FUNCTIONS OF LABOUR LAW

 (1) Protection of employees: This is done through the

following ways
 (a) Limiting powers of employers to dismiss
employees or terminate employment at his will
without just cause, this is enshrined under Part III (E)
of ELRA
 (b) Regulating the wages to be paid by maintaining
financial capacity of employees as per Part III (E) of
ELRA
To be continued----
 (c) By regulating conditions for working through
providing for rest days and leave and hours of work
plus matters incidental to standard of work as per Part
III (E) of ELRA.
 (d) By providing for care and welfare of employees
To be continued....
 (2) Labour Law has the function of balancing of
conflict of interests between employers and
employees. This is done by defining their rights and
duties as well as regulating their conduct.
 (3) It helps in resolving industrial disputes: by
establishing a special institution which has the duty
and power to enforce rights and duties under labour
law this is enshrined under Part III of the L I A.
 (4) Helps in increasing production of goods and
provision of social services: this is done by
maintaining industrial peace.
To be continued....
 (5) To correct the imbalance of power between the
worker and the employer by protecting worker’s right
to organize in trade unions and bargain collectively
and putting in place safeguards which prevent the
employer from dismissing the worker without good
cause. The starting point of the protective function
view is that, there is an inherent imbalance of the
power within the relationship between employer and
employee. The employee is at a great disadvantage as
compared to the employer in terms of resources and
bargaining skills
To be continued...
 (6) To prevent working conditions being pushed below
the levels the society deems acceptable by placing
restrictions on contracting partners’ freedom to
contract on whatever terms they wish and setting
minimum standards over issues such as working time,
health, safety and pay. The law limits the degree to
which the more powerful party can exploit the weaker.
To be continued...
 (7) To regulate labour market: The starting point in
terms of this view is that market forces are preferable
to government intervention in the attainment of
economic growth and prosperity. The implementation
of this approach has resulted in government support
for reduction of wages and other labour costs and a
reduced role of the state in setting up of minimum
labour standards. According to this approach, state
intervention in the form of protection of the employee
results in artificial distortion of the market forces
which in turn inevitably results in economic
inefficiencies and a loss of prosperity.
To be continued...
 (8) To limit trade union freedom: Labour Law is also
used as an instrument to limit and control trade
Unions. It is in considering this aspect that trade
unionists will be inclined to ask whether they really
need labour legislation at all.
 (9) To protect and balance economic and social
progress: This occurs where by labour standards are
clearly stipulated under strict rules of consultants and
management team of the laborers, as stipulated under
labour laws
To be continued...
 (10) Labour law helps Enforcement of labour
standards: Labour based road works usually involve
high labour recruitment and management. Special
attention is expected from the supervising institution
and the project management team to ensure that the
contractor is complying with the labour standards of
employment. The supervising institution must also be
acquainted with local labour laws and standards.
To be continued....
 (11) Labour Law sets wage Rates: The minimum wage is always
stipulated in labour laws. The supervising institution must
ensure that the contractor does not under pay the workers. A
regular check of contactors record of pay sheets is necessary.
Falsification of pay sheets is a major method of covering up
corrupt practices at all levels. The supervising institution should
also routinely make spot checks with a number of individual
different labourers to confirm amounts received, any deductions
made and their identities.
 (12) Labour law helps on minimum age: Labour Law sets the
minimum age for one to be employed in any governmental or
non-governmental organization. In this way Labour Law also
protects the rights of children.
To be continued...
 (13) Labour law helps on Non-Discrimination: the
supervising institution should check the recruitment
is fair and transparent and that the contractor does not
discriminate on the basis of gender. Regardless of
gender, the contractor should pay equal wages for work
of equal value. He should advice the contractor in
preparation of recruitment adverts that are neutral. In
areas where strong cultural barriers exist, contractors
should be assisted by the client with sensitizing
meetings to explain the nature of the work and the
recruitment process. Therefore, in this instance,
Labour Law functions to avoid gender discrimination.
EVOLUTION OF LABOUR LAW IN
TANZANIA
 What is the foundation/basis of labour
 Labour is founded on what is known as wage labour.
 Wage labour is work that you do in exchange of
remuneration or payment; you give a service at the end
of day, week, month or year you are given a wage
 What are the prerequisites for wage labour
 (1)There must be considerable development of
commodity economy as opposed to natural economy.
Commodity economy presuppose the production with
surplus.
To be continued...
 (2) there must be labour power converted into a
commodity. There must be labour which is offered in
exchange for money or capital
 (3) there must be free labour. Labour which is already
a commodity ready for exchange in the market. Free
labour presuppose that the workers are already
separated or divorced his own means of production
particular land. The worker has nothing to live on
except his labour power.
Creation of wage labour
 Three methods were used in creation of wage labour
 (1) Forced Labour
 (2) Taxation
 (3) Recruitment
Evolution of labour law in Tanzania
 Development of labour law in Tanzania is tied to the
political and economic history of the country. It
emerged with the working class during the colonial
era.
 The colonialists introduced labour laws to enhance the
colonial economy which was exploitative in nature.
The laws meant to discipline the working class which
mostly was the natives
To be continued...
 This justifies the fact that there was a very limited
labour relations law during the colonial era.
 With the laws enacted during the German colonial
rule, British colonial government registered a
fundamental contribution in the development of
labour law in Tanzania. An independent government
inherited a considerable number of labour laws from
the British colonial government such as the
Employment Ordinance (Cap 366) and Regulation of
wages and terms of Employment Ordinance (Cap 300).
To be continued...
 Labour laws enacted after independence were; Wages
and Salaries ( general Revision) Act, 1974 ( Act No 22
of 1974, the Trade Union Act, 1998 ( Act No 10 1998),
Security of Employment Act( Cap 574), Severance
Allowance Act ( Cap 487) and the Industrial Court of
Tanzania Act 1967 ( Act No 41 of 1967)
 Generally labour law after independence can be
divided into four periods: immediately after
independence; Arusha Declaration, the period of
1980’s; and the current period.
To be continued...
 Throughout the periods, a myriad of labour statutes
enacted along with the inherited English laws. Yet, the
statutes fall short in various aspects: scattered labour
statutes, excessive power to labour officers, summary
dismissal, No free collective bargain in previous laws,
Disputes resolution procedure was very complex,
Although there was provision of strike and lock-out in
the law, they were not permissible in practiceetc.
To be cont...
 It is relevant to point that, the legal deficits and
economic liberalization in the 1980’s led to the
enactment of new labour laws in Tanzania effectively
from 2004.
 Therefore, the major statutes that currently regulate
labour matters in Tanzania are the Employment and
Labour Relations Act and the Labour Institutions Act
of 2004.
To be cont...
 The two statutes work together. While the latter
establishes the necessary organs, provides for the
appointment of staff, vests them with jurisdiction and
declares their functions and delimits their powers; the
former promulgates substance law which is supposed
to be administered by the said organs
Applicability of labour laws
 To who do labour laws apply?
