By: Nyalusi B.

P 200
9

LABOUR LAW

LECTURE NOTES

Definitions
 Labour Law sometimes referred to as Employment law or Industrial Law is that
branch of law which is basically concerned with the various aspects of master-servant,
employer-employee relationship.

o It defines your rights and obligations as workers, union members and

employers in the workplace.

o Labour law gives specification of rights, obligations and it regulates and tells
the subjects on how they can conduct themselves on contractual terms and
how they can enforce their rights. In other words, labour law sets a forum or
an institution to enable the effective enforceability of both the employers’ and
employees’ rights.

 A major concern of Labour Law is basically on;

o The aspect of labour power, that is to say capacity of a person to work.

o Another concern is a relationship between capital and labour.

 An employee means an individual who1;

o Has entered into a contract of employment

o Has entered into any other contract which;

 The individual undertakes to work personally for the other party to the
contract.

 The other party is not a customer of any profession, business or

undertaking carried out by the individual.

 An Employer is defined to mean any person including the Government and an

executive agency who employs an employee2.

Generally, labour law covers:

1
S 4 of The Employment and Labour Relations Act, No. 6 of 2004
2
Ibid

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o Industrial relations – certification of unions, labour-management relations, collective
bargaining and unfair labour practices.

o Workplace health and safety

o Employment standards, including general holidays, annual vacations, working hours,

unjust dismissals, minimum wage, layoff procedures and severance pay

 According to Duddington, J3, employment law (labour Law) is divided into two parts;

o The relationship between employers and those who work for them (employees
or workers). i.e. individual employment law (includes right to wages, health
and safety e.t.c)

o The relationship between employers and groups of employees or workers. He

reefers this as collective employment which includes the law on trade unions,
strikes and other industrial actions.

 Labour law may be classified into two categories;

o Substantive Labour Law; this is that branch of labour law that prescribes the
standards to be observed by both employers and employees. Specifically,
substantive law deals with things like contracts of service and for services,
termination of contract/employment, benefits e.t.c. These are provided for by
the Employment and Labour Relations Act No. 6 of 2004

o Procedural Labour 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

3
(2007) Employment Law, 2nd Ed p 3

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of rights. This is provided for by the Labour Institutions Act No.7 of 2004 and
the specific rules issued in 20074.

Sources of Labour Law

 Statutes/legislations; this includes both principal and subsidiary legislations

E.g. The Employment and Labour Relations Act No. 6 of 2004 (ELRA), The Labour
Institutions Act No. 7 of 2004 etc.

Prior to the coming into force of the new labour legislations there existed piece of
legislations that dealt with labour matters these include the following;

 The Employment Ordinance/Act cap 366

 The Regulation of Wages and Terms of Employment

Ordinance Cap 300

 Wages and Salaries (General Provisions) Act, 1974 Act no. 22

of 1974

 Trade Union Act, 1998 (Act No. 10 of 1998)

 Security of Employment Act Cap 574

 Severance Allowance Act Cap 487

 Industrial Court of Tanzania Act, 1967 Act No.41 of 1967

However all these laws are repealed by s 103 of the ELRA and they are listed under the
Second Schedule to the Act.

 Case laws; these lay down principals by providing necessary precedents for courts to
follow and fill the gaps left by statutes.

 The constitution; the Constitution of The United Republic of Tanzania 1977 provides
for the right to work and the right to fruits to one’s labour, art 11, 22 and art 23
respectively.

4
GN Nos. 42, 64, 65, 66 and 67 of 2007

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 International conventions and agreements; these set international standards for labour
matters. These are under the umbrella of The ILO and include agreements and
conventions on, prohibition of Child labour, forced labour and collective bargaining.

 The law of contract, this is the source of labour law to the effect that, the relationship
of employer and employee is preceded by the contract of service which must abide to
all the principles of the law of contract. Parties’ agreement cannot be superior to Act
of parliament so it must align with requirements of the Law of Contract Act.

 Books and writings of prominent scholars are also important secondary sources of
labour law.

Functions of labour law

 Protection of employees, this is done through;

o Limiting the powers of employer to dismiss employees or terminate

employment at his will without just cause5.

o Regulating the wages to be paid by maintaining financial capacity of

employees6.

o By regulating conditions for work through providing for rest days and leave
and hours of work and matters incidental to standard of work7.

o By providing for care and welfare of employees.

 Balancing conflicts of interests as between employers and employees. By defining

their rights and duties and regulating their conducts.

 It helps in resolving industrial disputes by establishing a special institution which has

the duty and power to enforce rights and duties under labour law8.

 Helps in increasing production of goods and provision of social services. This is done
by maintaining industrial peace.

5
Part III sub part E of ELRA
6
Part III sub part c of ELRA
7
Part III of ELRA
8
Part III of the Labour Institutions Act no 7 of 2004 establishes the Commission for Mediation and Arbitration
for this purpose

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The right to work
 The right to work may imply among other things, the right to demand for better and
fair wages, the right to withhold labour by use of strikes and other means.

 Article 22 of The Constitution provides for the right to work. This right is absolute.
This right goes hand in hand with the right of every citizen to be afforded equal
opportunity and with equal condition to occupy any position in the service of the
United Republic9.

 To the larger extent the right to work is aligned with the very survival of an individual
and the society in whole. It is said to be closely related to the right to life that being
the case the right to work requires legal protection10.

o Lord Denning M.R (as he then was) in the case of Lee v Showmen’s Guild
of Great Britain [1952] 2 Q.B. 329 was of the view that ’’a man’s right to
work is just as important to him as if not more important than his rights of
property. The courts intervene everyday to protect rights of property. They
must also intervene to protect the right to work

o Mwalusanya, J, in Augustine Masatu v Mwanza Textiles Ltd H.C at

Mwanza, Civil case No. 3 of 1986 (Unreported) had a view that for work to be
sustained, it requires that opportunities to be set open so that members of the
society can strive their material necessities of life. In his own words he stated
inter alia that ‘’for this right to exist in a real sense, it is necessary that
economic, political and legal order of the society assure 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. And so job security is
the hall-mark of the whole system’’

o The right to work is the product of a long term and historic struggle of the
working class against capital and exploitation of labour.

The big question is the right of work protected in real sense in Tanzania?

The right to fruit of one’s labour

 Article 23 of the constitution provides that every person is entitled to remuneration
commensurate with his work without any kind of discrimination. This remuneration

9
CP Maina (1997), Human Rights in Tanzania: selected cases and material, p 170
10
CP Maina (1997), Human Rights in Tanzania: selected cases and material, p 169

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will take into consideration the ability of the person working and the nature of work
done. These remunerations must be just.

 It is said that labour is one of the most treasured assets that human beings have11.
Labour does not only guarantee generation of wealth but also guarantees the very
survival of human beings, therefore its protection is a crucial matter.

Hence labour laws should be able to cutter for this constitutional provisions by
providing provisions that protect and profess the right to work.

The Historic developments of the labour laws and labour forces/ labour
movement
 The history traces back its origin from the slave mode of production. During this
mode a slave was used as a tool of production. Slave masters owned slaves who
owned nothing than their labour power.

o Slaves and their families had no rights whatsoever because they were
considered as ‘’chattels’’.

o The then labour laws which regulated activities undertaken by slaves were
penal laws and not civil laws. There were no contract of employment; the law
placed squarely the position of slaves on an inferior position. Slaves had no
rights rather they had only obligations.

 The relation of production changed during the Feudal mode of production. There
emerged classes of feudal lords and tenants

o Exploitative Labour conditions were enhanced through various ways such as;

 Taxes

 Forced labour

 Labour in kind and tributes payment

o The rights of tenants were suppressed by feudal lords. The labour laws were
also penal oriented.

11
Ibid Maina p 194

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 The introduction of industries and the growth of commerce during capitalism mode
changed the relations of production. The introduction of cash economy lead to the
introduction of law of contract, banking, sale of goods e.t.c.

o With these developments there emerged ‘’freedom of contracts’’ where by

workers/ labourers were left free to sale their labour in exchange with wages.
This paved the way for development of wage labour and employment
contracts.

 Legal framework of labour laws in Tanzania

o During colonial era

 When Capitalism was at its apex capitalist had to extend by capitalist

powers colonising other territories

 The subjects of colonialism were subjected the laws and traditions of

colonialists governing employment relations.

o In Tanzania during the German rule, ‘land alienation’ policy was adopted.
This was aimed at depriving the peasants of their major means production by
parting them with the essential means of livelihood.

 The administration did not just end in depriving their subjects of their
land, they went on and imposed various forms of taxes which were
enforced by corporal punishment for the defaulters.

 Forced labour was another means of acquiring the labour force during
the German colonial rule.

o During the British rule an exploitative employment culture was developed to

get the native to work in plantations, mines and processing industries. Forms
of labour were developed;

 Communal labour

 Tax defaulters

 Conscription labour

o Various legislations were passed to curter for this;

 The Master and Native Servants Ordinance Cap 29 No. 32 of 1923

 The Minimum Wages Ordinance e.t.c.

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o By 1946 necessary labour laws were enacted to implement the colonial labour
legacy. These laws supported a forced labour regime commonly known as
‘’Manamba’’

o The struggle for independence and the International Labour Organisation’s

(ILO) initiatives to eliminate forced labour made a major contribution to the
change of labour relations by improving it.

 In 1955 the Employment Ordinance No. 47 Cap 366 of 1955 was

enacted to put the labour regime in line with the ILO conventions for
the welfare of employees.

 Other legislations were also enacted to improve the labour relations in

Tanzania;

 The Factories Ordinance Cap 297

 The workman’s Compensation Ordinance Cap 263

 The Accidents and Occupation Diseases(Notification)

Ordinance Cap 330

 The regulation of wages & Terms of Employment Ordinance

Cap 300

 Trade Unions Act Cap 387

o The legal framework of the labour laws has passed through various stages to
date, the major revamp occurred with the enactment of the new labour
legislations vide The ELRA and The Labour Institutions Act.

 Post –colonial era to the present

o This can be categorised into two phases

 The 1961-2004 phase

 The 2004-to the present

The 1961-2004 phase

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o A number of piece of legislations existed during this phase

 The Employment Ordinance No. 47 of 1955 Cap 366

 This was an Act to consolidate the law relating to labour and to

regulate conditions of employment for employers and
employees

 This was renamed to the Employment Act in 2002 it dealt with

all substantive and procedural matters concerning employment
relations.

 It came into force in February 1957

 The Security of Employment Act No. 62 of 1964 Cap 387;

 This was an Act to provide for the establishment of Workers'

Committees in certain businesses and undertakings, to restrict
the powers of employers, businesses and employees summarily
and otherwise in relation to the discipline of employees, to
provide for the payment of additional compensation on the
occasion of the termination of employment except in specified
circumstances12.

 This was the first labour legislation to be legislated by the

union parliament. In a nutshell it provided for security of
employment for workers, by limiting the powers of employers
to dismiss employees at their will which more or less the
colonial legacy.

 The Industrial Court of Tanzania Act No. 41 of 1967 Cap 60 (The

Permanent Labour Tribunal Act);

 This was an Act to establish an Industrial Court of Tanzania

and to make provision for the settlement of trade disputes by
negotiation, conciliation and reference to the Industrial Court,
and to provide for related matters13.

 This law created the machinery for settlement of collective

industrial disputes i.e between an employer and a group of
employees. These disputes were referred to as trade disputes

12
Preamble to the Act
13
See preamble to the Act

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 These disputes concerned conditions of work, terms of
employment,

 Trade Union Act No.10 of 1998 Cap 244; this was a piece of
legislation to curter for trade unions. These were defined to mean
association of either employers or employees. Among other things the
Act governed;

 The registration and de-registrations of Trade unions

 Their functions

 And general affairs

 Severance Allowance Act No. 57 1962 Cap 386; the preamble to this
Act provided that this was an Act to provide for the payment of
allowances to employees on the termination of their employment in
certain circumstances.

 According to Maina C.P, movement of workers started way back in 1930’s and
1940’s where workers had small unions given the size of working class then14.

 The workers organise serious activities including strikes

through the Tanganyika Federation of Labour.

 In 1950’s15the workers joined peasants who were organised

through cooperatives and politicians who were organised
through TANU. This was not to be acceptable by the labour
department of the colonial regime.

 After independence this union (of workers, peasants and

politicians) broke off, for politicians these other groups were
no longer important after getting rid of the colonialist. The
reason for this was that the TANU government had inherited
from the colonial regime most of the policies. The unions soon
found themselves in opposition to their own government16.

 The trade unions had either to be swallowed either voluntarily

through co-option of the leadership into political process or by
force through detention or internal deportation of the
leadership17. The government enacted legislations to deal with
labour movements for example the labour movement leaders
14
See Maina, p 170
15
In the course of the struggle for independence
16
C.P Maina quoting Bienefeld M.A ‘’Socialist development and the workers in Tanzania’’
17
Ibid Maina p 171

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were the first victims of the Preventive Detention Act 1962.
For example in 1963 this legislation was used to silence Victor
Mkello, who was President of both the Plantation Workers’
Association and the Tanganyika Federation of Labour18.

 The government passed the trade Disputes (settlement) Act

1962, Act no. 43 of 1962 which prohibited strikes unless the
established machinery was exhausted, in an attempt to curb
TFL’s opposition, in this sense strikes were practically
impossible19.

 The Security of Employment Act was enacted in 1964, this was

not a relief to workers because it took labour matters from the
purview of the normal courts and placed them under the
Labour Conciliation Board under a labour officer which was an
administrative body.

 The proceedings were held in camera and advocates had

no locus standi in these bodies

 All appeals from the boards went straight to the Minister

for Labour whose decision was final and conclusive.

 The last nail on the coffin of Trade unionism was nailed by the
dissolution of TFL in 1964, detention of its leaders and
formation of the National Union of Tanganyika Workers
(NUTA) which was established by Act No. 18 of 196420.

