1.0 OVERVIEW ON THE ESTABLISHMENT OF LABOUR LAWS IN TANZANIA

In this month’s Legal Update, we dive into the development of labour law in Tanzania. It is useful to understand that the rise of the existing labour laws is tied to the political and economic history of the country. The need for regulation emerged within the working class during the colonial era in Tanzania – where the colonialists introduced labour laws to enhance the colonial economy which was exploitative in nature, the introduced laws meant to discipline the working class which mostly was the natives.

After independence, the labour law was categorized and divided into four periods namely; the first, ie. immediately after independence, there was an adoption of the colonial labour laws and enactment of new labour laws. The second period, referred to the time during the passing of the Arusha Declaration, where there was the Nationalization of all major means of production and the government turned to be the sole investor. As such, during this period, the labour laws were designed to cover dependency on the state and legislation in addressing all labour issues. The third period would refer to the period in the 1980’s when Tanzania underwent economic reforms which shifted from a planned to a market-oriented economy. A number of statutes were enacted to divorce the socialism policy and operationalize the free labour market. Lastly, the fourth period, concerns the current period where we have major statutes that currently regulate labour matters in Tanzania are the Employment and Labour Relations Act and the Labour Institutions Act of 2004,

The two statutes work together to regulate the current labour environment in Tanzania and where the latter establishes the necessary organs, provides for the appointment of staff, vests them with jurisdiction declares their functions and delimits their powers, the former promulgates substance law which is supposed to be administered by the said organs.

1. INTRODUCTION

Labour law is a body of laws regulating employment matters, remuneration and working conditions, trade unions and industrial relations, it consists of procedural and substantive laws. The main purpose of having labour laws in Tanzania is based on two functional approaches set out below;

1. The Protective view suggests that there is an inequality in the power equation on employment relations, under this view the function of labour laws is to assist in redressing the imbalance of power so that equity and fairness will prevail; and
2. The Market view is based on the idea that the function of labour law is dependent on the surrounding socio-economic circumstances, Labour law reacts to the prevalent socio-economic forces that exist and its function is to formalize market forces that affect the relationship between employers and employees for the benefit of the economy.

3.0 EMPLOYMENT CONTRACT UNDER LABOUR LAWS

It is important to note the powers and roles of employers and employees in the country- the Labour or employment relations between employees and employers under labour laws are established by the existence of a contract of employment/service which is the key link through which employers and employees can access the rights and obligations established by labour laws, according to the law under section 14 of the Employment and Labour Relation Act No. 6 R.E 2019, there are four types of employment contract, namely:-

1. Employment contract for unspecified/permanent period;
2. Employment contract for specified/fixed period;
3. Employment contract for a special task.

The first type of contract is referred to as the permanent contract which may be terminated upon reaching retirement age. The second type is a contract of a fixed term, terminated upon the expiry of the agreed term;. And, the last contract is a contract which is terminated upon completion of a certain task(s).

3.1 Termination of Employment Contract

The Termination of the employment contract is also a legal process generally regulated by the law in the manner stating the reasons, procedures as well as consequences for failure to comply with the directives under the law on due process. The aim is to provide security of employment and limit the right of the employer to hire and fire at will, generally, termination is prohibited unless it is a fair termination, The Employment and Labour Relations Act describes fair termination to include the following:-

1. Termination under common law;
2. Constructive termination;
3. Failure to renew an expected fixed-term contract;
4. Failure to resume work after maternity; and
5. Selective re-employment after termination.

Therefore, proposing to carry out a Termination under invalid reasoning or unfair procedure is a termination dimmed to be unfair and may be enforceable by law.

3.2 Procedures for Termination of Employment Contract

A lawful termination of an employment contract would normally be accompanied by several benefits and entitled, should the following procedures be incorporated;

1. Provision of notice of termination; notice shall be provided in writing with reasons for termination stated therein as provided under the Act. The period of issuing such notice may vary depending on the contractual agreement between employer and employee, however, if the notice is given in the first month of employment it should be a seven days notice.
2. Payment of terminal benefits; terminal benefits are the rights accrue to the parties as a consequence of termination. These include statutory benefits including any payment due before termination, severance pay, repatriation, certificate of service and other benefits such as pension, contractual terminal benefits such as gratuity, and any benefits as per contractual agreements between the employer and employee.
   1. Remedies for Unfair Termination of Employment Contract

With the aforementioned procedures adopted, it should be further noted that the law provides for statutory remedies which may be rendered in reference to unfair termination of the employment contract. These are categorized into three remedies:-

1. To reinstate the employee without loss of remuneration; or
2. To re-engage the employee on the terms deems fit; or
3. Pay compensation to the employee of not less than 12 months remuneration. This will be an addition to other entitlements of the employee

However, it should also be noted that when the order to re-instate an employee is provided, and the employer expresses that they do not wish to re-instate the employee, such employer would be required to Pay compensation of 12 months wages; and pay all wages due and other benefits from the date of unfair termination to the date of final payment.