 The two laws( the ELRA and LIA) apply to all
employers in the private and public sector including
the government. S. 2 of ELRA.
 Although the ELRA applies to all employers both in
the private and the public it should be noted that
employee in the public service do have their own
specific laws namely;
To be cont...
 The Public Service Act, 2002 Act No. 8/2002
 The Public Service ( Negotiating Machinery Act 2003
Act No. 19/2003
 The Public Service Regulations 2003 GN No. 168/2003
 The Public Service Scheme 2003 GN No. 169/2003
 The Executive Agencies Act, 1997
 The Executive Agencies ( Personnel Management)
Regulations 1999 GN No. 75/1999
To be cont...
 It is interesting to note that there are provisions in the
Public Service Act, 2002 and the Regulations which
contradict the provisions of the ELRA
 The case of AG v Chama cha Walimu Tz (CWT) HC LD
App. No 19/2008 illustrate on that contradiction.
Mandia J (as he then was) found that the Public
Service ( Negotiating Machinery) Act of 2003 does not
set out the remedy in cases of breach of employment
contract in the public sector, he noted that the ELRA
To be cont...
 Encompasses all the aspect of employment law from
formation of the contract of employment to breaches
of contract and the consequences thereof.
 The honourable Judge then proceeded to apply the
ELRA and consequently held that a lobour dispute
involving teachers comes under the jurisdiction of the
labour court.
To be cont...
 The act does not apply to the armed forces; Tanzania
People’s Defence Force, Police Force, Prison force and
the National Service but it may apply to civilian
employed in those forces. S. 2 of ELRA
 Although the act does not apply to the armed forces
however, S. 5,6 and 7 apply to the armed forces.
 S. 5 deals with prohibition of child labour, S. 6 is on
forced Labour and S.7 is on discrimination.
To be cont...
 Furthermore, Part III subpart A,B,C,D and F do not
apply to seafarers S. 12 of ELRA . In matters covered
under sub A,B,C,D and F the Merchant Shipping Act
2003 will apply to seafarers only subpart E applies to
seafarers, which is on termination of employment
contract.
 On the other hand seafarers working on fishing vessels
shall be covered by part III of the ELRA.
The objective of the ELRA
 The objective of the Act are contained under S.3 of
ELRA. There are seven objectives which give effect to
the ILO Core Conventions together with the ILO
Convention which TZ has not ratified. The followings
are the objective of the Act
 1. To promote economic development through
economic efficiency, productivity and social justice
 2. To provide the legal framework for effective and fair
employment relations and minimum standards
regarding conditions of works
To be cont...
 3. To provide a framework for voluntary collective
bargaining
 4. To regulate the resort to industrial action as a means
to resolve disputes
 5. To provide a framework for the resolution of
disputes by mediation, arbitration and adjudication
 6. To give effect to the provisions of the constitution in
so far as they apply to employment and labour relation
and conditions of work.
To be cont...
 7. To give effect to the ILO core conventions and other
ratified conventions
 Read the Case of Macmillan Aidan Ltd v Blandina L
Mohamed Labour Rev. No 28/ 2008 and the case of
Martin Oyier v Geita Gold Mine Ltd Labour Rev No
226/2008
 In deciding these case the judge considered the
objectives of the Act.
TOPIC TWO: CONTRACT OF
EMPLOYMENT
 A contract of employment comes into existence when
the employer and an employee conclude an agreement
that conform to the requirement of a contract of
service which must be distinguished from a contract
for service.
 What is a contract for service? And what is a contract
of service
To be cont...
 Contract of service under common law is defined as a
contract between two person the master or employer
and the servant of employee for the letting and hiring
of latter services for reward. The master being able to
supervise and control the servant work.
 Key elements- existence of two parties employer and
employee, letting and hiring of the services of the
employee, there must be remuneration and employer
must be able to supervise and control the employee
To be cont...
 There is no definition of contract of service under the
ELRA. In the absence of the definition as to what is a
contract of service and contract for service, there are
cases decided by common law have come up with
three test which tries to distinguish a contract of
service from a contract for service. These test are as
follows;
 1) The Control Test
 Under control test the emphasis is on the element of
control which must be exercised by the employer over
the employee
To be cont...
 The employer prescribes not only what work has to be
done but also the manner in which that work has to be
done.
 The case of Amalgamated Engineering union v Minister
of Pensions and National Insurance ( 1963)I All E.R 864
it was held that even though A has no express right to
control the manner in which B carries out his duties, if
B’s contract specified his duties in detail and A has the
right to dispense with B’s services if dissatisfied with
the manner in which he carries them out, B is A’s
servant.
To be cont...
 Another case is the case of Short v Henderson, Ltd (
1946) 62 T.L.R 427 lord tharkerton listed four indicator
of a contract of service namely;
 a) the master’s power of selection of his servant
 b) the Payment of wages or other remunerations
 c) the master’s right to control the method of doing
the work
 d) the master’s right of suspension or dismissal
To be cont...
 The control test has weaknesses. There are highly
skilled employee who are given a relatively free hand
when performing their work such as doctors, lecturers,
lawyers, engineers e.t.c they have wide discretionary
powers as to how they would perform their work
Cont...
 2. Organisation Test/ integration test
 This is sometimes known as integration test. This test
developed later after the control test.
 Under this test the question for determining whether
there is an existence of a contract of service or a
contract for service is: “Whether the person is an
integral part of a given organisation in which he
works.”
Cont...
 If the answer is yes then the law assumes that there is a
contract of service. If the answer is negative then there
is a contract for service.
 This is a test which has brought many professionals
such as doctors, accountants, lawyers, engineers etc, to
serve under a contract of service.
 These professionals employees may become integral
part of the business of the employer without being
under their direct control and directions.
Cont...
 A good reference is found in the case of Cassidy V.
Ministry of Health (1951)2 KB 343. In this case Denning,
L.J. (as he then was) argued as follows:
 “The hospital authority is liable for the negligence of
professional men employed by the authority under
contract for services as well as under contracts of
service. The authority owes a duty to give proper
treatment medical, surgical, nursing and the like and
though it may delegate the performance of that duty
to those who are not its servants, it remains liable if
that duty is improperly or inadequately performed by
its delegates.”
Cont...
 In the case of Rosen V. Queen (1976) CTC 462. The
organisation 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.
Cont...
 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.
Cont...
 3. Multiple test or Economic Reality test.
 This test is a response to the inadequacies of the 2
foregoing tests ie. Control and organisational test.
 It is called pragmatic because it is not based on rigid
doctrines and also it is practical because it calls the
court to consider all circumstances in totality and infer
whether there is a contract of service. It is multiple
because it draws it’s conclusion from multiplicity of
factors. Thus some scholars refer to this test as
multiple factor tests
Cont...
