SOURCES OF LABOUR LAW IN TANZANIA

(a) THE MEANING OF LABOUR LAW

Labour law (Employment law) is the body of laws, administrative rulings, and precedents

which address the legal rights of, and restrictions on, working people and their

organizations. As such, it mediates many aspects of the relationship between trade

unions, employers and employees.1 It is the body of law that governs the employer-

employee relationship, including individual employment contracts, the application of tort

and contract doctrines, and a large group of statutory regulation on issues such as the

right to organize and negotiate collective bargaining agreements, protection from

discrimination, wages and hours, and health and safety.2

Labour law is the body of law that applies to matters such as employment, wages,

conditions of work, labour unions, and labour-management relations. Laws intended to

protect workers, including children, from abusive employment practices were not enacted

in significant numbers until the late 19th century in Europe and slightly later in the U.S.

In Asia and Africa, labour legislation did not emerge until the 1940s and '50s.

Employment laws cover matters such as hiring, training, advancement, and

unemployment compensation. Wage laws cover the forms and methods of payment, pay

rates, social security, pensions, and other matters. Legislation on working conditions

regulates hours, rest periods, vacations, child labour, equality in the workplace, and

health and safety. Laws on trade unions and labour-management relations address the

status of unions, the rights and obligations of workers' and employers' organizations,

collective bargaining agreements, and rules for settling strikes and other disputes.3

CATEGORIES OF LABOUR LAW

Labour law is categorized into two categories namely: Collective Labour Law which

relates to the tripartite relationship between employee, employer and union Individual

labour law which deals with employees’ rights at work and the contract for work.4

1 http://en.wikipedia.org/wiki/Labour_law (Accessed on 07.04.2011)2 http://legal-dictionary.thefreedictionary.com/Labour+law (Accessed on 07.04.2011)3 http://encyclopedia2.thefreedictionary.com/labour+law (Accessed on 07.04.2011)4 Ibid.

CLASSIFICATIONS OF LABOUR LAW

SUBSTANTIVE LAW:

This is that branch of law that prescribes the standards to be observed by both employers

and employees. Specifically, substantive law deals with things like contracts of service

and contracts for services, termination of employment, benefits etc. These are provided

for by the Employment and Labour Relations Act 2004.

PROCEDURAL LAW

This is that branch of labour law that prescribes procedures to be followed in all labour

matters. This is done by providing for institutions for implementation of the substantive

standards, and enforcement of rights. This is provided for by the Labour Institutions Act5

and G.N. No. 42, 64, 65, 66 and 67 of 2007.

SOURCES OF LABOUR LAW IN TANZANIA

CONSTITUTION

At the top of the hierarchy of sources of Labour Law is the constitution. It plays a

dominant role in the field of Labour Law. This is essentially true for collective Labour

Law where the legislation is very fragmented. Problems not regulated by the legislator

have to be solved by recourse to the constitution.

In the United Republic of Tanzania the constitutional history of Tanganyika traces its

background from the 1961 Independence Constitution, which was adopted at the time of

independence. In 1962 Tanganyika adopted the Republican Constitution, which operated

from 1962 up to 1965. These two were based on the traditional Lancaster style

constitutions negotiated at independence by the British upon handover of state power to

newly independent states. In 1965 Tanganyika adopted an Interim Constitution while the

country awaited a new constitution to be drafted, after it abolished the multi party

political system and adopted a one party state system. The process lingered longer than it

was meant to and thus the constitution lasted from 1965 up to 1977 when a new

5 [No. 7 of 2004]

constitution was adopted and it has remained applicable to date, with fourteen subsequent

amendments.6

The Constitution provides for a bill of rights. The Bill of Rights is found in part three of

the first Chapter of the Constitution and the fundamental rights and freedoms are

stipulated under articles 12 to 24.7

Articles 22 and 23 of the Constitution of the United Republic of Tanzania8 provide for

Labour Law. Article 22 provides that every person has the right to work and that every

citizen is entitled to equal opportunity and right to equal terms to hold any office or

discharge any function under the state authority. In Lee v. Showmen’s Guild of Great

Britain9, Lord Denning MR (as he then was) recognized the right to work. Furthermore,

article 23 provides that, every person, without discrimination of any kind, is entitled to

remuneration commensurate with his work, and all persons working according to their

ability shall be remunerated according to the measure and qualification for the work. This

article further provides that, every person who works is entitled to just remuneration.

