade unions have the rights to refer
a labour disputes before the Commission for Mediation and Arbitration of Tanzania (CMA)
this is according to S.64 (1), (2), (3) of ERLA, 2004264.
5.12.1.7 To create and maintain workplace committees
Another important role of trade unions is to create and maintain workplace committees which
facilitate fair labour practices, industrial harmony and better working conditions, for example
Youth and Women Committees which intensify the rights and matters of youth and women at
the workplace also The Occupation, Health and Safety Committees (HOS) which deals with
the health and safety of the workers. All these committees are stipulated in the labour laws
and all employers are obliged to accept them at the work places265.
5.12.1.8 Trade unions promote the implementation of proper employment standards
Trade unions promote the implementation of proper employment standards as per enabling
labour laws such as ERLA in order to facilitate fairness at the workplace. The employment
standards are described in the laws such as working hours, leaves, termination procedures,
salaries, remuneration and others. However, trade unions can use negotiation and collective
bargaining to improve the employment standards266.
5.12.1.9 enhance mutual relationship with employees, employers and labour

stakeholders
Trade union enhance mutual relationship with employees, employers and labour stakeholders
like Trade Union Congress of Tanzania (TUCTA), Association of Tanzania Employers
(ATE), ILO country’s office, Government through the Ministry of Labour and Employment
and other organizations.
264
265
Ibid
266
Ibid
117
Trade unions cannot achieve their desired goals without the support of others organizations
especially the government which regulate laws and other important matters. The mutual
relationship between trade unions and other stakeholders enabling trade unions to perform
their duties in good manner and fulfil their interest on time, this situation also facilitate
industrial harmony in the country267.
5.12.1.9 Trade unions maintain country’s labour movement
Trade unions maintain country’s labour movement as well as supporting the government in
different matters regarding the rights of the workers. For example to participate fully in May
day celebration every year, following and observing government rules as per enabling laws
and National Constitution of 1977. Moreover, trade unions play a great role in controlling and
maintain workers’ councils which also strengthen and improve better working condition to
the workers. Also, as a part of tripartite structure, trade unions also facilitate and develop the
welfare and rights of the workers countrywide268.
5.13 CHALLENGES FACE TRADE UNIONS

5.13.1 Trade unions have low voice and limited freedom to criticize the government.
This is due to fear among the union leaders; some of them are victimized and intimidated by
government, hence, they afraid to take strong decision. This situation creates fear and lack of
confidence to union leaders and it hinders them to fight for the rights of employees. For
example, The report of ITUC Global Rank Index (2014) shown that, Tanzania has been
ranked as number three out of five where labour rights are more violated. TUCTA must be
committed to defend workers’ rights by showing confidence and sacrifice269.
5.13.2 Problem in youth membership whereby young people are reluctant to join the
trade unions
This is because of intimidation and victimization from their employers. Many young people
are scaring to lose their jobs since they are fresher from universities and they don’t have
working experiences, however, they do not have sufficient knowledge on labour laws and
trade unionism therefore, this situation hinder them to join the unions. Moreover, the number
267
268
Ibid
269
Ibid
118
of young people in the trade unions is very small, and the ILFS 2014 reported that, youth
membership in trade unions is still a great challenge which needs improvements270.
5.13.3 Several gaps in the labour laws mainly the Employment and Labour Relations
Act No 6/2004
This does not stipulate the rights of informal workers like domestic workers, street vendors,
motorcycle drivers’ also known as Bodaboda, and others. There are several unions like
TUICO and CHODAWU which recruit members from this sector but their members are not
recognized under laws, thus, it denies their rights in various ways such as lack of participation
in social security funds like PSPF, lack of employment contracts, job insecurities and others.
Also, the majority of informal workers are not aware with this Act due to nature of their
employment and lack of education271.
5.13.4 Disunity among the unions and other labour stakeholders
Lack of unity is caused by several reasons like selfishness, greedy and others, the issue of
financial interest creates hostility among the unions, and this is an obstacle to development of
labour movement in Tanzania, the concept of unity is well described in the papers but it does
not exist practically.
This problem does not only face unions but also other labour stakeholders which generally
affect labour movement in the country and it gives power to employers to undermine
workers’ rights easily. Therefore, TUCTA, trade unions and other labour stake holders must
unite to strengthen their powers so as to facilitate and develop labour matters in Tanzania272.
5.13.5 The structure and system of trade unions is static
In this era of globalization everything is changing and the world is evolving very fast,
therefore, trade unions must be operated in the modern ways in order to facilitate labour
movements, such as use of technology like internet and new Medias, employing skilled staffs,
improving their facilities also modifying its structure and system.
270
271
Ibid
272
Ibid
119
Meanwhile, employers are well organized and they use technology and funds to run their
services like hiring qualified staffs, effective use of technology, quickly adapting changes and
applying better techniques to satisfy their needs and interest. Likewise, poor union system
also led to weak unions which cannot fulfil the demands of their members due to various
problems like insufficient funds, corruption, poor leadership system, lack of clear vision and
mission and others273.
273
120
CHAPTER SIX:
ORGANISATIONAL RIGHTS
6.0 Organization rights defined
Organisational rights refer to the rights of a registered trade union to: Recruit members; to
communicate with members; Meet members in dealing with the employer; Hold meetings of
employees on the premises; Vote in any ballot under the union constitution274.
These rights are provided for under Section 60 of the ELRA. It also refers to the rights of a
trade union to establish a field branch in a workplace containing ten or more members, and
rights to get leave for trade union activities275.
However under Section 60 (4) of the ELRA, the exercise of organisational right are subject
to any conditions as to time and place that are reasonable and necessary to safeguard life or
property or to prevent undue disruption of work.
6.1 Deduction of trade union dues
Employer may deduct union dues from the wages of the members only after their written
consent. This is expressed under Section 61 (1) of the ELRA which provide that “An
employer shall deduct dues of a registered trade union from an employee’s wages if that
employee has authorized the employer to do so in the prescribed form”.
After such deduction the employer under Section 61 (2) of the ELRA is required to remit the
deductions to the trade union within seven days after the end of the month in which the
deductions are made.
Under Section 61 (6) of the ELRA with each monthly remittance, the employer shall give a
registered trade union- (a) a list in the prescribed form276 of the names of the members in
respect of whom deductions are required to be made; (b) a copy of any notice of revocation
under subsection (3).
274
275
276
TUF no. 16 contained in GN no 47 of 2017
121
The consequence for failure to remit the deduction within the stipulated time by an employer
and where the employer assigns no reasonable ground is provided for under Section 61 (3) of
the ELRA. According to this provision the employer shall be liable to pay the union the
equivalent of five per cent of the total amount due for each day the dues remain un-remitted.
Another consequence is stated under Section 61 (4) of the ELRA. Under this provision an
employee may revoke an authorisation by giving one month's written notice to the employer
and the trade union and where an employee revokes an authorization the employer shall cease
to make any deductions after the expiry of the notice, this is in accordance to Section 61 (5)
of the ELRA.
6.2 Trade union representation
As per Section 62 (1) (a)-(d) of the ELRA, a registered trade union shall be entitled to; One
trade union representative for one to nine members; Three representatives for ten to twenty
members; Ten representatives for twenty one to one hundred members; Fifteen
representatives in workplaces with more than one hundred members.
The election, terms of office and removal from office of the above trade union representative
according to Section 62 (3) of the ELRA shall be governed by the constitution of a registered
trade union.
The trade union representative are entrusted with a number of function to perform under
Section 62 (4) (a)-(h) of the ELRA and these functions includes (a) to represent members in
grievance and disciplinary hearings; (b) to make representations on behalf of members in
respect of rules; health and safety and welfare; (c) to consult on productivity in the
workplace; (d) to represent the trade union in enquiries and investigations conducted by
inspectors in terms of any labour laws; (e) to monitor employer compliance with labour laws;
(f) to perform trade union functions under the union's constitution; (g) to further good
relations; and (h) to perform any function or role agreed to by the employer.
6.3 Leave for trade union activities
The employer is required by Section 63 (1) of the ELRA, to grant a reasonable paid leave to
the followings (a) trade union representatives referred to in section 62 to attend training
courses relevant to their functions; (b) office bearers of- (i) a registered trade union, to
122
perform the functions of their officer; (ii) a registered federation, to which the representative
union belongs, to perform the functions of their office.
6.4 Procedure for exercising organisational rights
Organisational rights are subject to any reasonable conditions to ensure the orderly exercise
of the rights and that work is not unduly interrupted. Section 64 (1) of ELRA, requires a
trade union intending to exercise any of the organisational rights to notify an employer in the
prescribed form 277 that it seeks to exercise such rights. Failure to do so may entitle the
employer to refuse such a request.
Upon reception of the said notice, what follows in terms of Section 64 (2) of the ELRA, is
the employer to meet with the trade union to conclude a collective agreement granting the
right and regulating the manner in which the right is to be exercised. In the event where the
employer refuse to meet with the unions within 30 days from the time they received the
notification or unreasonably refuses to grant such rights, the union may refer the dispute to
the Commission for Mediation and Arbitration (CMA) as it is provided under Section 64 (3)
of the ELRA.
If the CMA fails to resolve the dispute a trade union under Section 64 (4) of the ELRA may
refer the matter to the Labour court which shall make appropriate order278.
6.5 Termination of organisational rights
As per Section 65 of the ELRA, where is a breach of the terms and conditions for exercise of
organisational rights, the employer may refer the issue to the Commission for Mediation and
Arbitration (CMA) and In case the commission fail he may further refer the matter to Labour
Court to-(i) terminate any of the organisational rights granted to the trade union under a
collective agreement; or (ii) withdraw an order made under section 64.
In entertaining the matter the Labour court may make any appropriate order including-(a)
requiring the union to take measures to ensure compliance with the conditions for the exercise
of a right; (b) suspending the exercise of a right for a period of time; (c) terminating the
organisational rights contained in a collective agreement or order made under section 64279.
277
TUF no.14 contained in GN no. 47
278
See also Section 64 (5) of the ELRA
279
Section 65 (2) (a)-(c) of the ELRA
123
CHAPTER SEVEN:
COLLECTIVE BARGAINING
7.0 Introduction
Closely linked to freedom of association is the issue of collective bargaining. Collective

bargaining is a fundamental right that is rooted in the ILO Constitution and reaffirmed as
such in the 1998 ILO Declaration on Fundamental Principles and Rights at Work.
7.1 Collective bargaining defined
Collective bargaining is defined as a process or method of setting wages and terms of

employment by voluntary negotiation between trade unions representing employees, and
employers or employer’s organisations. The process is described as collective because
workers are involved in it as a group and are represented by individuals chosen for that
purpose280.
The process is called “collective” because both the employer and employees act as a group
rather than individuals and it is “bargaining” because it involves give and take and ordinarily
the making of a contract.
The aim of collective bargaining is to facilitate the improvement upon minimum terms and
conditions of employment where the employer can reasonably be expected to be in a position
to make such improvement281.
ILO Convention No. 154 under Article 2 defines collective bargaining as referring to: “all
negotiations which take place between an employer, a group of employers or one or more
employers' organisations, on the one hand, and one or more workers' organisations, on the
other, for: (a) determining working conditions and terms of employment; and/or (b)
regulating relations between employers and workers; and/or (c) regulating relations between
employers or their organisations and a workers' organisation or workers' organisations.”
280
Justice and Constitutional Affairs: Dar es salaam at p. 41
281
Ibid at p. 41
124
7.2 Objectives of collective bargaining
Collective bargaining is a key means through which employers and their organizations and
trade unions can establish fair wages and working conditions, and ensure equal opportunities
between women and men. It also provides the basis for sound labour relations. Typical issues
on the bargaining agenda include wages, working time, training, occupational health and
safety and equal treatment.
The objective of these negotiations is to arrive at a collective agreement that regulates terms
and conditions of employment. Collective agreements may also address the rights and
responsibilities of the parties thus ensuring harmonious and productive industries and
workplaces. Enhancing the inclusiveness of collective bargaining and collective agreements
is a key means for reducing inequality and extending labour protection.
Collective Bargaining Agreements are written agreements concluded by a registered trade

union and an employer or registered employers’ association on any labour matter. This
therefore means an employer cannot conclude a Collective Bargaining Agreement with a
group of employees or an individual employee.
7.3 The law on collective bargaining
The Collective Bargaining Agreement serves the purposes of improving employment and
labour matters set under the law and the employment contract. The law provides minimum
standards but these can be improved through a CBA.
The ratification of both ILO Convention 87 (Freedom of Association and Protection of

the Right to Organize Convention, 1948) and Convention 98 (Right to Organise and
Collective Bargaining Convention, 1949), on 18 April 2000 and 31 January 1962 to a
great extent led to the inclusion of the whole of Part VI on Collective Bargaining
Agreements into our Employment and Labour Relations Act, 2004 and Employment
and Labour Relations (Code of Good Practice) Rules, 2007.
As received from English Labour laws, collective bargaining was voluntary; Employees
wishing to engage in collective Bargaining by an unwilling employer had to compel him/her
through industrial action. From 1947 collective bargaining became compulsory in Tanzania
and the tradition has continued so in Employment and Labour Relations Act, No 6 2004.
125
7.4 Scope of collective bargaining
The law on collective bargaining ventures on five key areas, namely (i) The parties who have
the right to engage in collective bargaining; (ii) The requirements for Trade Union
recognition; (iii) The duty that the parties have to bargain in good faith; (iv) Their access to
information; and (v) The binding nature of their collective agreement.
NB: Collective bargaining under new legislation is made compulsory tradition of the
Tanzania industrial relations. However, the law creates a room under Section 67 (10) of the
ELRA, for registered trade unions, employers' associations establish their own collective
arrangements for collective agreement notwithstanding the provisions of the Act to be
discussed hereunder;
7.5 The Right to Engage in Collective Bargaining:
Generally, the right to engage in collective bargaining is enjoyed, on the one hand, by
employers and their organizations and, on the other, by organizations of workers (first level
trade unions, federations and confederations). Only in the absence of these organizations may
elected representatives of the workers concerned conclude collective agreements282.
In Tanzania the right to engage in collective bargaining is extended to all employees except
those expressly excluded by Law. Under the Employment and Labour Relations Act, 2004,
public servants are allowed the same right to collective bargaining as employees in the private
sector except members of armed forces as it is provided under Section 2 (1) of the Act.
Essentially the Act employs three main terminologies to capture the whole lot of collective
bargain in Tanzania and these terms are as follows;
7.6 Bargain unit

A bargaining unit which is defined under Section 66 (a) (i) and (ii) of the ELRA to mean
any unity of employees in respect of which a registered trade union is recognized or is
entitled to be recognised as the exclusive bargaining agent, including a unit of employees
employed by more than one employer.
In the case of Tanzania Union of Industrial and Commercial Worker (Tuico) v. Tanzania
Tobacco Processors Limited (TTPL)283 judge R.M.Rweyemamu ruled that In practice, but
282
Rutinwa, B : TUCTA, Training Manual on Labour law: Collective Labour law, Faculty of Law, UDSM
283
Labour dispute no 4 of 2009 (unreported)
126
especially judging from the parties bargaining history(as verifiable from the respondent’s
letter to TPAWU referred to above), the term bargaining unit refers in this case to employees
in the permanent employment category and the term majority of the employees refers to a
number held by each union in the premises among the permanent employees.
7.7 Recognised trade union
According to Section 66 (b) of the ELRA, Recognised trade union means a trade union
recognised by collective bargain agreement or in respect of an order made by the labour
court. According to the labour regime in Tanzania a trade union that is required to represent
employees in collective bargain should represent the majority that is trade union that
represent the majority of the employees employed by the employer who belong the certain
trade union, the said trade union will represent all the employees in the bargain unity.
7.8 Registered trade union
As per Section 66 (c) of the ELRA, “registered trade union'' includes two or more registered
trade unions acting jointly.
7.9 THE BARGAINING PROCESS

7.9.1 Recognition of parties:
Union recognition is regarded as the first procedural step for collective bargaining to take
place, which is, for parties to recognize each other for that purpose. Under Section 67 (1) of
the ELRA provides that “ A registered trade union that represents the majority of the
employees in an appropriate bargaining unit shall be entitled to be recognized as the exclusive
bargaining agent of the employees in that unit.” This is also well supported in the ILO
workers representatives’ convention No.135 (1971) under Article 3(b).
Equally, Rule 50 (1) of Employment and Labour Relations (Code of Good Practice)
Rules, 2007 requires all employer or employer's association to recognise a trade union as a
collective bargaining agent of its employees.
Further under Rule 50 (2) of Employment and Labour Relations (Code of Good Practice)
Rules, 2007, a recognised trade union engages with the employer or employers' association
with the following objectives to-(a) represent employees in their dealings with their
employer; (b) negotiate and conclude collective agreements; and (c) prevent and resolve
labour disputes.
127
However, recognition is not automatic; the registered trade union is required by Section 67
(3) of the ELRA and Rule 51 (1) of Employment and Labour Relations (Code of Good
Practice) Rules, 2007 to notify the employer in the prescribed Form, attaching proof of its
representivity and other documents.
What should be embodied in the application is unequivocally stated under Rule 51 (2) of
Employment and Labour Relations (Code of Good Practice) Rules, 2007. Thus in the
application, a registered trade union shall-(a) describe the proposed bargaining unit, taking
into account the factors referred to in sub-rule 5: and (b) provide documentary proof that it is
representative, and may attach an authorizations to deduct trade union dues signed b
employees in the bargaining unit, other documentary proof of membership or by a petition
signed by employees.
Under Section 67 (2) of the ELRA, for trade union to be recognized as an exclusive
bargaining agent has to meet two important qualifications; (i) union is registered and (ii)
represents a majority in the appropriate bargaining unit. Failure to meet the two
qualifications an employer may decline to recognize a trade union as an exclusive bargaining
agent of any trade union.
It is the employer’s duty under Section 67 (4) of the Employment and Labour Relations
Act, No 6 of 2004 to meet with the Union and conclude a collective agreement recognizing
the complainant.
In the same vein, Under Regulation 51 (3) of the Employment and Labour Relations
(Code of Good Practice) Rules, G.N. No. 42 of 2007, the employer shall meet with the trade
union to discuss the application within 30 days and, if possible, conclude a collective
agreement recognising the trade union as specific in a model recognition agreement as a
guide for the parties to discuss, set out in the schedule to Rules.
It should be noted that the said right is not absolute and thus under certain permitted grounds
the employer may refuse to recognize the registered union. These grounds are provided for
under Rule 51 (5) of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007, where the employer may refuse to recognise the union on the
following grounds-(a) the union does not represent a majority of the employees in the
bargaining unit; (b) the employer and the union cannot agree on the appropriate bargaining
unit; (c) the Labour Court has authorised the withdrawal of recognition in terms of Section 69
128
of the Act and the period contemplated in the order has not expired; or the employees that the
union seeks to represent are members of senior management284.
Under this provision it gave employers the two side’s decision power: if it is recognition, the
bargaining agent may lose its majority members due to what always management
strategically exert the use of “a yellow-dog contract”-an agreement stating that they
(employees) would neither join a union or assist in organizing a union and thereby
management can use the other side of its authority under the law to derecognize the
bargaining agent since its doesn’t represent the majority of bargaining unit285.
7.9.2 Withdrawal of recognition
In the event where the recognised trade union no longer represents majority of employees in
bargain unit, an employer is supposed to give a three months’ notice to the trade union to
acquire majority failure of which an employer is free to withdraw his recognition286.
Section 69 (2) of the ELRA, provides that where a recognised union has ceased to represent
the majority in the bargaining unit, any other trade union may request for new elections in
order to demonstrate that the union has become the most representative; Provided that, no
application for the withdrawal of recognition of a union can be made within six months of the
union being recognised as the exclusive collective bargaining agent.
The entire dispute regarding the representativeness’ of the trade union falls within the
exclusive province of the Labour court. Thus Under Section 69 (3) of the ELRA, If a party
to a collective agreement prescribed in section 67(10), or a party subject to a recognition
order, materially breaches the agreement or order, the other party may apply to Labour Court
to have recognition withdrawn by -(a) terminating the recognition agreement; (b) rescinding
the recognition order.
The labour court under Section 69 (4) of the ELRA may decide the dispute by arraign any
appropriate person to conduct a ballot of the affected employees. Further the Labour court
under Section 69 (5) of the ELRA may make any appropriate order including-(a) giving the
284
As per Rule 51 (6) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of
2007, the term "Senior Management" means an employee who, by virtue of that employee's position makes
policy on behalf of the employer and is authorised to conclude collective agreement on behalf of the employer.
285
Flanders, A.D (1971): Collective Bargaining, The Chaucer Press, Bungay
286
129
trade union an opportunity to become representative; (b) altering the bargaining unit; (c)
suspending recognition for a period of time; (d) withdrawing recognition.
7.9.3 Recourse against employer refusal to a CBA
Section 67 (4) of the ELRA, requires that after reception of notice within 30 days employer
is required to meet to conclude a collective agreement recognising a trade union. However
under Section 67 (5) of the ELRA read together with Rule 51 (4) of the Employment and
Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, when there is no
agreement or the employer fails to meet with the trade union within the provided thirty days,
the union may refer the dispute to the Commission for Mediation and Arbitration.
If mediation fails according to Section 67 (6) of the ELRA, any of the party may refer the
dispute to the Labour Court for a decision. Also under Rule 51 (7) of the Employment and
Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 provides that where
the dispute remains unresolved after 30 days of the referral, the union may refer the dispute to
the Labour Court for its decision in terms of Section 67 of the Act.
As per Section 67 (7) of the ELRA read together with Rule 51 (8) of the Employment
and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, Where dispute
concerns the representativeness of the union, the Court may direct the Commission to conduct
a ballot, the Court has the power to make a recognition order compelling an employer to
recognise a representative and registered trade union within a determined bargaining unit.
As per Section 67 (8) of the ELRA and Rule 52 (4) of the Employment and Labour
Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, the facts identified to
assists unions, employers, mediators, arbitrators and the courts in determining an appropriate
bargaining unit are the following- (a) the wishes of the part; (b) the bargaining history of the
party; (c) the size and significant of membership of union organisation in certain categories of
employees; (d) the employees shares similar terms of employment or similar conditions of
work, that points to a single bargaining unit; (e) the employer has separate workplaces and the
terms and conditions are left to the discretion of the managers of those workplaces, which
points to separate bargaining units. If however the decisions are made at head office, that
points to a single unit; (f) the employer’s operations effectively divided into separate business
(pointing to a single unit); and (g) An employer has several separate places of work close
130
together that points to a single unit. But if the places of work are far away from each other or
in different towns, that points to separate bargaining units.
It seems discretion given to Court is aimed at giving the Court an opportunity to assess the
nature of dispute having regard to the infancy of bargaining capacity of trade unions in
Tanzania, owing to the fact that collective bargaining is not common to the private sector
which is currently growing substantially Tanzania287.
7.9.4 Bargaining Topics
Section 68 of the ELRA provides that “any labour matter” can be brought up for negotiation,
while Section 4 of the Act defines a labour matter as “any matter relating to employment or
labour relations”.
Rule 55 of the Employment and Labour Relations (Code of Good Practice) Rules, G.N.
No. 42 of 2007, spells out bargaining matters to include: Wages; Terms and conditions of
employment and allowances; Matters related to policy and practices such as: Recruitment,
appointment, transfer and suspension; Health issues/benefits; Training, discipline, and
termination of employment; Matters related to relationships such as: Organisational rights,
negotiation and dispute procedures; Grievance procedures and any other matter agreed by
parties.
Terms and conditions of service which are negotiated are over and above the terms and
conditions of employment in individual employment contracts. Some of the matters listed
above may also be in policy documents such as staff manuals and collective bargaining
attempts to improve on them.
7.9.5 Bargaining Levels
By virtue of Rule 49 (7) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, Collective bargaining may take place at one work
place, may involve one employer, a number of employers or an employer’s association;
Implies that it may take place at any level as agreed by the parties in the collective
bargaining.
287
Kamala, P (2006). Industrial Relation Law in Tanzania: Past Experience and Prospects under New Labor
Legislation: A thesis submitted at University of Cape Town: South Africa
131
7.9.6 The duty and obligation to disclose and bargain in good faith
Owing to necessity to bargaining faithfully, the law imposes a duty to employers to bargain in
good faith with recognised trade union. Collective bargaining can only function effectively if
conducted in good faith. Section 68 (1) ELRA provides that: “An employer or employer’s
Association shall bargain in good faith with a registered Trade Union”.
Similarly, under Section 68 (2) of the ELRA, a recognized Trade Union shall bargain in
good faith, with employer or employer’s association.
The principle of good faith requires that: Conducting genuine and constructive negotiations;
avoiding unjustified delays; Making an effort to reach agreement; Complying with concluded
agreements; and applying them in good faith288.
G.N. No. 42 of 2007, describes bargaining in good faith as implying: Requiring the parties to
explore issues with open mind and with the intention of reaching agreement; Sub rule 54 (2)
(a)-(f) describes it as respecting the representatives of the parties, thorough preparations,
consistent representation, attending meetings timeously, considering proposals made by each
party and giving reasons if not accepted.
Despite the fact that parties are not compelled to reach an agreement but certain conducts can
be inferred as conducts amounting to bad faith bargaining. Thus by virtue of Rule 54 (3)
(a)-(h) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N.
No. 42 of 2007, bargaining in bad faith may be inferred from the conduct- (a) making grossly
unreasonable demands (b) refusing without good reason, to make concessions;(c) refusing to
disclose relevant information that is reasonably required for collective bargaining; (d) being
insulting, derogatory or abusive in negotiations;(e) delaying negotiations unnecessarily; (f)
imposing unreasonable conditions for negotiations to proceed; (g) by-passing the
representatives of the parties in the collective bargaining process; (h) engaging in unilateral
action such as the unilateral alternation of terms and conditions or industrial action before
negotiations have been exhausted.
The rules notably under Rule 54 (5), (6), (7) and (8) of the Employment and Labour
Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, also provide for a party to
288
Rutinwa, B : TUCTA, Training Manual on Labour law: Collective Labour law, Faculty of Law, UDSM
132
declare deadlock if the bargaining process has no genuine desire to reach agreement
(bargaining in bad faith). If that party didn’t do so, may not implement its disposal or engage
in industrial actions (strikes or lockout) but to refer the dispute to the Commission for
mediation.
G.N. No. 42 of 2007, is to the effect that where a party bargains in bad faith, the other party
need not continue negotiations and its duty to bargain in good faith is met.
7.9.7 Disclosure of Information;
No effective bargaining without sufficient and correct information. ELRA imposes on union
employers the obligation to disclose relevant information to the trade union and the purpose
of such disclosure as per Rule 56 (3) of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007, is to make the negotiation or consultation
process as rational as possible, to ensure good faith during bargaining and to develop trust
between the bargaining parties.
Section 70 (1) of the ELRA requires an employer who has recognized a trade union to allow
the union to engage effectively in collective bargaining. The general rule stated under Rule
56 (4) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N.
No. 42 of 2007 is that the employer is obliged only to disclose information that is relevant.
Information is generally relevant if it is likely to influence a party's views on a matter being
discussed.
G.N. No. 42 of 2007, describes relevant information as “reasonably required information to
allow the union to represent its members in consultations and collective bargaining with the
employer or employers' association.”
Further, Rule 56 (5) of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007, describes relevant information as “issues related to
remuneration, benefits, condition of service, performance and labour force issues.
However Section 70 (2) of the ELRA and Rule 56 (2) of the Employment and Labour
Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, exempts employers from
the obligation to disclose information that: (a) is legally privileged; (b) the employer cannot
133
disclose without contravening a prohibition imposed on the employer by any law or court; (c)
is confidential and, if disclosed, may cause substantial harm to the employee or the employer;
and (d) is an employee's private personal information, unless the employee consents to the
disclosure of that information.
Also under Rule 56 (8) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, the employer may not disclose private personal
information found in an employee's employment file unless the employee consents or an
arbitrator or court requires it to do so.
According to Rule 56 (6) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, a Confidential information is information that the
employer regards as confidential in order to protect its interests or the interests of those
associated with its business such as its employees, customers, suppliers and investor.
Under Rule 56 (6) of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007, Information shall be confidential if when disclosed may cause
substantial harm to an employee or employer such as-(a) the employer losing customers to
competitors; (b) suppliers refusing to supply necessary material or services; (c) banks
refusing to grant loans; or (d) the employer not being able to raise funds to finance the
business.
In relation to the information obtained in collective bargain trade union has obligation of
confidentiality towards the employer. The duty to disclose information imposed by the Act
extends to the general public other than it members and advisors.
Thus Section 70 (3) of the ELRA requires that a trade union that receives confidential or
private personal information (a) shall not disclose the information to any person other than its
members and advisors;(b) shall take reasonable measures to ensure that the information
disclosed is kept confidential.
All disputes regarding disclosure of information according to Section 70 (4) and (5) of the
ELRA shall be referred to the commission for mediation and in case mediation fails any
party may further refer the dispute to the labour court.
Section 70 (6) of the ELRA, vest numerous power to the labour court wide powers when a
dispute is referred to it. Thus in making any decision the may do the followings (a) hold the
134
proceedings in camera; (b) take into account any previous breaches of confidentiality by the
trade union or its members; (c) order an employer to disclose any confidential information if,
on balance, the effect of the non-disclosure may seriously impede the union's ability (i) to
bargain effectively; (ii) to represent employees effectively; (d) order the disclosure of
information on terms designed to limit any harm that may be caused by disclosure.
7.10 COLLECTIVE AGREEMENTS
Section 4 of the ELRA defines a collective agreement as “written agreement concluded by

a registered trade union and an employer or a employer’s association on any labour matter”.
Under the Industrial Court Act 1967, a Collective Agreement became once registered, an
award of the industrial court and was binding on the parties.
7.10.1 Binding nature of collective Agreements
An agreement reached as an outcome of collective bargaining, is binding on parties to the

agreement. Collective bargaining imposes obligations on the parties to adhere to the terms of
an agreement.
As per Section 71 (1) and (2) of the EELRA, a collective agreement is supposed be in
writing, signed by the parties and its binding on the last signature unless the agreement
provides otherwise. Essentially this is progressive measure unlike in the old labour regime
which required the agreement to be compulsorily registered by the Labour court. The only
requirement under Section 71 (7) of the ELRA is to lodge a copy of agreement with the
labour commissioner.
Under Section 71 (3) of the ELRA, a collective agreement is legally binding on: (a) the
parties to the agreement; (b) any member of the parties to the agreement; and (c) any
employees who are not members of a trade union party to the agreement; if the trade union is
recognized as the exclusive bargaining agent of those employees. A collective bargaining
agreement also remains legally binding on employers or employees who were party to the
agreement at the time of its signature, and who later resigned from the trade union or
employer organization party to the agreement.
It should be noted that collective agreement continue to be binding on employers or

employees who were party to the agreement at the time of its commencement and includes
135
resigned members from that trade union or employer association, as provided under Section
71 (4) of the ELRA.
Similarly, under Section 71 (5) of the ELRA, a collective agreement is legally binding on
employers or employees who become members of the parties to the agreement after its
conclusion. A collective agreement may be terminated on reasonable notice by any party to
the agreement unless the agreement provides otherwise289.
7.11 AGENCY SHOP AND CLOSED SHOP AGREEMENTS

7.11.1 Introduction
Apart from raising its funds through a voluntary agreement by employees to authorize an
employer to deduct fees from his or her salary; a trade union may also raise its fund through
union security arrangement (agency shop).
Before going further it is imperative to note that Tanzania only recognize agency shop and
thus frankly speaking closed shop agreement are not part of our law though it is recognized in
other jurisdictions like in South Africa where our labour laws borrowed heavily but closed
shop agreement in that country is recognized with some restrictions.
7.11.2 Agency shop and closed shop distinguished
Closed shop is an agreement in terms of which all employees to whom such an agreement is
extended are required to be members of union." However, employees to whom closed shop
agreements extend are not precluded from joining or remaining members of another union, if
that union permits dual membership290.
On the other hand, Section 72 (9) of ELRA defines an “agency shop” as a security
arrangement 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.
This requirement is for getting the employees in the bargaining unit (though they are not
members of the trade union) to contribute because they always benefit from what the trade
union does for the bargaining unit.
289
290
Kamala, P (2006). Industrial Relation Law in Tanzania: Past Experience and Prospects under New Labour
136
The amount to be paid will be negotiated between recognised trade union and employer, but it
shall not be more than the fees that official members of the trade union pay. This money is
mainly used for advancing or defending the socio-economic interest of the employees in that
workplace.
G.N. No. 42 of 2007 provides that as a consequence of a duty of fair representation imposed
on a recognised trade union, the union and the employer may agree to implement an agency
shop agreement within a recognised unit, in terms of which employees within that unit who
are non-union members may be obliged to pay an agency fee to the trade union of not more
than the amount of the union subscription.
Generally, the purpose of the union security arrangements is to promote orderly collective
bargaining by strengthening the position of trade unions, stabilizing union membership and
avoiding destructive inter-union rivalry291.
7.11.3 Agency shop and closed shop in the laws of Tanzania
As stated above the labour laws of Tanzania expressly prohibits closed shop agreement
and such prohibition is found under Section 72 (1) of the ELRA which states that “an
agreement to compel an employee to become members of trade union is not enforceable”.
That means the mode or type of collective agreement allowed in Tanzania is or that has legal
force is only Agency shop agreement this is reflected in Section 72 (2) of the ELRA which
state that “a recognised trade union and employer my conclude a collective agreement
providing for agency shop agreement”.
Thus from the wording of this provision, In order for the agency shop to have effect, the
recognized trade union and employer must conclude an agreement.
The Task Force on Labour Law Review was of the view that permission of the closed shop
could be contrary to Article 20 (4) of the Constitution which guarantee the right to freedom
of association it therefore, recommended permission of agency shop only292.
291
Ibid at p. 38
292
137
7.11.4 The requirements for binding agency shop agreements
By virtue of Section 72 (3) (a)-(e) and (4) of the ELA, even if a trade union concludes an
agency shop agreement with an employer, that agreement binds only employees in that
particular bargaining unit only. It does not extend to other bargaining units even if they
belong to the same employer especially in multi-corporation enterprises.
However, where an agency shop agreement concluded is supported by majority members of a

bargaining unit and it complies with the provisions of the Act, then notwithstanding the
provisions of any law or contract, an employer may deduct an agency fee under an agency
shop agreement from an employee's wages without consent of that employee.
G.N. No. 42 of 2007, in order for an agency shop agreement to be binding it has to comply
with the following requirements that-(a) the agency fees collected from non-union members
shall be paid into a separate account administered by the union; (b) the monies in that account
may only be used to advance and protect the socio-economic interests of the employees in
that workplace; (c) the socio-economic interests of workers including labour matters affecting
employment or labour relations, worker education, scholarships, contributions to political
parties or any person standing for public office is prohibited.
There is a contradictory provision regarding the concept of agency shops. For example,
whereas Section 67 (3) (b) of the ELRA provides that employees who are not members of
the trade union are not compelled to become members of the agency shop agreement, a
definition of the concept “agency shop” under the Act indicates otherwise. The definition
states that: “agency shop “means a union security arrangement in terms of which employees
in a bargaining unit, that are not members of the recognised trade union, are required to pay
an agency fee to the trade union”.
The implication of the definition is that once an agency shop agreement has been concluded,
employees in that bargaining unit ipso facto become members of that agreement and an
employer is mandated to deduct fees from their salaries, notwithstanding that those members
are not compelled to be members of the trade union. It is therefore submitted that Section
67(3) (b) should be deleted because it conflicts with definition of the agency shop293.
293
138
An agency shop agreement may be suspended when (i) a trade union is no longer a
representative of the bargaining unit. (ii) It may also be terminated once recognition of its
representation is withdrawn; this is according to Section 72 (7) (a) and (b) of the ELRA.
Similarly under Rule 58 (3) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, An agency shop agreement shall be suspended if the
trade union is not a representative and its recognition is withdrawn in terms of Section 69 of
the Act, the agency shop is automatically terminated.
This may happen when the trade union ceases to represent majority employees in the
bargaining unit, or where a number of its member’s falls short of the minimum requirement
and the trade union fails to acquire majority at the expiry of three months.
The fees collected are carefully protected under Section 72 (3) (d) and (e) of the ELRA from
being misused by trade union for unauthorized purpose. The amount deducted from both
members and non- members is required to be paid into a separate account administered by the
trade union "
Unlike the former system where the monies of contribution from members’ fees were used to
support the ruling party, Chama Cha Mapinduzi, the new legislation prohibits use of fees to
pay an affiliation fee to a political party or to make contributions to a political party.
In order to regulate proper use of fees, a trade union which concluded an agency shop
agreement required under Section 73 (5) (a)-(c) of the ELRA to appoint a registered auditor
to audit the account prescribed annually. Where an auditor makes a report of the account,
such report must be submitted to the Labour Commissioner and to the Registrar within thirty
days of the date when the report was submitted by the auditor and the report shall be
accompanied with an opinion on whether the provision of the Act have been complied there
with294.
The Act further under Section 73 (5) (c) of the ELRA encourages transparency in the
management of the fees and therefore permits any in the management of the fees and therefore
permits any interested person to inspect the report at the union's offices during office hours.
NOTE: Section 72 (4) was amended under Section 8 of the Employment and Labour
Laws (Miscellaneous Amendments) Act, 2015 by- (a) deleting the full stop appearing at the
294
139
end of subsection (4) and substituting for it with a “full colon”; (b) adding immediately after
subsection (4) the following proviso: “Provided that such deduction complies with the terms
and conditions prescribed in the regulations.”
7.11.5 Disputes concerning collective agreements
As per Section 74 (a) and (b) of the ELRA, a dispute concerning the application,
interpretation or implementation of a Collective Bargaining Agreement shall be referred to
the Commission for Mediation and Arbitration. If the mediation fails, any party may refer the
dispute to the Labour Court for a decision.
7.12 WORKERS PARTICIPATION
Workers’ participation is the term that signifies the involvement of the workers in the
production system in the industrial area or any other workplace of the employment. It
involves workers’ participation in decision-making, consultation and any other undertakings
at the workplace Workers’ participation may take different forms that may be direct or
indirect295.
Under the new legislation there is only one provision which is specifically dealing with
workers’ participation. This is Section 73 and it is quoted for ease of reference.
“73 (1) A Recognised trade union and an employer or employer’s association may conclude a
collective agreement establishing a forum for workers in the workplace. (2) If a registered
trade union, employer or employer’s associational wishes to establish a forum for workers
participation in any workplace, the union, and employer of association may request the
assistance of the Commission to facilitate the discussion between the union, employer or
association. (3) The Commission shall facilitate any discussion concerning the establishment
of a forum for workers participation in any workplace taking into account any code of good
conduct practice published by the council on workers participation.
This is the only provision in the new Act, which deals with workers participation. Even the
Task Force report did not deal with this aspect, although it is mentioned in the highlight of the
295
Legislation: A thesis submitted at University of Cape Town: South Africa at p. 63
140
report to be one of the aspects which was under its consideration. It is not well established
whether such omission was deliberate or an oversight296.
Furthermore, the Act does not provide the purposes and functions for workplace forums. It is
also silent about the threshold number of employees to establish the workplace forum. The
Act does not provide the matters which the forums and employers should discuss together for
purpose of maintaining industrial relationship. There is no demarcation of the power of the
trade unions and the forums. All of these matters need answers for proper functioning and
operation of the forums.
It is submitted that urgent review of this provision should be undertaken so as to remove

confusion about how the workplace forums will be established and undertaking their
functions297.
NOTE: Section 9 of the Employment and Labour Laws (Miscellaneous Amendments)

