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SOURCES OF LABOUR LAW IN TANZANIA

SOURCES OF LABOUR LAW IN TANZANIA

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SOURCES OF LABOUR LAW IN TANZANIA (a) THE MEANING OF LABOUR LAW Labour law (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 employees.1 It is the body of law that governs the employeremployee relationship, including individual employment contracts, the application of tort and contract doctrines, and a large group of statutory regulation on issues such as the right to organize and negotiate collective bargaining agreements, protection from discrimination, wages and hours, and health and safety.2 Labour law is the body of law that applies to matters such as employment, wages, conditions of work, labour unions, and labour-management relations. Laws intended to protect workers, including children, from abusive employment practices were not enacted in significant numbers until the late 19th century in Europe and slightly later in the U.S. In Asia and Africa, labour legislation did not emerge until the 1940s and '50s. Employment laws cover matters such as hiring, training, advancement, and unemployment compensation. Wage laws cover the forms and methods of payment, pay rates, social security, pensions, and other matters. Legislation on working conditions regulates hours, rest periods, vacations, child labour, equality in the workplace, and health and safety. Laws on trade unions and labour-management relations address the status of unions, the rights and obligations of workers' and employers' organizations, collective bargaining agreements, and rules for settling strikes and other disputes.3 CATEGORIES OF LABOUR LAW Labour law is categorized into two categories namely: Collective Labour Law which relates to the tripartite relationship between employee, employer and union Individual labour law which deals with employees’ rights at work and the contract for work.4
1 2

http://en.wikipedia.org/wiki/Labour_law (Accessed on 07.04.2011) http://legal-dictionary.thefreedictionary.com/Labour+law (Accessed on 07.04.2011) 3 http://encyclopedia2.thefreedictionary.com/labour+law (Accessed on 07.04.2011) 4 Ibid.

which was adopted at the time of independence. Problems not regulated by the legislator have to be solved by recourse to the constitution. 7 of 2004] . 64. termination of employment. 65. SOURCES OF LABOUR LAW IN TANZANIA CONSTITUTION At the top of the hierarchy of sources of Labour Law is the constitution. It plays a dominant role in the field of Labour Law. In 1965 Tanganyika adopted an Interim Constitution while the country awaited a new constitution to be drafted. 66 and 67 of 2007. PROCEDURAL LAW This is that branch of labour law that prescribes procedures to be followed in all labour matters. These two were based on the traditional Lancaster style constitutions negotiated at independence by the British upon handover of state power to newly independent states. This is provided for by the Labour Institutions Act5 and G. 42. and enforcement of rights.N. which operated from 1962 up to 1965. after it abolished the multi party political system and adopted a one party state system. Specifically. This is essentially true for collective Labour Law where the legislation is very fragmented. benefits etc.CLASSIFICATIONS OF LABOUR LAW SUBSTANTIVE LAW: This is that branch of law that prescribes the standards to be observed by both employers and employees. In the United Republic of Tanzania the constitutional history of Tanganyika traces its background from the 1961 Independence Constitution. In 1962 Tanganyika adopted the Republican Constitution. No. The process lingered longer than it was meant to and thus the constitution lasted from 1965 up to 1977 when a new 5 [No. These are provided for by the Employment and Labour Relations Act 2004. substantive law deals with things like contracts of service and contracts for services. This is done by providing for institutions for implementation of the substantive standards.