4.0 DISPUTE SETTLEMENT AND INSTITUTIONS UNDER LABOUR LAW

With reference to Disputes arising in Employment and Labour, a labour dispute would mean to either be as a result of unresolved grievances or demand on matters of mutual interest. There are four types of labour disputes recognized locally;

• Individual dispute;
• Collective dispute;
• Right dispute; and
• Interest dispute.

The mechanisms or approaches adopted for settling such Disputes through the different processes set out below;

1. Mediation/conciliation;
2. Arbitration; and
3. Adjudications.

4.1 Labour Institutions and the Process of Dispute Settlement

With regard to the modality of dispute settlement outlined above, it is also helpful to understand the available institutions which have been given the power and mandate to entertain and determine such disputes.

4.1.1 Commission for Mediation Arbitration (CMA);

The CMA is an institution established by virtue of the labour laws of Tanzania and established under section 12 of the LIA. The CMA is vested with the mandate to mediate any dispute referred to and determine any dispute referred to it by arbitration. As such, the First step in resolving a labour dispute under the CMA would be mediation. Where, upon failure to settle the mediation, the referring party would be able to either give notice to commence a lockout if the matter is a dispute of interest or refer the matter to arbitration. The second stage of resolving disputes under the CMA, or to the High Court where the matter is a complaint/dispute of right/

The jurisdiction of the CMA has been provided under several provisions in the Act which give it its power and mandate over labour disputes. The Act confers the CMA with the function to mediate any dispute through mediation and to determine any dispute through arbitration for matters whose pecuniary jurisdiction is below the pecuniary jurisdiction of the High Court, i.e pegged at One hundred fifty million Shillings for immovable and One hundred million shillings, respectively, for movable property capable of estimation.

Summary of Procedures for Conducting a Mediation under the CMA

1. The Dispute or complaint of the aggrieved party would be duly filled by using a prescribed Form number at the Commission. The parties would then be required to choose their own mediator who will conduct mediation for them.
2. The mediator would have the obligation to control the mediation within thirty days or for any other period on which the parties agree in writing.
3.  In a mediation session, a party to the dispute may be represented by an advocate, or personal representatives of the party’s own choice or an official of that party’s trade union or employers’ association.
4. If the parties fail to resolve the disputes referred to mediation the commission is under obligation to refer the matter to the Arbitrator to decide the dispute

Summary of Procedures for carrying out an Arbitration under CMA

There are Stages involved in lodging an arbitration under the CMA- and these are;

1. Introduction,
2. Opening statements and narrowing of issues,
3. Evidential hearing,
4. Arguments
5. Award.

The arbitral award issued in this stage would be final and conclusive and have no room to appeal on the aggrieved party. There would however be room to challenge an arbitral award by way of Revision or Review to the High Court Labour Division.

4.1.2 Labour Court (the High Court Labour Division)

The Labour Division is established under the Labour Institutions Act, 2004, where a judge with his/her accompanying assessors is vested with exclusive jurisdiction over labour matters. Such general powers of the labour division include powers to hear and determine Appeals from the decision of the registrar of trade unions, employers’ associations and federations. The labour division is also generally vested with all the powers of the high court and powers to execute the awards and decisions of the Commission for Mediation and Arbitration as if were decrees.

Procedure before High Court (Labour Division).

1. A Notice of application with the intention to lodge a claim against the employer should be issued by the aggrieved employee prior to filing a complaint, as a mandatory requirement.
2. Followed by filing a chamber summons supported by an Affidavit from the employee.
3. One notable fact is that a party to the proceeding may appear in person or may be represented by an advocate or a personal representative of the party’s own choice. They may also choose to have with them present, an official of a registered trade union or employers’ organization through filing a Notice of Representation to the Registrar.

We trust this information is useful. Feel free to contact us for further support and services.