Act, 2015 amended Section 73, by deleting the word “Commission” and substituting for it
the words “Labour Commissioner” wherever it appear in that section.
7.13 COLLECTIVE BARGAINING IN PUBLIC SECTOR
Moreover in Tanzania collective bargain in public sector is governed by Public Service

(Negotiating Machinery) Act,298 According to the long title of the Act299 the Act is geared
make better provisions for the participation of public servants in negotiating and rendering
advice to the government and settling, disputes in the public service.
In deed the act establish different procedure of negotiation and dispute settlement in public
service different from that in the employment and labour relations Act and labour institutions
Act.
Section 4 of the Act300 establish different service staff for each service scheme to facilitate
negotiation and participatory consultation in each service scheme, as (a) The Civil Service
Joint Staff Council; (b) The Teachers Service Joint Staff Council (c) The Local Government
Joint Staff Council (d) Health Service Joint Staff Council (e) Fire and Rescue Services and
Immigration Service Joint Staff Council.
296
Legislation: A thesis submitted at University of Cape Town: South Africa.
297
Ibid at pp. 63-64
298
Act no 19 of 2003
299
The Public Service (Negotiating Machinery) Act, Act no 19 of 2003
300
The Public Service (Negotiating Machinery) Act, Act no 19 of 2003
141
Each The Service Joint Staff Councils a negotiation body with respect of terms and condition
of public services in particular scheme, which has the following functions as provided in
Section 6 of the Act.
(a) To advise the Government on matters relating to the welfare of public servants to which
that Service Joint Council belong; (b) To discuss and make recommendations to the
Government on any matter concerning interest, well-being and efficiency on part of public
servants; (c) To discuss and advice the Government on any matter on which the Government
has requested for advice; (c) To negotiate on matters relating to the terms and conditions of
service with respect to the public servants generally or to the Service Scheme to which that
Service Joint Council belong and (d) To discuss any matter, this may be referred to it by the
Public Service Joint Staff Council.
Section 5 of the Act deals with the composition of service joint staff councils provided in
Section 4(3) which include chairman, vice chairman, four public servant (nominated by the
respective trade union and secretary), four government officials (each from, the minister of
finance, minister responsible for labour relation, minister responsible for particular scheme
and last from the ministry responsible for public service.
Apart from chairman and vice chairman all other member in The Service Joint Staff Council
should the ones who can make binding decision to the part they represent to the issue in
negotiation as provided in Section 4 (4) of the Act.
7.14 IMPORTANCE OF COLLECTIVE BARGAINING

7.14.1 Collective bargaining develops better understanding between the employer and
the employees:
It provides a platform to the management and the employees to be at par on negotiation table.
As such, while the management gains a better and deep insight into the problems and the
aspirations of die employees, on the one hand, die employees do also become better informed
about the organizational problems and limitations, on the other. This, in turn, develops better
understanding between the two parties.
7.14.2 It promotes industrial democracy:
Both the employer and the employees who best know their problems, participate in the
negotiation process. Such participation breeds the democratic process in the organisation.
142
7.14.3 It benefits the both-employer and employees:
The negotiation arrived at is acceptable to both parties the employer and the employees.
7.14.4 It is adjustable to the changing conditions:
A dynamic environment leads to changes in employment conditions. This requires changes in

organisational processes to match with the changed conditions. Among other alternatives
available, collective bargaining is found as a better approach to bring changes more amicably.
7.14.5 It facilitates the speedy implementation of decisions arrived at collective

negotiation:
The direct participation of both parties the employer and the employees in collective decision
making process provides an in built mechanism for speedy implementation of decisions
arrived at collective bargaining.
143
CHAPTER EIGHT:
STRIKES AND LOCKOUTS
8.0 Introduction
Calling a strike is the right of every employee, but on occasion the courts have declared some
strikes illegal, despite the same being permitted by labour law. This is mainly due to the fact
that the relevant trade union and/or employees failed to observe the procedures which are
outlined under the law. This is either due to their ignorance of the law or a lack of patience.
This is why it is relevant to discuss strikes and the procedures to be followed, so as to avoid
an unnecessary breach of the law, penalty payments and the failure of employees to demand
their rights.
8.1 Strike and lockouts distinguished
The two terms have been defined under Section 4 of the ELRA. According to this provision
a "Strike” means a total or partial stoppage of work by employees if the stoppage is to
compel their employer, any other employer, or an employers' association to which the
employer belongs, to accept, modify or abandon any demand that may form the subject
matter of a dispute of interest.
On other hand "Lockout” means 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 form the subject matter of a dispute of interest."
G.N. No. 42 of 2007, describe strikes and lockouts in the following words “although a
measure of last resort, strikes and lockouts are forms of lawfully sanctioned economic
pressure in order to resolve disputes of interest between employers and their employees. A
strike and a lockout are temporary applications of pressure in the collective bargaining
process. Their purpose is not to unnecessarily damage the organisation”.
NOTE: As per Rule 42 (12) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, it is possible to have a strike and a lockout at the same
144
time. If the employees engage in a partial stoppage, the employer may institute a lockout in
response.
8.2 The role and object of strikes and lockouts
As per Rule 39 (1) of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007, the role of strikes and lockouts in collective bargaining as the
core for employer and employees is to resolve matters of mutual interest themselves without
outside interference. Rule 40 (1) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, put succinctly that the object of a strike or lockout is
to settle a dispute and shall come to an end if the dispute that gave rise to it is settled.
8.3 THE RIGHT TO STRIKE AND LOCKOUTS
The right to strike is generally seen as necessary element of collective bargaining because it
corrects the inequality inherent in the employment relationship." It is a means of last resort
and presupposes that the duty to bargain in good faith has been fulfilled and other voluntary
modes of dispute settlement have been tried and exhausted301.
Under Section 75 (a) and (b) of the ELRA, every employee has the right to strike in respect
of a dispute of interest. Equally, every employer is entitled to lockout in respect of a dispute
of interest. It is apparent from this provision that the employer or employees are required to
lockout or strike on dispute of interest only and not a dispute of right.
The above position is reflected in the case of Tanzania Zambia Railway Authority
(TAZARA) v. General Secretary Tanzania Railway Workers Union (TRAWU)302, where
it was held that (i) Employees have the right to strike on dispute of interest only and not on
dispute of right. (ii) Failure to pay employees’ salaries is a dispute of right and not a dispute
of interest.
8.3.1 Dispute of right and dispute of interest distinguished
Our labour law dispensation makes a distinction between a ‘disputes of right’ and ‘disputes
of interest’. In the case of a dispute of right, the basis of an employee’s claim is vested in a
301
302
MISC Application No. 104 of 2014: High Court of Tanzania (Labour Division) at Dar es Salaam
(Unreported)
145
legal or contractual right. Such a right can be enforced through the Labour Court or the CMA
(in some instances). A dispute of interest, on the other hand, is not based on any existing
right–here employees or their unions approach the employer in order to establish a new right.
If the employer does not want to give employees what they want and the matter remains
unresolved, then the employees may exercise their right to strike after following the
appropriate procedures. They cannot have their wishes enforced through the CMA or Labour
Court. A single employee would have no recourse whatsoever, because only two or more
employees can strike.
Rules, G.N. No. 42 of 2007, a dispute of interest on the other hand is a dispute over a labour
matter in respect of which an employee does not have an enforceable legal right and the
employee is trying to establish that right by getting agreement from the employer.
Rules, G.N. No. 42 of 2007, a dispute of interest may be: (a) a dispute over a new collective
agreement or the renewal of an agreement: (b) a dispute over what next year’s wages are
going to be; (c) a dispute over shorter working hours or higher overtime rates; or (d) a dispute
over a new retrenchment procedure or recruitment policy;
Rules, G.N. No. 42 of 2007, dispute of right or a complaint may be the (a) Failure to pay an
agreed wage; (b) to failure to comply with a provision of an employment contract; (c) breach
of a collective agreement; or (d) contravention of the Act.
Generally a dispute of interest refers to a labour dispute which does not arise from the
application, interpretation or implementation of an agreement with an employee, collective
agreement, the Employment Act or any other written law administered by the Minister
responsible for labour. It follows that for labour rights which are already provided for in a
written agreement or labour laws, the right to strike or lockout is unavailable.
8.3.2 Restrictions on right to strike or lockout
Despite the fact that the law allows the right to strike or lockout in respect of the dispute of
interest only to employer and employee but there are some individuals are excluded from
these rights. These restrictions are found under Section 76 of the ELRA which excludes the
146
following individuals; those engaged in essential service, or engaged in a minimum service, a

person bound by an agreement that requires the issue in dispute to be referred to arbitration;
magistrates, prosecutors or other court personnel. It further excludes employees who are
bound by a collective agreement or arbitration award that regulates to issues in dispute.
The other restriction is the issue in dispute is a complaint 303 ; or where the procedures
prescribed in Section 80, 81 and 82 have not been followed.
The following conducts associated with a strike are prohibited: Picketing304 in support of a
strike or in opposition to a lawful lockout; Use of replacement labour by the
employer305; Locking employers into the premises; Preventing employers from entering
the premises306.
Essentially, the Act does not allow picketing in labour disputes. This was strongly
recommended by the Task Force. However, picketing should be allowed with strict regulation
and Code of Good Practice being put in place. This would make Tanzania legislation
consistent with other SADC countries like South Africa and Namibia. For example, in South
Africa picketing is allowed under the Labour Relations Act, subject to the determined by the
collective agreement, absence of which the matter is to be determined by the Commission of
Conciliation, Mediation and Arbitration307.
The Act also prohibits employees to take industrial action if there is an agreement that require
the matter to be referred to arbitration. Tanzania’s stance on lock-outs is different from other
countries like France, Portugal, Italy and South Africa where lockouts are constitutionally
outlawed308.
303
As per Rule 41 (3) a complaint is defined as a dispute arising from the application, interpretation or
implementation of an agreement or contract with an employee, a collective agreement, a provision of the Act or
any other Act administered by the Minister of which a dispute of right or a complaint concerns those labour
matters that shall be decided by arbitration or the Labour Court:
304
“Picketing” is an industrial action by unionized workers (called pickets) who either are on, or are trying to
gather support for, a strike by assembling near the entrance to the employer's premises. Pickets try to persuade
(1) co-workers to join them, (2) workers of other firms (such as delivery men) to refuse to enter the premises,
and (3) customers to refrain from doing business with their employer.
305
As per Section 76 (4) of the ELRA, “replacement labour'' means taking into employment any person to
continue or maintain production during a strike or a lockout. It does not include the deployment of an employee
to do the work of an employee on strike or subject to a lockouts provided that the deployment is with the consent
of that employee.
306
Section 76 (3) (a)-(d) of the ELRA
307
308
Ibid at p.49
147
8.3.3 Procedure for engaging in lawful strikes or lockouts
Essentially the law provides an elaborate procedure to be followed before an employee

engages in a lawful strike and in this aspect the dispute of interest. Thus in order to engage in
lawful strike or lockout the parties must follow a procedures contained in Section 80 of the
ELRA. The said procedures can be summarised as follows;
The first step is that the dispute must first be referred to the Labour Commission for
Mediation and Arbitration (“CMA”) for mediation in prescribed form. After referral of the
dispute to the Commission, the Commission is supposed to appoint a mediator to resolve the
dispute309. The mediator shall try to resolve the dispute within 30 days. During mediation
proceedings, decisions are arrived at by mutual consent of both parties.
Rules, G.N. No. 42 of 2007 the 30 days mediation period is calculated from the date that the
dispute is referred. However the mediator may extend that period by a further 30 days if the
party referring the dispute fails to attend the mediation meeting. Under Rule 42 (7) of
the mediator may also shorten the 30 days period if the other party fails to attend. But nothing
should prevent the parties to the dispute from agreeing between them to lengthen the period.
In case the dispute is resolved Rule 42 (4) of the Employment and Labour Relations
(Code of Good Practice) Rules, G.N. No. 42 of 2007, requires the mediator to reduce the
settlement into writing and the partied there to shall sign the settlement agreement. In the
event where the mediator at any stage issues certificate that the dispute is unresolved or the
dispute remains unresolved for more than 30 days, a party may give the required notice of its
intention to commence a strike or lockout in terms of the Act310.
Where an interest dispute is not resolved at mediation, Rule 43 (1) of the Employment and
Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, requires the
mediator to try to get the parties to agree on rules to regulate the conduct of the strike or the
lockout.
309
Rule 42 (3) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007
and As per Rule 42 (10) The mediator retains jurisdiction over the dispute until the dispute is settled and must
continue to try and settle the dispute by mediation after the notice or during the strike or lockout.
310
148
The said rules as per Rule 43 (2) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007 shall address the following matters-(a) the conduct of
strike ballot; (b) the notice of the commencement of the strike or lockout; (c) places, times
and conditions for strikers or locked out employees to assemble on the premises during the
strike or lockout (d) appointment of representatives responsible for ensuring compliance with
the rules and their contact details; (e) security of the employer's premises during the strike or
lockout; (f) commitment to take steps to ensure compliance with the provisions of the Act,
this code and any agreed rules; and (g) mediation during the strike or lockout in terms of
Section 86 (8) of the Act. In the event where the mediator doesn’t assist the parties in trying
to agree these rules, the parties themselves shall attempt to agree on rules to regulate the type
of matters set out in sub-rule (2).
If the CMA mediation is unsuccessful and the strike has been called by a trade union, the
second step according to Section 80 (1) (d) of the ELRA is that a trade union is supposed to
conduct a ballot under the union’s constitution. For the strike to be sustainable, a majority of
the trade union members who voted must support the strike.
This is also supported by Rule 42 (8) of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007, which provides that where the strike is called
by a trade union, the union shall conduct a ballot of its members being called out on strike. A
trade union is only permitted to call a strike if a majority of those who voted supported the
strike.
Finally, As per Section 80 (1) (e) of the ELRA read together with Rule 42 (9) of the
employees are required to issue to the employer at least 48-hour notice of their intention to
strike before commencing lawful strike. The notice may be given only after the mediation
period contemplated 30 days has expired.
The notice of commencement of strike according to Rule 42 (13) of the Employment and
Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007, shall state the date
and time of the strike or lockout. The object of the notice to strike is to ensure that the
employer has the opportunity to shut down the' business without unnecessary harm being
done to it.
149
In the event where the strike does not commence at stated time and or suspended and
employees return to work Rule 42 (14) of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007 requires a fresh notice to be given. The object
of the notice to lockout under that rule is to ensure the employees know in advance from
when they shall be prevented from working and not be paid.
Where the intended strike or lockout is to be intermittent, Rule 42 (15) of the of the
Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007
requires a notice of the commencement of the strike or lockout shall include the dates and
times of each stoppage.
Accordingly under Rule 42 (16) of the of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007, Where a strike or lockout is a fresh notice shall
be given if the strike or lockout is resumed. That notice shall state the date and time of the
resumption of the strike.
It is significant to underscore that the Employment Act under Section 82, further stipulates
the procedure for lawful lockouts. Firstly, an employer who intends to engage in lockouts is
required to refer the dispute to the CMA for mediation.
If the dispute remains unresolved at the conclusion of mediation proceedings, the next step is
for the employer or employer’s association to issue to the employees or trade union a 48
hours’ notice of intention to lockout before commencing lockouts.
It should be noted that the staggered procedure, not to mention the intervening mediation
proceedings, for lawful lockouts and strike action, gives the parties an opportunity to resolve
their differences amicably. The stepped procedure further allows the employer to take
remedial measures with a view to mitigating his losses when the intended strike commences.
NOTE: As per Section 80 (4), 82 (2) of the ELRA read together with 42(1) the of the
Nothing prevents a registered trade union on the one hand and an employer or employers
association on the other hand from concluding a collective agreement providing for an agreed
procedure for a lawful strike or lockout. In that case the procedure under the Act ceases to
apply.
150
8.3.4 Nature of protection of lawful strike or lockout
The Act under Section 83 provides immunities to employees engaging in strike though such
immune according to Rule 45 (1) of the of the Employment and Labour Relations (Code
of Good Practice) Rules, G.N. No. 42 of 2007, does not extend to strike related misconduct
such as violence, malicious damage to property and thus the ordinary Rules relating to
termination of employment for misconduct shall apply to an employee charged with this kind
of misconduct311.
As per Section 83 (1) (a)-(c) of the ELRA engagement in lawful strike is not a breach of
contract, or tort or criminal offence. A lawful strike will no longer be a criminal offence but
simply a labour dispute, in which any aggrieved party must follow a procedure laid down for
initiating any dispute under the Act.
In that respect it is prohibited under Section 83 (2) of the ELRA for an employer to
terminate the employment for the ground that the employee has participated in a lawful strike
or not acceding to employer’s demand in a lock out.
Accordingly the law prohibits under Section 83 (3) of the ELRA any person to institute a
civil or criminal proceeding on the ground that one has participated in a lawful strike or
lockout. However under Rule 45 (3) of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007, it may be fair to terminate the employment of a
striker engaged in unlawful strike. The fairness of the termination depends on a number of
factors provided under the Rules.
The Labour Court has jurisdiction to determine whether the strike was lawful or not312" This
stance is similar to South Africa, but section 187(1) (a) of the LRA goes a step further and
provides that a dismissal by reason of an employee’s participation in a lawful strike is
automatically unfair dismissal313.
Although an employer under Section 83 (4) of the ELRA is not obliged to remunerate an
employee for services that an employee does not render during a lawful strike or lawful
lockouts, he is obliged under Section 83 (4) (a) of the ELRA to continue to make its
311
Rule 45 (2) of the of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of
2007
312
313
151
contribution and the employee's contributions to any funds that an employee is required to
belong to by law or under contract of employment during the strike.
However, after the end of strike an employer may deduct any of the employee's contributions,
this is according to Section 83 (4) (4) of the ELRA. An employee may not consent deduction
of his wage by the employer. In that event the employer must refer the dispute to mediation
and if remain unresolved it may be referred to the Labour court314.
NOTE: Under Section 83 (7) of the ELRA, the trade union or employer or employer’s
association are at liberty to conclude a collective agreement that regulate matters under
Section 87 (4) of the Act.
8.4 STRIKE IN ESSENTIAL SERVICES
The general rule is that every employee has a right to strike in respect of a dispute of interest;
but the same must be called by a trade union representing those employees. However there
are some exceptions where an employee cannot go on strike and for example where an
employee is involved in essential services.
Essential services have been listed under Section 77 (1) and (2) (a)-(f) of the ELRA as
services such as 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 essential services.
Further, an Essential Services Committee is empowered under Section 77 (3) of the ELRA,
to designate a service as essential if the interruption of that service endangers personal safety
or health of the population or any part of it and it is required under Section 77 (5) of the
ELRA to publish a notice in in the gazette to that effect and it may vary or cancel the
designation according to the procedures under Section 77 (4) and (5).
However, the Act under Section 77 (4) (a)-(e) of the ELRA curbs arbitrary designation of
some services as essential by requiring that before a certain service can be declared as such,
must give notice inviting interested parties to make representations, conduct investigation in
prescribed manner, make any written representation available for inspection and hold a public
hearing at which the interested parties in may make oral representations.
314
152
A dispute might arise as to as to whether or not a service is an essential service or an

employer or an employee is engaged in an essential service, in that situation Section 77 (7) of
the ELRA direct that such dispute shall be referred to the Essential Services Committee for
determination.
Section 77 (8) of the ELRA, requires the party referring the dispute to the committee to
satisfy the committee that a copy of the dispute has been served on all the other parties to the
dispute. Once the committee is satisfied Section 77 (9) of the ELRA, require the Essential
Services Committee to determine the dispute as soon as possible.
Employees engaged in essential services are not allowed to take industrial action until a
prescribed procedure has been exhausted. Employers and employees in essential services may
conclude collective agreements on a procedure to be adopted for employees to take an
industrial action.
Such collective agreement must be approved by the Essential Services Commission315. The
collective agreement must indicate that there shall be a provision of minimum services during
strike316. If there is no collective agreement any party to a dispute of interest in an essential
service may refer the dispute to the Commission for mediation if mediation fails, any party
may refer the dispute to arbitration317.
This is unlike disputes of right where if the dispute remains unresolved in mediation is
supposed to be referred to the labour Court.
Rule 41 (1) of the of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007 provides that subject matter of a lawful strike or lockout is
limited to disputes of interest only, although it is not normally permissible to strike or lockout
in respect of disputes of interest in an essential service. Those disputes are referred to
compulsory arbitration, if mediation fails.
8.5 SECONDARY STRIKES
Like the former legislation, the new legislation provides the right to engage in secondary
strike. Secondary strike is defined under Section 81 (1) (a) and (b) of the ELRA as an
industrial action in support of a lawful strike (the primary strike) by other employees against
315
316
317
153
their employer (who is the primary employer) or in opposition to a lockout imposed by

another primary employer against its employees."'
Similarly, Rule 44 (1) of the of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, defines a secondary strike as a solidarity strike in
support of other employees who are on strike (called the primary strike) or who may be
subject to a lockout by their employer. (b) It opposes a lockout imposed by another employer
against its employees; (c) the trade union has given 14 days’ notice of the commencement of
the strike; (d) there is a relationship between the secondary employer and the primary
employer; and (e) the secondary strike is proportional.
Rule 44 (8) the Employment and Labour Relations (Code of Good Practice) Rules, G.N.
No. 42 of 2007, require the trade union calling a secondary strike shall tailor the secondary
strike in such a way as to limit the harm to the secondary employer, while applying pressure
on the primary employer.
The procedure for engaging the secondary strike is, however, relaxed under the new
legislation as compared to the former legislation. What is required is for the trade union to
give a fourteen days ‘notice to an employer before commencement of the secondary
strike318." The trade union calling for secondary must indicate that there is a relationship
between the secondary and primary employer that may warrant the exercise of pressure319."
Rules, G.N. No. 42 of 2007, there shall be a relationship between the secondary employer
and the primary employer which may take a range of the following forms: (a) the secondary
employer may be a supplier or a client of the primary employer; (b) the employers may be in
the same group of companies; or (c) the secondary employer may have shares in the primary
employer.
Rules, G.N. No. 42 of 2007, the test in establishing a relationship is always the capacity of
the secondary employer to place pressure on the primary employer. It is the necessary pre-
requisite for assessing the proportionality of the secondary strike.
318
Section 81 (2) (a) of the ELRA read that together with Rule 44 (1) (c) of GN. 42 of 2007
319
Section 81 (2) (b) of the ELRA read together with Rule 44 (1) (d) of GN. 42 of 2007
154
The new legislation modifies the former legislation by requiring that secondary strike must be
proportional having regard to the effect of strike to employer 320 . Rule 44 (7) the
provides that secondary strike shall proportional taking into account two factors:-(a) the effect
of the strike on the secondary employer; and (b) the possible effect that the secondary strike
may have in resolving the dispute giving rise to the primary strike or the lockout.
The Act under Section 81 (4) further authorises trade unions and an employers or an
employers' association from agreeing to their own requirements and procedure for engaging
secondary strike in a collective agreement." Nevertheless, under Section 81 (3) of the ELRA
the right to engage secondary is not available to employees engaged in the essential services
unless there is an approved collective agreement to that effect.
It is imperative that where the employee engages in secondary strike such strike should be
lawful. According to Rule 44 (3) of the Employment and Labour Relations (Code of
Good Practice) Rules, G.N. No. 42 of 2007, the secondary strike shall be lawful if the
primary strike is lawful.
In order to be lawful, the primary strike shall comply with the provisions of Section 80 of the
Act. As per Rule 44 (4) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007, the lawfulness of a secondary strike does not depend
on the lawfulness of a lockout. A secondary strike may be called in respect of both a lawful
and an unlawful lockout.
8.6 PROTEST ACTION
Protest action is a new concept in the labour regime in Tanzania. The concept means action
by workers over social and economic issues affecting workers. This action is to be
distinguished from other forms of strike.
8.6.1 Procedure for engaging in protest action
The procedure for engaging in a protest action under the new legislation is that; the protest
action must be called by a registered trade union or registered federation of trade unions321.
The union or federation must serve at least a fourteen days’ notice on the Labour, Economic
320
Section 81 (2) (c) (i) and (ii) of the ELRA read together with Rule 44 (1) (e) of GN. 42 of 2007
321
Section 85 (1) (a) of the ELRA
155
and Social Council stating the reasons for protest action, the duration and form of protest
action322.
Thereafter, thirty days must elapse from the date when the notice was served 323 . Upon
receiving the notice, the Council is supposed to convene a meeting within thirty days of the
notice to resolve the matter giving rise to protest action324. If it is unable to resolve the matter,
the Council shall try to secure an agreement with the trade unions or federation of trade
unions calling for the protest action on the duration and form of protest action in order to
minimise the harm that may be caused by the intended protest action325.
Further the Council may establish a tripartite committee to try resolving the matter 326. It may
also appoint a mediator after consultation with the Commission to mediate the dispute327. Any
person who is likely to be, or has been, affected by the protest action may apply to the Labour
Court for an order to restrain any person from taking part in protest action or in any conduct
in contemplation or furtherance of an action that does not comply with the provisions of the
Act328.
In determining the application, the Labour Court is supposed to be guided by the nature and
the duration of a protest action, the importance of the reasons for the protest action and the
steps taken by the union or the federation to minimise the harm caused by the protest action329
Employees participating in a protest action are immuned from unjustified embarrassments.

The provisions of immunity relating to engage a lawful strike apply mutatis mutandis in
engaging protest action330.
From the discussion above concerning protest action it can be submitted that, the mechanism
for exercising that right is excessively long. The requirement of 30 days’ notice is awfully
and unnecessary long time. A reasonable time of 14 days is sufficient to enable the Council to
meet with the parties contemplating to take protest action. Also, before the court can make a
declaratory order, all interested parties must be given sufficient notice to appear and to be
322
Section 85 (1) (b) (i) and (ii) of the ELRA
323
Section 85 (1) (c) of the ELRA
324
325
326
327
328
329
330
156
heard. Otherwise, the provisions will remain ceremonial rather than serving the purpose
intended331.
8.7 ILLEGAL STRIKES AND LOCKOUTS AND THEIR CONSEQUENCES
Where a strike or lockout has been engaged without complying with the provisions of the
Act, any aggrieved party may refer the dispute directly to the Labour Court which has
exclusive jurisdiction to industrial actions332. The Court may issue an injunction to restrain
any party contemplating to engage in a prohibited action333.
However, an order for injunction cannot be issued against any party unless a forty eight
hours’ notice of application has been given to the respondent in exceptional circumstances
the Court remains with discretion to grant a shorter period upon good cause being shown only
if the respondent is given a reasonable opportunity to be heard334."
To that end, it is submitted that the provision requiring proper notice before an injunction can
be issued is proper one to avoid the parties who want to delay the process even if there is no
cause to warrant injunction. Injunction is one of the court processes which are commonly
abused in Tanzania by many litigating parties, because the courts have discretion to issue an
ex-parte injunction without affording opportunity to the other party to present its case335.
Where either party has engaged an illegal industrial action and the matter has been referred to
the Court, the Court may make an order for payment just and equitable compensation for any
loss attributable to the strike, lockout or conduct, having regard to: (i) the degree of fault; (ii)
the cause of the strike, lockout or conduct; (iii) any prior history of non-compliance; (iv) the
ability to pay; (v) the extent of the harm; (vi) the interests of collective bargaining; and (vii)
the duration of the strike, lockout or conduct336.
The court may not make an order of compensation that may cause a trade union, employer or
employer's association to become bankrupt, unless there is an exceptional circumstance
which may warrant such an order337. The purpose of an order is to maintain good industrial
331
332
333
Section 84 (1) (a) (i) and (ii) of the ELRA
334
335
336
Section 84 (1) (b) (i) and (vii) of the ELRA
337
157
relations between the parties and keep production growing rather than punishing the losing
party.
8.8 ROLE OF POLICE & PRIVATE SECURITY IN STRIKES AND LOCKOUT
Rules, G.N. No. 42 of 2007, the police shall apply any policy and guidelines on strikes and
lockouts issued by the Minister responsible for public safety and security. As a general rule,
police shall only intervene if there is a breach of the peace or law, particularly if there is a
threat of violence or damage to property338.
The police shall have no responsibilities of enforcing the Act or orders of the Labour Court.
Enforcement of a court order is a matter for the courts and its officers, although the police
may assist officers of the court in serving the order if there is a breach of the peace339.
The police may arrest persons who engage in violent conduct or are armed with dangerous
weapons and take steps to protect the public, if they are of the view that the strike or lockout
is not peaceful and is likely to lead to violence. It shall not the function of the police to take
any view of the merits of the dispute giving rise to the strike340.
Private security personnel may be employed to protect the property of the employer and to
ensure the safety of people on the employer's premises341. The private security personnel shall
have no responsibility of enforcing the Act or any order of the Labour Court as the
enforcement of a court order is a matter for the courts and its officers342.
8.9 Termination of employment after the strike terminates–whether lawful
In Flora Zabron Kisanga and 6 Others vs. Tanzania Meat Company Limited 343; it was
held that (i) When the cause of a strike/cause of discontent is removed by the employer
conceding to the demand of the strikers or by removing the grievances or by resolving the
dispute, then the foundation of the strike falls away. (ii) When the strike terminates so does its
protection and the employer can only terminate an employee who continues with strike upon
termination of strike in the said way.
338
339
340
341
342
Rule 47 (2) and (3) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of
2007
343
Revision No. 16 of 2013: High Court of Tanzania (Labour Division) at Dodoma (Unreported).
158
CHAPTER NINE:
DISPUTE RESOLUTION
9.0 Introduction
Essentially, the old labour regime regulating dispute were inadequate in number of ways for
example the procedures to resolve the dispute were cumbersome and inadequate, the process
of referring dispute to the commissioner were tedious thus created everlasting labour
disputes.
It as from this background the old labour regime were overhauled and as the consequences
the two principal legislation were enacted that is the LIA and ELRA where for example under
Section 3 (d) and (e) of the ELRA, the objective of the Act is to provide for framework for
resolution of disputes by mediation, arbitration and adjudication and also to provide the legal
framework for effective and fair employment relation and minimum standards regarding
condition for work.
Therefore this chapter is set forth to make a comparative analysis of dispute handling
procedures both under the old labour law and the new labour regime.
9.1 Dispute defined
Section 4 of the ELRA, defines a labour dispute as a formalised conflict between employees
or their registered association on one hand and employers or their registered association on
the other. The Act split disputes into two categories that are dispute of interest and dispute
of right.
According to Section 4 a dispute of interest means any dispute except a complaint. Dispute of
interest involves any interest which parties to employment feel they are entitled to but they
have not been granted yet.
9.2 DISPUTE HANDLING UNDER OLD LABOUR REGIME