 The Secretary General of NUTA was also the Minister

responsible for labour, in this case serious struggle for
workers’ right was technically impossible. The trade union
was turned into a mass organisation of the ruling party.

 With coming into power of Chama Cha Mapinduzi (CCM)

NUTA was reduced to one of the mass organisations of the
ruling party and was renamed Jumuiya ya Wafanyakazi wa
Tanzania (JUWATA) which was established through the
Jumuiya ya Wafanyakazi Wa Tanzania Act of 1979.

 In 1991 the was an attempt to de-link trade union from the

party by the formation of the Organisation of Tanzania

18
Ibid
19
Shivji, I .G, ‘’the Post-mwongozo proletarian struggle in Tanzania’’ p 142
20
National Union of Tanganyika Workers (Establishment) Act

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Trade Unions (OTTU), this did not however lead to a new
free trade union.

 OTTU still retained strong allegiance to the party and the

government. The law establishing OTTU gave the
Registrar of Societies the power to deregister it at any time
this was provided by s 9 of the Organisation of Tanzania
Trade Unions Act no. 20 of 1991. This Act received much
criticism especially from the Nyalali Commission which
criticised it as limiting the right to organise freely by
prohibiting the right to strikes. According to the
commission OTTU could not simply be said to be a Trade
Union. The commission recommended the re-examination
of this law and many other laws.

 The ELRA curter for the right to Strikes and lock outs. This is
provided for by part VII of the Act.

 The phase from 2004- to date

o This phase consists of the new Labour legislations namely;

 The Employment and labour Relations Act No. 6 2004 which was
passed as law in the parliament on the 14th April 2004 and assented on
the 6th day of June 2004.

 It is the legislation to make provisions for core labour rights. To

establish basic employment standards, to provide for
framework for collective bargaining, provide for the
prevention and settlement of disputes and to provide for related
matters21.

 This law provides for both the substantive and procedural

matters regarding labour law.

 It repeals all other old labour laws as provide for by the 2 rd

schedule to the Act that is made under s 103 of the Act

 This law did not come into force immediately, it came into
force on 5th January 2007 by G.N no. 1 of 2007.

21
Preamble to the Act

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 The Labour Institutions Act No. 7 of 2004 which was passed as law
on the 15th day of April 2004 and was assented on the 6th day of June
2004.

 This act is enacted to establish the labour institutions and

provide for the functions, powers and duties of institute ions
these institutions includes the Commission for Mediation and
Arbitration (CMA) and the Labour Court which are established
by part III and VII of the LIA respectively.

 Apart from these principle legislations there are rules that are enacted
to apply with these principle legislations these rules are;

 The Employment and Labour relations (Code of Good

Practice) Rules, 2007 which came into force by GN no. 42 of
16th February 2007.

 These rules are made under s 99(1) of ELRA

 These rules to provide for standard of conduct of

both the employers the employees and the
organisations, mediators, arbitrators, judges, assessors
and government officials.

 The Labour Institutions (Mediation and Arbitration) Rules,

2007, GN no. 64 of 23rd March 2007

 These rules are made under s 15(1)(e) of Act No. 7 of

2004

 These rules point out the procedures to be followed in

mediation and arbitration for arbitrators, mediators and the
parties and all those involved in arbitration and arbitration.

 The Employment and Labour Relations (Forms), Rules,

2007, GN 65, of 23rd March 2007

 These forms are made under ss 48,50, 52, 61, 64, 67, 86
and 98 of Act No. 6 of 2004

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 These are forms used for various purposes such as the
process of dispute settlement.

 They are standard forms that are aimed at simplifying the

procedures.

 The Labour Institution (Ethics and Code of Conduct for

Mediators and Arbitrators), Rules, 2007, GN no. 66 of 23rd
March 2007

 These are made under s 15(1)(g) and 19(4) of Act no. 7 of

2004

 These provide for ethics to be abided by mediators and

arbitrators in the conduct of their duties

 It gives the do’s and don’ts of Arbitrators and Mediators in

their professional capacity

 The Labour Institution (Mediators and Arbitrators

Guidelines), Rules, 2007, GN no. 67 of 23rd March 2007

 These guidelines are made under s 15(1) (f) of Act No 6 of

2004

 These are aimed at helping arbitrators and mediators in

the exercise of their functions and powers.

Employment relationships
 Employment relationships concern various groups of individuals who may claim
rights and be subjected to obligations under both common law and statutory
employment/labour law. These groups may consist of employees, employers, casual
labourers, agency workers, professionals, e.t.c.

 The employment relationships in Tanzania are regulated by the

Employment and Labour Relations Act No. 6 of 2004. This is a
benchmark statute regulating the employer-employee
relationship.

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 It covers a wide scope of application including,

individuals, those in public service of the Government.
The Act does not apply to the Tanzania Peoples defence
Forces, the Police Force, the Prisons services or the
National services. This is provided for by s 2 of ELRA,
however ss 5,6 and 7 which deal with prohibition of child
labour, forced labour and discrimination respectively will
apply to members of forces and services.

 An Employee is defined by s 4 of the ELRA to mean an

individual who has entered into a contract of employment
or any other contract where the individual undertakes to
work personally for the other party to the contract, that
other party not being a client or customer of any
profession, business or undertaking, furthermore any
individual will be considered an employee if the minister
deems him to be so22.

 An Employer is also defined by s 4 of the ELRA to mean

any person including the Government and executive
agency who employees an employee.

 The question as to who is an employer is important when it

comes to matters of enforcing the rights of employees, such as
saving legal documents in claims for unfair termination, in this
case the practical question will be who is an employer especially
when one could not be identified from any statement of initial
employment particulars or written contract of employment or
because none was issued. When this happens the matter will be of
evidence such as who actually engaged the employee and who paid
the wages.

22
Under s 98(3) of ELRA

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 Nature of employment relationships

 The nature of Employment contract is that of contract of service as

opposed to the contract for services23.

 Contract of service; connotes the relationship between an employer

and employee.

 S 2 of the old Act Cap 366 defined it as any contract to employ

or to serve as an employee for any period of time or number of
days to be worked or to execute any task or piece work or to
perform any journey. There is no provision for casual
employees in the new labour legislations.

 Contract for services; refers to the relationship between an employer

and an independent contractor (self employed person).

 Distinction between an employee and an independent contractor

 An employee is entitled to a number of rights from an employer such

as social security contributions, whereas an independent contractor is
not.

 An employer is vicarious liable for the tort act committed by his

employees in the course of his employment; on the other hand an
independent contractor does not benefit from this privilege except
where the employer has authorized the wrongful act, or where the duty
owed may not be delegated e.g hazardous work.

 It is a common law duty of the employer to take reasonable care for the
safety of the employee. This does not avail to independent contractors

23
Sikalumba, A.J, (2003), legal aspects of Employment contracts and Dispute settlement
schemes in Tanzania, p 3

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except in exceptional circumstances e.g. where the independent
contractor undertakes a contract from the employer and sub-contracts
it to a third person the employer can be held liable for the injured
employee if he had the duty of co-ordinating the work24.

 Statute does not provide a detailed guidance on when there is an

employment relationship, the focus naturally shifts to courts25. To distinguish
between the concepts of contract of service as opposed to the contract for
services case law has developed number of tests. The tests may be used
simultaneously to determine whether the relationship existing between the
parties is of employer-employee or that of employer-independent contractor26;

 Control test; (The classic test) this was developed in Europe around
the 17th century. It originates from the law of domestic relationship of
master-servant relationship. A master had control over the servant.

 This determines the extent of control that the employer exerts

over the employee. The control is based not only on the ability
of the employer to control what an employee does but also the
manner of doing it.

 If the employer could tell the employee not only what to do but
how to do it, then a contract of service existed27.

 The indicators of control test includes the following;

 Control by the employer over the power of selection of

servants

 Existence of terms as to payment of wages and other

remunerations
24
See Sekalumba, p 7
25
See Duddington p 57
26
See Sekalumba p 3
27
Selwyn, N.M (1993) Law of employment, 8th Ed p, 38

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 Control over the methods of doing the work

 Right of suspension or dismissal

 In Walker v Crystal Palace Football Club ltd (1910) the

issue was whether a footballer was employed by the club so as
to enable him to claim compensation under the Workmen’s
Compensation Act 1906 as a result of an accident whilst
playing in a match. It was argued for the club that he was not
covered by the Act, reliance was placed on the words of
Bramwell LJ in Yewens v Noakes (1880) where he defined an
employee as ‘a person subject to the command of his master as
to the manner in which he shall do his work’. The Court of
Appeal nevertheless held that it was enough that he was
obliged to obey the general directions of the club even though
he clearly exercised his own judgement as to how to play.

 For agency cases if an employee could not claim unfair

dismissal against the client’s firm, it would be unlikely that he
could claim successfully against the agency which could simply
say that it had no choice but to follow the wishes of the client.
What should be looked upon is the extent to which the worker
is under the control of either of these.

 For independent contractors it suffices to give him what to do,

and how to do it remains his own responsibility, he has only an
obligation to abide with the description and quality of the work
so agreed upon his employer28.

 The application of the control test diminishes in modern time,

this is because of the development in production process
employees are highly skilled and qualified, and they are
employed specifically because they have professional training
and competence of a particular job, this being the case the
employer is frequently unable to instruct the employee as to

28
See Sekalumba p 3

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how the work is to be done. This paved a way to the
development of organisation test.

 Organisation test; this test has its roots in the case of Stevenson
Jordan and Harrison Ltd V Macdonald & Evans (1952)1 TLR 101
(CA) where Denning LJ suggested that a person would be n employee
if their work was integrated into the business rather than accessory to
it.

 Under the contract of service a man is employed as part of the

business and his work is done as an integral part of the
business.

 Skilled professional such as doctors are employees. However

how to carry their assignments remain in their professional
know-how and the employer can not intervene.

 The control on the employer is exercised at the time of

selection of an employee.

 The fact that the doctor uses the employer’s premises and tools
is relevant.

 A doctor called from outside or called as a consultant cannot be

considered under the same footing.

 The economic reality test; this test asks whether the employee is
working for himself or herself or is working for another29.

 If the employee takes the risks of making profits and losses

then he or she is not likely to be held to be an employee.

29
See Duddington p58

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 The test originates from the case of USA v Silk (1946) where
the Supreme Court said that the test was whether workers ’were
employees as a matter of economic reality’.

 In Market Investigations v Minister of Social Security

(1969) Cooke J outlined a number of factors to assist in
deciding whether or not a person was in business on his or her
own account;

 Whether he provide his own equipment

 Hires his own helpers

 The degree of financial risk he takes

 The degree of responsibility for investment and

management he has.

 Whether and how he has an opportunity of profiting

from sound management in the performance of his task.

 The multiple test (Mixed test); this is what is called the use of
common sense. It encompasses both organisation test, control test and
other considerations.

 It requires the courts to look at all the surrounding features of

the relationship between the parties, including the power of
selection, the payment of wages, social security and power to
dismiss and suspend.

 It was proposed in by Lord Wright in Young v Montreal

Locomotive works [1974] 1 DLR 161 at 169 that ‘’ in many
cases the question can only be settled by examining the whole
of the various elements which constitute the relationship
between parties’’.

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 This test was developed further in the case of Ready Mixed
Concrete (South East) Ltd v Minister for Pension and
National Insurance [1968] 2 QB 497

 The Court of Appeal of Tanzania has had expressed its views

on the subject in the case of DPP v Eliatosha Mosha and
Another [1984] TLR 28

 Why is it important to distinguish between an employee and an

independent contractor?

 Tax law compliance; every employer has the duty to pay taxes
from the income of the employee. This is done by taking part of
the earnings of the employee and remitting it to the authorities.
An independent contractor is not liable for payment of taxes.

 Social security benefits claims; these benefits are administered

by organisations such as PPF, NSSF, LAPF, PSF e.t.c. This
duty to contribute for social security arises only when there is
employer-employee relationship. Usually the practice is, the
employee will contribute some percentage and the employer
will also contribute some amount. These contributions are
aimed at helping the employee in his/her retirement. Social
security law provides that it is an offence for an employer to
fail to remit an employee’s contributions or part of his
contributions.

 Labour law compliance; entitlements, obligations and rights

provided by labour legislations exist where there is employer-
employee relationship.

 Constitution claims; the constitution provides for the right to

work, articles 11, 22 and 23 provide for this. Claims for

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9
infringement of these rights will only lie when there is
employer-employee relationship.

 S 61 of Act No. 7 2004 provides for presumption as to who is an employee, it lists

some criterion to be looked upon

 The manner which the person works subject to the control of

another person.

 The person’s hours of work subject to the control of another.

 If the person is part of the organisation.

 if the person has worked for an average of at least 45 hours per

month over the last three month.

 Economic dependency

 Provision of tools

 The person renders services only to one person

What test does this section describe?

 Formation of employment contract

 General principles of the law of contract

 The general rules of the law of Contract apply in the making of

employment contract. In Laws v London Chronicle [1959] 2

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ALL ER 285 at 287 Lord Eversher observed that’’ a contract of
service is but an example of contract in general, so that the
general law of contract will be applicable’’.

 Parties to the contract; as it is for any other type of contractual relationship,

parties to employment contract voluntarily agree on the terms of contract that would
bind them. This contractual relationship must be voluntary, this implies that the
terms must be agreed upon without undue influence or coercion.

o S 6 of The ELRA prohibits all sorts of forced labour which include all work
that a person has not consented30.

o It is however argued that the application of this aspect to employment

contracts is more abstract than real31. This is due to the fact that the
employer takes a leading role in the making of the terms of contract, the
employee’s chances to bargain are so limited, and given the rate of
unemployment in the society there is intensive competition for available
chances, hence an employee will not put himself at the risk of blowing his
opportunity by trying to bargain on the terms set by an employer.

