MANUAL FORLABOUR LAW IN TANZANIA

All rights reserved © 2013

Tumaini University Makumira Dar es Salaam College,
Faculty of law,
P.O. Box 77588,
DAR ES SALAAM-TANZANIA

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 ABSTRACT
Protection of labour rights in Tanzania is one of the critical issues today
owing to increased foreign investments in the country. The government of
Tanzania enacted the Employment and Labour Relations Act,2004 that
incorporates the international labour standards. This Manual provides an
overview of the legal principles on protection of the workers’ rights in
Tanzania, which every person seeking to be an employee, employer or
administrator, should be aware of. It is a guide to law students and legal
practitioners with regard to interpretation(s) of the current labour laws in
Tanzania.

The Manual starts by explaining the historical background of labour law in

Tanzania and the nature of the employment contract. It also covers aspects
on employment standards and how such standards can be improved in a free
market economy like that of Tanzania; termination of employment; dispute
resolution mechanisms; industrial action (strike and lockout); trade unionism
and collective bargaining; social security schemes in Tanzania, and other
related matters.

This manual is therefore suitable for those persons doing both legal and non-
legal studies in the employment sector. It also contains international
approach on labour related matters.

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 ACKNOWLEDGMENT
First and foremost I wish to say a word of thanks to the Almighty God for
creating me and making me who I am today. Had it not been for His Mercy,
endless love and guide, this work would not have reached the stage it has.

The work on this manual is the result of contributions and assistance from
different people; however, few of them deserve special mention. I owe a
sincere appreciation to Mr. Lucas Kamanija (the Acting Dean of the Faculty of
Law at TUMADARCO) for his support in my life, particularly for supporting me
when writing this academic material. More importantly, this work is the result
of inspiration from the Former Deputy Provost for Academic Affairs (DPAA),
Prof.Japhet Minjas, whose advise to teachers was to use available time not
only for teaching but also doing research and writing academic papers.

My parents, Mr.P.Kamuntu and Mrs.J.Kokuleba! Thanks for bringing me up in

a Christian life and supporting me both morally and spiritually. Gratitude also
goes to my brothers and sisters: Godebertha, Br. Longino, Sr.Verena, Alvera,
Goreth, Valeria, and Dionisius. May the Almighty God bless you and grant
you spiritual and physical strength to make this World a place worth-living.

I must express my heartfelt gratitude to the TUMADARCO members of

academic staff at the Faculty of Law; to mention a few: Dr..Lamwai; Mr.S.
Mramba, C.Mlelwa, A. Mwenda, R.Kaunda, F.Magare, L.Jangu, Baraka, T.K.
Paul,LIrene, and Mrs.H.Moshi, for their support. A special vote of thanks is
owed to Mr. L. William and Mr. L. Rugambwa, who have assisted me greatly
in the finalization of editorial work.

I must also acknowledge assistance offered to me by friends of the University

of Dar es Salaam when preparing this work: R.K.Dadaya, J.Kipeche, A.Gura,
F.Frederick, A.Elfas, and all other L.L.B 2010 graduates at UDSM, who
provided me the cases for purposes of this work. Furthermore, I must
express my sincere thanks to students at the Faculty of Law (TUMADARCO-
Kurasini Campus) who have always been my company and friends, praying

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for me and encouraging me. My cousin, Emmanuel Kalugila! Thanks for your
support and making the home a place to live.

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 LIST OF CASES
Abdallah M.Simba & 26 Others vs Said Salim Bakhresa ;Labour Revision
No.195 of 2009; High Court of Tanzania at Dar es Salaam

Ahmed Mbonde vs The Director Bulk Building Contractor; Revision No.214 of

2008, High Court of Tanzania at Dar es Salaam

Andrew Mwena vs Mkurugenzi Mkuu Mufindi Wood Poles Plant and Timber;
Revision No.2A of 2011; High Court of Tanzania-Labour Division at Iringa

Antony J. Tesha vs Anita Tesha; Civil Appeal No.10 of 2003, Court of Appeal
of Tanzania

Arobogast Bruno vs TAWFIQ Bus Service Geita; Revision No.9 of 2007; High
Court of Tanzania at Mwanza

Asajile Nkambila vs Afritel Ltd; Revision No.145 of 2011, High Court of

Tanzania at Dar es Salaam

Bakari S.Tifili vs Security Group; Revision No.282 of 2008; High Court of

Tanzania-Labour Division

BEFRA Construction Ltd vs Husbon Sangai Nyambea; Revision No.2 of 2011;

High Court of Tanzania at Arusha

BIDCO Oil and Soap Ltd vs Robert Matonya & 2 Others; Revision No.70 of
2009; High Court of Tanzania at Dar es Salaam

Buzwagi Project vs Antony Lameck ;Revision No.297 of 2008, High Court of

Tanzania at Mwanza

Caspian Co.Ltd vs Youngstone Amanyise Malindo ;Revision No.237 of 2009,

High Court of Tanzania

Cassidy vs Minister of Health (1951) 2 KB 343

Century Food & Packaging Ltds vs Emmanuel Mzava Kimweli; Revision

No.158 of 2008, High Court of Tanzania at Dar es Salaam

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Chama Cha Walimu Tanzania vs AG; Civil Application No.152 of 2008; Court
of Appeal of Tanzania

Charles Musa Matelego vs Epsom Ltd; Revision No.3 of 2007, High Court of
Tanzania at Dar es Salaam

Charles Ng’umbi vs Unilever Tea Tanzania; Revision No.1 of 2010; High Court
of Tanzania at Iringa

China Railway Jiang Engineering Co.Ltd vs Abdalah Ibadi & Salum Mtengevu;
Revision No.61 of 2008, High Court of Tanzania

Coca Cola kwanza Ltd vs Emmanuel Mollel; Application No.22 of 2008, High
Court of Tanzania- Labour Division at Dar es Salaam

Coca Cola Kwanza Ltd vs Kajeri Misyangi; Revision No.238 of 2008; High
Court of Tanzania at Dar es Salaam

Dar es Salaam Baptist Sec.School vs Enock Ogala; Revision No.53 of

2009,High Court of Tanzania at Dar es Salaam

Dar es Salaam City Council vs Raphael Ruvakubusa; Revision No.149 of

2009, High Court of Tanzania-Labour Division at Dar es Salaam

DPP vs Peter Vogel (1987) TLR 100

Dr. Noordin Jella vs Mzumbe University, Complaint No.47 of 2008-at Dar es

Salaam

East Coast Oils & Fats Ltd; Revision No.162 (168) of 2009, High Court of
Tanzania at Dar es Salaam

Edna Pendael Tenga vs Parokia ya Bugando; Revision No.19 of 2007; High

Court of Tanzania at Mwanza

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Franael N. Raphael vs Maromboso Baptist English Medium School; Revision
No.14 of 2010; High Court of Tanzania at Arusha

Geita Gold Mining Ltd vs Jumanne Bayasabe; Revision No. 225 of 2008-High
Court of Tanzania-Labour Division at Dar es Salaam

Gould vs Minister of National Insurance (1951) 1 KB 731; (1951) 1 All ER 368

Hassanal Chongolo vs Selous Farming Ltd; Revision No.01/2010, High Court

of Tanzania-Labour Division at Dar es Salaam

Hemedi Omary Kimwaga vs SBC (T) Ltd; Application No.138 of 2008, High
Court of Tanzania-Labour Division at Dar es Salaam

Irene Nide Mwaitekele vs I.O.T (T) Travelling Bags Ltd; Revision No.127 of
2008; High Court of Tanzania at Dar es Salaam

Issa Amanyisye & 5 Others vs Mbeya City Council; Miscellaneous Labour

Application No.2 of 2011; High Court of Tanzania at Mbeya

Jamani Printers Ltd vs Mariam Nindanga & Another; Revision No.181 of 2011;
High Court of Tanzania at Dar es Salaam

James Kajo & Others vs Precision Air Services Ltd; Labour Dispute No.49 of
2008-Labour Court at Dar es Salaam

Joas Mrutu & 37 Others vs Namna Hotel; Revision No.268 of 2008, High Court
of Tanzania-Labour Division

John Magendo vs Govan (1973) LRT 40

John Msisi vs CAMI Apparel Limited; Revision No.208 of 2008; High Court of
Tanzania at Dar es Salaam

J.W Ladwa(1997) Ltd vs Peter Kimote; Revision No.52 of 2008; High Court of
Tanzania at Dar es Salaam

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Kaizari General Suppliers Ltd vs Apolinary Massawe; Revision No.43 of 2008;
High Court of Tanzania at Dar es Salaam

KIOO Ltd vs Kennedy Chalamila; Revision No.178 of 2009; High Court of

Tanzania-Labour Division

KLM Dutch Airlines vs Jose Xavier Ferreira; 1994 (TLR) 230 (CA)

Levina Kasenene &Another vs CHODAWU MAKAO MAKUU; Revision No.302 of

2010; High Court of Tanzania at Dar es Salaam

Lukani Losaa Agri.Coop.Society vs TPAWU on behalf of Simon Natai; Revision

No.135 of 2009

March L.Lumanija &Another vs Tanganyika Bus Service Co.Ltd; Revision

No.223 of 2008; High Court of Tanzania-Labour Division at Mwanza

Maxon Paper Converted vs Joyness D.Kiluwa; Revision No.280 of 2008; High

Court of Tanzania at Dar es Salaam

Mbeya Cement Company Limited vs Leonard Mwakunja; Revision No.20 of

2011, High Court of Tanzania at Mbeya

Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd (1947)
AC 1; 1946 2 All ER 345

Meneja, Mama Clementina Foundation vs Laurence, Erasmus Malekela;

Revision No.2 of 2011, High Court of Tanzania at Iringa

Metal Product Limited vs Mohamed Mwerangi and 7 Others; Revision No.148

of 2008, High Court of Tanzania-Labour Division at Dar es Salaam

Mussa Vitalis Ulomi vs Group 4 Security (T) Ltd; Revision No.262 of 2009;
High Court of Tanzania at Dar es Salaam

M/S Namera Group Industries (T) Ltd vs Juma Zimbabwe & 58 Others;
Revision No.5 of 2008; High Court of Tanzania at Dar es Salaam

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Mtambua Shamte and 64 Others vs Care Sanitation and Suppliers; Revision
No.154 of 2010; High Court of Tanzania at Dar es Salaam

Omary Mkele & 20 Others vs M/S Shipping Freight Consultant; Labour

Dispute No.6 of 2008-High Court of Tanzania at Dar es Salaam
National Insurance (1968) 2 QB 497

N.Gas Supplies vs Kassim Bakari Rashid; Revision No.165 of 2008, High Court
of Tanzania at Dar es Salaam

Nicomedes Kajungu and 1374 Others vs Bulyankulu Goldmine (T) Ltd; Civil
Appeal No.110/2008

Nufaika Distributors Ltd vs Hawa d/o Chombo-Tuico; Revision No.256, High

Court of Tanzania-Labour Division

Pan African Mining Services Ltd vs George Singo & 3 others; Revision No.5 of
2010.High Court of Tanzania at Mwanza

Peter Mwasandube vs Habibu African Bank Ltd; Revision No.172 of 2009;

High Court of Tanzania-Labour Division

PLY and Panel (T)Ltd Tanga vs Hamad Kassim ; Labour Revision No.286 of
2008, High Court of Tanzania

Ponsian Stanslaus Magezi vs Epsom Ltd;Revision No.4 of 2007, High Court of

Tanzania -Labour Division

Power Roads (T) Limited vs Haji Omari Ngomero; Revision No.36 of 2007;
High Court of Tanzania at Dar es Salaam

Precission Air Services vs Masoud Roshanker; Revision No.73 of 2010; High

Court of Tanzania at Dar es Salaam

Precission Air Service vs Salvatory Kundy; Revision No.111 of 2008;

HighCourt of Tanzania-Labour Division

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Project Manager Barrick Gold Mine (Bulyanhulu) vs Adriano O.Odhiambo;
Revision No.290 of 2008, High Court of Tanzania-Labour Division at Mwanza

Rashid Khamis Mkoya vs Maltauro Spencon Stirling JV: Revision No.26 of

2009; High Court of Tanzania at Dar es Salaam

Ready Mixed Concrete (South East) Limited vs Minister of Pensions and

National Ins. (1968) 2 QB 497

Riadkit Barnabas vs BP Tanzania Ltd; Revision No.10 of 2010; High Court of

Tanzania at Dar es Salaam

Salehe Mahamburi vs Noseni Mrinda (1969) HCD 276

Salim Kitojo vs Vodacom (T) Ltd; Complaint No.4 of 2008; High Court of
Tanzania at Dar es Salaam

Security Group Tanzania vs Athuman s/o Abdallah; Revision No.260 of 2008;

High Court of Tanzania at Dar es Salaam

Security Group (T) Ltd vs Nyasa Mwasha na Wenzake; Revision No.220 of

2008; High Court of Tanzania at Dar es Salaam

Sefue Lyimo vs A.K Management& Personell Services; Revision No.230 of

2008, High Court of Tanzania-Labour Division

Stephen Milanzi vs Dr. Emmanuel Mkisi & Milka E.Mkisi; Revision No.315 of
2009, High Court of Tanzania at Dar es Salaam

Steven, Jordan and Harrison Limited vs Macdonald and Evans 1952 1 TLR
101

Tanzania Breweries Ltd vs Charles Malabona (Revision No.24 of 2007) and

Tanzania Breweries Ltd vs Henry Kilagula (Revision No.219 of 2008)
{Consolidated Ruling}: High Court of Tanzania at Mwanza

Tanzania-China Friendship Textile Co.Ltd vs Our Lady ofUsambara Sisters,

Civil Appeal No.84/2002

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Tanzania Fish Processors Ltd vs Christopher Luhangula; Civil Application
161/1994; Court of Appeal of Tanzania

Tanzania Revenue Authority vs Isack Kola; Misc. Application No.78 of 2010,

High Court of Tanzania at Dar es Salaam

Tanzania Revenue Authority vs Michael E. Mshighati ;Revision No173 of

2010; Labour Division at Dar es Salaam

Tanzania Telecommunication Company Ltds vs Justus Tihairwa; Labour

Revision No.203 of 2010 C/F Misc.Application No.58 of 2010; High Court of
Tanzania at Dar es Salaam

Tanzania Union of Industrial and Commercial Workers (TUICO) vs Attorney

General, Managing Director for Labour & Youth development, Managing
Director Tanzania-China Friendship Textiles Co. Ltd; Misc. Application No.1 of
2008

Tanzania Union of Industrial and Commercial Workers (TUICO) vs Tanzania

Tobacco Processors (Ltd); Revision No. 20 of 2008

The Coordinator of TADEPA vs Donatiana Pancrase & Revina Kiguzi; Revision

No.112 of 2008; High Court of Tanzania at Dar es Salaam

The G.M Pangea Minerals vs Migumo Mwakalasa; Labour Court Revision

No.35 of 2008

TPAWU vs RoberKorinako; Revision No.109 of 2008, High Court of Tanzania

Tarmal Industries Ltd vs Tabu Mohamed and another; Revision No.258 of

2009; High Court of Tanzania-Labour Division

Wartsila (T) Ltd vs Mwinyi Uweje and 25 others; Revision No.213 of 2008,
High Court of Tanzania –Labour Division at Dar es Salaam

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W. Stores Ltd vs George Wandiba and 2 Others; Revision No.26 of 2007; High
Court of Tanzania-Labour Division at Dar es Salaam

2000 Industries Ltd vs Rehema Juma & 6 Others; Labour Revision

No.39/2008, High Court of Tanzania-Labour Division

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 LIST OF STATUTES
Civil Services [Negotiating Machinery] Act, No.52 of 1962
Community Service Act 2002
Defence [Trade Disputes] Regulation GN No.279 of 1943
Employment and Labour Relations Act, 2004
Employment and Labour Relations (Code of Good Practice) Rules, GN.42 of
2007
English National Insurance Act of 1911(UK)
Hut and Poll Tax Ordinance 1922
House and Poll Tax Ordinance 1912
Involuntary Servitude [Abolition] Ordinance, No 13 of 1922
JUWATA Act of 1979
Labour Institutions Act, 2004
Labour Institutions (Mediation and Arbitration) Rules, GN.64 of 2007
Labour Institutions (Mediation and Arbitration Guideline) Rules, GN.67 of
2007
Master and Native Servant Ordinance, No.32 of 1923
Master and Native Servants Ordinance, No.11 of 1926
Motor Vehicle Insurance Ordinance of 1949
Native Authority Ordinance of 1926
National Defence Act, 1966
Native Tax Ordinance, 1934
National Health Insurance Fund Act of 1999
Nation Union of Tanganyika Workers [Establishment] Act No.18 of 1964
Law of the Child Act, 2009
Law of Limitation Act, 1971
Local Authorities Pension Fund Act, No. 9 of 2006
Local Authorities Provident Fund Act, No. 6 of 2000

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Trade Disputes [Arbitration and Enquiry] Ordinance, No.11 of 1947
Trade Disputes [Arbitration and Settlement] Ordinance, No.43 of 1950
Trade Union [Amendment] Ordinance, No. 51 of 1962
Trade Union Act, No. 100 of 1998
Trade Union Ordinance, No.32 of 1932
Trade Unions Ordinance, No.48 of 1956
Trade Unions [Amendment] Ordinance, No. 51 of 1962
Trade Unions [Revocation of Special Powers] Act 1962
Trade Disputes [Settlement] Act of 1962
Organization of Tanzania Trade Union Act 1991
Parastatal Pensions Fund Act 1978
Parastatal Pension Act of 2002
Permanent Labour Tribunal Act No 41 of 1967
Preventive Detention Act, No.60 of 1962
Provident Fund [Government Employees] Ordinance of 1942
Provident Fund [Local Authorities] Ordinance of 1944
Public Service Retirement Benefits Act 1999
Regulation of Wages and Terms of Employment Ordinance, No. 15 of 1951
Social Security Regulatory Authority Act, 2008
Workmen’s Compensation Act 2008

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 INTERNATIONAL CONVENTIONS
African charter on the Rights and Welfare of the Child of 1990
Forced Labour Convention, No.29 of 1930
International Convention on the Rights of the Child, 1989
ILO Convention No.177 concerning Home Work of 1996
ILO Convention on Forced Labour, No.29 of 1930
ILO Convention on Freedom of Association and Protection of the Right to
Organize, No. 87 of 1948
ILO Convention on the Right to Organize and Collective Bargaining, No. 98 of
1949
ILO Convention No. 102 of 1952
ILO Declaration on Fundamental Principles and Rights at Work and its Follow
Up of 1988
Home Workers Convention, No. 177 of 1966
Hours of Work (Commerce and Offices) Convention, No. 30 of 1930
Holidays with Pay Convention, No.52 of 1936
Holidays with Pay Convention (Revised) No.132 of 1952
Maternity Protection Convention, No.103 of 1952
Maternity Protection Convention (Revised), No.103 of 1952
Night Work Convention, No. 171 of 1990
Part time Work Convention, No. 175 of 1994
Protection of Wages Convention, No. 95 of 1949

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 LIST OF ABBREVIATIONS
AC-Appeal Cases (UK)
A.G-Attorney General
AIDS-Acquired Immune Deficiency Syndrome
ASP-Afro Shiraz Party
ATE-Association of Tanzania Employers
CBOs-Community Based Organizations
CCM-Chama Cha Mapinduzi
CMA-Commission for Mediation and Arbitration
CWT-Chama cha Walimu Tanzania
DACASA-
DBS-Defined Benefit Scheme
DCS-Defined Contributory Scheme
E.g.,-Exampla gratia
ELRA-Employment and Labour Relations Act, 2004
GEPF-Government Employees Provident Fund
GN-Government Notice
HIV-Human Immune-deficiency Virus
Ibid-ibidem
ICFTU-International Confederation of Free Trade Unions
i.e.,-idest
ILO-International Labour Organization
JUWATA-Jumuiya ya Wafanyakazi Tanzania
LAPF-Local Authorities Pension Fund
LIA-Labour Institutions Act 2004
LIMA-Labour Institutions (Mediation and Arbitration) Rules
LIMAG-Labour Institutions (Mediation and Arbitration Guidelines) Rules

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L.C-Labour Court
MAT-Medical Association of Tanzania
NHIF-National Health Insurance Fund
NSSF-National Social Security Fund
No. –Number
NUTA-National Union of Tanganyika Workers
OTTU-Organization of Tanzania Trade Union
PAYE-Pay As You Earn
PLT-Permanent Labour Tribunal
Pp. –Pages
PPF-Parastatal Pension Fund
PO-Preliminary Objection
PSPF-Public Service Pension Fund
RAAWU-Research Academic and Allied Workers Union
SADC-Southern Africa Development Community
SILABU-Sisal Labour Bureau
S(s)-Section(s)
TANU-Tanganyika African National Union
TUGHE-Tanzania Union of Government Health Employees
TFL-Tanganyika Federation of Labour
TLR-Tanzania Law Report/Times Law Report
TFTU-Tanzania Federation of Trade Union
TUICO-Tanzania Union of Industrial and Commercial Workers
TPAWU-Tanzania Plantation Workers’ Union
USD-United States Dollar
WWI & WWII-First World War & Second World War

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 TABLE OF CONTENTS

CHAPTER ONE :
HISTORICAL BACKGROUND OF LABOUR LAW IN TANZANIA 1
1.1 Emergence of Labour Laws........................................................................1
1.2 Position in Tanganyika...............................................................................3
1.3 Introduction of wage labour in Tanganyika and East Africa.......................4
1.4 Creation of Wage Labour during Colonial Period.......................................4
1.4.1 Use of forced labour:..............................................................................5
1.4.2 Taxation Method.....................................................................................7
1.4.3 Recruitment............................................................................................8
1.5 Type of Labour...........................................................................................9
1.5.1 Attested labour / recruited labour or Manamba......................................9
1.5.2 Temporary alien labour / voluntary or Non attested labour / migrant
labour............................................................................................................10
1.5.3 Resident alien labour............................................................................10
1.5.4 Non – resident alien labour...................................................................10
1.5.5 Local labour..........................................................................................11
1.6 General colonial working conditions........................................................11
1.7 Conclusion...............................................................................................11
CHAPTER TWO : THE NATURE AND FORMATION OF CONTRACTS OF
EMPLOYMENT.................................................................................................13
2.1 THE NATURE OF EMPLOYMENT CONTRACT..............................................13
2.1.1 Definition of contract of employment...................................................13
2.1.2 Distinction between a contract of service and contract for service......15
2.1.3 Determination of contract of service in Tanzania.................................19
2.2 FORMATION OF CONTRACT OF EMPLOYMENT..........................................24
2.2.1 Free Consent.........................................................................................24
2.2.2 Capacity to Contract.............................................................................28
2.2.3 Formalities............................................................................................29
2.2.4 Terms and Conditions of Employment Contract...................................31
CHAPTER THREE : FUNDAMENTAL RIGHTS AND EMPLOYMENT STANDARD. 34
3.1 Application of the ELRA...........................................................................34
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3.2 Fundamental Rights and Protection.........................................................35
3.2.1 Protection against discrimination.........................................................35
3.2.2 Protection against Forced Labour.........................................................37
3.2.3 Protection against Child Labour............................................................40
3.2.3.1 International legal framework on rights of the child..........................40
3.2.3.2 Domestic initiatives on prevention of child labour.............................42
3.2.4 Protection of the right to organize (associate)......................................45
3.3.3 EMPLOYMENT STANDARDS...................................................................49
3.3.3.1Nature of employment standards.......................................................49
3.3.3.2 THE STANDARD ON HOURS OF WORK...............................................53
3.3.3.3 STANDARD ON REMUNERATION........................................................58
3.3.3.4 STANDARD ON LEAVE........................................................................61
CHAPTER FOUR..............................................................................................69
TERMINATION OF EMPLOYMENT IN TANZANIA...............................................69
4.1 Introduction.............................................................................................69
4.2 DETERMINATION OF FAIRNESS OR UNFAIRNESS OF TERMINATION.........70
4.3 FORMS OF TERMINATION.........................................................................71
4.3.1 Lawful termination under common law................................................71
4.3.2 Constructive Termination (also known as forced resignation)..............76
4.3.3 Failure to renew a fixed term contract on similar terms where there
was reasonable expectation of renewal........................................................77
4.3.4 Failure to allow an employee to resume work after taking maternity
leave (S.36 (a)(iv) of the ELRA).....................................................................77
4.3.5 Selected re-engagement after termination of a group of employees...78
4.4 FAIRNESS OR UNFAIRNESS OF TERMINATION..........................................78
4.4.1 Fair and unfair reasons.........................................................................79
4.4.2 Termination of contract on misconduct................................................80
4.4.2.1 Nature of the envisaged misconduct.................................................80
4.4.2.2 Acts warranting termination..............................................................81
4.4.2.3 Proof of Misconduct...........................................................................81
4.4.3 Termination on incapacity....................................................................90
4.4.4 Termination related to incompatibility..................................................94
4.4.5 Termination of employment on operational requirements...................94
CHAPTER FIVE : REMEDIES FOR UNFAIR TERMINATION OF EMPLOYMENT. 102

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5.1 Introduction...........................................................................................102
5.2 Differences between re instatement, re engagement and compensation
.....................................................................................................................103
5.3 Notice of Termination............................................................................105
5.4 Terminal Benefits...................................................................................106
5.4.1 Severance pay....................................................................................107
5.4.2 Transport allowance (also known as repatriation)..............................109
CHAPTER SIX................................................................................................111
LABOUR DISPUTE SETTLEMENT PROCEDURES IN TANZANIA.......................111
6.1 The nature of labour dispute.................................................................111
5.2 Mediation...............................................................................................112
6.2.1 Definition of Mediation........................................................................112
6.2.2 General features of Mediation............................................................113
6.2.3 Circumstances under which a mediator can make decision/award....114
6.2.4 Scope of Mediation.............................................................................114
6.2.5 Referral of the dispute to the CMA.....................................................116
6.2.6 Consequences of failure to appear during mediation.........................122
6.2.7 Stages of mediation............................................................................123
6.2.8 Challenging the certificate of settlement (Settlement Order)............127
6. 3 ARBITRATION........................................................................................128
6.3.1 Definition of arbitration......................................................................128
6.3.2 Distinction between arbitration and adjudication...............................128
6.3.3 Procedure in Arbitration Proceedings.................................................129
6.3.4 Stages in Arbitration...........................................................................136
6.3.5 Time for issue of an award.................................................................143
6.3.6 Grounds for challenging an award......................................................145
6.4 COMBINED MEDIATION / ARBITRATION..................................................146
6.4.1 Procedure for properly conducting med/arb process..........................146
6.5 Adjudication...........................................................................................151
6.6 Conclusion.............................................................................................157
CHAPTER SEVEN : THE LAW OF STRIKES AND LOCKOUTS IN TANZANIA....159
7.1 Introduction...........................................................................................159
7.2 Fundamental Protections of the right to strike at international level....161
7.3 The right to strike and lockout in Tanzania............................................164

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7.3.1 Circumstances under which parties are barred from strike and lockout
.....................................................................................................................164
7.4 Procedure for engaging in a lawful strike..............................................168
7.5 Procedure for engaging in lawful lockout..............................................169
7.6 Consequence of strike...........................................................................169
7.7 Prohibited Conducts during strike and lockout......................................170
7.8 Obligation of an employer during a lawful strike or lockout..................171
CHAPTER EIGHT :SOCIAL SECURITY SCHEMES AND LABOUR WELFARE IN
TANZANIA....................................................................................................172
8.1 The nature of social security..................................................................172
8.2 The historical origins of social security..................................................177
8.2.1 Mutual Aid Practices and Norms during Communalism......................178
8.2.1.1The Communal mode of production.................................................178
8.2.1.2 Mutual Aid Practices during Class Societies:....................................180
8.2.1.3 Genesis and Development of Modern Social Security (Capitalistic
Mode of Production).....................................................................................183
8.2.1.4 Introduction of Social Security in East Africa (Tanzania).................184
8.3 Social Security Schemes for Workers’ Labour Welfare in Tanzania.......185
8.3.1 National Social Security Fund (NSSF).................................................186
8.3.1.1 Objectives of NSSF...........................................................................186
8.3.1.2 Benefit structure..............................................................................187
8.3.2 The Parastatal Pension Fund (PPF).....................................................191
8.3.3 The Local Authorities Pension Fund (LAPF).........................................194
8.3.4 Public Service Pension Fund (PSPF)....................................................196
8.3.5 Government Employees Provident Fund (GEPF).................................203
8.4 ADEQUACY OF SOCIAL SECURITY BENEFITS IN TANZANIA.....................205
CHAPTER NINE.............................................................................................212
TRADE UNIONISM AND COLLECTIVE BARGAINING.......................................212
9.1 Trade Unionism......................................................................................212
9.1.1 Trade Unionism during Pre-Colonial Era.............................................212
9.1.2 Trade Unionism during Colonial Era....................................................212
9.1.4 Trade Unionism in 1990s....................................................................223
9.1.5 Trade Unionism under the Current Labour Instruments.....................224
9.1.5.1 Right to Associate............................................................................224

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9.1.5.2 The Procedure and Conditions for Registration of Trade Unions,
Employers Associations and Federations.....................................................225
9.1.5.3 Registration Process........................................................................227
9.1.5.4 The Effect of Registration................................................................228
9.1.5.5 Amalgamation.................................................................................229
9.1.5.6 Cancellation of registration..............................................................229
9.1.5.7 Dissolution of Trade Union, Employers Association or Federation...230
9.1.5.8 Dut1es and Rights of Registered Trade Unions, Employers’
Association And Federation.........................................................................231
9.2 Collective bargaining.............................................................................235
9.2.1 The nature of collective bargaining....................................................235
9.2.2 Conditions for involving in collective bargaining................................236
9.2.3 Duty of the parties during collective bargaining.................................238
9.2.4 Conditions for a valid and binding collective agreement....................240
9.2.5 Agency shop agreements for collective bargaining purposes............241
BIBLIOGRAPHY.............................................................................................243

xxii
 CHAPTER ONE

HISTORICAL BACKGROUND OF LABOUR LAW IN TANZANIA

1.1 Emergence of Labour Laws

The development of law can be traced with the emergence of states and
itscontents depended on the material conditions existing in the society.
According to the Marxist approach, law was a result of class struggle
between people owning the means of production (the ruling class) and the
group with no means of production (the ruled class). The characteristic of law
is different from one society to another depending on the stage of
development, the conjuncture of class struggle and the historical and
cultural factors pertaining to legal consciousness as a whole. 1 This correlates
with the positive approach to law as a command of the sovereign
(government) enforced by sanctions. 2Likewise, the preachers of natural
rights, such as Thomas Hobbes, John Locke, Hugo Grotius and Montesquieu,
argue that law is a social contract between the rulers and the ruled on how
they want to be governed.3

However, the Marxist approach explains the origin of labour law in the
society. Labour law is founded on what is known as wage labour; that is,
labour offered in exchange for money. There are three conditions for
development of fully fledged wage labour, namely:
(i) There must be a considerable development of a commodity economy
as opposed to a natural economy. This means that, there should be enough
commodity production in a given community for exchange.

1
Shivji Issa G (1986) Law, State and the Working Class in Tanzania, Tanzania Publishing House, pp.1-3
2
Prof.Hart generally regards law as the positive norms (orders) promulgated by the sovereign for purposes of
ensuring peace and order in the society (refer to : Hart H.L.A (1961); The Concept of Law, Oxford University Press,
pp.18-25; also John Austin shares the same view of law being a command of the sovereign enforced through
sanctions {refer to Freeman M.D.A (2001) Lloyd’s Introduction to Jurisprudence, Seventh Edition , Sweet &
Maxwell Ltd-London, pp.207-219}
3
Freeman M.D.A (2001); Llyoyd’s Introduction to Jurisprudence, Seventh Edition, Sweet&Maxwell Ltd-London,
pp.111-118

1
(ii) There must be labour power capable of being exchanged for money or
capital. This requires having energetic people skilled, semi skilled and
unskilled that can provide labour in the establishments (industries).
(iii) There must be free labour, i.e. labour power (as a commodity) must be
free in order to be sold or exchanged in the market: free labour presupposes
that the producer is separated from his own means of production, basically
land, and the workers rely solely on labour power. 4

Looking at the above elements, it can be stated that wage labour was non-
existent in the traditional and classless societies. This is to say that during
primitive communalism there was no commodity production. People only
produced food for consumption. There was no developed group of workers
since all members of the society were equal (equality of all members) and
they shared resources including labour power equally among the members
taking into account age and gender differentiation. Likewise, none of the
societies appeared to have reached at the stage of using ‘universal
equivalent’ in their exchange, rather the system of exchange was based on
barter trade; and there was no group of middlemen or professional traders 5

The transformation from classless societies to class societies had the impact
on labour relations. This meant that there was social stratification in the
society: slave masters vs slaves, and land owners (feudal lords) against
serfs. The slaves were regarded as speaking instruments (also known as
instrumentum mutuum) and so they did not have any form of freedom to
move from one slave master to another. They formed part and parcel of
slave master’s tools of work. However, during the last stage of feudalism the
feudal lords permitted the serfs to produce for the masters and themselves
for their own consumption. Like in slavery; the serfs used to be properties of
their lords; thus no mobility of labour.

4
Shivji Issa (1986) Law, State and Working Class in Tanzania, p.5
5
Ibid p.6

2
At the beginning of capitalism, there was the transformation of the economy
that necessitated change of the system. There developed a bourgeoisie class
which made several struggles to limit the powers enjoyed by the King
leading to political revolutions, which together with other factors such as
agrarian revolution, industrial revolution, increased urbanization, there grew
a demand for workers in the industries. So, there was now freedom to
contract, the concepts which had the objective of liberalizing the serfs to
freedom of mobility. Other concepts like rule of law, separation of power
came into operation.

The coming of industrial revolution had adverse effects on freedom to

contract, like staying propertiless. The labourers were subjected to the
conditions that were harsh and intolerable, causing the intervention of the
state to assist the workers, marking the beginning of pieces of labour
legislations.

1.2 Position in Tanganyika

Pre-colonial Tanganyika marked several developments on commodity
exchange but it is doubted if there was free labour. According to Shivji,
commodity exchange in Tanganyika was reflected in two ways:
(i) Exchange of surplus agricultural products, which were common
in areas conducive for agricultural production (natural rain or
irrigation) e.g., Kilombero, Rufiji Valleys and so forth
(ii) Based on the exchange of specialized crafts and mineral
products, possible in areas where mining could be done, e.g.
Ufipa, Karagwe, Nyamwezi, and other societies which were iron
smiths / black smiths.6

Thus, there was commodity exchange in Tanganyika even before the long
distance trade, but the exchange was still at elementary stage involving
small amount or volume of products. Commodity exchange developed
6
Ibid p.6

3
because almost all Tanganyika’s societies involved in commodity exchange
at this time were at the stage of production of use values. It was the supplies
of these use values which were exchanged.

None of the societies had reached the stage of using a universal equivalent
(money) in their exchanges; therefore the system of exchange was
essentially based on barter trade. Furthermore, none of the societies seemed
to have developed specialized groups of middlemen (professional) traders:
Consequently, the development of labour power as a commodity was hardly
known in pre-colonial Tanganyika.7

1.3 Introduction of wage labour in Tanganyika and East Africa

Wage labour began with the coastal/Zanzibar based long distance trade
which was carried out by Arabs and a few Indians. During this time, the
exchange of commodities was expanded to include items like ivory, slaves
and guns. The common form of employment was Porterage (hired for
purpose of carrying goods from the coast to mainland and from mainland to
Zanzibar). These were employed by caravan traders who usually paid them
in kind, not in terms of money. Employment was on temporary basis;
normally between one and three months, then they returned to their home
places.8

1.4 Creation of Wage Labour during Colonial Period

The creation of wage labour and its integration into the world system began
through colonialism starting with the Germans. Generally, three means were
used by the colonial masters to separate the producer from his means of
production and force him to work for money (capital) namely: forced labour,
taxation and recruitment.9 These methods were employed in order to realize
the capitalist’s demands which included: seeking for areas of investment,

7
Ibid p.6
8
Ibid p.7
9
Ibid p.7

4
export of capital, raw materials and cheap labour. These three methods
were employed in the following circumstances:

1.4.1 Use of forced labour:

Forced labour refers to direct use of force in the form of slavery whereby one
was forced to work in colonial plantations. This method was mostly used by
the Germans (and partly by the British) before the abolition of slavery and
slave trade. Throughout the German colonial period use of slaves was
promoted and slaves were listed to work in public private undertakings until
1922 when slavery was formerly abolished by the British through Involuntary
Servitude (Abolition) Ordinance No. 13 of 1922. Furthermore, the Germans
used to require a number of villages to provide the settler with a fixed
quarter of workers every day.10

On the other hand, the British used communal labour as another form of
forced labour, which involved the acquisition of labour of the villages for a
definite period once or twice a year. This method was formerly recognized in
1926 by the enactment of the Native Authority Ordinance of 1926. Under S.8
of this Ordinance, thousands of people were employed to work for between
ten and twenty days per year and in most cases they were not remunerated
in monetary terms except local brews and meat.11

Furthermore, the British applied the tribal turn-outs, as another form of

forced labour, which involved the calling by Provincial Commissioners of
people to come to work for anything between ten and twenty days in a year
on such works as the Provincial Commissioner would specify particularly road
construction, clearing of bushes, construction of dams, wells and contour
banks.

10
Ibid p.7
11
Ibid p.8

5
Apart from the use of tribal turn outs, the British resorted to use of tax
defaulters as a form of forced labour. Every native was liable to pay tax (hut
and poll tax, and later house tax) otherwise one could discharge his
obligation by providing the equivalent amount of labour on any government
undertaking or any essential public work and services authorized by the
government. This source of wage labour was contrary to the ILO Convention
on Forced Labour 1930.12 However, it was justified by the British on the
ground that the primitive conditions existing in the then Tanganyika forced
the British to resolve to these means. Between 1933 and 1942 there was an
average of about 25,000 tax defaulters whose labour power was used in lieu
of paying tax.

Furthermore, conscription was applied during the Second World War. A

native authority or provincial commissioner of a native authority was
empowered under Ss.8 (i) and 11 of the Native Authorities Ordinance 1926,
to require a native to engage in paid labour for ‘essential public works and
services’ for a period of not longer than sixty days per year. Much of the
labour requisition under this law was used for porterage to carry loads of
administrative officials/officers, tax money and so forth, since road transport
was almost nonexistent. In most areas head transport was the common
form of transportation. In 1927 alone about 15,000 people were
requisitioned; but the numbers fell somewhat during the 1940s to an annual
average of some 9,000. These were paid low wages between 30 to 50 cents
a day. This method was also employed in conscription of army, occasional
repairs of road, bush clearing and so forth. 13

Important sector relating to cultivation of sisal, rubber and food stuffs did
accelerate the rate of conscription to work because the products were highly
demanded in the United Kingdom. For example, in the sisal industry
conscripted labour constituted over 10 percent by 1944; in the case of

12
Ibid p.8
13
Ibid p.9-10

6
rubber over 35 per cent were conscripted; and in the food stuffs the
respective figures rated around 25 per cent. 14However, native people who
were not used to harsh conditions of work protested against the practices, as
a result many of the employees who defaulted were subjected to penal
sanctions including imprisonment, fine and death.

It has been pointed out above that forced labour was used to ensure that the
capitalistic demands that led to the scramble and partition for Africa through
Berlin Conference of 1884 were realized. It helped much in the construction
of the colonial infrastructure, the cost of which was met by the colonized
people.

1.4.2 Taxation Method

This was another mechanism used by colonialists for creation of wage
labour. It started with Germans as early as 1898 when the Germans imposed
a generalized system of taxation. The system was formalized in 1912 when
the House and Poll Tax Ordinance of 1912 was enacted. Under this
Ordinance, the hut and poll tax would be collected from natives; it forced the
people to enter into wage labour to obtain money for paying tax. Those who
failed were consequently forced to work on public under takings.

The British inherited this tax and developed it further by introducing a tax
known as Hut and Poll Tax Ordinance of 1922. Under it every owner and
occupier of a hut was jointly and severally liable to pay a tax to the King as
prescribed by the Governor from time to time. Where a person had more
than one wife housed in the same hut, he had to pay the additional tax for
each wife after the first tax known as principal wife taxation. Where a person
did not own a hut, he had to pay tax for his mere existence known as Poll or
Head Tax. Taxes were payable by every male member of the age of 16 and
above, regardless of whether he had income. The hut and poll tax had three
characteristics, namely: it applied only to indigenous population; exemptions

14
Ibid

7
of certain categories of people in the definition of native, mainly: military and
police personnel, the Chiefs Liwalis and Jumbes (agents of colonial masters),
disabled or destitute persons, exemptions of certain huts situated; and
finally, both the hut and poll tax were fixed without regard to the value of the
hut or income of a person.15

The taxes imposed by this Ordinance did not intend to get direct revenue of
the colonial state rather they were used at exacting / extracting labour from
the native. Thus, taxation forced natives to use the following methods:
(i) Grow cash crops, sell and pay the tax
(ii) Enter into wage labour earn money and pay the taxes.
(iii) As tax defaulters, they would be required to provide labour in
public private undertakings.

The Hut and Poll Tax Ordinance was repealed in 1934 by the Native Tax
Ordinance 1934. The new law retained the Hut and Poll taxes, only that the
age of payment of these taxes was raised to 18 years.

1.4.3 Recruitment
This was a process of obtaining labour by an employer, his agent or
professional person so as to obtain labour power that was not found at the
place of work. The shortage and irregular supply of labour compelled the
employers to resort to this mechanism. Recruitment started by Germans in
1905. It was regularized on 1909 when an Ordinance on recruitment was
passed. It was later succeeded by a 1913 Ordinance which legalized
recruitment by professional recruiters who were required to be licensed
before they engaged in recruitment.16

Recruitment was recognized by the British who legalized it through the

passage of the Master and Native Servants Ordinance of 1932 and the
regulations made thereunder. Under the British recruitment system,

15
Ibid p.12
16
Ibid p.13

8
recruitment was done by three agents: Private Professional Recruiters,
Agents of Employer and by employer himself. The former charged fees and
they were interested in making profits. They were expected to recruit
labourers through voluntary arrangements, but deception and coercion were
used. For example, the Usukuma Labour Agency, owned by two Englishmen:
T.H.Henry and M.G Rees, which usually operated in Bukoba area recruiting
labourers from Rwanda and Burundi. There was also the Sisal Labour Bureau
(SILABU) owned by the Tanganyika Sisal Growers Association. Furthermore,
the German colonial government created employment centres and labour
reserves across the territory depending on the type of economic activity in a
particular place. These centres were: the Northern Province (constituting
Arusha, Moshi, and Mbulu); Eastern Province (Dar es Salaam, Morogoro and
Kilosa); and Southern Province (Lindi and Mikindani). 17 The employees
recruited were transported to the places of production (agricultural, mining
and industrial sector).

1.5 Type of Labour

The persons recruited were employed on different terms and conditions.
Thus, there were different forms of labour during the colonial period as
follows:

1.5.1Attested labour / recruited labour or Manamba

An employee was recognized by a number and not the name of a person.
This referred to those employees recruited from labour reserves by
professional recruiters and transported to the places of employment. Their
terms of employment were governed by ss. 3, 4,8,11 and 12 of the Master
and Native Servant Ordinance. Their contracts of service were defined as
contract of service to be performed within the territory but outside the
district in which the servant is engaged. The contract was not binding on the
servant unless it was in writing, signed by the parties and attested by an
administrative officer who was required to read over and explain the contract

17
Ibid p.15

9
to the worker who was illiterate. Contracts by attested labour were generally
known as written contracts. These contracts also used to specify the
maximum number of working days and year, then the employee would be
given a piece of paper (kipande) in which entries would be made for each
day that the employee worked.18

1.5.2 Temporary alien labour / voluntary or Non attested labour /

migrant labour
This type of labour comprised workers who left their own homes voluntarily
to find money to pay taxes. They came to the plantations without their
families and resided within the vicinity or neighborhood of the plantations;
others lived in camps of farms. Their contracts were known as oral contracts
of service, i.e. contracts within the district of employment where the
specified number of working days did not exceed thirty days. The employer
was obliged to give them a labour card upon which he was required to enter
particulars of the servant such as name, address, nature of employment,
rate of remuneration, and a notification of each day upon which a day’s work
was performed by the servant. It was a criminal offence for an employee to
absent himself from employment for six consecutive days without
reasonable excuse or consent of the employer.19

1.5.3 Resident alien labour

These were migrant labourers who settled in estates. They formed the
nucleus of permanent labour. They were restricted from outside the district
in which they were employed. Their residence on the estates was restricted
by the limited availability of land on the estates for cultivation to supplement
low wages. Some of these provided semi-skilled services and white collar
service; such workers included mechanics, drivers, clerks and headmen. 20

18
Ibid p.21
19
Ibid p.22-23
20
Ibid p.23

10
1.5.4 Non – resident alien labour
This refers to natives who came from far and settled in the villages on the
vicinity of the employment areas. These had no land for cultivation to
supplement the low wages. This was the most used form of labour in Tanga
Province.21

1.5.5 Local labour

These were indigenous or local people within the vicinity of the employment
areas or plantations. They resided in their own homes and worked generally
as casual workers / employees. These worked temporarily in farms or
plantations for particular cash needs but whose main means of sustenance
was their own land.22

1.6 General colonial working conditions

The working conditions in the colonial economy were harsh and exploitative
in nature. This was accelerated by the motives of the colonialists to get
super profits from colonial Africa. Workers were paid low wages (bachelor
wages). For example, by 1935, workers in Tanga plantations were being paid
monthly wage of Shs.7.80; wages in infrastructure ranged between shs.17-
27 per month (1928) and shs.9-21 per month (1937); wages in mining sector
hardly exceeded shs.20 per month. Such meager wages could hardly sustain
the family needs. Furthermore, workers used to work for long hours leading
to starvation and death. Housing and health facilities were equally poor.
Likewise, the other conditions of work such as flogging, accidents at work,
child and female labour, did affect the labour relations at the time. 23 All the
above had an impact on the struggles for better working conditions.

1.7 Conclusion
It can be concluded that the labour force during this period was employed on
temporary basis only except the semi-skilled white collar workers. The wage

21
Ibid p.23
22
Ibid p.24
23
Ibid p.42-75

11
labourers were not completely separated from their means of production
(land). Basically they were semi-proletarians depending partly on wage
labour and partly on land. Thus, at that moment there was no class of
employees but servants whose relationship with the master was regulated by
the Master and Native Servant Ordinance. Permanent wage labour especially
of white collar type was excluded from its coverage.

Later on attempts were made to pass a new law known as the Manual
Workers (Employment Bill) which would have separated permanent from
impermanent labour force. However, this law never came into force because
of emergence of the WWII. During the Second World War and the period
immediately after the war, the Tanganyika economy was highly transformed
punctually through agricultural and industrial sector. In the industrial sector,
non processing industries were established to process the agricultural
products which were now in high demand in the UK. These developments
resulted in an increasing number of persons engaged in permanent wage
labour. Consequently, the Master and Native Servant Ordinance was
rendered ineffective.

In 1949 the process of drafting the Employment Ordinance began and took
three years. Another three years were spent in circulating the draft to
interested parties to comment on. In 1955, Employment Ordinance was
passed. It came into force on 1st February, 1957. This law was meant to
regulate employment relations between employer and employees engaged
on permanent basis although there were still some provisions that were
similar to the old ordinance.