In the old labour law regime dispute were handled under five or more institutions, namely the
labour officers, the labour conciliation board, the industrial court of Tanzania, the labour
commissioner and the fifth avenue was set to accommodate injuries under the Workers
Compensation Act.
159
The labour officers were clothed with powers among others to mediate dispute involving
termination of employment and claims for terminal dues. On failure to mediate the dispute
the labour officers would prepare a report and file the same to the magistrate court and once
filed, it was generally regarded as the plaint and the hearing could proceed thereafter as in
any normal civil suit. If one still aggrieved could seek for an appeal or review or revision like
in any other civil suits.
Another avenue for handling labour disputes was the Labour Conciliation Board which was
only charged with the task to determine dispute involving summary dismissal. A person
aggrieved by the decision of the Board could appeal to the minister responsible whose
decision was final and conclusive344. This meant that the decision of the minister could not be
challenged by way of an appeal though it could not also meant that such decision could not be
challenged by way of judicial review, thus a person could knock the door of the High Court to
seek for prerogative orders.
Consequently the Security of Employment Act was amended in 1975 under Section 18 of
the Labour Laws (Miscellaneous Amendments) Act No. 1 of 1975 which amended
Section 40 A of the Security of Employment Act, 1964. The said amendment widened the
powers of conciliation board to hear and determine issue of termination of employment over
and above summary dismissal.
The third avenue was through the Industrial Court of Tanzania. At first instance the dispute
was determined by a single chairperson and on revision a single chairperson, two deputy
chairpersons and assessors. The decision from revision lied to three judges of the High Court.
The Fourth avenue was through the labour commissioner who received complaints from
aggrieved party through the labour officers and thus without meeting the party he decides on
whether or not there was an issue to be referred for inquiry. The after the Commissioner
would write the letter to the industrial court an inquiry to be made on issues identified by him.
The last avenue was on all claim for injuries brought under the workers compensation Act
where an injured employee could file incapacitation report filled by a medical practitioner to
the resident magistrate court for adjudication and award of compensation. Alternatively, the
injured employee would pursue a cause of action in tort to sue for compensation for
injuries345.
344
Sections 24, 25, 26, 27, 28 & 29 of the Security of Employment Act Chapter 387 R. E. 2002
345
Mwalongo, F (nd). Labour Disputes Handling In Tanzania
160
The above identified avenue created a number of problems in handling labour disputes as for
example there were instances where one could institute the proceeding in more than one
avenue. This together with other factors warranted the overhauling of the labour law dispute
resolving machinery and come up with new machinery which could address labour dispute in
more efficient way.
9.3 DISPUTE HANDLING UNDER NEW LABOUR REGIME
The new labour regime establishes three compulsory dispute resolution mechanisms with
mediation, adjudication and arbitration as the core mechanism for resolving disputes
accruing from labour relations. These mechanisms are embedded under ELRA and LIA
together with their Rules made thereunder.
While the letter establishes institutional machinery for resolving disputes, the former
regulates the methods and procedures to be followed in resolving the said disputes. The
two Acts are also complimented by several subsidiary legislations which are also geared forth
in resolving labour disputes.
9.4 MECHANISM FOR LABOUR DISPUTE SETTLEMENT
The Act has identified four mode of dispute settlement that is mediation, arbitration,
adjudication and collective agreement.
The conduct of mediation and arbitration is governed by the Labour Institutions (Mediation
and Arbitration) Rules GN. No. 64 of 2007 and Labour Institutions (Mediation and
Arbitration Guidelines) Rules GN No. 67 of 2007 while the conduct of mediators and
arbitrators is regulated by Labour Institutions (Ethics and Code of Conduct for Mediators
and Arbitrators) Rules GN. No. 66 of 2007.
The mechanism for settling labour disputes is more or less formal compared to civil cases.
Usually, labour disputes commences with mediation346 conducted under the auspices of the
Commission for Mediation and Arbitration (CMA)347. Where mediation fails as was held by
346
See Rule 20 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No. 67 of 2007.
These Rules are made under section 15(1)(f) of the Labour Institutions Act, Act No. 7 of 2004.
347
The Commission for Mediation and Arbitration (CMA) is established under section 12 of the Labour
Institutions Act (2004).
161
the Labour Court in Salim Kitojo v. Vodacom (T) Ltd.348, the matter should be referred to
arbitration349 conducted under the CMA and later to the Labour Court.350
9.4.1 MEDIATION
9.4.1.1 Mediation defined
Rule 20 of the LIA (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
requires the dispute to be first resolved through mediation. Simply put, mediation is a process
of dispute resolution whereby the parties to the dispute reach a settlement with the help of a
neutral third party. The essence of compulsory mediation is nothing other than providing an
amicable and efficient way of resolving labour disputes.
Rule 3 (1) of the LIA (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
defines Mediation as the process in which a person independent of the parties is appointed as
mediator and attempt to assist the parties either jointly or separately and through discussion
and facilitation attempts to help the parties settle their dispute.
Rule 8 of the LIA (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
defines mediation as a confidential process that is aimed at helping the parties to dispute to
reach an agreement.
The mediator, as a neutral but qualified third party, will seek to reconcile their differences
based on the law and evidence presented351. A Mediator has power to determine how the
dispute should be conducted and thus the power of mediator includes require further meeting
between the parties352.
It’s a fundamental principle of mediation that then parties ultimately choose whether to settle
the dispute or not. The recommendation of mediator shall not be binding unless the parties
agree353
348
High Court of Tanzania (Labour Division) at Dar es Salaam, Labour Division No. 5 of 2010 (Unreported).
349
Section 86(7)(b)(i) of the Employment and Labour Relations Act; and Rule 18(2) of the Labour Institutions
(Mediation and Arbitration Guidelines) Rules. (2007)
350
Labour Division of the High Court of Tanzania (henceforth, “the Labour Court”) is established under section
50(1) of the Labour Institutions Act (2004) and became operations on t he 5 th d ay o f J anuar y, 2007.
351
Rweyemamu, J, as he was then, in Tanzania Breweries Ltd v. Charles Malabona, High Court of Tanzania,
Labour Division, Labour Revision No. 24 of 2007 (Unreported)
352
Rule 5 (1) and (2) of the LI (Mediation and Arbitration) Rules GN No. 64 of 2007
353
162
Rule 13 (1) of LI (Mediation and Arbitration) Rules, GN No. 64 of 2007, requires CMA to
give parties a 14 day notice in writing before commencement of mediation proceedings. Rule
13 (2) of LI (Mediation and Arbitration) Rules, GN No. 64 of 2007 gives parties an option
to agree for a shorter period of notice. It’s important for such notice to state the date, time and
place of attendance354.
9.4.1.2 Referral of dispute for mediation
The first method under the Employment and Labour Relations Act is mediation as provided
under Part VIII sub-part A. Section 86 (1) of the ELRA, provides that disputes shall be
referred to the Commission in the prescribed form and a copy to be served to the
respondent.
Rule 10 (1) of the LI (Mediation and Arbitration) Rules355 requires all disputes regarding
unfair termination to be referred to CMA within 30 days from either the date of
termination or the date the employer made the final decision to terminate.
This time limit is different with respect to other alleged disputes; the law mandates that a
dispute must be referred within 60 days from the date the dispute arose356.
9.4.1.3 Condonation
Therefore, any party seeking to move CMA out of time is required by law to lodge an
application for condonation. As a matter of law such application must state grounds for
failure to act within time stipulated.
Thus as per Rule 11 (3) LI (Mediation and Arbitration) Rules, GN No. 64 of 2007,
requires an application for condonation to include the referring party’s submission on the
following (a) degree of lateness (b) the reason for lateness (c) its prospects of succeeding with
dispute and obtaining relief through against the other party (d) other relief factors. The
proceedings to such application are those contained under Rule 29357.
In General Guards & Office Cleaner v. Chacha Masuri & 29 Others 358, it was stated that
the provisions of the law enabling the Court to enlarge time limitation or condone late filing
354
Rule 13 (3) of the LI (Mediation and Arbitration) Rules GN No. 64 of 2007
355
GN No. 64 of 2007
356
Rule 10 (2) of LI(Mediation and Arbitration) Rules GN No. 64 of 2007
357
Rule 11 (4) of LI (Mediation and Arbitration) Rules
358
Misc. Lab. Appl. No. 18 of 2010
163
of such applications are set in Rule 56 (1) of the Labour Court Rules, GN No. 106/2007.
The court may extend or abridge any period on good cause shown. The party requesting for
condonation has to prove that there was a good cause which prevented him to lodge the
application in time.
In Nufaika Distributor Ltd. v. Hawa c/o Choma TUICO359, it was stated that other factors
like whether “the parties” contributed to the delay in preparation of the award; whether there
were sufficient reasons to extend the time and....if any party’s rights were prejudiced...or a
miscarriage of justice occasioned by the late delivery of the award must be taken into
consideration.
In Christina Pius v. National Parking Solution 360 , it was stated that the law allows
condonation for failure to comply with the time frame set by the law as per Rule 31 of the
Labour Institutions (Mediation and Arbitration) Rules, 2007 GN No. 64/2007 upon proof
of good cause.
9.4.1.4 Referral Form
It should be noted here that Form No.1 (CMA F.1) that were once provided under the
Employment and Labour Relations (Forms) Rules, Government Notice No. 65 of 2007,
are now have been revoked by Regulation 41 of the Employment and Labour Relations
(General) Regulations 2017 (G.N No.47 2017) which provides that: "..The Employment and
Labour Relations (Forms) Rules, 2007 are hereby revoked..." Regulation 34 (1) of the same
legislation goes on to pinpoint the correct forms to be used. It is to the effect that:"...The
forms set out in the Third Schedule to these Regulations shall be used in all matters to which
they refer..."
Needless to say, the word "shall" as used in the above provision entails that the new forms
stated in the schedule to the amendments must be used361. Thus it is now settled that the
correct form for the purpose of referring dispute to the CMA are those contained under third
schedule of the GN. No. 47 of 2017.
Dispute this recent amendment of the law but still lawyers, complainants, trade union or
personal representatives of clients often get caught up in technicalities by filing of the
359
Rev. No. 256 of 2008
360
Rev. No. 119 of 2010
361
See Section 53 (2) of the Interpretation of Laws Act [Cap 1 R.E 2002]
164
incorrect referral forms CMA Form No.1 (CMA F.1). Incorrect filing of the CMA Form No.1
(CMA F.1) may lead to nasty consequences or embarrassment with the client where by the
outcome may lead to striking out of the case.
The labour Court has dealt with an issue as to whether the arbitrators and mediators are
mandated to amend the referral form (CMA F. 1). Thus in SBC Tanzania Ltd vs. Fanuel
Haule362; It was held that there are no provisions in labour laws allowing mediators and
arbitrators to make changes suo moto on what appears on the referral form. In the same vein
the court In the case of Bank Tanzania Ltd v. Kombo Ally Singano 363 ; stated that an
arbitrator has no power to amend CMA F1 suo motto.
The court in Paul Kavulaye Mgonja v. Tanzania Electric Supply Co. Ltd Revision364;
discuss the issue regarding signing of CMA F1 and CMA F.7 and effect of failure of the party
who filed complaint to sign the forms. It held thus; (i) Failure to sign CMA F.1 or CMA F.7
constitute material irregularity which goes to the root of the complaint or application so that it
is the same as there is no application before the CMA. (ii) A Mediator/arbitrator has power to
order that CMA F.1 or CMA F.7 be signed before he proceeds with determination of the
matter.
Section 86 (3) (a)-(c) of the ELRA, is to the effect that on receiving a referral, the
Commission shall appoint a mediator to mediate the dispute, decide the time, date and place
of mediation hearing and more important to advice the parties to the dispute for such
measures.
9.4.1.5 Time frame for conducting mediation
Under Section 86 (4) and (5) of the ELRA, a mediator is required to resolve the dispute
within thirty days of referral or any other longer time as the parties may agree and the
mediator shall decide the manner in which the mediation is to be conducted.
provides that the mediator has 30 days from time the dispute is referred to the commission to
362
363
Labour Revision No. 65 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported)
364
165
assist the parties in resolving the disputes. However the parties may extend the said period by
an agreement in writing365.
This mechanism is unlike the former legislation which had a very tedious process of referring
the dispute to the Labour Commissioner and ultimately to the ordinary courts (any ordinary
subordinate court presided by a Resident Magistrate).
In the former mechanism there was no time limit within which the dispute should had to be
concluded However, whereas there is a time limit within which mediation should be
concluded (i e. 30 days), there is no time limit provided for conclusion of the matters referred
for arbitration and that referred the Labour Court for adjudication.
9.4.1.6 Representation of parties during mediation proceedings
As per Section 86 (6) of the ELRA read together with Rule 7 of the LI (Mediation and
Arbitration Guidelines), Rules GN. No. 67 of 2007, a member or official of the party’s
trade union or an advocate may represent the party to the dispute. Drawing experience from
other jurisdiction like in South Africa the position as to representation of the parties appears
somewhat different.
In South Africa the law prohibits appearance of attorneys and advocates at conciliation level
in arbitration they are allowed generally except in a dispute arising from dismissal for
misconduct or incapacity, unless an arbitrator is of the opinion that due to circumstances of
the case either of the parties is unable to defend himself.
However, the parties may be represented by their fellow employees or trade unions or
employer’s association as the case may be366.
9.4.1.7 Recourse where the dispute remains unresolved after mediation
If the dispute remains unresolved Section 86 (7) (a)-(b) of the ELRA provides that if it is a
dispute of interest, the party may give notice of its intention to commence strike or
lockout and if a dispute is a complaint refer the matter to arbitration or the Labour for
adjudication.
365
366
Section 140 of the LRA (SA)
166
9.4.1.8 Consequences of not attending mediation proceedings
Rule 14 (1) of LI (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007,
states that where the parties are not present at commencement date and time set for mediation,
the mediator shall wait for a reasonable time to give the party an opportunity to arrive.
In other cases, where either of the party to mediation fails to attend the mediation
proceedings, the law under Section 87 (1) (a) and (b) of the ELRA read together with Rule
14 (2) (b) of LIA (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
affords the mediator with two options. Firstly, he may choose to extend the hearing for a
further 30 days if employee or union fails to appear. Secondly, if the employer or employer
association fails to attend the hearing, the mediator may shorten the hearing of 30 days.
The above position applies only where a dispute of interest has been referred to the
commission. In respect to the dispute of right or complaint, the mediator is also afforded with
two options. According to Section 87 (3) (a) and (b) of the ELRA read together with Rule
14 (2) (a) of LIA (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007, the
mediator may firstly dismiss the complaint if the party who referred it fails to attend the
proceeding and secondly, the mediator may decide the complaint. This provision would mean
that the arbitrator is empowered by the law to give an ex parte award in the event where the
other party fails to procure hid attendance during the mediation proceeding.
As per Section 87 (4) of the ELRA, the decision given by an arbitrator as the consequence of
non-appearance of either of the party may be enforced in the labour court as a decree of
competent court. However the practice in labour court appears to be different as the practice
reveal that the labour court has been reluctant to enforce the ex parte award in absence of
overwhelming proof that summons were duly served and thus one fails to appear on his own
peril.
This was a chief view of Mandia, J, as he was then, in BIDCO Oil & Soap Ltd v. Robert
Matonya & Two Others367, on which he stated that “An order for ex parte hearing should be
made by a mediator only when he has satisfied himself that summons had been served on the
respondent and that he/she has defaulted”.
367
High Court of Tanzania, Labour Division Revision No. 11 of 2008
167
The law under Section 87 (5) (a) and (b) of the ELRA affords one an opportunity for
defaulting party to make application in prescribed manner to set aside the ex parte award
given by arbitrator. But such right is not absolute as one must satisfy the court that there were
good grounds for failing to attend the hearing.
9.4.1.9 Stages in mediation proceeding
Mediation may vary depending on the parties involved, the style of the Mediator, the nature
of the dispute, and the circumstances involved368. Mediation may involve four distinct stages:
- introduction; gathering information; exploring options; conclusion.
In respect to the first stager Rule 10 (2) of the GN No. 64 of 2007 the mediator is required
to introduce the parties, determine the language on which mediation proceedings are to be
held and in case the interpreter is required to insure he is present.
In respect to second stage of information gatherings, under Rule 11 of the GN No. 64 of

2007, a mediator can gather information about the dispute from the parties in the joint session
by inviting each party to give their views on dispute, allowing each party to ask questions,
himself to ask the parties questions and by summarising the issues.
In respect to third stage of exploring options, under Rule 12 of the GN No. 64 of 2007, a
mediator may commence to explore option with parties either in joint session or separately
with any of the party depending on which option would be best to facilitate progress and may
switch between these options and consider other process such as establishing sub-committee
from the parties or meeting with person or persons who provide mandate to a party.
9.4.1.10 Postponement of hearing
Irrespective of whether or not there is an agreement between the parties, a Mediator shall
postpone the hearing in the following circumstances: - (a) There is a good reason to do so. (b)
Other parties to the dispute are not unduly prejudiced as a result; and (c) There is prospects
that the dispute may be settled as a result of the postponement369.
368
Rule 9 (1) of the LI (Mediation and Arbitration) Rules GN No. 64 of 2007
369
Rule 14 of the GN No. 64 of 2007
168
9.4.1.11 Conclusion of the mediation
As per Rule 3 (5) of LI (Mediation and Arbitration Guidelines), Rules GN. No. 67 of
2007, the mediator at conclusion of the mediation is required to issue a certificate the
certificate which identifies the nature of dispute and stating whether to settle the dispute or
not. The said certificate is required to be issued within 30 days period if the mediator resolves
that mediation has failed.
The essence of a certificate is basically to state the outcome of mediation. This will enable the
parties to understand their respective position with regard to the outcome of mediation370.
Also in terms of Rule 13 (2) of LI (Mediation and Arbitration Guidelines), Rules GN. No.
67 of 2007, where the parties have settled the dispute the mediator shall draft a settlement
agreement. The settlement agreement drawn in this regard it must be clearly drawn so as the
parties to be in position to understand it, it should not further disputes, be clear and concise,
includes procedures for dealing with any dispute that may arise from application or
interpretation of the agreement, cater for any ratification process required and more important
it must be signed by all parties to the dispute.
In case the settlement of dispute is not reached the mediator should ensure that the issue in
dispute are narrowed down was much as possible by getting the parties to agree in writing on
those issues in dispute which have been eliminated. Also the mediator should ensure that the
parties are aware of their rights to process the dispute further in term of the Act371.
Rule 13 (5) of LI (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
requires the mediator to complete necessary documentation at the end of mediation
identifying the nature of the disputes and certifying that the dispute has been resolved or
unresolved.
See also Rule 17 (1) and (2) of the LI (Mediation and Arbitration Guidelines), Rules GN.
No. 67 of 2007.
370
Rule 16 of LI (Mediation and Arbitration) Rules, 2007
371
Rule 13 (4) of LI (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007
169
9.4.2 ARBITRATION
9.4.2.1 Arbitration defined
Arbitration is a method of dispute resolution whereby the parties to the dispute agree to
submit their dispute to the binding decision of a neutral third party known as the arbitrator.
The decision in arbitration is not by the parties but it is imposed by the third party as opposed
to negotiation and mediation.
Rule 18 of LI (Mediation and Arbitration Guidelines), Rules GN. No. 67 of 2007, defines
arbitration as a process in which a person appointed as an arbitrator for resolving a dispute
determines the dispute for the parties. As per Rule 18 (2) the process largely involves a
hearing where parties present evidence and argument.
In other words, arbitration, is a procedure whereby a third party (whether an individual

arbitrator, a board of arbitrators or an arbitration court), not acting as a court of law, is
empowered to make a decision which disposes of the dispute.
In this respect it is very much like a court except that arbitration is more informal and less
adversarial in the manner in which the hearing is conducted.
The Arbitration Act, Cap. 15 R.E 2002 is the principal legislation regulating arbitration in
Tanzania. It regulates both domestic arbitral proceedings and enforcement of foreign arbitral
awards.
However as per Section 92 of the ELRA the Arbitration Act does not apply to mediation
submitted before the commission. It also follows that the provisions of ELRA shall not
prevent the parties from concluding an agreement to submit their dispute to arbitration372.
Arbitration is also governed by the Civil Procedure Code under the rules made under Section
80 to the code which are incorporated in the second schedule that provides for both
arbitration by the order of the Court and that without intervention of the court.
However In Hubert Remmy Lyoba v. KK Security (T) Ltd 373 ; it was held that (i) in
practice, the CPC or any other appropriate procedure is resorted to where no other procedure
372
See Section 93 (1) and (2)
373
Revision No. 51A of 2013: High Court of Tanzania (Labour Division) at Mwanza (Unreported)
170
is prescribed by the Labour Court Rules, G.N. 106/2007. (ii) It is now a binding rule of law
that improper citation makes an application incompetent.
9.4.2.2 Types of Arbitration
Arbitration can be compulsory or voluntary. (i) Compulsory arbitration if a dispute

concerns a matter that the ELRA states must be determined by arbitration, the arbitration is
compulsory. Compulsory arbitration is conducted by the Commission in accordance with the
provisions of Sections 88 to 94 of ELRA.
(ii) If the parties to a dispute agree to refer a dispute to an arbitrator of their own choice, the
arbitration is voluntary. Parties to a dispute may refer the dispute to arbitration rather than
resort to industrial action.
9.4.2.3 Disputes that must be arbitrated
There are two categories of disputes that require compulsory arbitration. They are: (i)
A complaint, Section 88 of the ELRA defines a complaint as any dispute over:- The fairness
of an employee’s termination of employment; any other contravention of this Act and over
any employment or labour matter falling under common law, tortious liability and vicarious
liability or breach contract. (ii) Disputes of interest in essential services.
9.4.2.4 Procedure for referral of dispute for arbitration

If the dispute referred for mediation remains unresolved the Commission is supposed to
appoint an arbitrator to decide the dispute and to determine the time, date and place of
arbitration374. The arbitrator is empowered to conduct decide the appropriate forms of the
proceedings and parties are allowed to call witness, question witness and present
arguments375.
However, due regards should be made to substantial merits of the dispute with minimal legal
formalities376. This legal requirement entails that every arbitrator seized with a labour dispute
is required to deal with the same in a manner that is fairly simple, quick and easy for the
parties to understand.
374
375
376
171
9.4.2.5 Power of arbitrator

An arbitrator has the power to determine how the arbitration should be conducted. The
powers of the Arbitrator include to:-(a) administer an oath or accept an affirmation from any
person called to give evidence; (b) summon a person for questioning, attending a hearing, and
order the person to produce a book, document or object relevant to the dispute, if that
person’s attendance may assist in resolving the dispute377.
9.4.2.6 Representation in arbitration proceedings

The parties may be represented by members or officials of their respective organizations or
by an advocate378. An arbitrator is not empowered to order for costs unless the party or his or
her representative acted in frivolous or vexatious manner379.
9.4.2.7 An award in conclusion of arbitration

After hearing the parties and their arguments, if any, an arbitrator is supposed to issue an
award within 30 days and the award may be executed to the Labour Court as if it was a
decree of a court of law and such award is binding on the parties380. However, execution of
decree should be left to be executed to the District or Court of Resident Magistrate because
the divisions of the Labour Court will be far away from the ordinary litigants in the country-
side areas.
The court in Paul Maira v. Tegeta High School 381 ; discusses the effect of an award
delivered beyond 30 days. It was thus held that the position is that, while delay in delivery of
an award is a material irregularity, it is not of such a nature as would necessitate nullification
of the whole proceedings and award. However, reason for delay should be given and the other
party should not be prejudiced.
9.4.2.8 Correction of errors in an award

Once an award has been issued it becomes fuctus officio however in case the award contains
some clerical or errors arising from any accidental slip or omission, the arbitrator is
empowered under Section 90 of the ELRA to correct such mistake. The correction can be
done suo motto or upon an application of either party to the dispute382. In Pangea Minerals
377
Section 20 of LIA read together with Rule 19 (1) and (2) of the GN No. 67 of 2007
378
Section 88 (7) of the ELRA read together with Rule 21 of the GN. No. 67 of 2007
379
380
Section 88 (9) and Section 89 (1) and (2) of the ELRA read together with Rule 18 (4) of the GN No. 67 of
2007
381
382
See Rule 33 of the GN No. 67 of 2007
172
Ltd vs. Ernest Wililo 383 ; it was held that an arbitrator who issued the award can make
correction of clerical errors only but not content of the award.
9.4.2.9 Setting aside arbitral award

Essentially no appeal lies against an arbitral award though384 such arbitral award may be set
aside in the manner indicated under Section 91 of the ELRA. Rule 18 (6) of the GN No. 67
allows an application to be made to the court to set aside the award on the basis of
irregularities in arbitral proceedings.
Thus any 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 the arbitration award
(a) within six weeks of the date that the award was served on the applicant unless the
alleged defect involves improper procurement; (b) if the alleged defect involves improper
procurement, within six weeks of the date that the applicant discovers that fact.
As per Section 91 (2) of the ELRA, the Labour Court may set aside an arbitration award
made under the Act on grounds that (a) there was misconduct on the part of the arbitrator; (b)
the award was improperly procured.
Under Section 91 (3) of ELRA the Labour Court may stay the enforcement of the award
pending its decision. Nevertheless, as per Section 91 (4) of the ELRA where the award is set
aside, the Labour Court may (a) determine the dispute in the manner it considers appropriate;
(b) make any order it considers appropriate about the procedures to be followed to determine
the dispute.
9.4.2.10 Stages of arbitration process

The arbitration process involve the following five stages :-(a) introduction. (b) Opening
statement and narrowing of issues. (c) Evidence. (d) Argument. (e) Award385.
In stage one the arbitrator is required to welcome and introduce parties, register all parties in
attendance; determine the language; explain arbitration process; disclosure of interest; deal
with preliminary issues386.
In stage two, brief opening statement should contain the following: a statement of the issue or
issues in dispute; brief outline of the dispute, and an indication of the outcome that party will
383
384
385
386
173
seek at the conclusion of the arbitration. Parties to provide copies of each document intended
to be used as evidence387.
In stage three, parties shall attempt to prove their respective cases through evidence and
witnesses shall testify under oath through the following process: examination in chief; cross
examination, and re-examination388.
In stage four, the closing arguments shall contain the following: a restatement of the issue,
issues in dispute; an analysis of the facts, and submissions. Parties shall address the arbitrator
with persuasive versions supported by legal principles389.
In the last stage, an Award shall contain the following: details of the parties; the issue or
issues in dispute; background information; summary of the party’s evidence and arguments;
reasons for the decision; and the order (the precise outcome of the arbitration)390.
9.4.2.11 Consequences of failure to attend arbitrator proceeding

In the event where either of the party to the dispute fails to attend the mediation the law
accords the mediator with two option to deal with such situation. In case it’s a party who
referred the dispute to the commission is the one who failed to appear the mediator may
dismiss the matter or postpone it. It also follows that where it is the party to whom a relief is
claimed is the one who failed to appear the mediator may proceed ex-parte or postpone it391.
In case he has decided to proceed ex-parte the other party would still be required to prove his
case by making an opening statement, presenting his evidence and any argument in support of
its case392.
Also where the proceeding are conducted in absence of the other party there would be no
cross-examination of the witness called and the arbitrator may questions such witness (s) to
enable the arbitrator to decide whether the party has proved its case393.
9.4.2.12 Postponement of the hearing
An arbitrator shall postpone the hearing in the following circumstances: - (a) There is a good
reason to do so. (b) Other parties to the dispute are not unduly prejudiced as a result; and (c)
There is prospects that the dispute may be settled as a result of the postponement394.
387
388
389
390
391
392
393
174
9.4.3 ADJUDICATION
9.4.3.1 Adjudication defined
Like arbitration, adjudication involves the third party determination of a dispute by
adjudicating upon the merits of the parties’ respective cases. The procedure is formal and the
institution setting is generally a court.
9.4.3.2 Adjudication by labour court

The jurisdiction of the Labour Court is established under Section 94 of the ELRA to have
exclusive jurisdiction over application, interpretation and implementation of the provisions of
the Act.
It has powers to decide the appeals from the decisions of the Registrar, review and revise the
arbitrators’ awards made under the Act, decisions of Essential Service Committee, complaints
other than those decided by arbitration, applications for injunction or declaratory order395.
The Court may refuse to hear a complaint if it had not been referred to arbitration while it was
supposed to refer the matter to arbitration or where the application is not urgent396, However,
the court may decide the case if a matter is not referred to the proper channel but the court
shall order costs for one who did not follow the proper channel397.
There is no right to appeal from an award of the arbitrator but any party who alleges a defect
in arbitration under the governance of the Commission may apply to the Labour Court for
revision of the arbitration award. An application must be made within six weeks when such
defect is discovered.
However, the grounds for reviews or revision are restricted to only two grounds namely; if a
party alleges misconduct on the part of arbitrator or that the award was improperly procured.
Then the court shall determine the allegation and make appropriate awards, which includes
setting aside the award398.
In Shabani Mohamed v. Keko Garage Ltd399, it was held that court’s powers to revise
arbitration awards are provided by section 91 (1) of the Act, read together with rule 28 of the
Labour Court Rules, GN 106/2007 (LC rules)
394
395
Section 94 (1) (a)-(f) of the ELRA
396
Section 94 (2) (a)-(c) of the ELRA
397
398
399
Rev. No. 238 of 2009
175
The mechanism of appeal in Tanzania is different from the one that applies in England. In
England there is a right of appeal on a point of law from the Employment Tribunal to the
Employment Appeals Tribunal. From the latter one may appeal to the Court of Appeal and
then to the House of Lords. If a party is not satisfied with the decision of the House of Lords
may make reference to the European Court of Justice where European Law is under
consideration.
9.4.4 DISPUTE RESOLUTION BY COLLECTIVE AGREEMENT

This is a dispute resolution procedure where the parties through a collective agreement
resolve their dispute at the workplace400. In using this procedure the parties can mediate and
arbitrate on disputes under conditions that disputes are mediated or arbitrated in an
independent, neutral, expedited and professional manner401.
A person bound by such a collective agreement may not refer a dispute to the Commission for
mediation and arbitration. But any dispute which is not resolved shall be referred by any party
to the dispute to the mediator, arbitrator or to the Labour Court for adjudication, decision and
execution402.
On application, the Labour Court, may set aside a provision of a collective agreement that
does not comply with subsection403
9.4.5 COMBINED MEDIATION AND ARBITRATION

This is a procedure where arbitration proceedings commence immediately after failure of
mediation under the same person. The rationale for creation of this procedure is none other
than the need to achieve settlement quickly and efficiently.
Often it has been argued that combined mediation-arbitration procedure is more effective
because it maintains pressure on the parties to settle and yet it allows the parties to retain
control of the outcome if mediation fails404.
Under Rule 18 of Labour Institutions (Mediation and Arbitration) Rules (Government

No. 64 of 2007), the CMA may set down a combined mediation and arbitration proceeding on
400
401
402
403
404
Bonaventure Rutinwaet al(Ed), The New Employment and Labour Relations Law in Tanzania, An Analysis
of Labour Legislation in Tanzania, Faculty of law, University of Dar es salaam and Institute of Development
and Labour Law, University of Cape Town, Cape Town, South Africa, 2009, p. 159.
176
the same date, which may be conducted by the same person. The parties may also opt to elect
the same mediator to be their arbitrator under Rule 30 GN No. 67 of 2007405;
In the case of BIDCO Oil and Soap v. Abdu and 3 others406 the High Court, Labour division
took the view that Rule 18 of LI (Mediation and Arbitration) Rules provides for combined
mediation-arbitration proceedings, but, that provision does not override the requirement of
rule 16, which, as a matter of law, mandates a mediator to issue a certificate on failure of
mediation.
405
See Buzwagi Project v Antony Lameck Revision No. 297 of 2008 (unreported); TBL v Charles Malabona
Revision No. 24 of 2007 (unreported); Bulyanhulu Gold Mines Ltd v James Bichuka Labour Revision No. 313
of 2008 (unreported).
406
High Court of Tanzania, Labour Division, Revision No. 11 of 2008.
177
CHAPTER TEN:
LABOUR INSTITUTIONS
10.0 Labour institutions defined

Labour institutions are the primary mechanism for the formulation and implementation of
Governments` labour market policies. They provide the institutional framework and
machinery for effective labour market regulation. In Tanzania the new laws have
established six institutions responsible for their administration these are:-
The Labour Administration and Inspection–headed by the Labour Commissioner; The
Labour, Economic and Social Council–replaces the Labour Advisory Board, it is an
advisory organ to the government;
The Commission for Mediation and Arbitration–responsible for dispute resolution; The
Essential Services Committee–responsible for designating essential services in which strikes
and lock-outs are generally prohibited;
Wage Boards–they are ad hoc organs responsible for recommending sectorial minimum
wages and terms and conditions of employment; The Labour Court–responsible for
adjudicating all civil labour matters. Appeals may lie to the Court of Appeal of Tanzania.
10.1 Labour Dispute Settlement Bodies in Zanzibar
In Zanzibar, the Industrial Court is empowered to determine labour disputes referred to it
under the Labour Relations Act (2005).407 The Zanzibar Industrial Court is presided over
by a judge appointed by the President of Zanzibar from amongst the judges or persons
qualified to be judges of the High Court after consultation with the Chief Justice of
Zanzibar.408 When determining labour disputes, the judge sits with two assessors appointed
by the Chief Justice from each of the panel of assessors submitted by employers’
organisations and a federation of trade unions.409
Below the Zanzibar Industrial Court there is the Dispute Handling Unit (DHU) established
by the Labour Commission to deal with all labour disputes referred to the Commission under
the Labour Relations Act.410 The DHU determines labour disputes by first mediation411; and
where mediation fails, by arbitration.412
407
Act No. 1 of 2005.
408
Section 81(1)(a) of the Labor Relations Act (2005)
409
Ibid. Section 81(1) (b).
410
Ibid. Section 72(1).
178
10.2 LABOUR ECONOMIC AND SOCIAL COUNCIL

10.2.1 Establishment of LESCO
The Labour Institution Act under Section 3 establishes a tripartite institution, the Labour,
Economics and Social Council (hereinafter called LESCO). Essentially the council is a 16
member’s council with 4 representatives each from government, employer and working
groups. Four other members appointed for their expertise in labour and economic and social
policy formulation.
The council advices the minister on national labour market policy any proposed labour law
before it is submitted to the cabinet. It also collects and compiles information and statistics
relating to administration of the labour law. The council replaces the Labour Advisory Board,
it is an advisory organ to the government;
10.2.2 Composition of the LESCO
The composition of the council is provided for under Section 4 of LIA. From this provision
the council is composed of several appointees of minister which includes; A Chair Person
who by virtue of the of provision of Section 4 (1) (a) (i) and (b) of the ELRA shall not be-
(i) a member, official or office bearer of a trade union, employers association or federation; or
(ii) an employee in the public service of the Government of the United Republic.
Apart from the chairman, the council is also composed of sixteen other members comprising
(i) The Permanent Secretary and three other members to represent the interests of the
Government; (ii) Four members to represent the interests of employers; (iii) Four members to
represent the interests of employees; (iv) Four members appointed because of their expertise
in labour, economic, and social policy formulation413.
The law under Section 4 (2) of the LIA requires the minister prior to appoint the member of
the council to invite by notice in writing nomination from (a) Registered trade unions and
federations of trade unions, if the member is to represent employees; or (b) Registered
employers’ associations and federations of employers’ associations, if the member is to
represent employers; (c) Those members of the Council representing the interests of
employers and employees in respect of the members.
411
412
413
Section 4 (b) (i)-(iv) of LIA
179
However with the approval of the Minister, the Council may co-opt other members to assist it
in the performance of its functions, but such members are devoid with the right to vote at
meetings of the council.
10.2.3 Function and power of the LESCO
The Council’s functions as per Section 5 of LIA is to promote economic growth, promotion
of labour policy, to advise the Minister on the labour market policy, prevention of
unemployment, code of good conduct, any issue arising from ILO, to nominate the assessors,
to evaluate the efficacy of the labour legislations affecting social policy ' just to mention few.
In discharging its function the Council may conduct an investigation as it may consider
necessary; research into labour, economic, and social policy414. Section 5 (3) of LIA allows
the council to formulate its own rules for performance of its functions.
10.2.4 Qualifications for chairman and member of the council

The qualification for chairman of the Council are provided for under Regulation 3 (1) (a)-(c)
of the Labour Institutions (General) Regulations 2017 (GN 45 2017).
According to this provision the chairman shall possess the following qualifications: (a)
academic qualifications of at least masters’ degree in a relevant field; (b) working experience
of at least five years in the labour or related field; and (c) general abilities and capacities in
the relevant field and in managing national consultative bodies.
The qualification for those sixteen members are provided for under Regulation 3 (2) (a)-(c)
of the Labour Institutions (General) Regulations 2017 (GN 45 2017).
From the wording of this provision the members shall possess the following qualifications:
(a) working experience of at least three years in the labour or related field; (b) integrity; and
(c) the expertise in Labour, Economic and Social fields.
The minister is charged with the duty under Regulation 3 (3) of the Labour Institutions
(General) Regulations 2017 (GN 45 2017), to ensure equal and fair representation prevail
between registered trade unions and federations of trade unions and registered employers’
associations and federations of employers’ associations for employers and employees
respectively.
414
Section 5 (2) (a) and (b) of LIA
180
10.2.5 Tenure of the office and remuneration of the members

The appointees occupy the office for a term of 3 years and may be re-appointed at the end of
the term of office415. Accordingly, by virtue of Section 6 (2) of the LIA, a member of the
Council shall be paid allowances for attending meetings, travel and subsistence at a rate to be
determined by the Minister on the recommendations of the Permanent Secretary after
consultation with the Permanent Secretary of Office of Public Service Management.
10.2.6 Removal of the members and filling of vacancies

The LIA under Section 7 enumerate several circumstances that may warrant the removal of
the member from the office. By virtue of this provision a member may be removed from the
office on the following grounds;
(a) Has resigned in and delivered the resignation to the permanent secretary (b) where a
member is no longer represents the interest of employer or employees provided that, removal
of a member on this ground shall be done only if requested by the constituency whose
interests that member represents;
(c) A member is guilty (d) is not able to perform the functions of a member (due to illness or
any other reason); (e) is absent from three meetings of the Council without permission or
good cause; (f) is declared bankrupt; or (g) is convicted of a criminal offence and sentenced
to imprisonment without an option of a fine.
In the event where the member has been removed from the office on any of the above
stipulated grounds the law under Section 7 (3) of the LIA requires the minister to appoint a
member to fill that vacancy for the unexpired term of office and the appointment to comply
with the provisions of Section 4 of the Act.
10.2.7 Committees of the Council

For the purpose of performing its functions the council is empowered under Section 8 of LIA
to establish a committee to perform specific functions of the council and such committee may
be assigned any of the council functions on conditions determined by the council and such
delegation must be sanctioned by the minister416.
The committee established under this aspect is a tripartite organ composed of at least three of
its own members; and may include any number of other committee members, but such
415
416
Section 8 (1) (a)-(b) of the LIA
181
members are devoid with the right to vote in meetings of the committee if that committee has
been assigned functions in terms of subsection (1) (b)417.
10.2.8 Meetings of the Council

As per Section 9 (1) (a)-(c) of the LIA meetings of the council are of three kinds that is
meetings called by the chairman at least thrice in the calendar year, Meetings called in
accordance to the council rules and the special meetings which may be convened at request of
the members or the minister.
All the meetings are required to be chaired by the chairperson but only when he is present. In
case he is absent the members may elect a chairperson from among their number to chair the
meeting418.
As per Section 9 (4) of the LIA, the majority of the members of the Council constitute a
quorum provided that there is at least one member representing each of the following
interests- (a) the government; (b) employers; and (c) employees.
The decision arrived by majority is deemed to be the decision of the council and generally the
decision is reached by means of voting and in the event of equality of the vote the member
presiding at the meeting shall cast his vote on addition to his deliberative vote419. The council
is required under Section 9 (7) of LIA to keep a written record of its meetings.
10.2.9 Administration of the Council

The permanent Secretary is required to provide members of staff in the Ministry available to
be a secretariat of the Council in the performance of its functions; and may designate an
officer in the Ministry to serve as a Secretary to the Council.
However the Council may contract with persons to assist it in the performance of its
functions- (a) after consultation with the Permanent Secretary; and (b) with the approval of
the Permanent Secretary as to the conditions of the contract420.
10.2.10Annual report of the Council

Section 11 of the LIA requires the Council to submit an annual report of its activities in each
calendar year to the Minister before thirtieth June of the next year.
417
Section 8 (2) (a)-(c) of the LIA
418
Section 9 (2) and (3) of LIA
419
420
182
10.3 COMMISSION FOR MEDIATION AND ARBITRATION
10.3.1 Establishment of CMA

Commission for Mediation and Arbitration; this is tripartite commission established under
Section 12 of Labour Institution Act (No. 7 of 2004). In this section, the Act state that;
“there is here by establishment a Commission for Mediation and Arbitration (hereinafter
referred to as CMA).
Between 2007 and 2011, the Tanzania managed to establish a CMA office in every region in
Tanzania Mainland. This means that all persons or institutions with labour disputes can easily
access the CMA to resolve their disputes.
The commission is an independent department of government and in actual fact an

independent of any political party, trade union, employer’s association, and federation of
trade unions or employer’s association. That being the case, in discharging its function the
commission is not under direction or control of any person or authority421.
However the role of government, public authorities and other registered organisation and
federation toward the commission is only limited to the provision of assistance and
cooperation as may be required to ensure effectiveness operation of CMA422.
The provision of the LIA together with any provision of written law relating to public
departments applies to the commission and any office established under the commission423.
Mediation of labour disputes is obligatory; in the case of Hector Sequeiraa v. Serengeti