 Competence of the parties; for the contract to be valid, the parties must be
competent to enter into contract according to the law which they are subject.
Competence refers to age, mental capability and free from disqualification by any
law32.

o The ELRA provides the competent age to enter into employment contract by
prohibiting children under 14 years to be employed for works that are
harmful for the child health and 18 years for works in the mining industry,
factory, as crew on a ship or any other work site where working conditions
are considered hazardous. These are provided for by ss 4 and 5 of the
ELRA.

 Consideration; this is rooted in the Latin maxim, quid pro quo which means
nothing goes for nothing. Consideration is the price paid for the fulfilment of the
.promise made. In employment contracts consideration are the wages an employer
pays an employee for the services he rendered. This is one of the duties of the
employer. S 27 of The ELRA curter for this.

 Legality; employment contracts must be enforceable by law, that is to say they

must be for a lawful consideration and lawful object.

30
See the definitions of consent and free consent under the Contract Act
31
Ibid Sekalumba p 8
32
S 11 Contract Act

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 Intention to create legal relations; parties in employment contracts must have
intended to be legally bound by the terms of their agreement.

 Formation of employment contracts

 For a contract of employment to be formed no specific type of work is
required, kinds of work is immaterial, save only it is lawful. It may be manual
works or clerical works.

 AJ Sikalumba33 gives a mode of a procedure for formation of an employment

contract;

oFirst stage is related to what is called in contract an invitation to treat, in this

stage the prospective employer will make a public advertisement on the
availability of vacancies in this advertisement he will point out;

 The description of the nature of work

 The duration of the contract

 The qualifications needed for the prospective applicant

 Sometimes the benefits attached with the work

oThe applicants must submit their applications in which they should indicate
the attributes they possess which in their opinion may influence the decision
making of employers

o Usually shortlisted applicants will be called in for interview to find the most
suitable candidate for the advertised position. Apart from interview an
employer may take other considerations into account such as education
background, experience in the field applied and performance in the previous
employment.

o The contract of employment is conclusively made when the prospective

employee signs on the records of the terms which are usually prepared by an
employer. After an employee is signed the parties become bound by the
terms of employment. It is necessary to read the terms of employment
thoroughly before signing them because the employee’s signature will
signify acceptance to the terms and he cannot later on claim that he did not

33
Legal aspects of Employment contract and dispute settlement schemes in Tanzania, p
11

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9
understand the terms because he has the liberty of signing or not signing if
he thinks the terms are not suitable for him.

 Content of the employment contract

oEmployment contracts may contain both implied and express terms.

oThese terms usually contain duties and obligations of both the employer and
the employee.

o Express terms may contain;

 The scale or rate of payment

 The mode of payment the work load

 Holiday entitlement

 Existence of any pension schemes

 The job title and description

 The length of notice each party is required to serve if he opt out of

the contract.

 S 15 of the ELRA provides for the requirement for an employer to

provide an employee with the written statement of particulars.

o Implied terms are inferred from the circumstances of the employment and
facts of any given employment.

o Implied terms may be implied by statute, common law, usage or customs of

trade. However the terms implied must be certain, general and reasonable 34
i.e. there should be no degree of doubt of its existence in the general
circumstance of the case so that a reasonable person would appreciate its
application.

 If custom of a trade or business is certain and reasonable and applies

throughout a particular trade, business or area it may constitute an
implied term eg. In Sagar v Ridehalgh (1931) a custom in the
Lancashire mills of deducting wages for bad work was held to be
binding on employee.

34
Smith I.J & Wood J.C (1989), Industrial Law, p 142-143

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 An example of terms implied by courts may be seen in the case of
Janet Lesilwa v Tausi Swalehe [1981] TLR 14 Lugakingira J was
of the view that ’’the duties of an employee to his employer are inter
alia the exercise of diligence, skill and care in the running of the
employer’s business and rendering of profit and other moneys earned
or received. These are matters that are implied in any contract of
service. Deviation an act of negligence and tantamount to breach of
the contract. This would give the employer the right of action for
damages to compensate the loss occasioned by the breach’’.

 Duties and obligations of employer and employee; duties of

employer are for the most part the rights of employers. Both the rights of employee
and obligations of employer will be provided in the contract of employment by
express and implied terms.

oObligations of the employer

 The employer has obligation to provide work or assignments to

employee. If an employee fails to provide work to employee he will
still have to pay the wages to him for the whole time he failed to
provide work. The employment Act Cap 366 provided for this. It
provided inter alia that, this obligation will be maintained unless the
employee has broken his contract or there is an Act of God. There is
no corresponding provision that provide expressly for this in the new
labour legislations.

 In the case of Mathew Leonard Kato v National Poultry Co. Ltd.

Civil Case No. 122 of 1990 (Unreported) H.C the court issued a
declaratory judgment to the effect that the appellant was in
continuous employment all the time of his termination Mackaja j
Stated that, ‘so long as payment of wages is one of the express terms
of the contract of employment, the employee fulfils his part of the
bargain by placing himself under the control of his employer who at
once is required to assign him work. Whether or not work is
assigned, the employee becomes entitled to his wages’’.

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9
 The provision of work need not be a daily routine, it is enough that
the employer properly instructs the employee his duties either in the
statement of the particulars as per s 15 of the ELRA or in the contract
of employment. The fact the employer has properly instructed an
employee of what is required of him does not preclude the employer
to assign him other duties incidental to his employment unless it is
above standard workload. This may call for overtime payment.

 The employer has an obligation to pay remunerations and any other

employment entitlements to the employee as agreed in the contract of
employment as a consideration for the work done. S 27(1) of the
ELRA [s 149(a) of Cap 366] makes it mandatory for the employer to
pay remunerations to the employee and makes it an offence for any
employer who contravenes this requirement as per s27(5) of ELRA
this was also decided in the case of R v Sarwan Singh [1973] LRT 32
(HC)

 This payment must be paid in cash in a sealed envelope unless

the employee agrees otherwise where payment will be by
cheque or direct deposit into a designated account s 27.

 The payments must be accompanied by a written statement of

particulars in a prescribed form.

 S 28 of ELRA provides that the employer must not make any

deductions to the employee’s remunerations unless required or
permitted by written law, collective agreement, wage
determination court order or arbitration award.

 The wages must be paid at the end of contract period provided

the employer may pay an advance before the due date on a
mutually agreed day s27(3) ELRA if a day is not agreed then
remunerations may be paid at least once on completion of half
contract period. These advances are not loans and they should
not attract interest.

 The ELRA provide for method of calculation of wages, this is

under s 26 and the first schedule to the act.

 The other obligation of the employer is to retain the employee for an

agreed contractual period.

 The employer has also a duty to take reasonable care with regards to
the health and working conditions of employee. This may be done by
providing for proper equipment of works, selection of competent staff.

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In the case Waltons and Morse v Dorrington (1997) the applicant
left her employment and claimed constructive dismissal because of the
employer’s failure to deal adequately with her complaints about being
exposed to cigarette smoke from other employee. Her claim was
upheld that the provision of a safe working environment suitable for
performance of contractual duties is an implied term in contracts of
employment.

 According to Sikalumba, A.J35 a rule of practice suggest that an

employee has a duty to obey his employer’s lawful orders and the
employer has to reciprocate that by treating the employee with respect,
high level of confidence and trust .

 In the case of Kihanira Kilunge Kibaya v UnitedAfrica

Company of Tanzania Ltd Civil Appeal no 36 of 1987
(Unreported) the appellant complained that his supervisors
victimised him when they served him a notice of termination
of contract. He was not promoted instead his juniors were
promoted and his supervisor assigned his tasks to unskilled
juniors to spoil his reputation, because the basis of his
termination was that he performed poorly. The court was of the
view that public policy in this country prohibits victimization
in employment.

 Duties of the employee

o The employee is duty bound to obey all lawful and reasonable

orders and instructions concerning his work from his
employer. Failure to abide to this duty may result to
disciplinary actions against the employer either by
established code of conducts by the employer or by general
disciplinary actions as established by labour laws.

 The orders by the employer must not be to perform an

illegal act in Morrish v Henly (1973) the employee
was dismissed because he refused to acquiesce in
falsification of records. The employer contended that,
as it was common practice to do this, the employee’s
refusal to agree to it was unreasonable. The dismissal
was held to be unfair.

35
See above p16

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9
 The employer cannot order the employee to do
something which would put him or her in danger, in
Ottoman Bank v Chakarian (1930) the employee
was held to have been justified in disobeying an order
to remain in Constantinople where he had previously
been sentenced to death and was in danger of a further
arrest.

o A duty to co-operation and adaptability to changes with

regards to technological advancement. In Cresswell v Board
of Inland Revenue (1984) the High Court held that Inland
Revenue employees had a duty to adapt to a new
computerised system which replaced the manual system of
tax coding.

o A duty of loyalty and good faith, this includes non-disclosure

of confidential information and to conduct himself in good
manners for the good of the employer’s business.

o A duty to attend in time at the work place and to remain there

for the duration of work as established by employment
legislation.

 Forms of employment contract

oThe Employment Act cap 366 provide for two major forms of employment
contracts that is oral contracts and written contracts

 Oral contracts; these are employment contracts that are not required
to be in writing these are provided by s 32 of Cap 366 [R.E]

 Oral contract shall be valid and binding only if the employment

commences within one month from the date of the contract. S 33 of
Cap 366.

 Oral contracts are deemed to be contracts for the period by reference

to which wages are calculated, if wages are calculated on daily basis

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9
then the contract will be daily contract, in a week, weekly or in a
month, monthly contracts.

 S 40 of Cap 366 requires employers to prepare and maintain, or

cause to be prepared or maintained, a record of contract for every
employee employed by him under an oral contract of service.

 Failure to keep record is an offence and when a dispute arises as to

the terms of contract and the employer didn’t keep records as per the
requirement of s 40, the statement of the employee as to the nature of
the terms and conditions shall be receivable as evidence of such
terms and conditions. Read Mahazamu v Salumu [1972] HCD 65
(H.C)

 Upon termination of oral contract which was for a period not

exceeding one month it will be presumed that parties have entered a
new contract on the same terms and conditions, automatic renewal
will not be possible if there was notice and it has expired,
termination by payment in lieu of notice, lawful cause, this is
provide for under s 35 Cap 366.

 Termination of oral contracts may be by;

 Service of notice; Under the old laws Cap 366 and the
SEA it is required that either of the parties to the contract may
serve a notice of termination. The contract will come to an
end only when the notice period expires. S 36 of Cap 366
provides for this.

o The purpose of the notice is to help both the parties to find

alternatives i.e secure alternative employee or employment
as the case may be.

o S 36 Cap 366 provides that, If there is no agreement as to

the duration of the notice the notice shall be considered to
be;

 Twenty-four hours where the contract is for a period of

less than a week

 Fourteen days where the contract is a daily contract

under which, by agreement or custom, wages are

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9
payable not at the end of the day, but at intervals not
exceeding one month;

 Thirty days where the contract is for a period of one

week or more.

o Notice may be either verbal or written and may be given at

any time, and the day on which the notice is given shall be
included in the period of notice.

o Where notice is given, there shall be paid to the employee

on the expiration of the notice, all wages and benefits due
to him.

 Payment in lieu of notice (twenty four hours notice);

s 37 of Cap 366 provides that;

o Any party to the contract of employment may terminate

the contract without notice by payment to the other party
of a sum equal to all wages and other benefits that would
have been due to the employee if he had continued to work
until the end of the contract period.

 Expiration of time; If the contract if for a specified

time, then after the time expires, before that the defaulting
party pay all remunerations the victim could acquire in a
month if there was no termination. But consider the fact that
whenever there is an oral contract that has come to an end
then there is a presumption that a new contract that is formed
(presumption of continuity) s 35 of Cap 366.

 By summary dismissal; if there is misconduct or,

where employee disobeys lawful orders. This is defined as
termination of contract of employment without notice. It ia a
disciplinary measure taken by the employer. Read Kitundu
Sisal estate v Shingo Mshuti & others [1970] E.A 557

o S 20 of the SEA summary dismissal is prohibited except

where there is breach of disciplinary code set out in the 2nd
schedule to the Act eg late for work for more than 5 times
or unjustified assault, use of drugs in work place.

o Resignation is also the form of summary dismissal but in

this case it is the employee who dismisses his
employment.

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o S 42 of Cap 366 provides for provides for circumstances
where an employee may be summarily dismissed;

 Where an employee is guilty of misconduct, whether in

the course of his duties or not, inconsistent with the
fulfilment of the express or implied conditions of his
contract of service;

 For wilful disobedience to lawful orders given by the

employer;

 For lack of skill which the employee expressly or by

implication warrants himself to possess;

 For habitual or substantial neglect of his duties;

 For absence from work without the permission of the

employer or without other reasonable excuse.

o The procedure for summary dismissal includes first the

notification to the employee who is required to reply and
indicate if he intends to resist to the conciliation board
then the field Brach should be notified.

o The effect of being summarily dismissed is losing all

wages and salaries.

o S43 Cap 366 is to the effect that if an employee is

dismissed for a lawful cause he shall be entitled to be paid
his wages up to the date of the occurrence which was the
cause of his dismissal.

o The ELRA repeals previous legislation that allows

summary dismissal. References to summary dismissal that
precede the Act are to be dealt with as if the repealed law
had not been repealed see 3rd Schedule S 8(1).

 By retrenchment or redundancy; this involves

deliberate deduction of the number of employees in any
particular business or establishment. The rationale being
either to increase production or due to technological
advancement.