it requires that opportunities to be set open so that members of the society can strive for their material necessities of life. Civil case No. article 23 provides that. every person who works is entitled to just remuneration.7 Articles 22 and 23 of the Constitution of the United Republic of Tanzania 8 provide for Labour Law.htm 8 [Cap. with fourteen subsequent amendments. These are for example.nyulawglobal. Lord Denning MR (as he then was) recognized the right to work. The Bill of Rights is found in part three of the first Chapter of the Constitution and the fundamental rights and freedoms are stipulated under articles 12 to 24. 2 RE 2002] 9 1952 2 QB 329 10 H. Furthermore.C at Mwanza.htm http://www. is entitled to remuneration commensurate with his work. In his own words. it is necessary that the economic. every person. In relation to the provisions above.nyulawglobal. 3 1986 (Unreported) 11 [No. 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 state authority. Mwalusanya J was of the view that for work to be sustained. This article further provides that. In Lee v. Mwanza Textiles Ltd10. he stated that.constitution was adopted and it has remained applicable to date.6 The Constitution provides for a bill of rights. in Augustine Masatu v. 7 of 2004] . and all persons working according to their ability shall be remunerated according to the measure and qualification for the work. LEGISLATION Legislation is the law enacted by the legislature (parliament). Showmen’s Guild of Great Britain9. political and legal order of the society assures everybody who is capable of working of the possibility of participating in building his society through work in accordance with his capacity and education and the right to earn an income proportion to the quantum of his work. In Tanzania Labour Law is governed by a number of Statutes. for this right to practically exist. the Labour Institutions Act11 6 7 http://www. without discrimination of any kind.org/globalex/tanzania.org/globalex/tanzania.

High Court Digests and East Africa Law Reports.13 PRECEDENT These are cases from the High Court and Court of Appeal which are either reported or unreported and are be used as authority and bind lower courts thereto. This is not only true inasmuch as courts specify the general clauses and general terms of law. the relationship between the employer and employee is preceded by the contract of service. These cases therefore show how the doctrine of precedent has been used by the courts as a source of labour law. 12 13 No. THE LAW OF CONTRACT: The law of contract is one of the sources of labour law in Tanzania because of the fact that.and Employment and Labour Relations Act. but also inasmuch as they have to fill in the gaps left open by the legislator. In Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Court decisions play a very important role in the field of Labor Law.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. In this case. the court referred the case of McClelland V Northern Ireland General Health Services Board15 in reaching that decision. 6 of 2004] [Cap 345 RE 2002] 14 [1988] TLR 237 (HC) 15 [1957] 2 All ER 129 . which must abide to the all principles of the Law of Contract which are found in the Law of Contract Act. Ltd.12 The cumulative effect of these Acts was to overhaul the entire system of labour relations and particularly disputes settlement procedures that existed previously. Reported Tanzanian cases are found in the Tanzania Law Reports. he was employed for life or for a period terminating on reaching the age of compulsory retirement.

adopted by the Conference in Philadelphia in 1944 and incorporated in the ILO Constitution in 1946.19 CORE CONVENTIONS 16 17 [Cap. it also lays down a number of general principles which have come to be regarded in certain respects as a direct source of law.RECEIVED LAWS Another source is Received Laws established under Section 2(3) of The Judicature and Application Laws Act16.htm#Global_Instruments_of_Internation al_Labo .thefreedictionary. and Statutes of General Application of England.com/equity 18 http://wiki. on the other hand. These include: Common Law and Doctrine of Equity.com/Q/What_is_statute_of_general_application 19 http://actrav. On the other hand. 358 RE 2002] http://legal-dictionary. and in its numerous Conventions and Recommendations. While the Constitution of the ILO mainly contains provisions relating to the functioning of the Organization. Common Law is the ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. applicable before the 22 of July 1920 (Reception date for English Law in Tanzania). Such principles are contained in the Preamble of the Constitution and in the Declaration concerning the Aims and Purposes of the Organization. Equity.17 Statutes of General Application are all the laws that were in force in England before the 1st of January 1900.18 INTERNATIONAL INSTRUMENTS ILO INSTRUMENTS ILO sources of international labour law can be found in the Constitution of the Organization.answers. It is a set of principles and rules of action. applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. is a system of jurisprudence supplementing and serving to modify the rigor of common law. embodied in case law rather than legislative enactments.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.

