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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 employer-
employee 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
http://en.wikipedia.org/wiki/Labour_law (Accessed on 07.04.2011)
2
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.
CLASSIFICATIONS OF LABOUR LAW

SUBSTANTIVE LAW:

This is that branch of law that prescribes the standards to be observed by both employers
and employees. Specifically, substantive law deals with things like contracts of service
and contracts for services, termination of employment, benefits etc. These are provided
for by the Employment and Labour Relations Act 2004.

PROCEDURAL LAW

This is that branch of labour law that prescribes procedures to be followed in all labour
matters. This is done by providing for institutions for implementation of the substantive
standards, and enforcement of rights. This is provided for by the Labour Institutions Act5
and G.N. No. 42, 64, 65, 66 and 67 of 2007.

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. This is essentially true for collective Labour
Law where the legislation is very fragmented. Problems not regulated by the legislator
have to be solved by recourse to the constitution.

In the United Republic of Tanzania the constitutional history of Tanganyika traces its
background from the 1961 Independence Constitution, which was adopted at the time of
independence. In 1962 Tanganyika adopted the Republican Constitution, which operated
from 1962 up to 1965. 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. In 1965 Tanganyika adopted an Interim Constitution while the
country awaited a new constitution to be drafted, after it abolished the multi party
political system and adopted a one party state system. The process lingered longer than it
was meant to and thus the constitution lasted from 1965 up to 1977 when a new
5
[No. 7 of 2004]
constitution was adopted and it has remained applicable to date, with fourteen subsequent
amendments.6

The Constitution provides for a bill of rights. 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 24.7

Articles 22 and 23 of the Constitution of the United Republic of Tanzania 8 provide for
Labour Law. 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. In Lee v. Showmen’s Guild of Great
Britain9, Lord Denning MR (as he then was) recognized the right to work. Furthermore,
article 23 provides that, every person, without discrimination of any kind, is entitled to
remuneration commensurate with his work, and all persons working according to their
ability shall be remunerated according to the measure and qualification for the work. This
article further provides that, every person who works is entitled to just remuneration.

In relation to the provisions above, in Augustine Masatu v. Mwanza Textiles Ltd10,


Mwalusanya J was of the view that for work to be sustained, it requires that opportunities
to be set open so that members of the society can strive for their material necessities of
life. In his own words, he stated that, for this right to practically exist, it is necessary that
the economic, 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.

LEGISLATION

Legislation is the law enacted by the legislature (parliament). In Tanzania Labour Law is
governed by a number of Statutes. These are for example; the Labour Institutions Act11

6
http://www.nyulawglobal.org/globalex/tanzania.htm
7
http://www.nyulawglobal.org/globalex/tanzania.htm
8
[Cap. 2 RE 2002]
9
1952 2 QB 329
10
H.C at Mwanza, Civil case No. 3 1986 (Unreported)
11
[No. 7 of 2004]
and Employment and Labour Relations Act.12 The cumulative effect of these Acts was
to overhaul the entire system of labour relations and particularly disputes settlement
procedures that existed previously.

THE LAW OF CONTRACT:


The law of contract is one of the sources of labour law in Tanzania because of the fact
that, the relationship between the employer and employee is preceded by the contract of
service, which must abide to the all principles of the Law of Contract which are found in
the Law of Contract Act.13

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. Reported
Tanzanian cases are found in the Tanzania Law Reports, High Court Digests and East
Africa Law Reports.

Court decisions play a very important role in the field of Labor Law. This is not only true
inasmuch as courts specify the general clauses and general terms of law, but also
inasmuch as they have to fill in the gaps left open by the legislator.

In Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Ltd,14 the court held that
for an employee to be able to sue successfully for damages for premature termination of
employment he has to prove either that, he was employed for life or for a period
terminating on reaching the age of compulsory retirement. In this case, the court referred
the case of McClelland V Northern Ireland General Health Services Board15 in
reaching that decision. These cases therefore show how the doctrine of precedent has
been used by the courts as a source of labour law.

12
No. 6 of 2004]
13
[Cap 345 RE 2002]
14
[1988] TLR 237 (HC)
15
[1957] 2 All ER 129
RECEIVED LAWS

Another source is Received Laws established under Section 2(3) of The Judicature and
Application Laws Act16. These include: Common Law and Doctrine of Equity; and
Statutes of General Application of England, applicable before the 22 of July 1920
(Reception date for English Law in Tanzania).