12
 CHAPTER TWO
THE NATURE AND FORMATION OF CONTRACTS OF EMPLOYMENT

2.1 The nature of employment contract

2.1.1 Definition of contract of employment
The employment contract comes into existence when the parties to the
contract namely, employer and employee conclude, an agreement that
conforms to the requirements of a contract of service. In other words, a
contract is said to be of service where the parties’ intention is to make one
person a master and the other a servant. Generally, the terms ‘contract of
employment’ and ‘contract of service’ are used interchangeably and they
refer to the same set of facts. To properly understand an employment
contract, it’s essential to distinguish a contract of service from a contract for
service. This is due to the fact that rules governing relationship between the
parties in a contract of service are different from those of contract for
service, particularly on the following issues:
 Employer’s liability or vicarious liability for the acts of servants
(also known as imputed negligence): This is legal liability that is
based upon a relationship rather than upon conduct. It arises when
some relationship exists between A and B, so that courts will impose
liability upon A, if through negligence, B injures C, a person to whom B
owes a duty of care. It is a tort doctrine that imposes responsibility
upon, one person for the failure of another, with whom the person has
a special relationship (e.g. parent and child, employer and employee,
owner of a vehicle and driver) to exercise such care as a reasonably
prudent person would use under similar circumstances. In like
manner, the employer owes a duty of care to an employee injured in
the course of employment, unless reasonable care was taken by the

13
 employer to prevent the risk but the employee voluntarily assumed the
risk through contributory negligence.24

The tort doctrine assigns liability for an injury to a person who did not
cause the injury but who has a particular legal relationship to the
person who did act negligently. An employer is almost always held
liable for the negligence of its employee when the employee’s
negligent act or omission occurred within the scope of employment. 25
The employee is held to be an agent of the employer. The foundation
of this liability is a doctrine of respondeat superior - let the superior or
master respond for the wrong that was done. Under this doctrine lies
an enterprise theory – since the employer stands to gain and profit
from the employee’s acts in serving the employer, so he should bear
the loss.
 Social security reasons: An employer has a responsibility for social
security of his employee in contract of service. This is a compulsory or
mandatory requirement on the employer, who is registered in any
social security scheme in a country providing for pension and other
incidental benefits such as invalidity benefits, maternity benefits,
sickness benefits, death benefits, withdrawal benefits and so forth as
per specific law. The aim of social security schemes is to protect the
income of an employee in case one faces a contingent event. This
requirement does not arise or attach on contracts for service.
 Safety of the workers: Safety provisions of the workers are binding
in a contract of service. The legislation relating to safety of workers is
highly binding to the employer, whose duty is to ensure that the
workplace is safe for purposes of protecting the lives of employees. 26
This means that it is an obligation on the employer to provide safety
tools or devices to workers and that if an employee sustains injury in
24
Mark Lunney and Ken Oliphant (2008) Tort Law: Text and Materials, 3 rd Editions, Oxford University Press,
London; pp.540-546
25
Jefferson M (2000); The Principles of Employment Law, 4th Edition, London p.58
26
Ibid p.57

14
 the course of employment, then the employer will be liable for
treatment and other consequences as enshrined under the Workmen’s
Compensation Act 2008.
 Statutory benefits:These are usually attached to employees rather
to independent contractors, such as statutory maternity pay, unfair
termination remedies (statutory compensation for unfair dismissals),
and paid sick leave. Likewise, employees are preferential creditors on
the bankruptcy of their employers.27

2.1.2 Distinction between a contract of service and contract for

service
At common law a contract of service is defined as the contract between two
persons, master/employer and servant/employee, for the letting or hiring of
employee’s services for rewards, the master being able to supervise and
control the servant’s works. According to this definition, a contract of service
has the following things:
i) Existence of two persons: employer/master and
worker/employee
ii) Contract is for the letting and hiring of services of employee
iii) The hiring should be for reward (consideration for work done)
iv) Employer should be able to supervise and control the employee

The law in Tanzania does not seem to define what a contract of service is;
but rather it defines the terms employer and employee. Since under S.2 (3)
of the Judicature and Application of Laws (JALA), the courts in Tanzania have
been empowered to apply the doctrines of equity and common law so far as
the circumstance permit and since Tanzania applies common law in case
there is a gap or lacuna in the law, thus the common law position applies
may be reliedupon.

27
Ibid p.58-59

15
The courts in England devised some tools or tests to be applied when
determining the differences between a contract of service and contract for
service; and such tests developed as a result of complexity of the matter.
Generally, there are three tests that were developed by the courts in
England to be used in determining whether a contract in a given scenario or
circumstance, is that of service or for service. Such tests include the
following:

(a) The control test

This is based on the principle of vicarious liability of the employer. It
emphasizes the element of control exercised by employer over employee. In
a contract of service, the employee is subject to the control of the employer
in the sense that the employer has the right to prescribe not only what work
has to be done but also the manner in which that work has to be done. 28A
contract of service does operate under the circumstance that parties deal
with each other at arm’s length, i.e. no one is inferior to the other.

One of the early cases on this test is that of Gould vs Minister of National
Insurance29where an issue was raised as to whether a performing artist
should pay national insurance contributions as an employee or self employed
person. The performer had agreed to perform for one week on a standard
contract which required him to attend rehearsals, to abide by all
management rules including refraining from using inappropriate gestures
and language, and to accept management instructions. In this case, the
determining factor was the degree of control. The judge concluded that the
management had no control over an artist’s performance and that they were
only eligible to enforce rules that would harm the audience and not affect the
working of the theater. The court held that the artist’s performance
depended on the skill, personality and creativity of the performer; and thus,
the contract was that for service.

28
Yewens vs Noakes (1880) 6 QBD530
29
(1951) 1 KB 731//(1951) 1 All ER 368

16
There was an attempt to update the control test through what a court called
a right to control as discussed in the case of Mersey Docks and Harbour
Board vs Coggins & Griffith (Liverpool) Ltd.30Furthermore,inthe case of
Steven, Jordan and Harrison Limited vs Macdonald and Evans 31, Lord Denning
summarized the distinction between a contract for service and of service in
this way:
“...In the one case master can order or require what is to be done,
while in the other case he can’t only order what is to be done but how
it shall be done.”
However, the control test was inefficient to explain the relationship between
the parties since it did not necessarily apply to every circumstance,
particularly when dealing with professionals in which case one can determine
what to be done but not how the same should be done. Lord Denning in the
case of Cassidy vs Minister of Health32observed that the test did not
adequately deal with skilled workers such as surgeons; and that hospitals
would be liable for the act or omissions of the surgeons regardless of
whether the surgeon was employed or self employed.

Generally, the failure of the control test was induced by the emergence of
highly skilled employees who are given an electively free hand when
performing their work, e.g., doctors, nurses, pilots, lawyers, etc; whereby
each employment contains inherent discretion with which the employee may
act. That area may be so wide that there is little chance of the employee
stopping outside of it so as to encounter the reality of control.

(b) Organization / Integration Test

This test emphasizes on whether the employee is part of the organization or
business in which he works for. If it is established that one is part of the
organization, then his contract is that of service. This can be established by
looking at whether the employer stands to benefit or lose as a result of
30
(1947)AC 1; (1946) 2 All ER 345
31
(1952) 1 TLR 101
32
(1951) 2 KB 343

17
workers’ service. The test takes into account the fact that the more skills
required from a worker, the less control is in determining whether one works
under a contract of service. In the case of Stevenson, Jordan and Harrison vs
Macdonald and Evans33,Lord Denning observed that under a contract of
service a worker is employed as part of the organization and more widely
integrated within the business. This decision was a result of the dispute
between two publishing companies where the author’s employers sued for
the copyright of educational text produced by the employee. They claimed
that the text was not produced within the organization and thus did not
belong to the employer. The Court of Appeal held that the material was not
produced internally. This test does not explain what is meant by organization
or integration since not every person in the organization can be said to be
working under a contract of service. For example, a cleaner in the office
seems to be working as private person, but he or she may either be
considered as an employee or an individual contractor. Thus, there was a
need to develop a more comprehensive test to address the contending
issues.

(c) Multiple Factor Test/Economic Reality Test

This is the latest test to be developed when courts recognized that no one
test could be exhaustive and self-explanatory to come to a conclusion that a
contract is of service. This is a modern approach which seeks to consider all
the factors, give weight to each of them and put them into a pan; if the
balance of the pan tips towards employment, the worker is an employee, and
if not, then one is an independent contractor. 34

Here, the court in considering whether a particular relationship is one of

employment, view the relationship as a whole and a conclusion is developed
therefrom. It was developed in the case ofReady Mixed Concrete (South
East) Limited vs Minister of Pensions and National Ins. 35,where the court
33
(1952) 1 TLR 101
34
Jefferson M (2000) : Principles of Employment Law, op.cit., at p.59
35
(1968) 2 QB 497

18
observed that a contract of service exists if the following questions are
answered in the affirmative:
a) The servant agrees that in consideration of the wage or
other remuneration, he would provide his own work and skill in
the performance of some services for his master.
b) He agrees expressly or impliedly that in the performance of
that service, he will be subject to the other’s control in a
coefficient degree to make that other master.
c) The other provisions of the contract should be consistent
with it being a contract of service. These provisions of the
contract include:
ii) Employers right to select who will do the work
(i.e., discretion to hire)
iii) Power to terminate, dismiss or sustain the
employee.
iv) The employee’s obligation to work for a given
time and hours.
v) Whether the employer provides the employee
with tools, equipment and office space.
vi) Whether the employer has the right to transfer
the employee as he deems fit.

2.1.3 Determination of contract of service in Tanzania

It can be rightly argued that under the laws in Tanzania there is no definition
of a contract of service, but such definition can be obtained if a person is
able to identify that in a given circumstance one is a worker and not
independent contractor. This means that once it is established that one is an
employee, then it goes without saying that such a contract is of service. The
Employment and Labour Relations Act 2004 and Labour Institutions Act 2004
do provide definitions as to who an employee is, but none of the definition is

19
sufficient to explain the relationship. This is because of the following global
reasons:
 The modern work practices have rendered the conventional definition
of employee based on the common law concept of employment almost
out dated since it is based on the notion that an employee must be on
permanent basis and employed by one employer only, which is not the
case under the current situation.
 Due to modern work practices an increasing number of workers are
now being employed in non-standard contracts of employment. They
are now being employed in what are known as atypical contracts of
employment such as part time contracts, seasonal contracts, home
based contract and temporary contracts, which in most cases are
rarely protected by the labour legislation as they seem to be contracts
for service.
 Due to high competition, organization of work and production
processes has now changed. International markets, business and
governments in both developed and developing countries have
decentralized production done by sub-contracting or transferring non-
core activities to smaller firms or home-based workers. Workers in
these flexible working arrangements are generally paid low wages and
receive few or no benefits, and in most cases they are excluded from
social security funds.

The International Labour Organization (ILO) made several approaches in

respect to the above problems. Several conventions were developed with a
view of extending protection to categories of people working under the
above circumstances, namely:
(i) The Part time Work Convention of 1994 (Convention Number
175).36This Convention requires ratifying countries to extend the
employment standards to part time workers on proportional or pro rata basis

36
It entered into force on 28th February 1998

20
e.g., if a full time employee is entitled to 28 days of annual leave, a part-time
work who works for four months should equally be entitled to annual leave
on pro ratabasis. It defined a part time worker as an employed person whose
normal hours of work are less than those of comparable full time workers (a
person who has the same type of employment relationship; is engaged in the
same or a similar type of work or occupation). 37 The Convention extends
fundamental rights to part time workers such as:
 organizational right, occupational safety and health, discrimination in
employment and occupation38
 fair remuneration calculated proportionately on an hourly,
performance-related or piece-rate basis, i.e., not be less than that of
comparable full time workers39
 social security protection measures40
 maternity protection (which is mandatory); protection against unfair
termination; paid annual leave and paid public holidays; and sick
leave.41

The member states are duty bound to determine measures including legal
and policy reviews so as to facilitate access to productive and freely chosen-
part time work which meets the needs of both the employers and
employees, without infringing the provisions on fundamental rights
mentioned above.42

(ii) The Home Workers Convention of 1996 – Convention Number

17743
The term ‘home work’ is defined to mean work carried out by a person, to be
referred to as a home worker:

37
Article 1 of Convention No.175 of 1994
38
Article 4 ibid
39
Article 5 ibid
40
Article 6 ibid
41
Article 7 ibid
42
Article 8,9 and 10 ibid
43
It entered into force on 22 April 2000

21
 (a) in his or her home or in other premises of his or her choice, other than
the workplace of the employer;
(b)for remuneration;
(c) which results in a product or service as specified by the employer,
irrespective of who provides the equipment, materials or other inputs
used, unless this person has a degree of autonomy and of economic
independence necessary to be considered an independent worker
under national laws, regulations or court decisions 44

Similarly, this convention required state parties to promote equality of

treatment between home workers and other wage earners, taking into
account features of homework and the conditions applicable to similar type
of work carried out in an enterprise. Specifically, the state shall promote:
 right to join and form associations of their own; and participate in the
activities of such organizations
 protection against discrimination in employment and occupation
 protection in the field of occupational safety and health
 remuneration
 statutory social security protection, and access to training
 minimum age for admission to employment or work
 maternity protection45

The state parties are obliged to take appropriate measures to ensure that
labour statistics include homework, and shall adopt systems of inspection to
ensure compliance with the laws and regulations applicable to home work;
and adopt adequate remedies in form of penalties for contravention of the
laws46

In Southern African Development Community (SADC) countries, of which

Tanzania is a member, labour legislations were enacted with the object of
44
Article 1 (a) of Convention No.177
45
Article 4 ibid
46
Articles 7 and 9 ibid

22
protecting atypical contract employees by giving broader definition of who
an employee is; creating new definitions to cover what are called dependant
workers/home based workers; specifying the factors that the court should
take into account to determine who on employee is; and by incorporating
prescription that assist workers to establish their status as employees.

Tanzania in particular adopted the two laws: Employment and Labour

Relations Act (ELRA) 2004 and the Labour Institutions Act (LIA) 2004, which
seek to provide basis for the protection of workers in both formal and
informal sectors. Section 4 of the ELRA defines an employee as:
i) Any individual who has entered into a contract of employment.
ii) Has entered into any other contracts under which:
 the individual undertakes to work personally for the other
party to the contract
 The other party is not a client or customer of any
profession, business or undertaking carried out by the
individual.
iii) A person who is deemed to be an employee by the minister
under s. 98(3) of the ELRA.

The above definition does not offer reasonable guide for one to determine his
or her status against the master, because there is no definition of the
contract of employment. However, this gap in the definition is cured through
S. 98 (3) of the ELRA which empowers the minister for labour matters after
consultation with the Labour, Economic and Social Council (LESCO) to deem
or declare any category of persons to be employees for the purposes of the
Act. This is meant to accord protection to persons working in such conditions
that it is more appropriate in law to deem them to be employees.

On the other hand, the law has accommodated the common law doctrines on
the determination of contract of service in what the law has called
“presumption of an employee”. Section 61 of the Labour Institutions Act

23
2004, which provides that a person who works for, or renders services to,
any other person is presumed, until the contrary is proved, to be an
employee regardless of the form of contract if any one or more of the
following factors is present:
(i) The manner in which he works is within the control of another
person.
(ii) If the person hours of work are subject to the control or direction of
the other.
(iii) In case of person working for an organization, the person is a part of
an organization.
(iv) In case a person worked for the other for on average of 45 hours per
month over at least past three months.
(v) The person is economically dependent on the other person for
whom that person works or renders services.
(vi) The person is provided with tools or equipments by the other.
(vii) The person only works for or rendered services to one person.

2.2 Formation of contract of employment

An employment contract is just like any other contracts. It is required to
conform to all requirements of an ordinary contract such as free consent,
consideration, intention to create legal obligations, and capacity to contract.
Furthermore, obligation duties created by the contract must be lawful,
capable of performance and it must comply with the formalities by law.
Thus, an employment contract is partly governed by the Law of Contract Act,
in the sense that the essential elements of a binding contract should be
followed. But, since employment contract consists of an employee as a part
to it, then the specific law on labour relations should also be complied as
well. The employment law usually covers fundamental protections,
employment standards and specific provisions on the discharge of the
employment contract (termination of contract and dispute settlement

24
procedures). The following things exhibit issues which should be taken into
account when a contract of employment is being concluded.

2.2.1 Free Consent

The general principle of contract is that for a person to be bound by the
terms of the contract there should be free consent of all the parties. This
depends on the disclosure of the information during the negotiation process
and the relationship between the parties. A person’s free consent may be
vitiated by such factors as misrepresentation, duress, undue influence, and
mistake; which affects the enforceability of the contract, either by making it
void or voidable.47 In other words, the contract can be avoided by the
innocent party. In the context of employment, free consent may be
associated with the right against forced labour. According to s.6 of the ELRA,
forced labour includes bonded labour or any work exacted from a person
under the threat of a penalty and to which that person has not consented.
Any person who violates the provision on forced labour commits an offence,
and he may be liable for a fine not exceeding five million shillings,
imprisonment for a term of one year, or both fine and imprisonment 48

The factors which vitiate consent as underlined in the Law of Contract Act
apply mutatis mutandis to employment contract. For instance, assume an
employer recruits a person on the terms that he would be hired as a
marketing officer in Mwanza at a consideration of USD1000; upon arriving at
the workplace, one is informed that he was hired as head of security
department with pay of USD 500 per month. Such person (employee) can
avoid the contract on the basis that the employer misrepresented the facts
as to the job title and the wage. Generally, the job advertisement overrides
the employer’s attempt to substitute different terms unilaterally; hence the
employer will be bound, although advertisement may not necessarily be an
offer. 49

47
Beatson J (2002) Anso’s Law of Contract, 28th Edition, Oxford University Press, London; pp.236-354
48
Refer to s.102(2) of the ELRA
49
Jefferson M (2000) The Principles of Employment Law, 4th Edition, London p.83-84

25
Recruitment and selection procedures: base for free consent
Normally, a person aspiring to be an employee makes a decision to take a
post or responsibility through recruitment and selection procedures. The
facts which form the base for application of a job and finally being selected
usually are disclosed during these processes. The employers in both private
and public sectors are required by the law to procure an open recruitment
and selection. The term recruitment refers to the process of attracting the
best candidates for various career posts at different levels or it is a search to
obtain potential job candidates from numerous applicants for filling in the
created vacancies at the right time from the right places (Nickels et al,
1999); whereas selection refers to the process of predicting or identifying
legible candidates who can make appropriate impact to the industry, through
conducting interviews basing on the merit of the applicant (both personal
and professional qualifications, including the experience) as prescribed by
the proper authority (Anderson, 1994)

However, these two processes may differ depending on whether a particular

employer is the government or a private investor. Recruitment and selection
functions in the public services are purely dictated by the government
through national policies and employment laws, whereby the qualifications of
the job applicants (nominees) are pre-determined by the organ mandated to
do the recruitment. According to Gladden, the civil service in most countries
is required to be impartially selected, administratively competent, politically
neutral and imbued with the spirit of service to the community. The civil
service is the major facilitator for implementation of the will of the state as
expressed through public policy, and therefore the civil servant should not
be a political or judicial office holder and his/her remuneration should be
solely paid out of government funds.

On the other hand, recruitment and selection functions in the private sector
are highly determined by the organizational demands and the constitutive

26
documents. Normally, each organization is constituted by its memorandum
of association and articles of association (corporate entities) or the
constitution, which stipulate the guidelines and rules to be observed by the
organization’s recruitment authority. The power to recruit and select the
labour power is usually vested in the superior authority (Chief Executive
Officer or Board of Directors), who are obliged to recruit highly qualified
people who are placed in the areas where they are competent.

Moreover, the employers in both public and private sectors are obliged to
observe certain fundamental principles during recruitment and selection
processes. The employer is obliged to ensure equal treatment of the people,
male or female, and thus discourage discrimination, which in most cases is a
criminal offence. The principle of equality of all people is regarded as an
international norm which has been incorporated in the constitution, and
therefore binds all the people. According to Suzan and Schuler (2000),
effective recruitment and selection in the organization which begins during
the strategic planning process for determination of the organization’s short
and long term human resource needs, and ends with the selection of
candidates, should comply with the fundamental legal principles. Similarly,
Mullins (2005) shares the same view that recruitment and selection can be
conducted properly if the provisions of the law are adhered to by the
decision making organ or appointing authority.

In any case, there are stages required to be complied with by the employers
during recruitment and selection procedures, namely: advertisement of the
vacancy, short listing of candidates, interviewing and selection. In the civil
service, for the posts below officer grade (excluding those for which the
president is the appointing authority), the law clearly lays down the
procedure to be followed, inter alia; public advertisement of the vacant posts
and that the selection of candidates is based on merits through open

27
competition by interview 50
.A similar procedure is provided for under the
Public Service Standing Orders which provide that the selection of candidates
shall be based on merits and experience, and that the applications for the
posts shall be invited by the public advertisement. 51

Furthermore, it is a requirement on the employer to ensure that all people

(applicants and then employees) are treated with respect in a way that
guarantees human rights; hence, the employer is duty bound to promote
equality of all the people by discouraging discrimination on any grounds such
as race, gender, religion, tribalism or any other ground contrary to law. 52

Thus, if the employer conducts this process accordingly and he discloses

certain information that becomes the basis for making decision by the
employee, when he knows that it is not true or does any act so as to obtain
the consent of the employee; such employer may be liable for breach of
contract.

Note: Once the employment contract has commenced, the employer and
employee should always reach a mutual agreement as to tasks to be done;
although the extent of consent needed does not override the power of the
master over the employee. It is the duty of the employer to allocate or
determine what is to be done and how it should be done, so the employee
cannot refuse to work as directed by the employer on the pretext that he or
she does not agree.Doing so, would mean disobedience or failure to execute
lawful orders, which is a ground for termination of employment (misconduct
or incompatibility)

50
Refer to Rules 11 and 12 of the Public Service Regulations, 2003; also S.6A(2) of the Public Service (Amendment)
Act, No.18 of 2007 read together with rule 12(2) of the Public Service Regulations of 2003
51
Refer to Sections D.5(c), D.6 (b) and D.7 (a-e) of the Public Service Standing Orders, 1994
52
S.7 of the ELRA requires the employer to register the employment policy showing the employer deliberations on
elimination of discrimination in employment practice starting with the recruitment and selection practices.

28
2.2.2 Capacity to Contract
Section 11 of the Law of Contract Act provides that a person of tender age
(minor) and a person of unsound mind are incapable of entering into a
binding contract, the consequence of which makes the contract void.
Generally, an infant (a child below 18 years) is bound by an employment
contract if overall it is for his benefit. 53For instance, a boy of 15 years can
agree to serve at a stipulate wage as a trainee chef with expectation that he
will be able to use his training and skill in future.

Likewise, s.5 of Employment and Labour Relations Act prohibiting child

labour, allows children above 14 years and below 18 years to be employed.
This means that the Act only restricts children below 14 years from being
employed. That is to say, a child below 14 years lacks capacity to enter into
employment contract. However, the Act imposes conditions for employing a
child below 18 years but above 14 years, namely: only be employed in light
work, and prohibitions from being employed in hazardous places including
mines, factories, agricultural plantations or other areas which may affect the
rights of a child to develop. This is to say, that although the law allows
certain group of children to be employed (14-18 years of age), there are
restrictions or conditions to be observed by the employer.

2.2.3Formalities
Under common law parties to a contract are not required to observe any
formalities when concluding a contract of employment. The contract need
not necessarily be in writing, although it is always desirable for the parties to
reduce their contract in writing for purposes of clarity and minimization of
disputes, particularly in contracts of apprenticeship or where a contract is for
a fixed term.54 The law in Tanzania imposes an obligation to the parties to
the contract to comply with the formalities provided for in sections 14 to 16
of the ELRA:

53
Jefferson Michael (2000) Principles of Employment Law, p.84
54
Ibid.,, p.89

29
 S.14 (2) provides that a contract with an employee must be in writing
if it provides that the employee is to work outside the United Republic
of Tanzania. That is to say, if a person is contracted in Tanzania (place
of recruitment is Tanzania) but he is to work in a foreign country
(place of performance of the contract), then the employer must
provide an employee with a written contract.
 Where a person recruited is to work within Tanzania, the contract can
take any of the forms: either an oral or written contract. Most
employers in Tanzania have standard form contracts which are usually
given as an offer (letter of appointment) and accepted by the
employees. These usually contain terms and conditions of
employment including salaries, wages, and hours of work, regulations
and other necessary attachments. In case the employer gives an
employee a written contract, then he is discharged from liability
imposed under section 15(1) of the Act.
Where a contract is an oral one, the employer under s.15 (1) of the
ELRAshall supply the employee with a written statement of particulars
when the employee commences his employment. According to Jefferson,
written statements help to act as evidence of the existing contract, which
is formed once an offer has been accepted. The statement of particulars
must contain the following:
(i) Names, age and sex of the employee
(ii) Age and permanent address
(iii) Place of recruitment
(iv) Job description
(v) Date of commencement of business/job
(vi) Form and duration of contract
(vii) Place of work
(viii) Official hours of work
(ix) Remuneration and methods of calculation
(x) Particulars relating to payments in kind

30
 (xi) Any other prescribed matter

 Where the employee does not understand the written particulars, it is

the obligation of the employer to explain them to the employee in the
manner understandable to the employee and if there is any change in
the particulars, the employer must consult with the employee in order
to service them and he must notify the employee of the changes in
writing. It is important to note here that where the employer fails to
produce a written statement of particulars required by s.15 (1), the
burden of proving or disproving an alleged term of employment
stipulated in S.15 (1) lies on the employer.
 The employer is also obliged to inform the employee(s) of their rights
such as right to freedom of association, remuneration, strike, leave and
other statutory rights. Consequently, the employer is required to
display a statement of the employee’s rights in a conspicuous place at
the work place as per section 16 of the ELRA.

2.2.4 Terms and Conditions of Employment Contract

As previously observed, the employment contract is similar to other
contracts. The employer and employee are free to agree as many terms as
they wish, provided such terms do not change the character of a contract,
i.e., the contract should feature that of service. 55Just as in general contract, a
term will be considered void if it is meaningless or vague; and such terms
are usually contained in offer and acceptance. 56 An offer (usually dictated by
the employer) need not be in any set format and it may be made subject to
conditions such as medical examination and satisfactory reference; 57 and an
employee may accept the same in any way possible.

55
Refer to Ready Mixed Concrete(South East) Limited vs Minister of Pensions and National Ins (1968) 2 QB 497
56
Jefferson Michael (2000) Principles of Employment Law, Fourth Edition, Cavendish Publishing Limited, pp.83-84
57
ibid

31
Generally, the employment contract consists of two types of terms:
contractual and statutory terms. Contractual terms include both written and
implied terms. The express terms refer to terms which the employer and
employee have agreed, whether orally or in writing. 58 The advantage of
express terms over implied terms is that there is little or no room for dispute
and the parties are aware of the same unlike when terms are implied.
Examples of implied contractual terms include payment of remuneration,
mutual trust and confidence, indemnity, safety, obedience, care, fidelity and
cooperation.59

The employers are not permitted to alter contractual terms unilaterally

unless there are provisions in the contract allowing them to do so. 60 InMarch
L.Lumanija & Another vs Tanganyika Bus Service Co.Ltd 61, Rweyemamu,
J;held that change of the applicant’s employment from monthly pay to daily
pay amounted to a fundamental change to terms and conditions of
employment, and such a change unilaterally (without prior consultation)
amounted to an unfair labour practice, which in law can be interpreted to
constitute constructive termination or forced termination of the applicants’
employment.

On the other hand, statutory terms are imported into a contract of

employment by operation of law even if the parties did not make express
reference to them. They are so fundamental that they are implied in every
contract of employment.62Implied terms are important in determining the
true extent of the parties’ rights and obligations. The terms implied by law in
Tanzania may be categorized as follows:
 Section 13 of the ELRA provides that employment standard constitutes
a term of contract of employment. Such terms found in PART THREE OF

58
Ibid p.96
59
Ibid 134-135
60
Ibid p.125
61
Revision No.223 of 2008; High Court of Tanzania-Labour Division at Mwanza,
62
Jefferson M, op.cit .pp. 111-112

32
 ELRA cover the following standards: hours of work, leave (maternity
leave, annual leave, compassionate and responsibility leave, sick
leave), remuneration and protection against unfair termination
 Other implied terms include collective agreements (an agreement
between the trade union and the employer). According to S.71 (3) of
ELRA, a collective agreement which is duly signed is binding on any
member or party to it and shall remain binding until it is replaced by a
different agreement
 Other implied terms are enshrined in what is referred to as
fundamental rights and protections. These include protection against
forced labour, child labour and discrimination

2.2.5 Lawful object and consideration

The contract formed or concluded should be for lawful object, in the sense
that a contract to perform illegal acts is void ab initio. Contracts tainted with
illegality or immorality cannot be enforced by courts or tribunals, regardless
of knowledge of the fact by the parties 63. Thus, there can never be a contract
of employment for transactions that are illegal, e.g., prostitution or selling
drugs. Such contracts will be void ab initio for the object is illegal. However,
the fact that while performing a contract, an employee has done something
illegal does not make a service agreement illegal; the contract of service
remains to be valid64. Similarly, consideration for the exchange of labour
power should also be lawful and in monetary terms (except where the law
does allow part payment of remuneration in kind).

63
Jefferson Michael: Principles of Employment Law, p.85
64
Ibid p.88

33
 CHAPTER THREE
FUNDAMENTAL RIGHTS AND EMPLOYMENT STANDARD

3.1 Application of the ELRA

Section 2 of the ELRA provides that the Act shall apply to all employees both
in the public and private sector in Tanzania mainland. This means that the
Act applies not only to employees but also to employers in private and public
sector including the government. This is to say the Act binds employers in
Tanzania, who should strive to comply with the provisions on fundamental
rights of employees and guarantee employment standards in their
industries or businesses.

However the Act does not apply to members whether temporary or

permanent in TPDF, Police, Prison services and the National service; save for
the provisions of Ss.5, 6 and 7 of ELRA, which are also binding and
enforceable. This means that the four services are excluded from the
application of the Employment and Labour Relations Act, but they are bound
to comply with provisions on child labour, forced labour and non-
discrimination.

34
Meanwhile, the Act recognizes people who are employed in the armed forces
not as military personnel, who can enjoy protection under the Act. Section 2
(2) empowers the minister after consultation with the minister responsible
for exempted services to determine the category of employees who will be
covered by the provisions of the Act.

Furthermore, Section12 of the ELRAexcludes sea farers from the provision of

PART THREE, subparts A, B, C, D and F, dealing with hours of work,
remuneration, leave and incidents of termination. These subparts are
excluded because it is assumed that the Merchant and Shipping Act consist
of provisions covering those areas. However, sea farers working on fishing
vessels shall enjoy the minimum standards provided in the ELRA and in case
there is a conflict between Merchant and Shipping Act of 2003 and ELRA,
those of the ELRA will prevail.

3.2 Fundamental Rights and Protection

These are the rights derived or coming from the eight core ILO Conventions
which relate to child labour, forced labour, discrimination and the right to
associate. These are rights which cannot be taken away from the employer
or employee except by legislations. Some of these rights are also provided
for in the constitution.

3.2.1 Protection against discrimination

The ILO defines discrimination as any distinction, exclusion or preference
made on the basis of race, colour, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation. It also
involves such other distinction, exclusion or preference which has the effect
of nullifying or impairing equality of opportunity or treatment in employment
or occupation as may be determined by the Member concerned after
consultation with representative employers’ and workers’ organizations,

35
where such exist, and with other appropriate bodies. 65 Generally, it is a
practice of treating one person or group of person differently from another in
unfair way.

It is sanctioned by different international instruments including Convention

on Elimination against Racial Discrimination. The same practice is sanctioned
under Article 13 of the Constitution of the United Republic of Tanzania which
provides that all the people are equal and entitled to protection without
discrimination on the basis of gender, colour, tribe, religion or any social
orientation.

In relation to labour law, s.7 of the ELRA prohibits discrimination at

workplaces. Discrimination in work places occurs in a variety of forms and in
a range of different settings. It may be direct or indirect; but it may also take
the form of harassment whether sexual or otherwise. The ELRAprohibits
discrimination directly or indirectly against the employee in any employment
policy or practice. The grounds for discrimination are listed in s.7 (4) of the
Act, which include the following:
 Religion, tribe or place of origin, and colour,
 Pregnancy, Marital status or family responsibility
 Disability; HIV/AIDS
 Age, station of life, national extraction, gender, sex, and political
opinion

Furthermore, s.7 of the ELRA requires employers to prepare plans and

policies to promote equal opportunities and eliminate discrimination in work
places. In preparing the plans the employer is obliged to consult
representatives of trade union at the place of work or consult the committee
of workers for that purpose, and register the same with the Labour
Commissioner. Once it is duly registered, then the Court or Arbitrator is

65
Article 1 of the Discrimination (Employment and Occupation) Convention No.111 of 1958 (entered into force on
15th June 1960)

36
obliged to take them into account when determining the matter on
discrimination.
Exception to the general rule:
The rule on discrimination does not apply under the following circumstances:
 An affirmative action by the employer at the work place shall not
constitute a discriminatory act, i.e., any act which seeks to promote
equality at the work place. This means, an employer may decide to
employ or promote someone on the basis of empowering women and
increasing women participation in the decision making process; or
engage someone on the basis of his or her physical disability. This
seems to be an avenue for promoting rights of vulnerable groups and
integration of the same in the labour market. However, the Act does
not lay down guidelines to be applied by the courts when determining
an affirmative action by the employer, leaving high chances or
probability of being abused.
 Where the employer distinguishes, excludes or prefers any person on
the basis of an inherent requirement of a job, e.g., issue of experience,
skills, and other prescriptions.
 Where the employer selects a citizen of Tanzania in accordance with
the provisions of the National Employment Promotion Services Act of
1999

The violation or breach of the provisions on discrimination as provided under

S.7 of the ELRA constitutes an offence triable at the District Court and
Resident Magistrate Court and punishable by a fine not exceeding five
million shillings as per s.102(3) of the ELRA.

3.2.2 Protection against Forced Labour

Forced labour is regulated by two ILO conventions, namely: Convention No.
29 and Convention No. 30. The former Convention defines forced labour as
any work/service which is exacted from any person without consent and

37
under a menace of a penalty. 66
However, forced labour is justified if procured
under the following circumstances:
(a) Work or service exacted by virtue of compulsory military services laws
(b)Work forming part of civic obligations of the citizen of a fully self-
governing country
(c) Work exacted on a person as a consequence of a conviction in a court
of law but be administered by appropriate public authority for public
interest (not private individuals, companies or associations ) 67
(d)Work or service exacted in cases of emergencies (i.e., war, calamity or
threatened calamity such as fire, flood, famine, earth quake, violent
epidemic or epizootic diseases, invasion by animal, insect or vegetable
pests, and in general any circumstance that would endanger the
existence or the well-being of the whole or part of the population)
(e) Minor community services of a kind, which being performed by the
members of the community in the direct interest of the community,
that is considered as normal civic obligation incumbent upon the
members of the community, subject to consultations. 68

On the other hand, the time for which a person may be forced to work shall
not exceed sixty days (including the time spent in going to and from the
place of work) in any one period of twelve months, subject to issue of
certificate indicating the periods of such labour which he has completed. 69
The working hours for purposes of forced labour is similar to those under
voluntary labour; and any excess hour worked should be remunerated at the
rates prevailing in the case of overtime for voluntary labour. Similarly a
person is entitled to a weekly day of rest according to the custom or tradition
of a particular place.70

66
Article 2(1) of Convention No.29 of 1930
67
Article 2(1)(c) read together with articles 3, 4 and 5 of Convention No.29 of 1930
68
Article 2(2) ibid
69
Article 12 ibid
70
Articles 13 and 14 ibid

38
Likewise, the ILO Declaration on Fundamental Principles and Rights at Work
and its Follow-Up of 198871 places an obligation on member states to
eliminate all forms of forced labour, promote freedom of association,
effective abolition of child labour and elimination of discrimination,
irrespective of whether a state has or has not ratified the conventions. 72 This
is based on the principle of pacta sunt servanda (good faith) that forms the
basis for enforceability of international norms.

The provisions of the above Conventions are reproduced under section 6 of

ELRA, which defines forced labour to include bonded labour, or any other
work exacted from the person under a threat of penalty and to which that
person has not consented. Any person who violates the provision on forced
labour commits an offence, and he may be liable for a fine not exceeding five
million shillings or imprisonment for a term of one year or both fine and
imprisonment.73 A case for violation of the provision on forced labour may be
instituted in the District Court and Resident Magistrate Court. 74

Exceptions to the general rule

The law does exclude certain services or occupations from coverage of the
forced labour provision; and at extenuating circumstances the provisions of
forced labour will not be binding on the employer. These are the following:
 Work exacted under the National Defence ELRA1966 which is of
purely military nature
 Where one is obliged to work as part of normal civic obligations of
citizens of Tanzania, e.g., participation in public works or
community work of construction of physical infrastructure such as
schools, hospitals, etc.
 Any work exacted on any person as a consequence of conviction in
a court of law as per the Community Services Act 2002; provided
71
It was adopted on 18 June 1988
72
Article 2 of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, 1988
73
S.102(2) of the ELRA
74
S.102(1) of the ELRA

39
 the work is supervised by the public authority and the person is
not hired or placed at the disposal of private person, i.e., one
should not be engaged in works of private nature
 Any work exacted in case of emergency or circumstances that
would endanger the existence of the well-being of the whole or
part of the population
 Minor communal services performed by member of the community
after consultation with them or direct representatives.

However articles 9 and 10 of Convention No.29 lays down matters

(safeguards) that should be considered before deciding to have recourse to
forced labour by any competent authority. These include:
(a) that the work to be done or the service to be rendered is important
and is of direct interest for the community called upon to do the work
or render the service;
(b)that the work or service is of present or imminent necessity
(c) that it has been impossible to obtain voluntary labour for carrying out
the work or rendering the service by the offer of rates of wages and
conditions of labour not less favourable than prevailing in the area
concerned for similar work or service;
(d)That the work or service will not lay too heavy a burden upon the
present population, having regard to the labour available and its
capacity to undertake the work.
(e) That the work will not entail the removal of the workers from their
place of habitual residence.

3.2.3 Protection against Child Labour

3.2.3.1 International legal framework on rights of the child
Children across the world have been guaranteed protection through adoption
of various international instruments, which seek to recognize rights specific
to children and establishment of institutions for purposes of protecting
children rights. The major United Nation instrument for children rights is the

40
Convention on the Rights of the Child (CRC) of 1989, which provides for the
rights and freedoms of the child including a right against discrimination; right
to live with parents,75 right to express themselves, and so forth. It
emphasizes that any decision affecting the rights of the child shall be
determined basing on the principle of the best interest of the child. 76 The
state parties are obliged to protect the child against all forms of physical or
mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in the care of
parents, legal guardians or any other person who has the care of the child. 77

Furthermore, the Convention protects the child from all forms of sexual
exploitation and sexual abuse, whereby the state parties are obliged to
prevent unlawful sexual activity, exploitative use of children in prostitution
and exploitative use of children in pornographic performances and
materials.78 It sets up the Committee on the Rights of the Child that consists
of ten experts of high moral standing and recognized competence in the
matters covered by the Convention.79

The African Countries, in the struggle for protection of the rights of the child
adopted the African Charter on the Rights and Welfare of the Child of 1990,
which enshrines the principle of the best interest of the child providing that it
shall be the primary consideration in any matter determined by the relevant
authorities,80 and retains the definition of the child as enshrined in the CRC
to mean every human being below the age of 18 years. 81 The parents are
responsible to ensure the best interest of the child at all times and the child
shall have the right to reside with their parents save where separation
becomes necessary for the best interest of the child. 82The state parties are
75
Article 9 of CRC
76
Article 3, ibid
77
Article 19, ibid
78
Article 34, ibid
79
Article 43 ,ibid
80
Article 4 of the African Charter on the Rights and Welfare of the Child
81
Article 2, ibid
82
Articles 19 and 20, ibid

41
obliged to protect the child against abuse and torture including sexual abuse
and establish measures to prevent, identify, report, referral investigation and
follow up of instances of child abuse and neglect. 83

Furthermore, the state parties are bound to protect the child against harmful
social and cultural practices that may affect the welfare, dignity, normal
growth and development of a child, including child marriage and betrothal of
girls and boys below 18 years. 84 Furthermore, the state parties are obliged to
protect the child from all forms of sexual exploitation and sexual abuse and
in so doing shall take measures to prevent inducement, coercion or
encouragement of a child to engage in any sexual act, use of children in
prostitution or other sexual practices, use of children in pornographic
activities, performances and materials.85

3.2.3.2 Domestic initiatives on prevention of child labour

Since Tanzania is a state party to the above two Conventions, it enacted a
comprehensive law, the Law of the Child Act of 2009, which provides for the
fundamental rights of the child including right to food, shelter, clothing,
medical care, education, guidance and liberty, 86right to grow up with parents
or guardians save where it is in the best interest of the child to separate him
or her from the parents.87 If the child is likely to suffer any harm while not in
the custody of the parents, the court may issue supervision or interim
supervision order which places a child under the supervision of social welfare
officer or any fit person in the local community. 88 The orders can be
discharged by the court upon application of the following parties, namely:
the child, through a next friend, a social welfare officer, a police officer, a

83
Article 16, ibid
84
Article 21, ibid
85
Article 27, ibid
86
S.8 0f the Law of the Child Act, 2009
87
S.7 ibid
88
S.19 ibid

42
parent, guardian or relative of the child or any person with parental
responsibility.89

The Act imposes primary duty to parent or legal guardian to protect the child
from neglect, discrimination, violence, abuse, exposure to physical and moral
hazards, oppression and provide guidance and care. 90 Moreover, this duty
extends to all the institutions that undertake child care and protection,
including: approved residential homes, approved schools and day care
centers.Local government authorities have a duty to safeguard and promote
the welfare of the child within its area through a social welfare officer, who in
collaboration with the police officer shall investigate all cases of breach or
violation of the rights of the child. 91 Any person who contravenes the rights
and duties imposed by the law commits an offence and on conviction he
shall be liable to a fine not exceeding five million shillings or imprisonment
for a term not exceeding six months or to both. 92

Similarly, section 78 of the Act

prohibits all kinds of exploitative labour, which is any work that tends to
deprive the child of his health or development; or otherwise exceeds six
hours a day; or labour that is inappropriate to his age; or where the child
receives inadequate remuneration. Any person contravening this provision
shall be liable to imprisonment for a term of three months or a fine to a tune
of shs.100, 000, or both fine and imprisonment.

Likewise, section 80 of the Actprohibits forced labour, which is defined to

mean bonded labour but shall not include work that forms part of the normal
civic obligations or minor communal services that have direct interest on the
community. Any person contravening this provision shall be liable to a fine of
not less than two hundred thousand shillings or to imprisonment for a term
89
S.23 ibid
90
S.9 ibid
91
S.94 ibid
92
S.14 ibid

43
of six months or to both. 93The sanctions imposed for contravention of the
provisions of the law on child labour are lenient and inefficient to eradicate
the problem of child labour in the country, particularly in urban areas.

On the other hand, section 83 of the ELRAprohibits sexual exploitation of

children. It provides that a child shall not be engaged in any work or trade
that exposes the child to activities of sexual nature, whether paid for or not;
and any contravention of this provision attracts a fine of not less than one
million shillings and not more than five hundred million shillings, or to
imprisonment for a term of not less than one year and not more than twenty
years or to both.94

Moreover, where an employer engages a child under industrial takings as

permitted by the law, then it is an obligation on the part of the employer to
keep a register of all children employed or engaged, indicating their birth
dates if known or their apparent age if their dates of birth are not known. 95

Likewise, S.5 of the ELRA prohibits child labour. It absolutely prohibits

employment of children below the age of 14 years save on what is known as
child work: a work done as a way of integrating a child in the community and
making him or her aresponsible citizen in future. On the other hand, the
ELRA acknowledges the fact that a child below 18 years but above 14 years
can be employed as a part of training. 96The law provides that children above
14 years can be engaged in what is known as “light work”, which means the
following:
i) Work which is not likely to be harmful to the child’s health and
development

93
S.80(3) ibid
94
S.83(3) of the Law of the Child Act, 2009
95
S.85 ibid
96
Also refer to s.84(4) of the Law of the Child ELRA; ss.87-93 of the Law of the Child Act

44
 ii) Work that does not prejudice the child’s attendance at school,
participation in vocational orientation or training programmes
approved by authorities.97

Apart from the above conditions for engaging children, the Act generally
prohibits children under 18 years to be employed in the mine, factory or
ships or in any other work site including the agricultural sector where the
conditions of employment are considered to be hazardous by the minister. 98
A child under the age of 18 years can be allowed to work in such places as
part of training.99Similarly, no person can employ a child in employment that
is inappropriate for a person of that age or that places the child’s well-being
education, physical or mental health and spiritual or social development at
risk. To extend protection of the child against child labour, the law imposes
the burden of proof of the age on the employer in any proceedings; and
clearly declares that any contravention of the provision on child labour by
the employer is an offence, punishable by way of a fine, imprisonment or
both fine and imprisonment.100

Despite the above sanctions, child labour in Tanzania is still prevalent as

reports show that an approximation of 3, 000-5,000 children are working
either in mines; sugar cane, sisal, tea and coffee plantations; while between
1500 and 3,000 children work in unregulated gemstone mines; in some
areas they are known as snake boys. 101 Furthermore, children are still
engaged in bars and restaurants working for longer hours to an average of
14 hours.102This is caused by inadequate enforcement mechanisms due to
financial and human resource problems, and lack of policies by the
employers on prevention of child labour.

97
This is also provided under s.77 of the Law of the Child Act 2009
98
Also refer to s.82 ibid
99
S.5(5) of the ELRA
100
See S.102 of the ELRA
101
LHRC (2012) Human Rights& Business in Tanzania: Stock Taking of Labour Rights, Land Rights, Environmental
justice and Consumers’ Rights Protection; at p.55
102
Ibid, at p.55

45
3.2.4 Protection of the right to organize (associate)
This refers to the ability of individuals to form or join their own associations
or groupings for the given collective purposes. If you look into the society,
there are lots of associations in form of clubs, political parties, Non-
Governmental Organizations, Community Based Organizations (CBOs) and so
forth. Likewise, employees and employers have the right to form and join
associations for protecting collective rights at the work places.

The right to associate has been sanctioned by the international community

through different conventions. The more specific instruments are:ILO
Convention No.87 and the ILO Convention No. 98. Convention No.87
provides that all workers and employers, without distinction whatsoever,
shall have the right to establish and, subject only to the rules of the
organization concerned, to join organizations of their own choosing without
previous authorization.103 Likewise, workers’ and employers’ organizations
have the right to draw up their constitutions and rules, to elect their
representatives in full freedom, to organize their administration and
activities and to formulate their programmes. 104 These two articles guarantee
the right to organize and participate in the affairs of respective associations,
according to the constitutions of the organizations.

It provides further that public authorities shall refrain from any interference
which would restrict this right or impede the lawful exercise of the right,
including dissolution or suspension of activities by administrative
authority.105 Each member of the International Labour Organization for which
this Convention is in force undertakes to take all necessary and appropriate
measures to ensure that workers and employers may exercise freely the
right to organize.106

103
Article 2, ILO Convention No.87
104
Article 3, ibid
105
Article 4, ibid
106
Article 11, ibid

46
On the other hand, the Right to Organise and Collective Bargaining
Convention (No. 98)107 guarantees protection of the right to organize and
bargain collectively by protecting employees against discrimination. It
provides that all workers shall enjoy adequate protection against acts of
antiunion discrimination in respect of their employment, particularly; making
the employment of a worker subject to the condition that he shall not join a
union or shall relinquish trade union membership, causing the dismissal of or
otherwise prejudice a worker by reason of union membership or because of
participation in union activities outside working hours or, with the consent of
the employer, within working hours.108

Furthermore, the workers’ organizations are entitled to adequate protection

against any acts of interference by each other or each other’s agents or
members in their establishment, functioning or administration; in particular,
acts which are designed to promote the establishment of workers’
organizations under the domination of employers or employers’
organizations, or to support workers’ organizations by financial or other
means, with the object of placing such organizations under the control of
employers or employers’ organizations.