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9
o Though it was practiced it was not covered by the old
labour legislations.

o Under the new labour legislations this is what is referred to

as termination based on operational requirements as per s
38 of the ELRA. Under this circumstances the employer
must comply to various requirements;

 Give notice as soon as retrenchment is contemplated

 Disclosure of relevant information with regard to

intended retrenchment for proper consultation.

 Consult prior to retrenchment on, the reasons for

retrenchment, measures to minimize the impact,
methods of selection of people to retrench, timing and
severance pay.

o The consultation will be to trade union, any registered

trade union with members in the work place, any
employee not represented by a recognised or registered
trade union.

o When there is no agreement between the parties the matter

shall be referred to mediation.

o Written contracts; these are those employment contracts made in writing.

These include

 Those made for the period exceeding 6 month

 Foreign contracts of services

 Those which differ materially from those customarily in the district

of employment for similar work

 Consent of employee is necessary in written contracts this is by

signing or a thumb; this is aimed at binding the parties.

 Termination of written employment contracts;

 No presumption of continuity

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9
 It will be terminated by expiry of the term in the
contract

 Death of employee before expiry s57 cap 366

 Parties may voluntarily agree s 52 there must be

approval by labour officers.

 Under the new labour legislations, the ELRA provides for oral employment
contract though not expressly. S 14(2) requires only contracts which provide that
employee is to work outsides Tanzania.

oS 15 requires the employer to furnish to the employee written statement of

particular.

oS 15(2) impliedly recognises written contracts; it provides that if the

particulars in s 14 are stated in a written contract and the employer has
supplied employee with that contract then the employer is not required to
furnish written statement.

o These written statements of particular must be kept by employee 5 years after

the termination.

 Termination of contract under the new labour legislations

o S 36 of Act No. 6 list what is included as termination of employment

 A lawful termination.

 A termination by an employee.

 Failure to renew fixed terms if there was reasonable expectations of

renewal.

 Failure to allow an employee to resume work after leave.

 Failure to re-employ an employee after termination.

oS 41 of the ELRA provides that when the contract of employment is

terminated by notice the duration of that notice must be;

 For seven days if it is given in the first month of employment if more

than one month of employment;

 4days if the employee is employed on daily or weekly basis

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9
 28 days if the employee is employed on the monthly basis.

 The notice may be longer if the parties agree to that.

 The notice must be in writing and it must state the date and the
reason for the notice.

oIn lieu of notice of termination the employer may choose to pay the employee
the remuneration that the employee would have received if the employee
had worked during the notice period. This is provided by s41(5) ELRA

o In case the employee refuses to work during the notice period then the
employee may deduct from any money due to the employee on termination,
the amount that would have been due to the employee if he had worked
during the notice period.

 Entitlement after termination

o Severance pay; upon termination of employment an employer is supposed to

pay severance pay, s 42 of the ELRA is to this effect. Severance pay is
defined under this section to mean an amount equals to at least seven days’
basic wage for each completed year of continuous service with the specific
employer up to a maximum of ten years.

 Severance pay will be paid only when;

 The employee has completed 12 month continuous

service with the employer

 If the employer has terminated the employment but that

termination should not be based on fair termination due to
misconduct or due to capacity compatibility or operational
requirement of employer but employee reasonably refused
alternative employment be it with other employer or the same
employer.

o Transport to place of recruitment; s 43 of ELRA provides that when the

termination happens other than where the employee was originally recruited
then the employer is duty bound to;

 Transport the employee and his personal effects to the place he was
recruited or pay for the transportation place of recruitment refers to
the place where solicitation of the employee for employment was
done by either the employer or his agent;

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9
 Pay him an allowance for transportation to the place of recruitment
and daily subsistence expenses during the period, if any between the
date of termination of the contract and the date of transporting the
employee and his family to the place of recruitment. This allowance
shall be equal to at least bus fare to the bus station nearest to the
place of recruitment.

o All payment due if any s 44 of ELRA; this include

 Any remuneration for work done before termination.

 Any annual leave pay that is due for leave that the employee has not
taken, any annual leave pay accrued during any incomplete leave
cycle.

o S 44 also provides that on termination of employment the employer is

supposed to issue a prescribed certificate of service.

 Unfair termination of contract of employment

o S 37 of the ELRA makes it unlawful for the employer to terminate the contract
of employment with an employee unfairly. Termination will be unfair when an
employer fails to prove that;

 The reason for termination is valid and fair in relation to;

 The employee’s conduct, capacity or compatibility or;

 Based on the employer’s operational requirements

 That a fair procedure was followed in termination of the employment.

o S 37(3) ELRA provides for circumstances where the reasons for termination
will not be considered fair;

 That an employee has disclosed information he is entitled to or

required to disclose to another person.

 That an employee has failed or refused to do anything that the

employer may not lawfully permit or require the employee to do. See
Morrish v Henly (1973).

 The employee has exercised any right conferred by agreement or by

the ELRA or any other law.

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9
 That an employee belongs or belonged to any trade union.

 Participates in the lawful activities of a trade union including lawful

strike.

 For reasons related to pregnancy, disability or constitutes

discrimination under the employment law.

o When the issue as to whether the termination is unfair or not comes for
determination, the onus will lie on the employer to prove that the termination
was fair. S 39 ELRA

o S 37(4) ELRA in deciding whether a termination is fair , employer, arbitrator

or labour court shall take into consideration the code of good practice under
the Employment and Labour relations (Code of Good Practice) Rules, 2007.

o Remedies for unfair termination s 40 of the ELRA;

 If it is established that there has been unfair termination of contract of

employment the court or arbitrator may order an employer;

 To reinstate the employee from the date the employee was

terminated without loss of remuneration during the period that
the employee was absent from work due to the unfair
termination

 To re-engage the employee on any terms that the arbitrator or

the court may decide

 To pay compensation to the employee of not less than twelve

months’ remuneration. This order for compensation is not a
substitute of any amount which an employee is entitled in terms
of any law or agreement s 40(3) ELRA.

 S 40(1) of the ELRA gives discretion to the employer to choose between

the three remedies, in case the employer may choose not to reinstate nor
re-engage the employee but pay him compensation, in this case he is
required pay compensation of twelve month wages due and other benefits
from the date of unfair termination to the date of final payment.

 Employment standards under the ELRA N0.7 of

2004
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9
 These are provisions that determine the terms and conditions of the
employment contract. They provide for the minimum standards to be adhered
in any contract of employment, i.e they are part and parcel of the Employment
contract

 Hours of work; the ELRA impose provisions that require an

employee to work for a specified number of hours, days and weeks.

 Day work; an employer shall not require or permit an

employee to work for more than 12 hours in any day. This is
provided for under s 19(1) of ELRA. The maximum number of
ordinary days or hours that an employee may be permitted or
required to work are;

o Six days in a week

o 45 hours in any week

o 9 hours in any day.

 S 18(a) of ELRA defines what ‘’day’’ means, it means a period

of 24 hours measured from the time when the employee
normally starts work and ‘’daily’’ has also the same meaning.

 S 18(c) ELRA defines ‘’week’’ and ‘’weekly’’ to mean a

period of seven days measured from the day the employee
normally starts the week

 Overtime; it is a requirement of s 19(3) ELRA that an

employer is not allowed to require or permit an employee to work
overtime more than 50 overtime hours in any four week circle.

 There can be an agreement on the extension of the number of

overtime hours to be worked by an employee; however this
agreement may not require an employee to work more than the
12-hours limit.

 Overtime means work over and above ordinary hours of work.

 An employer is required to pay an employee not less than one

and one half of the employee basic wage for overtime worked s
19(5) of ELRA.

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 Night work; this means the hours after twenty four hours and
before six hours s 20 ELRA, an employer is prohibited to require or
permit children under 18, employees certified as medically unfit to
work at night;

 Pregnant employee shall not be allowed to work at night two

month before the expected date of confinement or earlier if the
employee produces a medical certificate certifying that she is
not fit to perform night work.

 For mothers they are not to work for the period of two months
after the date of birth. But a mother may be allowed to work
before the expiry of two month if she produces a medical
certificate to the effect that her and the baby’s health shall not
be endangered.

 A mother may also produce a medical certificate certifying that

even after the expiry of two month after the baby is born she
can still not be able to work at night because her health or the
baby’s health does not permit.

 A medical certificate must be issued by a registered medical

practitioner or any other any other medical practitioner
accepted by the employer.

 The employer shall pay the employee for night work at least
5% of the employee’s basic wage for each hour worked at
night. If the hours worked are overtime then 5% will be
calculated on the overtime rate.

 Compressed working week; this is an agreement between an

employee and an employer for the employee to work for a longer
period in a day than the usual working hours in exchange for
working for shorter week.

 This agreement must be in writing where the employee agrees

to work up to twelve hours in a day, inclusive of any meal
interval without receiving overtime pay s 21 ELRA.

 This agreement shall not permit an employee to work for more

than 5 days in a week; more than 45 hours a week; more than
10 hours overtime a week.

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 S 22 of ELRA provides that the averaging of ordinary and
overtime hours of work over an agreed period shall be
provided by collective agreement. This is a mechanism through
which hours of work can be unequally distributed between
weeks provided that the average number of hours worked
within a cycle is not greater than the specified time.

 The collective agreement for averaging shall be for a period

longer than a year and shall not require or permit an employee
to work more than average of;

 40 ordinary hours per week calculated over the

agreed period

 10 hours overtime per week calculated over the

agreed period.

 Break in working day; s 23 of ELRA a employee is required

to give an employee who works continuously for more than five
hours a break of at least 6o minutes. However if the work that is
done cannot be left unattended or the work cannot be performed by
another employee then the employer may require an employer to
work during break.

 The employer is not duty bound to pay an employee for the

period of break unless the employee works during the break.

 Daily break; an employer is required to give an employee a

daily rest of at least 12 consecutive hours between ending and
recommencing. S 24 ELRA provides for that.

 By a written agreement daily rest period may be reduced to 8

hours or where the ordinary working hours are interrupted by
interval of at least three hours or if the employee lives on the
premises of the workplace.

 Weakly break; an employee is required to give 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 of the
next week.

 By written agreement weekly rest period may be

 60 consecutive s every two weeks

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 A reduced weekly rest period by 8 hours if the rest
period in the following week is extended
equivalently.

 The employee may work on weekly rest only if the employee

has agree to that and the employer shall pay the employee
double the employee’s hourly basic wage for each hour worked
during the period s 24(4) of the ELRA.

 An employee is not required to work on a public holiday

specified in the public holiday act, and if the employee works the
employer shall pay the employee double the employee’s basic wage
for each hour worked on that day. This is provided by s 25 of the
ELRA. Some of these public holidays include New Year's Day - 1st
January, Revolution Day - 12th January. Id-ul-Fitr - two days,
Christmas Day and Boxing Day.

 Payment of remuneration; the ELRA provides for determination of

the remuneration for employees be it hourly, daily, weekly or monthly.
The table to the first schedule of the Act provides for the ways of
determining wages rates.

 S 27 ELRA an employer is required to pay an employee any

monetary remuneration which the employee is entitled. The
payment should be effected during working hours at the place of
work on the agreed pay day.

 The payment should in cash unless the employee agrees

otherwise then payment will be either by cheque payable to
the employee in a sealed envelope or by direct deposits into
an account designated by the employee in writing.

 Each payment must be supported by a written statement of

particulars in the prescribed form, which should accompany
the payment if the payment is in cash or by check, and if
the payment is by a direct deposit then it should be given to
the employee in the sealed envelope.

 Remuneration shall be due and payable at the end of

contract period, employer may pay advance before due day
on a mutually agreed day. If it is not agreed at least once on
completion of half the contract period. An advance is
neither a loan nor shall it attract interest.

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 The minister may by regulations provide for partial
payment of remuneration in form of allowances in kind. All
these payment of allowances in kind shall be for the
personal use of the employee and his family and the value
attributed to such allowance shall be fair and reasonable.

 An employer who default the requirements of payment of

remuneration will be committing an offence.

 Deductions; s 38 of the ELRA provides that an employer is

prohibited to make any deductions from employee’s remuneration
unless the deduction is required or permitted under written law or
under collective agreement, wage determination or court order,
arbitration award or when an employee agrees in writing the
deductions in respect of a debt. Eg Taxes and social security funds
contribution read Sikalumba pp 36-38

 An employer shall not require or permit an employee to;

 Repay any remuneration except for

overpayments previously made as a result of an
error in calculating the employee’s remuneration.

 Greater Acknowledge receipt of an amount

greater than the remuneration actually received.

 Any employer who contravenes the provisions concerning

deductions is committing an offence s28(7).

 Leave; only employees that have more than six month service are entitled to
paid leave. However an employee who is employed on seasonal basis is entitled to
paid leave and an employee who has worked for less than six years but has worked for
the same employer more than once in a year and the total period worked exceeds six
months the employee will be entitled to paid leave.

 An employee and employer may agree to a standard leave cycle provided that
employee’s entitlement to paid leave is not prejudiced.

 Annual leave; an employer is required to grant an employee at least 28

consecutive days’ leave in respect of each leave cycle. The leave will be
inclusive of any public holiday that may fall within the period of leave s 31 of
ELRA.

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 The number of days in the leave may be reduced by the number
of occasional paid leave that were granted to the employee at his
request during the leave cycle.

 The employer may determine when an employee may take

annual leave provided it is taken not later than six month after the end
of leave cycle; twelve months after the end of leave cycle if the
employee has consented or the extension is justified by the employers
operational requirements.

 Before the commencement of the leave an employer must pay

an employee the remuneration the employee would have been paid had
the employee worked during the leave.

 An employer is not required to permit an employee to take

annual leave in place of any leave to which the employee is entitled
and the employer shall not require an employee to work for employer
during any period of annual leave.

 An employer is not allowed to pay an employee an amount of

money in substitution for the annual leave whether or not the employee
agrees to such payment. And if the employee has not taken leave
within the prescribed period that employee is not entitled to be paid a
pro rata (in proportion/ equivalent) amount for accrued annual leave.