In December 1997. which can be discerned. and for measures to promote collective bargaining. In the second category are technical standards. earthquakes.itcilo. 98) This convention provides for protection against anti-union discrimination. such as military service.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_Internation al_Labo 21 http://actrav.21 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE CONVENTION. 29) The Convention requires the suppression of forced or compulsory labour in all its forms. emergencies such as wars.20 These core Conventions were identified and given prominence in the Conclusion of the World Summit for Social Development in 1995 (See Copenhagen Declaration on Social Development). FORCED LABOUR CONVENTION. and lays down a series of guarantees for the free functioning of organizations without interference by the public authorities. 87) Establishes the right of all workers and employers to form and join organizations of their own choosing without prior authorization. 1948 (NO. 1949 (NO. 1930 (NO. Certain exceptions are permitted. convict labour properly supervised. which establish norms to improve working conditions. 137 countries had ratified this convention. there is an underlying hierarchy. 20 http://actrav.itcilo. 145 countries had ratified this convention. non-discrimination in employment (Conventions Numbers 100 and 111) and child labour (Convention 138).While ILO Conventions are not ranked in terms of their order of importance. etc. 121 countries had ratified this convention. for protection of workers' and employers' organizations against acts of interference by each other. fires.htm#Global_Instruments_of_Internation al_Labo . In the first category are Conventions dealing with freedom of association and collective bargaining (Conventions Numbers 87 and 89). RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING CONVENTION. In December 1997. forced labour (Conventions Numbers 29 and 105).org/actravenglish/telearn/global/ilo/law/lablaw. In December 1997.

100) This Convention of 1951 calls for equal pay for men and women for the work of equal value. The Declaration underlines that all member . to promote and to realize in good faith the right of workers and employers to freedom of association and the effective right to collective bargaining. 135 countries had ratified this convention. political opinion. and in any case not less than 15 years (14 for developing countries). 130 countries had ratified this convention. the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation. training and working conditions. labour discipline. workforce mobilization. on grounds of race. In December 1997. religion. and to work toward the elimination of all forms of forced or compulsory labour. In December 1997. 129 countries had ratified this convention.ABOLITION OF FORCED LABOUR CONVENTION. national extraction or social origin and to promote equality of opportunity and treatment. 105) It prohibits the use of any form of forced or compulsory labour as a means of political coercion or education. In December 1997. DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION. 1958 (NO. 1957 (NO. In December 1997. THE ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK The 86th International Labour Conference (1998) adopted by an overwhelming vote a solemn ILO Declaration on Fundamental Principles and Rights at Work. 1951 (NO. 59 countries had ratified this convention. punishment for participation in strikes. 111) The convention calls for a national policy to eliminate discrimination in access to employment. punishment for the expression of political or ideological views. committing the Organization's member States to respect. 138) Aims at the abolition of child labour. or discrimination. color. MINIMUM AGE CONVENTION. sex. stipulating that the minimum age for admission to employment shall not be less than the age of completion of compulsory schooling. EQUAL REMUNERATION CONVENTION. 1973 (NO.

in particular: • Annual follow-up concerning non-ratified fundamental Conventions. These reports will be reviewed by the Governing Body.. The Declaration includes provision for follow up. The report will be drawn up under the responsibility of the Director-General and will be submitted to the Conference for tripartite discussion.. which will cover each year the four areas of fundamental principles and rights specified in the Declaration.. Trade unionists worldwide are going to use this new tool as a powerful instrument in defense of their fundamental rights"..countries have an obligation to respect the fundamental principles involved. . In his address to the conference.. With a view to presenting an introduction to the reports thus compiled. on any changes which may have taken place in their law and practice. one of the four categories of fundamental principles and rights in turn. Michel Hansenne. General Secretary of the international Confederation of Free Trade Unions (ICFTU) "and it establishes workers' fundamental rights as the ground-rules of globalization . each year." It is a historic step". It will be based on reports requested from governments which have not ratified one or more of the fundamental Conventions.The Declaration sends the ILO into the next millennium well-placed to meet the challenge of globalization.... said that "it was high time for the ILO to give itself the means to address the social consequences of the globalization of the economy. said Bill Jordan. Director General of the ILO. adding that "the ILO can now proceed on the basis of a truly global set of common social values.I believe we can all be proud of the Declaration that has been adopted ".. the Office may call upon a group of experts appointed for this purpose by the Governing Body.. whether or not they have ratified the relevant conventions. • Global report which will cover. drawing attention to any aspects which might call for a more in-depth discussion..