 The test take into account control test and integration
test ingredients and many other factors before arriving
at a conclusion that the relevant contract is one of
service or one for service. Multiple test was proposed
in the case of Young V Montreal Locomotive Works
(1974)1 DLR 161. according to this case, the matters that
a given contract is one of service or not include;
 i. Mode of payment of wages/salary
 ii. Mode of payment of taxes
 iii. Membership to pension schemes
Cont...
 iv. Leave
 v. Leave allowances
 vi. Sickness allowance
 vii. Supply of tools of work
 viii. Hours of work
 ix. Place of work ( at employer’s)
 x. Supervision
 xi. transfer
cont...
 Legal and Economic Implications of contracts of
service and contracts for service
 1. Liability:
 In a contract of service the employer may be
vicariously liable for the wrongful acts of employees
committed during the course of their employment.
While in a contract for service he may not be liable for
the wrongful acts of contractors he employs other than
in exceptional cases.
Cont...
 2. Health and Safety: In a contract of service there is
a high standard of care owed by the employer both
under the statutory and the common law with regard
to the safety and health of his employees. While in a
contract for service there is a lesser standard of duty of
care in relation to health and safety of his contracting
parties
Cont...
 3.Statutory employment rights:
 In a contract of service there is a large number of
individual employment rights conferred on employees
by statute which generally arise after a period of
service such as benefit in case of termination of
contract of employment, severance allowances,
repatriation allowances, leaves etc. While in contracts
for service, the contractors are excluded from the mass
of individual employment rights conferred by statute.
Cont...
 4. Income Tax:
 In a contract of service the income tax payable by an
employee is deducted at source by the employer under
the pay as you earn scheme. While in a contract for
employment the income tax of a self employed person
is not paid by the employer but by the taxpayer himself
Cont...
 5. Welfare benefits:
 In a contract of service there is normally a duty under
the social security laws to both the employer and
employee to contribute to the social security funds for
such benefits like retirement pension etc.
 In a contract for service a self employed person is
individually responsible for his welfare if he wishes
and he has limited right to claim welfare benefits, eg.
statutory sick pay
Parties to the Contract of
Employment
 There are two parties to the contract of employment
 First, an employer,
 Second, an employee
 Section 4 of ELRA define an employer to mean any
person including the gvt and an executive agency who
employs an employee. This definition is not adequate
to comprehend the meaning of the word employer.
This is a big problem as to who is an employer.
Cont...
 Who is an employee
 Effort to define an employee must take into account
the following factors;
 1. modern times have eroded, strained the usefulness
of common law concept of employment contract.
 2. Due to modern work practices an increasing
number of workers are now employed in non standard
contract of employment known as atypical contract of
employment. These include part time contract,
seasonal contract, home based contract and
Cont...
 Temporary contract.
 3. Due to high competition of organisation of work and
production process, the international markets and
business has kept on changing the working
arrangement. In some cases production is
decentralised and this is often done by subcontracting,
outsourcing or transferring non core activities of the
organisation to smaller firms or companies or home
basic workers. Workers in these flexible working
arrangement are generally paid low wages, receive no
or few benefit and they are excluded from s.s schemes
Cont...
 What are the reaction of ILO to protect people
working under atypical contract of employment.
 ILO and gvt of various countries have come up with
several means to protect workers working under
atypical contract of employment.
 The ILO for instance has adopted a convention known
as part time work convention No 175 of 1994. countries
ratifying this convention are required to extent the
employment standard to part time workers even if
benefit under standard contract of employment are
Cont...
 Accrued on proportional basis. The part time work
convention also provide part time worker with benefits
which accrue on proportional or pro-rata basis.
 Some countries have taken the following measure;
 They enacted employment legislation with broader
definitions which cover almost an sort of employment
relationship or incorporate presumption that assist
workers to establish proof that they are employees
within the context of the law.
Cont...
 Tz has reacted by defining an employee under section
4 of the ELRA as follows;
 Employee means an individual who:
 a) has entered into contract of employment
 b)has entered into any other contract under which the
individual undertake to work personally for the other
part to the contracting and the other part is not a
client or customer of any professional business or
undertaking carried on by the individual
Cont...
 c) is deemed to be an employee by the minister under
section 98(3) of the ELRA
 This definition tries to address the problem mention
earlier as follows;
 Part A retain the conventional definition of an
employee as understood under common law
 Part B addresses employee who may be employed in an
other contract e.g atypical contract and this definition
exclude people who are working under contract for
service.
Cont...
 Part C is a safety valve which can be resorted to people
working under any other arrangement .
 S.61 of the LIA also create presumption as to who is an
employee.
Formation of the contract of
employment
 A contract of employment is like an other contract, it is
required to conform with all the essential form of an
ordinary contract such as offer and acceptance,
capacity, consideration, lawful object, free consent,
intention to create legal relation and possibility of
performance
 In this part the discussion is centred on the elements
which vary from the normal contracts element. These
elements include capacity, free consent and
consideration.
Cont...
 Capacity:
 In employment contract like in any other contract, the
parties must be competent to contract. However, there
are differences when we look at the capacity as
required by labour laws for a contract of employment
and capacity to contract generally.
 While the general contracts refer to the age of majority
(18 years) under the Age of Majority Act, Cap 348 as
the age for capacity, labour laws do vary with such
requirement in some instances
Cont...
 Under the labour law capacity to enter into contract
varies with the type of employment. Moreover, the
employment laws concerns much with the employee’s
capacity rather than the employer’s capacity
 For instance s.5 of the ELRA allows employment of
children below the age of 18 years in light work
Cont...
 Free Consent: Employment is a consensual
arrangement. The parties are supposed to have entered
to such arrangement out of their free volition or free
will. S. 6 of the ELRA prohibit forced labour in making
contract of employment.
 Consideration: the legal consideration in
employment contracts are wages in
monetary/pecuniary form. S.27 of the ELRA provide
for payment of remuneration
Formalities of the contract of
employment
 The contract of employment may be in writing or may
be verbal (oral) however, it must be entered into freely
that is with free consent. S. 6 of the ELRA prohibit
forced labour in making contract of employment.
 On the other hand under common law parties to the
contract of employment are not required to observe
any formalities when concluding a contract of
employment.
Cont...
 Once there is either express or tacit agreement on the
nature of the employee duty and on the remuneration
the contract becomes operative.
 The contract need not necessary be in writing
although this is always desirable for purpose of clarity
and minimization of dispute.
 Under the ELRA S. 14-16 there are formalities which
must be undertaken by the parties.
Cont...
 S.14(1) provide for the three types of employment
contract which are one, a contract for an unspecified
period of time, second, a contract for specified period
of time for professionals and managerial cadre and
third, a contract for a specific task.
 A contract of employment in which the employee is to
work outside the URT must be in writing. S.14(2)
Cont...
 Under s. 15 of ELRA the employer is bound to supply
the employee with the following particulars when the
employee commences employment.
 a) name, age, permanent address and sex of the
employee
 b) place of recruitment
 c) job description
 d)date of commencement
 e) form and duration of contract
 f)place of work
Cont...
 g)hours of work
 h) remuneration, the method of its calculation and
details of benefit or payments in kind
 i) any other prescribed matter
 When these written particulars are not understood by
the employee, the employer should explain to the
employee in the manner that the employee
understands.