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

Mwalusanya J was of the view that for work to be sustained, it requires that opportunities

to be set open so that members of the society can strive for their material necessities of

life. In his own words, he stated that, for this right to practically exist, it is necessary that

the economic, political and legal order of the society assures everybody who is capable of

working of the possibility of participating in building his society through work in

accordance with his capacity and education and the right to earn an income proportion to

the quantum of his work.

LEGISLATION

Legislation is the law enacted by the legislature (parliament). In Tanzania Labour Law is

governed by a number of Statutes. These are for example; the Labour Institutions Act11

6 http://www.nyulawglobal.org/globalex/tanzania.htm7 http://www.nyulawglobal.org/globalex/tanzania.htm8 [Cap. 2 RE 2002]9 1952 2 QB 32910 H.C at Mwanza, Civil case No. 3 1986 (Unreported)11 [No. 7 of 2004]

and Employment and Labour Relations Act.12 The cumulative effect of these Acts was

to overhaul the entire system of labour relations and particularly disputes settlement

procedures that existed previously.

THE LAW OF CONTRACT:

The law of contract is one of the sources of labour law in Tanzania because of the fact

that, the relationship between the employer and employee is preceded by the contract of

service, which must abide to the all principles of the Law of Contract which are found in

the Law of Contract Act.13

PRECEDENT

These are cases from the High Court and Court of Appeal which are either reported or

unreported and are be used as authority and bind lower courts thereto. Reported

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

Africa Law Reports. 

Court decisions play a very important role in the field of Labor Law. This is not only true

inasmuch as courts specify the general clauses and general terms of law, but also

inasmuch as they have to fill in the gaps left open by the legislator.

In Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Ltd,14 the court held that

for an employee to be able to sue successfully for damages for premature termination of

employment he has to prove either that, he was employed for life or for a period

terminating on reaching the age of compulsory retirement. In this case, the court referred

the case of McClelland V Northern Ireland General Health Services Board15 in

reaching that decision. These cases therefore show how the doctrine of precedent has

been used by the courts as a source of labour law.

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

RECEIVED LAWS

Another source is Received Laws established under Section 2(3) of The Judicature and

Application Laws Act16. These include: Common Law and Doctrine of Equity; and

Statutes of General Application of England, applicable before the 22 of July 1920

(Reception date for English Law in Tanzania).

Common Law is the ancient law of England based upon societal customs and recognized

and enforced by the judgments and decrees of the courts. It is a set of principles and rules

of action, embodied in case law rather than legislative enactments, applicable to the

government and protection of persons and property that derive their authority from the

community customs and traditions that evolved over the centuries as interpreted by

judicial tribunals. On the other hand, Equity, on the other hand, is a system of

jurisprudence supplementing and serving to modify the rigor of common law.17

Statutes of General Application are all the laws that were in force in England before the

1st of January 1900.18

INTERNATIONAL INSTRUMENTS

ILO INSTRUMENTS

ILO sources of international labour law can be found in the Constitution of the

Organization, and in its numerous Conventions and Recommendations. While the

Constitution of the ILO mainly contains provisions relating to the functioning of the

Organization, it also lays down a number of general principles which have come to be

regarded in certain respects as a direct source of law. Such principles are contained in the

Preamble of the Constitution and in the Declaration concerning the Aims and Purposes of

the Organization, adopted by the Conference in Philadelphia in 1944 and incorporated in

the ILO Constitution in 1946.19

CORE CONVENTIONS

16 [Cap. 358 RE 2002]17 http://legal-dictionary.thefreedictionary.com/equity18 http://wiki.answers.com/Q/What_is_statute_of_general_application19http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_International_Labo

While ILO Conventions are not ranked in terms of their order of importance, there is an

underlying hierarchy, which can be discerned. In the first category are Conventions

dealing with freedom of association and collective bargaining (Conventions Numbers 87

and 89), forced labour (Conventions Numbers 29 and 105), non-discrimination in

employment (Conventions Numbers 100 and 111) and child labour (Convention 138).20

These core Conventions were identified and given prominence in the Conclusion of the

World Summit for Social Development in 1995 (See Copenhagen Declaration on Social

Development). In the second category are technical standards, which establish norms to

improve working conditions.21

FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO

ORGANIZE CONVENTION, 1948 (NO. 87)

Establishes the right of all workers and employers to form and join organizations of their

own choosing without prior authorization, and lays down a series of guarantees for the

free functioning of organizations without interference by the public authorities. In

December 1997, 121 countries had ratified this convention.

RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING CONVENTION, 1949

(NO. 98)

This convention provides for protection against anti-union discrimination, for protection

of workers' and employers' organizations against acts of interference by each other, and

for measures to promote collective bargaining. In December 1997, 137 countries had

ratified this convention.

FORCED LABOUR CONVENTION, 1930 (NO. 29)

The Convention requires the suppression of forced or compulsory labour in all its forms.

Certain exceptions are permitted, such as military service; convict labour properly

supervised, emergencies such as wars, fires, earthquakes, etc. In December 1997, 145

countries had ratified this convention.

20http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_International_Labo21http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/lablaw.htm#Global_Instruments_of_International_Labo

ABOLITION OF FORCED LABOUR CONVENTION, 1957 (NO. 105)

It prohibits the use of any form of forced or compulsory labour as a means of political

coercion or education, punishment for the expression of political or ideological views,

workforce mobilization, labour discipline, punishment for participation in strikes, or

discrimination. In December 1997, 130 countries had ratified this convention.

DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION, 1958

(NO. 111)

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

employment, training and working conditions, on grounds of race, color, sex, religion,

political opinion, national extraction or social origin and to promote equality of

opportunity and treatment. In December 1997, 129 countries had ratified this convention.

EQUAL REMUNERATION CONVENTION, 1951 (NO. 100)

This Convention of 1951 calls for equal pay for men and women for the work of equal

value. In December 1997, 135 countries had ratified this convention.

MINIMUM AGE CONVENTION, 1973 (NO. 138)

Aims at the abolition of child labour, stipulating that the minimum age for admission to

employment shall not be less than the age of completion of compulsory schooling, and in

any case not less than 15 years (14 for developing countries).  In December 1997, 59

countries had ratified this convention.

THE ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT

WORK

The 86th International Labour Conference (1998) adopted by an overwhelming vote a

solemn ILO Declaration on Fundamental Principles and Rights at Work, committing the

Organization's member States to respect, to promote and to realize in good faith the right

of workers and employers to freedom of association and the effective right to collective

bargaining, and to work toward the elimination of all forms of forced or compulsory

labour, the effective abolition of child labour and the elimination of discrimination in

respect of employment and occupation. The Declaration underlines that all member

countries have an obligation to respect the fundamental principles involved, whether or

not they have ratified the relevant conventions.

The Declaration includes provision for follow up, in particular:

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

cover each year the four areas of fundamental principles and rights specified in

the Declaration. It will be based on reports requested from governments which

have not ratified one or more of the fundamental Conventions, on any changes

which may have taken place in their law and practice. These reports will be

reviewed by the Governing Body. With a view to presenting an introduction to the

reports thus compiled, drawing attention to any aspects which might call for a

more in-depth discussion, the Office may call upon a group of experts appointed

for this purpose by the Governing Body.

Global report which will cover, each year, one of the four categories of

fundamental principles and rights in turn. The report will be drawn up under the

responsibility of the Director-General and will be submitted to the Conference for

tripartite discussion.

In his address to the conference, Michel Hansenne, Director General of the ILO, said that

"it was high time for the ILO to give itself the means to address the social consequences

of the globalization of the economy......I believe we can all be proud of the Declaration

that has been adopted ", adding that "the ILO can now proceed on the basis of a truly

global set of common social values."

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

Confederation of Free Trade Unions (ICFTU) "and it establishes workers' fundamental

rights as the ground-rules of globalization .....The Declaration sends the ILO into the next

millennium well-placed to meet the challenge of globalization... Trade unionists world-

wide are going to use this new tool as a powerful instrument in defense of their

fundamental rights".