The member states are obliged to establish machinery appropriate to

national conditions, for the purpose of ensuring respect for the right to
organize; and also take measures to encourage and promote the full
development and utilization of machinery for voluntary negotiation between
employers or employers’ organizations and workers’ organizations, with a
view to the regulation of terms and conditions of employment by means of
collective agreements.109

Moreover, the member states are empowered to enact laws determining the
extent to which the guarantees provided for in this Convention shall apply to
107
It was adopted on 1st July 1949and entered into force on 18th July 1951
108
Article 1-Convention No.98
109
Article 3 and 4, ibid

47
the armed forces and the police 110. The Convention does not deal with the
position of public servants engaged in the administration of the State. 111 This
group of workers consists of senior civil servants, including some specialized
officials, workers in the judiciary and in customs offices. 112 Workers in the
essential services have also been limited in terms of exercising their
organizational rights; and these are services “whose interruption would
endanger the life, personal safety or health of the whole or part of the
population.”113

The ILO provides that where strikes are prohibited then compensatory
measures should be adopted, including : adequate protection to compensate
for the limitation placed on freedom; adequate, impartial and speedy
conciliation and arbitration proceedings; bindingness of the award, the right
of workers to select members of arbitration tribunals, and that the cost of the
procedures be affordable to both parties.114

Tanzania also adopted provisions that allow people to associate for their own
interests.Article 20(1) of the Constitution of the United Republic of Tanzania,
1977provides that every person has a freedom to freely and peaceably
assemble, associate and cooperate with other persons, and for that purpose,
express views publicly and to form and join associations or organizations
formed for purposes of preserving or furthering his beliefs or interests of any
other group. This provision is the basis for the exercise of the right to
associate in the country for any motive as long as there is compliance with
the law of the land.

110
Article 5, ibid
111
Article 6, ibid
112
Blackburn D (2010), Trade Union Rights in Public Services-Report Prepared for UNISON, International Centre for
Trade Union Rights (ICTCR) p.5
113
ILO, Freedom of Association and Collective Bargaining , Report of the Committee of Experts on the Application
of Conventions and Recommendations, Report III(Part 4B) International Labour Conference 69 th Session, 1983,
Geneva, p.70
114
Blackburn, op.cit pp.4-5

48
Section9 of the ELRA empowers an employee to form and join any trade
union, and to participate in lawful activities of trade union. Meanwhile s.10 of
the ELRAallows employers to join employers’ association of their own choice
and also the right to participate in any activity of the association.

However, the right to form any union for workers or employees is not
absolute because under s.9 (2) there are categories of employees who are
excluded from joining trade unions of other employees, namely:
i) Magistrates may only form or join trade unions that restrict their
membership to judicial officers
ii) Similarly, prosecutors may form and join trade unions that are open
for prosecutors only.
iii) Senior management employees may not join trade unions which
belong to non-senior management employees. A senior
management employee is defined under s.9 (6) of the ELRA to
mean ‘an employee who by virtue of that employee’s position
makes “policy” on behalf of the employer and is authorized to
conclude “collective agreements” on behalf of the employer.

3.3 Employment standards

3.3.1Nature of employment standards
(a) Definition of the employment standard
This refers to a set of benchmarks established by laws and regulations below
which no employment relationship should fall, i.e., it sets the basis of
negotiations between the employer and employee with regard to the rights
and obligations among the parties. 115 In other words, the law establishes the
minimum terms and conditions of employment from which no employer can
abrogate or violate, except as permitted by the law.

Under s.13 of the ELRA an employment standard is meant to be any

stipulation providing for the minimum term and conditions of employment.
115
Rutinwa et al .,The Employment and Labour Relations Law in Tanzania: An Analysis of Labour Legislation in
Tanzania, p.58

49
The provisions on employment standards cover such aspects as hours of
work, remuneration, maternity leave, annual leave, responsibility leave and
sick leave.
(a) Objects of employment standard
As previously shown, employment standards stipulate the minimum terms
and conditions of employment. Thus, the objects of employment standards
throughout the world include the following:
(i) To protect the core or fundamental rights of employees due to
vulnerability of employees to oppression and exploitation by
employers
(ii) To provide minimum standards that can be flexibly varied by
collective agreements or individual contracts of employment.
(iii) To recognize and take into account the diversity of modern labour
market.

(c) Alteration of employment standards

According to s.13 of the ELRA, employment standards in the law are not
static creatures, but they can be varied. However, these provisions can be
varied or changed provided that any alteration made should provide for
better terms and conditions of employment. The ELRAprovides that the
provisions on employment standards can be improved through the following
ways:
(i) Where the employer and employee conclude a contract containing
better terms and conditions. This is done through negotiations
between the employer and employee.
(ii) Where there is a collective agreement at a work place providing for
various aspects of employment. This is an agreement between the
employer (employer’s association) and the trade union representing
the majority of employees at a workplace. This trade union must
have been registered and it should be recognized by the employer
as a bargaining unit. The collective agreement remains binding on
50
 the parties to it (as long as it was duly signed and registered) until
the parties conclude another agreement.
(iii) Where there is a wage determination order stipulating the minimum
wage payable to a particular sector. 116This is usually done by the
wage boards established under s.35 of the Labour Institutions Act
after carrying out investigation taking into account such factors as
ability of employers to carry on their businesses successfully, cost
of living, alleviation of poverty, minimum subsistence level and
other factors provided by the law.
(iv) Where the minister exempts an employer or employee from the
application of specified provisions of the law. Section100 of the
ELRA empowers the minister to exempt an employer from the
employment standards contained in Sections 19 (hours of work), 20
(night work), 23 to 25 (break in working day, daily and weekly rest
periods, and public holiday, respectively), 27 (remuneration), 31 to
34 (annual leave, sick leave, maternity leave, paternity leave and
responsibility leave), 41(notice of termination), 42(severance pay)
and 43 (transport to place of recruitment). To grant the exemption,
the minister must follow the following principles and procedures:
 The employer (association) must satisfy the minister that he
consulted the employees to be affected by the exemption.
 The minister must notify the affected employees (or trade
union) of the proposed exemption by the employer, and must
request them to make their own representations.
 The minister must take into account the representations
made by the employees or trade union.
 The minister must strike a fair balance between the interest of
the employees and employer taking into account any
applicable ILO conventions or recommendations.

116
This is made by the Minister under S.39 of the Labour Institutions Act 2004

51
  If exemption is related to a class of employers it must be
published in Government Gazette.
 Exemption must be given in prescribed form, signed by the
minister and stating the duration of exemption.
 If anyone is aggrieved by the exemption order, he may
challenge it in a labour court by way of application for review.

(d) Types of contracts covered by employment standard provisions

Section14 of the ELRA provides for categories of contracts that are covered
by the employment standard provisions. Employment standards only applyto
three (3) forms of contracts, namely:
 Contract for unspecified period: These are the ones whose duration
of employment is unknown, because the parties do not specify
when the contract comes to an end. Such contracts remain in force
until terminated by agreement or terminated by giving the
contractual notice of termination or if one of the parties attains
retirement age. Agood example of such contracts is where one is
employed on permanent and pensionable terms in the private or
public sector.
 Fixed term contract/specified period contract: This is available for
professionals and those in managerial positions. In the case of
Mtambua Shamte and 64 Others vs Care Sanitation and Suppliers 117
it was held that a contract is considered to be of fixed term when
“an agreement to work is in respect of a fixed time or upon
completion of a task”, while the contract is considered to be of
permanent term where the agreement to work is without reference
to time or task as per rule 3(4) (a) of the Code of Good Practice.

Generally speaking, it is a contract whose duration is determined at

the time of concluding the contract; and it automatically terminates
upon expiry of the specified period unless it is renewed by the
117
Revision No.154 of 2010; High Court of Tanzania at Dar es Salaam (Unreported)

52
 parties. If after the agreed time for termination the employee
remains in employment and the employer continues to pay the
agreed remuneration the contract is deemed to have been
renewed. The terms of such contract will be deemed to be the same
as those under the expired contract unless the parties provide to
the contrary.

Where there is reasonable expectation of renewal of a fixed

contract, the employer is obliged to give a notice of termination;
otherwise the employer will be deemed to have terminated the
contract unfairly.118But, generally the provisions on fair termination
under s.35 of the ELRA do not apply to fixed term contracts as it
was held in the case of Sefue Lyimo vs A.K.Management & Personell
Services.119

 Contract for a specific task: This is the one in which a person is

employed to do a specific task and upon the completion of the task,
the contract is discharged. This is most exhibited in the industrial
areas to casual employees who are usually paid on daily basis 120.
This contract as well does not benefit from unfair termination
provisions. Such contracts start in the morning and end at the end
of the working day, so no terminal benefits can be given including
severance allowance save for notice pay.121

3.3.2 The standard on hours of work

(a) Ordinary hours and its flexibility
The regulation of working time is one of the most important employment
standards entrenched in legislation. Regulating hours of work is increasingly

118
Dar es Salaam Baptist Sec.School vs Enock Ogala; Revision No.53 of 2009, High Court of Tanzania at Dar es
Salaam
119
Revision No.230 of 2008, High Court of Tanzania-Labour Division)
120
Refer the case of Omary Mkele& 20 Others vs M/S Shipping Freight Consultant; Labour Dispute No.6 of 2008;
High Court of Tanzania at Dar es Salaam
121
2000 Industries Ltd vs Rehema Juma& 6 Others ; Labour Revision No.39/2008, High Court of Tanzania.

53
seen as a measure to protect safety and health of employees. The first
international labour instrument to regulate hours of work was the Hours of
Work (Industry) Convention No. 1 of 1919. It established the standard of “a
48 working hours in a week” and “an average of 8 working hours per day”.

Thereafter, another instrument known as the “Hours of Work (Commerce and

Offices) Convention No.30 of 1930”, was adopted and it extended the 48
working hours per week and 8 hours per day. 122 The employer and employee
would agree to increase an extra one hour in a day; but the maximum
number of hours was 10 hours in a day. 123 This Convention extended
coverage to a large group of workers (both in the public and private) who
were excluded by the first convention. The groups were:
(i) commercial or trading establishments, including postal, telegraph
and telephone services and commercial or trading branches of any
other establishment;
(ii) establishments and administrative services in which the persons
employed are mainly engaged in office work;
(iii) mixed commercial and industrial establishments, unless they are
deemed to be industrial establishments.124

However, this convention did not apply to persons employed in

establishments for the treatment or the care of the sick, infirm, destitute or
mentally unfit; hotels, restaurants, boarding-houses, clubs, cafes and other
refreshment houses; and, theatres and places of public amusement, unless
otherwise such establishments are included in the list. 125 Furthermore,
member states would exempt from the application of the Convention
establishments in which only members of the employer’s family are
employed; offices in which the staff is engaged in connection with the
administration of public authority; persons occupying positions of
122
Article 2 read together with article 3 of Convention No.30 of 1930
123
Article 5 ibid
124
Article 1(1) ibid
125
Article 1(2) ibid

54
management or employed in a confidential capacity; travelers and
representatives, in so far as they carry on work outside the establishment. 126

Likewise, the Employment and Labour Relations Act, 2004 provides for the
minimum and maximum number of hours that an employee may be required
to work for an employer. Section19 (2) of the ELRAprovides that an
employee may work for nine hours in a day (ordinary hours), 45 hours in a
week and a maximum of six days in a week. The counting of hours and week
depends on the time and day that a person starts working, i.e., hours are
calculated from the reporting time of the employee, and the day such a
person starts working. This is to say, there is no uniformity on the
determination of the hours and days provided the employer observes the
maximum limits set by the law.

The parties are allowed to allocate the working hours in a way to suit the
employer’s business. For instance, if the employee works for nine hours in a
day then he is expected to work for five days in a week. This means, the
employee will not be required to attend at the work place the next day since
the maximum number of hours is 45 per week (i.e., 5 times 9=45). However,
the employee may wish to work for the sixth day if the employee requests
for him to attend provided there is an agreement or collective agreement as
to overtime pay.127 Where an employee works for 8 hours in a day, it is
obvious that he or she will be required to work for 6 days whereby one will
attend for 5 hours in the sixth day, i.e., for five days one will have attended a
total of 40 hours (8 times 5) and then the remaining five hours can be
exhausted on the sixth day.

Moreover, the overtime arrangement has been limited under s.19 (3) (b) of
the ELRAto 50 hours in a four week cycle. This means that taking 50 hours
divide to 4 weeks; one gets a total of 12.5 hours in a week. Furthermore, the
law prohibits the employer to require an employee to work for more than 12
126
Article 1(3) ibid
127
Refer to S.19(3) (a) of the ELRA

55
hours in a day. Logically, if an ordinary working hours in a day is 9 hours and
the maximum is 12 hours, it means an employee can use the 3 hours as
overtime. But, overtime hours’ limit of 50 hours in the four weeks circle
should be strictly observed. The amount payable as overtime payment
depends on the agreement between the parties; however, if there is no such
agreement then the amount payable as overtime pay shall be not less than
one and one half times the employee’s basic wage for any overtime
worked.128

Furthermore, under s.21 of the ELRA, the parties may agree in writing as to
compressed working hours whereby the employee is obliged to work for the
12 hours without overtime payment. Where there is such arrangement, the
limits as to 45 hours in a week must be observed (i.e., 45 hours divide by
12=3 days and 9 hours to be worked on the fourth day). However, where
there is an agreement as to compressed working hours the overtime hours is
limited to ten hours in a week. That is to say, in a compressed working week
an employee cannot work for a period longer than 55 hours.

On the other hand, the law allows employees through a trade union to
conclude an agreement with the employer on how to allocate hours to suit
the employer’s business in a year (at a given workplace). This is known as
averaging of working hours. It is where the working arrangement is not on a
weekly basis. Averaging is a mechanism through which hours of work can be
unequally distributed between weeks, provided the average number of hours
worked in a particular cycle is not greater than the hours agreed by the
parties. It allows for redistribution of working time in a manner that may be
better with the employers need for production than an equal spread of hours
between weeks. Employees benefit from his arrangement by achieving an
overall reduction in working hours, while employers benefit from having their
overall wage bills by saving on overtime pay.

128
Refer to S.19(5) of the ELRA

56
Furthermore this arrangement seeks to give employers opportunity to
increase production due to the market forces, i.e., allow employer to produce
to meet the demands. The condition imposed by the law is that averaging of
hours is limited to a period not more than 40 hours (ordinary hours) of work
per week calculated over the agreed period; and the overtime hours should
not exceed 10 hours per week.

On the other hand, the law treats differently work attended between 20:00
hours and before 06:00 am in which the employer is obliged to pay the
employee at least 5% of that employee’s basic wage for each hour worked at
night or 5% of the overtime rate if the hours worked are overtime hours. 129
This is additional payment to the basic salary received by a particular
employee. However, not every employee is allowed to work at night. Section
20(2) of the ELRAprevents pregnant women who are within the last two
months before their expected confinement date, unless medically certified as
fit to work at night. Also, nursing mothers are not allowed (strictly prohibited)
to attend night work within two months after the delivery date or if it
certified that the mother’s and child’s health would be affected. A child
below 18 years irrespective of consent cannot work at night.Any person who
has been medically certified as unfit to do night work is also not allowed to
work at night.

(b) Lunch hour

Section 23 of the ELRA provides that if an employee works for more than five
hours consecutively, the employer must allow a 60 minute break (one
hour).The employer is not obliged to pay an employee for that one hour
except where the employer requires an employee to continue working during
the 60 minute break, if it was impossible to leave work unattended or such
work could not be performed by another employee. This time may be
counted as part of the working hours or not depending on the discretion of
the employer.
129
S.20(4) of the ELRA

57
(c) Exclusions on provisions relating to hours of work and overtime
payment
The provisions on hours of work do not automatically cover all categories of
employees in the industry. The senior management employees (i.e.,
employees who manage other employees on behalf of the employer and who
report directly to the employer) are excluded from the application of the
provisions on hours of work. This is because the offices they hold contain
fringe benefits in form of responsibility allowance, transport allowance and
so forth; therefore, they cannot claim overtime payment.

Furthermore, the provisions on hours of work do not apply when there is an

emergency or act of God or ‘force majeure” upon which the employee will be
required to work over and above the standard hours of work. This is the
reason why the law does also exclude the issue of a person being required to
work during emergence cases from forced labour.

3.3.3 Standard on remuneration

Consideration for the work done in employment contract is remuneration; so
any contract of employment without a provision of remuneration is void. The
term remuneration is also referred to as wages. Wages or remuneration of
an employee is protected by ILO through Protection of Wages Convention,
No.95 of 1949.130Under this Conventiona term ‘wages’ is defined to mean
remuneration or earnings, however designated or calculated, capable of
being expressed in terms of money and fixed by mutual agreement or by
national laws or regulations, which are payable in virtue of a written or
unwritten contract of employment by an employer to an employed person for
work done or to be done or for services rendered or to be rendered. 131

130
It entered into force on 24 September 1952
131
Article 1 of Convention No.95 of 1949

58
It provides, inter alia,that wages should be paid only in legal tender or in
other forms such as bank cheque, postal cheque or money order as
determined by the appropriate authority. 132 It also allows partial payment of
wage in the form of allowances subject to national laws or regulations,
collective agreements or arbitration awards; but it prohibits payment of
wages in form of liquor of high alcoholic content or of noxious drugs. 133 It
requires the employer to pay wages directly to the worker except as
provided by law, collective agreement or arbitral awards. 134

Generally, wage may be referred to as remuneration or earnings capable of

being expressed in terms of money, payable by an employer to the
employed person for work done or to be done. Section 4 of the Employment
and Labour Relations Act defines remuneration as ‘the total value of all
payments, in money or in kind, made or owing to an employee arising from
the employment of that employee.’

(a) The manner and mode of payment of remuneration

Section 27 of the Employment and Labour Relations Act 2004 provides that
employees shall be paid any monthly remuneration to which they are
entitled during working hours on the place of work on the agreed pay day. It
means that an employer is required to pay the employee agreed amount of
money on the date specified in the contract, and it should be done at the
work place. This seems to be based on traditional mode of payment where
employer pays money directly to the employee face to face. Moreover, the
use of banking system in effecting payment of remuneration does not seem
to fall within the requirement that salary be paid at the workplace. However,
such practice is allowed provided an employer gives the salary slip to an
employee showing the amount deposited in the employee’s bank account.

132
Article 3 of Convention No.95 of 1949
133
Article 4 ibid
134
Article 5 ibid

59
Furthermore, remuneration may be paid in cash unless the employee agrees
otherwise. In such case the remuneration may be paid by cash or by deposit
into the bank account designated by the employee. If made in cash or
cheque the employer must pay remuneration in a sealed envelope. Payment
of remuneration must be supported by a written statement of particulars.
Such payment shall become due and payable at the end of contractual
period.

(b) Conditions for payment of remuneration in kind

An employer is allowed by the ELRA under s.27 (4), to pay part of
remuneration in kind if such arrangement forms customary practice or is
desirable in the respective industry (establishment). However, the employer
should ensure that:
 such payment must not be in the form of alcoholic beverages or
noxious drugs
 the payment must be for the personal use of the employee and his
family e.g medical benefits, housing, water facilities, transport
facilities and so forth.
 The value of the articles offered must be fair and reasonable.

(c)Deductions from employee’s wage

The ELRAtakes into account the fact that an employee is not free from
contingent risks (economic risks) that may face him before the end of the
month or otherwise before one receives the monthly payment. Section 28 of
the ELRA allows the employer to make deductions on employee’s wage. The
condition attached thereon is that the employer may make deduction if
permitted by a written law,a collective agreement, a wage determination or
court order, and arbitration award. Such deduction may also be effected
where the employee agrees to be deducted in cases of loss to the employer
or advance payment in form of a loan. The employer is obliged to comply

60
with the laws on deductions; otherwise the act may amount to an offence. 135
Generally, deductions can be made under the following circumstances:
i) Where the employee causes financial loss or damage to the
employer provided such damage accrued in the course of
employment, and it is associated with the employees fault. The
employer must have submitted in writing to the employee the
cause, amount of the debt to be paid subject to assessment and
employee must agree to such deductions. The Act requires the
employer to give reasonable time to the employee to challenge the
cause and the amount calculated. Furthermore, the Act provides
that the amount of debt should not exceed the amount of actual
loss or damage; and the deduction should not exceed ¼ of the
employee’s remuneration.
ii) Where deductions are required or permitted by the laws, collective
agreements, court orders or arbitration award. This includes
payment with respect to income tax (PAYE), social security
deductions (NSSF, PSPF, GEPF, LAPF, etc), trade union membership
contributions (e.g., RAAWU, CWT, TUGHE, DACASA,etc); in case of
bankruptcy or winding up of an employer, the claims of employees
relating to remuneration which accrued in respect of the 26 weeks
immediately preceding the date on which the declaration is made,
shall take precedence over all other claims. Likewise, if there is a
court order as to maintenance of the spouse or children, or any
other order directly affecting the employee’s wage, the employer
will be required to make deductions, failure of which may amount to
contempt of court order.
iii) Where the employee takes a loan from the employer or financial
institutions such as banks; the employer is obliged to deduct the
agreed amount and interest (if any) according to the contract.

135
S.28(6)of the ELRA

61
Note: The basis for calculation of wages is provided by the law.Section26 of
the Actstates thatcalculation of wage(s) is based on hourly, weekly or
monthly pay rates as provided in the First Schedule to the Act. (Please refer
to the table for calculation of comparable wage rates under the First
Schedule of the ELRA)

3.3.4 Standard on Leave

This includes annual leave, maternity and paternity leave, sick leave and
compassionate (family responsibility) leave. These are statutory forms of
leave.Othertypes of leave not provided by law may be obtained through a
collective bargaining process, contract of employment or through the policies
of the employer. Leaves provided under ELRA will only be enjoyed by
employees who have worked with the employer for more than 6 months
either under one contract or several contracts in the same year. 136
(a) Annual leave
An employee, just like any other person, is entitled to a rest period so as to
be able to rejuvenate and continue working in a health state. Apart from
daily rest periods, an employee is entitled to a leave within a year. The
obligation on the employer to grant annual leave can be traced from the
Holiday with Pay Convention No.52 of 1936137 whereby a person who worked
for a continuous service for one year was entitled to an annual holiday with
pay of at least six working days (or twelve working days if a person is under
sixteen years of age) excluding public and customary holidays, and
interruptions of attendance at work due to sickness. 138

It was then revised in 1970 by Holidays with Pay Convention No.132 of

1970,139 which applies to all employed persons, with the exception of
seafarers. A number of paid holiday shall not be less than three working
weeks for one year of service (as determined by the proper authority),

136
S.29 of the Employment and Labour Relations Act 2004
137
It entered into force on 22 September 1939
138
Article 2 of Convention No.52 of 1936
139
It entered into force on 30 June 1973

62
subject to improvements by state parties, but it shall not include public and
customary holidays.140 The length of a period for qualifying to take the paid
annual holidays shall be determined by the competent authority, but shall
not exceed six months.141

The labour law in Tanzania, under s.31 of the ELRA provides that an
employee who has worked with the employer for consecutive 6 months is
entitled to 28 days paid leave including public holidays. The leave circle for
purposes of annual leave is 12 months.The employees are bound to take
their annual leave. They cannot exchange it for remuneration. 142However,
this is restricted to the employer and not against other employers. It follows
one may work for another employer during the annual leave. This is not
regarded as an offence since the person voluntarily assumes the risk.

If it happens that annual leave is not taken due to employer’s operational

requirements, then the leave must be taken 6 months after the end of the
leave cycle or 12 months after the end of leave cycle provided the employee
consents.143

Annual leave must be applied for by employee and granted at the discretion
of employer depending on employer’s business. Further, an employee will be
paid money on pro rata basis where the contract of employment is
terminated. On the other hand, the employer is allowed to reduce the
number of days for purposes of annual leave, if at all an employee had been
granted occasional leave and such leave was remunerated. 144 That is to say,
if the employer granted unpaid leave as requested by the employee, then he
cannot reduce the days provided by the law.

140
Article 3and 6 ibid
141
Article 5 ibid
142
S.31(6) and (7) of the ELRA
143
S.31(3) ibid
144
S.31(2) ELRA

63
 (b) Sick Leave
This is provided for under s.32 of the ELRA. The leave circle for sick leave is
36 months. An employee is entitled to a total of 126 days of paid sick leave
in 36 months circle. The first 63 days will be on full pay and the remaining 63
days will be on half pay.

Where a person remains sick for a period longer than 126 days, then the
employer has discretion to continue retaining his or her service.In most
cases, such a person is entitled to invalidity benefits payable to a person who
becomes incapable for illness from the social security funds such as NSSF,
PSPF, LAPF, GEPF, as the case may be. Likewise, the employer may
terminate the contract on the ground of incapacity but he should comply
with the substantive and procedural rules under s.37 of the ELRAread
together with rules 19 and 21 of the Code of Good Practice Rules 2007
{GN.No.42 of 2007}

Section 32 (3) of the ELRAprovides that an employer may refuse to grant sick
leave if the employee fails to produce medical certificate or if the employee
is paid sickness benefits under any other fund.

(c) Maternity leave

Maternity leave is defined as rest days given to an employee who is an
expectant woman or a lactating mother as the case may be. 145 It is
particularly given to protect the life of the mother and the child before and
after giving birth. The government of Tanzania ratified several international
instruments seeking to guarantee rights of pregnant women and infants.
These include:
(i) Maternity Protection Convention (Revised), No.103 of 1952, 146 which
applies to women employed in industrial undertakings and in non-
industrial and agricultural occupations, including women wage

145
Rutinwa et al ‘ The New Employment and Labour Relations Law in Tanzania p.84
146
It entered into force on 7 September 1955

64
 earners working at home.147 It provides that a woman (i.e., a female
person, irrespective of age, nationality, race or creed, whether
married or unmarried), on the production of a medical certificate
stating the presumed date of her confinement, may be entitled to a
period of maternity leave of at least twelve weeks,including a period
of compulsory leave after confinement not less than six weeks. The
competent authority may prescribe for an additional leave in case of
illness arising out of pregnancy.148Other protection of a mother or
woman who has taken maternity leave include:
(a) Protection against dismissal by the employer 149

(b)Nursing period/time during working hours as determined by

appropriate authority or agreement.150

Furthermore, the woman will be entitled to receive cash and

medical benefits (pre-natal, confinement and post natal care) by
qualified midwives or medical practitioners as well as
hospitalization; freedom of choice of a doctor and freedom of choice
between a public and private hospital.151

(ii) The Night Work Convention No.171 of 1990, 152defines night work as
all work which is performed during a period of not less than seven
consecutive hours, including the interval from midnight to 5.00 am,
to be determined by a competent authority. 153 It applies to all
employed persons except those employed in agriculture, stock
raising, fishing, maritime, transport and inland navigation. 154 The
Convention provides the following safeguards:

147
Article 1 of Convention No.103 of 1952
148
Article 3 ibid
149
Article 6 ibid
150
Article 5 ibid
151
Article 4 ibid
152
It entered into force 4th Jan 1995)
153
Article 1 of Convention No.171 of 1990
154
Article 2(1) ibid

65
 (a) right to undergo a health assessment before taking up an
assignment as a night worker and time thereafter; 155
(b)protection against dismissal for employees certified as unfit, and
being given an alternative job;156
(c) protection of pregnant mothers and nursing mothers from
attending night work, unless where it is medically certified that
one is fit for such duties;157
(d)Providing compensation for night workers in the form of pay; and
appropriate social services for workers performing night work. 158

Likewise, the ELRA contains provisions seeking to guarantee maternity leave.

As a matter of minimum standard, an employee is entitled to a paid 84 days
leave or 100 days leave in case of multiple births. The conditions for an
employee to get maternity leave are three: one, the employee must have
worked for six months or more for the same employer; two, the employee
must not have taken maternity leave within 36 months (3 years) or
exhausted the four term period; and, the employee must give a notice of
intention to take maternity leave to an employer three months before the
expected date of confinement.159

If the child dies in the first year of birth, the right to maternity leave revives.
The employer is prohibited from treating maternity leave as annual leave. A
person will be entitled to take her annual leave if it accrues but subject to
consent of the employer. Practice shows that employers usually deny
employees who come from maternity leave to subsequently take annual
leave, but allow them to take the same within six months. This conforms to
the requirement of the laws.

155
Article 4 ibid
156
Article 6 ibid
157
Article 7 ibid
158
Articles 8 and 9 ibid
159
Refer to Ss.33(1), 29(2) and 30 (b)(ii) of the ELRA

66
An expectant mother is allowed to apply for maternity leave four weeks
before the expected confinement date or on an earlier date is so required by
a certified medical practitioner. However, the Act does not compel the
expectant mother to stop working during the four weeks. Thus, to such
person who proceeds to work until the birth date, the leave accrues soon
after the delivery.

Furthermore, the Act prohibits a lactating mother (woman) to resume work

within six weeks after the birth of the child, except where a medical
practitioner certifies that she is fit to work. Likewise, pregnant and lactating
mothers are prohibited to work in hazardous places. Employers are urged to
give such mothers alternative employment. Furthermore, the Act does
prevent the employer to require a pregnant employee to attend night work
two months before the expected date of confinement (unless medically
certified as fit for work), and two months after birth of the child (strictly not
allowed).160

The employee will be entitled to four terms of paid maternity leave, but such
leave is paid if taken within the prescribed period. This is to say, one is
entitled to a paid maternity leave every after 36 months, for four terms. This
indirectly reflects family planning programmes set in place to discourage
unnecessary births of children. However, the circumstances in Africa
(Tanzania in particular) do not heed to family planning due to established
customs in the society. The employer cannot limit the freedom of an
employee to give births to children beyond the stipulated number. Thus, if
the employee conceives more than 4 times while working with the same
employer, he or she may grant unpaid maternity leave for extra births. Some
employers strictly adhere to the rule as to 36 months leave circle; thus,
where an employee conceives before the lapse of 36 months, employers give
unpaid leave or count the same as sick leave.Where the employee resumes

160
Refer to S.20 of the ELRA

67
work, the employer is required to give an employee at least two hours for
breast feeding a child as it is deemed appropriate. 161

(d) Paternity leave

Unlike mothers, a father of a child is entitled to paternity leave of at least 3
days, which should be taken within seven days of the birth of the child. This
is to ensure that the father provides for the family during the first days of the
birth. Indeed where a mother delivers by cesarean section, the three days
seem to be inadequate.

The only condition for entitlement of this leave is for one to prove that he is a
father of the child (biological father). 162 One may prove paternity by
presenting documents or other evidence showing/proving the paternity. The
law does not state that such a child should have been born within wedlock.
This seems to take into account the nature of the African societies which
were and still are traditionally polygamous. However, the paid paternity
leave is calculated on the same basis of 36 months. The 3 days granted to an
employee is the total number of days regardless of children the employee
may have in that circle.163Likewise, this tries to accommodate the family
planning objective within the Act. Similarly, where an employee has more
than one birth, the employer has discretion to grant unpaid leave or deny the
same. It is a matter to be addressed through agreement by the parties.

(e) Compassionate leave

This type of leave is covered under s.34 (1) (b) of the ELRA. It is a leave
granted upon occurrence of specified events, namely: the employee’s child,
161
Section 33(10) of the ELRA
162
Section 34(1)(a) of the ELRA
163
Section 34(3) (a) of the ELRA

68
employee’s spouse, parent, grandparent, grandchild or sibling falls sick or
dies. It is limited to four days within the leave circle; however, the employer
and employee may agree as to better terms. In any case, a person will be
entitled to unpaid leave if the leave taken for the specified reasons does
exceed the statutory period of four days.

69
 CHAPTER FOUR
TERMINATION OF EMPLOYMENT IN TANZANIA
4.1 Introduction
The law on termination of employment in Tanzania entails fundamental
protections against unfair termination as provided for by the ILO Convention
on Termination of Employment. Although Tanzania has not ratified the
Convention, she conforms to it as a member of ILO. The objective of the
Convention is to secure worker’s employment by stipulating that
employment shall not be terminated unless the employer proves that there
is a fair and valid reason connected with the capacity or conduct of the
worker, or operational requirements of the services; and that the procedure
should be fair, in the sense that an employee is given an opportunity to be
heard before termination, right to appeal against termination to an impartial
body or authority, consultations and representations. 164

The term ‘reason’ refers to a set of facts known to the employer or beliefs
held by him which causes him to dismiss the employee. In other words, the
employer should have sufficient grounds for dismissing the employee not
sham reasons.165 The reason for termination should be the one likely to
justify the employer’s action of dismissing an employee.

The laws governing termination of employment in Tanzania include: the

Employment and Labour Relations Act 2004 and the Employment and Labour
Relations (Code of Good Practice) Rules, 2007. 166 According to the Task
Force,167 a Code of Good Practice is called ‘soft law’, in the sense that it does
not impose any hard and fast obligations on any person if such person

164
Rutinwa et al (eds) The New Employment and Labour Relations Law in Tanzania: An Analysis of Labour
Legislation in Tanzania, p.96-97
165
Jefferson M (2000) Principles of Employment Laws, 4th Edition, p.293
166
The Code of Good Practice Rules,2007 were issued by the Minister for Labour Matters in consultation with the
Labour Economic and Social Council (LESCO), made under S.99(1) of the Employment and Labour Relations Act,
2004
167
Ministry of Labour, Youth Development and Sport; First Report of the Task Force on Labour Law Reform at
p.293

70
justifies a departure from the same.168 However, from practical point of view,
the Code of Good Practice is binding on the employers, and where one has
departed, it has always been difficult to convince the adjudicators to the
contrary practice.

4.2 Determination of fairness or unfairness of termination

The Employment and Labour Relations Act together with the Code of Good
Practice provide for reason of termination of employment contract. According
to s.37 of the ELRA, there are four reasons that can justify termination (also
called valid and fair reasons), namely: reason based on employee’s
misconduct (usually related to disciplinary grounds), employed person’s
incapacity (the failure to deliver to the best of his or her knowledge and
skill), reasons based on incompatibility (not matching with the clients or
employer) and reasons based on operational requirements (financial
incapability and technological demands). On the other hand, the Act provides
for what is known as automatic unfair reasons; if the employer terminates
the person on the grounds termed as unfair reasons, it automatically
becomes unfair termination.

Similarly, the Act imposes an obligation on the employer or employee to

comply with the rules of natural justice when terminating the contract on the
reasons stipulated above. These principles include issues on the right to be
heard, right to legal representation, right to be given reasons for
termination, fair trial by an impartial organ and issues on notice. Thus, for
one to conclude that a given circumstance amounts to fair or unfair
termination, consideration must be given to the reasons for termination
(whether fair and valid), and procedural aspects laid down by the laws. It
must be clearly mentioned that to every reason of termination stipulated
above, there is always a necessary procedure to be observed by the
employer; short of that, a termination will be said to be unfair termination.

168
Also refer to S.99(3) of the Employment and Labour Relations Act, 2004

71
4.3 Forms of termination
Forms of termination are sometimes referred to as grounds of termination.
They refer to the manner in which the contract of employment can be
discharged or brought to an end by the parties. These forms are provided for
under s.36 of the Employment and Labour Relations Act 2004 read together
with rule 3 of the Code of Good Practice. These forms of termination include
the following:

4.3.1 Lawful termination under common law

Tanzania is one of the countries that apply the common laws and systems in
administration of justice. The said common law principles apply in Tanzania
when there is a gap or lacuna. For instance, Tanzania applies the adversarial
system in resolving disputes whereby each party alleging the fact should
prove its existence or non-existence. However, application of common law in
Tanzania is not as strict as in England, since s. 2(3) of the Judicature and
Application of Laws Act empowers the courts in Tanzania to apply common
law, doctrines of equity and statutes of general application, only so far as the
circumstances of Tanzania and its inhabitants permit, and subject to such
qualifications as local circumstances may render necessary. 169

Similarly, the ELRA expressly recognizes termination of employment under

common law. The issue as to termination under common law is expressed
under Rule 3(2) of the Code of Good practice Rules,2007. It may fall under
any of the following:

169
Refer to the case of John Magendo vs Govan (1973) LRT 40; also Salehe Mahamburi vs Noseni Mrinda (1969)
HCD 276; and that of DPP vs Peter Vogel (1987) TLR 100 where the court provided for the interpretation of S.2(3)
of JALA with respect to application of common law in Tanzania.

72
 (a) Termination by agreement
Parties to an employment contract can agree to discharge the contract
through a mutual agreement, just like it is in other contracts. Rule 4(1) of the
Code provides than an employer and employee shall agree to terminate the
contract in accordance with their agreement. Some contracts contain
provisions that allow parties to renew the contract subject to mutual
agreement. Unless there is an express term as to renewal of the contract, all
contracts for a specified period come to an end at the expiry of the
contractual period.

On the other hand, there are contracts for specific task which come to an
end upon completion of the event/task, and employees are usually paid on
daily basis, e.g., contracts for building a house. Both contracts of specific
task and contracts for a specified period are discharged upon completion of
the contractual period/task; and the engaged employees cannot claim
terminal benefits other than those contained in the agreement, as it is
deemed that parties mutually agrees to end the contractual relationship. In
Abdallah M.Simba& 26 Others vs Said Salim Bakhresa, 170when addressing the
issue as to whether employees under specific task contract (those who are
paid on daily basis) under s.14 (1)(c) of the ELRA are entitled to terminal
benefits, including severance allowance, Moshi, J; held that the contract for a
specific task under s.14 (1) (c) of the ELRA ends at the end of each day,
hence the employee is not entitled to severance allowance and other
terminal benefits.

The above decision was also observed in the case of 2000 Industries Ltd
vsRehema Juma& 6 others. 171
In this case the court held that as the contract
for specific task started in the morning and ended at the end of the working
day, the employees were not entitled to severance allowance.

170
Labour Revision No.195 of 2009, High Court of Tanzania-Labour Division at Dar es Salaam (Unreported)
171
Labour Revision No.39/2008, High Court of Tanzania-Labour Division(Unreported)

73
In Mtambua Shamteand 64 Others vs Care Sanitation and Suppliers, 172the
respondent was a legal entity whose business was to offer cleaning services
to different firms including the University of Dar es Salaam, after winning the
tenders for supply of such services. The respondent had a one year contract
with the client which was terminated after lapse of one year. During that
period, the applicants were employed by the respondent for a fixed term of
one year, which was terminated after lapse of tender period. The applicants
unsuccessfully appealed against the employer’s termination in the CMA.
Consequently, the applicants lodged an application for review on reason that
they were unfairly terminated contrary to s.37 of the ELRA“as there was a
reasonable time of renewal” as per s.36 of the ELRA. Rweyemamu, J;
dismissing the application, ruled that the rules which apply in respect of
termination of an employment contract depend on duration of such contract,
and duration determines what type of contract the parties have. A contract is
considered to be of fixed term when “an agreement to work is in respect of a
fixed time or upon completion of a task,” while the contract is considered to
be of permanent term where the agreement to work is without reference to
time or task as per rule 3(4) (a) of the Code. The contract was thus of a
specific task, which terminated upon completion of a task.

It should be noted that for contracts of specified terms, the employer is not
obliged to issue a termination letter as a way of discharging the contract.
But, where there is a legitimate expectation of renewal the employer is duty
bound to comply with provisions on termination of employment, including
issuing a letter of termination preceded by notice. In Dar es Salaam Baptist
Sec.School vs Enock Ogala,173the respondent entered into a two year
contract with the applicant (renewable) from 1/9/2006 to 31/8/2008). It was
terminated on 2/9/2008 through a letter of termination. The respondent
successfully challenged termination in the CMA on ground that there was
172
Revision No. 54 of 2010-High Court of Tanzania-Labour Division at Dar es Salaam (Unreported)
173
Labour Revision No.53 of 2009, High Court of Tanzania-Labour Division at Dar es Salaam (Unreported)

74
expectation of renewal.Hence termination in the circumstances amounted to
unfair termination as per s.36 (iii) of the ELRA read together with Rule 4(2) of
the Employment and Labour Relations (Code of Good Practice) GN.42/2007.
The arbitrator awarded 12 months’ pay at the rate of shs.280, 000/= for
unfair termination (totaling shs.3, 360,000) as per s.40 (1) (c) of the ELRA,
and severance pay under s.42 (1) of the Act. On revision, Rweyemamu, J;
held that the CMA award was correct on the reason that there was
reasonable expectation of renewal; otherwise the contract would have
expired automatically with no need to write a termination letter. The
application was consequently dismissed.

(b) Automatic termination of the contract

This happens upon occurrence of events or circumstances listed under Rule
5 of the Code of Good Practice Rules. These are: when the employee dies;
employee attains the agreed or normal retirement age (i.e., one attains a
voluntary retirement age of 55 years or compulsory retirement age of 60
years);174 where the employer goes bankrupt or is would up due to financial
constraints (either a voluntary or statutory winding up). Where the
employee continues to deliver the service after attaining the retirement age,
then the contractual terms shall automatically continue to bind the parties,
unless the employer and employee have agreed to the contrary.

(c)Termination by the employee (also known as resignation)

Rule 6 of the Code of Good Practice provides for the circumstances under
which the employee may summarily terminate the contract of employment.
Usually resignation of employee arises where there is a serious or material
breach of the conditions of employment, e.g., refusal to pay wages by
employer, verbal or physical abuse, sexual harassment of the employee or
unfair discrimination, or “any other breach” of the terms which goes to the

174
The issue of retirement age may be determined by the employer’s past practices or practice in the given
industry as per Rule 5(4) of the Code of Good Practice

75
root of the existence of the employer-employee relationship. 175The list of
behaviors warranting termination by an employee is not exhaustive; hence
determination of serious breach of the terms differs from one circumstance
to another depending on the merits of each case. 176

The employee may terminate the contract with notice or without notice. If
there is a material breach of the contract, the employee may terminate the
contract without necessarily giving notice to the employer since no
agreement is sought. However, when terminating contracts of a fixed–term
or a contract for an indefinite period (also known as permanent contract), an
employee is obliged to issue notice as prescribed under s.41 of the ELRA
(which may be changed depending on the agreement by the parties), and
the employee must continue working during the notice period; or otherwise
pay the employer one month salary in lieu of the notice.

(d) Termination by the employer

The employer has the power to “hire and fire” as rightly discussed in the
case of Gould vs Minister of National Insurance and Another. 177 However he
or she must comply with provisions on termination of employment; that is,
termination should be for a fair and valid reason (i.e., misconduct,
incompatibility, capacity and operational requirements) but subject to a fair
procedure as per s.37 (1) and (2) of the Employment and Labour Relations
Act, 2004, read together with rules 8 and 9 of the Code of Good Practice.

Just like it is with an employee, the employer can terminate the contract with
notice or without notice. The fixed term contract or contract for indefinite
period, can be terminated by the employer without giving notice where the
employee commits what is referred to as “material breach” of the terms of
contracts, namely: gross dishonesty, willful damage to property, willfully
endangering the safety of others, gross negligence, etc. But, if there is no
175
Rule 6(4) of the Code of Good Practice Rules, 2007
176
Rutinwa et al(eds)., The New Employment and Labour Relations Law in Tanzania, p.102-103
177
(1951) 1 All ER 368

76
material breach by the employee, then the employer can lawfully bring the
contract to an end by complying with provisions of the laws on
termination;178or by getting an employee to agree to an early termination
(i.e., termination by agreement), subject to payment of employee’s
entitlements (terminal benefits) under s.44 of the Act.

4.3.2 Constructive Termination (also known as forced resignation)

This kind of termination arises where the employer makes continued
employment intolerable for an employee. Practically, it is the employee
resigning from the job due to unacceptable, discriminative and oppressive
character of the employer towards an employee. According to Rule 7(1) of
the Code of Good Practice Rules, 2007 where an employer makes
employment intolerable that it leads to the resignation of the employee, that
kind of resignation amounts to forced resignation or constructive
termination. The burden of proof that a person was constructively dismissed
lies on the employee.

The law provides circumstances under which the employee may claim to
have been constructively terminated to include, but not limited to:
 Sexual harassment (verbal, physical or environmental). According to
Rutinwa (et al) sexual harassment may be in the form of offensive
words or advances, gestures or whistling (verbal abuse),
inappropriate touching (physical abuse), creation of a sexual
offensive environment such as displaying pornography or sending
pornographic e-mails to the other person (environmental abuse); 179
 Where the employer acts in contravention of prohibited acts under
s.7 (4) of the ELRAi.e., the employer discriminates a person on
grounds of colour, nationality, tribe/place of origin, race, political
affiliation, HIV/AIDs,age and so forth.

178
S.37 of the ELRA read together with Rule 8 and 9 of the Code of Good Practice Rules, 2007
179
Rutinwa et al (eds) op.cit p.115

77
4.3.3 Failure to renew a fixed term contract on similar terms where
there was reasonable expectation of renewal
The contract can be deemed to have been discharged where the employer
rejects to renew the contract contrary to the well-established practice by the
employer and employee of renewing contract every time when the contract
determines. Some contracts usually stipulate clearly on the procedure to be
followed if the contract is to be renewed by the employer, particularly
sending notification (written) to the employee.

However, the employer is duty bound to comply with the provisions on

termination of employment where there is a legitimate expectation of
renewal, including giving a prior notice to the employee that the contract will
not be renewed; failure to do that, the subsequent termination will be said to
be unfair as held in the case of Dar esSalaam Baptist Sec.School vs Enock
Ogala.180The burden of proving that there was expectation of renewal lies on
the employee. Rule 4(5) of the Code of Good Practice, provides that if a fixed
term contract is not renewed and the employee claims a reasonable
expectation of renewal, the employee must show that there is an objective
basis for the expectation by giving evidence as to previous renewals, and
employer’s undertakings to renew. This is a shift from the general rule under
s.39 of the Act which requires the employer to prove the case of
fairness/unfairness of termination.

4.3.4 Failure to allow an employee to resume work after taking

maternity leave (S.36 (a)(iv) of the ELRA)
The law requires that terms and conditions of employment must be
maintained when one takes maternity leave; if unilaterally changed by the
employer, the employee may allege termination of employment. Section 33

180
Revision No.53 of 2009,High Court of Tanzania at Dar es Salaam (Unreported)

78
of the ELRAprovides that a pregnant employee is allowed to take maternity
leave of 84 days or 100 days (if multiple births) four weeks before the
expected date of confinement, or on an earlier date if the medical
practitioner so advises.

However, the employer is not obliged to maintain the same terms and
conditions of work when an employee resumes work. This is due to the fact
that s.33 (4) of the ELRAuses the words: ‘...may resume employment on the
same terms and conditions’. This area needs further consideration by the
legislative authority if at all employees have to be protected from unfair
practices by the employer as a result of taking maternity leave.

Failure to allow an employee to resume work after taking maternity leave

vitiates the lawfulness of termination. Reading s.37 (3) of the ELRAwhich
provides that if an employer terminates an employee on the grounds related
to pregnancy, it will be taken as unfair reason; together with s.7 (4) of the
ELRAstipulating that it is an offence to discriminate an employee on ground
related to factors, inter alia, pregnancy; basing on the statutory principle
that requires a statute to be read as a whole, it can be argued that a
pregnant employee who takes maternity leave is protected against unfair
labour practices.

4.3.5 Selected re-engagement after termination of a group of

employees
Section 36(a)(v) of the ELRAprovides for another form of termination which
arises as a result of the employer’s failure to re-employ an employee. Where
an employer has terminated services of a number of employees for the same
reasons, offers to re-employ one or more of them. Under such circumstance,
the remaining employees not taken by the employer may allege termination
of employment. This normally happens when the employer retrenches a
number of employees on the ground of operational requirements, and later
re-engages some of them.

79
4.4 Fairness or unfairness of termination
Determination of fairness of termination depends on addressing two
important issues: first, one must establish the fairness and validity of the
reason for termination (also referred to as substantive fairness of
termination) and, secondly, one must assess as to whether the procedure for
termination was fair (also referred to as procedural fairness of termination).
Thus, for the Arbitrator or Labour Court to come to a conclusion that
termination is fair, due regard should be given to statutory provisions on
substantive and procedural fairness of termination as per s.37 (2) of the
ELRA. Specifically speaking, every reason of termination has an attached
procedure which must be observed by the employer before effecting
termination. This part seeks to look at fairness/unfairness of termination
taking into account the reason and the procedures for termination.

4.4.1 Fair and unfair reasons

Employers are prohibited from terminating employees unless such
termination is based on a valid and fair reason related to misconduct,
incapacity, incompatibility and operational requirements of employer. 181
Termination on the above grounds is always a fair termination. However,
some employers for their own interests; usually provide for other reasons in
the workplace rules and codes of conduct. The employer may provide such
rules provided he can justify such departure, provided the employer does not
conduct himself in a manner that violates s.37 (3) of the ELRA, which
provides that termination is automatically unfair if based on reasons that:
 employee discloses the information as required under the ELRA or any
other law (e.g. where one is discriminated, where one is required to
disclose information to the statutory authorities, reporting criminal
conducts of the employer, fraud, etc)
 if the employee fails or refuses to do anything that an employer may
not lawfully permit or require the employee to do (i.e., unlawful order).