 An employer shall pay an employee pro rata amount for annual

leave accrued at the termination of employment or at the expiry of each
season for an employee employed on a seasonal basis.

 Sick leave; according to s 32 of the ELRA an employer is required to grant an

employee sick leave for 126 days in any leave cycle.

 The calculation of the sick leave shall be the first 63 days shall
be paid full wages and the second 63 days shall be paid half wages

 An employee will not be paid sick leave if the employee fails to

provide medical certificate from a registered medical practitioner or
any other medical practitioner accepted by an employee or if the
employee’s leave is paid for under any law, fund or collective
agreement.

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 Maternity leave; s 33 of the ELRA provides for maternity leave for female
employees who are about to give birth.

 The employee must first give notice to an employer of her

intention to take maternity leave at least three month before the
expected date of the birth. The notice must be accompanied by a
medical certificate.

 Maternity 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 that it is necessary for both the health of
the mother and that of her unborn child.

 No employee shall work within six weeks of the birth of her

child unless a medical practitioner certifies that she is fit to work. She
may resume employment on the terms and conditions of employment
at the end of her maternity leave.

 An employer is not allowed to require or permit a pregnant

employee or an employee who is nursing a child to perform work that
is hazardous to her health or that of her child. And where she performs
work that is hazardous the employer shall offer her suitable alternative
employment, if practicable on terms and conditions that are no less
favourable than her terms and conditions.

 An employee shall be entitled within a leave cycle at least 84

days paid maternity leave if she delivers a single child and 100 days
paid maternity leave if she delivers more than one child at the same
time. And if the child dies within the year of birth the employee is
entitled an addition 84 days paid maternity leave within the leave
cycle. An employer is only obliged to grant paid leave for 4 terms of
maternity leave to an employee under these circumstances.

 If an employee is breast feeding a child the employer shall

allow the employee to feed the child during working hours up to a
maximum of two hours per day.

 Paternity leave; s 34 of the ELRA provides that a male employee is the father
of the newly born child he is entitled to at least 3 days paid paternity leave if
the leave is taken within 7 days of the birth of a child.

 The number of the days taken by the employee are irrespective

of how many of the employee’s children are born within the leave
cycle.

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 An employee will be entitled to 4 days paid leave when the
child is sick or has died or upon the death of the employee’s spouse,
parent, grandparent, grandchild or sibling. The 4 days are the total
number the employee is entitled irrespective of how many of the
events occurred within the leave cycle, however the employee may
take more days with the authorisation of the employer provided those
extra days will be unpaid.

 Resolution of labour disputes

oUnder the old legislations

 The procedure for settlement of Labour disputes and enforcement

machinery under the old labour legislations were provided by the
Employment Act, The Security of Employment Act (SEA) and The
Industrial Court Act.

 The Employment Act Cap 366

 The main purpose of this legislation was to achieve a prompt

determination of employment disputes so that workers should
concentrate on production rather waste the valuable time in courts
prosecuting cases.

 The resort to the court of law is required to be the last resort.

Administrative officers must do their best to dispose off any labour
dispute expediently and promptly as may be practicable.

o The administration of Employment disputes is placed under the

labour commissioner or labour officers. Under s 8 of Cap 366
the labour officer and Labour Commissioner or any labour
officer is empowered to institute proceedings in respect of any
contravention of any of the provisions of this Act or any
regulations made and may prosecute and appear in his own name
in respect of such proceedings.

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 Cap 366 applies to all departments of the of Government, district
local government authorities and all persons in the employment, and
also all persons in the service of the Government in Tanzania in the
same manner as if they were private employers or employees but it
does not apply to members of the Defence Forces in their
employment as such; members of the Police Force; members of the
Prison Service; and member of the National Service.

 The procedures provided for handling labour disputes are simplified.

Part xii of cap 366 provides for the procedure to be followed in
dispute settlement

o It is provided under s 139 of Cap 366 that if an employer or

employee is aggrieved by

 The other party’s refusal to fulfil the terms of any contract

of service.

 Whenever any question, difference or dispute shall arise as

to the rights or liabilities of either party to a contract of
service.

 Touching any misconduct neglect or ill-treatment of or by

such party.

o The party aggrieved may report the matter to a labour officer

who shall thereupon take such steps as may seem to him to be
expedient to effect a settlement between the parties.

o The labour officer has power to make a decision on whether the

matter is civil or criminal. Read Shaban H. Msengesi v
National Milling Corporation H.C, Civil Appeal No. 44 of
1994 and Janet Lesilwa v Tausi Swalehe [1983] TLR 14. S
140 of Cap 366, if the labour officer is of the view that an
offence has been committed he shall report it to the police.

o S 141 of Cap 366 provides that if the labour officer fails to

resolve the dispute he will have recourse to the court of law
by submitting a written report (a memorandum) to the
magistrate setting out the facts of the case. This may be done
at the request of either party or the labour officer may do it
suo motto. The purpose of the facts is to reveal the resolution
he had made and which has actually resulted to the
dissatisfaction of the aggrieved party. Read the case of

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Mathias Kanondo v TANU Regional Secretary [1976]
LRT 34.

 Procedure before the court s 142 of Cap 366

 The District Court has exclusive jurisdiction to deal with labour

dispute reported to it by labour officer. The district magistrate irrespective of
whether he is a civil magistrate or not is empowered by law to deal with labour
matters reported to him.

 The district court can award any amount claimed unlike in ordinary
civil cases where the court is bound by the pecuniary jurisdiction.

 When the magistrate has received the matter and is satisfied it is of

civil nature, then he shall issue the process to cause the parties or either of them
to attend before him. Then the normal procedures as provided for by CPC will
apply.

 According to s 143(3) of Cap 366 in determining the matter the

magistrate shall hear and determine such proceedings according to substantial
justice without undue regard to technicalities of procedure. In Moses Swebe v
The Cooper Motors (T) Ltd Misc Civil Appeal No. 2 of 1981 (H.C) it was
held that the exemption of procedural matters is limited only to substantive
determination of the dispute and does not apply in execution of decrees arising
from the suit.

 The procedures involved in referring the labour dispute to court is

different from that imposed by the CPC, in employment dispute under Cap 366,
the parties need not to submit no formal pleadings, the magistrate act on the
report submitted to him by the labour office; the normal procedure under the
CPC is that the parties will commence their case by filing a formal plaint
prescribed in the CPC.

 In employment disputes magistrate may summon any person who they

think may furnish necessary information on the matter this is different
from the normal conduct of civil procedure that is based on the adversarial
system where each of the parties has a duty and liberty to choose his own
witnesses.

 In employment disputes the magistrate is empowered to convert a criminal

case into a civil suit if he is of the opinion that the matter would be fairly
dealt and remedied accordingly in a civil suit than it would be in a criminal
suit, this is provided for under s 144(1) Cap 366.

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 According to s 148 of Cap 366 when there is a claim against the employer
for wages due to more than one employee a labour officer or one of the
employees my file a representative suits on behalf of the others provided
he attaches in a schedule the names their addresses and descriptions and
the details of wages due to each of such employees. the normal procedures
under the CPC as provided by O1 r 8 where it is mandatory to obtain the
leave of the court to file a representative suit.

 The main purpose of simplifying the procedure is to effect a rapid

determination of labour disputes so that production is not in any way
adversely affected.

 The labour commissioner or any officer dully authorized by him has a right
of audience on any appeal to the High Court arising out of any criminal or
civil proceeding under s 151 of Cap 366 and may represent any party to
such appeal where he satisfies the court that he has been duly authorised by
such party to so represent him. There is no clear provision that allows the
labour officer to appear in the Court of Appeal however practice shows
that the assistance of the Attorney General is to be sought.

 The requirement under the CPC for parties filing the case is that those
parties must pay fees for all the documents they file before the court unless
the law under which the case is filed waives the requirement and the court
may award cost of the suit. Under s 153 of Cap 366 there is an exemption,
No fees or costs shall be payable in respect of any proceedings filed under
Cap 366. However the court may in its own discretion order the general
costs of the proceedings to be paid by the employer if a conviction shall be
had or judgment given against any employer or if any proceedings shall
appear to the court to be frivolous or vexatious, the court may in its
discretion order the party initiating such proceedings to defray the general
costs, and in default of payment the said party shall be liable to
imprisonment for such period not exceeding one month as may be ordered
by the court.

 S 154 of Cap 366 provides for the powers of the subordinate court in
labour dispute proceedings, the court is empowered to;

 To order specific performance of employment contract i.e it may order

the fulfilment of the contract in case any breach of the terms by the
party which is at fault, the includes re-instatement or re-engagement in
cases of wrongful dismissal.

 The court may also order payment of damages or compensation for

breach of contract, negligence or unlawful act or omission. The court

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may order the defaulting party to find security in place of the whole or
part of the damages or compensation awarded in place of the whole or
part of the damages or compensation awarded and if the party neglects
or refuses to find security, the court may commit him to prison until he
finds it, but the term of imprisonment shall not exceed three months.

 The court may rescind the contract upon such terms as to the
apportionment of wages or other sums due under the Act and as to the
payment of wages, damages, compensation or other sums due as the
court thinks fit.

 Where there is loss or damage of employer’s property due to

negligence or unlawful omission. The court is also empowered to fix
the amount of compensation for such loss or damage, and make such
order as to the payment either at once or by instalments out of wages
to be yet earned or otherwise, as shall seem reasonable and just, this is
in accordance to s 155 of Cap 366. The instalment paid must not
exceed one-third of the employee's monthly wages if the instalments
are ordered to be paid monthly or one-third of the employee's weekly
wages if the instalments are ordered to be paid weekly.

Resolution under the Security of Employment Act cap 577 (SEA)

 SEA is applicable whenever there is an employee within the meaning
of Cap 366. It does not apply to members of military force , members of police
force and prison, persons in the services of united Republic of Tanzania other
than auxiliary grade [s 40(1) SEA], casual employees and any employee
employed in the management of the business of his employer see JUWATA v
KIUTA [1988] TLR 146

 The SEA is mostly applicable to cases of disciplinary actions such as

cases on summary dismissal and disciplinary penalties.

 The SEA ousts the jurisdiction of ordinary courts from dealing with
disciplinary matters of employees unless those employees are declared by the
labour officer to be employed in the management of their employer’s business,
in this case the employee may seek assistance of court. There is no clear test to
determine if an employee is in management of employer’s business in practice
the test is whether the employee are vested with disciplinary control over
others. However the declaration of the labour officer on the status of employee
is a mere opinion and the court is not bound to follow it. This was discussed in
the case of David Kamugisha Mulimbo v Bukop Ltd [1994] TLR 217 (CA)

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 The SEA establishes three organs to deal with disciplinary matters at
work place these are the field branch, the conciliation board and the Minister
responsible for labour matters.

 The field branch

 These are branches of trade union representative of employees at the

place of work.

 They are established at every place of work in which ten or more

union members being employees within the meaning of the Act are
employed this is provide for by s 8 of the SEA.

 The right of employees to be members of trade union is secured by

law this is provided for by s 15 of Cap 366 which provides for
employees’ freedom of association.

 The role of the field branch is basically advisory in the resolution of

labour disputes. s 6 of the SEA provides that the functions of the field
branch include;

o To consult with the employer on matters relating to the

maintenance of discipline and the application of the Disciplinary
Code.

o To discuss with the employer, at regular intervals and at least

once every three months, means of promoting efficiency.

o To consider and advise the employer on safety and welfare

arrangements for persons employed in the business.

o To attend at the place of work and make inspections and report

on working conditions.

o To investigate and report to the appropriate authority on any

non-compliance with the provisions of a wage regulation order.

o To consider and advise the employer on any of the employer's

rules for the place of work.

o To consult with the employer concerning any impending

redundancies and the application of any joint agreement on
redundancies.

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o Generally to assist in the furtherance of good relations between
the employer and persons employed in the business and to
exercise such other functions as are conferred on a Committee.

 Procedure where field branch is established s 22 of the SEA

o The employer must by notice inform both the employee and the
chairman or deputy chairman of the field branch of his intention
to impose penalty. The notice must be in writing.

o Then the field branch is afforded an opportunity of three days to

deliberate on whether to support the employer or the employee.

o Upon the expiry of the three days the employer has not received
no written representations against his proposed penalty from the
field branch he may proceed to impose the penalty or even the
lesser penalty. But if the field branch presents a written
representation against the proposal the employer and the field
branch shall discuss the same as soon as is practicable then the
employer may impose the proposed or lesser disciplinary
penalty.

o In case of disagreement, the employer shall not summarily

dismiss the employee, unless the employee informs the
employer and the field branch that he does not intend to make
reference to the board. Where the employee is not supported by
the field branch and is not satisfied with the penalty he can
within 14 days refer the matter to the board. If 14 days expiry
without action from the employee then the employer may
proceed dismissing the employee. Where a reference is made
within 14 days, the employer will proceed imposing summary
dismissal if the reference is abandoned by employee, or if the
proposed summary dismissal is not confirmed by the board, but
it is confirmed by the Minister upon reference to him.

o Any action that is taken out of the prescribed time will be taken
to be incompetent. In Tanzania Diaries Ltd v Chairman
Arusha conciliation Board & Isaac Kirangi [1994] TLR 33
the board went on to consider the matter even though it was filed
out of time, the court held that ‘’once the law puts a time limit to
a cause of action, that limit cannot be waived even if the
opposite party desists from raising the issue of limitation thus
the board acted ultra vires when it heard and decided on a
reference after the time provide by the law had expired’’.

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o The employer is entitled to suspend the employee on half pay
any time after he has discussed the representations with the field
branch. The employee cannot demand to be suspended. When
the employee is suspended on half pay and it is found out that
the employer was no justified to suspend the employee, then the
employer will have to pay the remainder of the half pay for all
the suspension months. But if it was a justified suspension then
such requirement to pay the outstanding amount will not stand.