Breweries Ltd424, the Labour Court dismissed as ‘incompetent’ a labour complaint that was
filed directly in the Court without first pursuing mandatory CMA mediation. Indeed, the
significance of mediation cannot be ignored. There is an increasing trend by employers to
settle labour disputes during CMA mediation, especially where the employer’s case is
apparently weaker.
The commission has the power to contract under Section 25 of the LIA and in that respect
the Commission may contract with any person to- (a) do work for the Commission; and (b)
perform any function on behalf of the Commission. (2) Any person with whom the
Commission contracts shall be bound by the requirements of independence that binds the
Commission under section 13.
421
Section 13 (1) (a)-(c) of the LIA
422
Section 13 (2) of the LIA
423
424
High Court of Tanzania, Labour Division, Labour Complaint No. 20 of 2009
183
10.3.2 JURISDICTION OF CMA

In The Parastatal Pension Fund vs. Siriel Mchembe 425 , The court in this case also
considered the issue as to whether the CMA has jurisdiction to entertain a claim of general
damages in labour matters based on breach of contract, tort or common law?
Held: - (iv) CMA has jurisdiction to entertain labour claims arising from contract, tort,
common law or any other law or agreement.
10.3.2.1 Pecuniary Jurisdiction of CMA

In Francisca K. Muindi v. The Tanzania Ports Authority (TPA) and Two Others 426, it
was amply stated that (i) CMA enjoys unlimited pecuniary jurisdiction. The jurisdiction is
based on the subject matter and not pecuniary value of the matter and/or dispute. (ii) It is
wrong to file a complaint in the Labour Court at the first instance.
10.3.2.2 Territorial jurisdiction of CMA

In Christian Michael v. Ujenzi Secondary School 427 ; it was stated that CMA has no
territorial jurisdiction to entertain a dispute arose in another district unless leave to do so is
granted.
10.3.3 Function of the commission

The functions of the commission is to mediate any dispute referred to it in term of any labour
law; to determine any dispute referred to it by Arbitration if a labour law requires the dispute
to be determined by arbitration, the parties to the dispute agree to it being determined by
Arbitrator or if the labour court refers the dispute to the commission to be determined by
arbitration in terms of section 94(3) (a) (ii) of the Employment and Labour Relation Act,
2004428.
Paragraph (c) to Section 14 (1) of the LIA which entrusted the CMA with the function to
facilitate the establishment of a forum for workers participation, if requested to do so in terms
of section 72 of the Employment and Labour Relations Act, was deleted by virtue of Section
12 of The Employment and Labour Laws (Miscellaneous Amendments) Act, 2015.
The amending Section also deleted Subsection 2 of Section 14 of LIA and substitutes it with
the following function “The Commission may offer to mediate a dispute that has not been
referred to it.”
425
426
MISC Application No. 95 of 2014: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported).
427
428
Section 14 (a) and (b) (i)-(iii)
184
The commission is empowered under Section 26 (1) of the LIA to delegate in writing any of
its function to any member of the commission, the director, a committee of the commission
and a mediator or arbitrator. Such delegation may be attached by any conditions and the
commission is empowered also to amend or revoke such delegation at any time. The
commission though has delegated its function but still it has a control over them as the
commission under Section 26 (4) of the LIA may vary or set aside any decision made by a
person acting under delegation.
However the commission is bared to delegate the functions mentioned under Section 26 (2)
(a)-(c) of the LIA. Those functions includes (a) appointing the director; (b) appointing
mediator and arbitrators under section 19; (c) approving the annual or supplementary budget
for submission to the Minister in terms of section 23;
10.3.4 Power of the Commission

The power of the commission are listed under Section 15 (1) of LIA which includes to (a)
appoint a director, mediators and arbitrators; (b) assign mediators and arbitrators to mediate
and arbitrate disputes in accordance with the provisions of any labour law;
(c) establish offices in areas and at administrative levels as it may determine; (d) establish
divisions of the Commission and assign particular responsibilities to them; (e) make rules to
regulate among others its internal administration; the practice and procedure for mediating
disputes; the practice and procedure for arbitrating disputes; the practice and procedure of the
Essential Services Committee; publish guidelines; (g) publish a code of ethics for mediators
and arbitrators.
10.3.5 Composition of the Commission

The compositions of the CMA are stipulated under Section 16 of LIA. According to this
provision the commission consist of a chair person appointed by the president from a list
of three person recommended by the council, Six other commissioners429.
A chairperson appointed shall not be a member, official or office bearer of trade union,
employers association or federation or an employee in the public services and he shall be
appointed from among persons who have knowledge, experience and considerable degree of
involvement in labour matters 430
The commission also consists of two commissioners proposed by members of the council
representing the interests of employees; two commissioners proposed by members of the
429
Section 16 (1) (a) (I) (ii) and (b)
430
Section 16 (2) of LIA
185
council representing the interests of employers and two commissioners representing the
interest of the government431. They are also appointed by president.
The appointment of the chair person and those six other commissioners are made on the
recommendation of the minister after the same has consulted with the council432
The qualification for chairman and those other six commissioner of the Council are provided
for under Regulation 3 (1) (a)-(c) of the Labour Institutions (General) Regulations 2017
(GN 45 2017).
According to this provision the chairman shall possess the following qualifications: (a)
academic qualifications of at least masters’ degree in a relevant field; (b) working experience
of at least five years in the labour or related field; and (c) general abilities and capacities in
the relevant field and in managing national consultative bodies.
The qualification for six commissioners are provided for under Regulation 3 (2) (a)-(c) of
the Labour Institutions (General) Regulations 2017 (GN 45 2017). From the wording of
this provision the members shall possess the following qualifications: (a) working experience
of at least three years in the labour or related field; (b) integrity; and (c) the expertise in
Labour, Economic and Social fields433.
10.3.6 Tenure and condition of service of commissioners

The tenure to serve as a commissioner is limited to three years though one should also be
eligible for re-appointment at the end of the term of office434. The office of commissioner is
not a full time office and thus a commissioner is not paid salary but instead he is paid
allowances for attending meetings, travel and subsistence at a rate determined by the Minister
on the recommendation of the Permanent Secretary after consultation with the Permanent
Secretary after consultation with the Permanent Secretary of the Office of Public Service
Management435.
The office of commissioner becomes vacant in the event where the Commissioner (a) resigns;
(b) is removed from office in terms of subsection (4)436. As per Section 17 (4) of the LIA, the
commissioner may be removed from the office by the president upon the recommendation of
431
432
433
See Regulation 4 thereof
434
435
436
186
the minister437 if the Commissioner- (a) no longer represents the interest in respect of which
the member was appointed in terms of section 16(3); Provided that, removal of a
Commissioner on this ground shall be done only if requested by the constituency whose
interests that Commissioner represents;
(b) is guilty of serious misconduct relating to the performance of the Commissioner’s

functions; (c) is not able to perform the functions of a Commissioner (due to illness or any
other reason); (d) is absent from three consecutive meetings of the Commission without
permission or good cause; (e) is declared bankrupt; (f) or is convicted of a criminal offence
and sentenced to imprisonment without an option of a fine.
The president is required to make an appointment of the commissioners whenever that office
becomes vacant and the appointed commissioner in this respect shall occupy the vacant for
unexpired term and the president is required when making such appointment to comply with
the provision of section 16 (3) of the Act438.
10.3.7 Director of the Commission

The CMA also is mandated to appoint a director, mediators and arbitrators. The director of
the commission is appointed after consultation with the minister by the commission from
among persons who are knowledgeable, skilled and experienced in labour relations and
dispute prevention and resolution439.
The appointed director of the commission who is chief executive of the commission is
entrusted with several functions which includes (a) be responsible for carrying out the policy
decisions of the Cap. 366 and the day to day administration and management of the affairs of
the Commission; (b) perform the functions that are conferred on the Director by any labour
law or delegated to the Director by the Commission; (c) may mediate and arbitrate disputes
referred to the Commission under the Employment and Labour Relations Act440.
However in terms of Section 18 (5) of LIA the Director, in consultation with the
Commission, may delegate any of his functions or the function of the Commission to any
mediator, arbitrator or member of staff.
437
As per Section 17 (5) is required to consult with the Council before making a recommendation to the
President to remove a Commissioner from office.
438
439
440
187
The director shall unless in any particular case the commission otherwise directs attend all
meetings of the commission but only devoid the right to vote441. The Director is also given
power under Section 18 (6) of LIA, if it is for public interest to refer any dispute referred to
the CMA to the Labour Court for its decision.
The director is given power under Section 22 of LIA to appoint the stuffs of the commission
after consulting the commission. The remuneration of the said stuffs is determined by the
commission but after consultation with the office of the Public Service Management 442. The
Director is charged also with the duty to control and discipline such stuffs443.
10.3.8 Mediators and Arbitrators

The power to appoint mediators and arbitrators either on full-time basis or part-time is vested
in the CMA under Section 19 (1) of the Labour Institutions Act, in consultation with the
Office of the Public Service Management. 444 The CMA shall have regard to the need to
constitute an independent and professional body in appointing mediators; and it shall prepare
a code of conduct445 for the said cadre, together with arbitrators serving on the CMA 446. The
commission is responsible for the control and discipline of mediators and arbitrators so long
as that control doesn’t amount to interference of their independence447.
The mediators and arbitrator together with the chair person and director of the commission
are required under Section 21 of the LIA to take an oath before entering the office and
subscribe to an oath for due performance of the functions of office448
The Commission is also empowered under Section 19 (6) of the LIA to remove the
arbitrators and mediators where the followings are evident (a) serious misconduct relating to
the functions of a mediator or arbitrator; (b) incapacity relating to the functions of a mediator
or arbitrator; (c) a material violation of the code of conduct referred to in subsection (4). Cap.
366.
Section 19 (7) of LIA makes provision for one to appointed as both mediator and arbitrator
and thus perform the dual role at the same time. Such person shall have the power to
441
Section 18 (4)
442
443
444
Section 19(2) of the LIA
445
See the Labour Institutions Act (Ethics and Code of Conduct for Mediators and Arbitrators) Rules (2007),
GN. No. 66, dated 23rd March 2007.
446
Section 19(3) and (4) of the LIA
447
448
See the schedule of the LIA
188
administer an oath or accept an affirmation from any person called to give evidence; and
question any person about any matter relevant to the dispute.
10.3.9 Powers of Mediators and Arbitrators

The powers of the Mediators and Arbitrator include to:-(a) administer an oath or accept an
affirmation from any person called to give evidence; (b) summon a person for questioning,
attending a hearing, and order the person to produce a book, document or object relevant to
the dispute, if that person’s attendance may assist in resolving the dispute449.
10.3.10 Witnesses under CMA

The witness fee determined in respect as to who called a particular witness to appear before
the commission. Cost may be borne to the party of the dispute if he is the one called that
witness and also the cost may be borne to the Director of the commission if a particular
witness was summoned by the commission in its own motion 450 . Also in fitting case the
commission may also order the cost to be paid by the Director of the commission451.
Section 20 (5) (a)-(i) of LIA makes several acts if done by a witness to be an offence. For
example it is an offence for a witness if, after having been summoned to appear before a
mediator or arbitrator, the person, without good cause, fails to appear at the place, date and
time stated in the summons; or if, after having appeared in response to a summons, the person
fails to remain in attendance until excused by the mediator or arbitrator;
It is also an offence for witness to refuse to take the oath or to make an affirmation as a
witness when a mediator or arbitrator so requires; to refuse to answer any question fully or to
the best of that person’s knowledge and belief subject to any law entitling that person to
refuse to do so;
Nevertheless, it’s an offence if the person, without good cause, fails to produce any book,
document or object specified in the summons; or if the person wilfully hinders a mediator or
arbitrator in performing any function conferred by or in terms of any labour law;
10.3.11 Accounts and audit of the commission

The commission is required under Section 24 (1) (a)-(d) of the LIA to keep proper books of
accounts and records of its income, expenditure, assets and liabilities; to take all reasonable
measures to ensure that the resources of the “Commission are safeguarded and utilised in the
most economic, efficient and effective manner; prepare appropriation accounts in accordance
449
Section 20 of LIA
450
451
189
with the Public Finance Act, 2001; prepare annual accounts in accordance with generally
accepted accounting practice in respect of all its transactions.
The accounts of the commission are audited by the controller and Auditor General in each
financial year and after such audit the controller and Auditor General is required to certify the
accounts and submitted the report to the commission452.
10.3.12 Limitation of Liability and disclosure

As per Section 27 of the LIA the Commission shall be liable for any loss suffered by any
person as a result of any act performed or omitted in good faith in the course of exercising the
functions of the Commission. Section 27 (2) of the LIA prohibits the commission453 to make
any disclosure to any person, or in any court, any information or document acquired on a
confidential basis or without prejudice in the course of mediation.
10.3.13 Annual report of the commission

The commission is required under Section 28 (1) of the LIA, Within six months after the end
of the financial year, to prepare and submit to the National Assembly through the Minister an
annual report in respect of that year containing- (a) a copy if the audited accounts of the
Commission; (b) the auditor’s report on those accounts; (c) a report on the operations of the
commission; (d) and any other information that the Minister may require. The Minister shall
table the report with the National Assembly as soon as reasonably practicable454.
10.4 ESSENTIAL SERVICE COMMITTEE (ESC)

The committee is established under Section 29 of the LIA and is composed of tripartite
members. Essential Services in terms of Section 77 (2) of the ELRA are; 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 services. This committee has the authority to deem
periodically which services are essential.
10.4.1 Functions of the ESC

According to Section 30 of LIA the ESC is tasked with two major functions which includes
to designate essential services in terms of Section 76 (3) of the ELRA and to determine
dispute about whether or not an employee or employer is engaged in a designated essential
service.
452
453
For the purpose of Section 27, “Commission” includes the Commission, a Commissioner and any person
employed, appointed or contracted by the Commission.
454
190
10.4.2 Composition of the ESC

The members of the committee are appointed by minister but after consultation with the
council. Thus a minister may appoint five members with knowledge and experience of labour
law and labour relations as members of the Essential Service Committee; appoint one such
member to be a Chairperson of the Committee455.
10.4.3 Tenure of office for chairperson and members

The chairperson and members of the ESC hold the office for three years and they may be re-
appointed at the end of the term of office456. Section 13 of the Employment and Labour
Laws (Miscellaneous Amendment) Act of 2015 amended the provision of Section 31 of
the LIA by adding immediately after paragraph (b) of subsection (2) the following new
paragraph: “(c) before assuming duties of office shall take and subscribe to an oath or
affirmation. Thus the chairperson and the members by virtue of the said amendment are
required to take and subscribe to an oath or affirmation before assuming the duties.
10.4.4 Allowances to the member of the ESC

The members of the ESC are paid allowances for attending meetings, travel and subsistence.
Such allowances are determined by the minister on the recommendation of the Permanent
Secretary457. The permanent Secretary is required before making such recommendation to the
minister to consult the permanent Secretary of the office of public service management 458.
10.4.5 Removal of the members of ESC

The members can be removed from the office by the minister only if the following incidents
occurs; (a) has resigned in writing and delivered the resignation to the Permanent Secretary,
(b) is guilty of serious misconduct relating to the performance of the member’s functions; (c)
is not able to perform the functions of a member (due to illness or any other reason); or (d) is
absent from three consecutive meetings of the Essential Services Committee without
permission or good cause; (e) is declared bankrupt; (f) is convicted of a criminal offence and
sentenced to imprisonment without an option of a fine459. The minister may fill the vacancy
by appointing a member to fill that vacancy for the remained time460.
455
456
457
458
459
460
191
10.4.6 Powers of the ESC

The committee is bestowed with numerous powers, thus the committee may (a) summon for
questioning any person to attend a hearing if the Committee considers that, that person’s
attendance will assist in the performance of its functions; (b) summon any person, who is
believed to have in his possession or control of any book, document or object relevant to the
performance of its functions, to appear before the Committee to be questioned and to produce
the book, document or object; (c) administer an oath or accept an affirmation from any person
called to give evidence; and (d) question any person about any matter relevant to the
performance of its functions461.
However the said powers shall not require any person to answer any question or furnish any
information, book, and document or object if there is a lawful ground for not doing so462. The
Commission shall pay the prescribed witness fee to each person who appears before a
mediator or arbitrator in response to a subpoena issued463.
10.4.7 Administration of the ESC

The Essential Services Committee may make rules for the conduct of its meetings464. The
Commission shall provide staff available to be a Secretariat of the Essential Services
Committee to assist it in the performance of its functions465.
10.5 WAGE BOARDS (WB)

10.5.1 Establishment of the wage board
Appointment of Wage boards is done by the Minister466 responsible for Labour matters as
provided for under Section 35 of the LIA. The Boards are vested with powers to investigate
on remuneration, terms and condition of employment in a given sector and report back to the
Minister on their findings and recommendations467. The said Boards are tripartite in nature.
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 members
of these boards are appointed by the Minister. The wage Boards fix and revise various
461
Section 32 (1) (a)-(d) of the LIA
462
463
464
465
466
As per Section 34 ‘Minister’ means- (a) the Minister for the time being responsible for the public service if
the sector in respect of which the provisions of this Part are to apply is the whole or part of the public service; or
(b) the Minister for the time being responsible for labour matters in respect of any other sector.
467
Section 36 (1) (a)-(c) of LIA
192
components of wages like basic pay, dearness allowance, incentive earnings, overtime pay,
house rent allowance and all other allowance.
The minister is required to publish a notice in the gazette prescribing among others (a) the
names of the individuals appointed as members of the wage board; (b) the terms of reference
of the investigation including- (i) the sector and area to be investigated; (ii) the categories and
classes of employees to be included in the investigation; (iii) the matters to be investigated;
and (c) an invitation to members of the public to make written representation within a period
prescribed in the notice468.
Generally speaking this is one of the important institutions set up by the Government of
Tanzanian for fixation and revision of wages. Separate wage boards are set for separate
industries. Government of Tanzania stated instituting Wage Boards in accordance with the
recommendations of the Second Five Year Plan, which were reiterated by Third Five Plan.
10.5.2 Factor to be taken into account when fixing wage rates

The Wage Boards have to study various factors before making its recommendation. The
recommendations of the Wage Board are first referred to the Government for its acceptance.
The Government may accept with or without modification or the recommendations of the
Wage Board. The recommendations accepted by the Government are enforceable by the
parties concerned.
Thus the Wage Boards take the following factors into fixing or revising the wages in various
industries: 1) Job evaluation. 2) Wage rates for similar jobs in comparable industries. 3)
Employee’s productivity. 4) Firm’s ability to pay. 5) Various wage legislations. 6) Existing
level of wage differentials and their desirability 7) Government’s objectives regarding social
justice, social equality, economic justice and economic quality 8) Place of industry in the
economy and society of the country and the region. 9) Need for incentives, improvement in
productivity etc.
10.5.3 Composition of the wage board

Initially the compositions of the board were provided for under Section 35 (3) of the LIA but
the said section has been amended by Section 14 of the Employment and Labour Laws
(Miscellaneous Amendment) Act of 2015. Thus the amending Section provides the
composition of their board in respect to private sectors and public sectors.
468
193
By virtue of that provision a wage board formed by private sector shall be composed of (i) the
chairman; (ii) the Secretary; (iii) four members recommended by the council to represent
interests of employees; (iv) four members recommended by the Council to represent interests
of employer; (v) four members recommended by the Council to represent interests of
Government; and (vi) three members nominated by virtue of their professions, appointed by
the Minister responsible for labour;
Accordingly, the wage board formed by public sector shall be composed of (i) the Chairman;
(ii) the Secretary; (iii) four members recommended by the council to represent interests of
employees; (iv) four members recommended by the council to represent interests of
Government; (v) two members nominated by virtue of their professions, appointed by the
Minister responsible for Public Service.
10.5.4 Tenure of office for the member of the board

The above members appointed shall not be the member of the council 469 . The appointed
members are required to consider the terms and conditions as may be prescribed by
regulations470. The tenure of office for the member of the wage board is unspecified but they
shall hold the office until there minister discharge the wage board of where the minister
remove the member from the office471.
However under Regulation 5 of the Labour Institutions (General) Regulations 2017 (GN
45 2017) a member of the wage board shall hold office for a term not exceeding three years
and may be re-appointed for a further one term not exceeding three years.
10.5.5 Removal of the members from the office

The minister may remove any member of the board at any time if the member (i) has resigned
in writing and delivered the resignation to the Permanent Secretary; (ii) is guilty of serious
misconduct relating to the performance of a member’s functions; (iii) is not able to perform
the functions of a member (due to illness or any other reason); (iv) is absent from three
consecutive meetings of the wage board without permission or good cause; (v) is declared
bankrupt; (vi) is convicted of a criminal offence and sentenced to imprisonment without the
option of a fine472. The vacancies are filled by an appointment of another member by the
minister473.
469
Section 35 (4) of the LIA as added by the amendment
470
Section 35 (5) of LIA as added by the amendment
471
Section 35 (6) of the LIA as it has been renumbered by an amendment
472
473
194
10.5.6 Allowances to the member of the board

The members of the board are paid allowances for attending meetings. Such allowances are
determined by the minister on the recommendation of the Permanent Secretary 474 . The
permanent Secretary is required before making such recommendation to the minister to
consult the permanent Secretary of the office of public service management475.
10.5.7 Function and power of the board

As stated earlier the Boards are vested with powers to investigate on remuneration, terms and
condition of employment in a given sector, to promote collective bargaining between
registered trade unions, employers and registered employer’s associations and report back to
the Minister on their findings and recommendations476.
In discharging its functions the board is given also numerous powers. Thus it may (a)
question any person who may be able to provide information relevant to any investigation; (b)
require, in writing, any person to furnish any information, book, document or object that is
material to the investigation; (c) conduct public hearings; (d) facilitate negotiations on a
minimum remuneration and conditions of employment between registered trade unions,
employers and registered employers’ associations in the sector477. In facilitating negotiations
on minimum remuneration and condition of employment the commission is required to
provide a mediator to facilitate such negotiations478.
10.5.8 Investigation by the board

When discharging its duty on investigating on remuneration and terms and conditions of the
employment the board is obliged to take number of intricate factors. Thus the wage board
shall take into account (a) Articles 22 and 23 of the Constitution of the United Republic of
Tanzania; (b) any applicable Convention or recommendation of the International Labour
organisation, whether or not the United Republic of Tanzania is a signatory to the convention;
(c) all representations and other information submitted to it;
(d) all relevant factors including- (i) the ability of employers to carry on their businesses
successfully; (ii) the operation of small, medium and micro-enterprises; (iii) the operation of
new enterprises; (iv) the cost of living; (v) the alleviation of poverty; (vi) the minimum
subsistence level; (vii) the remuneration and terms and conditions of employment of
employees employed in the East African Community in the sector; (viii) any collective
474
475
476
Section 36 (1) (a)-(c) of LIA
477
478
195
agreements providing for remuneration and terms and conditions of employment in the
sector; (ix) the likely impact of any proposed condition of employment on current
employment or the creation of employment; (x) any other relevant matter479.
As per Regulation 7 of the Labour Institutions (General) Regulations 2017 (GN 45 2017),
the wage boards may, when conducting investigations, consult with the relevant authorities or
professional bodies on economic, social and labour matters.
10.5.9 Report of the wage board

On completion of an investigation and after considering all representation made to it the wage
board is required to prepare and submit a report to the minister. The report shall consist of (a)
the board’s findings; (b) its recommendations on- (i) minimum wage for the sector and area;
(ii) any term and condition of employment particular to the sector or area, including any
variation of a basic employment condition referred to in section 9 of the Employment and
Labour Relations Act480.
If as a result of any facilitation of the part of a wage board, the registered trade unions,
employer organisations and employers in the sector conclude a collective agreement on the
matters referred to in subsection (1) (b), the Board- (a) shall recommend the extension of that
agreement to all employers and employees in the sector and area if the parties to the
agreement are sufficiently representative of employers and employees in the sector and area;
or (b) may recommend the extension of the agreement or provisions of the agreement to all
employers in the sector and area if the parties to the agreement are not sufficiently
representative of employers and employees in the sector and area481.
In the event where a member of a wage board does not agree with a board’s report or any part
thereof, he shall submit a minority report which shall be accompanied with the board’s
report482.
10.5.10 MAKING OF THE WAGE ORDER

After considering the report and recommendations of the wage board and the council, the
Minister is required make a wage order determining the minimum wage and other conditions
of employment for employees in any sector and area of economy483. The wage order shall be
479
Section 37 of the LIA
480
Section 38 of the LIA
481
482
483
Section 39 (1) of LIA as amended by Section 15 (a) of the Employment and Labour Laws (Miscellaneous
Amendment) Act of 2015
196
made (a) in accordance with the recommendations; (b) by notice in the Gazette; and (c) with
effect from a date specified in the Gazette.
In case the Minister does not accept a recommendation of the wage board, the Minister may
refer the recommendations back to the board for its reconsideration indicating the matters on
which the Minister disagrees with the board484.
10.5.11Matter to be included in the wage order

A wage order may, in respect or a sector and area- (a) set minimum rates of remuneration; (b)
provide for the adjustment of minimum rates of remuneration; (c) set minimum terms and
conditions of employment including any variation of basic conditions for employment
referred to in section 13 of the Employment and Labour Relations Act; (d) regulate task based
work, piece work, homework and contract work; (e) set minimum standards for housing and
sanitation for employees who reside on the premises of the employer; (f) specify minimum
conditions for trainees; (g) regulate workplace training and education; (h) regulate any other
matter concerning remuneration or other terms and conditions of employment 485 . Any
provision of a wage order may apply to all or some of the employers and employees in the
sector and area concerned486.
10.5.12Recourse where the minister fails to make a wage order

Initially in the event where the minister does not make a wage order within Sixty days after
the receipt of the boards report or decides not to make a wage order on the basis of the
recommendation by the wage board, the minister was required within fourteen days to table
the report of the recommendations by the wage board, to the National Assembly, and if
applicable he shall attach reasons for not making an order487.
However the above position has been somewhat modified by the amendment done to Section
39 (5). Thus Section 15 of the of the Employment and Labour Laws (Miscellaneous
Amendment) Act of 2015, deleted the provisions under Subsection 5 and substitute it
with the following provisions “(5) Where the Minister fails to make a wage order within
thirty days after receipt of the wage board and council’s report, the aggrieved party may,
within thirty days, file an application before the Labour Court which shall compel the
Minister to make the order with sixty days from the date of filing the application.”
484
Section 39 (5) of the LIA it has been renumbered by the amendment
485
Section 39 (3) of the LIA as it has been renumbered by the amendment
486
Section 39 (4) of the LIA as it has been renumbered by the amendment
487
Section 39 (5) of LIA before it was amended
197
Thus from the provision of amending Section it’s obvious that the period for minister to make
a wage order has been reduced from sixty to thirty and the procedures of referring the matter
to the national assembly has been dispensed with filling an application to the labour court to
compelling the minister to make an order within sixty days from the date of filling the
application.
Every employer shall keep workers informed of the minimum wage rates in force by posting
notices at the workplace or by any other more effective means488.
10.5.13Period of operation of wage order

The provisions of a wage order remain binding until they are- (a) suspended or cancelled by
the Minister 489 (b) amended or superseded by a new wage order; or (c) superseded by a
collective agreement490.
Its apparent the wage order is reviewed within 3 years from date of issue, seeking to
provide more favourable wage, allowances, terms and conditions of employment to be
negotiated annually between employers and employees at workplace or at any level in the
respective organisation491.
As indicated above, the wage order is reviewed every 3 years. Since the last wage order was
that of 2013, review was supposed to be conducted in 2016, but it was not done and thus 2013
Wage Order continued to exist.
10.5.14Legal effect of the wage order

The wage order is binding on all employers and employees as indicated in the notice492. In the
event where the matter regulated in Part III of the Employment and Labour Relations Act
(which is on employment standard), is also regulated by a wage order, the provisions in the
order shall prevail493.
In case the worker is being paid wages below the prescribed minimum wage by the order, he
may apply to the District Court or Resident Magistrate’s Court for the recovery of the amount
by which the worker was underpaid494.
488
489
Section 40 (2) of the LIA provides that The Minister, after consulting the wage board and the parties to a
wage order, may suspend or cancel all or part of the order by publishing a notice in the Gazette.
490
491
Regulations 8 of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
492
493
494
198
10.5.15Regulation of Wages and Terms of Employment Order (2010), GN No. 172 of 30th April
2010.
The Order was geared forth to apply to all workers in both the private and public sectors. The
Basic minimum wages were set out in the Schedule to the Order. The Order dealt also with
being paid for working overtime as well as weekly rest and paid public holidays. This order
generally repealed the Labour Institutions (Regulation of Wages and Terms of Employment)
Order 2007 (GN 223 of 2007).
10.5.16Labour Institutions Wages Order 2013 (GN 196 of 2013)

It revoked the old Wage Order which was GN 172 of 2010. The coming into force of the
Wage Order has the following implications to employers: i. Employers who are currently
paying their employees' wages which are lower than those prescribed under the Second
Schedule should adjust such wages in order to be in compliance with the new Wage Order. ii.
The Wage Order prescribes minimum wages; these can be improved through collective
bargaining agreements.
iii. Employers who at the commencement of this Wage Order are paying higher rates of
wages and are providing more favourable terms and conditions of employment than those
prescribed in the Second Schedule should continue to pay such higher wages which for the
purpose of this Order shall be deemed to be the minimum wage.
iv. The Wage Order does not include Fringe Benefits; these will continue to be a subject of
collective bargaining agreements. However, an employee shall in addition to annual paid
leave, be entitled to leave travel assistance once in every two (2) years of continuous services
with the same employers.
v. Employers who are in other sectors not mentioned in the 12 Sectorial Minimum Wage
Boards should pay their employees Tshs 100,000 (One Hundred Thousand Shillings).
10.5.17Administration of the wage board

The Labour Commissioner is required to provide staff members of the Ministry available to
assist wage board in the performance of its functions 495 . The wage board may also form
subcommittees to assist in the performance of its functions496.
495
Section 42 (1) as amended by Section 16 of the Employment and Labour Laws (Miscellaneous Amendment)
Act of 2015
496
199
The wage board may also contract any person to assist it in the performance of its functions
and that is after consultation with the Labour Commissioner; and of course with the approval
of the Permanent Secretary as to the contractual conditions of employment497.
10.6 LABOUR ADMINISTRATION AND INSPECTION

10.6.1 Introduction
Inspection may be explained as the act of investigating the workplace done by a Labour
Officer to foresee whether there is compliance with labour laws by the employer. A number
of laws empower certain officials to conduct inspections at workplaces.
Labour inspection has been viewed as an important way of ensuring that labour standards as
enshrined in the International Labour Organization (ILO) Conventions and corresponding
national laws are adhered to. Central to Labour inspection is ILO Convention, 1947 (No. 81).
Tanzania ratified the Labour Inspection Convention, 1947 (No. 81) in 1962. However, owing
to an arrangement between mainland Tanzania and Zanzibar at the time of unification in
1964, Convention 81 only applies to the mainland territory and not in Zanzibar.
Tanzania also ratified the Protocol of 1995 to the Labour Inspection Convention in 1999.
It has not however ratified the Labour Inspection (Agriculture) Convention, 1969 (No. 129),
nor has it ratified the Labour Administration Convention, 1978 (No. 150) or the Occupational
Health and Safety Convention, 1981 (No. 155).
Labour Inspection Convention, 1947 (No. 81), calls for labour inspectors to play an active
role in the enforcement of labour legislation. The convention assigns three basic missions to
labour inspectors; To secure the enforcement of the legal provisions relating to conditions of
work and the protection of workers while engaged in their work, such as provisions relating
to hours, wages, safety, health and welfare, the employment of children and young persons,
and other connected matters, in so far as such provisions are enforceable by labour inspectors;
To supply technical information and advice to employers and workers concerning the most
effective means of complying with the legal provisions; To bring to the laws notice of the
competent authority defects or abuses not specifically covered by existing legal provisions.
10.6.2 Importance of labour inspection

Essentially, Labour inspection is a public function hence a responsibility of the Government.
It forms part of labour administration function that ensures adherence to labour laws at work
places. Its main role is to influence the social partners on the need to observe labour laws,
497
200
rules and regulations at work places for their mutual interest. Labour inspection ensures that
labour laws are given practical effect and become actual standard for workers and employers.
It aims at monitoring compliance with labour legislation.
The Labour Administration and Inspection is responsible for administering Labour Laws in
Tanzania Mainland as provided for under Section 43 of the ELRA. The basic endeavour is to
minimize labour disputes and sustain employee and employer harmonious relations in a
decent working environment.
10.6.3 Administration of Labour Laws

The administration of labour law is on the hands of Labour Commissioner and deputy Labour
commissioners who is appointed by the President and are vested with powers to administer
labour laws 498 . They are assisted by the Assistant labour commissioner appointed by the
minister subject to organizational structure approved by relevant authorities assisted by three
Assistant Labour Commissioners499.
The minister also appoints a Registrar of Organisations and a Deputy Registrar, who shall be
responsible for the regulations of trade unions, employer organisations and federations under
Part IV of the Employment and Labour Relations Act500. Also the administration of labour
law includes the labour officers appointed to administer and enforce labour laws501.
The administrative organization constitute 3 sections at the head office level; Labour
Relations, Labour Inspections and Social Security supported by a network of 32 area offices
across the country with a total of 71 Labour Officers.
10.6.4 Delegation of powers

The duties and functions performed by the labour commissioner may be delegated in writing
to the Deputy Labour Commissioner, Assistant Labour Commissioner or any labour officer
and he may attach conditions to such delegation, amend or revoke such delegation at any
time502.
498
499
Section 43 (3) as amended by Section 17 of the Employment and Labour Laws (Miscellaneous Amendment)
Act of 2015
500
501
502
Section 44 (1) and (3) of the LIA
201
The registrar of the organisation may also delegate in writing his duties or function to the
deputy registrar and he may attach conditions to such delegation, amend or revoke such
delegation at any time503.
10.6.5 Power of Labour officers

Labour inspection is conducted by the labour department under the ministry of labour and
employment by the labour inspectorate known as the labour officers who have been
empowered by section 45 of the Labour Institution Act to administer the labour laws.
The powers of the labour officers include the power to enter any work place with a
prescribed certificate of authorisation 504 at any reasonable time and search for any
information, to interrogate any person at the concerned work place, to order any employer to
appear before him with the required information at specified time, place, and date and take
any copy of required information.
The Labour Officers may search for and examine any information, book, document or object
and if available/appropriate, to seize them for further observation505. They may also take a
sample of any object found, take measurements, readings, recordings or photographs and
question any person on the premises. In the event of any documents, book or object removed,
the Labour Officer is required to issue a receipt acknowledging the same.
Section 45 (1) (b) of LIA mandates the Labour Officer with powers to order any person to
appear before him at a specified date, so that the person is questioned 506. These persons may
also be required to furnish any information, book, document or object and explain any entry
contained therein. In the event of refusal by the employer to appear before the Labour Officer
or to produce any relevant information, document or object, the Labour Officer may institute
proceedings in the Resident’s or District Court in the name of the Labour Commissioner.
Several offences, including hindering or obstructing a Labour Officer in performance of or in

exercising his powers have been listed under Section 49 of the Labour Institutions Act,
2004.
In order for a labour officer to bring such a case to court, the National Prosecutions Service
Act (No. 27 of 2008) first requires that the labour officer be appointed as a public prosecutor
by the Director of Public Prosecutions. No such appointment appears to have ever been made.
503
504
See LAIF. 8 contained the schedule of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
505
506
202
Section 18 Employment and Labour Laws (Miscellaneous Amendment) Act of 2015,

amended the provision of Section 45 of the LIA by adding immediately after paragraph (i)
the following new paragraphs: “(j) educate, advise and oversee the implementation of labour
laws; (k) conduct and scrutinize any election or ballot of registered trade union or employers’
association if required to do so by the Labour Court or at the request of the union or
association concerned; and (l) upon request, provide employees, employers, registered trade
organisations and federations advice and training in skills for avoidance, prevention and
settlement of disputes.”
10.6.6 COMPLIANCE ORDER

When a Labour Officer has a reasonable grounds to believe an employer has not complied
with the labour laws he will be required to issue a Compliance Order 507. The same may be
issued to any registered trade union and all employees affected by it though failure to issue
the same to the registered trade union does not invalidate the order508.
The employer is required to display a copy of the order at a place accessible to the affected
employees at workplace and he is also required to comply with an order within the time
stipulated in the order509. In the event the employer fails to comply with an order and in actual
fact has not objected it the Labour commissioner may apply to the labour court to enforce
such compliance order510.
10.6.7 Objections to compliance order