Cont...
 Where an employer fails to produce the written
particulars required by s. 15(1) of the ELRA, the burden
of proving or disapproving such particulars lie on the
employer as provided under s.15(6)
 Under s. 16 of the ELRA the employer is required to
display in a conspicuous( open) place a statement in a
prescribed form of the employee rights under the Act.
 The particulars required under s.15 of the ELRA may
keep on changing the employer need to inform the
employee on the changes of the particulars.
The implied terms in the contract
of employment.
 Apart from contractual terms agreed on by the parties,
employment contract also bare a heavy load of implied
terms.
 What are implied terms under employment contract
 These are terms imported into the contract of
employment by operation of the law even if the parties
are ignorant of their existence at the time of
contracting. They can also be imported in a contract by
operation of a collective agreement, wage
determination or exemptions under s. 100 of the ELRA
Cont...
 Implied terms are important terms in determining the
extent of the rights and obligation of the parties. E.g
s.71(3) of the ELRA a collective agreement shall be
binding on an employee who are not members of a
trade union party to the agreement if the trade union
is recognised as the exclusive bargaining agent of those
employee under s. 67
Cont...
 Similarly under s. 13(2) of the ELRA says that an
employment standard constitute a term of a contract.
Therefore all employment standard set out in part III
of the ELRA constitute part of the employment terms
and condition whether the parties referred to them or
not at the time of concluding the contract.
 Variation of the terms of
employment contract
 Can the employer vary the terms of employment?
 The moment the contract of employment is concluded
its terms are fixed in the sense that neither part can
unilaterally change them unless the original contract
provides for such variations.
 However, a contract of employment may be changed or
modified by a collective agreement, wage
determination made by the minister or by an other
employment law.
Cont...
 Nevertheless, the terms and conditions of employment
may be varied or changed at any time with mutual
consent of the employer and the employee but this
change or variation should only be done if it is meant
to benefit the employee and in any case such variation
can not be at the detriment of the employee rights
contained under part III of the ELRA.
Cont...
 What happen when the employer unilaterally change
or vary the terms of contract employment.
 Under s.80(2)(3) of the ELRA the employer can not
unilaterally change or vary the terms of contract of
employment.
Duties of the employers and
employees
 Parties to a contract of employment create duties and
obligation once they conclude the contract. These are
known as contractual obligation and duties but on top
of that they are also implied duties and obligation
created by implied terms.
 Failure to discharge the contractual or implied terms
may lead to breach of a contract of employment.
Cont...
 The relationship between the employer and the
employee starts when the parties have concluded the
contract of employment or service
 However, there are two exception to this rule which
was introduced or created by the ELRA
 1) prohibition of discrimination against a job applicant
under s.7(4)(9) of the ELRA. According to this section
an employer can not discriminate a job applicant and
the job applicant can take legal action against the
employer although there is no fully fledged
employment relationship between the parties.
Cont...
 2) where an employee is deemed to be an employee by
the minister under s. 98(3) of the ELRA and where the
employer fails to rebut the presumption under s.61 0f
the LIA.
 Duties of an employer
 The duties discussed here are the ones that are implied
under the common law.
 1) Duty to receive an employee to service when the
contract is concluded
Cont...
 The employer is duty bound to receive an employee on
the agreed date after the conclusion of employment
contract. No excuse should be given by the employer
upon an employee who is reporting on the date agreed.
 2. Duty to pay wages or remuneration.
 One of the fundamental duties of the employer
towards his employee is obligation to pay wages or
remuneration. A contract of employment or the
written statement of particulars will usually give
details of the amount of wages payable.
Cont...
 The rates may be based on negotiations between the
employer and the employee or on a collective
agreement with the trade union. There is entitlement
to wages even though the employee can not work
because no work is available. Time workers are
however paid for being ready, willing and able to work
for the agreed hours.
 Overtime is payable when expressly agreed upon by
the parties in the contract or if it is customary.
Cont...
 Discretionary payments in the form of allowances or
bonuses are not rights as such and an employee can
not claim as a matter of right
 This duty to pay wages or remuneration is also
provided under Article 23 of the Constitution of URT
1977( R.E 2005) ( as amended from time to time) and
s.27 of the ELRA.
Cont...
 3) Duty to ensure safe working condition. S. 98(2)(q) of the
ELRA
 The employer must take reasonable care to make his
premises safe. Example of unsafe premises includes
structural defects, bad ventilation, unsafe insulation and
slippery floors or staircases.
 Equipment includes plant, tools and materials i.e all those
things with which a person my be expected to work must
be of safe nature. Plants, tools and equipment supplied by
the employer must be reasonably safe and an employer who
does not do so fails in this duty.
Cont...
 The employer is deemed to have failed in the following
circumstances if;
 i) he fails to supply suitable equipment and the
employee is forced to improvise
 ii) he provides defective equipment knowingly or
which he should have known on a reasonable
examination. The onus is on the employer to inspect
the equipments.
 iii) he fails to remedy defects which have been brought
to his notice
Cont...
 The employer’s failure to take reasonable steps to
ensure the safety of an employee may be a breach of a
fundamental term of contract of employment entitling
the employee to forced resignation and claim for
constructive termination of contract of employment as
provided under s.36(a)(ii) and Rule 7 of the
Employment and Labour Relations ( Code of Good
Practice) Rules, 2007
Cont...
 4) Duty to honour or respect contractual and other
statutory duty
 The employer has the duty to treat his employees with
due respect and consideration, mindful of their needs
and problems, sympathetic to their problems. This
duty arises at the outset of the contract and continues
during its performance up to its termination. The
employer therefore should not carry on the
provocative conducts towards his employees.
Cont...
 Eg s.96 of the ELRA require or oblige an employer to
keep records of an employee for a period of five years
after termination of an employee contract of
employment.
 5) Duty to indemnify
 Employer must indemnify his employee who has
incurred the liability while acting on behalf of the
employer. The employer is excused from this duty if
the employee knew that the employer had n right to
give the order in question.
Cont...
 6)Duty of confidentiality
 The employers are duty bound not to disclose any
confidential information about their employees to
third persons. Thus, the employer cannot disclose a
confidential information concerning without the
employee’s consent. This is because the employer
comes into the possession of that information only for
the purposes of employment relationship and not for
any other purpose.
Cont...
 Duties of the employees
 The duties of an employee are therefore either implied
or are contained in his contract. The implied and or
expressed duties include;
 1) To attend to work
 It is an important obligation that an employee is
bound under a contract of employment to attend to
work at such time and place specified in the contract
itself.
Cont...
 2) To obey lawful orders
 The employee is bound to obey all lawful orders of his
employer which are within his scope of employment.
This duty imports the concepts of obedience and
loyalty. An employee is not obliged to obey orders that
may amount to illegality or criminal offence or breach
of public policy. Employee may refuse a task which
amount to lowering his status before other employees
or the community.