 Procedure where no field branch is established

o This involves the labour officer; when an employer imposes a

disciplinary penalty other than summary dismissal for breach of
disciplinary code, he shall inform the employee and report the
same to the labour officer s 23(2) SEA.

o Where an employer proposes a summary dismissal he shall

inform an employee and report the same to the labour officer
with his reasons and circumstance. The employer is not required
to impose the penalty before the expiry of three days

o If within the three days the local representative of the union after
consultation with the employer informs him in writing that he
supports the employee in an intention to refer the matter to the
board

o If no reference is made to the board by an employee within the

period of 14 days after an employee has been informed by the
local representative of the union or where the reference is made
to the board within that period and is abandoned the employer
may proceed dismissing the employee. Or otherwise if the
Minister on further reference to him confirms the dismissal.

o An employer may also dismiss an employer on half pay.

 The conciliation Board

 S 11 of the SEA the Minister shall establish conciliation boards

throughout Tanzania. These are quasi-judicial boards consisting of the
chairman appointed by the minister for labour affairs and two
members appointed by the chairman, one member representing
employee and the other representing employers s 12 of the SEA.

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 The main function of the conciliation board is to hear reference made
to it and make decision s 25 of SEA.

 Basically the powers of the Board include confirmation, revision and

varying the imposition of disciplinary penalty. It can order re-
engagement, re-instatement of an employee who has been dismissed
or suspended pending its decision. [the order for re-instatement and re-
engagement does not apply to domestic servants]

 An employee make reference to the board in various circumstances or

situations 24 SEA;

o Where an employee has been summarily dismissed.

o When he is informed of the employee’s intention to summarily

dismiss him.

o When a deduction has been made in his wages due to him from
his employer as a disciplinary penalty.

o Where he has been terminated from employment.

 A reference to a Board shall be made within fourteen days (14) of the

employee being dismissed, being informed of the proposal to dismiss
him, or suffering the deduction, as the case may be.

 The Board shall, so far as is reasonably practicable, hear the reference

and give its decision thereon within seven days (excluding Saturdays,
Sundays and public holidays) of the reference being received by it.

 S 27 of the SEA provides for the right of appeal for the aggrieved
party, the appeal is to be made to the Minister.

 The Minister for labour

 S 27 of the SEA provides that the Minister responsible for labour is a

final authority in administering disciplinary matters under the
disciplinary code found in the schedule to the SEA, the Minister
receives references from the Board and the decision he renders is final
and conclusive and binding and may be enforced in the court of
competent jurisdiction as if it were a decree s 28 of the SEA.

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o The finality of the minister’s decision does not preclude the
power of the court to intervene where there is exceeding of
jurisdiction. the intervention of the courts comes where there is
jurisdiction error or any violation of the principles of natural
justice and is done through judicial review or by seeking
declaratory judgement in the ordinary suit this was discussed in
the case of D.R Kaijage v Esso Standard Tanzania Limited
Civil appeal No. 10 of 1982 (CA) (Unreported) .

 The reference to the Minister from the board must be made 28 day
after receipt of the notice of the decision of the board. The reference is
made when there is confirmation or non confirmation of either
summary dismissal or proposed summary dismissal by the Board.

 The minister has the power to, confirm, reverse or vary the imposition
of the disciplinary penalty.

 Read Sikalumba from pg 71-78 to see the changes introduced

to 1975 amendment to the SEA

 Settlement of industrial disputes under the Industrial court of

Tanzania Act Cap 60
 Industrial disputes are characterized with
collective bargaining i.e negotiations involving a
number of employees and their employer. Usually this
bargaining is on the terms and conditions of work.

 The nature of collective bargaining is that it has an element of

representative democracy, employees are represented by respective
trade unions.

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 The Industrial court of Tanzania Act deals with disputes settlement
between employers and employees in private sector and parastatal
organisations36.

 The Industrial Court Act Cap 60

 This act governs industrial or trade disputes between

employees in the private sector and parastal organisations and
their employers.

 The act deals with both collective and individual trade

disputes settlement schemes.

 S 3 of the Industrial Court Act defines trade dispute to

mean any dispute between an employer and employees or an
employee in the employment of that employer connected with
the employment or non-employment or the terms of the
employment, or with the conditions of labour of any of those
employees or such an employee.

 The meaning of an employer under this act is that

ascribed by the Employment Act.

 Collective disputes

 This may take the form of a grievance involving more than a single
employee arising out of the common cause such as unfavourable
working conditions, poor packages or demands for payment of arrears;
it may also take the form of a grievance between a single employee and
an employer in such a way that other employees choose to side with the
individual employee against the management, this may be as a result of
victimization, discrimination or oppression.

 The requirement for a collective dispute is that there must be an

individual or group of individuals who ignites the complaints and
convince others to have a common support.

 It is difficult to establish as to when did a collective dispute commence

or to pin point any particular period at which the dispute arose, this was
laid down by the Court of Appeal in the case of JUWATA v KIUTA
[1988] TLR 146

36
The civil servants are governed by the Civil service Negotiating Machinery Act, The
local government employees are governed by the Local Government Negotiating
Machinery Act and the Defence forces are governed by their special laws.

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 A trade dispute is at two stages; it may be apprehended or it may be
existing. It comes to existence only when it is declared by referring the
matter to the labour commissioner; if it is not referred to the
commissioner it will amount to no more than apprehended trade dispute
capable of being dealt with, JUWATA v KIUTA.

 Individual trade dispute

 This is a grievance between an employer and a single employee. This

individual employee must be declared by the labour officer as to have
been employed in the management of his employer’s business. S 10 is
to the effect that no employee shall institute a trade dispute under the
Industrial Court Act without a certificate of a Labour Officer that he is
employed in the management of the business of his employer.

 In determining whether an employee is employed in the management

the labour officer will use subjective test, in practice he will take into
account matters like, the position of an employee in relation to other
employees such as whether he the employee has a disciplinary control
over others at the place of work.

 Employees employed in the management of the employer’s business are

also excluded from the purview of the SEA, their only recourse is the
ordinary courts.

 Procedure of settlement of dispute

 The machinery for labour dispute resolution under the Industrial court
Act can be set in motion by the employer, employee, the labour office
or labour commissioner.

 According to s 4(2) of the Industrial Court Act where a dispute arises or

there is an apprehended trade dispute;

 A member of a trade union shall first report a trade dispute to the

union branch at the place of work within seven days of its
occurrence.

 The union branch shall within fourteen days report the trade
dispute to the Labour Officer.

 Where there is no union branch, the trade dispute shall be reported

within fourteen days to the District Secretary of the registered

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trade union or if he is not a member of a trade union or he is the
employer, to the District Labour Officer.

 The act provides four methods for the settlement of dispute;

 Compulsory conciliation and negotiation s 4(3) Cap 60

 Where a dispute is referred to the union branch or District

Secretary of a registered trade union or District Labour Officer, as
the case may be, that officer appointed by the Labour
Commissioner shall, within 21 twenty-one days from the date the
dispute is reported to him, use his best endeavour to conciliate the
parties to the dispute and effect a settlement of the dispute, and
may for that purpose make use of any machinery for the
settlement of the trade dispute which may exist in the trade or
industry or branch thereof in which the dispute has arisen.

 When a settlement is reached it shall be recorded in writing and

on being endorsed by the Labour Commissioner shall be known,
and referred to as a negotiated agreement. When the labour
commissioner receives a negotiated agreement he should transmit
it to the court for registration.

 According to s 5(3) of Cap 41 a negotiated agreement shall not be

operative or binding upon parties unless it is duly registered by
the Court and once registered it shall be deemed to be an award
hence binding on the parties s 24(4) Cap 60.

 S 24(5) Cap 60 where the Court refuses to register any negotiated

agreement, the Minister shall refer the matter back to the
conciliator for further negotiations with the parties concerned and,
notwithstanding the negotiated agreement, the dispute between
the parties shall be deemed to have revived and the reference back
to the conciliator shall be deemed to be a reference to a conciliator
under subsection (2) of section 4.

 Compulsory adjudication s 6 of Cap 60

 Where a Labour Officer is unable to effect a settlement of the

trade dispute, he shall report in writing to the Labour
Commissioner within 21 twenty-one days of receiving the dispute.

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 On receipt of a report, the Labour Commissioner or any Labour
Officer authorised by him in that behalf shall, within twenty-one
days from the date the dispute is duly reported to him, transmit the
dispute and any comments which he may wish to make thereon to
the Court.

 Where a trade dispute has been referred to the Court, the Court
shall proceed to consider the dispute and make an award thereon.

 Inquiry s 8 of Cap 60

 Where any trade dispute exists or is apprehended, the Labour

Commissioner may on his motion or where the trade dispute is
referred to him;

 Inquire into the cause and circumstances of the dispute and refer
to the Court any matter appearing to him to be connected with or
relevant to the dispute;

 Refer to the Court for advice on any matter relating to or arising

out of any trade dispute which in his opinion ought to be so
referred;

 Refer to the Court any matter connected with the economic or

industrial condition and affecting labour conditions, terms of
service or any other aspect of relations between employers and
employees or relating to wage policy,

 The Court shall inquire into the matter referred to it and make an
award or advise the Labour Commissioner accordingly.

 Establishment and jurisdiction of the industrial court of Tanzania

 The industrial court is established by s 16 of the industrial court of

Tanzania Act. Since it was established to deal exclusively with
employment matters it is said to be a court of competent
jurisdiction in that respect this was stated in the case of NMC v
Hamisi Juma and 90 Others Misc Civ App No. 141 of 1994.

 The jurisdiction of the court is provided under s 16(2) of Cap 60

 To hear and determine any trade dispute referred to it under the

provisions of Cap 60

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 To register negotiated agreements and voluntary agreements,
and to hear and determine matters relating to the registration of
such agreements;

 To inquire into any matter referred to it under Cap 60 and to

report to the Minister on such matters;

 To advise the Labour Commissioner on any matter referred to it

by him.

 To exercise such other functions and powers as are conferred

upon it by Cap 60 or as may be conferred upon it by any other
written law.

 Constitution of the Court

 According to s 17 of Cap 60 the court shall compose of;

 The Chairman of the Court, who shall be appointed by the

President, upon advice by the Minister and after consultation
with the Chief Justice, from amongst the Judges of the High
Court; and

 Such number of Deputy Chairmen as the President may approve,

each of whom shall be appointed by the President.

 The chairman and Deputy Chairmen shall hold office for the
period of three years and shall be eligible for reappointment.

 The Deputy Chairmen shall exercise the jurisdiction of the court

and any other duties as directed by the Chairman.

 The corum of the court is provided under s 20 Cap41; the Court

shall be properly constituted when presided over by the Chairman
or as the case may be the Deputy Chairman, sitting with two
assessors selected by him from a list of assessors appointed by the
Minister.

 Where neither the parties nor the court indicate that they will be
assessors, the court shall be properly constituted when presided
over by either the Chairman or a Deputy Chairman as the case
may be.

 Where the Court is holding a preliminary or interlocutory

proceeding, it shall be properly constituted when presided over
by the Chairman or the Deputy Chairman.

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 The Chairman or the Deputy Chairman, as the case may be, shall
not be bound by the opinions of the assessors but if he disagrees
with the opinion of any of them he shall record the opinion of
that assessor and the reasons for his disagreement.

 S 23 of Cap 60 provides for the duties and powers of the court

they include to hear, receive and consider any submissions,
arguments or evidence made, presented or tendered.

 S 28 of Cap 60 every award and decision of the Court shall be

final and not liable to be challenged, reviewed, questioned or
called in question in any court save on the grounds of lack of
jurisdiction in which case the matter shall be heard and
determined by a full bench of the High Court.

 The remedy available for an aggrieved party is to apply for

revision to the industrial court s 28(7) Cap 60.

 In proceedings before the court a party may appear in person or

by an advocate s 31 Cap 60.

 If there is default in appearance without reasonable or good

reason and the defaulting party is the complainant it may lead to
the dismissal of the application or dispute.

 If the defaulting party is the employer or management, the court

may proceed to determine the dispute or the matter ex-parte.

 What is good reason depends on the circumstances of the case.

The party affected by the setting aside or ex-parte decision has
the access for restoration and setting aside of the ex-parte
decision.

 S 32 of Cap 60 grants immunity from prosecution to members of

the court for acts or omissions bona fide in the exercise of his
duty. By member of the court it means the Chairman, a Deputy
Chairman, an assessor or an official member exercising functions
under Cap 60.

 Voluntary agreements s 41 of Cap 60

 This is an agreement between a trade union representing

employees and the employer. The agreement may in respect of
wages or terms of employment.

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 The agreement should be recorded in writing and submitted to
Zonal labour office who shall submit it to the labour
commissioner who shall submit it to the minister. The Minister
shall transmit the voluntary agreement, the Labour
Commissioner's report and any comments which he may wish to
make thereon to the Court.

 Where a voluntary agreement is submitted to the Court, the Court

shall examine such agreement, the Labour Commissioner's report
and any comments which the Minister may have made thereon
and shall proceed to decide whether or not to register the
agreement.

 S 41(6) Cap 60 No voluntary agreement shall be operative or be

binding on the parties thereto unless it is registered by the Court.
Where the Court does not register a voluntary agreement within
three months, the employer and the employee may commence
implementing the voluntary agreement.

 Where a voluntary agreement is submitted to the Court, the court

may;

 Register the agreement as an award without any modification.

 Register the agreement as an award after making such

modifications thereto as the parties to the agreement may
consent to;

 Refuse to register the agreement.

 Where a voluntary agreement is registered, whether with or

without any modification, the agreement so registered shall be
deemed to be an award and shall take effect from the date on
which it is specified in the award that it shall take effect.