light which will illuminate those areas that have previously remained in darkness. and recognizes the ILO as the specialized agency responsible for taking appropriate action for the accomplishment of the purposes set out in its Constitution. REGIONAL INSTRUMENTS OF INTERNATIONAL LABOUR LAW At the European level. and the various rights relation to labour. The North American Free Trade Area (NAFTA) has the North American Agreement on Labor Cooperation. Social and Cultural Rights and the International Covenant on Civil and Political Rights. The most important ones are the Convention on the Elimination of All Forms of Racial Discrimination (1969). some UN instrument of more general scope have also covered labour matters. which are legally binding human rights agreements. Elimination of all Forms of Discrimination against Women (1979).The Chairperson of the Workers’ Group of the Conference. Because of their comprehensive nature. the instruments of the Organization of American States (OAS) are still the main source of international labour . A number of provisions concerning labour matters are contained in the International Covenant on Economic." UNITED NATIONS INSTRUMENTS While the United Nations does not deal with labour matters as such. Bill Brett. said that he was pleased to note "that we have indeed created a powerful search. only few of the recently established regional organizations have adopted labour law instruments. Both were adopted in 1966 and entered into force 10 years later. The UN General Assembly has adopted also a number of legally binding Conventions concerning labour matters. In the Americas. and the Caribbean Community and Common Market (CARICOM) has an Agreement on Social Security. making many of the provisions of the Universal Declaration of Human Rights effectively binding. the Covenants are drafted in general terms. Rights of the Child (1989). a number of regional organizations that were created after the end of World War II have adopted legal instruments on labour matters. However. which they recognize are dealt with in a less precise and detailed way than ILO standards. Status of the Refugees (1954) and Status of Stateless Persons (1960).

mental. 5. which provides that every child shall be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's physical. WRITINGS PROMINENT JURISTS Books and writings of prominent jurists are also important secondary sources of labour law. the Southern African Development Community (SADC) has human rights provisions in the Treaty of Windhoek by which the community was established. provide for appropriate penalties or other sanctions to ensure the effective enforcement of this Article. States Parties shall in particular provide through legislation. AFRICAN INSTRUMENTS The Organization of African Unity adopted in 1981 the African [Banjul] Charter on Human and Peoples' Rights. none of the regional organizations has adopted legal instruments on labour matters – there are only recommendations. In Asia. In 1990. OAU adopted the African Charter on the Rights and Welfare of the Child. promotion and protection of human and people's rights in accordance with the provisions of the African Charter on Human and People's Rights as one of its objectives according to The Treaty establishing COMESA. moral. spiritual. the right to equal pay for equal work and the right to free association. the Southern African Development Community (SADC) and the Common Market of Eastern and Southern Africa (COMESA). 1975 . promote the dissemination of information on the hazards of child labour to all sectors of the community. and the Common Market of Eastern and Southern Africa has the recognition. The Organization of African Unity (OAU) also has legal instruments. which includes the right to work under equitable and satisfactory conditions. These are for example: the New Encyclopaedia Britannica22 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 22 Vol. minimum wages for admission to every employment.law in the region. In Africa. have human rights matters contained in their treaties. or social development. provide for appropriate regulation of hours and conditions of employment. declarations and programs dealing with these issues. Also. both of the recently established regional organizations.