181
S.37(2) of the ELRA read together with Rule 9 of the Code of Good Practice Rules, 2007

80
 E.g., where one is ordered to design tax evasion schemes by the
employer.
 Where an employee exercises any right conferred to him or her by
agreement or any other written law
 If the employee belongs to a trade union or where the employee
participates in lawful strikes or any lawful activity of the trade union.
 If the termination is related to the pregnancy of the employee

Moreover, for the termination based on four grounds listed, the employer is
further required to follow a fair procedure which may vary depending on the
reasons of termination. Under disciplinary proceedings fair procedure would
entail the principles of natural justice. These are:
 Notification of the reasons for termination;
 Granting on employee an opportunity to respond to the reason for
termination (right to be heard-audi alteram partem);
 Granting employee a right to be represented in the disciplinary
committee proceeding. Under the Code of Good Practice, an employee
is given at least 48 hours to respond to the allegations;
 Determination of the disciplinary proceedings by an impartial but
competent organ.

4.4.2 Termination of contract on misconduct

4.4.2.1 Nature of the envisaged misconduct

Misconduct can be referred to as violation of the codes establishing a
standard of behavior that employees should emulate during the existence of
the contract at the workplaces. There are different forms of misconduct, but
for purposes of the law, that misconduct must generally be work related
(arise out of and in course of employment) and of such a nature as to affect
the employee’s worthiness or unfitness for employment in the employer’s
premises; in other words, it renders the whole relationship intolerable. 182 The

182
Grogan op.cit at p.145 referred to in Rutinwa et al (eds), op.cit at p.123; also see rule 12(1) of the Code of Good
Practice

81
labour laws, particularly, Rule 11 of the Code of Good Practice, empowers
employers to adopt disciplinary policies, rules and procedures for regulation
of the conduct at the workplaces; but such policies should be corrective in
nature through a system of graduated disciplinary measures such as
counseling and warning.

4.4.2.2 Acts warranting termination

Rule 12(3) of the Code of Good Practice provides for acts or misconduct that
can justify termination. These include: gross dishonesty; willful damage to
property; willfully endangering the safety of others; gross negligence; assault
on co-employees, supplier, customer or a member of the family of, and any
person associated with the employer; and gross insubordination. However,
rule 12(1) of the Code of Good Practice provides that the first offence of an
employee shall not justify termination unless it is proved that the misconduct
is so serious that it makes continued employment intolerable. The listed acts
or misconduct under rule 12(3) takes into account the condition under rule
12(1) as one cannot expect the employee who commits such disciplinary
offences to continue working with the same employer.

Under the old labour law regime (repealed), these offences were provided for
by the Security of Employment Act 1964, whereby the employer could
summarily dismiss an employee who acted contrary to the laws; and such
decision could be appealable only to the Minister since s.28 of the S.E.A
ousted the jurisdiction of the civil courts. In KLM Dutch Airlines vs Jose
XavierFerreira,183the Court of Appeal of Tanzania held that s.28 of the S.E.A
ousts the jurisdiction of the court in cases of summary dismissals, proposed
summary dismissals and salary deductions as a disciplinary penalty, and that
the court cannot split a claim once it is partly found to be based on summary
dismissal; hence the trial judge (at the High Court) erred in law to amend the

183
1994 (TLR) 230 (CA)

82
basis of the cause of action so as to take the claim away from the ouster
clause.

4.4.2.3 Proof of Misconduct

As previously explained, the employer has the burden to prove that
termination on misconduct was fair and valid. To successfully prove that
termination based on misconduct is fair, the employer should prove that the
reason for termination is fair and valid, and that the procedure was also
exhausted. In W.Stores Ltd vs George Wandiba and 2 Others, 184Mandia, J;(as
he then was)held that where the employer decides to terminate the contract
of employment on misconduct, he should comply with rules 12 and 13 of the
Code of Good Practice that provide for investigation and the hearing
procedures, failure of which amount to unfair termination.

(a) Proving substantive fairness

Substantive fairness may be proved by showing:

(i) That the employee contravened a rule, a code or contract which

establishes a standard of behavior at the work place, i.e., the employer
must prove that the employee breached a code of conduct. This is
done by adducing evidence to show that the employee committed a
disciplinary offence warranting termination as a remedy. InMeneja,
Mama Clementina Foundation vs Laurence, Erasmus Malekela, 185the
respondent was terminated on the ground of misconduct (i.e., he used
abusive language in class, absenteeism and that he had love affairs
with a co-worker at the school compound). The respondent had worked
for 11 months including 6 months’ probation period. At the CMA, the
arbitrator held in favour of the respondent on the basis that the
employer unfairly terminated the contract, and that the employer was
required to pay 12 months remuneration (Tshs.4,621,824=), transport
allowance (Tsh.180,000), leave pay (338,180/=) and severance
184
Revision No.26 of 2007; High Court of Tanzania-Labour Division at Dar es Salaam (Mandia, J)
185
Revision No.2 of 2011;High Court of Tanzania at Iringa (Moshi,J)

83
 allowance (Tsh.45,524). The applicant was dissatisfied with the award
and applied for revision on the ground that the arbitrator erred in law
by awarding 12 months remuneration since there was no contract
signed between the parties, and that the respondent was not entitled
to transport allowance.

Moshi,J; observed that since the contract showed that the respondent
was to work under probation period for 6 months, and the evidence
showed that he had worked for 11 months with the employer after
signing the contract, then it was apparent that there was a contract of
employment between the parties. The employer was thus obliged to
follow the procedure under Rule 10 of the Code of Good Practice, which
required the employer to have policies that clearly stipulate the code
of conduct to employees. There was neither valid reason for
termination nor were the procedures followed, hence the
determination by the arbitrator on that fact and the order were
justifiable save for payment on severance pay, which cannot be given
on the reason that the respondent had not yet worked for one year as
per s.42 of the Act.

(ii)That the rule alleged to have been breached is reasonable, unambiguous

and clear; in the sense that the rule should aim at protecting the employer or
furthering the business of the employer, but not causing injustice to the
employee. It should be drafted in a simple language known to the employee;
otherwise the court will interpret such rule in favour of the employee (weaker
party).

(iii) That the rule is known to the employee and it has always been applied
consistently by the employer to cure the same problem in the past. This
demands that a rule is applied to all employees without any discrimination.
For example, where it appears that a similar actdeemed to be misconduct in

84
a present case by the employer was not deemed to be misconduct in
another past similar act, it may be assumed that the rule in question is
discriminatory.
(iv) Finally, the employer must show that termination was an appropriate
sanction. This depends on whether the alleged misconduct was so serious
that an employee cannot continue working with the employer; e.g., where
the employee had committed the same act in the past and was warned by
the employer. It should be noted that under rule 12(1) of the Code the first
offence of an employee shall not justify termination unless it is proved that
the misconduct is so serious that it makes a continued employment
relationship intolerable.

The above four factors should be taken into account by the arbitrator when
giving decision on substantive fairness, and the employer should provide
evidence to prove the same. Failure to observe them may affect the validity
of the award upon revision by the court. In Security Group (T) Ltd vs
NyasaMwasha na Wenzake186the employer/applicant, a security company,
terminated employment of Nyasa and another (employees) who were
security guards on ground of misconduct. The respondents appealed that
decision to the CMA claiming substantive unfairness and procedural
unfairness. At the CMA the employer’s version was that on 22/2/2008, they
posted some employees at Wazo Hill duty post. Among those who did not
report for 5 days were the respondents in this case. After disciplinary
proceedings, they were terminated on ground of disobedience of lawful
orders and absenteeism. The employee’s case was that they did not report
at their duty posts but reported instead to the headquarter office of the
employer. However, the arbitrator concluded that “...vielelezo vyao japo
havithibitishi maudhurio ya uwepokazini, lakini vinajieleza walifika katika
maeneo ambayo hayakupangiwa, hivyo walienda sehemu zisizo rasmi.” The

186
Revision No.220 of 2008;High Court of Tanzania at Dar es Salaam (Unreported)

85
issues drawn were: whether the employees had absconded, whether
termination was fair and whether employees were entitled to any reliefs”.

Rweyemamu,: J reasoned, among others, that the issues framed did not
cover key issues disclosed by the facts, which in view of the court would be:
whether termination was for a valid reason (substantively fair). This issue
would require the parties’ evidence to prove absenteeism and disobedience
of lawful orders, a clear policy of the employer regulating reporting at duty
stations known to the employees, evidence to show respondents that
breached the order by not reporting to new stations after changes were
made; and whether in the context of the employer’s work, the misconduct
proved amounted to disobedience of lawful orders or insubordination and
whether the employer’s sanction of the misconduct was fair. It was also not
established nor a decision made regarding existence or not of an employer
policy on assignment of employees to different duty posts, nor whether such
policy was known to employees.

The court also found out that there was no evidence led and a decision made
on whether the proved misconduct of not reporting at the assigned duty post
was, in the context of the employer’s work, misconduct for which termination
was an appropriate sanction in terms of rule 12(3) of the ELRA. The arbitrator
was obliged to receive competing evidence from both parties and then make
evaluation of the fairness of the employer’s sanction against the employee’s
misconduct. It is with that understanding that “...arbitrator’s conclusion that
since the offence committed was disobedience of lawful order and it was a
first offence, the proper punishment should have been a warning not
termination”, was not based on evidence on record and therefore to have
been made improperly and in error; the CMA proceedings were quashed and
the award set aside.

86
In Levina Kasenene& Another vs CHODAWU MAKAO MAKUU, 187the applicants
were terminated for misappropriation of the respondent’s monies (which was
termed as grave misconduct by the employer). At the CMA, the arbitrator
held in favour of the respondent that since the applicants had committed
fraud in the past (proved) and also admitted to have used the money for
their own accord, it was fair and valid reason and the employer was justified
to depart from the Code on procedural matters. During determination of an
application for revision,Rweyemamu, J;affirmed the arbitrator’s findings that
on the evidence available, the misconduct admittedly committed by the
applicants justified the employer’s action of terminating them; thus, it was
unnecessary to terminate them according to the guidelines provided under
the Code. The application was thus dismissed for want of merits. 188

Likewise, in Security Group Tanzania vs Athuman S/O Abdallah, 189 the

respondent was terminated on the ground of gross negligence to property
(i.e., driving the vehicle without water in the engine leading to overheating of
the engine). However, before termination the respondent was subjected to
two disciplinary proceedings on the same facts, whereby he was acquitted
on the first and allowed to resume work, but he was found guilty on the
same ground at the second hearing. The respondent challenged the
aforesaid termination and the CMA ruled in favour of him on the ground that
he was condemned twice for the offence substantially the same contrary to
the double jeopardy principle as envisaged under the labour laws.
Dissatisfied, the applicant filed an application for revision of the CMA
proceedings and the award.

187
Revision No.302 of2010; High Court of Tanzania at Dar es Salaam (Rweyemamu, J
188
Also refer to the case of Tanzania Revenue Authority vs Michael E.Mshighati {Revision No173 of 2010-Labour
Division at Dar es Salaam} whereby Rweyemamu, J held that where there is serious misconduct
(fraudulentlyreceiving money from tax payers being the cost of motor vehicle registration without authorization),
the employer was justified to terminate the contract valid reason) but subject to a fair procedure. In this case, TRA
was ordered to pay 12 months remuneration for failure to comply to the procedural rules
189
Revision No.260 of 2008; High Court of Tanzania at Dar es Salaam ((Unreported)

87
Rweyemamu, J;observed that when assessing substantive fairness of the
matter, the court must consider the factors: that there were two formal
disciplinary hearings, by a properly constituted authority; whether the
decision given was final in the sense that all levels to challenge the decision
had been exhausted according to employer’s disciplinary codes; what
prompted the second hearing such as discovery of substantially new
evidence; and whether the misconduct was in fact proved so as to assess the
appropriateness of the remedy. The trial judge held that the employer did
not show any substantive difference between the charges in the two
hearings, nor explain any new information discovered to prompt the second
hearing, it is hereby confirmed that termination was unfair as found by the
arbitrator; and an application was dismissed for lack of merits.

(b) Proving procedural fairness

As previously stated, the labour laws have entrenched the rules of natural
justice, which the employer should adhere to when terminating a person on
the ground of misconduct. Rule 13 of Code of Good Practice Rules, 2007
impose an obligation on the employer to act in a quasi-judicial manner when
conducting disciplinary proceedings and before imposing disciplinary
penalties. To successfully prove fairness of the procedure, the employer
must do the following before making a final decision to terminate:

i) Conduct an investigation to ascertain whether there are grounds for a

hearing. The law does not state that the employer should engage some
person or institution to conduct the investigation or carry out the process
himself or herself (if employer is a natural person); but to avoid having a
conflict of interest and preventing bias by the employer, an investigation
should be conducted by a different person who does not make the decision
to terminate.

ii) The employer must notify the employee of the allegations or charges
against him or her. This should be done using a form that the employer may

88
subscribe (usually done by issue of a letter or use of a prescribed form and it
should be drafted in a language known to the employee, stating clearly
provisions of the code, rule or contract violated. The charge acts as a plaint
from which an employee gets the basis for preparation of his defence; thus
any change of the charge without notification to the employee vitiates the
process.

In Coca Cola Kwanza Ltd vs Emmanuel Mollel, 190 the employer charged the
employee with gross negligence from which disciplinary proceedings against
him were conducted and defense taken. After the proceedings, the employer
conducted an audit in which the employee was not given a chance to defend.
Upon termination by the employer, the employee successfully referred a
complaint to the CMA; followed by an application for revision of the award.
Mandia, J;held that the purported disciplinary proceedings conducted on the
basis of audit report which became the basis of termination, was not proper
since the employee was not given an opportunity to prepare his defense.

iii) The employer must avail the employee the right to prepare defense
within reasonable time (usually 48 hours). This goes hand in hand with a
right to be represented by a personal representative, trade union leaders or
advocate during the disciplinary proceedings.

Where the employee is alleged to have committed serious misconduct, then

the employer is legally allowed under rule 27(1) to suspend an employee on
full remuneration pending investigation and any other action thereafter.
Furthermore, where misconduct (disciplinary offence) committed amounts to
a criminal act and the person is charged of a crime in court, the employer is
prohibited under S.37 (5) of the ELRA and rule 27(5) of the Code of Good
Practice, from taking disciplinary action in the form of penalty, termination or
dismissal against an employee until final determination by the court and any

190
Application No.22 of 2008 , High Court of Tanzania- Labour Division at Dar es salaam

89
appeal thereto; except that an employer may suspend an employee on full
wage until the matter is finally determined.

In BIDCO Oil and Soap Ltd vs Robert Matonya & 2 Others, 191the respondents
were arrested for theft and taken to the police on 13/7/2007 and were
charged in court on 17/7/2007, later granted bail. On 12 th of the same month,
the respondents reported to work but denied access; after futile attempts for
2 weeks and failure by the applicant to serve them with termination letters,
the respondents referred the matter as a labour dispute to the CMA since the
applicant had stopped paying their salaries from the time they were arrested
by the police, and if at all they had been terminated, the employer did not
comply with rules of natural justice leading to unfair termination. The
employer’s defense was that following report of the theft and arrest,
respondents were terminated on 13 th before they were charged in court on
17th; hence S.37 (5) of the ELRA does not apply in this matter. The arbitrator
ruled in favor of the respondent.

On determination of the revision, Rweyemamu, J; observed the following:

‘...that where an employee’s actions amount to both a disciplinary

misconduct and a criminal offence, the employer has a choice to conduct
disciplinary proceedings, either before criminal proceedings are initiated or
after they are completed; the choice, like any other business choice, is that of
the employer, to be made after weighing circumstances of each case, and
the risks pertaining to the choice made. The applicant in this case made a
choice to terminate the respondents unfairly, and has to face the legal
consequence of that choice.’

Thus, the applicant was ordered to pay compensation for 12 months

remuneration.In another case of Precission Air Service vs
SalvatoryKundy,192the respondent was suspended by the employer without
pay pending the investigation of her alleged conduct of loss of company

191
Revision No.70 of 2009; High Court of Tanzania at Dar es Salaam (Rweyemamu, R.M: )

192
Revision No.111 of 2008; HighCourt of Tanzania-Labour Division

90
monies. Aggrieved, the employee referred the same to the CMA claiming
unfair termination on what she referred to as “being suspended without pay;
the relief sought was payment of unpaid salary for July 2007 and August
2008 amounting to shs.4,740,000/=.” During the arbitration, the employee
added an-un pleaded issue that she be paid salary until the criminal case
was concluded. The CMA ordered the employer to continue paying salary to
the employee until the case was finally determined.

Rweyemamu,J; held thatunder s.37(5) of the Employment and Labour

Relations Act, 6/2004, “no disciplinary action in form of penalty termination
or dismissal shall lie upon an employee charged with criminal offence which
is substantially the same until final determination by the court and any
appeal thereto”; and that under Rule 27(5) of the Code of Good Practice
which provides that where an employee is charged with a criminal offence,
the employer may suspend on full remuneration pending a final
determination by the court and any appeal thereto on that charge. The fact
that the employer (applicant) suspended the employee with no pay to enable
investigation of the alleged loss of company monies constituted unfair
termination with consequential remedies of reinstatement or compensation
of 12 month salary as per s.40(3) of ELRA.

4.4.3 Termination on incapacity

Incapacity is divided into two: factors relating to poor work performance and
those related to ill health or injury. This refers to inability by the employee to
meet the well-established standards of performance in a given industry, but
such standards must be known to the employee

(a) Proof of poor work performance

Rule 17 and 18 of the Code of Good Practice stipulates the factors which an
employer, arbitrator or the court should consider in order to determine the
fairness of termination for poor work performance. However, the issue as to

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poor performance is a matter of fact to be proved on a balance of
probabilities. Specifically the employer must do the following:
 Should carry out the assessment and appraisal in order to determine
whether one is working below the required standards. This requires
involvement of experts to determine the extent of compliance or non-
compliance of the stipulated standards by the employee.
 The employer should counsel the employee on his or her work
performance including telling the employee of the fact of poor performance
and giving one a chance or opportunity to improve. This means that before
an employer thinks of terminating a person, warning counseling and training
should be given.
 Then the employer must carry out an investigation to establish the
reasons as to poor performance, in which the employee gets to explain or
defend himself.
 Then the employer should consider of terminating a person if at all
performance of the employee is so low that it renders him or her incapable of
continuing working with the employer.

(b) Proof of ill health or injury

Rule 19 of the Code provides for substantive fairness whereas rule 21

provides for procedural fairness.
 On proving substantive fairness, Rule 19 provides that an employer
who is considering terminating an employment contract on grounds of ill
health or injury should take into account the following factors so as to
determine the fairness of the reason:
i) the cause of incapacity –whether it is related to the work or
occupation, under which the employer should consider of accommodating an
employee by giving an alternative job; or if related to other factors such as
alcoholism or drug abuse, whereby the proper step would be counseling and
rehabilitation.193
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ii) the degree of incapacity and whether incapacity is of permanent
nature or temporary nature; or it is likely to make an employee not attend
job for long time (unreasonable long absence).
iii) the ability to accommodate the incapacity and the existence of
compensation or pension.

All the above factors must be taken into account wholly (i.e., they do affect
each other). The gist of the above requirements is to seek to ensure that an
employee is not terminated unless such incapacity is of such a nature that
one cannot continue working in any circumstance. Furthermore, the
employer should always consider of offering alternative job to a person
whose ability to work is reduced due to illness or injury.

 On proving procedural fairness, rule 21 of the Code requires the

employer to do the following:
(i) Conduct an investigation as to employee’s incapacity due to ill
health or injury. This involves the question of having an expert
opinion or certification by a registered medical practitioner
(ii) The employee should be consulted in the process of the
investigation and be advised on the alternatives available. The
employee should be represented by a trade union representatives
or a co-employee in the consultation process.
(iii) The employer should outline reasons for action to be taken and
consider any representations made; and if not accepted, the
employer should give reasons.
(iv) The outcome of the meeting should be communicated to the
employee in writing and the reasons thereof.
(v) For HIV workers, the law provides that they cannot be terminated
unless they have been incapacitated by HIV/AIDS. Employees who
have developed full-blown AIDS may have their contracts
terminated on the basis of incapacity (Rutinwa et al, p.133);

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 however the employer shall endeavor to find alternative
employment.

Thus, where the employer wants to terminate the contract of employment on

factors relating to incapacity due to ill health, he must comply with
substantive and procedural requirements as explained above; short of that,
termination will be deemed to be unfair. In Geita Gold Mining Ltd vs Jumanne
Bayasabe,194the respondent was terminated on 5/10/2007 by the
employer/applicant on account of incapacity due to ill health. The respondent
referred the complaint to the CMA on 30/10/2007 seeking an order for
reinstatement. A certificate of non-settlement was issued by the CMA on
22/11/2007.The dispute was arbitrated and award issued in favor of the
respondent on 3/10/2008 because the applicant did not follow the procedure
under Rule 19(13)(b) of the ELRA. Dissatisfied, the applicant filed an
application for revision of the award in the Labour Court.

It was argued on behalf of the applicant that there was no basis of ordering
reinstatement because the arbitrator had found it as a fact that termination
was for a valid reason since there was no evidence that light duty was
available. On the other hand, the respondents submitted that the applicant
erred to terminate him while he was still on medication and before expiry of
the light duty period; and that the light duty like painting which he was
working on was available and that the employer did not provide evidence to
disapprove the same.

Upon determination of an application for revision, Rweyemamu, J; observed

the following:
‘...that the ‘evidence submitted to the CMA showed that the respondent was injured
while at work and that the applicant could accord the respondent alternative light
work, and not that no alternative work was available as submitted by the applicant. It
was also undisputed that the respondent was terminated while still undergoing
treatment. On the other hand, the respondent adduced no evidence to prove that

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 termination was fair in terms of the law; and that under rule 19(2) of the Code, where
an employee is injured at work, or he is incapacitated by a work related illness, the
employer shall go to greater lengths to accommodate the employee’s disability. This
means in cases of this nature, it is the duty of the employer to adduce evidence to
prove that before deciding to terminate the respondent, he had undertaken steps
enumerated above. In this case, the applicant did no such thing but seemed to be,
and continues to be under a mistaken belief that payment of terminal benefits; and a
doctor’s opinion that the respondent could not at the time of termination perform the
duties of the position he was employed, were sufficient grounds to establish fair
termination. Such, as demonstrated above, is not the legal position. On the other
hand, the respondent gave evidence that he was still undergoing treatment and was
improving, that he could and was doing alternative work , and that such work was
available; thus, the arbitrator’s award was based on evidence or lack of it on the part
of the applicant, and that there was no material error or deviation from the law in the
CMA proceedings to justify grant of the order prayed for.’

4.4.4 Termination related to incompatibility

Rule 22 of the Code of Good Practice Rules, 2007 provides that termination
on incompatibility shall constitute a fair reason for termination. This may
happen due to either unsuitability of the employee to his work caused by his/
her character or disposition; or incompatibility due to bad relationships with
co-employees, clients or other persons who are vital for the employer’s
business.

Principally, incompatibility is treated in a way similar to incapacity for poor

work performance. Thus, the employer should have a code (not necessary) in
place stipulating on the intercourse between employees inter se, and
between the employees and the clients. The procedures to be observed by
the employer before terminating an employee on factors related to
compatibility include:
 The employer should record the incidences that cause disruptions at
the work place
 The employer should provide a warning to an employee; thereby giving
one a second chance to improve or change the character. This should be
accompanied by counseling as a way to rehabilitate an employee.
 Then, if the employee does not change, an employer can proceed to
terminate the contract subject to giving an employee a chance to respond to
the allegations. This is done by way of giving notice of termination and
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conducting a fair hearing (this is due to the fact that a cause of
incompatibility may also be a disciplinary offence)

4.4.5 Termination of employment on operational requirements

This is sometimes referred to as redundancy and it is provided for under S.38
of the Employment and Labour Relations Act read together with rules 23 to
25 of the Code of Good Practice Rules, 2007. An operational requirement is
defined as a requirement based on the economic, technological, structural or
similar needs of the employer. It is a termination based on reasons beyond
the control of the employer or unforeseeable by the employer (i.e., no fault
on the part of the employer). Where it appears that there is self-induced
retrenchment, the employer will be said to have unfairly terminated the
employees. In Metal Product Limited vs Mohamed Mwerangi and 7
Others,195the court observed that substantive unfairness exists where on the
facts and evidence adduced, the arbitrator believes, on balance of
probability that retrenchment was not warranted/necessitated by operational
requirements of the employer’s business; or that in the circumstances of the
case, it was not only viable option, and/or that operational requirement was
given by the employer as a pretext.

As usual, to prove that termination on operational requirement is a fair one,

the employer should abide by statutory substantive and procedural
requirements

(a) Proof of operational requirements

According to Rule 23(2) of the Code, there are three circumstances that may
legitimately form the basis for termination on operational requirements. The
employer should prove that termination was caused or occasioned by either
the following things or reasons:

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  Economic needs that relate to financial management of the enterprise,
e.g., where there is economic crisis or recession to the extent that the
employer’s business is affected.
 Technological needs relating to the introduction of new technology
which affects work relationship by making the existing jobs redundant
or requiring the employer to restructure the business
 Structural needs that arise from restructuring of the business as a
result of a number of business related cause such as merger of
business, change in the nature of the business, more effective ways of
working, a transfer of the business or part of the business

However, despite the reasons above which may occasion termination, the
employer is obliged to ensure that the laid down procedure is exhausted
though not in “a check list fashion”. For successfully proving that the
procedure was fair, the employer should ensure that the following things are
done:
(i) The employer must give a notice of retrenchment as soon as he
apprehends that there is a possibility to retrench employees (i.e., once
he encounters a reason justifiable by the law). This is usually done by
way of affixing a notice in the place open to all employees (public
boards) or through a notice to the employees through a trade union
branch. The employer must disclose all relevant information on the
intended retrenchment for the purpose of proper consultation.
(ii) Then, the employer should conduct or carry out a fair consultation
procedure; here the employer should meet the employees and trade
union leaders (where there is any) in a way conducive to them at the
work place or any other place agreed by the parties. A fair consultation
was defined by Glidewell, L.J; to mean: consultation when the
proposals are still at a formative stage; adequate information on which

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 to respond; adequate time in which to respond; and conscientious
consideration by an authority of the response to consultation. 196

The intention of consultation procedure is to ensure that the employer

and affected employees do agree on the alternative ways/ways to
minimize the intended retrenchment such as transfer to other jobs,
voluntary retrenchment package, early retirement, and so forth. Where
no alternative measures are possible, the parties should agree as to
terminal benefits such as severance pay, transport allowance and
other statutory rights as per s.44 of the ELRA. If an agreement is
reached, then it will be binding on the parties as a collective
agreement in terms of s.71 (3) (c) of the ELRA.

(iii) The employer and employees should agree as to criteria for selection
of employees to be retrenched. If not agreed upon, then the criteria used by
the employer shall be fair and objective provided they do not infringe a right
protected by the ELRAe.g., selection basing on trade union membership or
activity, pregnancy or other grounds mentioned under s.7 of the Act. The ILO
provides for the two ways of selecting employees: LIFO (Last In First Out) and
FILO (First In Last Out). In any case the employer should retain key jobs,
experience or special skills, affirmative action and qualifications.

(iv) Where an agreement is not reached, then the matter should be

referred to the CMA for mediation. The employer is prohibited from
implementing the retrenchment within 30 days of mediation or any other
period agreed by the parties. However, after lapse of 30 days the employer
may unilaterally implement the decision, but with a consequence that it may
be challenged on basis of unfairness at arbitration stage. 197

The need to observe the procedural requirements by the employers has

been insisted by the court in various cases. In case of Metal Product Limited

196
R vs British Coal Corp ex p Price (1994) IRLR 72 (as refered in Jefferson’s book, p.279)
197
Rule 23(9) of the Code of Good Practice Rules, 2007 (G.N.No. 42)

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vs Mohamed Mwerangi and 7 Others, 198 the respondents were terminated by
the applicant on the ground of operational requirements and referred the
matter to CMA on 28/12/2007 on the ground that they were substantively
and procedurally unfairly terminated. They alleged that reasons put in the
termination letter were not true (not for valid and fair reason) and that the
employer did not put the information of the intending termination on the
notice board. The arbitrator found out that the respondents’ termination was
procedurally unfair in that the applicant did not give notice to retrench as
soon as it was contemplated and did not consult the retrenchment
committee on the retrenchment package.

The trial judge, Rweyemamu, J: observed inter alia, observed that:

‘...various stages itemized under s.38 of the ELRA are not meant to be applied in a
check list fashion, but rather provide a guideline to ensure that the consultation is
adequate and covers all vital matters. Consultation is conducted with a view to
reaching an amicable settlement, and where there is an impasse, the law provides
that the matter should be submittedto mediation. Where such consultation result in
an agreement, signed by recognized representatives of the parties as was done in
this case; then the requirements of the law have been met.’

In Hassanal Chongolo vs Selous Farming Ltd, 199the applicant referred a case

to the CMA against the decision of the respondent to terminate him on
ground of redundancy. The CMA held in favour of the respondent on the
ground that the procedure for termination was fair (complied with).
Dissatisfied by the decision, the applicant filed an application for revision on
grounds that the arbitrator erred in law and fact in concluding that the
applicants and their union branch were properly consulted.

It was submitted for the applicants that the employer only gave notice of
intention to retrench, informed all workers in a general meeting of the
exercise and thereafter implemented its decision without consultation of the
union branch as required by law; and that there was no agreement
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concluded by the parties. On the other hand, it was submitted for the
respondents that there was consultation made whereby three weeks after
the notice, the management called a meeting of head of departments and
TPAWU union leadership; explained economic hardships that the company
was experiencing resulting into failure to sell some of their products. Then,
the company called another meeting with all workers whereby all workers
were given opportunity to voice their opinion, and thereafter the applicants
were terminated; hence, the procedure was observed by the respondent.

Rweyemamu, J; held that the decision by the arbitrator was correct since
consultation was done by the employer in the meaning of s.38 of the
ELRAread together with rule 23-24 of the Code of Good Practice. It was
further observed that the stages provided are not meant to be applied in a
check list fashion; rather they are meant to provide guidelines to ensure that
consultation is fair and adequate. There is no requirement that there should
be a signed agreement as evidence of consultation, but that where there is
no agreement reached after consultation the matter shall be referred to the
CMA for mediation. The arbitrator’s decision was confirmed with order that
where economic environment of the company improve, the applicants should
be given priority in hiring as indicated in the retrenchment letter.

Another case on the proper retrenchment procedure is that ofRiakdit

Barnabas vs BP Tanzania Ltd,200wherethe dispute arose from a retrenchment
process carried on by the employer. It was based on procedural unfairness
and the quantum of benefits payable to him. The complainant was recruited
in London as the Regional IT Director in 1999 and that he was a member of
the respondent’s management team. The complainant argued that he
exhibited professionalism and aptitude towards his work during his
employment period.

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The respondent commenced restructuring of the business in 2008 and that it
was a policy of the respondent that all employees would be given all
information relating to retrenchment process so that each employee could
either opt for voluntary retrenchment or apply for new post(s) in the
company. It was also respondent’s policy that all employees be given first
information on the retrenchment package and the information on the
application so that an employee could make an informed decision whether to
opt for either a retrenchment package thereby voluntarily being retrenched
or to apply for a new post. It was agreed that the complainant was availed
with information relating to application for new post, and that the respondent
issued a retrenchment package on the 13 th day of May, 2008; that the
deadline for new job application was 12th day of May, 2008 and that the
complainant attended Management and TUICO Meetings in respect of the
restructuring.

The issue before the court waswhether the complainant was duly consulted
before his termination as per company’s policy?It was submitted for the
applicant that he attended a consultative meeting with TUICO as part of the
management team and not in his personal capacity, and that the information
disclosed during the meeting was not applicable to him since he was not a
member of the union as per rule 50(5) of GN.No.42/2007 and s.99 (3) of the
ELRA: and that it was the company policy that the complainant be consulted
individually as per s.38 (1)(d)(iii) of the ELRA. On the other hand, it was
argued by the respondent that there was no law which requires individual
consultation of non-union members and that no procedure has been
provided for consultation of employees in the managerial positions.

Rweyemamu, J; held that the agreement and negotiations made between

TUICO and the respondent including agreement to apply the 2005
recruitment package, was not applicable to the complainant because not
only was he part of management, but also because TUICO was not a
recognized exclusive bargaining agent in terms of s.67 of the ELRA. The
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complainant was technically not duly consulted to make a rational decision
on whether to resign or to apply for the new job, hence complainant’s
termination was procedurally unfair, which is in law, a recognized unfair
labour practice.

However, in the above case, the court did not invoke s.40 of the ELRAsince it
would be wrong as the complainant was in a position to know that his post
was subject to recruitment as he did attend meetings to that effect. It is
important to note that despite the procedural requirements as to
consultation and notification, there is no provision in the law that prevents
employers from dismissing employees for redundancy case.

4.5 Conclusion
Determination of fairness or unfairness of an alleged termination of contract
requires broad understanding of the rules. As previously observed, a
conclusion by the arbitrator or court that termination of a contract in a given
circumstance is a fair one, concern must be given to both substantive and
procedural aspects of the law. The next chapter provides for the
consequences of unfair termination of an employment contract, or also
called terminal benefits.

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 CHAPTER FIVE

REMEDIES FOR UNFAIR TERMINATION OF EMPLOYMENT

5.1 Introduction
It’s a law and practice common to all societies in the world that where a
person acts contrary to the established standards or code of conduct, he or
she must be punished. This may take different forms including imprisonment
and fine/compensation. Similarly, employment laws in Tanzania have
sanctions imposed on employers and employees who contravene provisions
of the law relating to termination of employment. The Act establishes two
institutions, namely: Commission for Mediation and Arbitration (CMA) and
Labour Court, which may give different orders to employers and employees
as remedies for unfair termination of an employment contract.

According to S.40 of the ELRA, an arbitrator or a Labour Court is vested with

discretionary powers to award remedies, namely: re instatement, re
engagement and compensation of at least 12 months remuneration.
However, this discretion cannot be exercised arbitrarily but judiciously as it
was held in Maxon Paper Converted vs Joyness D.Kiluwa. 201In this case
anaward of payment of 15 months’ salary to the respondent as a remedy for
unfair termination was set aside on the basis that the arbitrator exercised

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improperly discretionary powers, in the sense that reasons were not given as
to the award above statutory compensation.

These three remedies are only awarded where it is established that

termination by the employer is not fair taking into account reasons and
procedure for termination of employment contracts. The awards may be
granted in the alternative. In BIDCO Oil and Soap Ltd vs Robert Matonya & 2
Others,202 the courtheld that where it is established that an employer’s action
amount to unfair termination in terms of the law, the mandate of an
arbitrator is to order remedies prescribed by law, which are: re-instatement,
re engagement or compensation under s.40 (a), (b) or (c) or using discretion
order compensation under s.40 (2) of the ELRA.

The order as to compensation can be given where the employer does not
wish to re instate or re-engage the employee; or where in the mind of the
arbitrator, the employee cannot continue working with the employer under
the prevailing circumstance.

5.2 Differences between re instatement, re engagement and

compensation
Section 40 of the ELRAtries to explain the difference between re instatement
and re engagement. However, the law does not clearly stipulate under what
circumstance these remedies can be awarded. The Labour Court has
provided assistance through interpretation of the law and the practice at the
CMA.

(a) Re-instatement

Re instatement means that a person is restored to his pre-dismissal job and

his benefits are retained, i.e., one is treated as not having been dismissed. 203
Likewise, s.40 (1)(a) of the ELRA provides that an employee goes back to

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Jefferson M (2000) Principles of Employment Law, 4th Edition , p.358

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his/her place of work without loss of remuneration and allowances. The law
assumes that an employee has never been terminated from work by the
employer. Thus, the employer takes back the employee on the same terms
and conditions including benefits, job position, and other entitlements as per
terms of the contract. InPrecission Air Service vs Salvatory Kundy, 204the
respondent was suspended by the employer without pay pending the
investigation of her alleged conduct causing loss of company monies. When
the matter was taken to the Labour Court, Rweyemamu, J; held that the fact
that the employer (applicant) suspended the employee with no pay
toconduct investigation of the alleged loss of company monies constituted
unfair termination with consequential remedies of reinstatement or
compensation of 12 month salary as per s.40(3) of ELRA. In this case there
was both substantive and procedural unfairness of termination by the
employer.

(b) Re engagement
Re engagement is partly defined under s. 40 (b) of the ELRA as to re-employ
an employee on such terms as the arbitrator or labour court may decide, i.e.,
his employment starts afresh. So he may occupy a different position. The
order as to re engagement is appropriate when the reason for termination is
not fair and valid (substantive unfairness) regardless of fairness of the
procedure to effect termination.

In Tanzania Revenue Authority vs Michael E.Mshighati, 205the respondent was

terminated on ground of misconduct (fraudulently receiving money from tax
payers being the cost of motor vehicle registration without authorization/he
had no capacity). At the CMA, the arbitrator found in favour of the
respondent on the ground that since the principles of natural justice had not
been observed (procedural fairness), then there was no need to look into

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substantive matters of termination.206. The arbitrator ordered the employer
to reinstate the employee.

On revision, Rweyemamu, J; affirmed the arbitrator’s reasoning that

termination process was not done according to law. However, the court
found out that termination was for a valid reason; hence it quashed and set
aside the arbitrator’s reinstatement order. It was held that re instatement
order would be justified where termination is adjudged both procedurally and
substantively unfair. The court ordered the employer to pay 12 month’s
remuneration.

(c)Compensation
This must be at least 12 months remuneration compensation. It will only be
given where neither of the above two remedies is possible. Section 40(3) of
the ELRA provides that where there is an order of re-engagement or
reinstatement and the employer does not take him back, the employer will
pay 12 months compensation plus other benefits, i.e., full remuneration and
allowances in those days of dispute, andother terminal benefits under s.44 of
the ELRA.

5.3 Notice of Termination

As previously explained, before any person terminating a contract of
employment (be it an employer or employee), he must give a notice of
termination to another party to the contract. If one does not wish to give a
notice, then he or she must pay a sum equal to the notice period (e.g., if
notice is seven days, then one must pay remuneration equal to seven days,
etc.) The right to terminate without notice arises where the employer or
employee breaches a material term of the contract as affirmed by s.41 (7)
(b) of ELRA – termination for any cause recognized by law (e.g.,

206
This was observed in the case of Jimmy David Ngonya vs NIC Ltd (1994) TLR 28; also DPP vs Sabini Nyasi Tesha
and another (1993) TLR 237.

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discrimination, where an employee competes with his/her employer, or
where there is a breach of the employment standards)

The actual notice period depends on the nature of the contract:

 If an employee is terminated during the probation period, seven days’
notice should be given.
 After the expiry of the first month of employment, the notice period
shall be four days if the employee is engaged on daily or weekly basis, i.e.,
where the employees wage is calculated on daily or weekly basis
respectively; and
 If an employee is employed on a monthly basis, notice period is 28
days (calculation of a wage is on monthly basis)

Section 41 (2) of the ELRAprovides that the employer and employee may
agree on longer notice of termination but such agreed period should be
equal to all the parties. The employee is obliged to continue working during
the notice period, otherwise the employer is allowed to deduct from any
money due to employee. The notice of termination must be in writing, state
the reasons for termination and the date on which it was given. This is to
ensure that an employee is given an opportunity to know the reasons and be
able to challenge the decision by the employer.

5.4 Terminal Benefits

Section 44 of the ELRA provides for terminal benefits on termination of
employment. These benefits are distinguishable from those under s.40 of the
Act. While the latter section applies where the employer unfairly terminates
an employee (remedies for unfair termination), the former applies when a
contract of employment is terminated by the employer. Terminal benefits
under s.44 of the Act are payable where the contract of employment is
terminated by the employer. These include:
(i) Any remuneration for work done before termination.

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(ii) Any annual leave pay due to an employee for leave that the employee
has not taken
(iii) Any annual leave pay which has accrued before the date of termination,
i.e., for the days worked in the leave circle on pro rata basis. This depends
on how an employee’s wage is calculated: on hourly, weekly, or monthly
basis.
(iv) Thenotice pay (unless notice was given)
(v) Severance pay under s.42
(vi)Transport allowance under s.43
(vii)Prescribed certificate of services (usually prescribed by the minister but
employer may prepare their own certificate of services)

5.4.1 Severance pay

(a) Definition of severance pay

This is a payment meant to cushion the blow of unemployment and as a

gratuity or compensation for the services rendered and as compensation for
the employee who has lost his/her job through no fault of his/her own. The
amount payable is at least equal to seven days’ basic wage for each
completed year of continuous service up to the maximum of ten years. 207.
However, the rate payable may be improved by the parties through
collective agreements.

(b) Applicability of the provision

Severance pay is only given where a contract of service is terminated by the
employer and not terminated by the employee, unless it is a forced
resignation/constructive termination. In Coca Cola Kwanza Ltd vs Kajeri
Misyangi,208the respondent voluntarily resigned from employment and
sought for terminal benefits from the employer. The CMA found out that the
207
S.42 of the ELRA

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respondent quitted the job voluntarily but he was entitled to subsistence
allowance, transport allowance and severance allowance. Dissatisfied, the
applicant sought for revision of the award. The issue before the court was
whether having voluntarily resigned, the respondent is entitled to transport
allowance, subsistence and severance allowance.

Moshi, J; held that terminal benefits are paid only in those cases where the
termination of employment was due to factors beyond the control of the
employee, i.e., where termination of services was by employer or where it
would be proved that the resignation amounted to constructive dismissal.
The court further held that under s. 42 and s.43 of the ELRA, severance
allowance, transport and subsistence allowances are payable where the
contract is terminated by the employer.

The provision also apply to the employees who are working on permanent
basis and on daily basis (daily-rated employees) provided a condition as to
continuous 12 months’ service is observed. InStephen Milanzi vs
Dr.Emmanuel Mkisi & Milka E. Mkisi,209it washeld that a daily rated employee
is not entitled to severance pay under s.42 of the ELRA unless such a person
has completed 12 months continuous service. Similarly, in Abdallah
M.Simba& 26 Others vs Said Salim Bakhresa, 210when addressing the issue as
to whether employees under specific task contract (those who are paid on
daily basis) under S.14 (1) (c) of the ELRA are entitled to terminal benefits,
including severance allowance, Moshi, J; held that since the contract for a
specific task under s.14 (1) (c) of the ELRA ends at the end of each day. The
employee is not entitled to severance allowance and other terminal
benefits.211

209
Labour Revision No.315 of 2009; High Court of Tanzania at Dar es Salaam (Rweyemamu)
210
Labour Revision No.195 of 2009; High Court of Tanzania at Dar es Salaam (Moshi, J)
211
This was also observed in the case of 2000 Industries Ltd vs Rehema Juma& 6 Others (Labour
RevisionNo.39/2008),whereby the court held that as the contract started in the morning and ended at the end of
the working day, the employees were not entitled to severance allowance

109
Likewise, in Omary Mkele& 20 Others vs M/S Shipping Freight
Consultant,212Mandia, J; held that workers employed for specific task and
paid on daily basis under s.14 (1)(c) of the ELRA are not entitled to
severance pay save for the notice pay of four days.

(c)Conditions for severance pay

The following are the conditions under which severance allowance is
payable:
(i) Severance allowance is payable by an employer where the employee has
completed 12 months of continuous services with an employer and the
employer has terminated the employment. This means that where the
contract is terminated before lapse of one year or where the contract is
terminated during the probation period, an employee cannot be entitled to
severance allowance/pay. In Meneja, Mama Clementina Foundation vs
Laurence, Erasmus Malekela,213the respondent who had worked for 11
months including 6 months’ probation period, was terminated for grounds of
misconduct. At the CMA, the arbitrator awarded the employee a statutory
compensation of 12 months remuneration (Tsh.4, 621,824=), transport
allowance (Tsh.180, 000), leave pay (Tsh. 338,180/=) and severance
allowance (Tsh. 45, 524). On revision, the trial judge (Moshi, J;) observed that
the respondent was not entitled to severance pay sincehe had not yet
worked for one year as per s.42 of the Act.

(ii) Severance pay is not payable if the termination is fair and based on
grounds of misconduct; or if termination is based on grounds of incapacity,
incompatibility or operational requirements and the employee refuses to
accept alternative employment with the same employer or another employer
without justifiable grounds.

212
Labour Dispute No.6 of 2008-High Court of Tanzania at Dar es Salaam (Mandia, J)
213
Revision No.2 of 2011; High Court of Tanzania-Labour Division at Iringa (Moshi,J)

110
5.4.2 Transport allowance (also known as repatriation)

(a) Conditions for payment

According to s.43 of the ELRA, this is payable if the contract of employment
is terminated by the employer, and where an employee is terminated in a
place other than the place of recruitment. This means where the employee
resigns from work, he cannot be heard to claim for transport and subsistence
allowance as it was held in the case ofCoca Cola Kwanza Ltd vs Kajeri
Misyangi.214

The law clearly provides that where an employee’s contract of employment

is terminated in a place other than where the employee was recruited, the
employer is bound to repatriate such employee to his or her place of
recruitment. The issue as to the place of recruitment is addressed under S.43
(3) of the ELRA to mean, a place where the employee was solicited by the
employer. This does not necessarily mean a place of domicile.

(b) Forms of repatriation

According to s.43 (1) of the ELRA, the employer is given discretion to effect
payment of transport allowance in three ways:
i) Transporting the employee and personal effects. This excludes members
of the family (wife and children), and it may be implemented by providing a
vehicle to carry the employee and his personal effects.
ii) Pay for transportation of employee to the place of recruitment. This is
the actual cost of transporting an employee to the place of recruitment.
Family members are not covered in the calculation of the transport costs.
iii) Pay the employee for transport allowance to the place of recruitment
(bus fare from a place of termination to the place of recruitment) plus the
daily subsisting expenses between the date of termination and repatriation,
including living expenses of his or her family members. This form of

214
Revision No.238 of 2008; High Court of Tanzania at Dar es Salaam (Moshi, J)

111
allowance recognizes the fact that an employee is not an ‘island’ rather a
person who is bound to engage in social life, including marriage and family
matters.

CHAPTER SIX
LABOUR DISPUTE SETTLEMENT PROCEDURES IN TANZANIA

6.1 The nature of labour dispute

(a) Introduction

Generally, all disputes between the employer and employee (either a

complaint or dispute of interest) must be referred to the Commission for
Mediation and Arbitration in the prescribed form (Form No.1) which must be
served on the other party. On receiving the referral form, the CMA must
appoint a mediator and decide the time, date and place of the mediation.
This is normally done through a summons issued by CMA. The mediator is
obliged to resolve the dispute within 30 days – but parties may agree to

112
extend the time if there is likelihood of resolving the dispute. 215 If the
mediator fails to resolve the dispute within 30 days what follows next will
depend on whether “the dispute is of right” or “dispute of interest”. Where a
dispute is of right, the next procedure is that of arbitration and if it is that of
interest, the parties may resolve to industrial action (Strikes or Lockouts)
subject to the prescribed procedures.

(b) Distinction between dispute of right and dispute of

interest
Section 4 of the Employment and Labour Relations Act 2004 provides for the
definition of a complaint/dispute of right. It means any dispute arising from
the application, interpretation and implementation of an agreement or
contract with an employee, a collective agreement, the Employment and
Labour Relations Act or any other written law. It is a dispute on what an
employee is entitled to or dispute on interpretation of the instruments
containing the rights of an employee, to wit: contract of employment,
collective agreement and laws. For example, where the employer rejects to
pay the monthly wage and overtime payment to an employee, or where the
employer terminates the contract without valid and fair reason and without
complying with the prescribed procedures, or where the employer fails to
adhere to a collective agreement providing for the terminal benefits in case
of retrenchment; such disputes concern with employees’ rights and hence,
disputes of rights.

On the other hand, a dispute of interest is defined to mean any dispute

except a complaint. It is a dispute on a future right, in the sense that it
involves claims by employees which are not their rights at the time of
demanding them from their employers. For example, where employees are
pressurizing the employer for increase of wages over and above their
statutory or contractual rights, or where employees do claim for better

215
S.86(4) ELRA

113
working conditions and allowances not provided for in their contracts; such
disputes are said to be of interest.