The Chairperson of the Workers’ Group of the Conference, Bill Brett, said that he was

pleased to note "that we have indeed created a powerful search- light which will

illuminate those areas that have previously remained in darkness."

UNITED NATIONS INSTRUMENTS

While the United Nations does not deal with labour matters as such, and recognizes the

ILO as the specialized agency responsible for taking appropriate action for the

accomplishment of the purposes set out in its Constitution, some UN instrument of more

general scope have also covered labour matters.

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

Covenant on Economic, Social and Cultural Rights and the International Covenant on

Civil and Political Rights, which are legally binding human rights agreements. Both were

adopted in 1966 and entered into force 10 years later, making many of the provisions of

the Universal Declaration of Human Rights effectively binding.

Because of their comprehensive nature, the Covenants are drafted in general terms, and

the various rights relation to labour, which they recognize are dealt with in a less precise

and detailed way than ILO standards.

The UN General Assembly has adopted also a number of legally binding Conventions

concerning labour matters. The most important ones are the Convention on the

Elimination of All Forms of Racial Discrimination (1969), Elimination of all Forms of

Discrimination against Women (1979), Rights of the Child (1989), Status of the Refugees

(1954) and Status of Stateless Persons (1960).

REGIONAL INSTRUMENTS OF INTERNATIONAL LABOUR LAW

At the European level, a number of regional organizations that were created after the end

of World War II have adopted legal instruments on labour matters. In the Americas, only

few of the recently established regional organizations have adopted labour law

instruments. The North American Free Trade Area (NAFTA) has the North American

Agreement on Labor Cooperation, and the Caribbean Community and Common Market

(CARICOM) has an Agreement on Social Security. However, the instruments of the

Organization of American States (OAS) are still the main source of international labour

law in the region. In Asia, none of the regional organizations has adopted legal

instruments on labour matters – there are only recommendations, declarations and

programs dealing with these issues. In Africa, both of the recently established regional

organizations, the Southern African Development Community (SADC) and the Common

Market of Eastern and Southern Africa (COMESA), have human rights matters contained

in their treaties. The Organization of African Unity (OAU) also has legal instruments.

AFRICAN INSTRUMENTS

The Organization of African Unity adopted in 1981 the African [Banjul] Charter on

Human and Peoples' Rights, which includes the right to work under equitable and

satisfactory conditions, the right to equal pay for equal work and the right to free

association. In 1990, OAU adopted the African Charter on the Rights and Welfare of the

Child, which provides that every child shall be protected from all forms of economic

exploitation and from performing any work that is likely to be hazardous or to interfere

with the child's physical, mental, spiritual, moral, or social development. States Parties

shall in particular provide through legislation, minimum wages for admission to every

employment; provide for appropriate regulation of hours and conditions of employment;

provide for appropriate penalties or other sanctions to ensure the effective enforcement of

this Article; promote the dissemination of information on the hazards of child labour to

all sectors of the community. Also, the Southern African Development Community

(SADC) has human rights provisions in the Treaty of Windhoek by which the community

was established, and the Common Market of Eastern and Southern Africa has the

recognition, promotion and protection of human and people's rights in accordance with

the provisions of the African Charter on Human and People's Rights as one of its

objectives according to The Treaty establishing COMESA.

WRITINGS PROMINENT JURISTS

Books and writings of prominent jurists are also important secondary sources of labour

law. These are for example: the New Encyclopaedia Britannica22 which contains a

comprehensive account on the history of labour law including a detailed description on

why there was need for the protection of the rights of employees in many jurisdictions of

22 Vol. 5, 1975

the world. In Tanzania, writers such as Issa Shivji have written books such as the “State

and the Working People in Tanzania”.

(b) FUNCTIONS OF LABOUR LAW

(1) Protection of employees: This is done through the following ways

(a) Limiting powers of employers to dismiss employees or terminate employment at

his will without just cause, this is enshrined under Part III (E) of the

Employment and Labour relations Act.

(b) Regulating the wages to be aid by maintaining financial capacity of employees as

per Part III (E) of the Employment and Labour relations Act.

(c) By regulating conditions for working through providing for rest days and leave

and hours of work plus matters incidental to standard of work as per Part III (E) of

the Employment and Labour relations Act.