An employer may within 30 days of receipt of the Compliance Order in writing object to
the order by serving the same to the Labour Commissioner 511 . Late application will be
condoned by the labour commissioner only if the objector shows a good cause for the delay to
object within 30 days512.
As stated earlier the employer who has not raised any objection to the compliance order will
be required to comply with the order and failure to do so may result in the Labour
Commissioner applying to the Labour Court for compliance to that order.
507
See LAIF. 4 contained in the schedule of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
508
Section 46 (2) (a)-(c) and (3) of the LIA
509
510
511
See LAIF. 5 contained in the schedule of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
512
203
The employer is also required to serve the copy of the objection on any registered trade union
within members among the employees. He is also required to display a copy of the objection
in a prominent place accessible to the employees affected by the order513.
The labour commissioner may confirm, modify or cancel an order after considering any
representations by the employer, employees or a registered trade union. That being the case
the labour commissioner is required to specify the time frame within which the employer is
required to comply with any confirmed or modified order514. And where the time has been
specified the employer is of the duty bound to comply with such order within time given515.
Failure to comply with an order empowers the labour commissioner to institute proceedings
in the labour court for the enforcement of the order provided that the employer has not lodged
an appeal516.
A copy of an order made in above case is also required to be served by the commissioner to
the employer, any registered trade union with members among the employees affected by the
order; and the employees affected by the order517. It should be noted that failure to serve the
order by the commissioner to any registered trade union will generally not affect the validity
of the order518.
10.6.8 Appeals from order of Labour Commissioner

If an objection is refused by the Labour Commissioner an employer may appeal to the Labour
Court against an order of the Labour Commissioner within thirty days of receipt of the
order519. The Labour Court may on such terms and such conditions suspend the order of the
Labour Commissioner, pending its final decision order520. The Labour Court may confirm,
modify or cancel an order of the Labour Commissioner and the order in respect of which is
confirmed, modified or cancelled shall specify the period within which the employer shall
comply with the confirmed or modified order 521. The labour court upon good cause shown by
the appellant may condone any appeal filed after the expiration of 30 days522.
513
514
515
516
517
518
519
520
521
522
204
10.6.9 Compliance certificate

As per Regulation 10 of the Labour Institutions (General) Regulations 2017 (GN 45
2017), A labour officer may, where satisfied of compliance or non-compliance to Labour
laws by an employer, recommend such person to the Labour Commissioner for a respective
certification 523 . The certificate issued is required to be placed in conspicuous place 524 .
Regulation 10 (3) of the Labour Institutions (General) Regulations 2017 (GN 45 2017),
provides that in assessing compliance, level to be used by a labour officer shall be as
prescribed in the checklist set out in the Schedule to Regulations, and may be subject to
modification, from time to time, by the Labour Commissioner525. Labour Commissioner may
compile, analyse and publish in a media or employers’ compliance rankings based on a given
statistics526.
10.7 THE LABOUR COURT

10.7.1 Establishment of the Labour Court
Labour Division of the High Court of Tanzania (henceforth, “the Labour Court”) is
established under Section 50 (1) of the Labour Institutions Act (2004) and became
operations on the 5th day of January, 2007. And it basically replaced the Industrial
Court of Tanzania.
When it started functioning in 2007 in Tanzania Mainland, the Labour Court had only one
registry based in Dar es Salaam. It used to reach the upcountry regions of Tanzania through
circuit sessions.
However, in 2010 the Chief Justice, acting under the power given to him under Rule 5 of the
Labour Court Rules527, made the High Court of the United Republic of Tanzania Labour
Court (Labour Division) (Zonal Centres) (Establishment) Rules (2010).528 These Rules
established a High Court Division Zonal Centre of the Labour Court in each region. 529 In Dar
es Salaam, there was established a Zonal centre together with the main registry of the Labour
Court.530.
523
See LAIF. 2 of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
524
Regulation 10 (2) of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
525
See LAIF. 3 of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
526
Regulation 10 (4) of the Labour Institutions (General) Regulations 2017 (GN 45 2017)
527
GN. No. 106 of 2007.
528
GN No. 209 of 11 June 2010.
529
Rule 2(1) of the High Court of the United Republic of Tanzania Labour Court (Labour Division) (Zonal
Centres) (Establishment) Rules (2010)
530
Ibid. Rule 2(2)
205
The Labour court is not hampered by strict rules of procedure. This was the chief view of the
court in the case of Stephen Makungu and 11 Others vs. A/S NOREMCO531, where it was
held that (i) The proceedings before Labour Court are not hampered by the strict rules of
common law and, therefore, certain procedural laws like law of evidence, or CPC are not
applicable to such proceedings. (ii) Social justice should be championed always by the
instruments dealing with labour matters and disputes because social justice is justice
according to social interest and social justice is designed to undo the injustice of unequal birth
and opportunity.
In NBC Ltd vs. Ahmad Mkwepu532, It was stated that the spirit of the Labour Court has
always been to expedite the matters before it without too much lingering on technicalities,
regard being also the Labour Court is the Court of law and equity.
10.7.2 Composition of the Labour Court

The number of Judges to constitute the Labour Court may be determined by the Chief Justice
where he considers necessary; but one of the judges shall be designated by Chief Justice as
“Judge In-Charge”. The Judge In-Charge shall head the labour Court and shall designate any
Judge to be in charge of any court zonal centre.533
The Labour court shall also consist of two panels of assessors appointed in terms of Section
53 of the LIA.534 The Coram of the Labour Court shall be constituted by a Judge sitting with
at least two assessors nominated by the presiding Judge from each of the panels appointed in
terms of subsection (2) (b) of Section 50 of the Labour Institutions Act.535
However, it is not necessary for the Judge to sit with assessors in certain circumstances. This
may happen where the Judge determines an application the Labour Court 536; where the parties
to the dispute have agreed that the assessors are not necessary537; or if it is necessary for the
expeditious determination of proceedings. 538 The decision is made by the judge after
considering the opinion of the assessors if any and in case the judge differs his option with
those of assessors he shall give reasons thereof539.
531
Revision No 224 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam
532
Misc Labour Application No. 195 of 2013: High court of Tanzania (Labour Division) at Dar es Salaam
(Unreported).
533
Section 50(2)(a) of the LIA
534
They may be removed by the judge in charge upon misconduct or any other reasons mentioned under Section
53 (2) (a)-(e) of the LIA
535
536
Ibid. Section 50(3)(a).
537
Ibid. Section 50(3)(b).
538
Ibid. Section 50(3)(c).
539
Ibid. Section 50 (4).
206
Proceeding conducted by the Labour Court shall not be invalid for the reason that the
appointment of assessors was defective or after commencement of the proceeding the court
proceed without assessors because the assessors was unable to sit or the judge removes such
assessor in interest of administration of justice540.
10.7.3 Jurisdiction of the Labour Court

The jurisdiction of the Labour Court is spelt out in Section 94 of the ELRA and section 51
of the LIA. Under these provisions, the Labour Court has exclusive jurisdiction over any
matter reserved for its decision by the labour laws and over any employment matter falling
under common law, tortuous liability, vicarious liability or breach of contract within the
pecuniary jurisdiction of the High Court. In performing its function the Labour court have all
the power of the High Court541
In principle, ‘What this means is that if any party has any matter relating to labour laws the
proper court of resort is the Labour Court, but this does not take away the general powers and
jurisdiction of the High Court under the Judicature and application of Laws Act.’542
In particular, the Labour Court has power to determine appeals from the decisions of the
Registrar made under Part IV of the ELRA; reviews and revisions of the CMA arbitrator's
awards; and decisions of the Essential Services Committee. The Labour Court also has
exclusive jurisdiction to determine reviews of decisions, codes, guidelines or regulations
made by the Minister under the Act543; and complaints, other than those that are to be decided
by arbitration under the provisions of the Act.
The labour court is also vested with power to execute the awards and decisions of the
Commission for Mediation and Arbitration as if were decrees544
10.7.4 Appeals from decision of the Labour Court

As in all cases, being civil or criminal, decided by any court of law may be appealed against
to the Court of Appeal of Tanzania. The right to appeal against decisions of the Labour Court
to the Court of Appeal, in Tanzania Mainland, is created in Section 57 of the Labour
Institutions Act, which provides that: ‘Any party to the proceedings in the Labour Court may
appeal against the decision of that Court to the Court of Appeal of Tanzania on a point of law
only.’
540
Ibid. Section 50 (5).
541
Ibid. Section 52
542
Tanzania Railway Ltd. v. The Minister for Labour, Employment and Youth Development & 2 Others. High
Court of Tanzania (Labour Division) at Dar es Salaam, Application No. 4 of 2008 (Unreported).
543
544
Rule 49 of the Labour Court Rules, 2007
207
In Muhimbili National Hospital versus Constantine Victor John545; it was held that (i)
Since section 57 of the Labour Institutions Act allows a person aggrieved by the decision of
Labour Court to appeal on matters of laws only and bars from appealing against the findings
of the Labour Court on matters of fact, the available remedy is to invoke revisional powers of
the Court of Appeal.
This applies to Zanzibar, where the Labour Relations Act provides, in Section 87(1), that
any person aggrieved by any decision or order of the Industrial Court ‘may appeal against
such decision to the Court of Appeal in accordance with the Court of Appeal Rules.’ The
right of appeal in this regard guarantees an individual to seek further remedy if such
individual is not satisfied with the decision of either the Labour Court (in Tanzania Mainland)
or the Industrial Court (in Zanzibar).
In Said Yasin Fadhil and 9 Other v. A.T.T.T Limited 546: it was held that (i) The enabling
provisions to move the court on an application for leave to appeal to the Court of Appeal
from the Labour Court are section 57 of the Labour Institutions Act No. 7 of 2004, Rules
24(1), (2) and 54 of the Labour Court Rules G.N. No 106 of 2007, Rule 45(a) and 46 (1) of
the Court of Appeal Rules. (ii) Social Justice is something more than mere justice, it is a
philosophy superimposed upon the legal system.
Generally a leave to appeal to the Court of Appeal of Tanzania has to be sought under section
57 of the LIA in addition to the enabling provision in the Appellate Jurisdiction Act and the
Tanzania Court of Appeal Rules of 2009.
10.7.5 Registrar and deputy registrar of the Labour court

The Registrar of the Labour Division is appointed and posted as the Chief Executive Officer
of the Labour Court answerable to the Judge in Charge547. Also the Deputy registrars are
appointed to work under the Registrar. The main role of the registrar is to deal with
supervisory role of the staff, office logistics and on the part of cases, to admit documents sent
for filing, number them, make sure each document is filed in the respective file, request a
party to correct any apparent error and in the event of refusal, to forward them to the judge
for direction and another role is to keep records548.
The pre-trial conference at the labour court is done by the Registrar or the mediator attached
to the court. During pre-trial conference mediation is done, matters in dispute and matters not
545
Civil Application No. 44 of 2013: Court of Appeal of Tanzania at Dar es Salaam
546
Misc Application No. 17 of 2013; High Court of Tanzania (Labour Division) at Tabora (Unreported)
547
Section 54(1) of the Labour Institutions Act, 2004 as amended by Act No. 8 of 2006
548
208
in dispute are sorted out, issues drawn, witnesses and evidence are stated and where a
settlement is reached, the Registrar or Mediator draws a consent settlement order or award
respectively, signed by parties and their advocates and the Registrar or Mediator and this
shall be deemed to be the decree of the court. Where non settlement is reached, the non-
settlement order shall be drawn and the matter shall be sent to the judge in charge for
assignment to a presiding judge549.
In Notbruga Maskini v. Local Authorities Pension Fund 550 , it was held that Registrar
cannot extend time under the CPC as application for extension of time involves the hearing of
parties on merits and in court proceedings in which the Registrar has no powers.
10.7.6 Rules of the Labour Court

The procedures of the Labour Division is governed by the Labour Court Rules, 2007 made
under Section 55 of the LIA and in case of a lacuna resort is made to the Civil Procedure
Code Cap 33 R. E. 2002 or any other procedure deemed proper551. So all the powers vested in
the labour Division have corresponding enabling provisions in the Labour Court Rules which
must be quoted.
The Court of Appeal of Tanzania had the opportunity to interpret the enabling provisions for
moving the Labour Division to exercise its powers. The court held that section 94 of the
Employment and Labour Relations Act of 2004 was never intended to be an enabling
provision for instituting any proceedings before the Labour Court and that it only spells out
the powers of the labour court552.
10.7.7 Reference by Labour Commissioner to Labour Court and CA

Under Section 58 of the LIA, the labour commissioner may refer any point of law to the
labour court but for point of law involving conflicting decision of the labour court in respect
of the same point of law and those involve the parties to the proceedings in those decisions
have not appealed shall be referred to the Court of Appeal553. The labour court is required to
serve such reference on the council554. Further then law allows any registered organisation or
549
550
Revision No. 19 of 2013: High Court of Tanzania (Labour Division) at Dodoma. (Unreported)
551
Rule 55 (1) Labour Court Rules, 2007
552
between Chama cha Waalimu Tanzania and The Attorney General, Rutakangwa J.A; Kimaro J. A; & Luanga
J. A Civil Application No. 151 of 2008 (unreported) Pgs 19, 20 & 21.
553
Section 58 (2) (a)-(b) of the LIA
554
209
registered federation with an interest in the subject matter of any reference to apply to the
court to which reference is made to be joined as parties to the proceeding555.
10.7.8 When to make an application to set-aside an ex parte judgment by the Labour court
In The DED Sengerema D/Council vs. Peter Msungu and 13 Others556, it was held that (i)
An application to set aside ex-parte / default judgment by the Labour Court should be made
within 15 days after acquiring knowledge of the order or default judgment grated in the
absence of that party upon showing a good cause. (ii) A proper provision to move the Labour
Court to set aside an ex parte decision is Rule 38 (1) and 125 of the Labour Court Rules, G.N.
106 of 2007.
10.7.9 Leave to appeal to the Court of Appeal of Tanzania: What are the relevant provisions?
In Mufindi Paper Mills vs. Masoya Magoti557; it was held that (i) A party seeking leave in
the Labour Court to appeal to the Court of Appeal of Tanzania should file an application
under Rule 24(11)(b) and 54 of the Labour Court Rules, GN 106 of 2007, Rule 57 of the
Labour Institutions Act, No 7 of 2004, Section 5 (I)(c) of the Appellate Jurisdiction Act, Cap
141 R.E. 2002 and Rule 45 (a) and (b) of the Court of Appeal Rules, 2009. (ii) It is an
established principle of the law and practice that non-citation, wrong citation, or incomplete
citation of the enabling provision of the law renders the application incompetent.
10.7.10Court power to revise CMA arbitral awards-Relevant provisions

In Hassan Sadick Mloto vs. Knight Support (T) Ltd558; it was held that (ii) Notice of
application does not constitute an application; the notice must be followed by chamber
application stating the prayers and reliefs which the applicant is seeking before the court.
10.7.11 Whether one may apply for revision from decisions of labour court
(ii) A party to proceedings in the High court can invoke the revisional jurisdiction of the court
of Appeal in matters which are not appealable with or without leave. (iii) Absence from work
without excusable reasons is a justifiable reason for termination.
10.7.12 Application for extension of time to file a revision–What are the relevant provisions?
In Tanzania Railways Ltd v. Wema A. Mtengwa559; it was stated in filing an application
for extension of time in the Labour Court, one has to cite Rule 56 of the Labour Court Rules,
2007 alongside Rules 24(2) and 28(1) and Section 91(1), (2) and (4).
555
556
MISC Application No. 27 of 2013: High Court of Tanzania (Labour Division) at Mwanza (Unreported)
557
MISC Labour Application No. 171 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam
(Unreported)
558
Labour Revision No. 266 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam (Unreported)
210
10.7.13 How to move the labour court

In Tini Mungusa Goroba v. Bulyanhulu Gold Mine560; it was stated that it is mandatory
for anyone who seeks any relief in Labour Court to move the Court by initiating his/her
application by way of notice of application. Failure to do so as required under Rule 24 of
G.N. 106 of 2007 is fatal.
10.7.14 Grounds for review in Labour court

In Kunduchi Beach Hotel and Resort v. Lewis Rueben Ngahuga561; it was stated that
ground for review are limited for issues that were forgotten or that have been discovered after
the decision was issued (Rule 27 of the Labour Court Rules).
10.7.15 Content of affidavits filled in labour court

According to the case of Abel Nyenye and Another vs. Coca Cola Kwanza 562 , (i) An
affidavit filed in the Labour Court should contain statement of facts and statement of legal
issues that arise from the facts. In Vodacom (T) Ltd vs. Zawadi Bahenge and 6 others563; it
was held that Rule 24(3) of the Labour Court Rules prescribes special specie of affidavits
peculiar to labour practice. Affidavits in Labour Court are distinguished from affidavits in
ordinary civil cases, whose contents are prescribe by law plus judicial precedents which are
part of our jurisprudence.
10.7.16 Extension of time–sufficient cause to be shown

In Kundan Singh Construction Co Ltd vs. Peter Ngugi Kamau 564; it was held that It is
now settled law that in application for extension of time to do an act required by law all what
is expected of the Applicant is to show that he was prevented by sufficient or reasonable or
good cause and that the delay was not caused or contributed by dilatory conduct or lack of
diligence on his part.
10.7.17 Extension of time – What are the major considerations for granting similar
applications?
In National Microfinance Bank PLC vs. Farady Z. Mushi565, It was held that in law and
practice, there are two major considerations for granting application of extension of time
within which to file an application which are:- Firstly, that the applicant has disclosed good
559
560
Revision No. 13 of 2014: High Court of Tanzania (Labour Division) at Shinyanga
561
562
Consolidate Revision No. 53 and 54 of 2013: High Court of Tanzania (Labour Division) at Mbeya
(Unreported)
563
564
MISC Labour Application No. 11 of 2013: High Court of Tanzania (Labour Division) at Mbeya (Unreported)
565
211
cause for delay in taking the sought action, and; secondly, there are grounds constituting
good reason for granting the application. In practice, such grounds mainly refer to situations
“where the point of law at issue (in the intended application) is the legality of the decision
being challenged”.
10.7.18 Content of the judgement or ruling

In A–One Products and Bottlers Ltd vs. Juma N. Wanyaka566; it was held that Judgment
or ruling of the court or a quasi – judicial junction body should squarely fall within the legal
framework of the judgment or ruling that a judgment/ruling should contain a concise
statement of facts, the point for determination, the decision arrived at and the reason(s) for
such decision.
10.7.19 Representative suit in Labour matters

The case of Christopher Gasper, Richard Rukiza Ngabo and 437 others v. Tanzania
Ports Authority567; discusses the issue regarding representative suits in labour matters. It
was stated in this case that (i) Employee(s) who intend to appear in a representative suit in the
CMA or Labour Court should seek and obtain leave. (ii) If an employee acts in a
representative capacity in the CMA, he can only proceed to represent them in the Labour
Court by making an application and obtain leave of the Court.
10.7.20 Limitation of time in labour matters

In Tanzania Breweries Ltd v. Edson Muganyizi Barongo and 7 Others568: Held :-(i) when
a suit/ application is dismissed for being time–barred, the only remedy available is to appeal
rather than applying for extension of time in the same court.
(ii) An order for dismissal implies that, a competent suit/appeal has been disposed of while an
order for striking out implies that there was no proper suit/appeal capable of being disposed
of. In the former the only remedy available is appeal but in the latter one can file fresh suit
/appeal.
(iii) The Law of Limitation Act is not applicable in labour matters except on the remedy of
dismissed applications or matters in the labour court rules.
566
Revision No. 223 of 2013: High Court of Tanzania (Labour Division) at Dar es Salaam. (Unreported)
567
MISC Labour Application No. 281 of 2013: High Court of Tanzania (Labour Division) at Dar es Salam
(Unreported)
568
Misc Labour Application No. 79 of 2014: High Court of Tanzania (Labour Division) at Dar es Salam
(Unreported)
212
CHAPTER ELEVEN:
WORKER’S COMPENSATION
11.0 Introduction
The primary duty of employer in relation to occupational health and safety is to prevent
accidents, hazards and diseases at workplace by providing a safe and health working
environment. However, where occupational accidents or hazards occur, they are required to
provide compensation. This is an international standard as provided for under the ILO
Workmen's Compensation (Accidents) Convention, 1925 (No. 17), which has been ratified by
Tanzania.
Other ILO compensation conventions include the Workmen’s Compensation (Occupational
Diseases) Convention, 1925 (No. 18), Employment Injury Benefits Convention, 1964
[Schedule I amended in 1980] (No. 121) and the Equality of Treatment (Accident
Compensation) Convention, 1925 (No. 19). Right to compensation in case of injury also
forms part of social protection, thus covered under the International Covenant on Economic,
Social and Cultural Rights (ICESCR), which provides for the right to social security.
Domestically, there is the Workers’ Compensation Act, which provides for the right to right
to compensation for occupational injury (resulting in disablement or death) and right to
compensation for occupational diseases. It also establishes the Workers Compensation Fund
and creates an obligation for an employer to contribute to it.
11.1 Background to the enactment of workers compensation Act
Essentially phase two of the task force charged with the function to review the labour laws
covered occupational health and safety, workers compensation and employment promotion.
Phase two has been partly implemented in which among others, workers compensation Act
213
no. 20 of 2008569 has been enacted. Thus the enactment of workers compensation Act was the
result of implementation of the recommendation of the task force in labour matters.
The Act was subsequently revised in 2015, and thus the revised Edition of the Workers'
Compensation Act, Chapter 263, incorporates all amendments made up to and
including 31st December, 2015 and is printed under the authority of section 4 of the Laws
Revision Act, Chapter 4. The Act is also accompanied by the Workers’ Compensation
Regulations, 2016 made under Section 94 of the Act.
As per the long title of the Act, the Cap. 263 is geared forth to provide for compensation to
employees for disablement or death caused by or resulting from injuries or diseases sustained
or contracted in the course of employment; to establish the Fund for administration and
regulation of workers' compensation and to provide for related matter.
Generally speaking the Act was established to provide compensation for employees injured or
incapacitated in the course of employment.
10.3 Applicability of the Act

As per Section 2 (1) and (2), the Act shall apply to Mainland Tanzania and shall apply to-(a)
all employers and employees including those in the public service of the Government of
Tanzania in Mainland Tanzania; (b) employees while: (i) employed in any capacity on a
Tanzanian ship or aircraft; (ii) Subject to section 25 (1), employed outside Tanzania on any
other ship or aircraft; and (c) employees who subject to section 24, are injured in occupation
accidents or contract occupational diseases while employed outside Tanzania.
Conversely, the predecessor Act of 2002570 covered all of Tanzania in general subject to the
Minister gazetting a notice specifying that any such area as applicable under the repealed Act.
All the existing compensation schemes or established after the commencement of the Act
shall award compensation not below the minimum compensation rate set out in accordance
with the provisions of the Act571. This provision would appear to apply retroactively.
10.4 Objectives of the Act

The prime objectives of the Act includes the followings-(a) provide for adequate and
equitable compensation for employees who suffer occupational injuries or contract
occupational diseases arising out of, and in the course of their employment, and in the case of
569
On November 4, 2008, Tanzania's National Assembly approved amendments to the Workers' Compensation
Act, 2002 and was assented by the president on 6th December 2008
570
Repealed Under Section 98 of Workers Compensation Act [Cap 263 R.E 2015]
571
Section 2 (3) of Workers Compensation Act [Cap 263 R.E 2015]
214
death, for their dependants; (b) provide for the rehabilitation of employees who have suffered
occupational injuries or contracted occupational diseases in order to assist in restoring their
health, independence and participation in society;
(c) provide for a framework for the effective, prompt and empathetic consideration,
settlement and payment of compensation benefits to employees and their dependants; (d)
provide for the establishment, control and administration of the workers compensation fund,
and the legal framework for the workers compensation fund, and the legal frame work for
contributions to and payments from the Fund; (e) give effect to the international obligations
with respect to workers; compensation; and (f) promote prevention of occupational accidents
and occupational diseases572.
10.5 Definition of important terms

Section 4 the Act provides various interpretations/definitions. The following are some of the
important ones:-
Accident means an accident arising out of and in the course of an employee’s employment
and resulting in a person [al] injury, illness or death of the employee.
Disablement means temporary partial disablement, temporary total disablement, permanent

total disablement or serious disfigurement as the case may be.
Earnings means Remuneration of an employee at time of accident or commencement of

occupational disease as calculated under the Act.
Employee means (a) Any person, including apprentice, but excluding an independent
contractor, who works for another person or for the state and who receives, or is entitled to
receive, any remuneration b) Any person who in any manner assist in carrying on or
conducting the business of an employer
Employer means any person, including the government and executive agency, who employs
an employee.
Occupational disease these are list under cross-reference in Section 22, under the Third
Schedule which details various diseases under broad categories as follows based on the ILO
list573: 1. Diseases caused by chemical agents, including physical and biological agents 2.
572
Section 3 (a)-(f) of Compensation Act [Cap 263 R.E 2015]
573
The list of Occupational Diseases contained in this Schedule reflects the list of occupational diseases
appended to International Labour Organization R 194, List of Occupational Diseases Recommendation, 2002.
215
Diseases caused target organs, including respiratory, skin, musculo-skeletal disorders 3.

Cancer caused by agents 4. Other diseases including miners’ nystagmus.
Occupational Injury means personal injury sustained as a result of an accident Serious; and
Wilful misconduct:- a) Being under influence of intoxicating liquor or narcotics b)
Wilful/reckless disregard contravention any safety law c) Any other form of wilful conduct
likely to cause disablement to a person.
10.6 ESTABLISHMENT OF WORKERS COMPENSATION FUND (WCF)

The Act also makes provisions and structure for Establishment of the Workers
Compensation Fund. WCF is a social security scheme meant to compensate workers (or
their dependants in workers die) for accidents suffered & diseases contracted in course of
employment as per provisions of the Workers Compensation Act No. 20 of 2008.
The Workers Compensation Fund (The Fund) is established under Section 5 (1) of the
Act574. The objective of the Fund is to handle, inquire and adjudicate matters concerning
accidents, deaths and occupational diseases of employees during the course of employment.
The Fund also assesses the compensation appropriate to the employee or dependents of the
deceased employee. For example, the dependents of an employee traveling to India for a
business trip on behalf of an employer and who dies as a result of an airplane crash shall be
entitled to compensation.
10.6.1 Application of funds

The funds available in the Fund shall be used for: The payment of compensation benefits to
employees on behalf of employers; The remuneration of the Board of Trustees (the Board),
assessors and authorised persons; The cost of or in connection with the medical examination
of the employees; The cost of assessment in relation with the employees’ rehabilitation; Court
proceedings; The expenditure incurred by the Director General or the Board in carrying out
functions under the Act; The promotion of occupational health and safety measures; Any
expenditure authorised by the Act.
10.7 EMPLOYER’S OBLIGATIONS

Newly introduced regulatory procedures provide that, under the Act, all employers are now
obliged to make contributions to the Workers’ Compensation Fund (WCF). The rates of
mandatory contribution differ for public sector and private sector employers. From 1 July
2015, all employers were statutorily required to contribute to the WCF. These contributions
574
See Section 5 (1) (a)-(e) of the Workers Compensation Act [Cap 263 R.E 2015]
216
are at the employer’s cost and as such these costs should not be deducted from the salaries of
employees.
Under the Workers’ Compensation Act, 2008 all employers are required to contribute to the
WCF. All private sector employers must now contribute 1%, and public sector employers
must contribute 0.5% of their annual tax bill for one year from 1 July 2015. Contributions are
due on a monthly basis. The Act imposes the following obligations on employers;
10.7.1 Employers to register with the Director-General

The employers are obliged to register themselves with the Director General within the
prescribed period and furnish the Director General with the prescribed particulars of the
employer’s business and any additional particulars required. Failure to comply constitutes an
offence575. Employers have to fill and submit with the fund the Employer Registration Form
WCR-1 also the Employers have to fill and submit with the fund the Employer’s business
particulars Form WCR-2576.
10.7.2 Employers to furnish returns of earnings

An employer shall, not later than the 31/03 in each year furnish the Director General with a
return in the prescribed form certified by the employer, showing earnings paid by the
employer during the period with effect from the 01/03 of the immediately preceding year up
to & including the last day of Feb. of the following year Such further information as the
Director General may require.
Failure to comply with the requirement is an offence & shall on conviction be liable to a fine
not exceeding TZS 50 million or to imprisonment for a term not exceeding 5 or to both577.
The form applicable here is WCR-3 set out under the first schedule to the Workers
compensation Regulation GN. No. 185 of 2016578.
10.7.3 Other obligations

To keep a register and other records of earnings for a period of not less than three years579; To
provide and finance the transport of employees from the place of any accident to a hospital,
and eventually to the employee’s residence regardless of whether the employer believes the
accident or illness was caused in the course of employment;
575
Section 71 (1)-(4) of the Workers Compensation Act [Cap 263 R.E 2015]
576
See Regulation 9 of the Workers compensation Regulation GN. No. 185 of 2016
577
Section 73 of the Workers Compensation Act [Cap 263 R.E 2015]
578
See Regulation 14 thereof
579
Section 72 of the Workers Compensation Act [Cap 263 R.E 2015]
217
To pay the employee compensation within one month of any such accident or occupational
illness; to inform employees of their rights under this Act, and to display a clearly visible
notice at the place of work; notify the Director-General of any changes to the information
submitted in the registration within seven days. Any employer who fails to comply with these
requirements will be committing an offence and be liable to fines and/or imprisonment;
10.8 THE DIRECTOR GENERAL

The Act makes also the provisions for appointment of Director General by the President and
Functions of the Director General. The Director General is given wide-ranging powers,
including the setting up tariffs, assessing and awards of compensation, carry out
investigations with the help of authorised persons, including the police and confiscate any
documents or books as may be determined.
He is also being vested with powers to appoint assessors and medical advisory panels580. His
powers also extend to summon witness and administer oath581.
The director general may be disqualified if the incidence mentioned under Regulation 7 of
the Workers compensation Regulation GN. No. 185 of 2016 is evident. For example he
may be disqualified if he is convicted with a criminal offence or he has been adjudged
bankrupt.
10.9 BOARD OF TRUSTEES OF THE WORKERS COMPENSATION FUND

The Act makes provisions for the establishment of a Board of Trustees with the overall
control and administration of the fund and responsible for advising the Minister as
appropriate582.
10.10 RIGHT TO COMPENSATION

10.10.1Incidents for Compensation
The following are some incidents in which an employee or dependants of the employee may
seek compensation; An accident resulting in the employee’s temporary or permanent
disability or death; An accident in the course of conveyance of an employee to and from a
place of employment for the purpose of the employment;
Accidents occurring during trainings authorised by the employer as per the Act; Contracting
of occupational diseases as provided for in the Third Schedule to the Act or any other such
580
See Section 6 and 7 of the Workers Compensation Act [Cap 263 R.E 2015]
581
582
218
diseases; Contracting occupational diseases or injury while carrying out an assignment of the
employer outside Tanzania.
10.11 RIGHT TO COMPENSATION FOR OCCUPATIONAL INJURY

Section 19 (1) and (2) of the Workers Compensation Act583, provides for compensation to
an employee or his dependants for an accident resulting in disablement or death.
But the section excludes payment of compensation where an accident attributable to the
employee’s serious wilful misconduct unless (a) the accident results in permanent total
disablement584; (b) the employee dies as a result of the accident leaving a dependant wholly
financially dependent upon the employee585.
Under Section 19 (3) of the Workers Compensation Act586, at discretion of the director
general an award can be given for whole or portion of medical aid in respect of the accident.
Also under Section 19 (4) of the Workers Compensation Act587, the Director General has
discretion to determine that an accident arose in the course of employment where employee
was deemed to be acting for or in connection with the purpose/ interest/ business/ course even
if the employee was acting: a) contrary to the law relating to the employee’s employment,
instruction given by employer or his agent b) without any instructions of the employer.
10.11.1Accident during conveyance

As per Section 20 of the Workers Compensation Act588, this is considered as arising in the
course of employment if it happened during conveyance to or from place of employment.
10.11.2Accidents During Training or Performance of Emergence

Under Section 21 of the Workers Compensation Act589, These are regarded as in the course
of employment if done: With employer’s consent; in employer’s mine, works or premises; in
organised first aid/ambulance/rescue just to mention a few.
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Section 19 (5) of the Act defines "serious disablement" to mean disablement which may render the employee
incapable of engaging in his employment or require him to be hospitalized beyond a period of twenty four
months.
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10.12 RIGHT TO COMPENSATION FOR OCCUPATIONAL DISEASES

An employee by virtue of Section 22 (1) and (2) of the Workers Compensation Act590 who
have contracted the disease set out under the 3rd Schedule of the Act and in actual fact the
disease arisen of and in the course of employment such employee is entitled to compensation.
The compensation may also be paid to his dependants in the event such disease have resulted
his death.
10.12.1Presumption of cause of occupational disease

As per Section 23 of the Workers Compensation Act591, an employee will be assumed has
having contracted an occupational disease if he/she had been employed in any work involving
the handling or exposure to any specified agent.
11.11.2 Accidents or diseases Contracted Outside Tanzania

Under Section 24 (1)-(3) of the Workers Compensation Act592, an employee & employer
ordinarily carrying out business in Tanzania would be compensated on the basis of earnings
which the Director General believes the employee would be earning had the employee
remained in Tanzania, unless such employee has been employed outside Tanzania for more
than 12 continuous months.
However, section appears to allow an amicable agreement to the contrary between Director
General and the employer.
11.11.3 Accidents or diseases contracted in Tanzania

As per Section 25 (1) of the Workers Compensation Act 593, no compensation shall be
payable where an employee & employer ordinarily carrying out business outside Tanzania in
an accident in Tanzania, unless the necessary assessment has been paid to the Fund.
However, an employee working continuously for 12 months will be regarding as working in

Tanzania and entitled to compensation, subject to payment of assessment. Section 25 (4) of
the Workers Compensation Act 594 , allows a claim to be made under any other law in
another country but not both. Election to take an objection is subject to written notice to the
Director General.
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11.11.4 Prescription of claim for compensation

The law sets a time limitations beyond which the right to compensation cannot accrue. As per
Section 40 (1) and (2) of the Workers compensation Regulation 595 , a right to
compensation shall lapse if the accident in question or occupational disease is not brought to
the attention of the Director-General within twelve months after the date of the accident or
from the occurrence of that disease as the case may be.
By virtue of Section 40 (3) of the Workers compensation Regulation596, time starts to run
on the date on which a medical practitioner diagnosed the disease for the first time and
notified the employee of the diagnosis or such earlier date as the Director-General may
determine.
11.12 REFUSAL TO PAY COMPENSATION

Section 26 (a) and (b) of the Workers Compensation Act597, gives the Director General
liberty to reject claims for a number of reasons. The Director General may refuse to pay
the whole or a portion of the compensation in the following incidents:
Presentation of false information regarding the injury, accident or cause of death by an

employee; The Director General believes that the cause of death or prolonged injury was
caused by the employee’s refusal to accept medical aid; the employee fails to report the
accident or injury within 12 months of its occurrence.
11.12.1 Alienation, reductions, cession or relinquishment

Section 27, 28 and 29 of the Workers Compensation Act598, prohibit and void any cession,
pledging, attachment, setting off or any agreement to relinquish any compensation or rights to
compensation. In addition (Sec. 29) rules that compensation shall not form part of deceased
employee’s estate and the amount is to be paid to dependants.
11.12.2 Civil Liability of Employer and third Party-unlimited

Important Point to Note! Section 30 (1) of the Workers Compensation Act 599, reads
“Nothing in this Act shall limit or in any way affect any civil liability of an employer or any
person in respect of an occupational injury or disease resulting in the disablement or death of
an employee if the injury or disease was caused by negligence, breach of statutory or any
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other wrongful act or omission of employer, or any person for whose act or omission the
employer is responsible, or of any other person”.
What can be construed from the above provision is that Compensation from the Fund does
not decimate civil liabilities of the employer. An employee or dependents of the employee
can still sue the employer in a civil suit if the accident, death or occupational disease was
sustained by negligence, breach of duty or any wrongful act committed by the employer.
However, the award granted in such a civil suit shall be reduced by the value of any
compensation which has been paid by the Fund.
11.12.3 Deduction of compensation from Common law award

Section 30 (2) of the Workers Compensation Act600, provides that any common or other
legal award of compensation in respect of the above torts will be reduced by any amount of
compensation paid or payable by the Fund under this Act.
11.12.4 Recovery of Compensation from Tortfeasors by DG employer or third parties

Under Section 31 of the Workers Compensation Act601 the Director General is vested with
the right to institute a suit to recover any compensation from any wrong doer, responsible for
the occupational injury/disease. The Director General is therefore entitled to recover from tort
feasors whether employer or third party.
11.12.5 Offence of Threats and Compulsion

As per Section 32 of the Workers Compensation Act 602 , any threat, compulsion or
influence aimed at depriving tort feasors whether an employee of the right to compensation is
an offence under the said section.
11.13 PROCEDURES FOR CLAIMS OF COMPENSATION

Part V of the Workers Compensation Act603, read together with Part IV and V of the
Workers compensation Regulation 604 , lays down the procedure of claims and various
requirements:
11.13.1 (1) NOTIFICATION OF AN ACCIDENT