(c) Right of representation

The current labour law has extended a right of representation to each
person (both employer and employee) at any stage of the dispute. In any
mediation, arbitration and court proceedings, parties may appear in person
or be represented by a member of Trade Union or Employers’ Association, by
an advocate or through a personal representative. This guarantees a right to
legal representation in the country, irrespective of the social status; unlike in
other civil proceedings whereby only advocates and authorized agents may
appear in court.216

5.2 Mediation
6.2.1 Definition of Mediation
Mediation is the intervention into a dispute or negotiation by an acceptable,
impartial and neutral third party, who has no authoritative decision making
power, to assist disputing parties in voluntarily reaching their own mutually
acceptable settlement of issues in dispute. 217 It is a friendly or diplomatic
intervention usually by consent or invitation for settling disputes. The term
mediation is sometime referred to as conciliation, but the latter is different in
the sense that the conciliator can propose solutions to the parties. Rutinwa
defines mediation as a facilitation process in which a mediator is appointed
by the Commission for Mediation and Arbitration (CMA) to assist the
disputing parties in their attempt to resolve their dispute conducted in terms
of section 86 of the Act.218

6.2.2 General features of Mediation

There are five general features of mediation, namely:

216
Refer to Ss.86(6) and 88(7)of the ELRA
217
Michael Palmer & Simon Roberts (1998);Dispute Processes: ADR and the Primary Forms of Decision Making,
Redwood Books Trowbridge, Wiltshire; Britain, p.101
218
Rutinwa et al(eds) op.cit p.152

114
i) There is interposition of a third party known as mediator, who
assists the parties to resolve the dispute amicably.
ii) The role of third party (mediator) requires a high degree of
independence; hence the person acting as a mediator should not be
associated with the parties to the dispute or in any way, the mediator should
have no conflict of interest with the matter and the parties.
iii) The outcome of the process is voluntary since it relies on the
consent of the parties (known as mediated agreement). The mediator is not
vested with powers to make decision for the parties; doing that would
compromise his role as mediator. For example, in the case of M/S Namera
Group Industries (T) Ltd vs. Juma Zimbabwe&58 others, 219the mediator after
lapse of 30 days, following non-appearance by the employer (default)
proceeded to issue an award. Mandia,J; held that where a mediator fails to
resolve the dispute thenthe Commission is bound to appoint an arbitrator;
and that since the functions of the mediator and arbitrator are different, it is
only an arbitrator who can make an award; hence the mediator exceeded his
mandate by giving an award. The impugned award was set aside and the
court remitted the case back to the CMA to be determined according to law.
iv) There are no prescribed rules of procedure and the process is
determined by the parties; in other words, mediation is a less formal process.
Mediation can be conducted at any place chosen by the parties
v) There is overriding duty of confidentiality; disputants are not
allowed to disclose any information to any other person unless such
disclosure is warranted.220

6.2.3 Circumstances under which a mediator can make

decision/award
Generally, a mediator is not allowed to make a decision on the parties;
however, there are situations whereby the mediator may make decision
during mediation process. For example, where jurisdiction of the mediator is
219
Revision No.5 of 2008; High Court of Tanzania at Dar es Salaam (Mandia, J),
220
Rule 8 of GN.67/2007

115
raised at the beginning of the process, the mediator is obliged to determine
the same before proceeding with the matter; or where one of the parties fails
to appear during mediation process. This was held in the case of John Msisi
vs CAMI Apparel Limited,221whereby Rweyemamu, J; held that a mediator can
make a decision under s.87 (3) (b) of the ELRA, where a party fails to turn up
for mediation of a complaint. Furthermore, a mediator can make a decision
under rule 15 of the Labour Institutions (Mediation and Arbitration) Rules
2007,222where it appears that a jurisdictional issue arises. Where the issue of
jurisdiction is raised, the mediator is required to make a decision on the
issue and whoever is dissatisfied, can apply for revision or review of such a
decision. The court ruled that the mediator acted within the law.

6.2.4 Scope of Mediation

The purpose of mediation in resolving labour dispute is to ensure that there
is amicable settlement so as to protect labour relations between the
employer and the employee. This has well been elaborated under s.3 of the
ELRA providing for the fundamental objectives. To realize these objectives,
the labour laws in Tanzania have entrenched mediation at every stage of
resolving the dispute. For example, s.86 (8) of the ELRA provides that even
where mediation has failed the mediator remains seized with powers to
mediate the parties and he may convene meetings to resolve the dispute
even if the dispute is at the stage of strike, lockout, arbitration or
adjudication.

The current labour law subjects all disputes to a mediation process, whether
a dispute is of right or interest. In the case of Salim Kitojo vs Vodacom (T)
Ltd,223the complainant filed a case in court seeking for reinstatement on the
ground of unfair termination, but he did not first refer the same for mediation
as per requirement of the law. An objection was raised on the ground that
the case was incompetent before the court for lack of jurisdiction.The

221
Revision No.208 of 2008; High Court of Tanzania at Dar es Salaam
222
GN 64 of 2007
223
Complaint No.4 of 2008; High Court of Tanzania at Dar es Salaam

116
complainant incorrectly argued that the case was not of interest rather he
sought for interpretation of the court. It was held that under s.86 (1) of the
ELRA, the complaint should have gone through the CMA.It is only after
mediation has failed that the complainant has the choice either to go for
arbitration under S.86 (7) (b) (i) or to refer a matter to the labour court under
s.86 (7)(b) (ii) of the ELRA. Thus, the complaint was prematurely before the
court.

The same position was observed in the case of James Kajo & Others vs
Precision Air Services Ltd.224The complainants were terminated on 1st
October, 2008 and filed a joint claim of unfair termination in the labour court
claiming compensation and arrears of unpaid overtime listed as: James Kajo
{Tsh.46,200,000/=}, Samuel Kilunga {Tsh.52,142,362/=}, Yusuph
Lwambano {Th. 67,810,000=} and Endrew Shija{Tsh.43,050,000/=}. The
claim was resisted by the respondent (employer). The parties filed their Non
Settlement Order (NSO) on 18/6/2009 as per rule 10(4) of the Labour Court
Rules225 incorporating the respondent’s PO that the claim was prematurely
before this court since it was not first referred to the CMA as required by law.
It was held that all disputes relating to unfair termination must first be
referred to the CMA, i.e., the CMA has jurisdiction to mediate a dispute even
if it is above its pecuniary jurisdiction except matters reserved for the court
in which case the CMA would lack jurisdiction to arbitrate it. Thus the
complaint was prematurely filed in the court.

6.2.5 Referral of the dispute to the CMA

(a) Mode of reference to the CMA
As previously stated, when a dispute arises, the applicant must file a dispute
vide Form No.1 stating the nature of a case and relief sought by the
applicant. This normally acts as a plaint, in the sense that, the applicant
indicates nature of a case by putting a mark on the applicable item (e.g.,

224
Labour Dispute No.49 of 2008; High Court of Tanzania at Dar es Salaam
225
GN.106/2007

117
unfair termination, and relief sought (compensation, reinstatement or re
engagement). The applicant must sign on the form and if applicants are
multifarious, they must all sign on the document (Form No.1 or indicate that
one is suing on behalf of others; otherwise, one will be said to be not a party
to the suit. This was held in the case of Tarmal Industries Ltd vs Tabu
Mohamed and another; 226
in which Moshi. J; observed that Form No.1 ought
to be signed by the party or parties and also show that someone is acting on
behalf of others as per rule 5(1) (2) (3) of GN 64 of 2007; failure to indicate
and comply with provisions of this Rule renders second respondent not a
party to the proceedings.

The information filled in by the applicant cannot be changed unless leave is

sought and granted; otherwise, no claim may be made which is not
contained in the form. On the other hand, the mediator/arbitrator can neither
make changes/ alterations of the contents of Form No.1 nor grant relief not
provided for in the form. This was established in the case of Irene Nide
Mwaitekele vs I.O.T(T) Travelling Bags Ltd; 227where the applicant filed an
application in the CMA. In Form I part A the applicant indicated as the
outcome “to be recognized as a bona fide employee in respect of numbers of
years that I have been engaged”. In part B of the form which deals with
termination of disputes only, the applicant claimed nothing. The arbitrator
found out that the applicant was an employee of the respondent but did not
award any compensation to the applicant since the same was not sought for.
This gave rise this application for revision seeking for payment of terminal
benefits (overtime for 5 years, leave for 5 years, repatriation and NSSF
contribution). It was held that since the items in the affidavit were neither
claimed, nor made part of the issues identified during arbitration (in the
reference form) as such, the arbitrator acted properly in not considering
them; hence such claims have no merit and dismiss them

226
Revision No.258 of 2009; High Court of Tanzania-Labour Division (Unreported)
227
Revision No.127 of 2008; High Court of Tanzania at Dar es Salaam

118
The same position was established in the case of Power Roads (T) Limited vs
Haji Omari Ngomero,228 in which Rweyemamu, J; held that the act of the
arbitrator to make changes, suo mottu, on what appeared on the referral
form (overtime pay -Tsh.546,000) to compensation for unfair dismissal and
seventeen days leave was contrary to section 20 of the Labour Institutions
Act.229

(b) Late referrals of dispute to the CMA

The importance of limitation in civil suits was stated by the Court of Appeal
of Tanzania in the case ofTanzania Fish Processors Ltd vs. Christopher
Luhangula,230where it was held that limitation is a material point in the
speedy administration of justice and that it is there to ensure that a party
does not come to court as and when he chooses. The current labour law
provides that an action for unfair termination must be lodged to the CMA
within 30 days following the decision to terminate by the employer; and in
other dispute, reference must be done within 60 days. 231

The calculation of the time for purposes of limitation excludes the first day
but includes the last day.232 This was determined in the case of JohnMsisi vs
CAMI Apparel Limited;233where the applicant referred a dispute of unfair
termination of employment to the Commission on 13/8/2008 (a date on the
official endorsement stamp on Form No.1, but the information entered on
Part B (2) of that form indicated that employment was terminated on
15/8/2008). In the submission in response to the PO the date of receipt of the
termination letter was indicated as 12/7/2008. The CMA found out that the
applicant received termination letter on 12th July 2008 and made the referral
on 13th August 2008 which amounted to 32 days instead of the 30 days

228
Revision No.36 of 2007; High Court of Tanzania at Dar es Salaam
229
This section provides for the powers of the mediators and arbitrators
230
Civil Application 161/1994, Court of Appeal of Tanzania
231
Rule10 of the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007
232
Rule 4 of the Code of Good Practice Rules, 2007
233
Revision No.208 of 2008; High Court of Tanzania –Labour Division at Dar es Salaam (Unreported)

119
prescribed by law, hence it sustained the PO (that is, application was time
barred) and dismissed the complaint.

During revision of the CMA decision, Rweyemamu;J observed that according

to rule 2 of the LIMA, a day is defined as a calendar day including public
holidays; and with respect to counting of time, rule 4 provides that: “...for
purpose of calculating any period of time in terms of these rules, the first day
shall be excluded and the last day shall be included”. Since the applicant
collected his letter of termination on 12/7/2008 and made the referral on 13 th
of the following month, and since July has 31 days, when days are counted
excluding the 12th but including 13th, one gets a total of 32 days instead of
30. According to rule 10 of the rules, the referral was late by 2 days.The
application was dismissed.

The issue as to when an employer makes a decision to terminate was

addressed in the case of Mussa Vitalis Uromi vs. Group 4 Security (T)
Ltd,234Rweyemamu, J; held inter alia, that on deciding the actual date of
termination, one should look at when the employer finally made a decision to
terminate and serve the same to the employee by way of issue of letter of
termination; otherwise, there should be an established practice showing the
contrary practice.

Generally, the Commission for Mediation and Arbitration will have no

jurisdiction to determine the cases if brought after lapse of time; unless
there is an application for condonation of late referral (Form No.8), which
must first be heard and determined by the Commission for Mediation and
Arbitration (CMA) before proceeding with mediation. The applicant must file
the reasons for late referral and the parties should be heard on that
application. Failure to hear and determine such application before mediation
vitiates mediation and arbitration proceedings. This was stated in the case
of Franael N.Raphael vs Maromboso Baptist English Medium School, 235 in
234
Revision No.262 of 2009; High Court of Tanzania at Dar es Salaam
235
Revision No.14 of 2010; High Court of Tanzania at Arusha

120
which Rweyemamu, J; inter alia, held that where the CMA proceeds to hear
the matter referred to it out of statutory period without first condoning the
delay, such proceedings shall constitute a nullity.

Similarly, in the case of Precision Air Tanzania Services vs Masoud

Roshanker,236 the Commission proceeded to hear the matter filed outside
time limits (as it was filed with Form No.8) without determining application
for condonation. Rweyemamu J ;held that by failing to hear and decide the
issue of limitation, the CMA proceeded to process and decide a dispute it had
adjudged time barred without condonation and therefore without jurisdiction.
The law does not absolve the CMA from the duty to decide whether the delay
was on good cause, rather it permits the arbitrator to hear and decide the
application without requiring the other party to follow all the process under
rule 29 of the LIMA like filing of an affidavit, counter affidavit and the like.
The CMA proceedings were thus quashed and an award set aside.

The other case is that ofJoseph C.Magesa vs Tanzania Breweries Ltd; 237in
which Rweyemamu, J; held that dispute about fairness of termination must
be referred within 30 days and all other labour disputes within 60 days,
otherwise an application for condonation must be filed, heard and
determined. If that is not done, then CMA lacks jurisdiction to determine the
case and the Labour Court on its own motion (suo motu) under Rule10 of the
Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007,may set
aside the award on the ground that the CMA exercised jurisdiction not vested
in it by law or that it acted with material irregularity.

The same point was determined in the case of Ahmed Mbonde vs The
Director Bulk Building Contractor,238where applicant’s employment was
terminated on 25/7/2007 and the matter referred to the Commission on

236
Revision No.73 of 2010; High Court of Tanzania at Dar es Salaam
237
High Court of Tanzania-Labour Division at Mwanza, Revision No.144 of 2009 {Order/in
Revision}
238
Revision No.214 of 2008, High Court of Tanzania at Dar es Salaam

121
15/2/2008, clearly after expiry of the 30 days’ time. The CMA proceeded with
the determination of the matter and denied the applicants the claimed 12
months’ salary for unfair termination, annual leave and overtime payment;
but only awarded part of the employment benefits. The court held that ‘the
CMA had no competence to determine the matter as there is nothing on
record showing that the said application for condonation was heard and
decided by the Commission as required by law before the dispute was
processed by it. An application for condonation proceeds as per rule 11 and
29 of the arbitration rules: once the prescribed form is filed under rule 11,
the matter proceeds as per rule 29 whereby the party making an application
is required to file notice supported by an affidavit as per rule 3; and the other
party has a choice to respond as per sub rule 5. The Commission is
mandated to hear and determine the matter before the CMA processes the
dispute by mediating and or arbitrating it. The requirement for condonation
is not a mere technicality but a substantive requirement of the law. Thus, the
Commission had no powers to act as it did and thus all proceedings before it,
commencing with mediation, subsequent arbitration and award were a
nullity; hence CMA proceedings were quashed.

Likewise, in the case of Peter Mwasandube vs Habibu African Bank Ltd; 239it
was held that where there is an application for condonation of late referral,
the CMA must first determine the application before it proceeds to hear the
matter on merit, the contrary amounts to exercising the matter without
jurisdiction and the award is said to be improperly procured. On the other
hand, in the case of Ahmed Mbonde vs The Director Bulk Building
Contractor,240 Rweyemamu, J; held that the requirement for condonation is
not a mere technicality but a substantive requirement of the law, failure to
determine the same before proceeding with the matter vitiates the
proceedings. The same principle was also observed by Moshi, J inBakari S.

239
Revision No.172 of 2009; High Court of Tanzania-Labour Division (Unreported)
240
Revision No.214 of 2008 ; High Court of Tanzania-Labour Division(Unreported)

122
Tifili vs SecurityGroup241and that of Igunga Cotton Ltd vs Godfrey Ndihi
Mwandu.242

However, an applicant should provide sufficient reasons for late referral of

the matter; otherwise the Commission may dismiss the case. This was
observed in the case of Rashid Khamis Mkoya vs Maltauro Spencon
StirlingJV,243 in which the court, when dismissing the application for revision
of the decision by the Commission, held that a person seeking for
condonation must prove sufficient reasons for late referral (evidence in
support of the allegations of sickness), otherwise the application is bound to
fail. Here, the application failed because the applicant did not provide any
evidence such as medical report, pay in slips, evidence to show that he had
been admitted and discharged.

Similarly, in KIOO Ltd vs Kennedy Chalamila244it was held thatthe CMA can
process time bared disputes following application by the referring party and
under rule 31 of the Rules, the Commission may condone any failure to
comply with the time frame for good cause. The same principle was
reiterated by Rweyemamu, J; in the cases of Swissport Tanzania Ltd vs
Mohamed Nanah,245Knight Support (T) Ltd vs Benedict A Komba,246J.W.Ladwa
(1977) Ltd vs PeterKimote,247 N.Gas Supplies vs Kassim Bakari Rashid 248and
Arobogast Bruno vs TAWFIQ Bus Service Geita.249

6.2.6 Consequences of failure to appear during mediation

A party to a case is obliged to appear at the place determined for purposes
of mediation. In so doing, the law allows the parties to appear in person, or

241
Revision No.282 of 2008; High Court of Tanzania-Labour Division(Unreported)
242
Revision No.26 of 2009; High Court of Tanzania at Dar es Salaam (Unreported)
243
Revision No.178 of 2009 ; High Court of Tanzania-Labour Division(Unreported)
244
Labour Court Revision No.147/2008 ; High Court of Tanzania-Labour Division (Unreported)
245
Revision No.138 of 2009, High Court of Tanzania at Dar es Salaam
246
Revision No.254 of 2008, High court of Tanzania
247
Revision No.52 of 2008; High Court of Tanzania at Dar es Salaam
248
Revision No.165 of 2008; High Court of Tanzania at Dar es Salaam
249
Revision No.9 of 2007; High Court of Tanzania at Mwanza

123
through personal representatives, trade union leaders and advocates. Failure
to appear during the process without reasonable grounds may affect the
rights of the parties to the dispute. In Kaizari General Suppliers Ltd vs
Apolinary Massawe,250the respondent filed a dispute with CMA alleging unfair
termination by the applicant/employer. The relief sought was accumulated
salaries and other benefits to the tune of Tshs.18, 640,670/=. The matter
was fixed for mediation on 7 th Nov.2007, and then to 9 th Nov.2007
(consented). On the latter date, the applicant’s counsel successfully sought
for adjournment to further consult the client (applicant). On the set date
fixed at the applicant’s request, he failed to appear prompting the employer
to proceed ex parte as per S.87 (3) (b) of the ELRA, and the case was
dismissed.

The applicant filed an application for revision which was scheduled before
Mandia, J; but the hearing did not proceed because the applicant’s counsel
was attending hearing at the Court of Appeal. Hearing was fixed for 12 th
Sept.2008 as prayed by the applicant but on that day only the respondent
appeared. The trial judge dismissed the application for non appearance,
hence this reference. The issue before the court was whether the applicant
had shown good/reasonable grounds for failing to appear on the date fixed at
their request?Rweyemamu, J;observed the following:
‘...judging from the record commencing at the CMA to this court, one gets a clear
impression that the applicant has engaged in delaying tactics in the adjudication of
this dispute. The submission that the applicant believed the trial judge’s advice to
settle the matter amicably before the date fixed for the hearing to be an order is not
tenable. The applicant has failed to show good cause for non appearance; hence
application dismissed.’

6.2.7 Stages of mediation

Generally, mediation and partly arbitration are parties’ centred processes.
Thus, they must be conducted according to the wishes of the parties.
However, Tanzania has institutional based mediation and arbitration,
whereby a mediator/arbitrator is obliged to comply with the rules and
250
Revision No.43 of 2008; High Court of Tanzania at Dar es Salaam( by Rweyemamu RM)

124
standards established by the Commission for Mediation and Arbitration
(CMA) and the rules made by the Minister for Labour Matters under s.98(1)of
the ELRA. Hence, mediators and arbitrators appointed by the Commission
for Mediation and Arbitration must comply with the Labour Institutions
(Mediation and Arbitration) Guidelines that provide for stages of mediation,
which are: introduction, information gathering, exploring options and
developing consensus, and conclusion. Failure to comply these guidelines
vitiates the whole proceedings (mediation and subsequent proceedings).

In Coordinator of TADEPA vs Donatiana Pancrase & Revina Kiguzi, 251the

applicant/employer brought an application for revision of CMA award dated
24/6/2008 on ground that it was improperly procured, the arbitrator
misconceived evidence and facts before him. The applicant contended that a
certificate of mediation was not supplied to it, and that the arbitrator gave
award on matters not pleaded in the complaint form nor agreed by the
parties.
The issue before the court waswhether there was a material irregularity by
mediator and arbitrators failing to comply with the established procedures?

The courtobserved that the mediator did not comply with rule 16(2) and (3)
of GN.64/2007 which require the parties to have the common understanding
of the nature of dispute. Furthermore, the arbitrator failed to observe the
principles of conducting arbitration as per s.88(4)and (5) of the ELRA read
together with rule 19 and 22 of the Labour Institutions(Mediation and
Arbitration) Guidelines, GN 67/2007. Rweyemamu, J; held that these rules
are not meant to prescribe mandatory stages but rather they provide
guidance for achieving the crucial objective of mediation and arbitration.
Thus, there was material irregularity of the proceedings because the
mediator and arbitrator failed to adhere to the guidelines provided for under
GN.67/2007. The CMA proceedings and subsequent award were quashed and
the court orderedthe CMA to conduct arbitration afresh according to law.
251
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125
Stage I: Introduction
It is provided under rule 10 of the Labour Institutions (Mediation and
Arbitration Guidelines) Rules, 2007 (to be referred to as LIMAG). The
purpose is to create an atmosphere conducive for helping the parties to
resolve the dispute and ensure that the parties have the basic understanding
of mediation process (It is the process of the parties). At this stage the
mediator is obliged to do the following things:
(i) The mediator must welcome the parties, introduce himself and
allow parties to introduce themselves.The mediator must ask the parties the
way they would be addressed; mediator should give his background and
disclose qualifications and any interest with the parties or any previous
contracts with the parties; circulate the attendance register for registration
purposes; agree as to the language to be used and the need to have
interpreter if necessary.
(ii) The mediator and the parties should agree on house – keeping rules
or arrangements; describe the mediation process ground rules and the
consequence of failure to settle in mediation. The rules that the mediator
should describe include:
 Mediator should explain that mediation is a voluntary process in the
sense that it is the parties which will find solution to their problem.
 Mediator must explain that mediation is a confidential process in the
sense that what is said inside meeting or caucus (joint and private
caucuses) will not be disclosed to the other side without the consent of
the party who disclosed that information; and whatever is discussed
during mediation will not be conveyed by the mediator to anyone
outside the mediation without consent of the parties.
 That the mediator shall not be required to give evidence on behalf of
any one of the parties in subsequent proceedings if mediation fails.
 That mediation proceeding is “off records” and without prejudice and
therefore none of the parties will as such use anything said in
mediation in subsequent proceedings.

126
  That the parties will speak without interruption and that they will treat
each other with respect, and will act with self–discipline and dignity;
and that the mediation will take place without prejudice to the parties’
rights to take their dispute to any further steps for resolving their
dispute.

Stage II: Information Gathering / Story Telling

This stage is provided under rule 11 of the LIMAG. The purpose is to develop
understanding of the matters in dispute and to analyse the conflict or
dispute. It is done by allowing parties to give their views on the problem. The
mediator is obliged to give each party a chance for clarification or asking
question. There after the mediator should summarize the story. This process
should be repeated on the other party. Then he will frame the dispute issues
and undisputed facts.

Stage Three: Exploring Options and Developing Consensus

This stage is provided for under rule 12 of the LIMAG. The purpose is to
generate options for settlement and develop consensus on preferred options.
The mediator may commence exploring options with the parties, either in
joint or separate sessions, depending on which option will generate the best
solution. The mediator should alert the parties of the consequences of failure
to reach a solution; and should begin with less controversial issues to
complex issues.

Stage Four: Agreement

This stage is provided for under rule 13 of the LIMAG. The purpose is to reach
an agreement and confirm it in writing. Where the agreement is reached, the
mediator is obliged to draft the settlement agreement, which should ensure
the following: it is clearly understood by all parties, it does not create further
disputes, it must be clear and concise, it specifies a procedure for settling a
dispute that may arise from the agreement, it must be signed by all the
parties and it should cater for ratification where necessary. But where

127
agreement is not reached, the mediator should narrow down all the issues in
dispute and indicate those issues which have not been agreed on. The
practice shows that mediators fill in forms (Form No.5) instead of drafting a
settlement agreement.

In the case of Tanzania Union of Industrial and Commercial Workers (TUICO)

vs Tanzania Tobacco Processors (Ltd),252 the parties referred a dispute to
CMA as a result of disagreements on exercise of organizational rights,
specifically, recognition of the complainant as the exclusive bargaining agent
of employees at the respondent‘s workplace. The dispute was referred to
CMA as prescribed under s.67 (5) of the ELRA. Subsequently TUICO referred
a complaint to the court under S.67 (6) of the ELRA. Previously, there was a
trade union known as Tanzania Plantation Workers (TPAWU) recognized by
the respondent under repealed laws and with which the respondent had
entered into a Voluntary Agreement (VA), which was registered in court on
15/12/2006 as per repealed laws and it was valid for two years from
1/4/2006 to 1/4/2008.

Apparently, TPAWU”S membership was declining and in March 2008, the

respondent gave notice to TPAWU to acquire a majority representation within
three months as per s.69 (1)(a) &(b) of the ELRA. In the meantime, TUICO
submitted its application to the respondent for recognition as exclusive
bargaining agent on 2/7/2007, which was not accepted by the respondent,
leading to referral of the case to CMA. The mediator, who mediated the
parties, issued a purported certificate stating that: ‘...having conducted
discussion between the parties, they have agreed that the procedures
prescribed by the ELRA Cap.366 No.6/2004 should be honoured.’

Rweyemamu, J; observed that the words used were confusing to conclude

whether CMA had failed to resolve the dispute, and since no certificate had
been issued stating clearly issues that had been resolved and those that had

252
Revision No. 20 of 2008, High Court of Tanzania-Labour Division

128
not been resolved, then this court does not have jurisdiction. This is because
the Labour court has jurisdiction to deal with a dispute over recognition only
after CMA fails to resolve the dispute. The matter was remitted back to be
determined according to the law.

6.2.8 Challenging the certificate of settlement (Settlement Order)

The obligation to issue a certificate is vested into the mediator who is
required to do so within thirty days or any other period agreed by the
parties. However, a mediator may not properly record what the parties
agreed leading to dispute over contents of the certificate. The High Court of
Tanzania (Labour Division) provided the procedure for challenging the
contents of the certificate whereby the application should be lodged in the
Commission for Mediation and Arbitration and not the Labour Court.

In the case of Issa Amanyisye & 5 Others vs Mbeya City Council, 253 the
applicants (employee) lodged an application for extension of time to apply
for revision of the certificate of the mediation. The application was brought
under s.94 (1) (b) and (f) of the ELRA and rule 28 and 56 of the Labour Court
Rules. It was held that the revision application envisaged under the cited
law (s.94 (1) (a) of the ELRA) is revision for arbitrator’s award and not
mediator’s certificate. The certificate cannot be subject to revision under
Rule 28 of the Labour Court Rules, since no decision has been made by any
responsible person or body. The proper forum, if there is still any matter in
dispute, pending between the parties, should be the Commission for
Mediation and Arbitration.

253
Miscellaneous Labour Application No.2 of 2011; High Court of Tanzania at Mbeya (Moshi,J

129
6. 3 Arbitration
6.3.1 Definition of arbitration
This is a process which is compulsory to disputes of right (complaint).Rule 18
of Mediation and Arbitration Guidelines (GN.67/2007) defines it as a process
by which a dispute between two or more parties is determined by a decision
of a third party known as arbitrator. Such decision is normally final and
binding on the parties. The arbitrator’s decision is normally in writing and it
must address the issues in dispute between parties.

6.3.2 Distinction between arbitration and adjudication

(i) Arbitration is different form adjudication in the
sense that arbitration is less formal than adjudication. The procedures need
not be as strict and formalistic as applied in the court
(ii) Parties can formulate their own procedures so as
to ensure relatively speed and fair result. They may vary the rules of
evidence, they may dispense with formal legal proofs of documents.
(iii) The hearing of arbitration may occur in a board
room, hotel or at any place the parties or the arbitrator may choose. Usually
in arbitration each party will pay their own legal costs.
(iv) Arbitration is generally a private process while
adjudication is a public process. Courts are open to the public justice must be
seen to be done. The disadvantage of arbitration is that the parties may
exclude any person who does not have a direct interest in the matter.
(v) Adjudication is a formal process of resolving
dispute by the decision of a court or statutory tribunal. It involves the making
of decision with a declaration of who has worn the case and why, and with an
order as to what is to happen, e.g., payment of compensation.
(vi) Adjudication may result to a final decision but
more likely the decision will be subject to review or appeal. It is generally
regarded as generally more costly and more formal than arbitration. Apart
from filling fees, the losing party may also be ordered to pay costs.

130
6.3.3 Procedure in Arbitration Proceedings
(a) Categories of disputes subject to arbitration
According to S.88 ELRA, disputes which must be referred to arbitration
include: a dispute of interest if the parties to the dispute are engaged in
essential services and the dispute has been unsuccessfully mediated; a
complaint over: fairness of employee’s termination of employment, any
other contravention of the ELRA or any other labour law or breach of contract
in which the amount claimed is below the pecuniary jurisdiction of the High
Court (that is, below one hundred (100) million shillings), and any dispute
referred to arbitration by the labour court under s.94 (3) (a) (ii) of the ELRA.

(b) Obligation to refer the case for arbitration

The law provides that if the parties at the stage of mediation fail to resolve a
dispute of interest (in essential services) or fail to resolve a complaint
(dispute of right) the Commission for Mediation and Arbitration must appoint
an arbitrator to decide the dispute. The decision to refer a case for
arbitration or to court must be made by the party to the dispute and not the
mediator or arbitrator254. This was established in the case of Nicomedes
Kajungu and 1374 Others vs Bulyankulu Goldmine (T) Ltd, 255in which the trial
judge held that a mediator has no power to refer a dispute to court after
failure of mediation, such referral may only be made by a party to the
dispute, the mediator should issue the certificate to the parties in the
prescribed manner only.256

Thereafter, the Commission must appoint the arbitrator; determine the time,
date and place of arbitration hearing and advice the parties accordingly. 257
Sometimes, the Commission can appoint arbitrator even before the dispute

254
S.86(3)(b) of the ELRA
255
Civil Appeal No.110/2008
256
The same matter was determined in the case of Dr.Noordin Jella vs Mzumbe University, Complaint No.47 of
2008-at Dar es Salaam (Rweyemamu)
257
S.88(2) of the ELRA

131
has been mediated. For instance, where a dispute has been set up by the
Commission for a combined mediation and arbitration, an arbitrator may be
appointed even before mediation has failed.258

(c) Jurisdiction of the arbitrator

The arbitrator has jurisdiction to resolve dispute of right, or dispute of
interest (in essential services) but after mediation process has failed. The
question of failure of mediation process which is evidenced by the issue of
certificate of non-settlement (sometimes referred to as Non-Settlement
Order) is a jurisdictional matter. The arbitrator cannot proceed with
arbitration unless a certificate has been issued, without which the arbitrator
is seized with no jurisdiction. If the arbitrator proceeds with the matter and
makes the award, then the award can be challenged in court on the ground
that it was improperly procured.

Generally, the arbitrator enjoys pecuniary jurisdiction of the Commission for

Mediation and Arbitration; that is, the arbitrator can determine cases whose
claim is below 100 million. For the claims above 100 million, the jurisdiction
will be vested in the Labour Court.259 Pecuniary jurisdiction of the
Commission is determined by looking at substantive claims made by the
applicant, and not damages claimed by the same. This was determined in
the case of Dr.Noordin Jella vs Mzumbe University, 260 where the complainant
referred a dispute to the CMA claiming as general damages a sum of Ths.500
million for respondent’s actions. The CMA unsuccessfully mediated the
parties and six months later the complainant referred the matter to court
following the mediator’s words in a NSO that “the matter will be taken to the
High Court because the Commission does not have jurisdiction (pecuniary
jurisdiction”.
258
S.88(3) of the ELRA read together with Rule 18 of LIMA and Rule 30 of the LIMAG
259
Refer to the case of Dr.Noordin Jella vs Mzumbe University, Complaint No.47 of 2008-High Court of Tanzania-
Labour Division at Dar es Salaam ,whereby it was held that all complaints irrespective of pecuniary considerations
should first be referred to mediation, and after it fails, then it can referred to the Court for determination if the
total claim exceeds 100 million shillings.
260
Ibid

132
A preliminary objection was raised to the point that a case was time barred
and it was improperly before the court. It was held that the mediator had no
power to refer a dispute to court after failure of mediation and that all
disputes regarding unfair termination of employment must commence at the
CMA regardless of the amount claimed, and that the findings by the mediator
that CMA lacked pecuniary jurisdiction due to the general damages claimed
(Tshs.500 million) was incorrect since it is the substantive claim which
determines pecuniary jurisdiction of the court. 261 Where it is a representative
suit or joint suit (joinder of claims) made on the arbitrator’s own accord or
following an application by a party, 262then each claim must be taken
separately for determination of pecuniary jurisdiction. 263

On the other hand, the government of Tanzania amended the law [s.88 (1)
(b) of the ELRA] by redefining the word complaint to include: “any
employment or labour matter falling under common law, tortuous liability
and vicarious liability in which the amount claimed is below the pecuniary
jurisdiction of the High Court”.264 This would imply that the arbitrator would
determine labour disputes involving torts and vicarious liability done or
committed in the course of employment. However, the interpretation of the
above provisions by the court has shown contrary but conflicting views.

In the case of Dar es Salaam City Council vs Rafael Ruvakubusa, 265 the
arbitrator entertained and awarded the complainant the amount of
Tshs.10,000,000/= as damages for libel. The Labour Court observed that
despite amendment of the laws, the Commission does not have jurisdiction
to entertain defamation cases falling under the Newspapers Act No.3 of

261
Refer to the case of Tanzania-China Friendship Textile Co.Ltd vs Our Lady of Usambara Sisters, Civil Appeal
No.84/2002
262
Rule 24 (1) and (3) (a) & (b) of the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007
263
In James Kajo & Others vs Precision Air Services Ltd, Labour Dispute No.49 of 2008-Labour Court at Dar es
Salaam, Rweyemamu, J; observed that the decision to file a joint suit is on the court (either suo mottu or upon
application if ‘the right to relief depends on the determination of substantially the same question of law or facts”
264
Written Laws(Miscellaneous Amendments) ELRANo.8 of 2006
265
Revision No.149 of 2009, High Court of Tanzania-Labour Division at Dar es Salaam (Unreported)

133
1976, since the arbitrator did not seat with assessors. The proper procedure
would be to refer the matter to CMA for mediation and if mediation fails, the
matter should be referred to the Labour Court where the matter can proceed
with assessors. Moreover, Mandia, J;(as he then was), inHemedi Omary
Kimwagavs SBC (T) Ltd,266 deposed that neither the Commission for
Mediation and Arbitration nor the Labour Court have jurisdiction to entertain
tortuous matters arising in the course of employment. The case was remitted
back for determination.

With due respect, as rightly argued by Rutinwa et al (eds), an approach

adopted by the court in Ruvakubusa’s case, is a correct one on the basis of
the principle of statutory interpretation that where there is a conflict
between a specific and a general law, a former one must prevail. 267

(d) Powers of an arbitrator

The arbitrator may make an appropriate award but may not make the order
for cost unless where a party or person representing a person acted in a
frivolous or vexatious manner.268 By vexatious, it means that a person
instituted proceedings against another person without sufficient grounds
with an intention of troubling that party; while a person acts in a frivolous
manner if one behaves in a manner that did not show appropriate respect for
the arbitration process.269

The arbitrator has powers to issue an award, which is binding on the parties,
and he or she may upon application or on his or her own motion, correct in
the award any clerical mistake or error arising from any accident slips or
mission.270 Furthermore, no appeal shall lie against an arbitrator’s award

266
Application No.138 of 2008, High Court of Tanzania-Labour Division at Dar es Salaam (Unreported)
267
Rutinwa et al (eds) The New Employment and Labour Relations Law in Tanzania: An Analysis of Labour
Legislation in Tanzania, p.171
268
S.88(8) of the ELRA
269
Rule 31(2) and (3) of the Labour Institutions (Mediation and Arbitration) Guidelines, 2007
270
S.90 of the ELRA

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save for applications for revision or review on the basis of irregularities in the
arbitrator proceedings.271

The arbitrator also enjoys the powers to summon and examine witnesses
and administer an oath or accept an affirmation from any person called to
give evidence as per rule 19 of the LIMAG. Where the arbitrator does
summon a witness for examination, then parties to the dispute must be
availed an opportunity to cross examine the same on the information sought
or disclosed; the failure to do that may vitiate the proceedings.

In Andrew Mwena vsMkurugenzi Mkuu Mufindi Wood Poles Plant and Timber,
272
the applicant referred a dispute against unfair termination by the employer
and sought for payment of the salaries in the CMA. In an ex-parte
proceedings, it was established that the applicant’s termination was
substantively and procedurally unfair, but ordered payment of one month
salary without invoking s.40 of the Act. This was after calling the Labour
Officer, suo mottu, who testified that the applicant was only entitled to one
month salary, however, the applicant was not called to cross examine the
witness; hence this application for revision.

Moshi, J; held that an arbitrator has powers to summon a person for

questioning, attend a hearing and order the person to produce a book,
document or object relevant to the dispute, if that person’s attendance may
assist in resolving the dispute.However, the arbitrator erred, on not availing
an opportunity to the parties to cross examine the witness, who was called
by the commission. On the other hand, the arbitrator erred for not
considering s. 40 of the ELRA, after finding out that the termination was
substantively and procedurally unfair. The court proceeded to quash and set
aside both arbitral proceedings and award.

271
Rule 18(5) and (6) of the LIMAG
272
Revision No.2A of 2011; High Court of Tanzania-Labour Division at Iringa

135
(e) Obligation of the arbitrator to conduct and record proceedings
The law imposes an obligation on the arbitrator to conduct the proceedings
according to the laid down procedures; in so doing, deal with substantive
merits of the complaint with minimum of legal technicalities. 273 The arbitrator
is empowered to conduct the proceedings in a manner that he deems fit
(appropriate) for expeditious but fairly determination of the suit. Likewise,
the arbitrator is obliged to take records in legible hand written notes or by
electronic means, although not on a word to word basis, which may be given
to the parties upon application.274

The obligation to comply with the laid down procedures when conducting
and recording the proceedings was determined in the case of Project
Manager Barrick Gold Mine(Bulyanhulu) vs Adriano O.Odhiambo, 275in which
Rweyemamu, J; observed that discretionary powers should not be exercised
in contravention ofRules 18 to 26 of the Labour Institutions (Mediation and
Arbitration Guidelines) Rules276 providing for specific stages and contents of
arbitration proceedings, short of which affect the regularity of the
proceedings (irregularity of proceedings). Proceedings complying with
guidelines will clearly show the issues to be arbitrated upon, evidence led by
each side to prove or disprove issues, which evidence is received as per rule
25; it will contain the arguments by way of written submissions which should
be indicated in the proceedings, or made part of the record where they are
received orally. Where the arbitrator allows closing arguments, they should
be systematically included in the record. Further, where there were
preliminary issues, evidence and arguments by each side should be
indicated in the record; and finally, proceedings should contain the award
which should indicate the decision, and reasons thereof on each issue

273
S.88(5) of the ELRA
274
Rule 32 of the Labour Institution (Mediation and Arbitration) Rules, GN.64/2007
275
Revision No.290 of 2008(Original /CMA/SHY/83/2008), High Court of Tanzania-Labour Division at Mwanza,
276
GN 67/2007

136
resized and a summary on matters itemized under rule 27 of the LIMAGby
the arbitrator.277

(f) Consequences for failure to appear during arbitration

proceedings
Like it is with mediation, non-appearance by the party to the dispute during
arbitration may have negative implications on one’s claims. The arbitrator is
empowered by law to adjourn a case to a further date or allow the matter to
proceed ex parte. The proper procedure to be observed by the arbitrator
where one party does not appear during the proceedings was observed in
the case of BEFRA Construction Ltd vs Husbon Sangai Nyambea, 278where the
employer filed an application for revision against a decision by the CMA that
dismissed an application to set aside an ex parte award. It was not in dispute
that the applicant received several notice and summon to appear but
nothing was done to comply with the order. The arbitrator then proceeded ex
parte and issued an award, which was affirmed in an application to set aside;
hence this application for revision. Among the reasons given for non-
appearance, is that the applicant was still seeking for ways to settle issues
outside the court.

Moshi, J; observed that rule 21 of the LIMA empowers the arbitrator to

postpone a hearing if there is an agreement between parties, application by
one party, or upon determination by the arbitrator for good cause. Where
parties are not present, then the Commission may postpone if all parties to
the dispute agree in writing to postpone, and such agreement is received by
the commission more than seven days prior to the scheduled date of
arbitration. The trial judge held that since the applicant, after receiving the
summons, never applied for an adjournment nor did they inform the

277
The similar decision was observed in the cases of Arobogast Bruno vs Tawfiq Bus Service Geita, Revision No.9 of
2007, High Court of Tanzania-Labour Division at Mwanza; and that of Grace Wanna vs All Terrain Service,
Application No.16 of 2007.
278
Revision No.2 of 2011; High Court of Tanzania at Arusha

137
arbitrator, the parties were to face the consequences of failure to attend the
hearing. The application was dismissed for failure to show good cause for
non-appearance.

6.3.4 Stages in Arbitration

According to Rule 22 of the LIMAG, an arbitrator is obliged to conduct
proceedings in accordance with the laid down stages; namely; introduction,
opening statement and narrowing of issues, evidence stage, arguments
stage and finally issue an award. The purpose of these stages was stated in
the case ofProject Manager Barrick Gold Mine (Bulyanhulu) vs Adriano
O.Odhiambo,279which is to ensure that there is an orderly determination of
the dispute whereby parties should understand the nature of the case,
present their evidence and witnesses.

Stage I: Introduction stage

This is provided for under Rule 23 of the Labour Institutions (Mediation and
Arbitration) Guidelines. This is similar to that under mediation whereby
parties address preliminary matters. During this stage, the arbitrator must
consider any preliminary objection raised by the parties; he may make
rulings on the objection or defer his/her ruling until the writing of the award
depending on the nature of preliminary objection. For instance, objection as
to jurisdiction of the arbitrator should first be determined before proceeding
with the matter; otherwise the proceedings and the award stand to be
quashed and set aside respectively.280

Stage II: Opening statements and narrowing of issues

This is provided for under Rule 24 of the LIMAG. This is a summary statement
of the facts giving rise to the dispute. Every party must state clearly the
issues in dispute, what he wants to achieve at the end of the day (relief
sought); and finally, the arbitrator must narrow down facts in issue and

279
High Court of Tanzania-Labour Division at Mwanza, Revision No.290 of 2008 (Unreported)
280
2000 Industries Ltd vs Rehema Juma& 6 Others, Revision No.39 of 2009

138
ensure that parties have the common understanding of the case. Failure to
frame the issues by the arbitrator may vitiate the proceedings if the matter
is taken for revision in the court. This was determined in the case of Osward
Makaranga & 12 Others vs Director Tz.Firsh Processors Co.Ltd, 281where the
applicants lodged an application dated 24/6/2008. A total of 14 complainants
alleged unfair termination by the employer. The arbitrator awarded
severance pay and denied the parties remedies for unfair termination
including repatriation. However, the arbitrator did not follow the stages of
arbitrating the matter as no issues were framed and agreed by the parties;
instead, the issues were drawn by the arbitrator in the award.

Rweyemamu, J;inter alia, observed that the import of rule 22 of the LIMAG is
to ensure parties to the dispute are granted a right to a fair hearing. That
necessarily means: issues to be arbitrated should be clear to the parties; the
parties should have opportunity to present evidence, call witnesses and
cross examine them if they so choose; present arguments for their cases and
finally, based on that the arbitrator’s award should contain reasons for the
decision. It was held that since the arbitrator did not adhere to the stages
provided under the guidelines as the sure way of arbitrating it fairly, it
amounted to a material irregularity. The arbitration proceedings were
quashed and CMA ordered to conduct the proceedings according to law.

The same decision was maintained in the cases of Metal Products Limited vs
Richard Kasese282and the GM Pangea Minerals vs Migumo
Mwakalasa.283Similarly, inLukani Losaa Agri.Coop. Society Ltd vs TPAWU on
Behalf of Simon Natai; 284
the CMA determined the case (i.e., made a
decision) without identifying issues. Rweyemamu, J; observed that although
the arbitrator is vested with discretionary powers to conduct arbitration
proceedings, determination of the matter should include necessary stages as
281
Revision No.190 of 2008, High Court of Tanzania-Labour Division at Dar es Salaam
282
Revision No.126 of 2008, High Court of Tanzania-Labour Division
283
Revision No.35 of 2008, High Court of Tanzania-Labour Division
284
Revision No.135 of 2009, High Court of Tanzania-Labour Division

139
provided by rule 19 to 22 of the LIMAG whereby issues to be arbitrated
should be clearly raised and addressed. Failure to follow the guidelines
vitiates the whole proceedings.

Stage III: Evidence stage

This is provided for under Rule 25 of the Labour Institutions (Mediation and
Arbitration) Guidelines. At this stage the parties will try to prove their
respective cases according to normal rules on proof of documents and
principle of orality as per Evidence Law. The witness will be required to
testify, according to the laws of evidence on admissibility of evidence of
witness (examination in chief, cross examination and re-examination)

It is important to note here that on unfair termination cases, the obligation to

prove that termination is fair or not is imposed on the employer. This was
also determined in the case of Jamani Printers Ltd vs Mariam Nindanga &
Another,285 where respondents were terminated from work by an applicant,
and referred the dispute to the CMA for mediation. The respondents claimed
in the referral form that the applicant did not follow the prescribed fair
procedure and their termination was not for fair reasons. It was
unsuccessfully mediated and after arbitration, the arbitrator found in favour
of the respondents and awarded them 12 months’ remuneration for unfair
termination, but dismissed claim for repatriation on ground that they were
recruited in Dar es Salaam, a place of termination as well. Aggrieved by the
award, the applicant filed a notice of application under rule 24(2) and
28(d)&(e) of the Labour Court Rules seeking revision on the ground that
there was a poor evaluation of evidence on records and that the CMA had
erred in law and fact or not properly considering the documentary evidence
tendered by the applicant.

It was held that the burden to prove that termination was fair lies with the
employer (applicant), and thus the conclusion in the award that termination

285
Revision No.181 of 2008; High Court of Tanzania at Dar es Salaam

140
was unfair is justified since the applicant adduced no evidence to prove that
termination was for a fair reason, let alone that it followed a fair procedure
as per s.37 of the ELRA. The application was finally dismissed.

However, in any other labour disputes (e.g disputes on organizational rights,

violations of the terms of contracts, etc), the principle on burden of proof
applies just as in other civil cases; that is, every person alleging a fact must
prove its existence or non-existence. Since the arbitrator does not have
powers to make orders as to cost unless one of the party or representative
acted in frivolous and vexatious manner, then each party to the case must
take responsibility to procure witnesses before an arbitrator.

On the other hand, the arbitrator has been empowered by the law to
summon witnesses, suo mottu, to appear before him/her for examination
purposes; but where such powers are exercised, and then the arbitrator
must avail the parties to the case an opportunity to cross examine such
witnesses. If the same is not done and the arbitrator records and uses the
same in making an award, then the superior court may revise the award on
the ground that it was improperly procured. In Andrew Mwena vs Mkurugenzi
Mkuu Mufindi Wood Poles Plant and Timber, 286it was held that arbitrator has
powers to summon a person for questioning, attend a hearing and order the
person to produce a book, document or object relevant to the dispute, if that
person’s attendance may assist in resolving the dispute; however, the
arbitrator erred, on not availing an opportunity to the parties to cross
examine the witness, who was called by the commission. Consequently, both
arbitral proceedings and award were erroneously, hence quashed and set
aside respectively.