 A wilful refusal to obey a lawful order will often lead to
the termination of contract of employment.
Cont...
 3) To exercise due care and skill
 The employee has a duty to perform his work
competently, using reasonable skill and care. The
employee is obliged to take care of the employer’s
property.
 The breach of the duty to use care and skill entitles the
employer to claim damages in respect of the negligent
performance of the contract.
Cont...
 In the same way an employee who negligently allows
his employer’s property to be stolen or causes it wilful
damage breaches his contract and may be liable for
termination of contract of employment.
 4) To conduct oneself properly
 An employee must not misconduct himself i.e display
insolence, laziness, act of immorality, dishonest or
drunkenness while at work. Any act of misconduct
may justify termination of contract of employment.
Cont...
 This happen if the misconduct interferes with
employer’s business or the employee’s ability to
perform the work.
 5) To observe good faith.
 An employee is in a fiduciary relationship with the
employer and may be held to have breached the duty
of good faith if he discloses professional or trade
secrets to third parties, or solicits customers of the
employer to his own business or for the benefit of
another person.
Cont...
 6) Duty to indemnify
 Where the employer suffers any loss or damage
occasioned by the employee, then the employee is
bound to compensate the employer to the extent of
such loss or damage. The employer can recover such
loss or damage by way of indemnity by making
deductions from wages of the responsible employee.
 7) To maintain Fidelity
 The employer-employee relationship is one based on
trust. The employee must be loyal to the employer.
Cont...
 He should not accept bribes or make secret profits or
commissions.
 Literally any secret profits and or commissions
received by the employee in the course of employment
must be disclosed to the employer and also accounted
for.
 8) To perform his work personally
 The employee must do the work assigned to him
personally thereby displaying the skills and or
profession associated with the work in question.
Cont...
 The employee must not allow any other person to do
the work assigned to him.
 9) To Maintain business/ trade secrecy
 Employee must maintain secrecy over his employers
services during the time of his employment and even
after. The employer is not entitled to disclose any
matters involving patents or trade secrets of the
employer which comes to him by virtual of his
employment.
Cont...
 10) To give proper notice
 The employee must give proper notice to the employer
of termination of his employment according to the
terms of his contract. S.41 of the ELRA.
TOPIC THREE: FUNDAMENTAL
RIGHTS AND EMPLOYMENTS
STANDARDS.
 Fundamental core rights/protection
 What are fundamental core rights/protection
 These are rights and protection contained in the 8 core
ILO conventions and which TZ has ratified. The rights
forms the bare minimum for the creation of a decent
environment within which to work. These rights have
been consolidated and placed under part II of the
ELRA.
Cont...
 What are International Labour Standards?
 Labour standards are simply the rules that govern how
people are treated in a working environment. They
come in a variety of forms and originate at the local,
national, and international levels.
 Labour standards cover a very wide variety of subjects,
mainly concerning basic human rights at work, respect
for safety and health, and ensuring that people are
paid for their work.
Cont...
 They also extend to questions of good governance,
such as labour inspection and basic labour
administration. In an economic context, they are
important for raising productivity and competitiveness
over the long term.
 At the national level, labour standards are usually set
by laws and regulations. Some can also be found in
collective agreements. Normally, these bind only the
contracting parties, trade unions and employers but
once accepted in some countries, they acquire the
force of law for the entire country or economic sector
Cont...
 At the international level, labour standards are found
in international conventions and recommendations.
International labour standards (ILS) are important for
two reasons.
 First, they represent the international consensus on
minimum best practices, whether on human rights
generally or more precisely on labour matters.
Cont...
 Second, and more immediately important in many
cases— when they have been ratified by member
countries they constitute binding legal obligations in
national and international law, and may even be
incorporated in national law.
 What are Core Labor Standards ( CLS)?
 CLS are a set of four internationally recognized basic
rights and principles at work:
 (i) freedom of association and the effective recognition
of the right to collective bargaining,
Cont...
 (ii) elimination of all forms of forced or compulsory
labour,
 (iii) effective abolition of child labour, and
 (iv) elimination of discrimination in respect of
employment and occupation.
 While there are many types of labour standards, the
four listed above have achieved consensus
internationally as the “core” labour standards.
International support for these standards reflects an
understanding that they are applicable to all countries.
Cont...
 The ILO further substantiated the CLS in 1998 by the
Declaration on the Fundamental Principles and Rights
at Work, which calls upon its member countries to
comply with the four principles, regardless of whether
they have ratified the relevant conventions.
Cont...
 There are two convention which deal with child labour
 I) the ILO Minimum Age Convention No 138 of 1973
and its accompanying Recommendation (No. 146)
 II) Prohibition and Immediate Elimination of Waste
Forms of Child Labour Convention No 182 of 1999
 The ILO Minimum Age Convention, 1973 (No. 138) and
its accompanying Recommendation (No. 146) set the
goal of elimination of child labour, and the basic
minimum age for employment or work (in developing
countries at 14 years of age or the end of compulsory
schooling, whichever is higher;
Cont...
 and 15 or the end of compulsory schooling for
developed countries). The Convention sets a minimum
age of 2 years younger for “light work,” i.e., 12 and 13
years, respectively; and a higher minimum age for
dangerous or hazardous work (basically 18 years of age,
but 16 in certain circumstances). The Convention also
has various other flexibility clauses.
Cont...
 The main issues in the Minimum Age Convention No. 138
are:
 • National Policy. Each State that ratifies Convention No.
138 undertakes to pursue a national policy to ensure the
effective abolition of child labour.
 • Declaration of minimum age for admission to
employment or work.
 • Individual exceptions. After consultation with
organizations of employers and workers, the competent
authority may allow exceptions in individual cases in a very
few areas, but not to the basic rules
Cont...
 Hazardous work. The employment of young persons from
the age of 16 years may be authorized, after consultation
with organizations of employers and workers, on condition
that their health, safety, and morals are fully protected; and
they have received adequate specific instruction or
vocational training in the relevant branch of activity.
 • Light work is work which is not likely to be harmful to
the health or development of the young persons concerned
and is not such as to prejudice their attendance at school or
their participation in vocational orientation or training
programs.
Cont...
 Worst Forms of Child Labour Convention (No.182) and
Recommendation No.190, which target the worst forms of
child labour as a matter of urgency.
 The “worst forms of child labour” are
 (i) all forms of slavery or practices similar to slavery, such as
the sale and trafficking of children, debt bondage, and
serfdom and forced or compulsory labour—including
forced or compulsory recruitment of children for use in
armed conflict;
 (ii) use, procurement, or offering of a child for prostitution,
production of pornography, or pornographic performances;
Cont...
 (iii) use, procurement, or offering of a child for illicit
activities, in particular for the production and
trafficking of drugs; and
 (iv) work that, by its nature or the circumstances in
which it is carried out, is likely to harm the health,
safety, or morals of children.
 In addition, the Convention on the Rights of the Child,
adopted by the United Nations in 1989, has been
ratified by almost every country in the world, and
applies also to child labour.