11.13.2 Notice of Accident by employee or employer
Under Sections 33 of the Workers Compensation Act605, the reporting is not timed but shall
be as soon as possible. However as per Regulation 15 (1) of the Workers compensation
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Regulation606, an employee or any other person on behalf of an employee shall within two
working days after an occurrence of the accident notify the employer of such occurrence
either orally, in writing or electronically in the manner prescribed in Form WCN-1.
Regulation 15 (2) of the Workers compensation Regulation607, requires an employee or

any other person on behalf of an employee, to notify the Director General within seven
working days after an occurrence of accident either orally, in writing or electronically in
the manner prescribed Form WCN-1.
Regulation 15 (3) of the Workers compensation Regulation608, require an employer to

acknowledge the receipt of the notification given by employer or any other person on behalf
of the employee within seven working days after receipt of the notification.
It is notable that the employer is deemed as notified if he had knowledge of the accident from
any other source other than an employee, at about the time of the accident therefore in that
circumstances the claim for compensation is not bared for the reason that the employee didn’t
give notice609. In respect of employees in an aircraft or a ship, the person in command is
deemed to be an employer610.
Though giving a notice appears to be of paramount importance to initiate claims for

compensation but where there is failure or any error or accuracy in the notice by virtue of
Section 33 (3) of the Workers Compensation Act611, that will not defeat at all the claim for
compensation if the Director-General believes that-(a) the Funds is not or would not be
seriously prejudices by the failure, error or inaccuracy if notice is then given or the error or
inaccuracy is corrected; and (b) the failure, error or inaccuracy was caused by an oversight,
absence from Tanzania or other reasonable cause.
11.13.3 Notification of an Accident by Employer to Director General

In this respect, as per Section 34 (1) of the Workers Compensation Act612 read together
with Regulation 15 (4) of the Workers compensation Regulation613, reporting must be
made in 7 days in a prescribed form614 to the DG after receipt of notice from the employee
or having learnt in some other way If requested by an employee or dependant, a copy of the
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notice shall be furnished to them615. Breach of this Section 34 is an offence to refuse the
request under the Act616.
Section 34 (4) (a) of the Workers Compensation Act617, defines an accident in such a way
that the employer is compelled to respond to a notice in accordance with this section,
notwithstanding whether the employer thinks that it did not arise out of and in the course of
employment.
This subsection goes further to define compensation as being inclusive of medical aid and any
other amount paid or payable under other sections stated.
11.13.4 Notification of Occupational Disease

As per Section 35 of the Workers Compensation Act618, this is to be given as soon as
possible. In this case, the responsibility is on the employee or a trade union. The notice is to
be given to the employer was the employee was last employed.
Regulation 16 (1) of the Workers compensation Regulation619, provides that an employee

or a trade union on behalf of an employee shall, within fourteen working days after
occurrence of an occupational disease, notify the employer of such occurrence in the manner
prescribed in Form WCN-1 as set out in the First Schedule to the Regulation.
As per Section 35 (3) of read together with Regulation 16 of the Workers compensation
Regulation620, the employer is required to notify the Director General within 7 working days
after receipt of notice or learning in some other way of the employee contracting an
occupational disease, irrespective of whether the employer has contrary view as to whether
the employee contracted the disease while in its employment. Contravention of this section is
an offence621.
11.13.5 Notification of death
As per Regulation 17 (1) of the Workers compensation Regulation622, the procedure for
notifying the employer or the Director General on an occurrence of death arising out of an
accident or an occupational disease shall be made in accordance with regulations 15 and 16
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and notification of death to the employer or Director General shall be made within twelve
months from the date of occurrence of such death.
11.13.6 Care and treatment pending compensation
Under Regulation 18 (1) of the Workers compensation Regulation623, an employer shall

be responsible for the provision of health care and treatment to an employee who has
sustained injuries as a result of accident or an employee who has acquired occupational
diseases pending submission and determination of the claim for compensation by the
Director General in the manner prescribed under Part V of the Regulations.
However where there is an arrangement by an employer for the provision of health care and
treatment to an employee, such arrangement shall be used to cover the expenses to be
incurred pending submission of the claim for compensation to the Director General624.
11.14 (2) INQUIRY BY DIRECTOR GENERAL INTO ACCIDENT

The Director General to make inquiry of the claim upon receiving notice from the employer
or third party and the purpose of making such inquiry according to Section 36 (1) of the
Workers Compensation Act625, is to decide upon any claim or liability under this Act.
During the inquiry the Director General under Section 36 (2) of the Workers Compensation
Act 626 , may request any employee or employer to furnish other particulars regarding the
accident, injury, death or disease as the Director-General may require. It’s an offence under
Section 36 (3) of the Workers Compensation Act627, for an employer who fails to furnish
the requested documents by Director General within a period of 21 working days.
The Director General is vested with a discretionary power under Section 36 (4) of the
Workers Compensation Act628, to refuse to entertain a claim of any employee who, within a
period of six months from the date of request by Director General fails to submit the
requested documents.
The Director General is under obligation as per Section 36 (5) of the Workers
Compensation Act629, to furnish any information at the request of the employee or employer
which he thinks are necessary to enable the employee or employer to comply with the
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provision of this Act. If the Director General fails to meet this obligation that is fails to
furnish information, that information shall have no effect to the employee630.
11.14.1 Particulars in support of the claim

The law under Section 37 (1) requires the employees who has had accident when reporting
the accident or subsequently at the request of the employer or the Director-General, furnish
information and documents as may be prescribed or as the employer or the Director-General
may require.
Further under Section 37 (2) of the Worker’s Compensation Act 631, requires the employee
on reception of claim, medical report or information to send them within seven working days
after receiving them to the Director General.
11.14.2 Employee to submit to medical examination

In case the employee is required by Director General and being given reasonable notice
submit himself to be examined by medical practitioner appointed by the Director-General at
the time and place mentioned in the notice632. Any expenses incurred by the employee shall
be paid by the Director General633.
Where in the opinion of the appointed medical practitioner, the employee is not capable of
calling upon the medical practitioner appointed by the Director-General, the medical
practitioner shall inform the Director-General, and he shall examine the employee at another
time and place as may be agreed between the Director-General and medical practitioner634.
An employee shall be entitled at his own expense to have a medical practitioner of his choice
present at an examination by the appointed medical practitioner635.
11.15 (3) SUBMISSION AND REVIEW OF CLAIM FOR COMPENSATION

11.15.1 Submission for Claim for compensation
By virtue of Section 39 (1) of the Workers Compensation Act636 a claim for compensation
shall be lodged by or on behalf of the claimant in a prescribed form 637 to the Director-
General within twelve months after the date of the accident or the date of death. It follows
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therefore that when the claim is not lodged within twelve months the claim won’t be
entertained except where the accident concerned has been reported under sections 34 or 35638.
For a claim for compensation by any employee in an aircraft or on board of a ship as per
Section 39 (3) of the Workers Compensation Act639, may be lodged with the person in
command of the aircraft or ship concerned.
Where any employee in an aircraft or on board of a ship meets with an accident outside
Tanzania resulting in death, Section 39 (4) of the Workers Compensation Act640, instruct, a
claim for compensation shall be instituted within twelve months after news of the death has
been received by any dependant claiming compensation.
Regulation 19 (2) of the Workers compensation Regulation641, requires the employer on

receipt of the claim to submit the same to the Director General in a manner prescribed in
Form WCC-1 of the first schedule to the Regulations. Such submission shall be done within
seven working days after the receipt of the claim by the employer.
The claim submitted to the Director General must be supported by relevant documents as
might be required by employer or Director General. Regulation 20 (6) of the Workers
compensation Regulation642, provides for an exhaustive list of documents that must support
the claim.
These documents includes a fitness to work medical examination report, medical report,
Police investigation report, an occupational accident or disease investigation report, a fire and
rescue report, and employers report.
11.15.2 Receipt of a claim by Director General

Regulation 20 (1) of the Workers compensation Regulation 643 , require the Director
General upon receipt of the information and particulars of the claim for compensation
submitted to inquire the correctness of the information and particulars so submitted. In the
event where the information and particulars submitted is correct and sufficient, the Director
General shall proceed with determination of such claim in line with Fund’s procedures644.
On the other hand where the information and particulars submitted are incorrect or
insufficient, the Director General may, within five working days after becoming aware of the
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incorrectness or inconsistency, request the employer or employee or any other person on

behalf of an employee as the case may be, to furnish the information or particulars that he
deems necessary for re-consideration of the claim submitted645.
The information requested by the Director General in the above case must be submitted to the
Director General in Form WCC-1 as prescribed in the First Schedule to the Regulations
within thirty calendar days from the date of receipt of such request646.
Regulation 20 (7) of the Workers compensation Regulation 647 , bars an employee,

employer or any person on behalf of an employee to submit a claim for compensation to the
Director General if an inquest is to be held or where criminal case has been instituted or is
likely to be instituted in connection with the occurrence of an accident, occupational disease
or death, until such inquest or criminal case is concluded.
Under Regulation 20 (8) of the Workers compensation Regulation648, the Director General
is vested with power to suspend the determination of any claim submitted in the event he
learn that the matter in question is a subject of an inquest or criminal case which instituted or
likely to be instituted in connection with the same accident, occupational disease or death.
11.15.3 Submission of medical report

Regulation 21 (1) of the Workers compensation Regulation 649 , requires the Medical
Practitioner within fourteen calendar days after examining for the first time an employee
injured in an accident or after diagnosing an occupational disease in an employee, submit an
initial medical report to the employer and the Fund as prescribed in Form WCC-2A.
Further Regulation 21 (2) of the Workers compensation Regulation 650 , requires an

employee or any other person on behalf of an employee, among other things, to attach a final
report of the Medical Practitioner filled as prescribed in Form WCC-2B.
As per Regulation 21 (3) of the Workers compensation Regulation651, where an employee

at the time of an occurrence of an occupational disease was not in the service of the employer,
the medical report shall be provided in the manner referred to under sub regulations (1) and
(2).
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In case where the Director General requires a further medical report regarding an employee,
the Medical Practitioner shall, within fourteen calendar days upon receipt of such request,
furnish the required report in a manner requested by the Director General652.
11.16 (4) CONSIDERATION OF CLAIM BY DIRECTOR GENERAL

The Director General may either carry out an inquiry or hold a formal hearing;
Section 2 of the of the Workers Compensation Ac653, defines a "formal hearing" to mean a
hearing between the parties in a workers' compensation formally brought under the provision
of Act prescribed over by the Director-General for the purpose of solving differences,
disagreement, and the like in order to provide appropriate compensation benefits to a
claimant;
Regulation 24 (9) requires a formal hearing shall be conducted in public unless the Director
General decides otherwise.
11.16.1 Formal hearing by Director General

The Director General is given the overall power to decide on any claim for compensation and
for that purpose he may carry out any inquiry of formally hear the claim654.
In case the Director General receives a claim and thereby form an opinion that such claim
requires a formal hearing then he is required under Section 41 (2) of the Workers
Compensation Ac655, read together with Regulation 22 (1) of the Workers compensation
Regulation656, to issue a notice stating date, time and place of the hearing to the claimant and
the employer in the prescribed form containing also the information as set out in Form
WCC-3A to be sent to the parties in order to attend such hearing.
The Director General is also vested with several powers regarding the conduct of formal
hearing. By virtue of Section 41 (3) (a)-(b) and (4) of the Workers Compensation Act657,
the Director-General-(a) may adjourn a formal hearing to another date, time and place; and
(b) shall keep or cause to be kept a record of the proceedings as a formal hearing. (4) The
Director-General shall, upon payment of the prescribed fees, provide any person with a copy
of the record.
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11.16.2 Party Representation during the conduct of formal hearing

The law allows the party to the proceeding to be represented and appears before the Director
General at a formal hearing 658 . Thus according to Section 42 (3) of the Workers
Compensation Act659 read together with Regulation 22 (3) the Workers compensation
Regulation660, a party to the proceeding may be represented by (a) a legal practitioner; (b) a
member of his family; (c) Employer’s Organization or Trade Union; (d) officers mentioned
under section 42(3) of the Act who are- (i) the chief inspector and all inspectors appointed in
accordance with section 5 of the Occupational Health and Safety Act; and (ii) the Labour
Commissioner, Deputy Labour Commissioner and Labour Officers appointed in accordance
with section 43 and 44 of the Labour Institutions Act; or (e) any other person with a level of
the Director General.
The Director General is given power under Section 42 (2) of the Workers Compensation
Act661, to designate any person with relevant competence to investigate a claim, preside at or
attends a formal hearing cross-examine witnesses, adduce rebutting evidence and present
arguments.
11.16.3 Appointment of Assessors

The Director General is required by Regulation 23 (1) the Workers compensation
Regulation 662 , to appoint as assessors two person with technical skills on the matter in
question before holding a formal hearing. The main role of the appointed assessors is to act in
an advisory capacity in a formal hearing so as to assist the Director General in determining
such matter.
Regulation 23 (2) the Workers compensation Regulation663, disqualify certain category of

persons to serve as assessors thus one cannot serve as assessor if (a) he is an employee of, or
associated in any pecuniary manner with, the employer of the employee concerned; (b) he
has, in connection with the injury or death out of which the formal hearing arises, given
professional assistance or advice in regard to the accident or question in dispute to any party
to the inquiry or to any person who may become liable for the payment of compensation
under the Regulations to such employee.
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Assessors so appointed are mandated by Regulation 23 (3) of the Workers compensation

Regulation 664 , to cross examine any witness who testifies in such hearing, and before
concluding the hearing, give his opinion. The Director General is required by Regulation 23
(4) of the Workers compensation Regulation665, to consider the opinion given by assessors
but such opinion shall not bind the findings of the Director General.
11.17 (5). DETERMINATION OF COMPENSATION

11.17.1 Compensation for Temporary Total or Partial Disablement
Temporary Total Disablement (TTD) – Sec. 46(1) 70% of the employee’s monthly earnings
at the time of the accident subject to a Minimum or Maximum that may be set out by the
Regulations.
Under Section 46(3), the employer is responsible for this compensation for the first month
from the accident. This is refundable by the DG after expiry of the first month.*
11.17.2 Temporary Partial Disablement (TPD)

A portion of the amount calculated under Section 46(1), as the DG may consider equitable. A
time exclusion of 3 days applies for both TTD & TPD above and payment will be made in
periodical intervals not exceeding one month for a maximum of 24 months, with an option for
the DG to declare for TPD: - Continuation of payment beyond 12 months - Treatment of
disability as permanent after 24 months *Breach of this will attract a fine of Tshs 10m or a
maximum 7 years imprisonment
Sec. 47 describes situations which will determine expiry of compensation for TTD & TPD,
with the DG powers to revisit & revise awards. The DG may suspend pension payments
during the period of payment of periodical payments (Sec.47 (3).
11.17.3 Compensation for Permanent Disability

Sec. 48(1) - here Compensation is set in the “Second Schedule” which lays down the scale of
payments for various permanent disabilities. Injury not mentioned in Second Schedule.
Sec. 48(2) Where the Schedule is silent in regard to any injury sustained, Sub-Section 48(2)
empower the DG to determine the percentage of disablement and award in reasonable
consistency with the said Schedule.
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11.17.4 Enhancement of Compensation

The DG is also empowered to enhance the award for the above by up to 50% of the normal
rate where the injury is unusually serious by virtue of the employee’s occupation – Sec. 48(3)
Compensation is subject to a maximum and minimum to be set in the Regulations as follows:

a) 100% Permanent disability: Monthly Pension based on 70% of monthly earnings at time of
accident b) Less than 100% Permanent disability c) A percentage of the monthly pension as
stated in (a) above proportionate to the degree of permanent disability Payment under section
is free from any payment paid for TTD and TPD and therefore not deductible.
Monthly Pension is defined as a pension payable monthly during the lifetime of the employee
until death when it expires.
11.17.5 Payment of Lump sum in lieu of pension

An employee can apply for such payment which shall not exceed an amount to be prescribed
in the regulation, in lieu of a lump sum. Subsequent sub-sections of Sec. 49 provide
alternative modes of payments
11.17.6 Compensation for an employee who has previously received Compensation

Sec-50-This section describes payments made in circumstances where an employee seeks a
revision due to further disability or following previous compensation for the same or
subsequent accidents. The total is capped at 100% available under this Act.
11.17.7 Constant attendance – Sec. 50

The DG may grant additional allowance towards the cost of care for necessary care of the
disabled employee
11.17.8 Dependants - Section 52

This details various dependants who will benefit in the event of the demise of an employee.
Funeral Grants – Sec. 53
This empowers the DG to award a funeral benefit to the extent stated in the Forth schedule.
Other provisions touch on the following: - Increase in monthly pensions – Section 54 -

Advances in Compensation – Section 55 - Control over Compensation – Section 56 -
Pensioners outside Tanzania – Section 57 - Manner of Calculating earnings – Section 58 -
Calculation of compensation for occupational disease – sec. 59 - Deductions from employees
prohibited – Section 60
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11.18 MEDICAL AID AND REHABILITATION BENEFITS

11.18.1 Conveyance of an Injured Employee - Section 61
This Section places responsibility for conveyance of an injured employee to hospital or
medical practitioner on the employer and the DG shall bear a reasonable cost of this. This
part also provides for: - Medical aid costs – Section 62 - Submission of medical reports
Section 63 - Fees for medical aid – to be borne by the DG according to tariffs – Sec. 65 -
Demand by employer for Contribution by employee to medical aid fees prohibited – Sec. 66 -
Section 67 attempts to harmonise medical aid provided under an employer’s own scheme and
that provided for under this Act.
CHAPTER TWELE:
OCCUPATIONAL HEALTH AND SAFETY
12.0 Introduction
Occupational health and safety is related with economic activities undertaken in the country.
As the economic activities grow and expand, occupational injuries and diseases are more
likely to increase among workers in different sectors of economy such as agriculture, mining,
transport, and manufacture.
This may result in high occupational health and safety services demand, which might be
difficult to meet by developing countries that are prioritizing economic expansion without
regard to their impact on occupational health and safety.
12.1 Laws, Regulations, and Standards of Occupational Health

The ILO Convention No. 161 on Occupational Health Services, the World Health
Organization (WHO) Global Strategy on Occupational Health for All, and the WHO
Global Plan of Action for Workers' Health, 2008-2017, call for the organization of
occupational health services to all working people of the world.
In Tanzania there are various laws, rules, and regulations on occupational health and safety
formulated and implemented under different ministries, departments, and agencies.
The earliest legislation is the Factories Ordinance Cap. 297, promulgated in 1950, which
became operational in January 1952. This legislation emphasized the protection of workers'
health in factories, which were largely owned by foreign companies, hence leaving many
sectors out.
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Because of the limited scope of the Factories Ordinance, the Occupational Health and
Safety (OHS) Act 2003 was enacted. Although this act widened the scope of application and
recognized roles played by other public and private institutions and it is now the main
legislation governing occupational health and safety practice in Tanzania, it still leaves out
the self-employed and informal sectors.
Much of the OSH legislation reflects the Factories Act 1950, which required examinations
of cranes and lifting equipment, steam boilers, and so on and slightly covers health issues666.
The Act also provides for notification and reporting of occupational accidents resulting in
injuries and fatalities and obliges workplaces to follow a prescribed procedure to initiate and
maintain a suitable means of collecting, recording, analysing, and reporting the occurrences
to the Occupational Safety and Health Agency (OSHA).
The Occupational Health and Safety Act of 2003 lays the burden of provision on protective
equipment on the employer, clearly stating that “Where in any factory or workplace, workers
are employed in any process involving exposure to any injurious or offensive substance or
environment, effective protective equipment shall be provided and maintained by employer
for the use of the persons employed667.
The issues relating to occupational health and safety are mainly governed by the
Occupational Health and Safety Act, 2003 and the Employment and Labour Relations Act
2004. The Occupational Health and Safety Act contains provisions seeking to protect the
health and welfare of workers and improve working environment, including supply of
drinking water, washing facilities, first aid facilities, protective equipment and medical
examination668.
The Act applies to factories and all other work places unless exempted by the Minister in
accordance with the provisions of the Act669. The Act is aimed at protecting workers’ rights in
health and safety in the workplace. It also provides for the protection of persons other than
persons at work against hazards to health and safety arising out of or in connection with
activities of persons at work, and to provide for connected matters670.
The Act also prohibits work that is not adapted to workers and provides for workers to be
protected from toxic materials and employers to provide occupational health and safety
666
See part IV and V of the Act
667
See Section 62 of the Occupational Health and safety Act No. 5 of 2003
668
See Sections 24, 54, 56, 58 & 62 of the Occupational Health and Safety Act, 2003.
669
Section 2 of the Act
670
234
services. Among the key aspects of the Act is inspection of workplaces, whereby inspectors
are empowered to enter a workplace and inspect or examine it without notice671.
The Employment and Labour Relations Act empowers the Minister responsible for labour to
make regulations in respect of matters of occupational health and safety standards and
working environment 672 . Employers must ensure safe working environment and report
occupational hazards, accidents or diseases occurring at workplace to authorities, promoting
the culture of health and safety at work. They must also train their workers on occupational
health and safety.
Factory owners also have to comply with the requirements under the Occupational Health and
Safety Act (OSHA). These include: duty to fence prime movers and transmission machinery
and provision of safety gear or appliances to their employees 673 . In case an employee is
injured, sustains an occupational disease or dies in the course of employment, the employer
will be required to comply with the requirements of the Fund and the Chief Inspector under
the Occupational Health and Safety Act. Factory owners shall also be subjected to regular
inspections by OSHA inspectors.
12.2 Duties of workers imposed under the law

The following are some of the duties of a worker imposed under the law: Workers must take
reasonable care for the health and safety of themselves and any other persons who may be
affected by his/her actions or omissions at work. They also have a duty to cooperate with the
employer to enable the duty or requirement imposed by the employer to be performed or
complied with.
They have a duty to carry out any lawful order given to him/her and to obey the health and
safety rules and procedures laid down by employer or an authorised person in the interest of
health and safety. To report to his/her employer or health and safety representative any unsafe
or unhealthy situation coming to their attention.
To report to his/her employer or health and safety representative any incident or accident
which may cause injury to their health as soon as practicable (not later than the end of a shift
unless circumstances prevent so).
671
See Section 6 (1) of the Occupational Health and Safety Act, 2003.
672
See Section 98 (1) of the Employment and Labour Relations Act, 2004.
673
See Section 25 of the Occupational Health and Safety Act, 2003.
235
12.3 General duty of an employer under the law

The employer has the following duties under the Occupational Health and Safety Act: To
register his/her factory/workplace/business with the Occupational Health and Safety
Authority674. To conduct regular medical examinations of his/her employees in accordance
with the Act675.
To choose health and safety representatives in a workplace with four or more workers676.
Employers must make sure that the workplace is safe and healthy, and must not allow any
worker to do work that is potentially dangerous. The employer shall have the duty to ensure
that factories or workplaces are provided and maintained in an accessible position, and there
is a supply of fire extinguishing equipment which shall be adequate and suitable having
regard to the fire risk involved677;
They must inform workers of any possible dangers in the workplace. They must give
necessary training to workers who use dangerous machines and materials, to make sure they
know the safety precautions678. They must reduce any dangers to a minimum before issuing
protective clothing. They must issue protective clothing where necessary.
They must prevent workers from using or working with dangerous materials or machines,
unless all safety rules have been followed. They must ensure that dangerous machines are in
good working order and are safe to work with. They must make sure that dangerous
machinery carries warnings and notices. They must make sure that somebody who knows the
work is supervising the operations to ensure the safety of workers. They must keep the
workplace open so that workers can escape from danger if necessary.
The employer is required to report any incident or accident which has occurred at a place of
work and has resulted in death, body injury, and loss of conscious, occupational illness or has
permanently incapacitated a worker, within twenty four hours from the time the incident has
occurred. Within seven days from the day the incident was reported the employer is required
to send a duly completed prescribed form containing information on the incident679.
12.4 Punishment for non-compliance Act by employer or employee

Where such a contravention has been occasioned by an employer and as a result an employee
is killed or suffers serious body injury the employer may be liable to a fine of not less than 10
674
Section 15 and 16 of the Occupational Health and Safety Act, 2003.
675
Section 24 of the Occupational Health and Safety Act, 2003.
676
677
678
Section 31 (2) (a)-(c) of the Occupational Health and Safety Act, 2003.
679
See Section 101 of the Occupational Health and Safety Act, 2003.
236
million or to imprisonment for a term not exceeding two years or both imprisonment and fine.
The Court may in addition to a fine or instead of imposing a fine may also order the cause of
contravention to be remedied. If an employee contravenes the provisions of this law relating
to health and safety, they will be liable for penalty or imprisonment or both penalty and
imprisonment depending on the offence680
NB: The law prohibits an employer from dismissing an employee, reducing the rate of his/her
remuneration, altering the terms and conditions of his/her employment for the following
reasons:
Giving evidence in court about their conditions at work; Responding to any requests by an
inspector; Refusing to do anything that is against the law; giving information about their
conditions at work; Complying with a lawful prohibition, requirement, request or direction of
an inspector; contracting an occupational or any other disease.
12.5 ENFORCEMENT OF OCCUPATIONAL HEALTH AND SAFETY

12.5.1 Establishment of the OSHA
The Occupational Health and Safety Authority (OSHA) is established (under Executive
Agencies Act No. 30 of 1997) and is the custodian of Occupational Health and Safety Act
No.5 of 2003. It is headed by a chief executive officer (CEO) who is assisted by managers for
occupational health, occupational safety, and business support.
The office of the CEO has 4 units headed by senior management officers for legal affairs,
training information and research, public relations, and internal audit. As of 2012 OSHA had
a total of 53 inspectors and 31 supporting staff stationed at the headquarters and zonal offices.
This is only 45% of the staff needed for them to perform their duties efficiently.
The primary objective of the Occupational Safety and Health Authority (OSHA) is to ensure
the creation and maintenance of ideal work environments which are free from occupational
hazards that may cause injuries or illness to all employees in work environment. The
authority has employed Labour Inspectors whose duty includes the inspection of health and
safety in workplaces.
After they prepare a report, the same is submitted to the Chief Inspector for relevant action
which could be: Advising the employer accordingly; Issuing an improvement notice; Issuing
a prohibition notice; Referring the matter to court.
680
See part IX of the Act.
237
OSHA enforces the OHS regulations standards and promotes occupational health and safety
practices in all workplaces in Tanzania mainland. These are accomplished through workplace
registration, inspections, and risk assessment; training and information on occupational health
and safety, scrutiny and approval of workplace drawings and plans, and diagnosis of
occupational diseases; and occupational health surveillance, work environment monitoring,
investigation of accidents, and authorization of private OHS providers.,
However, there are few inspections conducted by other authorities. For instance, OHS in
mining is currently administered by inspectors from Ministry of Energy and Mines, and
pesticides inspections are carried out by the Ministry of Agriculture, Food Security and
Cooperatives through the Tropical Pesticides Research Institute. The current institutional
setup makes OSHA an occupational health and safety service provider, regulator, and
enforcer, a situation that is leading to conflict of interest and unnecessary inefficiencies that
compromise workers' health.
12.5.2 Summary of the Challenges and Problems for Occupational Health in Tanzania
Tanzania, like other developing countries, faces challenges in promotion and provision of
occupation health and safety services. These include the following:
(a) Fast technological development, globalization, and expanding economy. (b) Inadequate
effective institutional framework to enhance OHS in formal and informal sectors. (c) Low
OHS skills among health care service providers. (d) Lack of resources (human, technical, and
financial) to carry out OHS. (d) Low awareness of OHS matters among the general public,
workers, and employers. (e) Low compliance to OHS standards. (f) Poor work environment
in the informal sector. (g) Inadequate OHS training and skills development. (h) Lack of
financial commitment by government and social partners to enhance occupational safety and
health activities. (i) Government officers who are not fully committed or motivated to enforce
health and safety law.
238
239
CHAPTER THIRTEEN:
EMPLOYMENT FOR NON-CITIZEN
▪
13.0 NON-CITIZEN (EMPLOYMENT REGULATION) ACT OF 2015
13.1 Introduction
The member of the parliament passed the Non-Citizen(Employment Regulation) Act681,
which, as its name suggests, was geared forth to regulating the employment of non-citizens in
the country and it was assented on 25th April 2015 by Jakaya Kikwete (by then URT
President).
Thus the said Act is the main Legislation regulates generally the employment of non-citizens.
As per the long title of the Act, the law was geared forth to regulate and realign the legal
regime for employment and engagement in other occupation by non-citizen in Tanzania
mainland and other related matters.
Generally speaking the Act among other was enacted to streamline the process for application
and issuance of work permits and putting in place a “good base” for implementing regional
labour agreements.
13.1.1 Application of the Act

As per Section 2 (1) of the Act the legislation’s application will be limited to mainland
Tanzania. In the same sense the Act does not extend to cover the envoys, consular and other
people that are expressly exempted by minister under the Act.
13.1.2 Provisions on the Relevant Authorities

The Act assigns various government institutions charged with different tasks to regulate the
employment of foreigners in Tanzania. It entrust the Minister of Labour and Employment
under Section 4 (1)-(8) the authority in all matters relating to the employment and
engagement of non-citizens and accords him with various powers, which including among
others, the authority to exempt anyone from having to meet the requirements stipulated under
its provisions and the authority to publish in the Government Gazette information identifying
areas of employment/occupation in which non-citizens may participate.
Section 5 of the Act makes the task of implementing its provisions the responsibility of the
Commissioner of Labour, whose functions include advising the Minister on a broad range of
681
Repealed part VI of the National Employment Service Act of 1999 under Section 27. The Act also amended
other legislations such as the Education Act and refugee Act.
240
issues related to the employment of non-citizens in Tanzania, receiving and processing of

applications for work permits, and keeping and maintaining a register of records of its
activities.
As the authority charged with the implementation of the legislation, the Commissioner is
accorded a number of powers, including the power to “issue, vary, renew or cancel any work
permit.” So by virtue of Section 5 (3) of the Act, it’s the Labour commissioner that issue
work permit in Tanzania Mainland.
The Act under Section 6 designates what it calls “authorized officers” to enforce its
provisions. These include labour officers, immigration officers, police officers, and anyone
designated as an authorized officer by the Minister.
13.1.3 Categories of work permit

Any person who wishes to employ or engage a non-citizen in any occupation shall apply for a
work permit to the labour Commissioner prior to the entry by that non-citizen. Work Permits
are issued by Labour Commissioner. After obtaining work permit a non-citizen is required to
apply for a resident permit with the Director of Immigration Services.
Foreign investors with project worth 500,000 USD and above can obtain labour and
immigration documents such as work permits, resident permits through the labour and
immigration officers stationed at Tanzania Investment Centre One Stop Centre.
The Act under Section under Section 13 (1) (a)-(e) establishes five categories of work
permits which includes; Work permit class A: Is issued to a foreign investor who is Self-
employed (owner of the business, Directors); Work permit class B-Is issued to non-citizen
employees who possess prescribed profession including medical and health care
professionals, experts in oil and gas, teachers and University Lecturers in Science and
Mathematics;
Work permit class C-Is issued to non-citizen employees who are in possession of such other
profession apart from those in category B. Work permit Class D- issued to a non-citizen
employed or engaged on a registered religious or charitable activities Guideline for
Missionaries and Volunteers; Work permit Class E will be issued to refugees.
13.1.4 Procedures for Application of work permits682
682
Retrieved from https://wikiprocedure.com/index.php/Tanzania_-_Apply_for_Work_Permit on April 09 2019
at 22:17 HRS (This page was last edited on 8 February 2019, at 13:33); See section 10 (1) and (2) of the Act
241
13.1.4.1 Online Application

Applications may be done online or in-person. For online application (which can be done to
all classes of work permit) the following procedures are evident;
(1) Open the Untied Republic of Tanzania work permit application form portal (2)
Click on the tab “apply” and fill in the following information i. Type of permit applying
for ii. Name /Date of birth/ nationality /passport number/ address iii. Upload a copy of
passport iv. Academic qualifications v. Work experience and skills vi. For self-employed
applicants (state specifically the type of business to be carried out) vii. Place of work in
Tanzania viii. Particulars of any previous application for work permit in Tanzania whether
granted/ refused ix. Employer details.
(3) Print Application: You can print the application by clicking the “Print Application”
button. If the button is clicked, a PDF form with the applicant information will be
downloaded automatically for printing. You can edit or update your information, by simply
clicking on the “edit application”.
(4) Upon completion of the application, one can proceed to submit it by clicking the request
bill button. The applicant will then be issued with an electronic bill including a control
number from the Government Electronic Payment Gateway- generated by the online system.
13.1.5 APPLY IN-PERSON

13.1.5.1 For Class A Permit
Visit the Department of Immigration Services offices and request for Application Form
TFN 901 Work Permit Application form. There is no charge for the form and no processing
fee.
The application form should be accompanied with the following, a) Memorandum and
Articles of association b) CV of investor c) verified birth Certificates d) 5 photographs
passport size d) Project write-up.
ii. Pay the standard fee according of USD 1,600 for a Class A permit (USD 800 for
renewal), which is generally valid for two years.
The stated amount should be deposited in to the Ministry’s Account (Permanent Secretary
Ministry of Labour and Employment 0250211745400 CRDB Bank) and attach a receipt of
payment should be attached to the application on submission.
242
13.1.5.2 For Class B, C, and D Permit

Visit the Department of Immigration Services offices and request for Application Form TFN
901 Work Permit Application form to fill. There is no charge for the form and no processing
fee.
The application form should be accompanied with the following, a) justification letter b) five
photographs, c) birth certificate, d) curriculum vitae, e) academic qualifications, f) proof of
experience, g) organisational chart, h) offer of employment, i) Proposed contract of
employment j) Sectorial approvals (where applicable)
The Labour Department reviews the application and makes a positive or negative
recommendation to the Department of Immigration.
ii. Pay standard fee according to class that you are applying for as it elaborated below a)
Class B 600. b) Class C USD 1000, c) Class USD 500 d) and Class E Free. The stated
amount should be deposited in to the Ministry’s Account (Permanent Secretary Ministry of
Labour and Employment 0250211745400 CRDB Bank) and a receipt of payment should
be attached to the application on submission.
13.2 PROTECTION OF LOCAL TALENTS

A key provision in the legislation restricts the hiring of non-citizens to jobs for which local
talent is unavailable. In this regard Section 11 (2) of the Act, specifically states, “the Labour
Commissioner shall, before approving an application for a work permit [for a non-citizen],
satisfy himself that all possible efforts have been explored to obtain a local expert.”
13.3 SUCCESSION PLAN:

Section 7 of the Act requires any employer who hires or engages a non-citizen to make plans
for a Tanzanian worker to eventually take over the position. It requires employers to prepare
what it calls a “succession plan,” including “a well-articulated plan for succession of the non-
citizen’s knowledge or expertise to the citizens during his tenure of employment.”
Further under Section 7 (2) of the Act, the employee is required to establish an effective
training programme to produce local employees to undertake the duties of the non-citizen
expert.
13.4 CRIMINAL PENALTIES:

Section 9 of the Act criminalizes the hiring of non-citizens who do not possess a valid work
permit or a certificate of exemption. It also bans non-citizens who do not have work permits
or exemption certificates from “engaging in any occupation for reward, profit or non-profit.”
243
Violation of these bans is an offense punishable on conviction by a fine of at least TZS10

million (about US$5,136), at least two years in prison, or both.
13.5 THE NEW NON-CITIZEN EMPLOYMENT REGULATION OF 2016

13.5.1 Introduction:
On, 30th, December, 2016, the Minister of State, Prime Minister’s Office, Policy,
Parliamentary Affairs, Labour, Youth, Employment and Persons with Disability, published
through the Government Notice No. 331 dated 30 December 2016 the Non-Citizens
(Employment Regulations) Regulation, 2016683 (herein referred to as the Regulations).
The new Regulations were enacted to supplement the main law on employment of non-
citizens in Tanzania i.e. The Non-Citizens (Employment Regulation) Act, 2015 on
various matters with regards to employment of non-citizens in Tanzania.
The matters that were supplemented includes, Criteria and conditions for issuance of each
type of work permit, Employment of Refugees, Employment of non-citizens in the public
sector, Bulk recruitment of non-citizens, Report on cessation of employment and failure by
non-citizen issued with work permit to enter Tanzania within stipulated time, work permits
for shorter period than stipulated in the Act(Short-term work permits), inclusion of succession
plan in every renewal of work permit application, and procedure and grounds for seeking
exemption from application of the Act by the employer.
13.6 ELIGIBLE CRITERIA AND CONDITIONS FOR GRANTING WORK

PERMIT:
13.6.1 Documents required to accompany the application
As per Regulation 3 of the Non-Citizens (Employment Regulations) Regulation, 2016,
any person who wishes to employ or engage a non-citizen in any occupation shall apply for a
work permit to the labour Commissioner prior to the entry by that non-citizen.
In Rock City Tours Ltd vs. Andy Nurray684, it was held that (i) Employment of a non–
citizen who has no work permit/violated TZ laws does not give rise to enforceable contract
and, therefore, the CMA lacks jurisdiction to entertain the claim. (ii) The issue of validity of
the employment contract can be enquired into at any stage of proceedings, including at the
revision stage because it goes to the root of the cause of action on termination.
683
The Regulations, which are made under the Non-Citizens (Employment Regulation) Cap 436
684
Revision No. 69 of 2013: High Court of Tanzania (Labour Division) at Mwanza (Unreported)
244
The Regulations have pointed out the documents that should accompany an application of
work permit. Specifically Regulation 4(1) (a) of the Non-Citizens (Employment
Regulations) Regulation, 2016 provides that the following exhaustive list of certified
copies of documents shall accompany an application for work permit class A:
A letter justifying why a work permit should be granted; Two recent passport-size
photographs; A copy of a valid passport; Sectorial approvals (where applicable);Previous
work permit (for renewal application; A copy industrial license, business or operating license;
A copy of certificate of Tax Identification Number (TIN); A copy of certificate of Value
Added Tax (where applicable); A copy of certificate of incorporation or business name and
extract from the Registrar of companies; Memorandum and Articles of Association (where
applicable)
The documents that should accompany an application for work permit Class B, C and D
are: Contract of employment or engagement duly signed by relevant parties; Job or
engagement description; Curriculum vitae of non-citizen; Two recent passport-size
photographs; Copy of academic or professional certificates of non-citizen; Copy of
accreditation certificate from respective professional entities (where applicable).
Certified translation of certificates or documents by competent authority like Embassy,