Stage IV: Argument stage

286
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This is provided for under rule 26 of the LIMAG. Here parties will be required
to give final submissions based on the facts admitted or presented to the
arbitrator. The closing argument should contain the re-statement of issues
and analysis of the facts and submissions. The disputants or their
representatives must present their arguments with substantial authoritative
decisions of the courts (in Tanzania or foreign as long as it is similar to the
case at hand) but taking into account the application of precedents in
Tanzania. That is, all decisions made by the High Court of Tanzania (Labour
Division) bind lower courts (including mediators and arbitrators)

Stage V: Award stage

It’s a decision made by an arbitrator which is binding on the parties. It must
be made in writing and signed by the arbitrator. According to Rule 27 of the
LIMAG, an award must contain the details of the parties (names and title of
the parties), background information or facts of the case, the issue(s) in
dispute that parties must address, summary of parties’ evidence (both
documentary and oral evidence) and arguments by the parties (through
submissions) on every issue identified by the arbitrator, reasons for the
decision and the award.
The failure to adhere to rule 27 of the LIMAG by the arbitrator affects the
validity of the award on the ground that the proceedings were not properly
recorded. This was observed in the case of CharlesMusa Matelego vs Epsom
Ltd,287where the applicant filed an application for revision of the CMA award
dated 24/8/2007 in which he sought for remedy against unfair termination on
operational requirements. The termination was effected on 14/3/2007 and
referral made on 17/5/2007(after expiry of the prescribed time). The
arbitrator determined the matter in favour of the employer and without
complying with the law on condonation for late referral of the complaint.

When granting an application for revision of the award, Rweyemamu, J; held

inter alia, that there was no record of arbitration proceedings, in the sense
287
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142
that, the award fell short of the requirements of rule 27 of the LIMAG which
requires the award to contain apart from facts of the dispute, the issue or
issues in dispute, summary of parties arguments’ evidence and arguments,
reasons for the decision and the order (precise outcome of the arbitration.
The trial judge observed that this was an irregularity which vitiated the CMA
proceeding and the award. Hence, the award was set aside and CMA ordered
to determine the matter according to law288

The other case on how the arbitrator should prepare the records containing
an award is that ofAlliance Tobacco Ltd vs Zaida Mahava, 289where the
respondent referred a dispute to the CMA alleging unfair termination of
employment by the applicant of 8/3/2007. The reference was made on
30/5/2007 accompanied with Form No.7.At the CMA the dispute was
unsuccessfully mediated and a certificate of non-settlement issued by the
mediator on 30/8/2007 as per Form No.5. The case was fixed for arbitration
on 24/9/2007 on which date it was adjourned to 3/10/2007. The matter was
determined ex parte and award given thereof. The applicant filed the
revision of the award on the ground that the CMA had no jurisdiction to
proceed with hearing the referral ex parte or otherwise, which was filed out
of time without hearing and deciding the issue of delay; and that the
arbitration proceedings were not conducted according to the procedure
prescribed under the law as there were no opening statements, statement of
issues and evidence as per Rule 22 of LIMAG GN.67/2007. The respondent
submitted that the referral was made on 30/5/2007 and it was accompanied
by the condonation form, and that as such the mediator could not be faulted
for proceeding with the matter.

288
Also refer to the cases of Ponsian Stanslaus Magezi vs Epsom Ltd {Revision No.4 of 2007} and that of Edna
Pendael Tenga vs Parokia ya Bugando, Revision No.19 of 2007-at Mwanza (Rweyemamu), where the same
principle was reiterated.
289
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143
It was held that the arbitrator’s record of proceedings did not qualify to be a
proper record of proceedings as per rule 32 read together with rule 22-26 of
the LIMAG. The court observed the following:

‘...While under the guidelines the arbitrator has general powers to determine how
arbitration should be conducted, that power did not permit the arbitrator to ignore
laid down procedures which define tenets of a legal arbitration process: it clearly
reflects issues between the parties, indicate facts and evidence adduced by them,
the manner the same were received in the course of proceedings and parties’
submissions. It is only where the above is adhered to when the resultant award,
whose contents are prescribed under rule 27(3) of the guidelines , can be understood
and evaluated. Adherence to rules and guidelines provides certainty and decency of
proceedings which are vital for credibility of any legal process. 290

The CMA proceedings in the above case were quashed and award set aside.
The same principle was observed in the case of China Railway Jiang
Engineering Co.Ltd vs Abdalah Ibadi & Salum Mtengevu, 291whereby
respondents referred a labour dispute against an applicant alleging unfair
termination. The matter was arbitrated and the claim of unfair termination
proved; the applicant was ordered to pay 12 months’ salary to each
respondent as per s.40(1)(c) of the Act, overtime under s.19(2) of about
1,363,500/= for hours worked, pro rata leave entitlements under S.31 equal
to 30,000/=. The total amount to be paid to each was shs.2, 973,500/=.
Dissatisfied with the said award, the applicant sought for revision on
grounds that the testimony/evidence of the applicant was not properly
recorded, the grant of overtime for the alleged period was improper, and
that the award of shs.5, 947,700/= was not proper.

Rweyemamu, J; held inter alia that the CMA proceedings had anomalies
which vitiated material irregularity: in the sense that the record of
proceedings was uncertified and unsigned by the arbitrator; the record
comprised of parties’ statements, framed issues, evidence of one witness of
the applicant and a statement titled “employer’s defence”- but no

290
The same position was observed by Mandia J in the case of BIDCO Oil and Soap vs Abdu Said and 3 Others
{Revision No.11/2008} and Dar es Salaam City Council vs Rafael Ruvakubusa {Revision No.149/2008 by
Rweyemamu R.M.J}
291
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144
applicant’s evidence in terms of rule 25 of the LIMAG was received. It is vital
that arbitration proceedings are systematically recorded which would help
indicate whether a party has been accorded a right to adduce evidence; call
witnesses and the like, and the response thereof. Thus, failure to properly
receive evidence of both sides was a material irregularity which amounted to
a defect in proceedings. The CMA proceedings were quashed and an award
dated 22/4/2008 is set aside.

6.3.5 Time for issue of an award

The law provides that the award must be given within 30 days after
concluding the arbitration proceedings; otherwise the arbitrator should
provide the parties with reasons for late issue of the award. 292 The reasons
should be given to the parties before an arbitrator makes an award, not in
the award itself. This was stated in the case of Asajile Nkambila vs Afritel
Ltd,293where Wambura, J;held that the issuance of an ward after 10 months
was against the statutory period of 30 days and as long as no reasons were
explained to the parties, the award was improperly procured. The award was
consequently set aside.

The same principle was observed in the case of Century Food &Packaging
Ltd vs. Emmanuel Mzava Kimweli,294wherebythe CMA issued an award on
16/8/2008 and the applicant filed an application for revision on 20/8/2009.
The PO was raised to the effect that the application was time barred since
the applicant filed an application after lapse of 94 days from the date the
award was made. It was submitted that the applicant became aware of the
existence of the award on 20th August 2008, hence the application was not
time barred. Upon going through the records, the court found out that the
CMA concluded the arbitration proceedings on 18/2/2008 but made the
award on 16/5/2008 contrary to s.88 (9) of the ELRA.
292
S.88(9) of the ELRA
293
Revision No.145 of 2011; High Court of Tanzania at Dar es Salaam
294
Revision No.158 of 2008; High Court of Tanzania at Dar es Salaam

145
Rweyemamu, J; reasoned that issuance of the award after the expiry of 30
days would be said to have been procured with material irregularity as to
have been improperly procured and reviewable under s.91(2) of the Act; and
that it would appear that after expiry of 30 days, the arbitrator becomes
functus officio. However, taking into account the fact that the CMA does not
have sufficient number of arbitrators, compliance of the law is not free from
difficulties and that the law does not leave room for genuine emergencies on
the part of the arbitrator. However, the trial judge observed the following:

‘...since the objective of the law is to have expeditious resolution of labour dispute,
which was an intention of the parliament, then the law must be taken as it is. Thus,
the award subject matter of the revision is reviewable for reason of being improperly
procured and the court, using powers under rule 28 of the LC Rules, thereby CMA
proceedings isquashed and order that the arbitration be done afresh as per laws’

The above case shows the role played by the court to ensure that justice is
guaranteed to all people regardless of the rules of procedures. It is a
departure from other civil litigations whereby rules of procedures are strictly
observed by the court.

The other case is that of Mbeya Cement Company Limited vs Leonard

Mwakunja,295 where the applicant had filed an application under the
provisions of section 94(1) (b) of the ELRA seeking revision of the award
issued by the CMA on the grounds that the arbitrator acted in exercise of its
jurisdiction illegally and with material irregularity as the award was made
after the expiry of 30 days and no reasons had been given to the parties.
Instead, the reasons were given in the award issued. Responding to that,
the counsel for the respondent alleged that there were valid reasons for the
delay considering the workload before the Commission.

The trial judge,Wambura, J; observed that the law has prescribed 30 days in
which an arbitrator has to deliver the award and thereafter he becomes

295
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146
functus officio. But as held in the case of Nufaika Distributors Ltd Vs Hawa
d/o Chombo-Tuico,296when there are good reasons that occasioned the delay
in issuing the award, then that delay can be tolerated. These reasons should
be given within the prescribed 30 days and not at the collection of the
award. However, the judge did not rule on the legality of the award on what
he said as: “…I would say I will bear with the arbitrator this time and hope
that in future parties will be notified in advance as to why the award could
not be issued in time.”This as well indicates court attitude to interpret the
law in a moderate manner so as to protect the rights of people.

The above principle was reiterated by Rweyemamu, J; in the case of East

Coast Oils& Fats Ltd vs Mrisho Chande& Another. 297Moreover, factors to be
considered when addressing the issue of awards given after lapse of 30 days
were determined in the case of Nufaika Distributors Ltd vs Hawa c/o Chomba
TUICO,298in which Rweyemamu, J;observed the following:

“The proper position as to awards given after lapse of 30 days, is that the decision
must, take into consideration other factors like: whether the parties contributed to
the delay in preparation of the award, whether there were sufficient reasons to
extend the time and...if any party’s rights were prejudiced or a miscarriage of justice
occasioned by late delivery of the award.’

Other cases supporting the above principle include: Joas Mrutu &37 others vs
Namna Hotel,299 and that of Tanzania Revenue Authority vs Justus
Ndyeshumba.300 Thus, the arbitrator is required to issue an award within 30
days following the conclusion of the proceedings, or otherwise he is obliged
to give notice on the parties as to default before proceeding to make an
award.

296
Revision No.256/2008;
297
Revision No.162 (268) of 2009; High Court of Tanzania at Dar es Salaam
298
Revision No.256 of 2008, High Court of Tanzania at Dar es Salaam
299
Revision No.268 of 2008, High Court of Tanzania.
300
Revision No.304 of 2009, High Court of Tanzania.

147
6.3.6 Grounds for challenging an award
The rules on challenging the award made by the Commission for Mediation
and Arbitration is almost similar to those provided for under international
commercial arbitration institutional rules such as ICC Rules, London
Arbitration Rules, and so forth. A party to arbitration award may challenge it
under s.91 on the ground that it is defective. In this basis, the party must
apply to the labour court for review or revision within six weeks of the date
the award was served on him.

Furthermore, the party may also challenge an award, on the ground that it
was “improperly procured”. In this case the application on the labour court
should be made within six weeks of the date that the party discovered
improper procurement. The labour court may set aside the arbitration award
on the ground that there was misconduct on the party of the arbitrator or the
award was improperly procured by the arbitrator. The court may also stay
enforcement of the award pending the decision under s.91 of the ELRA.

6.4 Combined Mediation / Arbitration

This is provided for under rule 18 of the Labour Institutions (Mediation and
Arbitration) Rules (LIMA). It’s a process in which CMA can have mediation
and arbitration on the same day by the same person. It is intended to deal
with simple cases which be disposed of quickly with rules. To prevent
biasness by the mediator cum arbitrator:
(i) The person should conduct mediation in such a manner that it does
not compromise the person’s role as arbitrator as per rule 18(6) of the LIMA.
(ii) The person should not meet with any of the parties separately
during the mediation process to prevent perception of bias or partiality.
(iii) The person should during the phase of mediation attempt to focus
on areas of settlement as opposed to factual issues in dispute.

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6.4.1 Procedure for properly conducting med/arb process
The Commission for Mediation and Arbitration (CMA) has been given powers
to set a dispute for a combined med/arb procedures. However, this
procedure has been subject to controversies, particularly, where mediators
proceed to arbitrate the matter after failure of mediation. For example, in the
case of Buzwagi Project vs Antony Lameck,301the respondent was terminated
by the applicant on 25/8/2008 and he promptly referred the matter to the
CMA on 29/8/2008. The dispute was unsuccessfully mediated after which the
mediator proceeded with arbitration, ultimately issuing the impugned ruling
(instead of award) on 3/11/2008. The applicant filed an application for
revision of the award/ruling on ground that the person who mediated the
dispute proceeded with arbitration without a separate appointment to act in
that second capacity. The respondent submitted that both parties agreed to
that person acting as an arbitrator due to shortage of arbitrators in the area.
Rweyemamu, J; observed the following:
(i) That s.88 (9) of the Employment and Labour Relations Act2004 read
together with Rule 22 of the LIMAG 2007 requires the arbitrator to
issue an award after arbitration, not a ruling. Thus, the procedure of
issuing a ruling instead of an award by the arbitrator in this case
was a material irregularity.
(ii) While under the ELRA, mediation and arbitration are two distinct
functions; mediators are appointed under S.86(3) and arbitrators
under s.88(2)(a); and while it is true the Act provides that the CMA
must appoint an arbitrator, the Act read together with GN 67/2007
however do not provide for the procedure for such appointment.
Although officers of the CMA are appointed as both
mediator/arbitrator, and determine the case if both parties agree,
this is contrary to law and may compromise efficient operation of
system. The practice contravenes the rule on confidentiality (Rule
17 of Labour Institutions (Mediation and Arbitration Rules) and leads
301
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149
 to conflict of roles as mediator cum arbitrator leading to injustices.
Unless a dispute is set for combined med/arb process, where a
mediator proceeds with arbitration of a dispute without
appointment or seeking for parties consent and record the same (as
a matter of practice) , subsequent proceedings will be found to have
been conducted with fundamental irregularity and reviewable.
Thus, the CMA proceedings including the award and subsequent
orders were quashed and remitted back to CMA for fresh
determination according to law.

Likewise, in the case of Tanzania Breweries Ltd vs Charles

Malabona302consolidated with Tanzania Breweries Ltd vs Henry Kilagula, 303
when addressing the issue as to whether the mediator in the same case can
assume the roles of the arbitrator, Rweyemamu, J; observed the following:
(i) Whereas mediators are appointed under s.86 (3)(a) ELRA and
arbitrators are appointed under s.88(2)(a) ELRA, but there is no
procedure for appointment of a person as mediator cum arbitrator.
(ii) The procedure for combined mediation and arbitration (Med/Arb)is
provided underRule 18 of the Mediation &Arbitration Rules, but in
any case where a mediator proceeds with arbitration of a dispute
without appointment or giving the parties a choice to accept him as
arbitrator by signing a consent agreement which must be
recorded(as per Rule 30 of the Guidelines), the subsequent
proceedings will be found to have been conducted with fundamental
irregularity and reviewable.
(iii) Where the mediator and arbitrator is the same person, then Rule 17
of the Labour Institutions (Mediation and Arbitration) Rules provides
that no person may refer to anything said at mediation proceedings
during any subsequent proceedings, unless the parties agree in
writing, is compromised.
302
Labour Revision No.24 of 2007; High Court of Tanzania at Mwanza
303
Labour Revision No.219/2008); High Court of Tanzania-Labour Division at Mwanza

150
The proper procedure to follow when conducting combined mediation and
arbitration was given in the case of BIDCO Oil and Soap vs Abdu Said and 3
others,304whereby Mandia, J; when determining an application for revision of
the award on the ground it was improperly procured for the purported award
issued by a mediator, ruled as follows:
(i) That mediation and arbitration are two distinct functions, each of
whom depends on an appointment by the Commission. This means
a mediator cannot convert himself/herself into an arbitrator. After
mediation, therefore, a mediator should indicate failure to mediate
so that the commission appoints the arbitrator
(ii) That the Commission has the power under rule 18 of GN 64/2007 to
order for combined mediation and arbitration proceedings after
giving due notice under rule 18(2). A mediator should first be
appointed to mediate the parties, and after the failure of mediation,
appoint an arbitrator under s.88 (2) (a) of the ELRA. Since
mediation of dispute is mandatory and arbitration is also
mandatory, it remains to see how the two appointments can be
made at the same time without flouting the law
(iii) That where a mediator acts as arbitrator in the same case
confidentiality is compromised, parties do not participate in the
process with frankness and there is a conflict of roles likely to lead
to injustice unless there is special appointment by the CMA and
parties give their consent in writing.

Another case elaborating the ability of the mediator to make decision

including an award after mediation has failed, is that of Pan African Mining
Services Ltd vs George Singo & 3 Others, 305whereby Rweyemamu, J;ruled as
follows:
(i) The first situation is provided under s.87 (3) (b) of the ELRA
whereby a mediator can proceed to decide a complaint (hear it) ex
304
Revision No.11 of 2008; High Court of Tanzania –Labour Division at Dar es Salaam
305
Revision No.5 of 2010; High Court of Tanzania (Labour Division) at Mwanza

151
 parte if the other party to the complaint fails to turn up to attend
mediation hearing.
(ii) The second situation is provided under S.88(3) of the ELRA and
s.19(7) of the LIA read together with rule 18(1) and (2) of the
LIMA, whereby a dispute is scheduled for a combined med/arb
process, subject to 14 days’ notice to the parties.

The above case shows that a dispute can be mediated and arbitrated by the
same person if there is an appointment to the double roles in a combined
med/arb process, although this may affect the roles of the mediator cum
arbitrator particularly, the confidentiality principle. To properly conduct the
med/arb process the following things must be done:
i) The dispute must be set for a combined med/arb process by the
Commission for Mediation and Arbitration at the beginning when an
applicant files a complaint through Form No.1
ii) The parties must be given 14 days’ notice that a dispute has been
set for a combined med/arb process.
iii) The Commission should appoint a mediator who will be required to
resolve the dispute within the period prescribed by the Commission.
Then if the mediator fails to resolve the dispute, the Commission
should proceed to appoint an arbitrator. However, the Commission
may appoint a person as a mediator cum arbitrator i.e an
appointment is only done once, in which case a mediator will
automatically turn to arbitrator if mediation process fails.
iv) The mediation must be conducted according to the procedures save
that the mediator is prevented from conducting private caucuses.
The mediation process is off record.
v) If the mediation fails, then the mediator should issue a certificate of
failure (NSO) and then proceed with the next stage (arbitration)
which must be conducted according to the rules on arbitration.

152
 vi) Finally, an award is issued taking into account the rules on
recording the CMA proceedings and the contents of the award.

6.5 Adjudication

(a) Jurisdiction of the Labour Court

This follows after alternative dispute resolution mechanisms have been

exhausted. The High Court (Labour Division) has jurisdiction to hear and
determine all applications for revision or review of the arbitrator’s
decision/award. However, the High Court has exclusive jurisdiction in civil
matters and therefore it can determine any application lodged to it if there is
a reasonable ground so to do; unless such action is of a criminal nature
whereby it is to be lodged in ordinary courts competent to try such
offences.306Likewise, the Labour Court may refuse to hear a complaint if it
has not been referred to mediation by the CMA under S. 86 or the application
is not urgent or where the provisions of that (S.86) have not been complied
with.

The Act vests exclusive jurisdiction to the Labour Court over the application,
interpretation and implementation of the ELRA, and over any other labour
matter specifically reserved for its decision by the laws. However, it enjoys
original jurisdiction in the following matters:
i) Determination of appeals from the decisions of administrative
authorities such as Registrar of Organizations on matters of
organizational rights
ii) Reviews and revisions of arbitrator’s awards and decisions of the
Essential Service Committee
iii) Review of decisions, codes or guidelines made by the Minister under
the ELRA, and the Commission for Mediation and Arbitration
iv) Determination of applications for declaratory orders and injunctions.

306
S.51 LIA

153
(b)Time for making a reference
References to court is done by filing a statement of complaint as prescribed
in Form No.1of the Schedule to the Labour Court Rules of 2007. 307 A copy of
the application must be served on the other party, either by: handing a copy
of the document to the party in person or a representative, leaving the copy
at the person’s premises; e-mailing or faxing a copy of the document; using
a registered mail service or use of substituted service upon leave of the
court.308 The other party is obliged to file a response to the statement within
15 days from the date on which the statement of complaint was formally
filed; followed by a reply to the statement of response within seven days
from the date it was filed. It is at these stages that the court conducts a pre-
trial conference seeking to help the parties come to an agreement; and
agreement as to other issues pertaining to discovery and exchange of
documents, procuring witnesses for proof of the case, resolution of
preliminary issues and other relevant matters for disposal of the suit. 309

The time limit for challenging an award before the court is 6 weeks after the
award was made and served or 6 weeks after discovery of the fact that the
award was improperly procured. However, sometime the arbitrator may
delay to deliver the award or the CMA may delay to give necessary records
to the applicant, such that the six weeks do lapse before making an
application to court. In such circumstance, the leave of the court must be
sought to file an application out of the statutory period, and the applicant
must give grounds or reasons for late referral of the matter. Where the court
is satisfied that the applicant’s late referral was justifiable, then the matter
will proceed as though it had been filed within the time limit.
307
Refer to rule 6 of the GN.No.106 of 2007
308
Rule 9 ibid
309
Rule 10, ibid

154
In the case of Tanzania Revenue Authority vs Isack Kola, 310an applicant
lodged an application in court for extension of time to apply for revision of
the CMA award. Among the grounds were: that the delay was caused by
administration procedures of the organization which require consent of the
top management before taking action in a case; that they had no notice of
delivery of the award, and that there was overwhelming chances of success
of the intended application. Rweyemamu, J; observed that circumstances
arising out of the applicant’s administration system did not constitute good
cause for delay in filing the revision application since the applicant firm
should have in place a system which ensured compliance with legal
requirements311. However, since the CMA adjourned the matter for
preparation of the award without fixing a date for its delivery, it had a duty
to serve notice of the date of its delivery to the parties, which was not done ;
hence delay to act in time was on good cause on that aspect. 312

(c) Applicable law on limitation matters

It is important to note that the law applicable on limitation of suits in labour
related matters is neither the Law of Limitation Act 1971 nor the Civil
Procedure Code, but the Labour Court Rules, 2007.

(d) Procedure for lodging an application for revision or review:

The procedures for lodging applications in the court are provided by the
Labour Court Rules, 2007; and any other rules determined by the court for
quick and fair determination of the dispute. An application for review of the
decisions made by a responsible person is made under Rule 27 of the Labour
Court Rules. After filing a notice of application, the party seeking review files
the chamber application under rule 26(1&2). The notice of review is in the
310
Misc.Application 78 of 2010; High Court of Tanzania at Dar es Salaam (Rweyemamu, J)
311
This was also discussed in the case of TRA vs David Maeda, Revision No.97/2009)
312
This is supported by the decision of the CA in Stanzia Stanley Kessy vs The Registered Trustees of Agriculture
Inputs Funds and 3 Others, Civil Application 46/2005 (Unreported)whereby the court held that where the
judgment was issued without notice, it was inconceivable that lack of diligence could be attributed to the
applicant or her counsel in appealing timely.

155
prescribed Form No.6 in the Schedule to the Labour Court Rules. This was
held in the case of Tanzania Union of Industrial &Commercial Workers
(TUICO) vs Attorney General, Managing Director for Labour & Youth
Development, Managing Director Tanzania-China Friendship Textiles Co.
Ltd.313

On the other hand, there are two conflicting opinions on lodging an

application for revision in the court:
a) The first opinion is that shared by Mandia, J; and Moshi, J; that the
procedure for filing an application for revision under rule 28 is similar
(mutatis mutandis) to the procedure provided for review under rule 26,
which though a different category, are put together under the same part of
the rules. This was held in the cases of TPAWU vs Robert Korinako,314Coca
Cola Kwanza Ltd vs Emmanuel Mollel, 315 and PLY and Panel (T) Ltd Tanga vs
Hamad Kassim.316
b) The second view is that maintained by Rweyemamu, J; who opines that
the procedure of lodging applications for revision is that under rule 24 of the
Labour Court Rules covering “any application” to the court and specifically
covering applications not provided for under the rules. This was so held in
the case of Sisty PatrickKessy and 2 others vs The Manager China
Paper.317But this position was not maintained in the case of Tanzania
Telecommunication Company Ltd vs Justus Tihairwa, 318whereby
Rweyemamu, J; held that a person wishing the Labour Court to revise the
arbitrator’s award has to move the court under s.91 (1) of the Employment
and Labour Relations Act, 2004 read together with rule 28 of the Labour
Court Rules 2007. This was preceded by the case of Caspian Co.Ltd vs

313
Miscellaneous Application No.1 of 2008 , High Court of Tanzania-Labour Division.
314
Revision No.109 of 2008, High Court of Tanzania (Unreported)
315
Application No.22 of 2008, High Court of Tanzania (Unreported)
316
Labour Revision No.286 of 2008, High Court of Tanzania (Unreported)
317
Labour Court Revision 25/2009; High Court of Tanzania (Unreported)
318
Labour Revision No.203 of 2010 C/F Misc.Application No.58 of 2010; High Court of
Tanzania at Dar es Salaam}

156
Youngstone Amanyise Malindo,319 where Rweyemamu, J; ruled out that all
applications in the court should be initiated under s.91 of the ELRA and rule
28 of the LC Rules; failure to do thatis fatal and makes the application
incompetent.

However, the above conflicting decisions of the court have no permanent

effect on the court proceedings following common and shared understanding
on the consequence of non-citation or wrong citation of the applicable laws
(enabling provisions). The High Court (Labour Division) has consistently
adhered to the decision by the Court of Appeal of Tanzania in Antony J. Tesha
vs Anita Tesha,320whereby it was established that wrong citation or non-
citation of the proper law renders the whole application incompetent, hence
be struck out. This does not extinguish the rights of a person as such
defects are curable (i.e., not incurably defective). In the case of Charles
Ng’umbi vs Unilever TeaTanzania,321in whichMoshi, J; held that where an
application is strike out, it is permitted to refile it under a proper law.

Furthermore, in the case ofChama cha Walimu Tanzania vs A.G,322it was held
that an omission in citing proper provision of the rule relating to a reference
and worse still citing wrong and inapplicable rule in support of the
application is not a technicality falling within the scope and purview of article
107A (e) of the Constitution of the United Republic of Tanzania. It is a matter
which goes to the very root of the matter; hence an application ought to be
struck out.

The same position was observed in the cases of Wartsila (T) Ltdvs Mwinyi
Uweje and 25 others,323and Zayumba Abeid and Others vs Tanzania Ports
Authority324On the other hand, where enabling provisions of the laws are
319
Revision No.237 of 2009, High Court of Tanzania (Unreported)
320
Civil Appeal No.10 of 2003, Court of Appeal of Tanzania
321
Revision No.1 of 2010; High Court of Tanzania –Labour Division at Iringa
322
Civil Application 152/2008, Court of Appeal of Tanzania
323
Labour Revision No.213 of 2008; High Court of Tanzania-Labour Division at Dar es Salaam,
by Moshi J}
324
Revision No.102 of 2010; High Court of Tanzania-Labour Division at Dar es Salaam, by Rweyemamu, J}

157
cited, but other provisions are cited in addition, the application is competent
and ought to be determined by the court. This was so held in the case of
Tanzania Revenue Authority vs Isack Kola, 325that where applicant’s pleadings
reveal overwhelming chances of success, the court would revise the CMA
proceedings under rule 28 of the Labour Court Rules, even suo mottu, for
good ends of justice, without necessarily adhering to legal technicalities.
This is an appreciable practice by the Labour Court which seeks to ensure
that justice is not only done but it seems to be done by disregarding
technical rules.

(e) Applications for revision must be supported by affidavits

It is a condition precedent that an application for revision or review must be
supported by an affidavit that addresses all issues under rule 24(3) of the
Labour Court Rules, 2007. It should contain statement of legal issues that
arise from the facts; otherwise it may be struck out. In Gibson
PaulMwaigwisya vs St. Mary’s International School, 326in which Rweyemamu, J;
when describing a proper affidavit filed in court, observed that an affidavit
filed in support of the application which does not comply with rule 24(3) of
the Labour Court Rules, makes an application to be incompetent before the
court thus susceptible to being struck out; and since the affidavit contains
narration of evidence and facts but not statement of legal issues that arise
from the facts, it is equated to having no grounds for revision.

(f) Court Proceedings, Judgments and decree

Generally, the court proceedings are more or less the same as in other
ordinary suits; but the court is not bound to comply with the rules of
evidence if it appears that doing so would affect or defeat the good ends of
justice. At the hearing, the complainant has the right to begin proving the
case unless where the respondent admits the alleged facts; and where the
respondent claims that the claimant is not entitled to any relief, then the
325
Misc.Application 78 of 2010 ; High Court of Tanzania-Labour Division
326
Revision No.133 of 2009; High Court of Tanzania –Labour Division at Dar es Salaam (Rweyemamu, J)

158
duty to prove will be upon the respondent 327. Thus, the hearing proceeds on
the general principle that the one who alleges the fact must prove, except on
termination matters where the burden of proving that termination is fair lies
on the employer.

According to rule 18 of the Labour Court Rules, the court is constituted by

the judge of the court and two assessors knowledgeable in the relevant field
of the suit, unless the parties have made an agreement to the contrary (ie
waive such a requirement). The assessors must be nominated by the
Chairman of the Labour Economic and Social Council from two panels of
assessors: one representing employer’s association such as Association of
Tanzania Employers (ATE) and the other representing interests of workers
such as TUCTA.

Once the court finalizes the hearing process, the court must give due notice
on the parties to appear and pronounce a judgment in an open court. The
court is empowered to issue appropriate remedies depending on what has
been applied for and any other reliefs that the court deems fit. However, it is
important to note that the costs of the proceedings lies on each person,
unless one acted in a frivolous or vexatious manner.

Thereafter, the court may issue a decree for enforcement of judgment; and
where one lodges an appeal to the Court of Appeal of Tanzania on points of
law, an application for stay of execution must be done accordingly.

6.6 Conclusion
The above dispute resolution mechanisms (i.e., mediation, arbitration and
adjudication) only apply to resolution of the disputes of rights. For the
dispute of interests, after failure of mediation, the parties are allowed to
engage in industrial action (to be discussed in the next chapter).
Furthermore, where the parties (employer and employee through a trade
union) have a collective agreement providing for different systems or
327
Rule 20 of the Labour Court Rules, GN.No.106 of 2007

159
resolving disputes in their sector (industry or establishment) under s.95(1) of
the Employment and Labour relations Act, then the above methods will not
apply as it was observed in the case of Stephano Elias & 2Others vs Mwanza
Fishing Industries Ltd,328where it was held that Voluntary Agreement (VA) or
collective agreement between the disputants had the impact of ousting the
jurisdiction of CMA since parties in dispute agreed as to the distinct dispute
resolution system. However, such alternative systems must ensure that
disputes are mediated or arbitrated in an independent, expeditious, neutral
and professional manner.329

328
High Court of Tanzania-Labour Division at Dar es Salaam, Revision Case No.118 of 2009 (Original
CMA/MZA/ARB/09/2009) (Ruling by Rweyemamu R.M.J)
329
Refer to S.95(2) of the Employment and Labour Relations Act (ELRA)

160
 CHAPTER SEVEN
THE LAW OF STRIKES AND LOCKOUTS IN TANZANIA

7.1 Introduction
The right to strike as a form of dispute settlement mechanism is a necessary
corollary to collective bargaining which is usually resorted to when parties
have reached a deadlock in their voluntary negotiations. 330 It is an ultimate
weapon in persuading the other party to bargain on issues dealing with fixing
of better working conditions. However, the use of economic power should be
the last resort because of its adverse effects on the economy; thereby
regulated by procedural limitations in all jurisdictions, excluding some people
from exercising the right through what is known as essential services, which
make most of strikes illegal.331

The right to strike in Tanzania has a long historical background whereby

during the colonial time workers through the trade unions were prohibited
from exercising the right, either by criminalization of the act and setting up
of complex but compulsory procedure for resolving dispute or deregistration
of trade unions. For instance, Trade Union Ordinance of 1932 empowered
the registrar to cancel the registration of any trade union and enquire the
annual accounts of unions, which had the effect of denying these unions
organizational rights.332 The Defense (Trade Disputes) Regulation of 1943
empowered the governor to establish a tribunal for settlement of trade
disputes and outlawed strikes and lockouts. 333 On the other hand, the
colonial government adopted the Trade Disputes (Arbitration and
Settlement) Ordinance No.43 of 1950 which exempted people in essential
services from strikes. Such services included water, hospital, ports and dock
services, electricity, sanitary and transport services, public transportation,

330
Malebona F; Collective Bargaining and Labour Disputes Resolution-Is SADC Meeting the Challenge?, ILO Sub –
Regional Office for Southern Africa: Harare; Issue Paper No.30 of 2008, p.17
331
Ibid p.18
332
Refer to Ss.7,8,13 and 17 of Trade Union Ordinance of 1932
333
GN No.279 of 1943

161
telecommunication services and any other service declared to be essential
by the governor.334

Likewise, the Independent Government condemned strikes through enacting

laws such as Trade Unions (Amendment) Ordinance No.51 of 1962 which
empowered the minister to designate a federation (state controlled) to which
all registered trade unions would be compulsorily affiliated; Trade Disputes
(Settlement) Act of 1962,335which criminalized strikes and lockouts, and set
up a complex procedure for compulsory arbitration and settlement of labour
disputes; the Preventive and Detention Act of 1962336 which empowered the
president to order detention of any person who was conducting himself in a
manner prejudicial to the state including trade union leaders. Other laws
include National Union of Tanganyika Workers (Establishment) Act of 1964 337
which repealed TFL and established NUTA, an affiliate to the ruling party
(TANU) whose leadership was determined by the President, who also had
powers to dissolve the union.338

NUTA was then transformed into JUWATA through JUWATA Act of 1979
following the merger of TANU and ASP in 1977. 339 However, the workers were
later allowed to form their own trade unions that were affiliated to OTTU
through Organization of Tanzania Trade Union Act 1991. 340 This freedom to
associate did not last long as the government adopted the Trade Unions

334
Refer to s.12 of the Trade Disputes(Arbitration and Settlement) Ordinance No.43 of 1950
335
Act No.43 of 1962
336
Act No.60 of 1962
337
Act No.18 of 1964
338
The general secretary of the union was a cabinet minister responsible for labour matters; deputy secretary was
appointed by the President, whereas the financial secretaries, assistant secretaries for the various sections of the
union and directors of the organization were appointed by the general secretary after consultation with voting
members of the general council.
339
The whole of Tanzania had only one trade union established under article 70 of the CCM Constitution; whose
leadership was determined by the Chairman (President).
340
OTTU General Congress in 1995 dissolved to form Tanzania Federation of Trade Union (TFTU) to which trade
unions established by workers would voluntarily be affiliated.

162
Act341whereby the registrar was given powers to control and supervise trade
unions’ finance, suspend trade union officers and apply for receivership. 342

Following ratification of the international agreements, namely: International

Labour Organization Convention on the Right to Organize and Collective
Bargaining 343
and Convention on Freedom of Association and Protection of
the Right to Organize344 , which provide for protection against acts of anti-
union discrimination, freedom from interference by employers in trade union
independence and collective bargaining, there was necessity to adopt new
laws that would accommodate economic and political reforms that had been
undertaken in the country.345 So, the Government enacted the Employment
and Labour Relations Act, 2004, whereby both workers and employers have
the right to join and form associations subject to registration conditions. 346
On the other hand, the law provides for organizational rights including:
access to employer’s premises, trade union representation at work places,
and deduction of trade union fees from employee’s remuneration and right
to strike.347

7.2 Fundamental Protections of the right to strike at international

level
The right to strike is an essential means available to workers and their
organizations for the promotion and protection of their economic and social
rights, but which is regulated by procedural limitations in all jurisdictions,
including exhausting the mediation and conciliation efforts. Such procedural
hurdles limit the legitimate use of the right to strike leading to a number of
illegal strikes, hence exposing employees to dismissals for participation in
341
Act No.10 of 1998
342
Refer to Ss.65, 71 to 73 of the Trade Unions Act, No.10 of 1998.
343
ILO Convention No.98 on the Right to Organize and Collective Bargaining of 1949,
344
ILO Convention No.87 on Freedom of Association and Protection of the Right to Organize, 1948
345
Kalula Evans; The Context of International Labour Standard, in Rutinwa et al (eds) The New Employment and
Labour Relations Law in Tanzania; An Analysis of Labour Legislation, Faculty of Law -University of Dar es Salaam
and Institute of Development and Labour Law ,-University of Cape town, pp.40-44
346
Refer to Ss.9 and 10 read together with ss.46 and 47of the Employment and Labour Relations Act , 2004
347
Refer to ss.60, 62, 61 and 75 of the ELRA respectively.

163
illegal strikes348. On the part of essential services, international community
has maintained the position that it is not permissible for employees to
engage in strike as interruption of such services would endanger the life,
personal safety or health of the whole or part of the population; except in
Lesotho whereby the Labour Court349 protects employees who participate in
unlawful strikes against termination where clearly the strike was in pursuit of
legitimate demands, and was actuated by unreasonable conduct on the part
of the employer.

The ILO Standards extends protection of workers’ rights to strike in the

public sector including protection against acts of anti-union discrimination,
freedom from interference by employers in trade union independence and
collective bargaining. These rights are to be enjoyed by all workers in civil
service except police and armed forces, public servants exercising authority
in the name of state, essential service, service of fundamental importance,
service which might become essential over time and other workers during
national crisis.350 Where such rights are restricted, there must be
compensatory measures and guarantees. For instance, where strikes are
prohibited then the following measures should be adopted, namely:
adequate protection to compensate for the limitation placed on freedom;
adequate, impartial and speedy conciliation and arbitration proceedings,
abidingness of the award, the right of workers to select members of
arbitration tribunals, and that the cost of the procedures be affordable to
both parties.351

On the other hand, where strikes are banned (essential service) requiring
minimum service agreements, then “system of guarantees” must be

348
Malebona F ; Collective Bargaining and Labour Disputes Resolution-Is SADC Meeting the Challenge?, ILO Sub –
Regional Office for Southern Africa: Harare; Issue Paper No.30 of 2008, pp.17-19
349
Refer to Lesotho Haps v Employees of Lesotho Haps and Another; in Banda R.Z., Unfair Labour Practices-A Guide
to Relevant Cases and Materials, Lexis Nexis, Butterworth, 2005
350
Blackburn, D, Trade Union Rights in Public Services-Report Prepared for UNISON, International Centre for Trade
Union Rights (ICTCR), 16 November ,2010 pp.1-8
351
Ibid pp.4-5

164
provided and it should comply with a three-fold standard, namely: trade
unions, along with employers and the public authorities, should participate in
defining the minimum service; the minimum service should be confined to
operations that are strictly necessary to avoid endangering the life or normal
living conditions of the whole or part of the population, and that such
minimum services should be clearly established, applied strictly and made
known to those concerned in due time. The failure to respect the above
guarantees will render strike restrictions incompatible with ILO Standards.

It has been argued that most African countries deny civil servants the right
to organize, separate procedures for private and public sector workers to
form trade unions, which are lengthy and complicated, and registrars are
given powers to deny them registration. On the other hand, workers are
denied the right to organize in what is known as essential services which, in
most cases, are determined by the government. 352 The problem is much
broader that what is recommended by the ILO, that such occupations must
of such a nature that there exists imminent threat to the life, personal safety
or health of the whole or part of the population.

Similarly, African countries provide that freedom to association and collective

bargaining is guaranteed as long as it conforms to national security, public
safety, economic well-being, health or morals. Furthermore, strikes are
minimized by defining long and cumbersome procedures that should be
followed so as to go on strike “to the extent that there has never been a
legal strike in the country since independence” 353, and that there are no
efficient measures to enforce the laws on anti-union discrimination whereby
employers cause unfair treatments to the trade union leaders and employees
who join and participate in trade union activities. 354 Accordingly, workers’

352
Philippe A, et al., Labour Institutions, Labour- Management, Relations and Social Dialogue, University of
Toulouse and ARQADE, Institut Universitaire de France and IDEI, University of Rennes, CREM; October 5, 2005
pp.6-10; 45-47
353
Philippe A, at al., ibid p.8
354
Ibid p.9

165
rights to collective bargaining including the right to strike are adversely
affected leading to insecurity of employment.

7.3 The right to strike and lockout in Tanzania

The law of Tanzania provides that all employees and employers have the
right to participate in lawful activities of trade association including strike
and lockout. According to s.4 of the ELRA, strike is convened by employees
whereas lockout is convened by the employers. These are methods which
should be taken as method of last resort, not until mediations has failed and
can only be exercised in respect of a dispute of interest. However, the right
to strike and lockout in Tanzania is not an absolute right, in the sense that
there are limitations and conditions which must be observed before parties
exercise such rights. These limitations are in the form of prohibitions,
procedures for exercising those rights and categorizations of services into
essential services, and stipulation of circumstances under which the rights
cannot be exercised.

7.3.1 Circumstances under which parties are barred from strike and
lockout
Although s.75 of the ELRA provides that every employee and employer have
the right to strike and lockout with respect to disputes of interests, some
employees in the public sectors have been exempted from exercising the
rights. This takes into account the ILO Convention No.98 on the Right to
Organize and Collective Bargaining of 1949, 355 and ILO Convention No.87 on
Freedom of Association and Protection of the Right to Organize, 1948 356
which require the member state to provide for the manner in which the right
to strike and lockout may be exercised without affecting the interests of the
community or state.

355
Articles 1-4 provide that workers should be free to associate and participate in collective bargaining process
freely, and without any discrimination.
356
Articles 2-6 provide that workers should be free to form their own associations subject to their own
constitutions and that they should not be suspended without reasonable cause.

166
The employees and employers in the following sectors are not permitted to
conduct strike and lockout respectively:

(a) Employers and Employees in Essential services:

Employees and employers working and doing business in the essential
services are prohibited from use of industrial action. These services have
been defined to mean such services, which if interrupted, may endanger the
personal safety or health of the population or part of it as per s.77 (3) of the
ELRA. Such services include but limited to; water and sanitation, electricity,
health services and associated laboratory services, fire fighting, air traffic
control and civil aviation telecommunications and any transport services
required for the provision of the essential services. 357 This list is not
exhaustive and conclusive since the Essential Services Committee
established under s.29 of the Labour Institutions Act is vested with exclusive
powers to determine and designate services as essential services is subject
to prescribed procedures on consultations, representations and
publication.358

(b) Where an employee is engaged in minimum services

For the employees in the essential services to engage in strike, it is
mandatory that a collective agreement is concluded between employees and
employer providing for the minimum service during the strike and such
agreement must be approved by the Essential Services Committee. 359This
means that although employees in the essential services are prohibited from
strikes, they may so do if a minimum service agreement is concluded and
approved by the Essential Services Committee. Where employees in
essential service conduct strike without an approved minimum service
agreement, even if the procedures for engaging in a lawful strike are
complied, the said strike will be termed as unlawful strike (unprotected
357
S.77(2) of the ELRA
358
S.77(4) and (5) of the ELRA
359
S.79 of the ELRA

167
strike) and they may be terminated from work or suspended. For example,
the government of Tanzania sacked 148 interns at Muhimbili National
Hospital on 22nd June 2005, and 111 doctors, 24 pharmacists and 13 nurses
stopped working and suspended.360 These were later reinstated. Similarly, 52
doctors from Muhimbili National Hospital were sacked on 23 rd November
2005 following a strike for the increase of allowances. 361 The reason for
termination has always been participation in unlawful strike due to the fact
that there is no any minimum service agreement concluded between the
Medical Association of Tanzania (MAT), TUGHE with the government.

(c) If there is an agreement between parties to require the dispute

of interest to arbitration
This may be done through a voluntary agreement entered between the
employer and the employee that require all disputes arising out of and in the
course of employment to be referred to compulsory arbitration. Some other
employers (particularly foreign companies) expressly stipulate in their
employment contracts (standard contracts) that labour disputes which
occurs must be resolved by arbitrators in a respective country and using a
foreign law. This practice is allowed by the labour laws in Tanzania, but such
agreements should not endanger the interests of the employees or avoiding
statutory responsibility by the employer.

(d) Where there is a collective agreement that regulates the dispute

in issue
The labour law allows employees through registered trade unions to effect an
agreement with the employer providing better employment terms and
conditions.362 The conditions for exercising collective bargaining rights is that
a trade union must be registered, represent the majority of employees and it
should be recognized by the employer as the bargaining unit (agent). 363 The

360
ICFTU (2006) Report for the WTO General Council Review of the Trade Policies of Tanzania, p.4
361
Ibid p.4
362
S.13(2) of the ELRA
363
S.67 ibid

168
agreement properly concluded was binding on the parties (employer and
employees) until the same is altered by another agreement. 364 So, where the
employer and trade union concludes an agreement that subjects dispute
resolution to alternative forum apart from those established by the Labour
Institutions Act 2004, such agreement must be respected. This was
observed in the case of Stephano Elias & 2 Others vs Mwanza Fishing
Industries Ltd,365whereby Rweyemamu, J; held that a collective agreement
has the impact of ousting the jurisdiction of CMA since parties in dispute
agree as to the distinct dispute resolution system, then the CMA did not have
jurisdiction to entertain the matter.

(e) Legal Practitioners in the Public Services

The issue of administration of justice in the country has been considered by
the labour laws in Tanzania. These services include: judges, magistrates and
other judicial officers.366 The Act does not define what judicial officer means,
but it may be taken to include court clerks and other employees in the
judiciary. It’s not clear if practicing advocates and other officers to whom
the Advocates Act 367
applies, are included in the term ”other judicial officers
” (although an advocate is a private practitioner).

Other circumstances where parties are prohibited from striking is where

there is a wage order which is binding on the parties, arbitration award and
where the procedures for involving in a strike is not complied. 368

364
S.71 ibid
365
Revision Case No.118 of 2009 (Original CMA/MZA/ARB/09/2009) High Court of Tanzania-Labour Division at Dar
es Salaam (Ruling by Rweyemamu, R.M:J)
366
S.76.(1) (f) of ELRA
367
S.3(2) of the Advocates ELRA, Cap.341 R.E 2009 applies to the Attorney-General, Parliamentary Draftsmen and
State Attorneys, and any person duly qualified holding office in the Attorney-General’s Chambers; the legal
secretary Income Tax Department; any person who is a holder of law degree and who is a Solicitor in any District
Council or Township Authority established under the Local Government (District Authorities)Act, and in any city or
urban authority established under the Local Government (Urban Authorities) Act; the Registrar-General,
Administrator-General, Public Trustee, Official Receiver, Commissioner for Lands and any person duly qualified
holding office in the office of the Registrar-General, or of the Administrator-General, or of the Official Receiver or
the Land Officer; and any person duly qualified holding office in such parastatal organization as the Minister may,
by order published in the Gazette, designate for the purposes of this section.
368
S. 76(1) ELRA

169
7.4 Procedure for engaging in a lawful strike
Strike or lockout may be lawful or unlawful depending on whether the parties
did exhaust the procedure for engaging in a strike (both primary and
secondary strike). The law accords protection to only lawful strike, whereby,
before employees (trade union) decide to strike, the following conditions or
requirements must be observed:
(i) The dispute must be of interest and parties should not be engaged
in essential services unless there is a minimum service agreement.
Other factors need to be considered such as those prescribed under
s.76 of the Act.
(ii) The dispute should have been referred to CMA in the prescribed
form (Form No.1)
(iii) The dispute should have remained unresolved after the expiry of
mediation period. This means that the mediator must issue a
certificate of failure or otherwise called Non-Settlement Order
(usually done by filling in Form No.5). If a strike is convened
without necessarily complying with this condition, it may be
classified as unlawful strike. This is implied through various court
decisions on the importance of the issue of a certificate for the
validity of subsequent measures after mediation has failed. The
code of Good Practice provides that where mediation fails, the
mediator should bring the parties to dispute to agree on the rules to
follow during the strikes or lockouts.
(iv) If it is a strike called by a trade union, a ballot should be conducted
to determine whether or not the majority are interested in striking.
This is done in accordance with constitutions of respective trade
unions approved by members and presented to the registrar of
trade unions during registration process. One of the requirement to
be observed in the constitution is providing for the manner
members will be participating in the decision making process,
particularly on matters of strike

170
 (v) The trade union or employees must give 48 hours’ notice to the
employer of their intention to strike. The counting starts from the
time when mediation fails; if no strike is done, then other 48 hours’
notice is required.