 Strikes and lock-outs

 A strike is defined by s3 of Cap 60 as

 The cessation of work by a body of persons employed acting in

combination.

 It is a concerted refusal under a common understanding of any

number of persons employed to continue to work for an
employer.

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 A concerted interruption of work or performance of work on a
go-slow basis by any number of employees, done as a means of
compelling their employer or any person or body of persons
employed, or to aid other employees in compelling their
employer or any person or body of persons employed, to accept
or not to accept terms or conditions of or affecting employment.

o Strikes come when the efforts to make an

agreement has ended in vain37. Strikes are said
to be traditional weapon for the working class
in collective bargaining.

 Lock-out is also defined by s 3 to mean;

 The closing of a place of employment.

 The suspension of work.

 The refusal by an employer to continue to employ any number

of persons employed by him.

o Lock-outs are employers’ traditional weapon

and are done in consequence of a trade dispute,
not with the intention of finally determining
employment, but with a view to compelling
those persons, or to aid another employer in
compelling persons employed by him, to accept
terms or conditions of or affecting employment.

o In practice, employees are the ones who illegally

lock-out the employers or the management due
to various grievances e.g. on Wednesday 27th
2002 Mtanzania News paper reported on page 3
about the Aga Khan Hospital workers who
locked-out the hospital management following
the failure to reach a compromise on an
impending redundancy package.

 According to the provisions of s 11 of Cap 60 an employer may

take part in a lock-out and an employee may take part in a strike if
the prescribed time elapses since the date–

 The dispute is reported to the union branch, local District

Secretary or local District Labour Officer, as the case may be;
37
Sikalumba, p 94

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and there has been attempt to effect a settlement to the dispute
and neither has the dispute been reported or referred to the
Labour Officer.

 The dispute is reported to the Labour Officer and he has not

referred it to the Labour Commissioner.

 The matter is reported to the Labour Commissioner and he has

not referred the matter to the Court.

 The Court made an award thereon but no step is taken within

fourteen days to comply with the Court's award, and that the
Court has not taken action to accept the award.

 S 11(2) an employee is not required to take part in a strike unless

there is held a secret ballot under supervision of the Labour
Officer and two thirds or more of all employees involved in the
dispute vote for a strike. This is more or less sarcastic because a
labour officer who is vested with this power may in one way or
the other, be the one to blame for failure to reconcile the dispute
or default in transmitting the records to the labour commissioner.

 S 12 of Cap 60 prohibits;

 Employees to take part in any act of locking in or locking out,

their employers.

 The striking of the employees and the taking part in a lock-out

by employers in any employment or services in the Third
Schedule rendered to the Government or any other person, the
interruption or continued interruption of which would endanger
the life, health or personal safety of the whole or part of the
population. E.g. of such services are water services, electricity,
health services, fire services, e.t.c.

 Any person to procure or incite another person to take part in a

lock-out or strike

 The striking or taking part in lock-outs contrary to the procedure

under this Act.

 S 13 Cap 60 any employee who strikes or lock-out or in

unlawfully commits an offence and upon conviction is liable to a
fine not less than fifty thousand shillings but not more than one
hundred thousand shillings or to imprisonment for a term not
exceeding six months or to both such fine and imprisonment.

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 S 14 empowers police officer to arrest without warrant any person
whom he reasonably suspects of having lock-in or out or strike
unlawfully.

Read Sikalumba from pp 97-101 for dispute settlement for

local Government authorities.

 Settlement under the new labour legislations.

 Under the ELRA, Part VIII of the act provides for dispute
resolution. The ELRA provides for the procedure to be
used in settling labour disputes.

 Disputes under the ELRA can be categorised into two:-

 A complaint; This is defined as any dispute arising from

the application, interpretation or implementation of:
o An agreement or contract with an employee.
o Collective agreement
o The ELRA or any other written law administered by the
minister for labour.
o Part VII of the Merchant Shipping Act, 2003 ( this part
concerns engagement and welfare of seafarers which
encompasses things like wages, the property of the
deceased seafarer, safety, health, manning,
qualification, civil liability as well as offences by
seafarers etc)

 Disputes of interest; The Act defines a dispute of interest

as any other dispute which is not a complaint. Thus, all
other types of disputes which are not concerned with
application, interpretation or implementation of an
agreement, the ELRA or other laws administered by the
minister for labour or part VII of the Merchant Shipping
Act, 2003 (the engagement and welfare of seafarers).

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 Labour disputes must be resolved by;

 Mediation or Arbitration conducted by the Commission

for Mediation and Arbitration (CMA) which is established
by s 12 of the Labour institution Act

 By adjudication by referring the matter to the Labour court

established under s 50 of the labour institution Act.

By Mediation

 This is a process of resolving dispute in which an

independent neutral third party known as a mediator
assists the parties to come together and negotiate and
resolve their dispute by agreement.

 S 86 of ELRA provides that all dispute referred to the

CMA shall be in a prescribed form (form number 1) and
he must satisfy the commission that he has served a copy
of the referral to the other party.

 When the commission receives the referral it shall; appoint

mediator to mediate the dispute, decide the time, date and
place of the mediation hearing and advise the parties on
the same.

 S 86(4) the mediator is required to resolve the dispute

within thirty days of the referral or longer if the parties
agree in writing.

 In mediation a party may either appear in person or may be

represented by a member or official of that party’s trade
union or employers’ association or by an advocate.

 When the mediator fails to resolve the dispute within the

prescribed time then a party may give notice of its
intention to commence a strike or lock-out if the dispute is
a dispute of interest or a party may refer the complaint to
arbitration or the Labour court.

If a party fails to attend mediation and the dispute is the

dispute of interest;

 The commission may extend the period by further 30 days

if an employer or employer’s association fail to attend the
hearing arranged by the commission.

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 Shorten the 30 days period if the employees or trade union
party to the dispute fail to attend the hearing.

If it is a complaint

 The commission will dismiss the complaint if the party

who referred the complaint fails to attend a mediation
hearing.

 Decide the complaint if the other party to the complaint

fails to attend a mediation hearing.

The decision made may be enforced in the Labour Court

as a decree of a court of a competent jurisdiction.

If the commission is satisfied that there are good grounds

for non-appearance in the hearing then he may reverse a
decision or upon receive application made in the
prescribed manner.

By Arbitration

 This is a dispute settlement method in which an

independent third party determines a dispute between
the parties.

 Under the commission arbitration may be compulsory

or voluntary.

Compulsory arbitration

 A dispute may be of interest if the parties to the

dispute are engaged in an essential service.

 It can be a dispute of complaint over the fairness or

lawfulness of an employer’s termination of
employment; any other contravention of the labour
law or breach of contract in which the amount claimed
is below the pecuniary jurisdiction of the High Court;
or any dispute referred to arbitration by the labour
court.

 Reference to arbitration will come after the parties

have failed to resolve their dispute in mediation. The

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commission will appoint arbitrator and determine time
date and place of arbitration and advice the parties on
the same.

 The arbitrator may conduct the arbitration in the

manner he considers appropriate in order to determine
the dispute fairly and quickly; he shall deal with
substantial merits of a dispute with the minimum of
legal formalities.

 Party to a dispute may give evidence, call witnesses,

question witnesses and present argument this is
subject to the discretion of the arbitrator.

 The parties may give their consent to the arbitrator to

suspend proceedings in arbitration and resolve their
dispute in mediation.

 A party may be represented by a member or official of

that party’s trade union or employers’ association or
an advocate.

 An arbitrator may not make order for costs unless a

party or a person representing a party acted in a
frivolous or vexatious manner.

S 88 (9) Arbitrator is supposed to make an award with

reasons signed by the arbitrator within thirty days of
the conclusion of arbitration proceedings. The award
shall be binding to the parties and may be served and
executed in the Labour Court as if it were a decree of
a court of law.

 An arbitrator may on his own motion or upon

application by the parties in the arbitration
proceedings correct any clerical mistake or error
arising from any accidental slip or omission.

 A party who alleges a defect in any arbitration

proceedings under the auspices of the commission
may apply to the Labour court for a decision to set
aside an award;

 Six weeks after the award is delivered unless the

alleged defect Involves improper procurement

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in which the application shall be within six
weeks of the date that the applicant discovered
that fact.

 The court may set aside the award on the grounds of

misconduct on the part of arbitrator or where an award
was improperly procured. When an award is set aside
the labour court may determine the dispute in the
manner it considers appropriate or make an order it
considers appropriate.

Voluntary arbitration

 Parties may by agreement submit their dispute to

arbitration s 93 ELRA

 The arbitration Act will apply to agreed submission of

a dispute to arbitration

o Any a dispute may be submitted to arbitration

By Adjudication

 Parties may settle their dispute by adjudication by

referring the matter to the Labour court established
under s 50 of the labour institution Act.

 The labour court is by The Constitution of the United

Republic Tanzania vested with exclusive jurisdiction
over the application, interpretation and
implementation of the provisions of the ELRA.

By collective agreement

 A dispute may also be solved by collective agreement

between trade union and employer or employers’
association. This is provided for by s 95 of the ELRA.

 Under The Labour Institutions Act

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o The Labour Institutions Act establishes the
organs which are responsible to settle labour
disputes For the purposes of dispute settlement the
Act provides for;

The CMA
 It is established by s 12 to mediate and arbitrate labour
disputes.

 The act is to provide for a framework for resolving

disputes arising from work relationship.

 It is an independent department which is not subject to

control or direction of any other authority such as the
Minister for labour, the labour court or the President.

Composition

 The CMA is composed of mediator and arbitrators

appointed by it on part time and on full time basis.

S.16 of LIA the CMA composition is:

 A chair person, appointed by the President who

shall not be a member or office bearer of trade union or
employer’s association or an employee in the public
service.
 Two commissioners representing the interests of
the employees.
 Two commissioners representing the interests of
the employers
 Two commissioners representing the interests of
the government
 According to S 17 of the LIA the chair person is appointed
among list of three persons recommended by the Council
while the other commissioners are appointed by the
minister upon recommendation by the Council. The
commissioners hold office for three years and are eligible
for re-appointment

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 In performance of its duties the CMA shall work freely
subject to the code of conduct prepared by the
commission.

Powers of mediators and arbitrators

 To summon any person for questioning or to attend

mediation hearing.

 Summon any person who is in possession of any

document or object relevant to the dispute.

 To administer oath and accept affirmation

 Question any person on any matter relevant to the

dispute. According to s 20 of Act No. 7 refusal of any
person to react positively to the summons served will be
guilty of contempt of the commission which is an
offence. The ruling that a particular conduct amounts to
contempt or not must be confirmed by the District Court.

Distinction between mediation and arbitration

 In Mediation a mediator is the 3rd party to a

dispute who helps the parties to reach into an
agreement. His/her role is to start and facilitate
the negotiation process. The end result is the
decision of the parties themselves and not the
mediator’s

 Whereas in arbitration an arbitrator is the 3rd party

to the dispute who determines a dispute between
the parties by looking on the rights of respective
parties to a dispute considering the legal
provisions available. The end result of the process
is the decision of the arbitrator known as an
AWARD which is binding on the parties.

The Essential Services Committee

 This is an organ which is established within the

Commission under s 29 for determination of

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disputes about whether or not an employee or
employer is engaged in a designated essential
service.

 S 31 of LIA The organ comprises of 5 persons

appointed by the minister in consultation with the
Council. The qualifications for these members include
knowledge and experience in labour law and labour
relations. Among these members, the minister shall
appoint a chairperson of the committee. The tenure of
the committee is three years but a member may be
reappointed at the end of his term of office.

 S 30 LIA The functions of the Essential Services

Committee are:

o To designate essential services in terms of the

provisions of the ELRA, 2004;

o To determine disputes about whether or not an

employee or employer is engaged in a
designated essential service (s.30).

 S.32 LIA In the performance of its activities, the

Committee has the following powers:

o It may summon any person for questioning

where it considers that the attendance of this
person will assist in the performance of its
functions;
o It may summon any person believed to have the
possession or control of any book, document, or
object relevant to the performance of its
function to appear for questioning and
production of such a document;
o It may administer an oath or accept an
affirmation from any person called to give
evidence; and
o It may question any person about any matter
relevant to the performance of its functions.

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 The Commission shall pay the prescribed witness
fee to each person who appears before a mediator
or arbitrator in response to a subpoena issued in
this regard s. 32(3) LIA.

The Wage Board

 These are ad-hoc boards established by the Minister in respect of a sector and
area to investigate remuneration and term and conditions of employment in any
area.

 The Board is appointed by the Minister according to s 35 among other things to

promote collective bargaining between registered trade unions, employers and
registered employers’ associations.

 The board is made up of a Chairperson, a member nominated by the Council who

represents the interests of the employees and a member nominated by the Council to
represent the interests of the employers (s.35(3)).

 The Minister publishes a notice in the gazette prescribing the names of the
members, and the terms of reference of the investigation. The terms of reference
of the investigation include the sector and area to be investigated, the categories
and classes of employees to be included as well as the matters to be investigated.

 A member of a board remains in office until the Minister discharges the wage
board or until he is removed by the Minister due to misconduct, illness,
bankruptcy, conviction of a crime etc (s.35(4),(5).

 The functions of a wage board are;

o To conduct an investigation on minimum remuneration and other conditions of

employment.

o To promote collective bargaining between registered trade unions, employers

and registered employer’s associations; and to make recommendations to the
Minister on a minimum wage and conditions of employment.

 Thus, board reports to the Minister on its findings and recommendations.

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The Labour Court

 It is established under s 50 of Act No. 7 which is the Division of the High

court.

Jurisdiction of the court

 It has exclusive civil jurisdiction over any matter reserved for its decision by
the labour laws, s 51 of the Act.