Consular etc.; Copy of a valid passport; Previous work permit (for renewal application); Copy
of industrial, business or operating license; Copy of certificate of incorporation or business
name; Memorandum and Articles of Association; A succession plan (for renewals); Sectorial
approval (where applicable); Certificate of Incentive (if any)685.
13.6.2 Stipulated time frame to handle the application

According to the Regulations 5 the Non-Citizens (Employment Regulations) Regulation,
2016,, the Labour Commissioner may within 14 days approve or reject any submitted
applications and communicate the same to the applicant.
13.6.3 Condition and criteria for issuance of work permit

As per Regulation 6 (1) (a)-(e) of the Non-Citizens (Employment Regulations)
Regulation, 2016, The Labour Commissioner shall not issue a work permit unless he is
satisfied of the following criteria and conditions: Applicant is eighteen (18) years of age or
above; Applicant possesses relevant skills, qualifications and experience; Applicant is
registered by a professional body of his profession in Tanzania Mainland i.e. National Board
of Auditors and Accountants (NBAA), Tanzania Insurance Regulatory Authority (TIRA) to
685
Regulation 4 (1) (b) (i)-(xv) of the Non-Citizens (Employment Regulations) Regulation, 2016
245
mention a few; Employer provides sufficient evidence from a recognized job search
mechanism that it is unable to fill the post within Tanzania; and Employer has a well-known
address and duly registered by relevant authorities.
13.7 EMPLOYMENT OF REFUGEES

The Regulation provides a mechanism in which applications for work permits for refugees
should be submitted. Regulation 7(1) of the Non-Citizens (Employment Regulations)
Regulation, 2016 provides that, all applications for employment of refugees shall be
submitted to the Labour Commissioner by the Director of Refugees. The application should
be accompanied by his recommendations on the refugee prospective employee.
13.8 EMPLOYMENT OF NON-CITIZEN IN PUBLIC SECTOR

Regulation 8 of the Non-Citizens (Employment Regulations) Regulation, 2016, obliges
that all applications for employment of non-citizens in the public service shall be submitted to
the Labour Commissioner by the Permanent Secretary, the application which should be
accompanied with his recommendation on the prospective non-citizen employee.
13.9 BULK RECRUITMENT OF NON-CITIZENS

Under Regulation 9 (1) of the Non-Citizens (Employment Regulations) Regulation, 2016,
an employer who wishes to recruit a bulk of non-citizens is obliged to seek permission of the
Labour Commissioner in writing 686 . The ration in determining bulk recruitment is being
regarded by the Labour Commissioner that; in the event that bulk recruitment work permits
are granted, the work permit may be granted at a ratio of ten local employees to one non-
citizen employee.
13.10 IMPOSED RESTRICTION FOR USE OF A WORK PERMIT AS A

RESIDENCE PERMIT:
The current regulations has imposed restrictions of using work permit as a residence permit,
whereas under Regulations 11 of the Non-Citizens (Employment Regulations)
Regulation, 2016, stipulate that: The latter clearly clarifies that an investor or the employee
intend to work and reside in Tanzania must have both work and residence permits prior to
commencement of employment or business in Tanzania.
686
Regulations 2 states bulk recruitment as recruitment of many non-citizen employees in phases for the
execution of specific project within a specified period of time.
246
13.11 CESSATION OF WORK PERMIT

Regulation 18 of the Non-Citizens (Employment Regulations) Regulation, 2016, that, a
work permit issued to a non-citizen shall cease to be valid if the non-citizen employee fails to
enter Tanzania for any cause whatsoever within 90 days from the date of issue.
13.12 WORK PERMIT FOR SHORTER PERIOD

Under Regulation 12 (1) of the Non-Citizens (Employment Regulations) Regulation,
2016, provides for issuance by the Labour Commissioner of work permits for a lesser period
than the one stipulated in the Act which is 2 years. These permits are termed as short-term
work permits which were not covered in the Act.
13.13 PROCEDURES FOR EXEMPTIONS TO EMPLOY A NON-CITIZEN:

Any employer who wishes to employ a non-citizen and he is restricted by the conditions
imposed by Regulation 13 of the Non-Citizens (Employment Regulations) Regulation,
2016 which requires certain post(s) to be filled by only Tanzanians citizens shall apply in
writing to the Minister for an exemption from application of the provision of the Act.
In doing so, the Minister shall seek advice from the Labour Commissioner and may
communicate her/his decision within 14 days. The granted exemption may further be
amended or withdrawn by the Minister after consultation with the Labour Commissioner.
13.13.1Grounds for Exemption

Sufficient evidence to satisfy Minister that employer is unable to fill particular post(s) due to
lack of qualified personnel in Tanzania Labour Market and or complexity of technology
employed by the business enterprise;
Justification that investment is of great value to the country’s economy in terms of job
creation, tax payment and transfer of technology; and
The non-citizen has a valid and legally recognized marriage to a Tanzanian and such marriage
has subsisted for a period of not less than three years687.
In issuing the exemption the Minister may take into account waiver of fees specified under
the provisions of the Regional, Bilateral, Multilateral Agreements and Memorandum of
Understanding in which the United Republic is a signatory688.
687
Regulation 13 (5) (a)-(e) of the Non-Citizens (Employment Regulations) Regulation, 2016
688
Regulation 13 (6) of the Non-Citizens (Employment Regulations) Regulation, 2016
247
13.14 SUBMISSION OF A SUCCESSION PLAN

The Regulation 16 of the Non-Citizens (Employment Regulations) Regulation, 2016,
obligates an employer who owns an existing business to include a succession plan in every
new application for recruitment of a non-citizen. If the employer is the owner of a new
business, such Succession plan shall be lodged within 3 months from the date of issuance of
the work permit.
13.15 PERIOD FOR RENEWAL APPLICATION

As per Regulation 17 of the Non-Citizens (Employment Regulations) Regulation, 2016,
the application for renewal shall be lodged two months before the expiry of the work permit.
248
CHAPTER FOURTEEN:
SOCIAL SECURITY IN TANZANIA
14.0 Definition of the term Social Security

Social Security in Tanzania is grounded in the current Constitution (1977) Article 11 (1),
this Article talks about welfare or citizens as a right. Social Security means any kind of
collective measures or activities designed to ensure that members of society meet their basic
needs and are protected from the contingencies to enable them maintain a standard of living
consistent with social norms689.
International labour organization (ILO) define social security as:- “The protection
measures which society provides for its member, through a series of public measures against
economic and social distress that would otherwise be caused by the stoppages or substantial
reduction of earnings resulting from sickness, maternity, employment injury,
unemployment, disability, old age, death the provision of medical care subsidies for families
with children.”
14.1 Key element of Social Security in Tanzania
The social security system in Tanzania has the following key elements:-
Social assistance schemes which are non-contributory and income-tested, and provided
by the state to groups such as people with disabilities, elderly people and unsupported parents
and children who are unable to provide for their own minimum needs. In Tanzania social
assistance also covers social relief, which is a short term measure to tide people over a
particular individual or community crisis;
Mandatory schemes, where people contribute through the employers to pension or provident
funds, employers also contribute to these funds;
Private savings, where people voluntarily save for retirement, working capital and insure
themselves against events such as disability and loss of income and meet other social
needs690.
689
The National Social Security Policy of 2003 at p. 2. The National Social Security policy is a product of a
series of consultations with stakeholders which started in year 2001. The policy was adopted by the government
early in year 2003. The aim of this policy is to realize the goals and objectives set out in the vision 2025 by
extending social security services to the majority of the Tanzanians.
690
The National Social Security Policy of 2003 at p. 4
249
14.2 Scope of Social Security

The Scope of social security is very wide. It covers the aspects relating to social and
economic justice. All social security schemes furnished by the government are broadly
classified into two types which are the Social Assistance, and Social Insurance.
According to the Social Security (minimum standards) Convention (No. 102) adopted by
the ILO at its 35th session in June 1952, the following are the nine components of Social
Security that configure its scope. The convention Itemised number of contingencies and
benefits required in the minimum standards convention to include Old Age, Invalidity,
Survivorship, Employment Injury, maternity, medical Care, sickness, Unemployment
and Death.
14.3 Benefits offered by social security scheme
The benefit offered by these scheme are among those outlined in the ILO, which include long
term benefits such as Old age pension, Invalidity pension, and survivor pension and short
term benefit include unemployment benefit, maternity benefit, employment injury, Health
Insurance, Funeral grants, Education grants.
14.4 BACKGROUND TO SOCIAL SECURITY IN TANZANIA
14.4.1 Before independence
Formal social security is regulated mechanism of protecting citizens against social
contingencies. This system has existed in Tanzania well before independence; whereby
various policy statements have been made and Acts passed in regard to the protection of the
population against contingencies like injury, loss of employment and old age. These include
the Master and Native Ordinance Cap 78 as amended by Cap. 371, Provident fund
(Local Authorities) Ordinance Cap.53 and the Workmen’s Compensation Ordinance
Cap 262.
14.4.2 After independence
After independence new legislations were enacted and others amended. These include the
Severance Allowance Act No. 57 of 1962; the National Provident Fund Act No. 36 of
1964 amended by Act. No. 2 of 1975 which was later repealed and replaced by the
National Social Security Fund Act No. 28 of 1997; the Parastatal Pensions Act No. 14 of
1978, the Public Service Retirement Benefits Act of 1999, the National Health Insurance
Fund Act No. 8 of 1999 and Local Authorities Provident Fund Act. No. 6 of 2000691.
Before the year 2018, there were five major formal institutions that provide social security
protection in Tanzania. These are the National Social Security Fund (NSSF) offering social
691
250
security coverage to employees of private sector and non-pensionable parastatal and

government; The Public Service Pension Fund (PSPF) providing social security protection
to employees of central Government under pensionable terms;
Parastatal Pension Fund (PPF) offering social security coverage to employees of the both
private and parastatal organizations; The Local Authorities Provident Fund (LAPF)
offering social security coverage to employees of the Local Government and the National
Health Insurance Fund (NHIF) offering health insurance coverage to pensionable
employees of central government692.
Following recent reforms in social security schemes, the five schemes were merged and there
is formation of two schemes which can now provide social protection services to private and
public organizations and individuals. These are The Public Social Security Services Fund
(PSSSF) cover for public employees while National Social Security Fund (NSSF) covers
for private sector employees.
14.5 THE SOCIAL SECURITY SCHEMES IN TANZANIA
According to Social Security Regulatory Authority (SSRA) 693 , there were five social
security funds in the country (before they were merged into two), with almost similar benefits
but operating and administered separately. These schemes are Parastatal Pension Fund (PPF),
National Social Security Fund (NSSF), Government Employees Pension Fund (GEPF), and
Local Authority Provident Fund (LAPF), National health insurance fund (NHIF) and The
Community Health Fund (CHF). All these schemes are in the same Social Security Sector but
differ in Administration, operations and even benefits offered. The said schemes are detailed
hereunder;
14.5.1 NSSF Pension Fund
The NSSF Pension fund is established under the Act of the parliament No. 28 0f 1997 to
replace the National Provident Fund (NPF) for the reason of extending coverage of
benefits packages offered. The NPF provided benefits once at the time of retirement- the so
called “Lump sum” which became less useful for the retirees after they spend all the money.
The objective of the fund seemed not attained for this reasons hence the birth of NSSF.
Currently NSSF Pension Fund offers a wide range of benefits trying to fit the ILO
international standards, where they are all stipulated in the NSSF Act of 1997, Section 21
(a)-(g). They include; Retirement Pension, invalidity Pension, survivor’s pension, funeral
grants, maternity benefits, employment injury, and Health insurance benefit. All these
benefits are provided under specific criteria and qualifications stipulated in the Act.
692
693
Established under Section 4 (1) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
251
NSSF covers the following groups of people; o Private sector including non- government
organizations, companies, embassies. O Parastatal organizations o Government ministries and
departments o Self-employed or any other person not covered by any other scheme.
14.5.2 PPF Pension Fund
PPF was established under the Parastatal Pension Act No.14 of 1978 as amended by the
Parastatal organizations Pension Scheme Act of 2002. PPF with its Headquarters situated
in Dar es Salaam, sets the contribution rate at 10% or 15% for employers and 10% or 5% for
employee to make a total of 20% of employee’s salary.
It covers members of the following categories; All Parastatal organizations and all private
companies in which Government owns shares, any companies which are not covered by any
Social Security Fund, In addition all parastatal organizations which have been restructured
through privatization, sale, lease or liquidation are obliged to continue with PPF membership
and most of all is Self-employed.
PPF operating with Traditional and Deposit Administration Schemes, provides the following
Benefits to its members; Old Age Pension, Sickness/disability benefit, Death Benefit,
Survivor’s Benefit, Education Benefit, Gratuity Benefit and Withdrawal Benefit as stipulated
in the Act.
14.5.3 LAPF Pension Fund

The Fund was established by the LAPF Act No. 9 of 2006 which repealed the LAPF Act
No. 6 of 2000 with its Headquarters situated in Dodoma. The former LAPF Provident Fund
was mandated to defined contributions (DC) plan. It operated as a Provident Fund till July,
2005 when it was converted into Defined-pension scheme offering retirement benefits similar
to that of Public Service Pension Fund (PSPF).
The current LAPF Pension Fund offers the various benefits which are; Old Age pension,
survivor’s pension, invalidity benefit, withdrawal benefit and funeral grant. A member of
LAPF Pension Fund and his employer is obliged to pay 5% and 15% of his/her salary
respectively on monthly basis.
Categories covered under this Scheme are employees of; the Government Authorities, Local
Government Loan Board, the Fund, Organization under the ownership of Local Government
Authority and any Institution or Self-employed who elects to join the Scheme. (Sec. 2(1)(a-e)
and 2).
252
14.5.4 GEPF Retirement Benefit Fund

GEPF Retirement Benefit Fund was established by Act of the parliament No.8 of 2013 to
replace the Act No. 51 of (R.E 2002) of the former Government Employees Provident Fund.
The scheme operates both Compulsory and Voluntary Schemes to cover the wide range of
members from formal and informal employments. Currently the GEPF Retirement Benefit
Fund covers employees from every sector including the Self-employed as mandated by Act
No. 8 of 2013.
Previously under Act No. 51 (2002), GEPF covered employees working under contractual
terms and those who are not eligible for pension under existing Law.
The fund currently offers benefits such as; o Retirement benefit o Survivors benefit o
Invalidity benefit o Funeral grant o Education Benefit.
However, the Act allows the fund to design other benefits without prejudice to subsection (i)
of the GEPF Retirement Benefit Fund Act.
14.5.5 National Health Insurance Fund (NHIF)
The NHIF as health mandatory mainly was established by parliamentary Act No. 8 of 1999 to
coverer only Central Government employees but later extended coverage to all public
servants through amendment of the NHIF Act. The scheme is established to facilitate access
of health services to principal member and his/ her dependents. NHIF sets contribution rate of
6% of member’s salary equally shared by employer and the employee.
In supporting the Health Sector, NHIF provides benefits packages comprising of Registration
and consultation fees, Outpatient and Inpatient services, medicines, diagnostic tests,
Physiotherapy, Optical and Surgery services.
14.5.6 Community Health Fund (CHF)
In the same sector CHF operates as a health voluntary scheme establishes by Act No. 1 of
2001 to facilitate access of health services to the community. The scheme operates under flat
amount of contribution from its members determined by the community itself. This scheme is
mostly limited within district administration and it is currently managed by the NHIF for its
financial and operational survival.
CHF financing options are member’s contributions; other sources include Government
funding, Donor contributions, Social health insurance (NSSF, NHIF), and Private health
insurance, Donation from individuals, companies, NGOs and out pocket payments694.
694
URT 2001, CHF Best Practice Workshop by J. E Sendoro- CHF Coordinator, MOH & SW. Tanzania, 2007)
253
They are the National Social Security Fund (NSSF), PPF Pension Fund, Public Service
Pension Fund (PSPF), Local Authorities Pension Fund (LAPF), and Government Employees
Provident Fund (GEPF).
14.6 THE SOCIAL SECURITY REGULATORY AUTHORITY (SSRA)
The Authority is Established under Section 4 (1) of the Social Security (Regulatory
Authority) Act695 and it is a body corporate with perpetual succession and on its own name
be capable of among others entering into contract, suing and being sued, own property and
dispose them, borrowing and landing and do all other acts that anybody corporate can do696.
Thus a person intending to establish or operate as a scheme or act as a manager,

administrator, and custodian must first be registered under the Act 697 . This is done by
submitting an application form in a prescribed form to the Authority 698 . The condition
precedent the registration of the scheme are those stipulated under Section 15 (1) (a) (I)-(iii)
(b) and (2) of the Act, for example a scheme must be established under a written law or an
irrevocable trust deed approved by the Authority.
14.6.1 Functions of the SSRA

SSRA was established and start its operations in 2010 after the enactment of the SSRA Act
No. 8 of 2008. This Act was one of the implementation or tool of the National Social Security
Policy of 2003. The authority was made with its mission “to insure quality Social Security
Services reach every Tanzanian through soundly regulated social security sector”.
The functions and duties of the Authority are; 1. To register all Managers, Custodians and
Schemes 2. Regulate and supervise the performance of all Managers, Custodians and Social
Security Schemes 3. Issue guidelines for the efficient and effective operation of the Social
Security Sector 4. Protect and safeguard the interests of members 5. Register, regulate and
supervise Administrators 6. Advise the Minister on policy matters relating to Social Security
Sector;
7. Adopt and promulgate broad guidelines applicable to all Managers, Custodians and Social
Security Schemes 8. Monitor and review regularly the performance of the Social Security
Sector 9. Initiate studies and reforms in the Social Security Sector 10. Appoint interim
695
[Cap 135 R.E 2015]
696
See Section 4 (2) (3) (a)-(e) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
697
Section 14 of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
698
Section 16 of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
254
Administrator of schemes, where necessary 11. To facilitate extension of Social Security

coverage and 12. To conduct public awareness and sensitization on Social Security699.
In discharging the above stipulated duties and functions the authority where necessary may
collaborate, liaise and consult the relevant authority and stakeholders in social security
sector700.
14.6.2 Powers of the SSRA

As per Section 6 of the Social Security (Regulatory Authority) Act701, an authority has
powers to exercise and perform supervisory and regulatory functions over all managers,
custodians, administrators of the scheme. Moreover the Authority has power to cause
actuarial valuation to be carried on respect of the scheme, take disciplinary measures and
conduct inspection and examination with or without notices702. In exercising its power the
authority may issue directives in form of notices, letters, orders or circulars703.
14.6.3 Operation of the SSRA

SSRA operates according to the roles, responsibilities and functions clearly stipulated in the
SSRA Act. The Authority operates under the Board of Directors comprises of nine (9)
members lead by the Director General (DG) who is appointed by the President. The
board of directors is established under Section 7 (1) Social Security (Regulatory Authority)
Act704.
The Board of Directors of the Authority which is composed of; The Chairman who shall
be appointed by the President; The Treasury Registrar; The Labour Commissioner; Two
representatives from the Tanzania Employers' Association; Two representatives from the
Trade Unions Congress of Tanzania; One member from persons who possess knowledge and
experience in social security matters; The Director General who shall be an ex-officio
member705. The Director General is the secretary of the board706.
699
Section 5 (1) (a)-(k) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
700
Section 5 (2) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
701
[Cap 135 R.E 2015]
702
Section 6 (2) (a)-(e) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
703
704
[Cap 135 R.E 2015]
705
Section 7 (1) (a)-(g) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
706
Section 7 (2) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015] and by virtue of Section
12 Director General is appointed by the President and he is the chief executive and responsible with day to day
activities and management of the affairs of the Authority. The other stuff of the Authority are appointed by the
board for proper discharge of the function of the Authority (See Section 13 thereof).
255
The board is responsible on the following functions as stated under Section 9 (a)-(h) of the
SSRA Act 707 ; Control, supervise and administer assets of the Authority; Determine the
provisions to be made for capital and recurrent expenditure; Receive any grants, gifts,
donations or endowments on behalf of the Authority; Enter into association with other bodies
or organizations within or’ outside Tanzania; Form committees to perform functions as may
be directed by the Board; Be responsible for the management and control of the Authority;
Advise the Minister on matters relating to the development or reform in the social security
sector.
14.6.4 Establishment of the Social Security Tribunal

To avoid conflicts among the stake holders, Section 43 (1) Social Security (Regulatory
Authority) Act 708 , establishes the Social Security Tribunal which have jurisdiction to
determine appeals against any decision of the Authority. All disputes involve a scheme and
authority shall be referred to the tribunal709.
A dispute between; member or beneficiary and scheme shall be referred to the Authority; A
scheme and a scheme shall be referred to the Authority; A member and a manager, shall be
referred to the Authority and; A scheme and the Authority shall be referred to the Tribunal710.
The tribunal is composed of the chairman who shall be a judge of the High Court or a person
who qualifies to be appointed as Judge of the High Court, Two experienced members with
social security matters and one member with experience in occupational safety and health711.
They are all appointed by the minister after consultation with chief justice712. The members in
the tribunal do hold office in part time basis and they only meet where there is a business to
transact713.
Any member or beneficiary who is aggrieved by the decision of the scheme is afforded with
the avenue to apply in writing for review to the authority within 30 days after receiving such
decision. Then the Authority is required to review the decision within 30 days after receipt of
such application and communicate the same in writing to the applicant with reasons for its
decision 714 . Where one still not satisfied for the decision of the Authority may opt to an
707
[Cap 135 R.E 2015]
708
[Cap 135 R.E 2015]
709
Section 44 (3) (d) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
710
Section 44 (3) (a)-(c) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
711
Section 43 (2) (a)-(c) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
712
713
714
Section 44 (1) and (2) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
256
appeal to the Social Security Tribunal within 30 days from the date when the alleged decision
was rendered715.
14.7 THE PROCESS OF SOCIAL SECURITY REFORMS IN TANZANIA

Several consultations were made, with stakeholders proposing the merging of the funds into
either one or two entities to reduce operational costs. The International Labour Organisation
(ILO) once advised the government to merge the pension funds into one or two entities to
reduce the costs of pension benefits and operating costs, arguing that having many of them
reduces their ability to offer quality services.
As response to this the Government of Tanzania on 17th November 2017 tabled before the
Parliament, the Public Service Social Security Fund, Bill, 2017 (“the Bill”). The Bill was
proposed for an Act to provide for the establishment of the Public Service Social Security
Scheme in Tanzania. The proposed Bill also provide for contributions to and payments of
social security benefits in respect of the service of the employees in the Public service.
Moreover, the new Act will the existing Pension Funds legislations including, repeal of the
Public Service Retirement Benefit Act Cap 371, the LAPF Pensions Fund Act Cap 407, the
GEPF Retirement Benefits Fund Act Cap 51 and the PPF Pensions Fund Act Cap 372. On top
of that, the Bill proposes for the amendments to the National Social Security Fund Act Cap.
50 with a view of specifically remodelling the scheme to provide for social security benefits
to employees in the private sector.
Therefore, upon the enactment of the Bill, there shall be two tier systems of Social Security
Schemes, namely, the Public Service Social Security Fund under the Public Service Social
Security Act and the Private Sector Social Security Scheme under the National Social
Security Fund Act Cap. 50.
Consequently the bill was passed into law and the Public Service Social Security Fund Act,
(No. 2), 2018 was enacted which was also complimented with two Regulations that is
The Public Service Social Security Fund (General) Regulations, 2018 GN No. 466
published on 17/08/2018716 and Social Security Schemes (Benefits) Regulations, 2018,
GN. No. 467 published on 17/08/2018717.
715
Section 46 (1) and (2) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
716
Revoked the Public Service Regulations, GN. No. 400 of 2003 (See regulation 61 thereof)
717
Revoked the Social Security Schemes (Pension Benefits) Rules, 2017. Notwithstanding the revocation of the
Social Security Schemes (Pension Benefits Harmonization) Rules, 2017, transaction, claim or directive made or
issued prior to the commencement of the Regulations are not be affected (See Regulation 27 thereof)
257
14.8 THE PUBLIC SERVICE SOCIAL SECURITY FUND ACT, (NO. 2) OF 2018
14.8.1 Introduction
The Public Service Social Security Fund Act, (No. 2), 2018 was assented by the President
of Tanzania on 8th February 2018 and published on 9th February, 2018; vide GN No. 6, Vol.
99 of 2018. The Act applies in Mainland Tanzania in respect of all employers and employees
in the Public Service718.
The Act is geared forth to provide for establishment of the public Service social security
Scheme; to provide for contributions to and payments of social security benefits in respect of
the service of employees in the public services; to repeal the Public Service retirement benefit
Act, the LAPF Pensions Fund Act, the GEPF Retirement Benefits Fund Act and the PPF
Pensions Fund Act and to provide for other related matters719.
Public Service is defined under the Act by reference to the meaning ascribed to it under the
Public Service Act and which definition includes judicial service, parliamentary service,
police force and prisons service and service in the specified corporations720.
14.8.2 Centralized Social Security Schemes

The Act has centralized the social security schemes by merging several existing public
schemes into one scheme (PSSSS). The merged schemes are LAPF, GEPF, Public Service
Pension Scheme (PSPF) and PPF. The National Social Security Fund (NSSF) remains to cater
specifically for employees in the private sector, self -employed, foreigners employed in
Mainland Tanzania, employees in international organization based in Mainland Tanzania, and
any other category of persons that the Minister responsible for social security matters may
specify upon recommendation by the Social Security Regulatory Authority (the Authority).
With the coming into force of the Social Security Regulatory Authority Act in 2008 (“the
SSRA Act”), there was introduced liberalization of social security schemes and since 2012
employees were at liberty to choose which scheme they preferred. That was a milestone
achievement by SSRA. But now, with the new law, we have only two schemes in place each
catering for specified category of employees with no right to choose as the law clearly states
where one belongs.
718
Section 2 of the Public Service Social Security Fund Act, 2018
719
See the Long title of the Public Service Social Security Fund Act, 2018
720
258
This change entails the transfer of membership of the employees in the public service from
the former schemes now repealed and replaced by the PSSSS, and also for transferring all
private sector employees, self -employed, employees in international organization to NSSSF.
The Act also requires all the voluntary schemes and their respective members and
beneficiaries which were administered by the former schemes to be transferred to the PSSS
Fund and their respective trust deeds to be deemed to have been entered by the Board of
Trustees of the PSSS Fund721. The law protects their contributions and will not lose nothing
in terms of their contributions and entitlements of their pensions when they reach voluntary or
compulsory retirements.
14.8.3 Establishment of the Public Service Social Security Scheme (PSSSS)

Section 4 of the Public Service Social Security Fund Act, 2018, establishes the Public
Service Social Security Scheme. This comprises of employees in the public sector employed
after commencement of the Scheme. It also comprises of all employees in the public sector
who are members of the former schemes together with those in the National Social Security
Fund722.
Former schemes are defined under Section 3 of the Public Service Social Security Fund
Act, 2018, to refer to Public Service Pension Scheme, LAPF Pension Scheme, GEPF
Retirement Pension Benefit Scheme and PPF Pensions Scheme. On the other hand, all
employees in the public sector who are now members of the National Social Security Fund
(NSSF) are transferred to the Public Service Social Security Scheme.
14.8.4 Establishment of the Public Service Social Security Fund (PSSSF)

The Public Service Social Security Fund (‘the Fund’) is established under Section 6 of the
Public Service Social Security Fund Act, 2018. The Fund constitutes, among others,
members’ contributions, funds transferred from former Funds, funds transferred from the
NSSF by members transferred to the Fund, assets from the former Funds and monies from
investments made by the Fund723.
The Fund has an obligation of ensuring that every employee in the public service receives his
retirement benefits as and when due. Assist improvident individuals by ensuring that they
save in order to cater for their livelihood during old age; and The Fund also establishes
721
722
Section 5 (1) (a)-(c) of the Public Service Social Security Fund Act, 2018
723
Section 6 (1) (a)-(f) of the Public Service Social Security Fund Act, 2018
259
uniform set of rules, regulations and standards for the administration and payments of
retirement pensions for employees in the public sector724.
By virtue of Section 49 (1) of the Public Service Social Security Fund Act, 2018, the
PSSSF draws its fund from the following sources-(a) employee and employers'
contributions; (b) monies accrued from investments; (c) such sums as may be appropriated by
the Parliament for the purpose of the Fund; (d) any sums borrowed by the Board in
accordance with the provisions of the Act; (e) monies accrued from grants and donations; and
(f) such sum as may in any manner become payable to or vested in the Fund.
Section 49 (2) of the Public Service Social Security Fund Act, 2018, directs where the fund
should be applied. Thus according to this provision the funds shall be applied for-(a) payment
of benefits; (b) investments of the Fund; (c) administration of the Fund; and (d) other uses as
may be allowed for better administration of the Act.
Meanwhile, all the assets and liabilities, powers, rights, privileges, duties or obligations, as
well as all the investments and legal entities incorporated under the former schemes will be
taken over by the PSSS Fund725. This includes the legal proceedings pending before any court
or tribunal 726 . This creates uniform set of rules, regulations and standards for the
administration and payments of retirement pension’s benefits for public service employees
and private service employees on the other hand.
14.8.5 Establishment of Board of Trustee

The board is established under Section 8 (1) of the Public Service Social Security Fund
Act, 2018. As per the first schedule to the Act the board is composed of; (a) a chairman
who shall be appointed by the president; (b) a member representing the Ministry responsible
for social security; (c) a representative from the Ministry responsible for local government
authorities;(d)a representative of the Ministry responsible for finance; (e) a law officer
representing the Attorney General; (f)two members representing most representative
employers’ organisation;(g) two members representing the most representative employees
organisation; and (h) one member appointed by the Minister from amongst persons who
possess knowledge and experience in social security matters. The member referred to under
paragraph (b)-(g) are appointed by the minister upon the recommendation by the respective
institutions.
724
Section 7 (a)-(c) of the Public Service Social Security Fund Act, 2018
725
Section 82, 83 and 84 of the Public Service Social Security Fund Act, 2018
726
Section 85 of the of Public Service Social Security Fund Act, 2018
260
The board is a body corporate with perpetual succession and on its own name be capable of
among others entering into contract, suing and being sued, own property and dispose them,
borrowing and landing and do all other acts that anybody corporate can do727. However the
Attorney General may intervene in any suit or matter instituted by or against the Board and
where he intervenes the provisions of the Cap. 5 shall apply to such matter as if it was
instituted by or against the government. The board has the duty to notify the Attorney General
of any impending suit or intention to institute a suit or a matter for or against it728.
The functions of the board shall be to-(a) register members;(b) collect

contributions;(c)manage and administer the Fund;(d) invest monies available in the Fund;(e)
be responsible for disbursement of pension, gratuity and other benefits in accordance with the
provisions of the Act;(f) advise the Minister on matters relating to the administration of this
Act; (g) do all such acts and things and to enter into all such transactions as, in the opinion of
the Board, may be necessary for the proper and efficient administration of the Fund; and (h)
do all such acts or things as the Authority may direct for the purpose of efficient management
of the Fund729.
14.9 REGISTRATION PROCESS

14.9.1 Employer to register with the fund
Section 17 (1) of the Public Service Social Security Fund Act 730, read together with
Regulation 3 (1) of the Public Service Social Security Fund (General) Regulations731,
require the employer to be registered with the fund as contributing employer using
registration Form No. PSSSF 1 contained in the Schedule of the Regulation.
The Director General is required to allot a registration number to every contributing employer
covered with the fund; this is in accordance to Regulation 3 (2) of the Public Service Social
Security Fund (General) Regulations732. Nevertheless, As per Section 17 (2) of the Public
Service Social Security Fund Act733, read together with Regulation 3 (3) of the Public
Service Social Security Fund (General) Regulations734, the Director General is required to
issue a certificate of registration to a registered employer as prescribed in Form No. PSSSF 2
of the Schedule to the Regulations. The original certificate issued should be placed by a
727
Section 8 (2) (a)-(e) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
728
Section 8 (3)-(5) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
729
Section 9 (a)-(h) of the Social Security (Regulatory Authority) Act [Cap 135 R.E 2015]
730
Act No. 2 of 2018
731
GN No. 466 of 2018
732
GN No. 466 of 2018
733
Act No. 2 of 2018
734
GN No. 466 of 2018
261
registered employer all the time in conspicuous place in work place for easy accessibility by
inspectors735
14.9.2 Registration of employee

Also the employer is required under Regulation 4 (1) of the Public Service Social Security
Fund (General) Regulations736 to register his employee as contributing employee with the
fund within 30 days from the date of employment and such registration is done by dully
filling Form No. PSSSF 3 contained under the schedule of the Regulation. The member’s
contributions accrue from the date of employment.
The employer is required upon completion of the registration to forward the appropriate
forms to the Director General737. The Director General is further required under Regulation 4
(2) of the Public Service Social Security Fund (General) Regulations738, to issue to a
member a registration number which shall be regarded as his fund registration number for the
purposes of identifying and computing member’s retirement benefits under the Act.
According to Regulation 4 (4) of the Public Service Social Security Fund (General)
Regulations739, the date of employment shall be regarded as the date of registration of the
member with the Fund and his rights on the Fund shall accrue on such date.
14.9.3 Registration of existing employers and members

Regulation 5 of the Public Service Social Security Fund (General) Regulations740, require
the existing employer and members to be issued with a new certificate and a membership
card within 6 months from the date of publication of the regulation.
14.9.4 Issuance of membership card

On receipt of the dully completed registration form the Director General is of duty bound to
issue a membership card741 in respect of all registered employees and notify the contributing
employer of the registration of the employees concerned in a manner prescribed in Form No.
PSSSF 4 of the Schedule to the Regulations742. On receipt of such card the employer is of
duty bound as soon as practicable to hand the said card to the respective employee and where
735
Section 17 (2) read together with Regulation 3 (4) of GN No. 466 of 2018
736
GN No. 466 of 2018
737
Regulation 4 (3) of GN No. 466 of 2018
738
GN No. 466 of 2018
739
GN No. 466 of 2018
740
GN No. 466 of 2018
741
See Form No. PSSSF 5 of the Schedule to the Regulations.
742
262
the employee to whom a membership card was to be served is no longer an employee of the
employer, to return the same to the Director General743.
14.9.5 Loss, mutilation or destruction of membership card

In the event where a membership card issued is lost, mutilated or destroyed, the member is
required to apply to the Director General for its replacement but upon payment of the
prescribed fee by the board and the Director General will issue a replacement card after
obtaining from the member and his employer such information as may be required for the
completion of replacement of a membership card744.
14.9.6 Change of particulars

The law allow the member to change any particular in his membership such as marital status,
number of children, name or address but the requirement is that such a member is of duty
bound to notify the Director General for such changes. Such notification should be in manner
prescribed in Form No. PSSSF 6 of the Schedule the Regulations745.
14.9.7 Notification on transfer, change of or cessation of employment

In case of member cease to be the employee, the law requires the employer to notify the
Director General of the date when such member cases to be in his employment and he is also
required to furnish with the Director General such further information that might be required
by him746. The same should be done when an employee is transferred to public institution and
in this case the employer where the member has been transferred to is of duty bound to
furnish with the Director General information regarding that transfer747.
As per Regulation 9 (3) of the Public Service Social Security Fund (General)
Regulations748, “transfer” includes change of employment from one employer to another
while registered by the Fund due to- (a) secondment; (b) attachment; or (c) transfer within
public service.
14.9.8 Notification of relocation of employer or closure of business

For an employer who intends to close or relocate business is required, within thirty days prior
the closure or relocation, notify the Director General of such relocation, change of address or
743
Regulation 6 (3) and (4) of GN No. 466 of 2018
744
745
Regulation 8 of GN No. 466 of 2018
746
747
748
GN No. 466 of 2018
263
closure of business in Form No. PSSSF 7 or as the case may be, Form No. PSSSF 8 set
out in the Schedule to the Regulations749.
14.9.9 Variation of forms

The Forms prescribed in the Schedule are applied in the manner specified in the Regulations.
However where circumstances so require, the Fund may vary or amend any form in a manner
it deems fit. Where such alteration, variation or amendment is effected the fund is required to
notify the authority within 30 days for such alteration, variation or amendment750.
14.10 CONTRIBUTION TO THE FUND