Cont...
 There are two convention on forced labour
 i) the Forced Labour Convention, No 29 of 1930
 ii) the Abolition of Forced labour Convention No 105
of 1957
 the Forced Labour Convention, 1930 (No. 29) (Article
2(1)): define the term ‘forced or compulsory labour’ “to
mean 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.”
Cont...
 The “penalty” referred to need not be in the form of
penal sanctions, but might take also the form of loss of
rights or privileges.
 However, certain types of labour are excluded from the
scope of Convention No. 29:
 • work of a purely military character;
 • work that forms part of the normal civic obligations
of citizens;
Cont...
 • work as a consequence of a conviction in a court of
law, provided that
 (i) said work is carried out under the supervision and
control of a public authority;
 (ii) the said person is not hired to or placed at the
disposal of private individuals, companies or
associations;
Cont...
 • work in cases of emergency (war, calamity, and in
general any circumstance that would endanger the
existence or the well-being of the population); and
 • minor communal services (services performed by the
members of the community in the direct interest of
the said community).
Cont...
 Forced labour for such reasons as mobilizing for
economic development, punishment for strike
participation, or as a means of discrimination, is also
prohibited.
 the Abolition of Forced Labour Convention, 1957 (No.
105), specifies that forced labour can never be used for
the purpose of economic development or as a means of
political education, discrimination, labour discipline,
or punishment for having participated in strikes.
Cont...
 There are two convention on prohibition of discrimination
 i) Equal Remuneration Convention No 100 of 1951
 ii)Discrimination of employment and occupation No 111 of
1958
 the ILO Equal Remuneration Convention, 1951 (No. 100),
along with its accompanying Recommendation (No. 90).
Upon their adoption, it was recognized that equal pay
could not be achieved without the elimination of
discrimination in all areas of employment and that other
grounds of discrimination also should be the subjects of
prohibition.
Cont...
 The main issues in the Equal Remuneration Convention No.
100 from 1951 are:
 • Remuneration: the ordinary, basic or minimum wage or
salary and any additional emoluments whatsoever payable
directly or indirectly, whether in cash or in kind, by the
employer to the worker and arising out of the workers’
employment.
 • For the purpose of the Convention, the term “equal
remuneration for men and women workers for work of
equal value” refers to rates of remuneration established
without discrimination based, directly or indirectly, on sex.
Cont...
• Where differential rates between workers
correspond, without regard to sex, to differences in the
work to be performed, as determined by an objective
appraisal, these must not be considered as being
contrary to the principle of equal remuneration.
 The Discrimination (Employment and Occupation)
Convention 1958 (No. 111),and Recommendation No. 111,
which address all forms of discrimination concerning
employment and occupation.
 The main issues in Convention No. 111 are:
Cont...
 • Discrimination: any distinction, exclusion or preference
made on the basis of race, colour, sex, religion, political
opinion, national extraction or social origin (or such other
ground as may be specified by the State concerned), which
has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation.
 • Each State that ratifies the Convention undertakes to
declare and pursue a national policy designed to promote
equality of opportunity and treatment with a view to
eliminating any discrimination in respect of
 (i) access to vocational training,
Cont...
 (ii) access to employment and to particular
occupations, and (iii) terms and conditions of
employment.
 • In particular, it has to
 - seek the cooperation of employers’ and workers’
organizations and other appropriate bodies in
promoting the acceptance and observance of its policy;
 - repeal any statutory or administrative provisions
inconsistent with the policy;
 - enact legislation and promote educational programs
to secure its acceptance;
Cont...
 - ensure observance of the policy in employment,
vocational guidance, vocational training and
placement services under the direction of a national
authority; and
 - indicate in its annual reports on the application of
the Convention the action taken in pursuance of this
policy.
Cont...
 Two ILO convention on freedom of association
 i) The ILO Convention on Freedom of Association and
Protection of the Right to Organize, 1948 (No. 87)
 ii) the Right to Organize and Collective Bargaining
Convention, 1949 (No. 98).
 These are referred to as the twin conventions on freedom of
association and collective bargaining. They give workers
their most fundamental rights—the right to form and join
organizations of their own choosing and to promote and
defend their economic and social interests. These
conventions give the same rights to employers.
Cont...
 While Convention 87 gives workers the right to form
and join trade unions, Convention 98 consolidates this
basic right with guarantees and safeguards for trade
unions to operate freely and independently of
governments and employers
 Further, Convention 98 lays down the key principles of
the right to organize and bargain collectively. It
provides the protection that workers and their
organizations need against acts of anti-union
discrimination and of interference by either public
authorities or employers
Cont...
 It also lays down the obligations of ratifying states to
respect and promote freedom of association and
collective bargaining. Therefore, not only does this
Convention establish the right of a trade union to
exist, it also defines its purpose to negotiate with
employers with a view to the regulation of terms and
conditions of employment by means of collective
agreements.
Cont...
 There is also the ILO Declaration on Fundamental
Principles and Rights of Work of 1998
 For more Information visit this website www.ilo.org
Fundamental core rights under the
ELRA
 Prohibition of Child Labour S. 5 ELRA
 Child labour is a scourge it exposes a child to hash,
exciting and sometimes dangerous environment. Child
labour is also exploitative humiliating and deny
children their fundamental right to schooling, rest and
recreation.
 Consequently s. 5 of the ELRA provides among others
prohibit the employment of children below the age of
14 but allows employment of children of or above 14
years but below 18 years in light work.
Cont...
 The s.5 of the ELRA also prohibit employment of
children under the age 18 years in mines, factories and
other setting which are hazardous
 Further it prohibit employment of children in any
employment that is in appropriate for a person of that
age that is the worst form of child labour
Cont...
 2. prohibition of forced Labour s.6 of the ELRA
 Under the ELRA forced labour also include bondage
labour or an work excited from a person under the
threat of a penalty and to which that person has not
consented
 However, section 6(2) of the ELRA exclude certain
forms of forced labour from the definition although
they may constitute forced labour under normal
circumstances. These include
Cont...
 a) work excited under the National Defence Act, 1966
for a work of a purely military nature
 b) work that forms part of the normal civil obligation
of the citizen of TZ
 c) any work excited during any emergency
 d) work excited from a person convicted by the court
of law
Cont...
 Prohibition of discrimination. S.7 of ELRA
 Discrimination occur in a variety of forms and in range of
different setting, it may be direct, indirect or take the form
of harassment s.7 of ELRA prohibit employers to
discriminate directly or indirectly against an employee in
any employment policy or practice on grounds of colour,
nationality, tribes or place of origin, political opinion or
religion, sex, gender, pregnance, family responsibility or
marital status, disability, HIV AIDS, age or station in life.
 Any person who contravene s.7(4)(5) commits an offence
Cont...