 S 94 of the ELRA provides that the Court shall have the power to decide;

o Appeals from the decisions of Registrar

o Reviews and revisions of arbitrators’ awards and the decisions of the

essential Service Committee

o Reviews of decisions, codes, guidelines or regulations made by the

Minister.

o Complaints, other than those that are to be decided by arbitration.

o Any dispute reserved for the decision by the Labour Court

o Applications including a declaratory order in respect of any provision

of the act or an injunction.

 The court has power to refuse to hear the complaint

if the complaint was not referred to mediation by
the commission or when the application is not
urgent.

 When the court receives a dispute and the dispute

is that which is required to be referred to it may
decide the dispute or refer the dispute to the
commission to be decided by arbitration. if the
dispute or complaint was required to be referred to
arbitration, the court shall refer the complaint to the
commission for it to be dealt with or it may decide
the complaint provided that it may make an
appropriate order as to cost.

Composition of the Court s 50 of the LIA

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 The court shall consist of such number of Judges as
the Chief Justice may consider necessary; two
panels of assessors s 53;

o An employer panel drawn from the list of

names nominated by the member of the
council representing the interests of
employees

o An employee panel drawn from a list of

names nominated by the members of the
Council representing the interests of
employees.

 In some cases a Judge is not forced to seat with

assessors, particularly in application proceedings,
or where the party to the proceedings agree or if it
is necessary for a quick resolution.

Decision of the court

 The decision of thee court is given by the Judge

after considering the opinion of the assessors.
However the Judge is not bound to follow the
opinion of the assessors.

 The decision is binding and in form of judgement

unlike the decision of the Industrial court which
was in form of an award

 S 57 of the LIA an aggrieved party may appeal to

the Court of Appeal only on points of law and not
on the merits of the courts decision.

 S 56 of LIA a party to a dispute before the Labour

Court may either appear

o In person

o Be represented by an official of a
registered trade union or employers’
organisation,

o A personal representative of the party’s

own choice

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o An advocate

 The Labour Commissioner and Labour Officers

 According to s 43(1) of the LIA the law entrusts the power to administer labour
laws to the Labour Commissioner and Deputy Labour Commissioner who are
appointed by the President.

o The term Labour Commissioner is defined under LIA to mean Labour

Commissioner appointed in terms of section 43(1) and in the absence of
the Labour Commissioner, the Deputy Labour Commissioner.

o S 43(2) The Assistant Labour Commissioners are appointed by the

minister. S43(3) The minister also appoints the Registrar of
Organisations and Deputy Registrar who are responsible for the
regulation of trade unions, employer organisations and federations.

o S 44(1) LIA in writing the Labour Commissioner can delegate any of

his duties, functions and powers to the Deputy Labour Commissioner,
Assistant Labour Commissioners or any Labour Officers.

 Functions of Labour Officers

o According to s 43(4) there shall be as many labour officers as are
necessary to administer and enforce the labour laws.

o Labour Officer is defined to mean a labour officer stipulated in s.43 (3)

and it includes the Labour Commissioner or Deputy Labour
Commissioner. Thus, the Labour Commissioner and Deputy Labour
Commissioner are Labour Officers. The section provides further that
the Minister shall appoint Assistant Labour Commissioners;

 To head the sections of Labour Relations

 Labour Inspection and Social Security.

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o S 45(1) of LIA For the purposes of the administration of labour laws, a
labour officer with a prescribed certificate and at a reasonable time may
enter premises and:

 Require that premises or any part thereof shall not be disturbed

during an inspection;
 Search and examine any information books, document or
object;
 Seize, make a copy of any information, book, document or
object;
 Take sample of any object found;
 Take measurements, readings recordings or photographs; and
 Question any person on the premises
o Order, in the prescribed form, any person to appear before him at a
specified date, time and place and to question that person
o Require any person who has control over any information, book,
document or object to furnish it and explain any entry in the
information, book or document or the object;
o Examine, make copy or seize any book, document or object
o Give directions on where notices required in terms of the LIC are to be
posted.
o Request the member of the Police Force to assist in the exercise of the
labour officer’s powers.
o Request any person to assist as an interpreter or otherwise in the
exercise of the powers of the labour officer.
o Institute proceedings ain the Resident’s Magistrate Court in respect of
any contravention of any labour law and may appear and prosecute in
the name of the Labour Commissioner.

 The labour officer is empowered by s 46 of LIA to issue a compliance order in

a prescribed form to any employer whom he reasonably believe that has not
complied with the provisions of the labour laws.

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o The employer is required to comply with a compliance order issued and
the Labour officer may apply to the Labour Court to enforce the
compliance order if the employer has not objected or complied with the
order.

o S 47 LIA The employer may in writing object a compliance order

within 30 days of the receipt of that order.

 The employer may appeal to the Labour Court against an order of the Labour
Officer within 30 days of the receipt of the order s 48 of LIA

 According to s 49 of the LIA any person will be said to commit an offence if

that person;

o Hinders or obstruct the labour officer in performance of his duties

o Refuses without any good cause to answer questions posed to him by

Labour officer.

o Refuse to appear before the Labour officer when summoned.

o Refuses to furnish information or wilfully furnishes false or misleading

information.

o Refuses or fails to comply any lawful request or order by Labour

officer.

o Falsely claims to be a Labour officer.

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 Strikes and Lockouts under ELRA

 Part VII of the ELRA provides for strikes and lockouts.

Strikes

 S 4 of the ELRA defines a “strike” as a total or partial stoppage of work by

employees if the stoppage is to compel their employer, any other employer or an
employer’s association to which the employer belongs, to accept, modify or
abandon any demand that may form the subject matter of a dispute of interest.

o For the employees and employer to have a right to strike and lockout
respectively, the dispute must be a dispute of interest.

o S 75 of the ELRA provides for the right to every employee to strike in

respect of a dispute of interest. On the other hand the employers are also
accorded a right to lock out in respect of a dispute of interest.

o Section 83 provides that a lawful strike or lawful lockout shall not amount
into a breach of contract or a tort or a criminal offence.

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 S 83(2) an employer is prohibited from terminating employment
on the ground that an employee has participated in a lawful strike
or for not acceding to an employer’s demand in a lockout.

 S 83(3) no civil or criminal proceedings shall lie against any person

for participating in a lawful strike or lawful lockout.

 S 83(4) provides that an employer shall not be obliged to

remunerate an employee for services that the employee does not
render during a lawful strike or lawful lockout. But the employer is
bound to continue doing the following during a lawful strike or
lawful lockout:

 He shall continue to make his contribution and

employees contribution to any funds that the employee is
required to belong to by the law or under the contract of
employment.
 If the employer provides accommodation, the provision
of food or other basic amenities of life, the employer shall
continue to provide that accommodation, food or amenities of
life.

 After the end of the strike or lockout, the employer may;

 Deduct any of the employee’s contribution made to the
fund during a strike or lockout from the remuneration of the
employee.
 The employer may also deduct the agreed monetary
value of the accommodation, food or amenities from the
employee’s remuneration with the consent of the employee.
Where the employee does not consent to the deductions the
employer may refer the matter to mediation and further to the
Labour court for decision.

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 S 84 provides that where a strike or lockout is not in compliance
with this Act, or a trade union or employer or employer’s
association engages in a prohibited conduct, the Labour Court shall
have exclusive jurisdiction to issue an injunction to restrain a
person from;
 Engaging in an unlawful strike or lockout.
 To engage in any prohibited conduct.
 The Court will also have the exclusive jurisdiction to
order the payment of just and equitable compensation for any
loss attributable to the strike, lockout or conduct having regard
to the degree of fault, the cause of the strike, lockout or
conduct, the ability to pay, the extent of harm, the interest of
collective bargaining and the duration of the strike or conduct.

 Procedures for a engaging a lawful strike s 80 of ELRA

o The dispute in respect of the strike must be a dispute of interest

o The dispute must have been referred in the prescribed form to the Commission for
Mediation and Arbitration and remained unresolved owing to the failure of the
Commission to do so at the end of the period of mediation.
o The strike must be called by a trade union and a ballot has to be conducted under
the trade union’s constitution in which a majority of the voters, votes for the strike
for it to be lawful. (this is different from the old legislations where a secret ballot
was conducted by the labour officer)
o The employees or their trade union must have given a 48 hours notice to their
employer of their intention to strike after the failure by the Commission to resolve
the dispute.
o S 80(2) If the dispute relates to the unilateral alteration of the terms of contract,
the employees or trade union may require the employer not to implement any
proposed change to terms and conditions or if he has implemented them to restore
the terms and conditions of employment which applied before the change. If the
employer doesn’t comply with such requirement within 48 hours, the employees

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may commence the strike without waiting for the determination in mediation or
getting the approval of majority or issuing the 48 hours notice.

o S 80(4) A Trade union and an employer or employers’ association may agree on

their own strike procedure in a collective agreement.

 The law provides that where procedures for engaging in a lawful strike or lawful
lockout have not been followed, no person is allowed to engage or to take part or to
conduct himself in a manner that contemplates a strike or lockout.

o Restrictions on the right to strike or lockout

o The right to strike as enshrined in the ELRA is said not to be an absolute one
but a restricted right. The following are the restrictions that are said to be
available in this right:-

 Persons who can strike

 The law provides for a right to strike to employees and lockout to

employers, however there are some categories of employees and
employers who are not vested with these rights, these includes;

 S 76(1) Persons engaged in an essential service. The

essential services are listed under s. 77(2) as including
water and sanitation, electricity, health services and
associated laboratory services, fire-fighting services, air
traffic control and civil aviation telecommunications and
any transport services required for the provision of these
services and any other service the Essential Service
Committee may designate as service that an interruption
of which will endanger the personal safety or health of the
population or the party of it.
o According to s76(2) persons employed and employers in essential services can
strike or engage in a lockout if there is a collective agreement providing for
minimum services during a strike or lockout and that agreement has been
approved by the Essential Services Committee.

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 Persons engaged in minimum services. The employer and
employees may enter into a collective agreement for the
provision of minimum services during the strike or
lockout. Alternatively, the employer may apply in the
prescribed manner to the Essential Services Committee
for the designation of a minimum service if a minimum
service is necessary to prevent damage to property,
machinery or plant during a strike or lawful lockout and
there is no collective agreement providing for minimum
services during a strike or lockout. When this agreement
has been reached or a designation has been made by the
Essential Services Committee for the provision of
minimum services, those employees engaged in such
minimum services have no right to strike (ss. 76 and 79)
 Persons bound by an agreement that requires the issue in
dispute to be referred to arbitration. Where parties to a
dispute have entered into an agreement that their dispute
is to be referred to arbitration, then neither of them can
engage in a strike or lockout.
 S 76(1) (c) Persons bound by an agreement that requires
the issue to be referred to arbitration. Or persons bound by
a collective agreement or arbitration award that regulate
the issue in dispute.
 Persons bound by a wage determination that regulates the
issue in dispute during the first year of that determination.
 Magistrates, prosecutors and other court personnel.
 If a dispute is a dispute of complaint.

o Secondary strike

o Section 81 defines the term “secondary strike” as a strike that is either in support
of a lawful strike (the primary strike) by other employees against their employer

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(the primary employer) or a strike that is in opposition to lockout (the primary
lockout) imposed by another employer (the primary employer) against its
employees.

This is a new feature in the Tanzanian labour laws. This shows that there can be a
series of strikes but all premised on one major strike (primary strike) or on a
lockout.

 S 81(2) provides for Procedure for a secondary strike

 It must be called by a trade union.
 There must be a relationship between the secondary and the primary employer
that may permit the exercise of the pressure.
 A fourteen days notice of the commencement of the secondary strike must have
been given to the secondary employer.
 The secondary strike must be proportional by taking into account;
 The effect of the strike on the secondary employer.
 The possible effect that the strike may have on resolving the
dispute giving rise to the primary strike or primary lockout.
Employees in essential services or agreed or determined minimum services
are prohibited to be engaged in secondary strike.

Lockouts

o This is also a new feature that was not provided for by the old labour legislations.

o S 4 defines a Lockout as a total or partial refusal by one or more employers to allow

their employees to work, if that refusal is to compel them to accept, modify or
abandon any demand that may form the subject matter of a dispute of interest.

o A lockout is a remedy of an employer.

o S 82 provides for Procedures for a engaging in a lawful Lockouts

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o The dispute must be a dispute of interest
o The dispute must have been referred to the Commission in the prescribed form
and the Commission must have failed to resolve the dispute within the
prescribed time.
o The employer must have given a 48 hours notice of intention thereof to their
employees or trade union.
o A Trade union and an employer or employers’ association may agree on their
own lockout procedure in a collective agreement.

Protest Action
 S. 4 defined the phrase “protest action” as a total or partial stoppage of work by
employees for the purpose of promoting or defending the social-economic interests of
workers but not for the purpose referred to in the definition of strike or a dispute in
respect of which there is a legal remedy.

 According to s 85 (1) An employee may take part in a protest action if:

o The protest action has been called by a registered trade union or a registered
federation of trade union.
o The trade union or federation has served a notice on the Council stating the
reasons for the protest action and the duration and form of the protest action.
o Thirty days have elapsed from the date the notice was served and
o The union or federation has given at least 14 days notice of the commencement of
the protest action.
o Employees engaged in the essential services and minimum services are prohibited
from taking part in protest actions.
 S 85 (3) Upon receipt of the notice, the Council shall convene a meeting within 30
days of the notice to resolve the matter giving rise to protest action and on failure to
resolve, it may secures an agreement with the trade unions or federation of trade
unions calling for the protest action on the duration and form of the protest action in
order to minimize the harm that may be caused by the protest action.
 To resolve the protest, the Council may;

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o Establish a tripartite committee to perform its functions.
o Appoint a mediator after consultation with the Commission to mediate.
o May apply to Labour Court for a declaratory order of injunction.

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