7.5 Procedure for engaging in lawful lockout

The procedures for engaging in lawful lockout by the employer are the same
as those for strike, save for provisions on conducting ballot papers. This
means that a dispute must be of interest, it must first be referred to the
Commission for mediation, mediation must have failed and then the
employer must give forty eight hours’ notice to the employees. 369

7.6 Consequence of strike

(a) Lawful strike
As previously shown, where the procedure for engaging in a lawful strike is
exhausted and the parties are not within a group of people prohibited to
strike or lockout, the convened strike is a protected one. This means that no
any civil or criminal action can be instituted against the striking employees,
unless where employees commit prohibited acts during a strike such as
destruction or willful damage of the employer’s assets, assaulting an
employer or doing any other act that violates the Penal Code, which may be
committed in order to pressurize the employer to comply to their demands.

On the other hand, a lawful strike does not amount to a breach of contract of
employment. Hence, the employer cannot terminate an employee from
employment merely because one exercised a right to strike, which is a right
conferred under the law. Section 37 (3(a)(iii) of the ELRA provides that it will
be unfair if the employer terminates a person because he/she has exercised
a right conferred by the Act or because an employee participates in lawful
activities of the trade union such as strike. But, where an employee
participates in unlawful strike, it may be taken as misconduct which may
justify termination or disciplinary action.
369
S.82 of the ELRA

171
(b) Consequence of Unlawful strike
Section 84 of the ELRA provides that unlawful strike has the effect of
terminating a contract of employment. On the other hand, the employer may
apply to the Labour Court for an injunction to stop employees from striking.
The case of Chama Cha Walimu vs AG (supra)reiterates conditions for court
order.

7.7 Prohibited Conducts during strike and lockout

During strike or lockout certain employee’s or employer’s conducts are
prohibited. These include:
 Employees are prohibited to do acts amounting to picketing in favour
of a strike or in opposition of a lawful orders – This is where employees stand
in front of the employer’s premises (industry) to protest about something or
stop people from entering inside the industry. It seeks to ensure that each
employee makes his or her own decision to strike or not to strike apart from
the decision made through conducting ballots.
 Employees are also prohibited from locking in or locking out the
management or employer. This is usually done in order to create pressure on
the employer or accelerate the decision making process so that an employer
complies to the employees’ requests or demands
 Employers are prohibited from taking replacement labour. This means
an employer is not allowed to hire the new services of another person as an
employee or take up a position held by those conducting strike. This would
mean that the employer has terminated contract of employment by taking in
other employees. However, engagement of some people on temporary basis
to take up responsibility of those doing strike so as to ensure that employer’s
business is not affected does not amount to replacement labour. For
instance, during strike at Muhimbili National Hospital, the government of
Tanzania through the Ministry of Health sought for medical assistance from
the TPDF to ensure that patients continue getting treatment and other
services pending resolution of the dispute with doctors, who were on strike.

172
7.8 Obligation of an employer during a lawful strike or lockout
This is provided for under s.83 (4) of the Act. As stated earlier, a lawful strike
is neither a civil wrong nor a criminal act and therefore an employer
continues to regard a striking person as an employee, who is entitled to fair
treatment. The following consist of obligations imposed on the employer
during a lawful strike or lockout:
(i) The employer is not obliged to pay salaries to striking employees as
they do not offer required service. The principle on remuneration requires
the employer to pay an employee for services rendered in monetary
considerations according to the agreed rates (per hour, per day, per week or
per month)370.
(ii) The employer is obligated to continue making his / her contribution and
employee’s contribution to any social security fund or any other fund as
required by law. This is owing to the fact that the employer-employee
relationship still subsists among them, which may cease when a contract of
employment is dully terminated.
(iii) Where an employer provides accommodation, food and other basic
amenities of life, the employer must continue to provide such services;
however, after the strike the employer is allowed to make deductions of
services or benefits given to workers during strikes. Such deductions may
cover contributions made into the social security fund and the monetary
value of the accommodation, food and basic amenities so offered. However,
if the employee disputes the monetary value to be deducted (or to
deductions as a whole), that will amount to a dispute to be referred for
mediation to the Commission for Mediation and Arbitration. This should be
done within 60 days after the cause of action arises.
CHAPTER EIGHT
SOCIAL SECURITY SCHEMES AND LABOUR WELFARE IN TANZANIA

370
Refer to s.27 (1)ELRA

173
8.1 The nature of social security
(a) Definition of social security
There are three approaches of defining social security: first, it can be defined
with reference to the list of social risks; secondly, it can be defined in terms
of involvement of the state, and thirdly, be defined in terms of its aims 371.
Other authors define it as “the form of all regulations within a society which
aim to guarantee the individual or group, on a contributory basis, not only
physical survival but also general protection against unforeseeable risks
which would entail deterioration of the situation and consequences which
could be borne by the individual or group without external assistance. 372

However, social security may generally be referred as individual’s income

security in monetary terms covering events which threaten individual’s
earning capacity which tends to affect the standard of life. It is security
against events that threaten one’s ability to continue earning one’s income.
Social security consists of schemes that ensure against events that
endangers one’s capacity to earn income, by providing defined benefits to
the needy (those unemployed, physically disabled persons, sickness, etc)
depending on the contributions by the members. It is also defined as any
kind of collective measures or activities designed to ensure that members of
society meet their basic needs and are protected from the contingencies to
enable them maintain a standard of living consistent with social norms. 373

ILO Convention No.102 of 1952374 defines social security as the totality of

measures by the society and by the state to provide medical care for all and
to assure them that they live a descent life in the event of substantial
reduction of their livelihood resulting from substances beyond their control
such as sickness, employment injury, maternity, old age, invalidity, death of
371
Olivier, “The Concept of Social Security” in Olivier, Smit and Kalula ,(eds) 2003, p.25
372
D.Kasente, Gender and Social Security Reform in Africa, International Development Research Centre, Ottawa,
Canada, 1997 at p.2
373
The United Republic of Tanzania; The National Social Security Policy , 2003; Ministry of Labour, Youth
Development and Sports, p.2
374
Social Security (Minimum Standards) Convention, 1952

174
provider, unemployment, increases in family size. There is no any scheme so
far that provides for the nine risks as listed above; the ILO recommends that
a minimum of three out of nine contingencies outlined above should be
covered by any social security scheme.375

The ILO definition is a risk or contingency based approach, concentrating on

compensatory measures and leaving out issues of prevention, re integration,
re distribution of resources and poverty alleviation, although the ILO
recognized the need to focus on poverty prevention and alleviation as some
aims of social security.376 It has also been criticized for being too narrow and
not comprehensive for developing countries as it is limited to formal
employment as against informal employment that is prevalent in Africa.

(b) Purpose of social security scheme

The target of social security primarily is to protect the income of salaried
employees in formal sectors of employment when they face contingencies in
order to enable them live a descent life, that is to say, maintain the
livelihood of the employee despite the fact that he or she might not be
performing the duty of their employment due to contingencies. For example,
retired people should be protected by providing them with pension benefits
adequate to sustain their lives together with the dependants; those who fall
sick for sometime should be assured of medical benefits (sickness benefits);
mothers who deliver in the course of employment should be assured of their
survival during the nursing period for the best interest of the child (maternity
benefits); and so forth.

However, each individual in a society is entitled to social protection

depending on the socio-economic set up of the respective society. Such
protection may be accorded through formal, informal and traditional
schemes. This is because every individual person is exposed to the risks of
economic nature; thus, exclusions of people through coverage provisions in
375
Refer to article 2 Part I of the ILO Convention No.102
376
ILO, Social Security: A New Consensus, International Labour Office, Geneva, Switzerland, 1989 .p.3

175
the law are not tenable. Extending social security to all people is a matter of
social justice and it is among the fundamental human rights; although the
Constitution of the United Republic of Tanzania does not recognize it as such
because it is provided under Part II (Fundamental Objectives and Directive
Principles of State Policy), which is a non-enforceable part. 377

(c) Features of a social security scheme

In order to ascertain whether a scheme is of a social security nature, there
must be three important things or elements:
a) The objective of the system must be to grant curative or preventive
medical care or to maintain income in case of involuntary loss of earnings (or
part of earnings) or to grant supplementary incomes to persons having
family responsibilities beyond the ordinary
b) The system must have been set up by the legislation which attributes
specified individual rights or imposes specific obligations to a public or
autonomous body charged of implementation. The law must set out
principles, rules and institutions to be observed in operationalisation of the
social security system.
c) The system must be administered by a public body, any other
autonomous body or state owned/guaranteed body. The scheme must be run
in a democratic manner under the management team of board of directors,
and it should involve the stakeholders in terms of the principle of tripartite,
i.e the employees through trade union, employers through the employers’
association, and the state through its agencies.

(d) Categories of Social Security Schemes

There are typically two types of social security schemes, namely:
i) Defined Benefit Scheme (DBS): under these schemes benefits that
members get are clearly defined and in advance. The employee contributes
377
Article 11(1) of the URT provides that the “state authority shall make appropriate provisions for the realization
of a person’s right to work, to self education and a social welfare at times of old age, sickness or disability and in
other cases of incapacity...”. Reading article 7(2) provides that the provisions of Part II are not enforceable in any
court

176
in a specific scheme knowing the nature of the benefits (benefit structure)
and the amount payable in each granted benefit (benefit level). Such kinds
of schemes are all pension schemes such as NSSF, PSPF, LAPF, PPF, etc.
These schemes are income based/income graduated/ pro rated in the sense
that the contributions or amount collected on various persons will be
different depending on one’s income. The rate of contribution is the same
but with different amounts to be collected e.g., the rate may be 20% but
amount collected depends on the income let’s say 200,000/= or 80,0000/=.
ii) Defined Contribution Scheme (DCS): here the amount of
contribution by the beneficiary is determined but the amount to be paid to
the contributor in case of a contingent is not defined in the instrument. Thus,
the instrument simply defines the benefits provided by the scheme but does
not provide the formula for calculation of the amount payable at the end of
the day. DCS is sometimes referred to as Provident Fund whereby payment
of benefits is done in a lump sum; nothing like pension is provided under
such schemes.

(e) Approaches to Social Security

There are two approaches to social security which are universally used in the
provision of social security benefits to the members of the society, namely:
income-maintenance approach (Bismarckian or Social Insurance approach)
and minimum income protection approach (Beveridge Approach). The former
approach was initiated by Chancellor Otto von Bismarck of Germany in the
1880s. It was intended to protect the worker’s income in the industrial sector
by requiring the employer to contribute for the benefit of the employee in
case any contingent event occurs disabling the employee from earning
income, i.e., it was compulsory and built on the principle of solidarity.
The beveridge approach was created by William Beveridge who sought to
create a universal protection for the entire population in Britain. It is a
welfare state based approach whereby the state undertakes a duty to
guarantee a descent life to everyone in the country. This principle is similar

177
to Scandinavian model which advocates for a relatively high minimum
universal protection to all its citizens and residents. It is based on both social
insurance and social assistance and it encourages equal access of all the
people to social security benefits; hence this is a true social security scheme
(as it is based on universality principle).

These approaches are widely used by most of the countries whereby the first
approach produces the compulsory cover for the employees, whereas the
latter covers all the people including unemployed persons.

(f) Tier/Pillar System

This is where you have the basic cover for all citizens or residents in the
country depending on the individual’s social and economic circumstances. A
social security system in the country is divided into three tiers:
i) Tier I is based on beveridge approach (social assistance programmes).
It depends on the state’s budget in a particular year. By social assistance it
refers to assistance to the economically miserable people, people with
inadequate income, special problems, people with large family size, people
with long term illnesses, people with regular medical care and so forth. The
system is organized in a way that the miserable group of people should get
extra support from the already established budget. In advanced countries
social assistance and social insurance are part of social protection (social
protection denotes a general system of basic social support which is no
longer linked to the regular employment relationship which is found on the
conviction that a society as a whole is responsible for its weak members;
hence it is a general welfare support. These services are usually financed by
the government and Non-Governmental Organization (NGOs).
ii) Tier II which is based on Bismarckian approach (social insurance). This
is a mandatory scheme for the class of employed persons. It comprises of
pensions schemes such as NSSF, PSPF, GEPF, LAPF, etc; which are financed

178
by both employer and employee during the working life for terminal and
short term benefits.378
iii) Tier IIIwhich is based on voluntary commercial social insurance. These
are supplementary schemes such as property insurance (fire insurance,
vehicle insurance, and marine insurance), life assurance policies, personal
accident insurance policies, deposit administration schemes (DAS),etc. The
principle of solidarity fully applies in Tier I and Tier II for those in the group
according to the rate laid down, whereas in the Tier III the principle applies at
a lower scale.

(g) Characteristics of Comprehensive social security scheme

A comprehensive social security scheme should have three characteristics;
namely:
a) Provide preventive measures such as employment creation policies,
preventive medical care, etc.
b) Provide remedial or reparatory measures such as re-skilling in case of
technological changes, training, etc.
c) Provide compensation where loss of economic nature is sustained; such
as immediate cash payment

8.2 The historical origins of social security

Social security programmes that are prevalent in the community trace their
origin from early traditional communities starting from communal societies
(primitive communalism) to class societies (slavery, feudalism and
capitalism). The means adopted by the society in handling depended on the
nature of the productive forces and the nature of the risks.

8.2.1 Mutual Aid Practices and Norms during Communalism

8.2.1.1The Communal mode of production
It was characterized by the communal ownership of the major means of
production such as land and tools of labour. The clan could own cattle as the
378
URT, The National Social Security Policy of 2003, at p.3

179
trustee of the families, and the major economic activities was shared among
the individuals, e.g., harvesting, clearing of bushes, hunting and gathering
(communal work). The products were also shared among the members of the
family and the clan. Therefore, all the activities and associated risks were
handled according to the principle of communality or solidarity.

Most of the risks and losses (natural risks and economic risks) were
collectively addressed by the members of the society irrespective of age or
status. For example, in cases of marriage the bride wealth was the
community affair (responsibilities were shared); mothers usually did the
cooking together and contributed food and drinks. Natural risks such as
flood, earth quake,etc., were solved through physical means such as
construction of houses, fencing against thieves and enemies; whereas
economic risks such as drought and famine were solved through
preservation of crops in the hoard, cultivation of drought resistant crops and
keeping large herds of cattle. All these risks were solved on themutual
aidsystem based on the reciprocity principle(mutual love and benefaction).

Main Features and Principles/Norms

1. There was no funds-surplus kept was not based on calculation basis of

the risks to be encountered
2. Aid or assistance was given on the spur of the moment, i.e., it was
given spontaneously
3. Aid was given in kind (kind benefit) in terms of labour and materials
depending on the nature of the loss, number of victims involved and the
status of the involved.
4. Reciprocity is the consideration basing on the consanguinity and
solidarity.379

379
Kanywanyi, J.L (Prof); Informal Social Security Practices and Their Underlying Norms and Principles-Old and New:
Notes for a panel discussion on Social Security at the Social Welfare Institute Kijitonyama; 8 th March 1997, at
pp.11-13

180
Advantages of the System
1. Immediacy of the assistance-given on the spur of the moment
2. The aid was available to all members in need by the all members of the
society without discrimination except those who violated the rules
(defaulters)
3. There were no formalities for one to be given assistance; hence it was
efficient and effective.
4, Personal consolation of the victims –sharing of the pains and agony
5. Unification and solidarity in the community-problems and joyful
moments were dealt communally (unity of members)
6. Sustenance of peace and cordiality within the society (brotherhood)

Disadvantages /Challenges
i) There was no special fund from which the society would solve different
social problems. Furthermore, no investments were done to ensure that they
solve emerging risks.
ii) The materials kept were perishable in nature making it unable to
survive long periods of natural risks
iii) The membership was limited by factors such as locality and
consanguinity (blood relationship), so the laws of averaging (large numbers)
and probability did not apply.
iv) Aid or assistance was based on status rather than contract. 380

8.2.1.2 Mutual Aid Practices during Class Societies:

The beginning of formation of classes in the society (haves and have-nots)
had the impact on the methods and practices used to solve different socio-
economic problems. The class of the rulers organized themselves in a way
that their problems were handled by the state of the time leaving out the
class of the ruled to solve their own problems. There was the rise of

380
Pp.14-15 ibid

181
individualism against communalism and introduction of new medium of
exchange (money). The nature of the economy changed from subsistence
economy based on agriculture to commodity production in the fields of trade,
handicrafts, lumbering, fishing, ship construction , usury (lending money to
the poor at high interest rate), and so forth. Slaves were sold from one slave
master to the other, but later with development of feudalism slaves turned
into serfs working for the landlords. This had the impact on the methods
adopted to solve the risks in a particular group.

(a) Slave Mode of Production

Social security issues were mostly influenced by religious beliefs that
required every person who died to be buried decently. The customary rites
could easily be met by the slave masters (handled by the state) but for other
classes it was impossible unless particular people joined forces. Hence, the
social security matters concerned the last group consisting of civilians,
military veterans which formed burial clubs so as to meet the standards of
the gods.
 Object of the Clubs; the major object of the club was honorable burial
of the dead members from the group.
 Coverage (Membership): it was drawn from all strata or grade but each
society was composed of members occupying more or less the same
social position. But sometimes there would be the mixture of
membership of slaves and free men.
 Governance: the clubs had the general assembly, chairman, treasurer
and the secretary depending on the laid down rules in the
constitutions. The chairman and the secretary carried out the day to
day activities.
 Source of funds: the major sources of the fund were contributions from
members, interest from loaned out funds and donations.
 Benefit structure and benefit level: The benefit given was purely burial
expenses calculated on actual basis (actual expenses incurred), but

182
 later there was a stipulated sum of money as burial expenses (flat-
rated).

(b) Feudal Mode of Production:

The society was divided into four estates, namely; class of nobility and clergy
(first estate), class of landlords and military officials (second estate), class of
merchants and lower officials (third estate) and the class of serfs, free
peasants, artisans, apprentices, labourers (fourth estate). The first and
second estates comprised of the wealthy people who owned major means of
production and whose social security matters were the state concern,
whereas the third and fourth estate comprised of the group of toilers who did
not have special protection by the state. With development of industries and
urbanization, social security practices changed; those who remained in
villages related on the basis of blood (informal social security) but for those
in the urban areas substantially changed to formal arrangements. Thus, the
mutual aid practices in urban areas were now improved.
 Objects: people organized themselves to create funds for the mutual
benefaction of the members with respect to two or three
contingencies, e.g., property destruction by fire or earth quake, funeral
expenses, financial loss or livestock loss. Thus, the objects of the
associations formed were increased.
 Coverage: the membership was limited to certain trade or occupation
such as potters, builders, financiers; as well as localities (cities, streets,
villages, and so forth). The entry into the group was voluntary since
the matters were not controlled by the state. Membership seized when
a member died, breached conditions in the constitution, free
resignation or migration from one area to another.
 Financial Basis of the Fund: the groups created funds on the basis of
flat rated equal contributions by each member, donations and interests
from loans and investments.

183
  Benefit structure: the benefits in a particular group were defined
including medical treatment expenses, funeral expenses, repair costs,
and so forth depending on the constitution.
 Benefit levels: these were flat rated or equal in amounts for each
member, i.e. equal contributions-equal benefit (principle of equality)
 Use of the Fund: Payment of claim benefits to members who suffered
loss; payment for stationery, postage and general meetings expenses,
and investment of money for interest.
 Governance: The general assembly met and made all policy decisions
and rules with their amendments. The chairman, secretary and
treasurer were appointed and formed the executive organ on part time
basis.

Strengths of the System

(i) There was a pre-determined benefit for the members in case of
contingencies
(ii) The entry and exit of membership was free (freedom of
association). Members knew one another and were in daily contact
and solidarity
(iii) Mutual benefaction of all the members (equality of all-no alienation
of the members
(iv) The fund was owned by all the members through the General
Assembly

Challenges/Weaknesses
(i) Membership was limited to small numbers of people; hence the law
of large numbers could not be applied due to small funds available
which could not satisfy the demands.
(ii) Risks were not rated scientifically, hence contributions were based
on unscientific rate which tended to yield funds that proved to be
inadequate during certain years or sessions, which necessitated
donations or additional contributions

184
 (iii) Members in high risk brackets were either a problem to the other or
the funds failed to satisfy their peculiar circumstances.

8.2.1.3 Genesis and Development of Modern Social Security

(Capitalistic Mode of Production)
Modern social security is the product of the industrial revolution and
monopoly capitalism with its challenges. The system accommodated the
mutual aid practices and associations in the feudal era. The rise of employers
and employees on one side, and occurrences of events which affected the
production such as redundancy necessitated the need to seek for the way to
handle such risks so as to ensure descent life on the part of the employee
and those unemployed. Furthermore, the prevalence of poverty in the
society required the state intervention so as to ensure that peoples’
demands were met. The state adopted stricter rules of forcing people to
produce particularly the young ones, and provided minimum assistance to
the old people who were put in special residential houses.

The British Government enacted the English National Insurance Act 1911,
which was preceded by the Commission report chaired by Lord Beveridge of
1909-1911. The Committee had recommended a package of minimum
income for every citizen of England provided by the state to ensure descent
life. The Act was produced after a debate that differed from the Beveridge
approach by opting to social security based on insurance approach which
covered the employed class. However, the Act adopted some aspects of the
Beveridge aspects by incorporating “social assistance for the poor,
unemployed and disadvantaged groups”. On the other hand, the Act
benefitted from Bismarckian approach introduced in 1884 through Sickness
Insurance Scheme and Pension Scheme for all workers (seventy years old) in
trade, agriculture and industry. From 1900 onwards many European
countries adopted the two ideas in designing social security schemes for the
people, both employed and unemployed ones.

185
8.2.1.4 Introduction of Social Security in East Africa (Tanzania)
Social security in Tanzania can be traced from the coming of colonialists first
by the Germans (1885-1918) and then by the British (1918-1961), whereby
Africans were forced to work in plantations and pay tax. During this period
some social security measures were introduced, such as pension schemes,
compensation payments to workers injured while performing their duties, the
distribution of food to the rural population during years of poor harvest and
the provision of health services and education for serving colonial
government officials381. Generally, the approaches used in the colonial
masters’ land were extended to the colonies, e.g., the French extended the
concept of family assistance supported by the French’s budget to the
colonies (influenced by the assimilation policy). The British adopted the
scheme based on social assistance that only covered those employed in the
formal sectors particularly public works such as Transport and
Communication, Posts Communication, Public institutions and the colonial
military. Pension’s schemes were established and operated as in Britain in
the sense that they were non contributory but payable on long service and
upon satisfaction to the crown that the worker was diligent and honest. This
means that social security was not a matter of right but privilege.

The natives were being paid low wages and not employed in permanent
sector, so it was unable to establish pension schemes for their security
benefits. Gratuity schemes (Provident Fund Schemes) were put in place
payable as a result of good service and long fulfillment of contract of
employment. Some of the laws providing for social security benefits during
the colonial rule include: Provident Fund (Government Employees) Ordinance
of 1942; the Master and Native Servants’ Ordinance of 1923 which had some
provisions on workers’ compensation; the Provident Fund (Local Authorities)
Ordinance of 1944; and the Workers’ Compensation Ordinance; Motor
Vehicle Insurance Ordinance of 1949.
381
Mchomvu, A.S.T et al: “Social security systems in Tanzania”, Journal of Social Development in Africa, Volume 17
No.2 of July 2002, at p.23

186
From independence in 1961 up to the late 1980s, the post-colonial state
pursued policies that led to political, economic and social changes in the
country; more importantly, the settlement of people into the Ujamaa Villages
as a result of adoption of the Arusha Declaration, which led to the
development of agriculture and industry, expansion of education and public
health services (both in urban and rural areas); provision of family
allowances and tax relief from 1980 for employed couples; continuation of
payment of salaries at times of illness , and paid maternity leave. 382
Thereafter, Tanzania adopted what was called “structural adjustment
policies” and globalization, which led to the loss of members from the social
security schemes such as the Parastatal Pension Fund and the National
Social Security Fund because of retrenchment. This consequently affected
the stability of the schemes as many people were paid benefits prematurely.
On the other hand, structural adjustments led to devaluation of the
Tanzanian Shilling and thereby causing serious erosion of the financial assets
and solvency of social security schemes. 383 All the above problems have
affected the stability of the formal social security in Tanzania.

8.3 Social Security Schemes for Workers’ Labour Welfare in

Tanzania
According to Bossert (1987), formal social security systems in Tanzania are
organized according to three major principles: social insurance, public
support and social assistance. These principles are supplemented by other
principles including the principle of obliging the employer to grant security
and the principle of compulsory saving. 384 While the social insurance principle
applies to contributory pension schemes, the public support principle applies
to public health services and non-contributory pension schemes. On the
other hand, the principle of compulsory saving is the basis of provident funds
whereby members receive the legally prescribed payments from the

382
Ibid. at pp.23-24
383
Ibid. at p.24
384
Mchomvu, A.S.T, et al: Social Security in Tanzania” (supra), at p. 22

187
accumulated account of the member.385 Tanzania has a total of six social
security funds, but the coverage in terms of members is relatively low
comparing to the total population. The 2012 National Population and Housing
Census puts the number of Tanzanians at 44.9 million, while all six schemes
in both the Mainland and Zanzibar have a combined membership of not
much more than one million comprised of employees in the formal sector
(98%) and informal sectors (2%). Thus, social security industry is less
developed in terms of ensuring coverage of all citizens in the country who
are mostly found in the informal sectors.

8.3.1 National Social Security Fund (NSSF)

The National Social Security Fund (NSSF) is a semi-government agency
responsible for the collection, safekeeping, responsible investment and
distribution of retirement funds from employees of the private sector in
Tanzania, and that are not covered by the Government Retirement Scheme.
It was established by an Act of Parliament in 1997 to provide for its
membership, payment of contributions to, and payment of benefits out of
the Fund. It restricts its membership to all persons who are self-employed,
employees in private sectors other than those in a body which is a parastatal
organization under Parastatal Pensions Fund Act 1978 386, and any person
who becomes the member through the order issued by the minister. 387

8.3.1.1 Objectives of NSSF

The objectives range from primary to secondary objectives. Since NSSF is
the Pension scheme, its primary objective is to provide old age benefit in
terms of pension payable upon attainment of the retirement age. 388 The
scheme provides for other forms of benefits to members whose
employments come to an end before retirement age such as invalidity
pension attained.389 However, the scheme provides for secondary benefits
385
Ibid. at p.22
386
S.6(2) of NSSF Act 1997
387
S.6(5) ibid
388
See s.21(a) of Act No.28 of 1997
389
S.26 of the Act

188
like sickness, maternity benefits, funeral grants, employment injury benefits
and health insurance benefits.390

8.3.1.2 Benefit structure

The scheme offers a range of benefits, namely: retirement pension, invalidity
pension, survivor’s pension, funeral grants, maternity benefits, employment
injury benefit; and health insurance benefit.

(a) Retirement Pension:

This is payable to an insured person who has attained pensionable age and
in respect of whom not less than 180 monthly contributions have been paid.
The monthly retirement pension amount to 30 per cent of the average
monthly earnings of the retired insured person supplemented by 1.5 per cent
of his average monthly earnings for every twelve months of pension
insurance additional to the 180 months specified in section 23 to a maximum
of 67.5 per cent of the average earnings. The average earnings are
calculated over the best five years in the last ten years prior to pensionable
age. The minimum monthly pension is 80 per centum of the minimum wage.
As such the retirement pension payment commences from the month in
which the retired employee satisfies the conditions under section 23 and end
with the month in which the pensioner dies.

However, for a member who has attained pensionable age and has retired
from employment but does not meet the qualification prescribed in
paragraph (b) of section 23 shall be entitled only to the payment of a special
lump sum. On the other hand, an insured person, who is within five years of
the pensionable age and has paid contributions for at least 180 months, may
claim early retirement pension. The amount of the retirement pension paid
on early retirement under subsection (1) shall be the amount that would be
paid under subsection (1) of section 24 reduced by 0.5 per centum of the
monthly average earnings. An early retirement pension shall not be payable

390
See s.21 of the Act

189
if the amount of the pension calculated in accordance with subsection (2)
would be lower than the minimum pension under subsection (3) of section
24.391

(b) An invalidity pension

This is payable to an insured person who has suffered permanent invalidity,
is under pensionable age and he has either made 180 contributions or at
least 36 monthly contributions have been paid in respect of him of which
twelve or more were paid in the period of 36 months immediately preceding
the date of commencement of invalidity. By permanent invalidity means the
permanent loss of two thirds or more of the earning capacity because of
physical or mental invalidity.392

The monthly rate of invalidity pension is 30 per cent of the average monthly
earnings of the insured person supplemented by 1 per cent of his average
monthly earnings for every twelve months of pension contributions in
addition to 180 monthly contributions. 393The minimum monthly invalidity
pension is 80 per centum of the national minimum wage. It is payable for
the duration of a permanent invalidity commencing with the month following
the date of the invalidity and ending either on pensionable age, if at that
time the insured person is entitled to retirement pension at the same or a
higher rate or on death of the invalid. 394 Where an insured person is suffering
from invalidity but does not satisfy the qualifying conditions specified under
section 28, he shall be entitled to a special lump-sum payment.

A claim to invalidity pension shall be referred to a medical board to be

appointed by the Minister to determine in the prescribed manner, whether
the claimant is suffering from permanent invalidity. The Director General
may at any time after the award of an invalidity pension, refer a beneficiary

391
See s.23 of the Act
392
S.28 of Act of 1997
393
S.29(1) ibid
394
S.30 ibid

190
in 'receipt of an invalidity pension to a medical board to determine the
medical state of the permanent invalidity. A beneficiary ceases to receive his
invalidity pension if he fails to comply with directions of the Director General
requiring him to be medically examined by a medical board and to supply all
necessary documents or information as may be necessary for the purposes
of determining his continued entitlement.

(c) Survivors’ Pensions

Where an insured person dies a survivors pension is payable to his next of
kin if at the time of the death, the insured person would have been entitled
to an invalidity pension if deemed to have been suffering from permanent
invalidity at the time of death; or one had attained pensionable age and
would have been entitled to retirement pension had he made a claim to such
pension.395 His heirs will be paid a lump sum equal to the insured person's
monthly pension times twelve.

The amount payable depends on whether the deceased was married. In the
case of a widow or a widower, 40% of the pension, and where there is more
than one widow the amount is always divided equally among the widows. In
the case of a widow or a widower and where there are no dependent
children, the widow or widower is given the 100% of the pension; where a
child under eighteen years or under twenty one year’s old receiving full time
education as the case may be, shall be paid 60% of the pension to be divided
equally among such children. But, where there is no widow or widower 100%
of the pension is divided equally to dependent children; in the case where
there are no dependant children or dependant spouse, parents of the
deceased is paid 100% of the pension for life.

Survivors pension is payable in the following range: in the case of a widow

or widower who, at the date of death of the deceased insured person is of
the age of 45 or above or who is under the age of 45 and has the care of

395
S.33 ibid

191
dependant children under the age of 15, for life or until re-marriage; in the
case of a widow or widower at the date of death of the deceased insured
person is under the age of 45 and does not have the care of children under
the age of 15, for a period of two years from the date of death of the insured
person. Where a survivor is a child, he or she shall benefit from the pensions
until the age of eighteen; or until the child terminates full time education but
not later than the age of twenty one; or if the child is an invalid, for life. 396

However, where a deceased insured person did not satisfy the qualifying
conditions specified under section 33, his dependants shall be entitled to a
special lump sum payment.

(d) Funeral Grants

A funeral grant is paid as reimbursement to a family member who incurred
expenses for the burial of a deceased insured person. The amount payable
as funeral grant is determined by the Board from time to time having regard
to the general economic conditions.397

(e) Employment injury benefits

The employment injury includes commuting accidents, accidents sustained
during working hours; at the work place; or at a place where one would not
have been except for his employment. 398 Here, medical benefits based on
health insurance are provided by accredited hospitals having such
agreements with the Fund.399Such benefits include preventive and curative
care, essential drugs, simple pathology and X 'rays, laboratory tests,
hospitalization where needed and minor surgery.

(f) Maternity Benefits

396
S.35 of the Act
397
S.38 of the Act
398
S.39 of Act No 28 of 1997
399
S.42 ibid

192
The scheme issues maternity benefits to an insured person who should have
made at least thirty six monthly contributions, of which twelve contributions
are made in the thirty six months prior to date of confinement; and there
should be the receipt by the Director General of a medical certificate from an
accredited medical provider, certifying that the woman expects delivery of a
child. Maternity benefits are payable after three years from the day when the
last payment was made to the insured person unless the child dies within a
period of twelve months.400The following types of benefits are payable under
the maternity benefit, namely:
 cash benefit at the rate of 100% of the average daily earnings for a
period of twelve weeks
 Medical care during pre-natal and post-natal period by an accredited
medical practitioner or midwife; provided that where prolonged
medical care is required after delivery, the post natal medical care
shall be limited to twelve weeks.401

8.3.2 The Parastatal Pension Fund (PPF)

(a) Objective and coverage of the scheme
It was established by the Parastatal Pension Fund Act No. 14 of 1978 as
amended by Parastatal Pension Act of 2002, with the objective of providing
pensions and other related benefits to all employees in the parastatal and
the private sectors of the economy. The primaryobjective of the Fund is to
provide pension to all employees in the parastatals and private sectors of the
economy.402 The secondary objective is to provide other benefits like
survivors benefit, sickness or disability benefits, death benefit, education
benefits, gratuity benefits and withdrawal benefits.

The scheme provides social security coverage to all employees in the private
companies, parastatal organizations and public institutions. 403 However, its

400
S.44 ibid
401
S.45 ibid
402
Section 3 of Parastatal Pension Act
403
Section 2 of the Act

193
coverage has been extended to self-employed as well as labour force in the
informal sector.404 Initially the employees of parastatal organization in those
of private companies were registered, but with the consent of the Minister of
finance; however in the current Act the legal provision requiring the
Minister’s consent was removed and thus widen up coverage to all
employees including those in contract.

The Act allows all employees who are confirmed in pensionable office in the
service with effect from the date of commencement of the scheme or from
the date of employment whichever last date to become members of the
scheme,405 provided that no employee who has attained the age of forty
years as the date of first employment by a parastatal organization shall be
eligible to become a member of the scheme.406 This means that where a
person has attained the age of 40 years, he or she cannot be a member to
the scheme. It is to be noted that no member shall be permitted to continue
in the service on pensionable terms after he attains the age of sixty years. 407

(b) Benefit Structure

The Fund offers a number of benefits to its members, namely: old age
benefits, sickness and disability benefits, death benefits, survivors’ benefits,
education benefits, gratuity benefits and withdrawal benefits. It specifically
states that members will be entitled to pension and other related benefits
subject to conditions prescribed by the law. 408

This may be in the form of pension or gratuity which shall be awarded to

members only on their retirement from service in one of the following
circumstances;409
(i) On or after the age of fifty five years (voluntary retirement age)

404
Ibid
405
Section 5, ibid
406
Section 5(1)a of the Act
407
Section 24(2) ibid
408
Section 25(1) ibid
409
Section 26 ibid

194
 (ii) On medical evidence to the satisfaction of the employer that he is
incapable by reason of any infirmity of mind or body of discharging the
duties of his office and that such infirmity is likely to be permanent
(invalidity pension)
(iii) On compulsory retirement for the purpose of facilitating
improvement in the organization of his employer, by which greater
efficiency or economy may be effected or compulsory retirement
following the winding up of the organization of his employer
(iv)In the case of transfer to the public service, in the circumstances in
which he is permitted by law or regulation of such service to retire on
pension or gratuity.
(v) In case of removal from the service in the public interest as provided in
the Act
(vi)On retirement from the service with the consent of or on the directions
of the President where the President, by writing under his hand,
declares the paragraph shall apply to him.

Moreover, no pension shall be payable to a member unless he has attained

the age of fifty five years and has retired from service; or to a member who
has retired from service and is on receipt of monthly pension until he has
attained the age of fifty five. 410
This ensures that a member get payment of
the old age benefit in the form of pension and not gratuity.

The Act provides that a member who shall have had no less than an
aggregate of ten years qualifying services may, on retirement, be granted:
(i) Reduced annual pension of an amount equal to three fourths of the
specified amount
(ii) A commuted pension gratuity equal to twelve and one- half times the
one fourth of the specified amount, unless the said member exercises
an option in writing to be paid in lieu of such reduced pension and
commuted pension gratuity the specified amount,
410
Section 9 o f the Act (as amended in 2002)

195
 (iii) A pension gratuity equal to twelve and one half times the
specified amount where the reduced annual pension does not exceed
shillings eighteen thousand.

8.3.3 The Local Authorities Pension Fund (LAPF)

(a) Establishment and coverage
This scheme was established by the Local Authorities Pension Fund Act No 9
of 2006 which repealed the Local Authorities Provident Fund Act No 6 of
2000. It covers all employees of the Local Government Authorities, Local
Government Loans Board, Local Authorities Pensions Fund, Institutions
owned by Local Government Authorities and any institution (private or
public) which decides to join the Fund. This Fund was established in order to
provide a scheme for payment of benefits to insured persons, work towards a
gradual and continuous improvement of benefits payable to insured persons
under this Act; and formulate policies and strategies and administer the
scheme in accordance with this Act.411

(b) Object of the Scheme

The primary object of the Local Authorities Pension Fund is to provide
retirement pension as provided for under section 26(1) of the Act. The
secondary objects of the scheme include: survivors’ benefits, invalidity
pension, withdrawal in respect of marriage, withdrawal in respect of
emigration or unemployment, maternity benefits, sickness benefit, funeral
grant and education grant.

(c) Benefit Structure of the Scheme

(i) Retirement Benefit
This is payable to an insured person who attains the retirement age of
sixty (60) years (compulsory retirement age). However, one may be paid
such benefits if he opts for a voluntary retirement which is fifty five (55)
years. An employee who attains fifty five years of age may at any time

411
S.5 of the Local Authorities Pension Funds Act of 2006

196
 opt to retire or continue up to sixty years 412. For the purposes of
computing the amount of pension or gratuity of an insured person under
this Act, the highest pensionable emoluments enjoyed by the insured
person within the twelve months preceding his retirement from
employment shall be used for calculating his pension.

(ii) Death Gratuity

This is paid when an insured person dies while in the service whereby the
Director General shall grant the dependants a gratuity of an amount not
exceeding either his annual pensionable emoluments, or his commuted
pension gratuity. This is payable to his or her survivors (a widow or a
widower, parents or children). If an insured person who retired from
employment dies before receiving by way of pension or reduced pension any
gratuity, the Director General shall grant to the legal personal representative
of that insured person a gratuity of an amount not exceeding the difference
between the amounts which has already been paid.

(iii) Invalidity Benefit

This is a type of benefit paid to an insured person who is physically or
mentally disabled leading to permanent incapacity. This happens when
disability of an insured make it impossible for him to proceed with the work.
In that situation, an insured person is entitled to invalidity benefit as
provided under section 30 of the Act.

(iv) Withdrawal in respect of marriage

This is payable to a woman or a female insured person who decides to
withdraw from the scheme due to marriage; and to a man who seeks no
further employment due to his wife giving birth as per section 31 of the Act.

(v) Withdrawal in respect of emigration or unemployment

412
Section 34(2) of the Local Authorities Pension Fund Act of 2006

197
This is payable to an insured person who withdraws because he is emigrating
or has emigrated from and has no present intention of returning to the
United Republic. Also, an insured person who has not been employed by a
contributing employer and does not intend to be an employee for at least six
months immediately preceding or six months after lodging an application as
per s.32 of the Act.

8.3.4 Public Service Pension Fund (PSPF)

(a) Establishment and coverage
The Public Service Pension Fund was established under the Public Service
Retirement Benefits Act of 1999 to provide for payment of pensions,
gratuities and other benefits in respect of the service of officers in the
government. It covers employees of the Central Government and its
Executive Agencies, whose terms of employment are permanent and
pensionable.413 However, with the enactment of the Social Security
Regulatory Act, 2008 and its amendment of 2012 which amended section 5
of the Public Service Retirement Benefits Act, coverage has been extended
to persons in the formal and informal sectors. This means that there are two
types of members: compulsory members who are employees of the central
government, and voluntary members who out of their own volition have
opted to join the Fund.

(b) Amount of contributions

Employers are required to pay monthly contribution at the rate of fifteen
percent (15%) of the member’s salary.414 Likewise members are required to
contribute five percent (5%) of their salary monthly to be deducted by the

413
Ibid, section 5
414
Ibid, section 40

198
employer.415 Contribution of a member of the fund is not assignable,
transferable or liable to be attached, or levied upon for or in respect to any
debt or claim against a member. 416If the Fund is at any time unable to pay
any sum which the Fund is required to pay, the sum required to be paid will
be charged on and advanced to the Fund from the Consolidated Fund and
the Fund shall as soon as practicable repay to the Government the sum so
advanced.417

(c) Objectives of the scheme

The primary objective of the scheme is to provide pension and gratuity to the
retired public servants due to old age or because of any other reason. Other
secondary benefits are those relating to sickness, death of the provider,
employment injury and maternity. Furthermore, the Fund offers low interest
loans to its members who are nearing retirement age for construction of
houses so that when they retire they have a place to live.

(d)Benefit Structure
(i) Old age benefits
These benefits provide for a replacement of income to persons who have
permanently lost income because of old age. The conditions for qualifying for
these benefits include; one should be employed on permanent and
pensionable terms (this is no longer a condition precedent as the Fund
covers members who are self-employed), should have contributed to the
fund minimum of 180 months or 15 years to qualify for payment of both
pension and gratuity (if he/she contributed less than 180 months will get
only gratuity) and must have attained 55 or 60 years of age (voluntary or
compulsory retirement respectively).418

415
Ibid, section 41
416
Ibid, section 42
417
Ibid, section 46
418
section 17 of the PSPF Act

199
The amount each member gets is based on several factors which include the
highest salary enjoyed by him within the twelve months preceding his
retirement;419 the number of years an employee has worked (e.g., an
employee who worked for an aggregate period of less than 15 years will only
receive gratuity, whereas if one worked for 15 years or more will receive in
addition to gratuity, an annual pension). The formula for calculating the
benefits are provided herein below:
Determinant factor: Specified amount = 1/540 × complete number
of months × last annual salary)
(i) Gratuity = (specified amount × ½) × 15.5(This is payable only once)
(ii) Monthly Pension = (specified amount × ½) × 1/12 (This is payable
monthly until death of an employee)
(iii) For an employee who worked less than 180 month is paid a
gratuity=(specified amount × 5) (This is payable once)

(ii) Death Gratuity

This is payable to a legal personal representative of a member who dies
while in the service, a gratuity shall not exceed either his annual pensionable
emoluments or his commuted pension gratuity, if any, whichever is the
greater as per s.10 of the Act.

(iii) Invalidity Benefits

Invalidity benefits comprises of payments made to a member as a result of
loss of earning due to inability to work. The assessment of invalidity is
undertaken by an established medical board. The conditions for qualification
to get invalidity benefits include one being a member of the fund and should
have contributed to the fund the minimum of 180 months or 15 years to
qualify for both pension and gratuity ( if a member contributed for less than
180 months he/ she will only qualify for gratuity). The benefiting member

419
section 19 ibid

200
must have been permanently invalid and incapable of any normal gainful
employment, that is, the disability can be either physical or mental. 420

(iv) Survivor’s Benefits

These benefits are payable to the dependants of the deceased member.
Dependants include spouse, children and parents. These benefits are
payable without prejudice to relevant laws of inheritance and the payment
period is limited to 36 months (3 years) after the death of the member. This
benefit is in the form of maintenance which also includes a child education
suited to the child’s station421.Parents of the deceased member can be
granted pension if they were wholly or mainly dependent on the deceased
for the support and without adequate means of support and if the deceased
member did not leave a widow or widower, or if no pension is granted to his
widow or widower.422 Children will also be granted pension until they attain
the age of 21 if they were wholly or mainly dependent on the deceased
member at the time of his death.423

(v) Withdrawal Benefits

The withdrawal benefits are paid to a member who withdraws from the fund
because of marriage whereby a female member proves to the director
General that in consequence of her marriage she has given up employment
permanently and does not intend to seek further gainful employment in the
public service; or where a member gives birth and in consequence thereof
decides to give up employment permanently, or by a father who decides to
give up employment in consequence of his wife giving birth. 424 Furthermore,
withdrawal benefit can also be paid to a member who emigrates or has
emigrated from and has no intention of returning to the United Republic of
Tanzania.425
420
Section 13 ibid
421
Section 11 ibid
422
section 10(2) ibid
423
section 10(3) ibid
424
Section 14 ibid
425
section 15 ibid

201
 (vi) Sickness Benefits
This is payable to a member who falls sick in circumstances which renders
him incapable of continuing to discharge his duties and that incapacity to
work continues for a period of more than six months. 426 However, the
payment of any sickness benefit shall not exceed the amount represented by
the employee’s contributions and his payment to the scheme

(vii) Funeral Benefits

This is payable to a member where and when his dependant dies; it is also
payable to the dependants in the event a member dies.

(vi) Medical benefits

The civil servants under the PSPF are offered medical benefits under the
National Health Insurance Fund (NHIF) which was established through the
National Health Insurance Fund Act of 1999. 427 The coverage of the National
Health Insurance Scheme includes all civil servants, their spouses and their
children or dependants (not exceeding four in number). 428 If both spouses are
civil servants, the Board of Directors of the Fund may set criteria for the
enrolment of more than four children or dependants as beneficiaries. 429
According to the Act,430 the Fund enrolls beneficiaries under the Act by
identifying them and issuing them the appropriate documents specifying the
entitlement to the benefit.

However, the Fund covers all civil servants except those employed in the
local government, defence, police, prisons and those covered by the National
Social Security Fund (NSSF).431 The fund covers medical costs only at certain
accredited health care providers and the authority to grant accreditation to a
health care provider belongs to the Board of Directors of the Fund. 432 Once
426
section 12 ibid
427
Section 4 of the National Health Insurance Fund Act, 1999
428
Section 11 ibid
429
Section 11(2) ibid
430
Section 14 ibid
431
Section 2 ibid
432
Section 19 ibid

202
the facility is accredited, it is categorized into different levels of accredited
health facilities regardless of whether it is a private or public facility
according to the Act433. Although the Scheme was created to cover medical
expenses, not all health care services are covered by the Scheme. The
National Health Insurance Fund Act (NHIF) gives a list of the health care
services not offered by the scheme, including:
(i) Health care services and drugs not prescribed in an accredited
health care facility;
(ii) Public health care services
(iii) Illness or injury arising from attempted suicide or self-
destruction while the person is insane or of unsound mind;
(iv)The purchase of eye-lenses, wheel chairs and prosthetics;
(v) Illegal abortions;
(vi)Alcohol or drug abuse and any other illness arising from such
abuse;
(vii) Employment injuries or illness arising from occupational
hazards or accidents which are compensated under other
schemes;
(viii) Circumcision and cosmetic surgery.434

The personal health services benefits that a beneficiary of NHIF is entitled to

include: the inpatients hospital care fee which consists of a fixed sum that is
determined by the Board of Directors; and the outpatient care which consists
of drugs and medicine in generic prescription (in accordance with the
Essential Drug List).435 The amount of benefits that an employee is entitled to
depend on the salary that particular employee receives. The standard rate of
contribution is provided for under s.9 which states that the employee must
make a monthly contribution of three percent of his salary and that the
employer will also contribute three percent. A member will be entitled to the

433
section 22 ibid
434
section 17 ibid
435
section 16 ibid

203
benefit package under the Fund after the payment of three months’
contribution according to the Act.436 Likewise, a retiree who was a beneficiary
of the Fund, is entitled to the benefit package for a period of three months
after the retirement, after which the benefit package and membership
ceases.437

Furthermore, medical benefits depend on the contribution by the member:

those employees who get large salaries are issued with green identity cards
and they are given premium access to a wide variety of healthcare providers
and drugs unlike employees with lower salaries who are issued with brown
identity cards and are also entitled to healthcare but not with as much
variety as their better paid counterparts.438

(e) Service not Qualifying for Pension

The law provides for members who do not qualify for pension or gratuity.
These include those who are in probation unless they are confirmed
immediately thereafter439; those who are absent from duty due to being on
leave without pay unless it is proved that such leave was granted on grounds
of public interest and that the employer pays to the Fund both the
employee’s and employer’s contribution for the period the employee was
absent;440 and those who are under 18 years of age.441

8.3.5 Government Employees Provident Fund (GEPF)

(a) Establishment and coverage
This is a defined contributory scheme (DCS) which was established by the
Government Employees Provident Fund Act of 1942 442 to cover government
436
section 12(1) and (2) ibid
437
section 12(3) ibid
438
section 15 ibid
439
section 18(a) ibid
440
section 18(b) ibid
441
section 18(c) ibid
442
Cap 51 of 1942 (RE 2002)

204
employees who are not eligible for the pension or not members of the Public
Service Pension Fund (PSPF), including: employees working under contracts
or under operational services for the central government, independent
government departments, executive agencies and such other category of
employees categorized as non pensionable such as police and prison
officers, the military and government contract workers; 443 teachers who are
employed under the contract of service after retirement; members of
parliament, regional commissioners and district commissioners. 444 The fund
has extended its coverage to cover other self employed people such as
fishermen, farmers, food venders, and so forth, in what is referred to as
voluntary saving retirement scheme.