Common Law is the ancient law of England based upon societal customs and recognized
and enforced by the judgments and decrees of the courts. It is a set of principles and rules
of action, embodied in case law rather than legislative enactments, 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. On the other hand, Equity, on the other hand, is a system of
jurisprudence supplementing and serving to modify the rigor of common law.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, and in its numerous Conventions and Recommendations. While the
Constitution of the ILO mainly contains provisions relating to the functioning of the
Organization, it also lays down a number of general principles which have come to be
regarded in certain respects as a direct source of law. Such principles are contained in the
Preamble of the Constitution and in the Declaration concerning the Aims and Purposes of
the Organization, adopted by the Conference in Philadelphia in 1944 and incorporated in
the ILO Constitution in 1946.19

CORE CONVENTIONS

16
[Cap. 358 RE 2002]
17
http://legal-dictionary.thefreedictionary.com/equity
18
http://wiki.answers.com/Q/What_is_statute_of_general_application
19
http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_Internation
al_Labo
While ILO Conventions are not ranked in terms of their order of importance, there is an
underlying hierarchy, which can be discerned. In the first category are Conventions
dealing with freedom of association and collective bargaining (Conventions Numbers 87
and 89), forced labour (Conventions Numbers 29 and 105), non-discrimination in
employment (Conventions Numbers 100 and 111) and child labour (Convention 138).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). In the second category are technical standards, which establish norms to
improve working conditions.21

FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO


ORGANIZE CONVENTION, 1948 (NO. 87)

Establishes the right of all workers and employers to form and join organizations of their
own choosing without prior authorization, and lays down a series of guarantees for the
free functioning of organizations without interference by the public authorities. In
December 1997, 121 countries had ratified this convention.

RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING CONVENTION, 1949


(NO. 98)

This convention provides for protection against anti-union discrimination, for protection
of workers' and employers' organizations against acts of interference by each other, and
for measures to promote collective bargaining. In December 1997, 137 countries had
ratified this convention.

FORCED LABOUR CONVENTION, 1930 (NO. 29)

The Convention requires the suppression of forced or compulsory labour in all its forms.
Certain exceptions are permitted, such as military service; convict labour properly
supervised, emergencies such as wars, fires, earthquakes, etc. In December 1997, 145
countries had ratified this convention.

20
http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_Internation
al_Labo
21
http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_Internation
al_Labo
ABOLITION OF FORCED LABOUR CONVENTION, 1957 (NO. 105)

It prohibits the use of any form of forced or compulsory labour as a means of political
coercion or education, punishment for the expression of political or ideological views,
workforce mobilization, labour discipline, punishment for participation in strikes, or
discrimination. In December 1997, 130 countries had ratified this convention.

DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION, 1958


(NO. 111)

The convention calls for a national policy to eliminate discrimination in access to


employment, training and working conditions, on grounds of race, color, sex, religion,
political opinion, national extraction or social origin and to promote equality of
opportunity and treatment. In December 1997, 129 countries had ratified this convention.

EQUAL REMUNERATION CONVENTION, 1951 (NO. 100)

This Convention of 1951 calls for equal pay for men and women for the work of equal
value. In December 1997, 135 countries had ratified this convention.

MINIMUM AGE CONVENTION, 1973 (NO. 138)

Aims at the abolition of child labour, stipulating that the minimum age for admission to
employment shall not be less than the age of completion of compulsory schooling, and in
any case not less than 15 years (14 for developing countries). In December 1997, 59
countries had ratified this convention.

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, committing the
Organization's member States to respect, 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, and to work toward the elimination of all forms of forced or compulsory
labour, the effective abolition of child labour and the elimination of discrimination in
respect of employment and occupation. The Declaration underlines that all member
countries have an obligation to respect the fundamental principles involved, whether or
not they have ratified the relevant conventions.

The Declaration includes provision for follow up, in particular:

• Annual follow-up concerning non-ratified fundamental Conventions, which will


cover each year the four areas of fundamental principles and rights specified in
the Declaration. It will be based on reports requested from governments which
have not ratified one or more of the fundamental Conventions, on any changes
which may have taken place in their law and practice. These reports will be
reviewed by the Governing Body. With a view to presenting an introduction to the
reports thus compiled, drawing attention to any aspects which might call for a
more in-depth discussion, the Office may call upon a group of experts appointed
for this purpose by the Governing Body.

• Global report which will cover, each year, one of the four categories of
fundamental principles and rights in turn. The report will be drawn up under the
responsibility of the Director-General and will be submitted to the Conference for
tripartite discussion.

In his address to the conference, Michel Hansenne, Director General of the ILO, 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......I believe we can all be proud of the Declaration
that has been adopted ", adding that "the ILO can now proceed on the basis of a truly
global set of common social values."

It is a historic step", said Bill Jordan, General Secretary of the international


Confederation of Free Trade Unions (ICFTU) "and it establishes workers' fundamental
rights as the ground-rules of globalization .....The Declaration sends the ILO into the next
millennium well-placed to meet the challenge of globalization... Trade unionists world-
wide are going to use this new tool as a powerful instrument in defense of their
fundamental rights".
The Chairperson of the Workers’ Group of the Conference, Bill Brett, said that he was
pleased to note "that we have indeed created a powerful search- light which will
illuminate those areas that have previously remained in darkness."

UNITED NATIONS INSTRUMENTS

While the United Nations does not deal with labour matters as such, and recognizes the
ILO as the specialized agency responsible for taking appropriate action for the
accomplishment of the purposes set out in its Constitution, some UN instrument of more
general scope have also covered labour matters.