(d) By providing for care and welfare of employees

(2) Labour Law has the function of balancing of conflict of interests between employers

and employees. This is done by defining their rights and duties as well as regulating their

conduct.

(3) It helps in resolving industrial disputes: by establishing a special institution which has

the duty and power to enforce rights and duties under labour law this is enshrined under

Part III of the Labour Institutions Act.

(4) Helps in increasing production of goods and provision of social services: this is done

by maintaining industrial peace.

(5) To correct the imbalance of power between the worker and the employer by

protecting worker’s right to organize in trade unions and bargain collectively and putting

in place safeguards which prevent the employer from dismissing the worker without good

cause.23 The starting point of the protective function view is that, there is an inherent

imbalance of the power within the relationship between employer and employee. The

23 http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf

employee is at a great disadvantage as compared to the employer in terms of resources

and bargaining skills.

(6) To prevent working conditions being pushed below the levels the society deems

acceptable by placing restrictions on contracting partners’ freedom to contract on

whatever terms they wish and setting minimum standards over issues such as working

time, health, safety and pay. The law limits the degree to which the more powerful party

can exploit the weaker.24

(7) To regulate labour market: The starting point in terms of this view is that market

forces are preferable to government intervention in the attainment of economic growth

and prosperity. This view began to gain support in the early 1970’s. The supporters of

this approach have also been labelled, “neo liberalist”. The implementation of this

approach has resulted in government support for reduction of wages and other labour

costs and a reduced role of the state in setting up of minimum labour standards.

According to this approach, state intervention in the form of protection of the employee

results in artificial distortion of the market forces which in turn inevitably results in

economic inefficiencies and a loss of prosperity.25

(8) To limit trade union freedom: Labour Law is also used as an instrument to limit and

control trade Unions. It is in considering this aspect that trade unionists will be inclined to

ask whether they really need labour legislation at all.26

(9) To protect and balance economic and social progress: This occurs where by labour

standards are clearly stipulated under strict rules of consultants and management team of

the laborers, as stipulated under labour laws.27

(10) Labour law helps Enforcement of labour standards: Labour based road works usually

involve high labour recruitment and management. Special attention is expected from the

supervising consultant and the project management team to ensure that the contractor is

complying with the labour standards of employment. The supervising consultant must

also be acquainted with local labour laws and standards.

24 http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf25http://upetd.up.ac.za/thesis/available/etd-1108200526 http://www.ilo.org/wcmsp5/groups/public/--ed_dialogueactrav/documents/publication/wcms_111442.pdf27 http://upetd.up.ac.za/thesis/available/etd-11082005

(11) Labour law helps on Non-Discrimination: the supervising consultant should check

the recruitment is fair and transparent and that the contractor does not discriminate on the

basis of gender. Regardless of gender, the contractor should pay equal wages for work of

equal value. He should advice the contractor in preparation of recruitment adverts that are

neutral. In areas where strong cultural barriers exist, contractors should be assisted by the

client with sensitizing meetings to explain the nature of the work and the recruitment

process. Therefore, in this instance, Labour Law functions to avoid gender

discrimination.

(12) Labour Law sets wage Rates: The minimum wage is always stipulated in labour

laws. The supervising consultant must ensure that the contractor does not under pay the

workers. A regular check of contactors record of pay sheets is necessary. Falsification of

pay sheets is a major method of covering up corrupt practices at all levels. The

supervising consultant should also routinely make spot checks with a number of

individual different labourers to confirm amounts received, any deductions made and

their identities.

(13) Labour law helps on minimum age: Labour Law sets the minimum age for one to be

employed in any governmental or non-governmental organization. In this way Labour

Law also protects the rights of children.

BIBLIOGRAPHY

STATUTES

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

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

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

BOOKS

New Encyclopaedia Britannica, Vol. 5, 1975

INTERNET

http://actrav.itcilo.org/actravenglish/telearn/global/ilo/law/

lablaw.htm#Global_Instruments_of_International_Labo (Accessed on 07.04.2011)

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

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

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

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

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

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

08.04.2011)

http://www.ilo.org/wcmsp5/groups/public/ed_dialogueactrav/documents/publication/

wcms_111442.pdf (Accessed on 07.04.2011)

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