Section 18 read together with Regulation 12 (1) requires the contribution by both the
employer and employee to be paid into the Fund. The contribution payable by the
employer to the Fund shall be 20% of the employee’s monthly salary 751 whereby 5%
will be deducted from the employee’s salary 752 and 15% will be contributed by the
employer753. These rates can be varied by the Minister responsible for finance by an order
published in the Government Gazette.
These contributions are deemed to be paid to the Fund on the last day of each month. In the
same sense Regulation 12 (4) of the Public Service Social Security Fund (General)
Regulations754, requires employer contributing to the Fund to pay the amount due within one
month after the end of each month in which the last day of contribution period to which it
relates, falls.
As per Regulation 12 (5) of the Public Service Social Security Fund (General)
Regulations755, The 5℅ rate may also be varied through negotiations and agreement thus the
employer may opt to contribute a greater rate than that rate but upon the condition that the
rate of the employee's contribution shall not exceed fifty per cent of the total contribution.
Section 3 of the of the Public Service Social Security Fund Act 756 , defines the term
‘salary’ referred to in the Act means gross salary excluding bonus, commission, cost of living
allowance, overtime payments, directors’ fees or any other emoluments of a member payable
upon rendering service under the contract of service.
749
750
751
752
Section 18 (2) (a) read together with Regulation 12 (2) of GN No. 466 of 2018
753
Section 18 (2) (b) read together with Regulation 12 (3) of GN No. 466 of 2018
754
GN No. 466 of 2018
755
GN No. 466 of 2018
756
Act No. 2 of 2018
264
14.10.1Mode of payment
Regulation 13 (a)-(e) of the Public Service Social Security Fund (General)
Regulations 757 , depict the mode of payment of the contribution to the fund. Thus the
contribution to the Fund shall be paid either- (a) by cheque drawn on any bank in Tanzania,
delivered or sent by post to such office of the Fund as may be designated for that purpose; (b)
by telegraphic transfer; (d) by electronic means; or (e) in such other manner as the Director
General may authorize.
14.10.2Additional contributions for delayed remittance of contributions by employer

Section 19 (1) and (2) of the of the Public Service Social Security Fund Act 758, imposes a
penalty of one and half per centum (1.5%) of the amount which the employer has failed to
remit to the PSSS Fund. If the penalty together with other contribution remains outstanding
for thirty days or more after they become payable, the same continues to accrue further
penalty of 1.5% of the aggregate amount remaining unpaid for each month after that date.
14.10.3Treating un remitted contributions as paid

If the Director General is satisfied that the contributions were deducted from an employee’s
salary, but the employer failed to remit the same together with the employer’s contribution to
the Fund, the Board is empowered to credit the said contributions into the member’s account
in the Fund and charge the cost to the employer759.
Likewise, the Director General has the discretion to treat such unpaid contributions as paid
for purposes of any claim to payment of benefits to the employee. The Fund has the right to
recover that amount from the employer. This means an employee’s entitlement under the
PSSS Fund cannot be affected by the fact that his employer failed to remit his contributions to
the Fund. With this, those public offices which delay in remitting their employees’
contributions should stand alerted as such delay will mean a liability to them.
14.10.4Protection of the contributions and member’s ability to mortgage

The propriety rights over the members’ contributions to the Fund are vested in the PSSS Fund
until such time when they become payable to a member 760 . Consequently, members are
restricted from assigning, transferring or attaching any of such sums to a debt or claim against
757
GN No. 466 of 2018
758
Act No. 2 of 2018
759
760
Section 21 (1) of the Public Service Social Security Fund Act, 2018
265
them761. However, a member is allowed to use part of his entitlements as collateral for home
mortgage not exceeding 50% of the total benefits entitlement at the time of the award762.
Regulation 24 of the Social Security Schemes (Benefits) Regulations 763 , allows the
member to use part of his benefit entitlements as collateral for home mortgage but subject to
the procedure laid down in operational manual of the respective scheme and the agreement
entered between a schemes with commercial banks for provisions of home mortgage.
Further as per Regulation 24 (2) (a)-(b) of the Social Security Schemes (Benefits)
Regulations764, amount to be accessed for home mortgage shall not exceed fifty per-centum
of- (a) special lump sum, for a member who has contributed to the Fund for a period of less
than one hundred and eighty months; and (b) entitlement of pension, for a member who has
contributed to the Fund for a period of not less than one hundred and eighty months.
Further, member’s benefit or right over a benefit under the Act can be assigned or transferred
for purposes of satisfying a debt due to the Government or court’s order for the periodical
payment of the sums of monies towards the maintenance of member’s spouse, former spouse
or child765.
In some former funds like PPF Pension Fund, upon a written consent, a member could assign
or attach his pension or gratuity to discharge a debt due to the employer. With the changes,
this practice has undergone a natural death. This may, in turn, affect the provision of staff
loans by some employers who relied on the option of capacity of the employees to pledge
their social security benefits as collaterals for their loans.
14.10.5Conditions for granting mortgage facility

The conditions for granting mortgage facility in this aspect are unequivocally stated under
Regulation 25 of the Social Security Schemes (Benefits) Regulations766. Therefore Subject
to other conditions governing home mortgage, a member may access home mortgage facility
if he fulfils the following conditions- (a) he is a member of a scheme; (b) he has contributed
or deemed to have contributed to a scheme for at least ten years; (c) repayment of the facility
shall not go beyond the member’s compulsory retirement age; and (d) he is a Tanzanian
citizen.
761
Section 21 (2) (a)-(c) and Section 47 of the Public Service Social Security Fund Act, 2018
762
763
GN. No. 467 of 2018
764
GN. No. 467 of 2018
765
766
GN. No. 467 of 2018
266
14.10.6Refund of excess contributions

Any monies paid to the Fund in excess of the amount for which any employer is liable for
paying in respect of an employee or in excess of the contribution payable for a contribution
period may be refunded to the employer, employee or both, as the case may be, in such
manner as the Board may determine767.
As per Regulation 36 (1) and (2) of the Public Service Social Security Fund (General)
Regulations768, where such excess contribution has occurred, the Director General is required
to notify the employer through Form No. PSSSF 17 and upon receipt of claim, refund the
amount deducted in excess to the employer and the employer upon receiving the same shall
pay the employee the amount deducted in excess of contribution. The employer upon
consultation with the fund may consent the excess contribution to offset future obligations of
the employer under the Act769.
The Director General may also recover from a beneficiary any overpayment made to him and
a beneficiary who dies before full recovery of the overpayment. Thus Regulation 37 of the
Public Service Social Security Fund (General) Regulations 770, provides that where the
beneficiary who has been overpaid is entitled to a monthly pension, the Director General
shall, in paying a monthly benefit to that beneficiary, deduct an amount not exceeding fifty
per cent of the monthly benefit until the amount so overpaid has been recovered.
also provides that where a member who has been overpaid dies before full recovery of the
overpayment, the unpaid amount shall be recovered from the survivors benefits and the
modality of repayment applied to a member under regulation 37 shall apply mutatis mutandis.
However the board may waive recovery of an overpayment.
14.10.7Authority to withdraw from fund

No member can withdraw any sum of monies from his account with the PSSS Fund except
with the authority of the Board of Directors which authority is given upon satisfaction that the
member has met the qualifying conditions provided under the law 772 . And the qualifying
conditions are those provided under specific benefits and where the withdrawal has been
767
768
GN No. 466 of 2018
769
Regulation 36 (3) of the GN No. 466 of 2018
770
GN No. 466 of 2018
771
GN No. 466 of 2018
772
267
made of any amount standing on the credit of member one ceases thereafter to be a
member773.
14.11 BENEFITS OF THE MEMBER TO THE SCHEME

Section 29 (a)-(g) of the of the of the Public Service Social Security Fund Act774, provides
for the following benefits, namely: retirement pension benefit, survivors’ benefit, invalidity
benefit, maternity benefit, unemployment benefit, sickness benefit, death grant and funeral
grant which may be classified into two categories that is short term and long term
benefits. 775This entails that some benefits which were provided for under some of the former
funds are no longer available, for instance Educational Grant from LAPF and GEPF.
It is also noted that the Act has introduced two new benefits which were not granted earlier
by the Pension Funds. These are: Survivor Benefit (S. 37) and Unemployment benefit
(S.29). Survivor’s benefits are paid to the Dependents of the deceased (widow, children or
parents of the deceased).
14.11.1Qualifying Condition for entitlement of benefit

The above benefits are granted subject to fulfilment of the conditions laid down under Section
26 of the Act. Such conditions include, among others, attainment of the compulsory
retirement age of 60 years, attainment of the voluntary retirement age of 55 years, medical
invalidity, on termination of employment due to abolition of office; upon cessation to hold
office pursuant to the provisions of Article 72 of the Constitution; and termination of
employment for public interest776.
14.11.2RETIREMENT PENSION BENEFITS

The Act provides for Retirement benefit payable upon a member attaining age of compulsory
retirement which is sixty (60) years or voluntary retirement, fifty-five (55) years), with
exception to members whose statutory terms of employment prescribe an age of retirement
shorter or longer than the above ages777.
The minimum qualifying period for this benefit is fifteen (15) years of contributions (equal
to one eighty (180) months contributions)778. This is a change for those employees who
were members under PPF in which the minimum qualifying period was ten years.
773
774
Act No. 2 of 2018
775
For example the retirement benefits and death gratuity falls under the category of long term benefits whereas
unemployment and sick benefits falls under category of short term benefits.
776
Section 26 (1) (a)-(f) of the Public Service Social Security Fund Act, 2018
777
Section 25 (1) and (2) of the Public Service Social Security Fund Act, 2018
778
268
However, for those members who attain the age of retirement without meeting the
qualification including the minimum qualifying period, they will be entitled to a special lump
sum prescribed by the regulations made under the SSRA Act779.
For a member terminated from employment on public interest prior attaining voluntary
retirement age and has contributed to the Fund for not less than one hundred and eighty (180)
months, Regulation 6 (1) (a) and (b) of the Social Security Schemes (Benefits)
Regulations780, requires such member to be paid commuted pension; and his pension shall be
deferred and payable in accordance with Regulation 11.
Accordingly, for a member who is terminated from employment on public interest prior
attaining the age voluntary retirement and whose contribution period is less than one hundred
and eighty months, Regulation 6 (2) of the Social Security Schemes (Benefits)
Regulations781, instruct that such a member is entitled to special lump sum.
14.11.2.1 Application for the retirement benefits

require a member to apply for benefits by completing and delivering the appropriate
application Form accompanied by appropriate supporting documents to the fund. In the case
of a claim for retirement benefit the claimant shall furnish the following particulars-(a)
application Form No. PSSSF 10 set out in the Schedule to the Regulations; (b)
membership card; (c) letter of notification of retirement from employer. In the case of early
retirement benefit, the claimant shall furnish the following particulars–(a) application Form
No. PSSSF 11 as set out in the Schedule to the Regulations; (b) membership card; (c) letter
of notification of retirement from the employer783.
14.11.2.2 Qualifying conditions for old age pension benefit

Regulation 4 of the Social Security Schemes (Benefits) Regulations784, sets the qualifying
conditions for old age pension benefit. Thus in order for one to qualify for such benefit such
person must have; (a) contributed to the Fund for the period of not less than one hundred and
eighty months; and (b) attained the retirement age. The retirement age according to
Regulation 5 (1) (a) and (b) of the Social Security Schemes (Benefits) Regulations 785, is
sixty for compulsory retirement and 55 for voluntary retirement. However this is with
779
780
GN. No. 467 of 2018
781
GN. No. 467 of 2018
782
GN No. 466 of 2018
783
Regulation 20 (2) and (3) of the GN No. 466 of 2018
784
GN. No. 467 of 2018
785
GN. No. 467 of 2018
269
exception to members whose statutory terms of employment prescribe an age of retirement

shorter or longer than the above ages786.
14.11.2.3 Notification and delayed payment of benefits

Section 43 read together with Regulation 21 of the Public Service Social Security Fund
(General) Regulations787, the employer should notify the fund on a member who is about to
retire six months prior to the retirement of that employee. The Fund shall pay the
employee his retirement benefits within 60 days from the date of retirement788.
If the Fund fails to pay the employee within the stipulated period of 60 days for reasons not
caused by the employee, the Fund shall pay a penalty of 5% per annum on top of the
entitled retirement package to the employee and such penalty shall be charged on the
amount due789. This provision appears to be a solution to delays in payment of pensions
which have been complained of by retired employees for a long time.
However as per Regulation 22 (2) of the Public Service Social Security Fund (General)
Regulations790, the above penalty specified shall not apply to a claimant who has started to
receive monthly pension.
14.11.2.4 Rates of retirement pension

As per Section 30 of the of the of the Public Service Social Security Fund Act 791 , a
member who has attained the age of retirement and has contributed to the Fund for the period
of not less than one hundred and eighty months shall be entitled to a full pension constituted
of a commuted pension and a monthly pension calculated and payable in accordance with the
formula prescribed in the regulations792.
14.11.2.5 Refund of contributions due to emigration

A member who intends to leave the United Republic of Tanzania with no intention of
returning and is emigrating to a country with which the United Republic of Tanzania has no
bilateral agreement to allow portability of benefits, is entitled to get a refund of his
contributions under the Fund793. This means a member who leaves Tanzania with intention of
coming back or to a country with bilateral agreement to allow portability of benefits from
Tanzania does not qualify for this benefit.
786
Regulation 5 (2) of the Social Security Schemes (Benefits) Regulations, 2018
787
GN No. 466 of 2018
788
Section 43 (1) and (2) of the Public Service Social Security Fund Act, 2018
789
Section 43 (3) read together with Regulation 22 (1) of the GN. No 466 of 2018
790
GN No. 466 of 2018
791
Act No. 2 of 2018
792
See Regulation 8 of the GN No. 467 of 2018
793
Section 31 (a) and (b) of the Public Service Social Security Fund Act, 2018
270
The refund is claimed by submitting Form No. PSSSF 16 as set out in the Schedule to the
Regulations, which shall be accompanied by the following: (a) a resident permit issued to
him by the relevant authority of the country in which he intends to reside; (b) a formal letter
from the employer notifying his resignation; and (c) any other relevant document that may be
required by the Director General to support the claim794.
14.11.3MATERNITY BENEFITS
Maternity benefit is payable to a female member who has made contributions for at least
thirty-six months (3 years) if she delivers a certificate from accredited medical provider
certifying that she is expecting delivery of a child to the Director General of the Fund795.
The benefit is payable as cash at the rate to be prescribed by the Board established under the
Act (“the Board”) and a medical care during pre-natal and post-natal period by an accredited
medical practitioner or midwife not covered by the National Health Insurance Fund
(NHIF)796. For still birth, a member shall be paid at a rate to be prescribed by the Board.
However, this benefit is only payable four times in a member’s employment cycle797.
14.11.4INVALIDITY BENEFIT
Invalidity Benefit is payable to a member who cannot perform his duties due to physical or
mental disablement upon recommendation by a competent authority. However, such benefit
is not payable to a member whose disability is caused by occupational diseases contracted out
of or during his employment798.
According to Regulation 16 (1) of the Social Security Schemes (Benefits) Regulations799,

Invalidity pension shall be payable to a member who- (a) is terminated from employment due
to illness which is not work related sickness or accident; or (b) is suffering from a permanent
invalidity which is not resulted from employment related illness or accident; (c) is below the
age of voluntary retirement; and (d) has been in service for at least thirty six months of which
twelve months have been contributed in the year preceding the illness.
As per Regulation 25 of the Social Security Schemes (Benefits) Regulations 800 , the
Director General may refer any claimant entitled to invalidity benefit for examination by a
794
795
796
Section 32 (1) (a)-(b) of the Public Service Social Security Fund Act, 2018
797
798
799
GN. No. 467 of 2018
800
GN. No. 467 of 2018
271
Medical Board to be appointed by the Minister responsible for health, and shall consider the
report as evidence in determining the member’s claim for benefit.
14.11.4.1 Rate of invalidity benefit

The rate and duration of the benefit is to be provided under the Regulations to be made under
the Act 801 . Thus Regulation 16 (1) (2) of the Social Security Schemes (Benefits)
Regulations802, provides that the rate of invalidity benefit shall be determined in accordance
with the provision of regulation 8, provided that the minimum pension shall not be less than
thirty per-centum of annual pensionable emolument divided by twelve payable monthly and it
shall be indexed in a manner provided in regulation 11.
14.11.4.2 Application for invalidity benefit

A claimant who claims this benefit shall furnish the following particulars- (a) application
Form No. PSSSF 12 as set out in the Schedule to the Regulations; (b) membership card;
(c) medical certificate set out in Form No. PSSSF 13 as set out in the Schedule to the
Regulations indicating invalidity assessment from the Medical Board to certify the
invalidity; and (d) letter of notification of retirement or invalidity from the employer 803.
14.11.5UNEMPLOYMENT BENEFITS
Unemployment benefit is payable to a Tanzanian member below fifty years old who ceases to
be employed for a reason other than resignation, with minimum contribution of not less than
eighteen months, who does not qualify for pension, gratuity or other long-term benefit
payable under the Act804. The unemployment benefit is paid on monthly basis at the rate
equivalent to 33.3 percentum of the salary earned at the time of ceasing to be
employed805.
14.11.5.1 Application for unemployment benefits

A claimant who claims this benefit shall furnish the following particulars: (a) application
Form No. PSSSF 16 as set out in the Schedule to the Regulations with necessary
modification; (b) certified copy of birth certificate; (c) declaration on the proof that the
claimant has not secured another employment, in accordance with the Oaths and Statutory
Declaration Act; (d) passport size photograph of a claimant806.
801
802
GN. No. 467 of 2018
803
804
805
Section 35 read together with Regulation 20 of the GN. No. 467 of 2018
806
272
14.11.5.2 Duration of Unemployment benefit

Unless the member secures another employment, the unemployment benefit is to be paid for a
maximum period of six months within twelve months: Provided that unemployment benefit
shall not be paid for a period exceeding an aggregate of eighteen months for entire
employment circle or career807.
Where the period for which a member is entitled to receive unemployment benefit expires
and the member has not secured another employment within eighteen months after the date of
expiration of the period of receiving unemployment benefit, he may apply to the Director
General to convert his contribution into supplementary scheme of his choice808.
The member whose contributions are converted above may continue to contribute to the
supplementary scheme subject to the trust deed or rule governing the respective scheme809.
Where such member’s contributions are converted to a supplementary scheme, the amount to
be converted shall be special lump sum minus total amount of unemployment benefit
accessed 810 . Notwithstanding sub regulation (2), a member whose contribution period is
below eighteen months shall, upon ceasing to be employed, be entitled to a payment of fifty
per-centum of the total contribution811.
Where the member has not secured another employment within eighteen months after the
date of expiration of the period of receiving a payment of fifty per-centum of the total
contributions, such member may apply to the Director General to convert his remaining
contribution into supplementary scheme and he may continue to contribute to the
supplementary scheme subject to the trust deed or rule governing the supplementary
scheme 812 . The amount to be converted to supplementary scheme shall be computed as
special lump sum minus the amount paid under sub regulation (6)813.
14.11.6 SICKNESS BENEFIT

According to Regulation 22 (1) of the Social Security Schemes (Benefits) Regulations814,
the sickness benefit shall be payable to a member who- (a) is suffering from a sickness or
accident which is not resulted from employment injury for more than three months, and the
employer has exercised his obligation in accordance with Employment and Labour Relations
807
Regulation 21 (1) of the GN. No. 467 of 2018
808
809
810
811
812
813
814
GN. No. 467 of 2018
273
Act or the Public Service Act, as the case may be, to pay him a half salary for a period of
three months prior to termination from the employment; (b) is under the age of voluntary
retirement; and (c) has contributed to the scheme for at least thirty six months of which
twelve months contributions have been made in the year preceding the sickness.
The benefit is payable by the fund after the first 63 days of sick leave payable in accordance
with employment and labour relations Act and shall be payable for a maximum period of
three months.
14.11.6.1 Rate of Sick Leave

According to Regulation 23 of the Social Security Schemes (Benefits) Regulations815, the
rate of sickness benefit shall be forty per-centum of the monthly salary enjoyed by the
member prior to the sickness.
14.11.7 Application for death gratuity benefit

In the case of death gratuity, the claimant shall furnish- (a) a certified copy of death
certificate of a deceased member; (b) deceased identification card issued by the Fund; (c) an
application Form No. PSSSF 14 as set out in the Schedule to the Regulations providing
the information and particulars of the deceased person; (d) letter of administration of
deceased estate and distribution form from the probate Court; and (e) passport size
photograph of claimant816.
14.11.8 Application for survivors’ benefits

In the case of survivors’ benefits, the claimant shall furnish the following-(a) death certificate
of deceased member; (b) application Form No. PSSSF 15 as set out in the Schedule to the
Regulations from the employer providing the information and particulars of the deceased
person; (c) letters of administration of estate and distribution form from the probate court
appointing him as the administrator of the deceased estate; and (d) passport size photograph
of a claimant817.
14.12 CONTINUING ELIGIBILITY, SUSPENSIONS & TERMINATION OF BENEFITS

14.12.1 Basis and duration of benefits
All the benefits are payable on the basis and duration as specified in the Social Security
Schemes (Benefits) Regulations, 2018818.
815
GN. No. 467 of 2018
816
817
818
274
14.12.2 Verification of continuing eligibility of beneficiary

In order to determine whether a benefit shall continue to be payable to a beneficiary,
Regulation 31 (a)-(f) of GN No. 466 of 2018, lists some factors that the board should use in
determining the same. These factors are:- (a) the beneficiary’s age; (b) whether the
beneficiary is alive; (c) whether the beneficiary is remarried; (d) whether the beneficiary has
not secured new employment; (e) whether the beneficiary is engaged in full time education;
or (f) whether the beneficiary has recovered from the impairment.
14.12.3 Suspension for failure to provide information
The Director General is give power under Regulation 32 (1) of GN No. 466 of 2018, to
suspend payment of periodic benefit819 for failure of the beneficiary to provide information
required above. However such power is not absolute as he is required prior suspending
benefit to serve the beneficiary with a three month notice of the intention to suspend payment.
It also follows that if within one year the beneficiary provides information confirming his
eligibility, the Director General shall reinstate payments and be paid for the entire period
provided that the member continued to be eligible during that time820.
14.12.4 Suspension resulting from uncertain address of residence

As per Regulation 33 (1) of GN No. 466 of 2018, the board shall suspend payment of a
benefit if- (a) upon receipt of notification from the bank where the Fund makes payment to
the beneficiary that beneficiary account has been closed or that the beneficiary is unknown;
(b) where the post office returns mail addressed to the beneficiary at the address of record as
undeliverable.
However where the beneficiary provides a physical address, evidence confirming his identity
card, the Director General shall resume payments, reinstating suspended payments provided
that the member continued to meet eligibility requirements during that time821.
14.12.5 Termination of benefit

Regulation 34 (1) (a) and (b) of GN No. 466 of 2018, identifies several circumstances where
the board may terminate any benefit granted. The said circumstances are (a) where the
beneficiary has not re-established eligibility within twelve months after suspension of a
benefit; or (b) death of the beneficiary. Where the board terminates any benefit the claimant
shall be declared ineligible822.
819
“periodic benefit” includes pension benefits (Regulation 32 (4) of the GN No. 466 of 2018
820
Regulation 32 (2)-(3) of GN No. 466 of 2018
821
822
275
14.12.6 Application for review

In case a member is aggrieved by the decision of the board either to suspend or to terminate
the benefit he is afforded with the opportunity under Regulation 35 (1) and (2) of GN No.
466 of 2018, to apply to the board for a review and subsequently to appeal to the Authority
(SSRA) if he is still dissatisfied.
14.13 SUITS BY AND AGAINST THE BOARD

The PSSSF Board, at the instance of the Director General, is empowered to institute suits to
recover contributions by way of a summary suit under Order XXXV of the Civil Procedure
Code, Cap. 33 R.E 2002 as amended (Civil Procedure Code’) within twelve (12) years from
the date they become due823.
Such suits restrict a defendant from defending himself unless by court’s conditional or
unconditional leave. In this case, the law provides for a conditional leave which requires the
defendant to deposit a sum equal the amount of contributions claimed under the suit as a
security for due performance of the decree, in case the judgment is entered against the
defendant.
However, there are no amendments of the provisions of Order XXXV of the Civil Procedure
Code to cover recovery of debts by a social security fund.
14.13.1 Savings and Amendments

Notwithstanding the repeal of the Acts as explained above, the Act retains the regulations,
rules and orders or any other subsidiary legislation made under the said Acts until revoked824.
Hence, until such revocation occurs, any references to the Acts which established the former
funds will be construed as references to the PSSS Act.
Likewise, the force of all the deeds, bonds, agreements, instruments and working
arrangements subsisting immediately before the Act affecting any properties transferred,
remain to be against or in favour of the Fund825.
The Act amends the Fire and Rescue Force Act, [Cap. 427 R.E 2002] by providing for
additional terminal benefits to the Commissioner-General thereto. Judges (Remuneration and
Terminal Benefits) Act, [Cap 424 R.E 2002] is amended by adding some terminal benefits for
the Chief Justice, Justice of Appeal and a Judge.
823
824
Section 77 (2) (a) of the Public Service Social Security Fund Act, 2018
825
276
The Police Force and Prisons Service Commission Act, [Cap 241 R.E 2002] is also amended
to improve the terminal benefits of the Principal Commissioner of Prisons and Inspector
General of Police. Further, the Public Service Act, [Cap. 298 R.E 2002] is amended by
designating all matters relating to retirement benefits of Public Servants to be governed by the
PSSS Fund.
The amendments also increase the terminal benefits for the Chief Secretary, Attorney
General, Director-General of Intelligence, Controller and Auditor-General, Deputy Attorney
General and Director of Public Prosecutions, and Director General of Prevention of
Corruption Bureau.
14.13.2 Offences:
The Act under Section 68 and 69 put a heavy punishment and penalty for noncompliance to
the law for a fine between Tanzania Shillings 5 million to Tanzania Shillings 50 Million or to
imprisonment between two years and four years.
14.13.3 Vesting of assets and liabilities

Under Section 82, 83, 84 and 85 of the Act, provide for vesting of assets and liabilities which
were under the former schemes to the new Public Service Social Security Fund.
14.14.4 Transitional Period

There shall be a transitional period of not more than six months from the date of
commencement of the Act. During the transitional period, winding up of the affairs and
business of the former schemes shall be made with a view of ensuring all assets and liabilities
are transferred and vested in the Fund. The period of six months may be extended by the
Minister of Finance as need may be826.
14.15 ACHIEVEMENTS OF SOCIAL SECURITY SCHEME IN TANZANIA
There are several Achievement which include among other things

i) Investment of Social Security Funds
Physically social security institutions in Tanzania have been investing in many
project such as building as well as portfolios such as commercial loans, real
estate, government securities, Loan funds, bank deposits and equities; all of
which have contributed to social and macro-economic development of the
country.
826
See part XI of the Act
277
ii) Awareness on Social Security matters there has been an increase in the level of
public awareness on the social security system in respect of benefits offered,
coverage, investments and general operations of the sector.
iii) Organized self-group, Informal social security scheme in the form of self-help
groups has been more organized than before.
14.16 SHORTCOMINGS IN CURRENT SOCIAL SECURITY SCHEME IN TANZANIA

▪ The existing social security system in Tanzania is characterized by a number of
shortcomings, which need to be addressed. Among these shortcomings are:-
(i) Inadequacy of Benefits paid that is Number and its Meaningfulness. The number
of benefits offered by most of the existing schemes fall below the ILO Minimum
standards in terms of number, quality and indexation to the current levels of
earnings.
(ii) Fragmentation and Lack of Co-ordination the social security sector lacks co-
ordination at national level as each Fund reports to a different Ministry with
differing operational rules and procedures. As a result, contribution rates benefit
structures, qualifying conditions as well as plans and priorities differs from one
institution to another which necessitate the government to harmonize the situation.
(iii) Lack of Mechanism for Portability of Benefit Rights There is no established
mechanism that can allow benefit rights of a member to be transferred from on
scheme to another. This results in employees losing some of their benefit rights
when they move from one sector to another.
(iv) Social security benefits in some of Tanzania’s social security schemes, members’
benefits are not rights but privileges. Normally, members lose some of their
benefits if they leave employment before attainment of their pensionable ages. In
other circumstances, member’s benefit rights are determined by the employers
depending on the nature of termination.
(v) Monopoly in the operation of social security institutions in the country, where all
public employees must be member of Public Social security service fund (PSSSF)
and those in private sector to join National Social Security Service.
(vi) Investment of Social Security Funds there has been inadequate guidance on
investment of social security fund at national level.
278
15.0 WEAKNESSES OF THE NEW LABOUR LAWS

According to C.K Mtaki, the weaknesses of the new laws can be viewed from the employers’
and employees’ perspectives though there are weaknesses which cut across the two
perspectives. The learned author has identified the following weaknesses;
15.1 Employers’ Perspectives

From the employers’ perspective the following provisions seem to be untenable, namely:-
Section 20 (4) of the Employment and Labour Relations Act 2004 which introduces a
night pay (allowance) of 5% of the basic wage for each hour worked at night. This provision
introduces a new cost on products and services to be rendered by employers in Tanzania. As a
result Tanzania products and services may not be able to compete in the open market.
Section 33 (10) of the same Act which entitles a breast–feeding employee to a maximum of
2 working hours per day for purposes of breast feeding. The provision is open-ended as it
does not specify when this right will come to an end. Employees are likely to abuse it.
Section 37(5) of the above Act which prohibits an employer to take disciplinary action
against an employee who has been charged with a criminal offence which is substantially the
same until final determination of the case by the court and any appeal thereto. This provision
will have the effect of compelling employers to pay salaries to employees who otherwise
contribute nothing to the enterprise particularly where the employer, for safety reasons,
decides to relieve the employee of his/her duties pending the determination of the criminal
case.
Section 61 (1) which requires employers to deduct dues of registered trade unions from
employees’ wages and remit the same to the trade unions within 7 days. Employers feel that
they should be allowed to impose a service charge for rendering this service more so because
the same provision imposes on employers a daily surcharge of 5% of the unremitted sum
upon expiry of the 7 days.
15.2 Employees’ Perspectives

Employees feel that the new labour legislation suffer from the following weaknesses:
Application of the Act – Section 2 of the Employment and Labour Relations Act provides
that this Act shall apply to all employees in the public and private sector. But employees in
the public sector are also bound by the provisions of the Public Service Act 2002 some of
which contradict the provision in the earlier Act. The need to harmonize the two pieces of
legislation is, therefore, more than overdue.
279
The new laws do not define what “a contract of service is”. This creates an element of
uncertainty on the part of employees as they cannot legally determine in advance the status of
the arrangements under which they work until there is a decision by a court on the same.
The provisions on repatriation to places of recruitment are unfair as they tend to obscure the
reality. Many employees are recruited in places other than places of their domicile for various
reasons. Therefore, the law should obligate employers to repatriate employees to places of
domicile instead of recruitment where the employees may have no permanent base at all.
The decision to decriminalise the new labour laws may have the consequence of withering
down the level of compliance by employers. Civil remedies may have less impact than
criminal sanctions.
The presence of section 40 (3) of the Employment and Labour Relations Act 2004 which
entitles an employer to refuse to reinstate or re-engage an employee as duly ordered by a
mediator or arbitrator runs contrary to the spirit of security of tenure of employees. The
provision exposes employees to cases of unfair termination by employers who are willing to
pay the twelve months’ wages in addition to other terminal benefits due to employees if the
employers refuse to reinstate or re -engage their employees. The provision seems to
encourage employers to encroach upon the right to work.
There are several provisions in the Employment and Labour Relations Act 2004 which appear
to have been poorly drafted, such as, the provisions on repatriation. The provisions give an
employer three alternatives for which he may choose to repatriate an employee to the place of
recruitment. Unfortunately, all the three alternatives are not comprehensive and the packages
for repatriation vary from one alternative to another. Variation in the packages may
encourage biasness or unfairness by employers when handling cases of repatriation.
280
16.0 QUESTIONS FOR FURTHER REFLECTION
1. Among other recommendation of the task force which was responsible for reforming
the repealed labour law regime was: “The law to be enacted must be flexible enough
coupled with minimum security”. How this assertion features in the labour laws?
2. What are the constitutional dimensions provided under labour laws? Show the
enforceability of the said dimensions in Tanzania.
3. What were the problems in the law leading to the enactment of the “Employment and
Labour Relations Act” (ELRA) of Tanzania 2004? Are there still deficiencies in the
law as it stands now?
4. Critically comment on the following statement in the light of the socio-economic
conditions of the working class and the history and the role of trade unions in
Tanzania;- “ Trade unions, collective bargaining and strikes are luxury which
developed nations can ill-afford, the working force of development in these countries
is essentially the peasantry. Trade Unions, which defend only workers interest
inevitably, degenerate into fighting for and securing privileges’ for the working class
at the expense of the nation as whole”
5. Discuss the strength and weaknesses of the contract of employment, statutory
provisions collective bargaining in the protection of workers labour rights in
Tanzania.
281
SELECTED BIBLIOGRAPHY
Alex J. Sikalumba (2003). Legal Aspects of Employment Contracts and Dispute Settlement
scheme in Tanzania: Institute of Development Studies: Mzumbe University.
Bone, (1999). A Essential Employment Law, 2nd Ed. Cavendish Publishing Limited: London
Flanders, A.D (1971): Collective Bargaining. The Chaucer Press: Bungay
Kamala, P (2006). Industrial Relation Law in Tanzania: Past Experience and Prospects
under New Labour Legislation: A thesis submitted at University of Cape Town: South Africa.
Lewis D. & Sergeant M (2010). Employment Law, Person Education Limited: England
Robert, U & Stephen, H (2005). Labour Laws 5th Ed. Oxford University Press Inc: New York
Rutinwa, B: TUCTA, Training Manual on Labour law: Collective Labour law, Faculty of
Law, UDSM
Shivji, I. G.(1984). Law, State and the Working Class in Tanzania, James. Currey Ltd:
London.
Urio A & Urio J (2011). The Law on Employment and Labour Relations in Tanzania (1st Ed):
Moshi Tanzania
POLICY DOCUMENTS
National Employment Policy of 2008
National Social Security Policy of 2003
282

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Moshi Co-operative University

From the SelectedWorks of MWAKISIKI MWAKISIKI

Summer April 9, 2019

THE LAW ON EMPLOYMENT AND

Available at: https://works.bepress.com/mwakisiki-mwakisiki/37/

MOSHI CO-OPERATIVE UNIVERSITY

THE LAW ON EMPLOYMENT AND LABOUR RELATIONS IN

COMPREHENSIVE STUDENT TRAINING MANUAL

Tsar MWAKISIKI MWAKISIKI EDWARDS

(Master of the Rolls)

Dated this 9th day of April 2019

Martin Luther King, Jr

Compensation, Employment for non-citizens and Social Security System in Tanzania.

Agreements just to mention a few.

committed in this publication remains Mine]

love and support. May Almighty, God bless them abundantly.

Employment and Labour Relation Act 2004, Act No. 6 of 2007;

Workers Compensation Act [Cap 263 R.E 2015];

Social Security (Regulatory Authority) Act [Cap 135 R.E 2015];

Non-Citizens (Employment Regulation) Act, 2015;

The Public Service Social Security Fund Act 2018.

Institutions (General) Regulations 2017 (GN 45 of 2017);

Centres) (Establishment) Rules (2010), GN No. 209 of 11 June 2010;

223 of 16th November 2007.

Labour Institutions (Mediation and Arbitration) Rules GN. No. 64 of 2007;

Labour Institutions (Mediation and Arbitration Guidelines) Rules GN No. 67 of 2007;

GN. No. 66 of 2007 dated 23rd March 2007;

(2010), GN No. 172 of 30th April 2010.

Non-Citizens (Employment Regulations) Regulation, 2016;

No. 196 28/06/2013;

WRITINGS OF PROMINENT JURISTS ............................................................................................ 14

Employment defined ............................................................................................................................. 35

MATERNITY LEAVE ......................................................................................................................... 53

Procedures for Termination based on Operational Requirement .......................................................... 78

AMALGAMATION OF REGISTERED ORGANISATION OR FEDERATION ............................ 108

Condonation ........................................................................................................................................ 163

Removal of the members and filling of vacancies .............................................................................. 181

Investigation by the board ................................................................................................................... 195

Notice of Accident by employee or employer .................................................................................... 222

CHAPTER THIRTEEN:.................................................................................................................. 240

BACKGROUND TO SOCIAL SECURITY IN TANZANIA ........................................................... 250

Conditions for granting mortgage facility ........................................................................................... 266

Employers’ Perspectives ..................................................................................................................... 279

1.0 Meaning of Labour Law

1.1 Labour relations defined

1.2 Scope of Labour law

1.3 Operation of Labour laws

1.4 Significance of labour law

1.5 CLASSIFICATIONS OF LABOUR LAW

1.5.1 Substantive Law

1.5.2 Procedural Law

1.6 SOURCES OF LABOUR LAW

In relation to the provisions above, in Augustine Masatu v. Mwanza Textiles Ltd 8 ,

1.6.3.1 Employment and Labour Relation Act, 2004 (hereinafter referred to as

1.6.3.2 Objectives of the Act

1.6.3.3 The Labour Institution Act, 2004 (hereinafter referred to as “LIA”)

1.6.3.4 Subsidiary Legislations governing Labour matters

Regulation 14 (2)-employer shall ensure that no employee is continuously working in

Regulation 40-grievances procedures prescribed in the schedule to the Employment and

1.6.3.7 Labour Institutions (General) Regulations 2017 (GN 45 2017)

Regulation 10-Labour Officers to assess employer’s compliance or non-compliance to labour

1.6.4 LAW OF CONTRACT

1.6.6 RECEIVED LAWS