A number of provisions concerning labour matters are contained in the International


Covenant on Economic, Social and Cultural Rights and the International Covenant on
Civil and Political Rights, which are legally binding human rights agreements. Both were
adopted in 1966 and entered into force 10 years later, making many of the provisions of
the Universal Declaration of Human Rights effectively binding.

Because of their comprehensive nature, the Covenants are drafted in general terms, and
the various rights relation to labour, which they recognize are dealt with in a less precise
and detailed way than ILO standards.

The UN General Assembly has adopted also a number of legally binding Conventions
concerning labour matters. The most important ones are the Convention on the
Elimination of All Forms of Racial Discrimination (1969), Elimination of all Forms of
Discrimination against Women (1979), Rights of the Child (1989), Status of the Refugees
(1954) and Status of Stateless Persons (1960).

REGIONAL INSTRUMENTS OF INTERNATIONAL LABOUR LAW

At the European level, a number of regional organizations that were created after the end
of World War II have adopted legal instruments on labour matters. In the Americas, only
few of the recently established regional organizations have adopted labour law
instruments. The North American Free Trade Area (NAFTA) has the North American
Agreement on Labor Cooperation, and the Caribbean Community and Common Market
(CARICOM) has an Agreement on Social Security. However, the instruments of the
Organization of American States (OAS) are still the main source of international labour
law in the region. In Asia, none of the regional organizations has adopted legal
instruments on labour matters – there are only recommendations, declarations and
programs dealing with these issues. In Africa, both of the recently established regional
organizations, the Southern African Development Community (SADC) and the Common
Market of Eastern and Southern Africa (COMESA), have human rights matters contained
in their treaties. The Organization of African Unity (OAU) also has legal instruments.

AFRICAN INSTRUMENTS

The Organization of African Unity adopted in 1981 the African [Banjul] Charter on
Human and Peoples' Rights, which includes the right to work under equitable and
satisfactory conditions, the right to equal pay for equal work and the right to free
association. In 1990, OAU adopted the African Charter on the Rights and Welfare of the
Child, 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, mental, spiritual, moral, or social development. States Parties
shall in particular provide through legislation, minimum wages for admission to every
employment; provide for appropriate regulation of hours and conditions of employment;
provide for appropriate penalties or other sanctions to ensure the effective enforcement of
this Article; promote the dissemination of information on the hazards of child labour to
all sectors of the community. Also, the Southern African Development Community
(SADC) has human rights provisions in the Treaty of Windhoek by which the community
was established, and the Common Market of Eastern and Southern Africa has the
recognition, 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.

WRITINGS PROMINENT JURISTS


Books and writings of prominent jurists are also important secondary sources of labour
law. 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. 5, 1975
the world. In Tanzania, writers such as Issa Shivji have written books such as the “State
and the Working People in Tanzania”.

(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, this is enshrined under Part III (E) of the
Employment and Labour relations Act.

(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.

(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. 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 Labour Institutions Act.

(4) Helps in increasing production of goods and provision of social services: this is done
by maintaining industrial peace.

(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.23 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

23
http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf
employee is at a great disadvantage as compared to the employer in terms of resources
and bargaining skills.

(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.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. This view began to gain support in the early 1970’s. The supporters of
this approach have also been labelled, “neo liberalist”. 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.25

(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.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, as stipulated under labour laws.27

(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 consultant and the project management team to ensure that the contractor is
complying with the labour standards of employment. The supervising consultant must
also be acquainted with local labour laws and standards.

24
http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf
25
http://upetd.up.ac.za/thesis/available/etd-11082005
26
http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf
27
http://upetd.up.ac.za/thesis/available/etd-11082005
(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. 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.
(12) Labour Law sets wage Rates: The minimum wage is always stipulated in labour
laws. The supervising consultant 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 consultant should also routinely make spot checks with a number of
individual different labourers to confirm amounts received, any deductions made and
their identities.
(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. In this way Labour
Law also protects the rights of children.
BIBLIOGRAPHY

STATUTES

The Constitution of the United Republic of Tanzania [Cap. 2 RE 2002]

The Employment and Labour Relations Act [No. 6 of 2004]

The Judicature and Application of Laws Act [Cap. 358 RE 2002]

BOOKS

New Encyclopaedia Britannica, Vol. 5, 1975

INTERNET

http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instrument
s_of_International_Labo (Accessed on 07.04.2011)

http://encyclopedia2.thefreedictionary.com/labour+law (Accessed on 07.04.2011)

http://en.wikipedia.org/wiki/Labour_law (Accessed on 07.04.2011)

http://legal-dictionary.thefreedictionary.com/Labour+law (Accessed on 07.04.2011)

http://legal-dictionary.thefreedictionary.com/equity (Accessed on 08.04.2011)

http://legal-dictionary.thefreedictionary.com/Labour+law (Accessed on 07.04.2011)

http://wiki.answers.com/Q/What_is_statute_of_general_application (Accessed on
08.04.2011)

http://www.ilo.org/wcmsp5/groups/public/ed_dialogueactrav/documents/publication/wc
ms_111442.pdf (Accessed on 07.04.2011)

http://www.nyulawglobal.org/globalex/tanzania.htm (Accessed on 07.04.2011)