 However, s.7 of ELRA allows discrimination based on
affirmative action inherent job requirements or
employment of citizens under the National Employment
promotion Service Act, 1999
 S.7 of ELRA requires employers to promote equal
opportunity in employment and eliminate discrimination
but also take positive step to guarantee equal remuneration
for men an women for work of equal value.
 Part III of the Code of good practise also provides for the
discrimination.
 Read also s.8 of the ELRA
Cont...
 Freedom of Association
 Every employee has right to form or join trade union
and to participate in lawful activities of the trade
union (s. 9) However, this right is subject to
qualification in certain kinds of employment. The
employees who have a restricted right are magistrates,
prosecutors and senior management employees.
 For magistrates they may only form or join trade
unions that restrict their membership to judicial
officers
Cont...
 The prosecutors on the other hand may only form or
join trade unions that restrict their membership to
prosecutors or other court officials. The senior
management employees may not belong to a trade
union that represents the non-senior management
employees of the employer.
 The right to association is also available to employers.
The employers have a right to form or join employer’s
association and to participate in the lawful activities of
such associations (s.10).
Cont...
 There are also rights accorded to trade unions and
employers association such as;
 Right to determine their constitutions
 Right to plan and organize their administration and lawful
activities
 Right to join and form federations
 Right to participate in the lawful activities of the federation
 Right to affiliate and participate in the affairs of any
international workers or employees organization or the
ILO (s11).
Employment Standard under the
ELRA( Part III of the ELRA
 1. Hours of work
 This is an employment standard which is provided
under s.17-25 of the ELRA.
 However, this standard of hours of work does not
apply to employee who manage other employees on
behalf the employer and who report directly to the
senior management.
 On the other hand this standard does not apply to
work done in an emergence situations which can not
be performed by employees during their ordinary hour
of work.
Cont...
 S.19(1) require or permit an employer not to allow an
employee to work more than 12 hours in a day.
 S. 19(2) provide for the maximum number or of
ordinary days or hours that an employee may be
permitted or required to work which are
 a) 6 days in any week
 b) 45 hours in any week
 c) 9 hours in a day
Cont...
 Overtime
 No employer is permitted to require or permit an
employee to work overtime except in accordance with
an agreement and the overtime hours are limited to
not more than 50 in any four week cycle.
 The remuneration for overtime payment is also
provided for in which case, an employer is prohibited
from paying less than one and one half times the
employee’s basic wage for any overtime worked.
Cont...
 Night Work:
 Section 20 of the ELRA provides for restrictions as to night
work.
 Note that night time is defined to mean hours after 20hrs
and before 6hours.
 During this time it is prohibited that the employer should
not allow;
 pregnant employees,
 mothers (for period of two months after the date of birth or
before that date if the mother requests to work and
produces medical certificate that her baby’s health shall
not be endangered),
Cont...
 children under 18 years of age and an employee who is
medically certified as being unfit for night work, to
work at night.
 The remuneration at night work is also provided for in
which the employer is required to pay an employee at
least 5% of that employee’s basic wage for each hour
worked at night and if the hours worked are overtime
hours, the 5% to be calculated on the employee’s
overtime rate.
Cont...
 Compressed Working Week arrangement:
 Section 21 provides for the compressed working week.
In this case a written agreement must be signed by the
employer and employee to require or permit an
employee to work up to 12 hours in a day inclusive of
any meal interval, without receiving overtime pay.
 An agreement under this provision shall not require or
permit an employee to work more than five days in a
week or more than 45 hours in a week or more than 10
hours overtime in a week.
Cont...
 Break in working day:
 Section 23 provides for break in a working day in
which an employee who works for 5 hours
continuously is granted a break of at least 60 minutes.
 However, the employer may require an employee to
work during a break only if the work cannot be left
unattended or cannot be performed by another
employee.
 The employer is not obliged to pay the employee
during the break period unless the employee is
required to work or to be available during the break.
Cont....
 Daily and Weekly rest periods:
 An employer should allow an employee to have a daily
rest period of at least 12 hours between ending and
recommencing work.
 The employer should also allow an employee a weekly
rest period of at least 24 hours between the last
ordinary working day in the week and the first
ordinary working day in the next week.
Cont...
 However, a daily rest period may be reduced to 8
hours if there is a written agreement and the ordinary
working hours are interrupted by an interval of at least
three hours or the employee lives on the premises of
the workplace. (S. 24(2).
Cont...
 A weekly rest period may by written agreement
provide for a rest period of at least 60 hours every two
weeks, or a reduced weekly rest period by 8 hours if
rest period in the following week is extended
equivalently (s. 24(3).
 An employee may only work during the weekly rest
period if he has agreed to do so provided that the
employer shall pay the employee the double hourly
basic wage for each hour worked during the period. (S.
24(4).
Cont...
 Public Holidays:
 Section 25 provides that if an employee works on a
public holiday specified in the Public Holidays Act, the
employer should pay the employee double the
employee’s basic wage for each hour worked on that
day.
Cont...
 2. Remuneration
 Wages are protected by the protection of wages
convention 1949 No 95. the convention provides inter
alia that wages should be paid in legal tender or partly
in kind and that wages should directly be paid to the
worker.
 The CURT also provide for the right to fair
remuneration for work done. Article 23 of the CURT
 S.26 of the ELRA provides for the calculation of rates
to paid hourly, daily, weekly or monthly.
Cont...
 The hourly, daily, weekly or monthly wage rates are to
be determined in accordance with the table provided
for in the first schedule of the ELRA
 S.27 of the ELRA an employee shall be entitled to his/
her remuneration and paid during working hours at
the place of work on the agreed pay day.
 The payment may be made in cash or by cheque or
direct deposit into a bank account if the employee
direct.
 If payment is in cash or by cheque the same should be
place in a sealed envelope.
Cont...
 Payment must be supported by written statement of
particulars ( salary slip). The obligation of the
employer is to pay in cash if the employee has directed
he can be paid by cheque or deposit on the account
 The employer may pay an advance if that is agreed on
completion of the half contract period. When the
employer pay an advance, the employer should not
charge interest. S.27(3)
 The minister is empowered to make regulation
providing for partial payment in kind or in a legal
tender in certain occupation which he will specify.
Cont...
 However, payment in kind should not be made in form of
drug or liquor. S.27(4) of the ELRA
 Any person who contravene s. 27 of the ELRA commits an
offence.
 S.28 of the ELRA provide on deductions on employees
wages. An employer shall not make any deduction from an
employee remuneration unless the deduction is permitted
by the law, a collective agreement, wage determination,
court order or arbitrators award or there is an agreement in
writing by the employee to suffer the deductions
 Deductions on the employee should not exceed one quarter
¼ of the employee’s remuneration in money
Cont...
 Where the employer becomes bankruptcy or winding
up the employee right shall be the claims that have
accrued in respect of 26 weeks immediately
proceeding the date on which the bankruptcy or
winding up was made
 Any person who contravenes s. 28 of the ELRA
commits an offence
Cont...
 3. Leave s. 29-34 of the ELRA
Cont...
