Labour law is the part of the law that deals with work and labour related matters, such as employment, strike actions, wages, labour unions etc.
The constituted labour laws in any country are essential to referee the relationship that exists between employers and employees along with the government of the country.
In Tanzania as well as most other countries the ultimate aim for the constitution of labour law is to ensure that the relationship and treatment of either employer of labour and employees are conducted in a fair and unbiased manner.
Labour law is divided into two branches- the individual labour law and the collective labour law.
Individual labour law is the branch that deals solely with the relationship between an employer and an employee without the interference of a third party such as a trade union.
On the other hand, collective labour law is the branch that deals with the linked relationship between employers, employees and the respective trade unions.
The Tanzanian employment and labour act makes clear provisions for both branches of the labour law to ensure fair treatment for both employers and employees.
Tanzanian Labour and Employment Law
The labour and employment law in Tanzania is solely governed by the Employment and Labour Relations Act of 2004. The Tanzanian employment act has 9 parts that make for different provisions.
These parts are:
Part I- Preliminary Provisions
This part of the employment act defines certain terms legally like arbitrator, commission, child, basic wages, etc. This part also clearly mentions that the employment act applies to all employees within the boundaries of the country including those in public service.
However, the employment act does not apply to certain individuals in temporary or permanent service of:
- the Tanzania Peoples Defense Corps
- the Police Force
- the Prisons Service
- the National Service
The preliminary provisions part also includes the principal objects of the Tanzanian Employment and Labour Relations Act of 2004 which include:
- promoting economic development through economic efficiency, productivity and social justice
- providing legal standards for fair and effective employment relations and working conditions
- regulating the need for industrial actions or strikes in conflict resolution between employers and employees
- giving effect to the core conventions of the International Labour Organizations and other conventions.
Part II- Fundamental Rights and Protections
The Tanzanian Employment and Labour Relations Act, 2004 also makes provisions to protect the fundamental human rights of all involved. These include laws protecting against
- child labour relevant to children younger than 18years of age;
- forced labour;
- discrimination using colour, race, nationality, gender, pregnancy, disability etc; and
- freedom association for employers and employees, also to include association with trade unions.
Part III- Employment Standards
This employment standards part includes laws that relate to:
- preliminary provisions for contracts between employers and employees, written statement of particulars of employees etc.
- hours of work which include average working hours, breaks during workdays, public holidays etc.
- remunerations relating to calculation and payment of wage rates as well as necessary deductions that might come up such as taxations.
- leaves such as annual leave, sick leave, maternity/paternity leave etc.
- unfair termination of employment
Part IV- Trade Unions, Employer Associations and Federations
This part of the employment act includes laws that relate to the obligation to register to be a part of any of the associations, the registration requirements, duties of members, cancellation of registration, dissolution of unions etc.
Part V- Organizational Rights
This part of the employment act focuses on matters relating to access to employer’s premises, trade union representation, deduction of trade union dues, are exercising and termination of organizational rights.
Part VI- Collective Bargaining
This part of the employment act focuses on the matters such as the unit of employees in which a registered trade union is recognized, withdrawal of the recognition of such unions, workers’ participation agreements, disputes relating to collective agreements etc.
Part VII- Strikes and Lockouts
This part of the employment act relates to matters focused on the right to strike and lockout( employers denying employees right to work), procedures for engaging in legal strikes and lockouts, protest actions etc.
Part VIII- Dispute Resolution
This part of the employment act focuses on:
- mediation which includes the referral of disputes for mediation and the consequences for ignoring a mediation hearing;
- arbitration which includes the effect and correction of the arbitration award, revision of arbitration award, application for arbitration ordinance, voluntary arbitration etc;
- adjudication which focuses on the jurisdiction of the labour court; and
- dispute resolutions procedures in collective agreements
Part IX- General Provisions
The general provisions part of the employment act includes information on the records needed by employers and employees, regulations, penalties, amendments of laws, exemptions, etc.
Contract of Employment in Tanzania
In Tanzania, labour Law, whether individual or collective, are usually explicitly mediated utilizing a contract of employment. Although all contracts are mediated by the Law of Contract Act, in Tanzania, the contract of employment is specifically governed by the Employment and Labour Relations Acts of 2004.
The contract of employment clearly explains what is expected from both employers and employees in terms of the job description, remunerations, working hours, work benefits, days off or work leave, job termination or resignation and other related information.
The contract of employment is important as potential employees might choose to/ not to agree to terms deemed unfair such as ones that imply possible and unfair termination at the employer’s will.
For example, if an employee files a lawsuit for wrongful termination the employer faces legal risk unless able to prove that said employee agreed to terms as stated in the contract.
This will be in line with section 37(2) of the Employment and Labour Relations Act, 2004 which gives that- termination of employment by an employer is termed unfair if said employer is unable to prove that:
- there was a valid reason for termination;
- the reason was not only valid but fair in the circumstances; and
- the termination process was carried out in a fair procedure.
In the case of a lawsuit like this, if the employer is unable to prove that the employment termination was a fair process, there might be a court order to:
- rescind the termination order without the employee losing expected remuneration from the time of termination to rescinding the termination order; or
- settle with the employee on terms decided by the court; or
- pay compensation of nothing less than 12 months remuneration to the employee.
Employment Relationships and types of Employment Contracts in Tanzania
The nature of an employment relationship determines the type of employment contract that will exist between employers and employees. The acknowledged natures of employment contracts are:
- Contract of service: this is the contract between an employee and employer for the agreed duration.
- Contract for service: this contract exists between an employer and a self-employed individual.
Under the governance of the Employment and Labour Relations Act, 2004 there are three main types of employment contracts in written form that can be used in the employment process. These are:
- Contract for an undetermined duration. This is also called a permanent contract and has no initially determined period for employment.
- Contract for a specific duration. A specific timeline for employment is given under this contract and termination of employment is automatic once the agreed duration is up except if there’s a mutual agreement to renew the contract. This contract could extend from a period as little as 3months to several years.
- Contract for a specific task. This contract shares similarities with the contract for a specific duration in that the contract comes to automatic termination once the contractual task is over and done with. However, this contract has no specific time allocation but its termination is contingent on when and how soon the task is completed.
Although employment contracts are usually in written form, employers are also allowed to use oral employment contracts. In the event that an oral contract of employment will be used a Written Statement of Particulars must be provided.
The Written Statement of Particulars is a document that contains information about an employee as well as information about the terms of the job applied for. This document usually contains information such as name, age, home address, sex, job description, work hours, work address, remuneration, bonuses/benefits involved and other pertinent information.
However, it is inadvisable for employers to have only an oral contract of employment to show in the event of a legal dispute. The failure to produce physical documentation of a contract of employment might cause a ruling to be made against the employer.
The reason for the Tanzanian Employment and Labour Relations Act of 2004 is to protect the best interests of both the employer and employee in all forms for the economic and social benefit of the country at large, and this has been achievable to a large extent.
However, one truth about the law remains that not all persons whether employers or employees are well aware of not only their responsibilities in accordance with the law but also their rights and this, unfortunately, affects the efficacy of the law.
The only way to avoid being cheated out of your rights no matter what side of the employment table you’re on is to get help from reputable quarters, and this is where Shikana Group comes in.
Shikana Group is a leading legal and investment firm that has its headquarters in Tanzania while consulting for clients across the borders of East Africa.
The Shikana Group consists of a team of young professionals whose focus is on the all-around well-being of their clients.
Being an employer or employee navigating the waters of the Tanzanian Employment and Labour Relations Act is not an easy feat but is made much easier when you work with a highly experienced and recommended firm like Shikana Group.