The 23 http://www.pdf . (b) Regulating the wages to be aid by maintaining financial capacity of employees as per Part III (E) of the Employment and Labour relations Act. (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 the Employment and Labour relations Act. (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 world. This is done by defining their rights and duties as well as regulating their conduct. there is an inherent imbalance of the power within the relationship between employer and employee. (b) 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. (4) Helps in increasing production of goods and provision of social services: this is done by maintaining industrial peace. this is enshrined under Part III (E) of the Employment and Labour relations Act. (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 Labour Institutions Act. In Tanzania. writers such as Issa Shivji have written books such as the “State and the Working People in Tanzania”.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442. (d) By providing for care and welfare of employees (2) Labour Law has the function of balancing of conflict of interests between employers and employees.23 The starting point of the protective function view is that.

24 (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.ac. 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. This view began to gain support in the early 1970’s. “neo liberalist”.employee is at a great disadvantage as compared to the employer in terms of resources and bargaining skills.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442. as stipulated under labour laws. The supervising consultant must also be acquainted with local labour laws and standards.25 (8) To limit trade union freedom: Labour Law is also used as an instrument to limit and control trade Unions.ac.za/thesis/available/etd-11082005 26 http://www. (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.27 (10) Labour law helps Enforcement of labour standards: Labour based road works usually involve high labour recruitment and management. The supporters of this approach have also been labelled. safety and pay. 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.ilo. The law limits the degree to which the more powerful party can exploit the weaker.za/thesis/available/etd-11082005 . health.26 (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. According to this approach.pdf http://upetd. Special attention is expected from the supervising consultant and the project management team to ensure that the contractor is complying with the labour standards of employment.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.up.ilo. It is in considering this aspect that trade unionists will be inclined to ask whether they really need labour legislation at all. 24 25 http://www.up.pdf 27 http://upetd.

(12) Labour Law sets wage Rates: The minimum wage is always stipulated in labour laws. Regardless of gender. Therefore. He should advice the contractor in preparation of recruitment adverts that are neutral. any deductions made and their identities. Falsification of pay sheets is a major method of covering up corrupt practices at all levels. The supervising consultant should also routinely make spot checks with a number of individual different labourers to confirm amounts received. in this instance. contractors should be assisted by the client with sensitizing meetings to explain the nature of the work and the recruitment process.(11) Labour law helps on Non-Discrimination: the supervising consultant should check the recruitment is fair and transparent and that the contractor does not discriminate on the basis of gender. The supervising consultant must ensure that the contractor does not under pay the workers. In areas where strong cultural barriers exist. the contractor should pay equal wages for work of equal value. (13) Labour law helps on minimum age: Labour Law sets the minimum age for one to be employed in any governmental or non-governmental organization. . Labour Law functions to avoid gender discrimination. A regular check of contactors record of pay sheets is necessary. In this way Labour Law also protects the rights of children.

2011) http://en. 2 RE 2002] The Employment and Labour Relations Act [No.org/actravenglish/telearn/global/ilo/law/lablaw.itcilo.2011) http://encyclopedia2. 6 of 2004] The Judicature and Application of Laws Act [Cap. 358 RE 2002] BOOKS New Encyclopaedia Britannica.04.2011) http://legal-dictionary. 1975 INTERNET http://actrav.thefreedictionary.thefreedictionary.com/labour+law (Accessed on 07.04.BIBLIOGRAPHY STATUTES The Constitution of the United Republic of Tanzania [Cap.thefreedictionary.04.2011) http://legal-dictionary.2011) http://www.04.04.thefreedictionary.com/Q/What_is_statute_of_general_application 08.pdf (Accessed on 07.org/wcmsp5/groups/public/ed_dialogueactrav/documents/publication/wc ms_111442.04.wikipedia.com/equity (Accessed on 08.2011) http://wiki.htm#Global_Instrument s_of_International_Labo (Accessed on 07.com/Labour+law (Accessed on 07.04. 5.org/wiki/Labour_law (Accessed on 07.ilo.2011) (Accessed on .2011) http://www.nyulawglobal.04.answers.04.com/Labour+law (Accessed on 07.htm (Accessed on 07.org/globalex/tanzania. Vol.2011) http://legal-dictionary.

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