 Annual Leave:
 s. 31 provides that an employer shall grant an employee at
least 28 consecutive days leave in respect of each leave cycle
and such leave shall be inclusive of any public holiday that
may fall within the period of the leave.
 During annual leave, the employer should not require or
permit an employee to work for him (s.31 (6).
 Leave cycle in respect to annual leave means a period of 12
months consecutive employment with an employer
following the employee’s commencement of employment
or the completion of the last 12 months leave cycle (s. 30).
Cont...
 However, the employer and employee may agree to a
standard leave cycle provided that it shall not
prejudice the paid leave afore said.
 As regards the number of days in respect of the annual
leave, may be reduced by the number of days during
the leave cycle which, at the request of the employee,
the employer granted that employee paid occasional
leave. (S.31 (2).
Cont...
 The annual leave may be taken at the time which may
be determined by the employer provided that such a
leave shall not be taken later than six months after the
end of the leave cycle or twelve months after the end of
the leave cycle if the employee has consented and the
extension is justified by the operational requirements
of the employer (s.31 (3).
 An employer shall pay an employee the remuneration
the employee would have been paid had he worked
during the leave period before the commencement of
the leave (s.31 (4).
Cont...
 The employer is prohibited from paying an employee
an amount of money in substitution for the annual
leave to which that employee is entitled whether or not
the employee agrees to such payment (s. 31(7).
 however, this provision is subject to prorata payment
which is made under s. 31(8).
 Under this section, the employer shall pay an
employee a prorata amount for annual leave accrued,
at the termination of employment or at the expiry of
each season in respect of an employee employed on
seasonal basis (s. 31(8).
Cont...
 Such a prorata amount of annual leave shall not be
availed to an employee who has not taken the leave
within the periods provided by the law (s.31 (9).
 The prorata amount of annual leave shall be calculated
at the rate of one day’s wage for every 13 days the
employee worked or was entitled to work (s.31 (10).
Cont...
 Sick leave:
 s. 32 provides that an employee shall be entitled to sick
leave for at least 126 days. The sick leave is a leave with
pay but there is a modification as to the amount to be
paid. The amount paid on sick leave is calculated as
follows:
 the first 63 days are paid at full wages
 the second 63 days are paid at half wages
Cont...
 However, there are restrictions which apply to
payment during sick leave.
 For the employee to be entitled to paid sick leave he
must produce a medical certificate and he must not be
entitled to paid sick leave under any law, fund or
collective agreement.
 The rationale for the first restriction is to make sure
that the employer pays only in genuine cases while the
rationale for the second restriction is to prevent a
double payment to the employee in respect of the
same subject matter
Cont...
 Maternity Leave:
 S. 33 provides for maternity leave. The employee is
required to give notice of intention to take maternity
leave supported by a medical certificate at least 3
months prior to the date of birth.
 The leave may commence at any time from four weeks
before the expected date of confinement or on an
earlier date if a medical practitioner certifies it as
necessary for the health of the employee or that of her
unborn child (s.33(2).
Cont...
 The duration of the leave is 84 days or 100 days in case
of giving birth to more than one child (s.33(6).
 It should be noted that the leave cycle in relation to
maternity is 36 months consecutive from an
employee’s commencement of employment or the
completion of the last 36 months leave cycle (s.30).
 This means an employee shall not be granted
maternity leave under the terms of this Act if the cycle
is not complete.
Cont...
 However, an employee is entitled to additional 84
days paid maternity leave within the leave cycle if the
child dies within a year of birth (s.33(7).
 Moreover, an employer is only obliged to grant paid
leave for 4 terms of maternity leave to an employee in
terms of this law (s.33 (8).
 no employer shall require a pregnant or nursing
woman to perform work which is hazardous to her
health or the health of the child (s.33 (5).
Cont...
 Thus, where an employee performs work that is
hazardous to her health or that of her child, her
employer shall offer her suitable alternative
employment, if practicable, on terms which are not
less favourable than those she is serving (s.33(9).
 Also no employee shall work within 6 weeks of the
birth unless a medical practitioner certifies that she is
fit to do so (s.33 (3).
 the employer shall allow the employee (to breast-
feeding a child) to feed the child during working hours
up to a maximum of two hours per day (s. 33(10).
Cont...
 Paternity Leave:
 S. 34 provides for the paternity leave together with other
forms of leaves.
 Paternity leave of at least 3 days is granted to the male
employees on the conditions that such leave is taken within
7 days of the birth of a child and the employee is the father
of the child (s.34(1).
 Before paying, the employer may require reasonable proof
of the event of birth.
 The three days referred to here is 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
Cont...
 Compassionate leave:
 the employee is entitled during any leave cycle to at
least four days paid leave for the sickness or death of
the employee’s child or the death of the employee’s
spouse, parent, grand parent, grand child or sibling
(s.34 (1) (b).
 The four days referred here is irrespective of how many
events prescribed here occur within the leave cycle,
but the employee may take more days as may be
authorised by the employer for the event provided that
such extra days will be without pay.(s.34(3)(b)
Cont...
 Forms of leave not provided for under the ELRA
 Regulations made under s.34(1) of the Public Service
Act, 2002 have three more types of leave;
 i) Leave without pay
 ii) Sabbatical Leave
 iii)Leave pending retirement
 Leave without pay; a public servant may be granted
leave without pay provided that the permanent
secretary is satisfied that it is in the public interest to
do so.
Cont...
 The public servant should make application for leave
through the employer who then forwards the same to
the permanent secretary for his recommendation. This
leave is not a right of an employee
 Sabbatical leave
 A public servant may be eligible for the grant of
sabbatical leave where necessary to broadens ones
experience or to increase his potential value to the
service.
Cont...
 This leave must be approved by the Permanent
Secretary in case of a public servant other than chief
executive officers whose approval should be given by
the chief secretary.
 This leave is also not a right and limited to twelve
months granted once in every 5 years.
 Leave pending retirement.
 A public servant should be granted a leave pending
retirement. This leave is taken before the date of
retirement. Leave pending retirement is a right and
the employer has no discretion not granting it.
Cont...
 4. Termination of employment
 Termination of employment is another standard under
sub part E of part III of the ELRA. All employers who
to terminate must comply with subpart E of part III of
the ELRA.
 The termination of employment convention 1982 No 1
has been very influential in drafting modern labour
legislation on termination of employment.
 The convention establishes the core elements of the
employees right and basically they are three;
Cont...
 i) the employer may only terminate a work for a valid
reason and there are three reason
 a) misconduct
 b) incapacity
 c) operational requirement
 ii) An employee must have an opportunity to be heard
before the termination takes place
 iii) An employee must have the appeal against a
termination decision to an impartial body
Cont...
 Termination of employment is one of the area where
most of the labour dispute arise.
 Subpart E of part III of ELRA makes a clear distinction
between the acts of termination or forms of
termination and the reason for termination.
 Therefore, in handling termination cases three stages
are involved
 i) whether there was termination
 ii) whether there was a fair termination
 iii) whether the termination was fair