(b) Object of the scheme

The primary object of the scheme is to provide retirement benefits in the
form of gratuity to employees who attain sixty years (normal retirement age)
or early retirement under certain circumstances. Other secondary objects of
the scheme are to grant death gratuity, survivors’ benefits, and withdrawal
benefits. The sources of the Fund are contributions by the insured person at
the rate of 25 per cent of their monthly salary (shared between the employer
and employee, whereby the former pays 15%, and the latter pays 10%).
However, the Fund can be used for investment purposes as determined by
the Permanent Secretary of the Treasury in collaboration with the directorate
of planning and investments, and approved by the Management Technical
Committee.445

(c) Benefit structure

(i) Retirement benefit
Any insured person is entitled to a lump sum payment upon retirement age.
The benefits paid depends on whether a member has less than 10 years of
pensionable service or 10 or more years of pensionable service. Members
443
Section 4 of the GEPF Act
444
Section 38 (3A) (2) of the Amended GEPF Act
445
Section 3(6) (7) and (8) of the GEPF Act

205
with less than 10 years of service receive a gratuity (paid only once) that is
equal to their actuarial interest in the Fund; whereas, members with 10 or
more years of service receive a gratuity and a monthly pension. For those
who retire early, their benefits are calculated in the same way, save that
there is a reduction of 0.33% for each month between dates of early
retirement and normal retirement. In any case, the amount payable to an
insured depends on the member’s accumulated contributions, and accrued
interest to the Fund which must be credited separately on bonuses at a fixed
rate annually as determined by the President.446

(ii) Invalidity benefits

These are payable when members retire for medical reasons or as a result of
injury sustained in the course of employment, or when their posts are
abolished through organizational restructuring. Members do receive both
annuities and gratuities.

(iii) Survivors’ benefits

This is given where the insured person dies before receiving his or her
benefits; usually given to the family members of the deceased. S.21 of the
Act allows the depositor to choose the manner in which survivor’s benefits
can be paid to a maximum of one thousand shillings. This in practice
depends on the written will or otherwise the benefits will be distributed
according to succession laws of the land.

(iv) Withdrawal benefits

Section 13 of the Act allows members to withdraw deposits with approval of
the board or permission of the chairman of the board for either of the
following reasons:
 To pay for the passage of the depositor or any member of his family;
brother or sister coming from abroad or leaving mainland Tanzania for

446
Section 8 of the GEPF Act

206
 medical reasons or other good cause; provided such person is wholly
or mainly dependent upon the depositor
 To pay the funeral expenses of any member of the depositor’s family
 To pay hospital or other expenses incurred through the illness of the
depositor or any member of his family.
 To withdraw money as the loan from the fund subject to interest
requirements

8.4 ADEQUACY OF SOCIAL SECURITY BENEFITS IN TANZANIA

The scope of benefits awarded under the social security schemes in Tanzania
somewhat conform to the ILO standards; however, unemployment benefits
and family responsibility allowance are excluded. Adequacy of the benefits
is determined by reference to the standard of living which the social security
scheme promised to guarantee when a member was capable of working and
contributing to the scheme.447 Generally, there are two factors determining
adequacy of the benefits, namely: economic, philosophical or ideological
approach to the systems, their functions and aims; and differences in
attitudes, traditions and financial practices. 448 Each scheme in Tanzania is
developed on a separate ideology ranging from individual savings to
collective responsibility.449 The GEPF is based on individual savings while
other schemes such as PPF, PSPF, and NSSF are based on collective
responsibility, in the sense that there is application of the principle of
solidarity which requires people of the same group (insured persons) to
share responsibilities in case of contingency facing any member. The

447
Scheinin, M., ‘The Right to Social Security,’ in Eide, A., et al,(eds) 2001, op.cit, at p.212
448
ILO, Introduction to Social Security, 1989, op.cit at pp.24-25
449
The ILO provides that ‘the difference in benefits levels between one country and another, or between one
scheme and another lies in the economic, philosophical or ideological approach to the systems, their functions and
aims. It is to be expected that, where the approach is to encourage personal rather than collective responsibility,
the system will emphasize voluntary supplementation of basic protection. In such cases, the basic social security
system will be geared to providing a minimum level of benefit, though in some instances there is a mandatory
association with a second tier system providing earnings-related cover, up to certain limit. Other countries have
taken the view that social protection should be all-embracing and leave little or no room, or necessity, for
augmentation by savings, private insurance or supplementary schemes (taken from: ILO, Introduction to Social
Security, 1989, op.cit at p.25)

207
solidarity principle in Tanzania operates on the principle that ‘the higher the
contribution, the higher the benefits’, which affects the earning capacity of
the insured person.

However, the schemes minimize such a phenomenon through redistribution

of income done by existence of minimum and maximum levels for long term
benefits (particularly, pension). For example, under PPF the maximum
retirement pension is 2/3 (66.6 per cent) of the highest pensionable
emoluments drawn by a beneficiary at any time in the course of his service
(this means the income of the highest wage earners is redistributed to the
lowest wage earners). This does somehow ensure that members get better
benefits, although not to the level of ensuring descent life to the member,
which is usually done through provision of the minimum wage determined in
accordance with the cost of living in the country.

The Provident Funds (such as GEPF) does not apply the solidarity principle
since it acts as a ‘saving bank”; the member gets only lump sum payment
depending on the amount of contribution to the Fund (save for few who
qualify for pension). This means that the one with lowest wage will have
fewer amount of benefits compared to the one with highest wage. This
adversely affects the stability of the member who retires for any
circumstance sanctioned by the law. The same case faces members who
survive the pension (i.e., survivors’ benefits) whereby they are specified
amount (lump sum). For example, under PPF survivor’s benefits is equal to
three fourths (3/4) of the specified amount.

Generally speaking, social security benefits paid to the insured persons (both
long term and short time benefits) are not adequate to ensure a descent life.
To most of workers, social security is a tool for exploitation of the working
class as the Funds do not seem to provide appropriate benefits; rather, their
money (Fund) is used for the government interest such as construction of
roads, universities, bridges, and so forth. There is an increasing trend of

208
workers pooling out of the schemes (withdrawing their money) on the
pretext that their employments have come to an end, so as to use the same
for their own projects. This has been caused by a number of factors, such
as:

(a) Fragmentation of social security schemes:

As observed previously, every scheme in Tanzania is administered
separately, and with its own rules and procedures. For example, NSSF falls
under the ministry responsible for labour matters; PPF, PSPF and GEPF fall
under the ministry of finance; LAPF is under the ministry responsible for local
government authorities; and NHIF is under the Ministry of Health. This
automatically affects the benefit levels in every scheme as each scheme
covers different members with different earning capacity, and the Fund is
invested differently according to the investment policy of each scheme. Each
scheme has a different contributory rate, different methods of collecting
contributions, and different kinds of levels of benefits, different qualifying
conditions for entitlement to benefits, different governing and adjudication
organs, and different ways of collecting contributions from members. These
together affect the end result of the scheme, be it pension or gratuity
payable to the insured person.

Furthermore, each scheme provides different benefits (although currently

there are strategies by the Social Security Regulatory Authority (SSRA) to
coordinate these schemes so as to provide similar (uniform) benefits to the
insured persons). For example, some workers in universities and other
institutions at one time demanded PPF to offer them better benefits (from
Tsh.20, 000/ per month as monthly pension) to a sum equivalent to that
given by NSSF (Tshs.80,000/ per month); otherwise, they would join other
schemes. This also led to the movement throughout the country as to
employees’ right of choice of the schemes i.e., employees should be allowed
to select a social security scheme convenient to them, as against the

209
practice where it is the employer who determines a scheme for the
employee.

(b) Insufficient benefits payable to the members

As indicated earlier on, provision of better benefits depends on the financial
capabilities of the country. The strongest and capitalistic countries are in a
position to pay better pensions to the retired persons; while retired
employees in the developing countries get lowest pensions. The position in
Tanzania is not different whereby schemes provide benefits which are
insufficient to meet the needs of the insured person, whose ability to earn
income are completely lost; to some schemes, pension paid to insured
person is below the statutory minimum wage (leave alone the inflationary
trends).

This problem can be addressed if the schemes use properly indexation to

protect benefits from inflation (i.e., the rate at which the general level of
prices for goods and services is rising, and subsequently the purchasing
power is falling). Where there is high inflation in the country, the value of
money decreases rapidly; and this affects the quantum of benefits received.
The inflation has the effect of deteriorating the living standards of insured
person; hence rising levels of poverty in the country. Under such
circumstances, indexation must be used to balance the benefits payable
taking into account two methods:

(i) indexation of price which entails that insured person should be given
benefits which reflect the real value of their contributions
(ii) Indexation of benefits which entails that pension payable to insured
persons should be adjusted to reflect the market prices.

(c) Poor coordination and portability of the schemes

The life of the employee is not static rather dynamic. One may be employed
by a public company or ministry at one time, and then move to another
employer in the private sector. Likewise, one may be employed to work
210
inside the country for a particular number of years, but later migrate to other
country within the East African Community (*take note of the stages of the
Union under the Treaty for Establishment of the East African Community
1999). In either case, an insured person may not qualify for the pension.
This requires that there should be provisions allowing transferability of
benefits from one scheme to other both within and without the country. This
is what is referred to as coordination of social security schemes.

Coordination entails the facilitation of freedom of movement of workers and

the portability of accrued social security rights, including capitalization of the
number of years of service of an employee. This helps to resolve a problem
of non-transferability of social security benefits, which involves the possible
loss of accrued rights in a particular scheme as a result of movement of a
member from one scheme to another. Most of the schemes in Tanzania
(PSPF, NSSF, and LAPF) do not provide for portability of benefits as a result of
shifting from one scheme to another as a result of re-employment. However,
s.31 of the PPF Act 1978 provides for the preservation of the contributory
period and contributions made thereto if member is transferred from a
parastatal organization under it, to the public service under the PSPF.

Similarly, s.18 of the Provident Fund (Government Employees) Ordinance of

1942 provides that where a member of GEPF is transferred to a pensionable
office (under PSPF), the contributory periods and the contribution may be
taken into account by PSPF. The same applies with PSPF if a member moves
from the public service to a parastatal organization. However, it is not
possible to move from NSSF to other schemes (PPF) unless one withdraws
the benefits and deposits the same in the other scheme. This does affect the
employee’s rights as one may not meet the conditions for pension after
service.

It is argued that portability of benefits is limited due to differences in the

rates of contributions, benefits offered and risks covered. For instance, under

211
GEPF the rate of contribution is 25% of the employee’s salary (10 per cent is
from employee and 15% is from the employer); under NSSF the contributory
rate is 20% (10 per cent from the employee, and 10% by the employer);
under the PSPF the rate is 20% (15% is from the employer while the
employee contributes 5 per cent). With this kind of fragmentation of
schemes, it is hard to properly coordinate the schemes as it attracts financial
implications on the receiving scheme (pooling more resources to
accommodate new members). To ensure that every employee’s accrued
benefits in one scheme is protected in case of movement to another scheme,
the following may be done:
(i) The government must see to it that more funds are invested in the
Funds so as to ensure that long term benefits: namely, old age
benefits, disability and death benefits, are stabilized by totalisation
of the contributory periods of the insured person. This goes hand in
hand with ensuring that insured person get paid at an appropriate
time.
(ii) The Social Security Regulatory Authority (SSRA) should see to it that
the schemes in Tanzania have uniform rules on: benefits structure
and qualifying conditions, benefits level, contributory rates and they
are administered under a single entity (but taking into account the
tripartite principle).
(iii) The SSRA should see to it that Funds are properly managed so as
to prevent abuse use of power by the directors, who end up
investing insured member’s money at their detriments ( as it is
being alleged today that Funds from NSSF and PSPF were used to
finance government projects to the extent that there is a threat of
financial risks to these schemes)
(iv) The Constitution of the United Republic of Tanzania should
entrench the right to social security under the enforceable parts so
as to make the government and other government institutions
responsible and accountable to the citizens. Under the current

212
 position members (insured persons) and the non-employed persons
cannot take action in court to ensure related rights such as health
services, education, unemployment, and so forth, which are social
security matters. This means that the government should make
sure that social security is a right to every person in the country
(regardless of employment status).
(v) The administering organs must develop an awareness raising
mechanism whereby members of the society may be educated on
several matters relating to social security. This would also
encourage participation of the people in the decision making
process.
(vi) The government must also seek to enter into international
agreements aiming at protecting benefits of citizens of Tanzania
who work in other countries members to the East African
Community. This is in accordance with the National Social Security
Policy, 2003 which provides that legal mechanisms shall be
developed to provide reciprocal agreements with other countries for
transfer of social security benefits across nations. 450

CHAPTER NINE
TRADE UNIONISM AND COLLECTIVE BARGAINING

450
Refer to item 3.7 of the National Social Security Policy (Tanzania) 2003, at p.17

213
9.1 Trade Unionism

9.1.1 Trade Unionism during Pre-Colonial Era

As discussed in chapter one, African countries depended on natural economy
as opposed to commodity production (basically the exchange was based on
surplus products or specialized crafts and mineral products) whereby labour
was communal, there was no free movement of labour (refer to the kingships
or ntemiships whereby forced labour was exerted). The labour conditions
before the coming of colonialism in Africa, Tanzania inclusive were not
favourable for the development of trade unions since there was no employer-
employee relationship.

9.1.2 Trade Unionism during Colonial Era

The commodity production was highly improved during colonial rule
following the scramble and petition for Africa in order to meet the
imperialistic demands (cheap labour, raw materials, areas of investment,
etc). Following harsh conditions in the place of work (low wages, forced
labour. taxation, oppression, extreme discrimination), there arose the need
for Tanganyikans to organize so as to demand their rights, and hence the
colonial government adopted different legal instruments so as to prevent
strikes by Africans. Such kind of legislations which had impact on the trade
unionism includes the following;

(a) Trade Union Ordinance of 1932:

This law came into force in order to control, regulate and supervise trade
unions. Under this law, it was mandatory for each trade union to be
registered, i.e registration of trade unions was compulsory. The failure to
register trade union was criminalized451
The registrar of trade unions was also empowered to inquire the annual
account, defer or refuse registration of any trade union and such decision

451
Refer to s.5 of the Trade Union Ordinance of 1932

214
was final.452 Despite these conditions, some trade unions were registered
such as: The Labour Trade Union of East Africa, Washermens and Housing
Boys Association, the Dar African Motor Drivers Union, the Union of Shop
Assistance, etc. These trade unions on several occasions went on strike for
equal pays (equal pay for work of equal value, equal pay for work of equal
working hours), fair treatment by colonial officers following oppression, harsh
treatment, discrimination, and so forth). As a result the colonial government
deregistered most of trade unions; however they were registered again in
1955. This was caused mostly by the external forces following the effects of
the Second World War; to mention:
(i) During the 2 half of the 1950 there grew up a strong and militant trade
union movement which was initiated from the top and with a petty
bourgeoisie leadership (the leadership was Christian, with six to ten years
of school education; 53% of leaders were appointed and only 41%
elected; 39% joined the trade union out of self interest, 22% joined when
they began working for a union, and only 30% indicated some altruistic
reason for joining). The role of TANU leaders in nationalistic struggles had
the impact of increasing a number of trade unions which by the end of
1956 the number had reached to 23. In October 1954, the colonial
government burned TANU’s activities, hence its leaders concentrated on
the formation of trade unions as a possible vehicle to advance their
nationalistic goals. As a result the trade unions formed were mass based,
undifferentiated in terms of skills and occupations. TANU lent its support
to the trade unions at various points during strikes, e.g.,in the DMT Strike
of March-April 1957 and the Brewery Strike of April-May 1958, TANU
helped in organizing and mobilizing the African population to boycott
public transport and beer drinking respectively. 453

(ii) The colonial government through the Labour Department adopted an

ideology that restricted trade unions from involving themselves directly in
452
Refer to Ss.7,8,13 and 17 , ibid
453
Shvji Issa (1986) Law, State and the Working Class in Tanzania; p.188

215
 political matters, nor were political persons supposed to meddle in union
affairs. This was caused by the emergence of cold war conflicts and
propaganda. So, the leaders turned into economic ideology. The Soviet
through a federation known as World Federation of Trade Union (WFTU)
and the Capitalist block dominated by America, had exclusive access to
the colonized countries and usually provided material and financial
support to the trade unions, and its leaders usually intervened in
negotiations and strikes. For example, the ICTFU (Capitalist Federation)
provided ideological support through training courses to its affiliates e.g.,
Kawawa attended a short course on unionism in England and Mpangala
attended the course to Mexico in 1956. The ideology was of a
conservative nature with a view that trade unions should not be linked
with anti-colonial struggles. The other body that exerted ideological
influence was the Fabian College in which allleading trade unionists
sought advice and literature as did Bhoke-Munanka and F.E Omedo. 454

Organizational Rights during the l95Os

An important organizational right involves the right of workers to strike.
Following the harsh conditions at work, Tanganyika population in different
sectors especially those working in plantations organized several strikes.
Before the establishment of TFL, strikes were small in number, essentially
spontaneous and sporadic, involving a few workers and lasting only a short
while. The Post TFL period strikes were of a distinct character, organized,
long lasting and involved large number of workers. The following part
indicates strikes that occurred or were noticed with impact to workers’
struggles.
(i)The l956 Strike
This strike was a result of the dismissal of three (3) waiters of the Kinondoni
Hotel allegedly to have been intoxicated while on duty. The remaining 45
workers immediately called a strike in protest against the dismissals. During

454
Ibid., pp.189-192

216
the negotiation between the employer and the Domestic & Hotel Workers’
Union it was demanded by the latter that the dismissed workers be
unconditionally reinstated, and if that was not done then a territory wide
strike could be conducted. On 6th December 1958 the strike started and one
day later the Commercial and Industrial Workers’ Union and the Eastern
Province Building and Construction Workers’ Union called out their members
on a two day sympathy strike, and later other trade unions joined. As a result
of this support, about 5000 workers were dismissed. On January 1957, TFL
passed a resolution to call a nation-wide general strike by giving 21 days
notice to the Labour Commissioner so as to have the 5000 workers
reinstated. But the colonial government (state) warned the TFL leaders not to
call a general strike contrary to Trade Union Ordinance 1956. The matter was
resolved by agreement, and hence the objective of TFL failed
consequently.455

(ii) The DMT Strike

Towards the end of March 1957, the Transport and Allied Workers’ Union
called a strike a strike against the Dar es Salaam Municipal Transport Co
[DMT} to press for an increase of 75% in wages. It was carried out through
boycotting buses, the workers held out for 24 days and at the end of which
the union won a wage rise of 12.5 per cent.456

(iii) The Beer Strike

In early 1958 the Commercial and Industrial Workers Union demanded from
East African Breweries a minimum wage of shs.150 per month for its
members. The employer refused to meet the Union, and hence a two day
strike on 10th March 1958. All 270 workers compelled the employer to
recognize the union and negotiate with it but such negotiations were not
successful and hence a strike on 16th April 1958. The Company evicted the
strikers from its houses and employed blackleg European, Asian and Somali
455
Ibid., at pp.196-199
456
Ibid, at p.199

217
labour. This united workers and inevitably stimulated a semi-political
response from the unions. On 24th April 1958, TFL issued a statement calling
upon all African residents of Dsm to boycott the drinking of European beer of
any kind. The statement said that this step had been taken because Asians
and Somalis were breaking the strike rules and had ignored the unions call to
cooperate. The blacklegs were being paid shs.26 per day with free food and
beer, while the company failed to pay Africans shs.5 per day without food
and beer. Nyerere, the president of TANU, supported the boycott which was
very successful in Dsm and eventually brought the reluctant employer to the
negotiation table. The eviction of the strikers from the company housing
infuriated the TFL, which called upon other citizens to assist in sheltering
them. As a result African landlords evicted Asians, Arabs and other non-
African tenants.457

A day after the strike Kawawa was charged with intimidation and fined
shs.101 which Nyerere did pay. About 800 people demonstrated in support
of TANU. The strike lasted some six weeks while the boycott was effective for
four weeks. The workers came out victoriously in the sense that there was
the increase of minimum wage which was fixed at shs. 130 per month;
drivers and clerks were paid shs.250 per month,whereas night watchmen
were paid shs.110 per month.TANU involvement in this strike was purely for
political reasons.458
(iv The Mazinde Strike: This strike was organized and involved workers in the
plantation sector between 1957 and 1958. The strike began on November
1958 and lasted for 68 days involving about 2500 workers. 459

(b) Defence (Trade Disputes) Regulation G.N No.279 of 1943

457
Ibid, at p. 199
458
Ibid, at p.200
459
Ibid, at p.200-201

218
This came to control collective actions by workers by empowering the
governor to establish a tribunal for settlement of trade disputes. This law
particularly prohibited strikes and lockouts; instead every dispute was to be
referred to the tribunal. Any contravention of any order under this regulation
was declared as an offence.

(c) Trade Disputes (Arbitration and Enquiry) Ordinance 1947

It aimed at establishing a method of dispute settlement over and above the
collective bargaining and voluntary measures. These two laws (b and c) were
made under the state of emergency following the impacts of the Second
World War. However, the workers continued to strike contrary to the laws,
and therefore another law was to be passed to limit certain kind of
employees from strike and lockouts.

(d) Trade Disputes (Arbitration and Settlement) Ordinance No.43 of

1950

This law exempted people in essential services from strikes; 460 instead
compulsory dispute resolution machinery was established. These essential
services included the following water, hospital, ports and dock services,
electricity, sanitary and transport services, public transportation,
telecommunication services. However, the list of essential services was not
exhaustive and therefore the governor was given power to declare any
services essential in the government gazette. This meant that any service in
which workers sought to strike would be included in the list of essential
services.

460
S.12 of the Trade Dispute (Arbitration and Settlement) Ordinance No.43 of 1950

219
(e) Regulation of Wages and Terms of Employment Ordinance,
Ordinance No.15 of 1951
It established the staff committee as the collective bargaining machinery
between employer and employee in both private and public services 461.

(f) Trade Unions Ordinance of 1956

It repealed the 1932 Ordinance; however the powers given to the governor
and the registrar remained intact. It added more powers to the registrar
through Trade Unions (Amendment) Ordinance No.17 of 1959, whereby the
registrar had power to cancel registration of trade union if he was of the
opinion that the objects for which the trade union was being carried on are
such that had they been defined as objects of the Union at the time of the
application for registration the registrar could probably have refused
registration.462

9.1.3 Trade Unionism after Independence

The situation after independence was not different from the previous as
those who have been the fighters of workers’ rights now become the national
leaders.

Those who became ministers (previously supported strikes) were now

condemning the strikes. Thus, the struggle for workers’ rights and freedom
continued. By 1962 there were about 152 strikes while during the year 1961
about 40 strikes were carried out by the workers. This means the post-
colonial leaders had to adopt the colonial systems of preventing workers
from exercising their organizational rights through legislative mechanisms.

(a) Trade Unions (Amendment) Ordinance, No.51 of 1962

This repealed the 1956 Ordinance and added more powers to the registrar
and the minister responsible for labour matters. The minister was

461
Refer to Ss.24 and 25 of the Act
462
Refer to S.14 of the Trade Union Ordinance of 1956

220
empowered to designate a federation (state owned) to which all registered
trade unions would be compulsorily affiliated. 463 Furthermore, the registrar of
trade union was empowered to cancel the registration of any trade union
which within three months of registration failed to become a member of the
designated federation (TFL). Tanganyika Federation of Labour (TFL) was
placed under the control and supervision of the state through the minister
and registrar who directly controlled trade unions’ finds. The Federation was
statutorily given powers to direct its affiliates to pay any part of the money
to the federation,464the use of which was according to the minister’s
directives.

(b) Trade Unions (Revocation of Special Powers) Act 1962

This revoked powers granted to the federation under the previous Ordinance,
but the powers of the registrar over trade unions groomed extensively since
he could suspend trade union officers upon satisfaction that the trade
union’s money were being used not in compliance with the provisions of the
Trade Unions Ordinance (Amendment) Act 1962. Furthermore, the registrar
was empowered to apply to the High court for appointment of receiver where
the accounts of union were not in accordance with the laws.

(c)Trade Disputes (Settlement) Act, No.43 of 1962

It criminalized strikes and lockouts and set up a complex procedure for
compulsory arbitration and settlement of labour disputes, both private and
public undertakings with the exclusion of the civil servants. Strikes could be
used where the procedure had been exhausted. The procedure involved
overlapping stages which made it almost impossible to be exhausted for
purposes of strike. The procedure was as follows:
(i) Dispute was to be reported to the Labour commissioner who
appointed the Labour Officer to look in the dispute. Here the labour

463
Refer to S.7 of Ordinance No.51 of 1962
464
Refer to s.41A ibid

221
 officer conducted investigation to determine the issue in dispute
and then reported to the commissioner.
(ii) But before the issue was taken to the commissioner, there was
machinery for dispute resolution, i.e., the labour officer appointed a
conciliator who facilitated negotiations between employer and
employee. If this procedure was not followed, the Labour
commissioner would take the matter back after getting the consent
from the minister (as many times as possible)
(iii) Then the commissioner and labour officer had to decide what to do
whether refer the matter to the minister or reconciliation board.
(iv) If the conciliator failed to solve it, the dispute was to be taken back
to the Labour Commissioner who could bring the matter back again
to the Conciliator, if not solved then it is taken back to the Labour
Commissioner, who either refers the matter to the reconciliation
board or to the Minister. This procedure was cumbersome,
confusing and too expensive in terms of time and financial
expenses.

(d) The Civil Service (Negotiating Machinery) Act 1962

This criminalized participation in a strike before exhausting the
procedure under the Act.465It established a joint staff council for the civil
service, and provided the procedure for dispute settlement between the
government and the employee. The procedure was made to be
compulsory and dealt with senior civil servants.

(e) The Preventive Detention Act, No.60 of 1962

It empowered the president to order detention of any person who in his
opinion was conducting himself in a manner prejudicial to the state,
including leaders of the trade union and federation. Several people
particularly trade union leaders became victims under this law e.g.,
Victor Mkelo.
465
S.17(2) of Act No.60 of 1962

222
(f)National Union of Tanganyika Workers (Establishment) Act, No.18
of 1964
This repealed TFL and established NUTA, which was made an affiliated
organization of the ruling political party (TANU). The top leaders of the
organization were the presidential appointees. The general secretary of the
union was a cabinet minister responsible for labour matters, and the
president was given power to dissolve the union if in his view it did not serve
the purpose it was established for. Furthermore, the deputy general
secretary was also appointed by the president; but at the grass roots (branch
levels) the members of the union elected their own committee members. The
financial secretaries, assistant secretaries for the various sections of the
union, directors of the organization, were appointed by the general secretary
after consultation with voting members of the general council. All these held
offices at the pleasure of the general secretary.

In the event of a dispute, union members had to report the matter to the
branch secretary, who had to submit the facts and issues to the Executive
Council through the office of the general secretary of the union, and then
other procedures provided under the Trade Disputes (Settlement) Act 1962
had to be followed. Consequently, the union was virtually made a
department of the government and under the control of the ruling party.
Moreover, NUTA continued its traditional function of demanding higher
wages and better terms of service.

(vii) The Permanent Labour Tribunal Act, No.41 of 1967

It established the PLT which was a final decision making body for all
industrial disputes. It set up machinery for controlling wage increases and
provided for arbitration of industrial disputes. Strikes and lockouts were not
allowed for the disputes under consideration by PLT. The Tribunal was
empowered to register all wage agreements and other incentive agreements

223
if they conformed to specified guidelines for wage increases and those not
registered by it had no legal effect.

The successful negotiations between the employer and the employee was
embodied in what is called voluntary agreement which when registered
became the award, which would be implied in the contract. Where the
negotiations ended up in a dispute, the dispute was to be referred to the
Labour Commissioner who could appoint the conciliator from the ministry of
labour. If the negotiations succeeded, then it was sent to PLT for
consideration and registration as an award. If conciliation failed, then the
matter was to be referred to PLT for hearing and determination. The awards
and decisions of the PLT were final and conclusive, not subject to challenge,
review or called in to question by any court of law except on the ground of
lack of jurisdiction.

Note: The chairman and deputes of the PLT were the presidential
appointees save for the assessors who were selected by the minister of
labour: one of them must be from the Union members or from a panel of
assessors submitted to him by the Workers’ Union. The opinion of the
assessors was not binding on the chairman, only that the chairman was
obliged to record the opinion of the assessors and the reasons for his
disagreement.

(h) JUWATA Act 1979 (Demise of Trade Unionism)

The merger of TANU and ASP in 1977 to form CCM had impact on trade
unionism. NUTA was transformed into JUWATA, a mass organization of the
ruling political party (CCM). Thus, on 5th February 1978, JUWATA started its
operations signifying that the whole of Tanzania had only one trade union
established under article 70 of the CCM Constitution. Its leaders were the
appointees of the Chairman (the president) and the president had powers to
cancel the registration of JUWATA if the operations were prejudicial to public

224
interest, and establish some other body which would be representative of the
employees that would be deemed to be a trade union.

In 1982 JUWATA sought to have their own leaders and demanded some
autonomy, which were approved by the party hut still these leaders were to
be approved by the party.

9.1.4 Trade Unionism in 1990s

Following the entrenchment of the bill of rights in the Constitution in
1984, it became mandatory to change the system to accommodate the
rights to organize and freedom of association. Thus the government
adopted the following legal instruments:

(a)Organization of Tanzania Trade Union (OTTU) Act 1991

The workers were now allowed to form their own unions which were to be
affiliated to OTTU (federation). In 1994, OTTU called a national wide strike for
3 days in order to demand for the better working conditions and better pay.
The Tanzania Teachers Union (TTU) was formed in 1994. The OTTU General
Congress in 1995 dissolved and formed Tanzania Federation of Trade Union
(TFTU) to which trade unions established by workers would voluntarily be
affiliated. This was not a statutory body. Other trade unions affiliated to
TFTU included:
(i) Research Academic and Allied Workers Union (RAAWU)
(ii) Tanzania Mines and Construction Workers Union
(iii) Tanzania Local Government Workers Union
(iv) Tanzania Communication and Transport Workers Union
(v) Tanzania Union of Government Health Employees (TUGHE)
(vi) Tanzania Union of Industrial and Commercial Workers Union
(TUICO)
(vii) Tanzania Railway Workers Union; etc.

225
(b) Trade Unions Act, No.100 of 1998
This was a replica of the 1956 Trade Union Ordinance. The registrar was
given powers to control and supervise the trade unions’ finance, suspend the
union officers, power to apply for receivers. Moreover, it allowed the
formation of free federations for workers which were also allowed to affiliate
with other consultative bodies both within and without Tanzania.

9.1.5 Trade Unionism under the Current Labour Instruments

The 2004 Acts provide extensively on trade unionism in Tanzania starting
with right to associate and organizational rights including the right to strike
and lockout.

9.1.5.1 Right to Associate

Section 9 of the ELRA empowers an employee to form and join any trade
union and it also empowers an employee to participate in lawful activities of
the trade union. Meanwhile s. 10 empowers employers to join employer’s
association of their own choice and that each employer has a right to
participate in the lawful acts of the association. However the right to join and
form unions or associations by employees or employers respectively is not
absolute. Under s.9 (2) of ELRA there are categories of employees who are
excluded from joining trade unions of other employees. For example,
magistrates may only form and join trade unions that restrict their
membership to judicial officers only. The same applies with the prosecutors
who are required to join unions for prosecutors per se. The senior
management employees (i.e., an employee who by virtue of that employee’s
position makes policy on behalf of the employer and is authorized to
conclude collective agreements on behalf of the employer) may not join any
trade unions which belong to non-senior management employees

226
9.1.5.2 The Procedure and Conditions for Registration of Trade
Unions, Employers’ Associations and Federations
Section 45 of the ELRA requires a trade union or employers association to be
registered within six (6) months of its establishment (the phrase used
is ....shall...to signify that it is mandatory) .If the union or employers
association is not registered within six months and then it purports to
commence its operation, then that will be an offence under the law. 466

(a) Conditions for registration of Trade Union

Section 46 (1) of the ELRA provides for the conditions of registering a trade
union, which include:
(i) It must be a bona fide trade union; an association not for gain
(ii) It must be independent of any employer or employers’ association
(iii) It must have been established at a meeting of at least 20
employees
(iv) It must have adopted a constitution and rules that comply with
provisions of section 47 (to be discussed later)
(v) It should have the name different from other existing trade unions
(vi) It should have the address in the United Republic of Tanzania.

(b) Conditions for registration of Employers’ Association

On the other hand, employers have the right to form and join association for
their own benefits. Section 46 (2) of the ELRA provides the conditions for
registration of employers association to include:
(i) It must be a bona fide employers association;
(ii) It must be an association not for gain;
(iii) It has been established at a meeting of at least four employers;
(iv) It must have adopted a constitution and rules that comply with
provisions of section 47 (to be discussed later);

466
S.45(3) of the ELRA

227
 (v) It should have the name different from other existing employers
association; and it should have the address in the United Republic of
Tanzania

(c) Conditions for registration of federation

These are provided for under s.6 (3) of the ELRA to include:
(i) It is a bona fide federation; it is a federation not for gain;
(ii) It has been established at a meeting of at least five registered
organizations of the same kind;
(iii) It must have adopted a constitution and rules that comply with
provisions of section 47 (to be discussed later);
(iv) It should have the name different from other existing organizations
or federation;
(v) It comprises registered organizations and it should have the
address in the United Republic of Tanzania.

(d)Features of the Constitutions and Rules of Trade Unions,

Employers’ Associations & Federations
As observed above, every trade association should have a constitution
establishing it. Section 47 of the ELRA provides for the contents of the
constitution and rules adopted by the trade associations to include:
(i) State that it is an organization not for gain;
(ii) Prescribe the qualifications for membership, grounds and procedure
for termination of membership;
(iii) Prescribe the rules for convening and conducting of meetings
including quorum required, manner for passing the decision, etc.;
(iv) Provide the qualifications of leadership (including circumstances
for the termination of their functions);
(v) Provide for the conduct of ballot of the members in respect of
issues related to strike (trade union), lock out (employers
association) or protest (federation);

228
 (vi) Provide for financial related matters such as investments , banking
matters (control of the bank account and the organization’s assets
and liabilities);
(vii) Provide for the procedure of amending the constitution and the
rules;
(viii) Provide for the matters relating to amalgamation or affiliation (to
both local and international similar organizations; dissolution of the
organization.

Note: The rules and constitutions adopted by respective associations should

not conflict with the provisions of the Constitution of the United Republic of
Tanzania (Part III on basic rights and duties), provisions of the ELRA or any
other written law and should not evade any obligation imposed by any law of
the land.

9.1.5.3 Registration Process

The applicant is required to submit to the registrar an application form duly
signed by the secretary of the organization or federation; a certified copy of
the attendance register and minutes of its establishment meeting, and
certified copy of its constitution and rules. However, the registrar is
empowered to require for more information from the applicant but such
information should be reasonable and necessary for the registration.

If the above things have been presented (meaning that all the conditions
prescribed by the law have been observed), then the registrar is obliged to
register the organization or federation. 467 The ELRAuses the word ‘shall’ to
denote the obligation to register by the registrar as long as the conditions
prescribed by the law are met. If the registrar is of the opinion (is not
satisfied) that the organization or federation has not complied with the
requirements of sections 46 and 47, then the registrar may do either of the
following things: -

467
S.48(3) of the ELRA

229
 (i) May give the application back to the applicant for rectification
within the stipulated period.468The time or period is not defined by
the law and this may create the chance for unreasonable decision
by the registrar
(ii) May refuse thee application and give the reasons and decisions for
refusal in a written notice.469

In case the registrar registers the organization or federation, then the

registrar is obliged to enter the name of the organization/ federation in
appropriate register and issue a certificate of registration. Where any person
is aggrieved by the decision of the registrar, may appeal to the Labour Court
against that decision asper s.57 of ELRA.This Act avails the applicants a
chance to challenge decision of the registrar to the court unlike the old
labour legislations-hence, creating system of checks and balances.

9.1.5.4 The Effect of Registration

According to s.49 of the Act, once the organization or federation is
registered, it acquires a legal personality (corporate body) with perpetual
succession and a common seal, capable of owning and disposing property,
capable of suing and being sued and capacity to enter into contract with
other companies or institutions (both profit and non-profit). Section 49 (5)
provides that a duly issued certificate of registration is a sufficient proof of
the body corporate of the organization or federation. The registrar is required
by law to publish in the government gazette each registration made and any
change made thereafter.470
Consequently, no any office bearer or official of the registered organization
or federation shall be personally liable for any loss suffered by any person as
a result of an ELRA performed or omitted in good faith while performing their
functions for or on behalf of the organization or federation Whether an act is
bona fide or not, it will depend on the constitution, rules and the objectives/
468
S.48(4)(a) of the ELRA
469
S.48(4)(b) of the ELRA
470
Refer to s.58 of the ELRA

230
result of the act. So the act may be ultra vires and in such situation the
federation or organization is not liable (limitation to corporate liability).
Furthermore, an act that is criminal in nature cannot be imputed on the
company; hence the officer may be responsible. (Please refer to the
company law lectures on circumstances for lifting up the veil of body
corporate).

9.1.5.5 Amalgamation
This is provided for under s.54 of the ELRA. It refers to the consolidation of
two or more organization that are similar e.g., amalgamation of trade unions
(let’s say CWT, RAAWU and TUGHE may resolve to amalgamate and become
one separate organization), employers association may resolve to
amalgamate with one or more registered employers’ associations, one
federation may amalgamate with another federation(s). The legal
consequence of the amalgamation is that the amalgamating organizations
lose their legal corporate status and thus removed from the registry. 471
Consequently; the assets, rights, obligations and liabilities of the
amalgamating organizations or federations, including the funds, devolve
upon and vest in the amalgamated organizations or federation. 472The process
of registration is in accordance with s.48 of ELRA. The registration of the
amalgamation shall subsequently be published in the gazette as per s.58 of
ELRA.

9.1.5.6 Cancellation of registration

The registrar has the mandate of ensuring that the registered trade unions,
employers’ associations or federation do carry out their activities in
accordance with the law. However, the registrar does not have the powers to
order cancelation of the trade unions, employers’ associations or federation,
as the case may be. If the requirements for registration and the provisions of

471
S.54(3) of the ELRA
472
S.54(5) of the ELRA

231
the law are not complied, then the registrar may apply to the Labour Court
which may do the following:
(i) Order the cancellation of the registration of an organization or
federation, the effect of which is to end the existence of the
organization (the rights do cease) and the organization shall be
dissolved in accordance with the provisions of the law473
(ii) Offer the second chance (an opportunity) to the organization or
federation to comply (remedy) any failure that would lead to its
cancellation.474

9.1.5.7 Dissolution of Trade Union, Employers Association or

Federation
The law provides for four ways of dissolving the organization, namely:
(i) Upon the application by the registrar to the Labour Court for the
dissolution for contravention of the provisions of s.45 of the Act; 475
(ii) Upon the application by the organization or federation to the Labour
Court for its dissolution (voluntary dissolution equal to voluntary
winding up of the company);476
(iii) Upon the order of the court to dissolve the organization following
the cancellation order by the court;477
(iv) Upon the application by any interested person to the Labour Court
following the bankruptcy of the organization or federation, whereby
the laws relating to bankruptcy shall be applied. 478

It should be noted that the labour court, in granting the dissolution order,
may appoint any suitable person on any conditions to be a liquidator and
may decide where any residue of assets shall vest if at all the constitution

473
S.55(2)(a) of the ELRA
474
S.55(2)(b) of the ELRA
475
S.56(1) of the ELRA
476
S.56(2) of the ELRA
477
S.56(3) of the ELRA
478
S.56(4) and (5) of the ELRA

232
and the rules are silent479 {refer to s.56(6)}. The registrar is obliged to
publish the cancellation and dissolution order in the gazette as per s.58 of
the ELRA.

9.1.5.8 Dut1es and Rights of Registered Trade Unions, Employers’

Association andFederation
(a) Duties of Organization and Federation
The registration of the organization or federation attaches with it the rights
and duties. Such duties include the following:
(i) Obligation to keep books and records of their income, expenditure,
assets and liabilities
(ii) Prepare the financial statement for each financial year ending on
31st December each year. Such financial statements must be
audited by a registered auditor.
(iii) The financial statement and audited books of accounts must be
submitted to a meeting of members or their representatives
according to the constitution and the rules. The members of the
organization or federation are entitled to inspect the financial
statements and auditor’s report at respective offices.
(iv) Each organization is bound to keep a record of the following for a
period of five years: list of members in a prescribed form, the
minutes of its meetings and the ballot papers. 480
(v) Provide the registrar with annual statement showing the total
number of members as of 31st of December of the previous year,
and ensure that the provisions of the constitution lodged with the
registrar’s office are complied.481

It should be noted that non compliance of the constitution by the trade

union, employers association or federation may cause the registrar or

479
S.56(6) of the ELRA
480
S.52(1) of the ELRA
481
S.52(2) of the ELRA

233
 member of the organization to lodge an application to the Labour Court
for the appropriate order including;
 Setting aside the decision, agreement or election;
 Ordering the organization to comply or take steps to comply with the
constitution or restrain any person from any action not in compliance
with the constitution.

However, the Labour Court is obliged to make sure that the internal
procedures have been observed and that it is for the best interest of the
organization or federation that the application be determined
notwithstanding the internal procedures.482 This means that the court is
supposed to take into account the internal procedures of the association in
question, but such procedures shall not act as a barrier to exercise the
court’s power to determine the application if it is for the best interest of the
organization.

(b) Organizational Rights

The registered organizations enjoy various rights prescribed by law for
purposes of promoting collective bargaining at the work places. These rights
may be categorized into two: substantive rights and representation rights.

(i) Substantive rights

These rights are provided for under s.60 of the ELRA. The organization enjoys
such substantive rights arising from recognition of its corporate status and
ability to enter into contract, own and dispose the property. Such substantive
rights include the following:
 Access to employer’s premises: any authorized representative of a
registered trade union shall be entitled to enter the employer’s
premises to recruit members, communicate with members, meeting

482
S.53 of the ELRA

234
 members in dealings with the employer, hold meetings of employees
on the premises and vote in any ballot under the union constitution.483
 Establish branches at work places where there are ten or more
employed members.484 This does not require the consent of the
employer.
 Employer shall provide the union any necessary and reasonable
services and facilities to ensure its core collective bargaining function
at the work place as per s.67 of the Act.485Moreover, the functions
should not interfere with the working time or lead to disruption of the
work or destruction of the employer’s properties.
 Deduction of trade unions’ dues by the employer and be remitted
within seven days after the end of the month in which the deduction
was made. The failure to do that will attract a fine of 5% of the amount
due for each day the dues remain unremitted. 486

(ii) Trade Union Representation

Trade Unions are obliged to represent their members in various

grievances, disciplinary proceedings and make representations with
respect to health, safety and welfare of its members at the workplaces.
Thus, this requires that trade unions should have their representatives at
the place of work, the limit of which is as follows:
 One trade union representative for one to nine members
 Three representatives for ten to twenty members
 Ten representatives for twenty one to one hundred members
 Fifteen representatives for work places with more than one hundred
members. The 1aw requires that where there are more than 100
members at the work place, then five members shall represent women
employees (if there are female members)

483
S.60(1) of the ELRA
484
S.60(2) of the ELRA
485
S.60(3) of the ELRA
486
S.61 of the ELRA

235
(iii) Election and Functions of representatives
The election of the representatives should comply with the provisions of the
constitution of the trade unions. The core functions of the trade union
representatives are provided under s.62 (4) of the Act, including the
following:
 To represent members in grievance and disciplinary proceedings
 To make representations in respect of rules, health ,safety and welfare
of members
 To consult on productivity in the workplace and monitor employer’s
compliance with labour laws.
 To further good relations, perform any function as per the constitution
of the trade union and as agreed by the employer.

The trade union representatives are entitled to reasonable paid time off to
perform any of the functions named above, including the paid leave to trade
union representatives and office bearers to perform their functions 487. The
number of the days is not prescribed in the law, so the collective agreement
may fill in the gap.

(c) Procedure for Exercising Organizational Rights

S.64 of the ELRA provides that before the trade union exercises any of the
rights conferred by the law, the employer must be given the notice in a
prescribed form Then, the employer is required to respond to the notice
within thirty days, by meeting with the trade union to conclude a collective
agreement granting the right and regulating the manner in which the right is
to be exercised. If no agreement is reached or the employer fails to meet
with the trade union within 30 days, the union may refer the dispute to the
Commission for Mediation and Arbitration for mediation. Where the

487
S.63 of the ELRA

236
mediation fails to resolve the dispute, then the trade union may refer the
matter to the Labour Court which shall make the appropriate orders. It
should be remembered that the jurisdiction on matters of interpretation of
the law or collective agreement are exclusively vested into the Labour
Court.488

(d) Termination of the Organizational Rights

This is provided for under s.65 of the ELRA. The organizational rights can be
terminated on the ground that the union has materially breached the terms
and conditions for the exercise of the organizational rights. Where the
employer reasonably thinks that the trade union has violated the terms and
conditions of the agreement or there is contravention of the law on
organizational rights, then the employer may refer the issue to the
Commission for mediation, and if the mediation fails the employer may apply
to the Labour Court to terminate any of the organizational rights granted
under the collective agreement or withdraw an order made under s.64. The
Labour Court is also empowered to make such other orders to ensure that
the trade unions comply with the law, and such powers include power to
suspend the exercise of the right for a period of time. 489

9.2 Collective bargaining

9.2.1 The nature of collective bargaining
The ILO defines collective bargaining as all negotiations which take place
between an employer, a group of employers or one or more employers’
organizations, on one hand, and one or more workers’ organizations, on the
other, for: determining working conditions and terms of employment; and/or
regulating relations between employers and workers; and/or regulating
relations between employers, or their organizations, and a workers’
organization(s).490 It therefore refers to voluntary negotiations between an
employer or employers, and the employees through a registered trade union,
488
Refer to s.64(5) of the ELRA
489
S.65(2) of the ELRA
490
Rutinwa et al(eds) op.cit at p.226

237
leading to a binding agreement (collective agreement) on matters pertaining
to working conditions and terms of employment, provided such agreement
does not lower the standards as prescribed by law.

All employees and employers to whom the ELRA applies are allowed to
engage in collective agreement on various aspects, namely:
 Individual employment relationship matters such as wage; salaries and
other forms of remuneration; terms and conditions of employment as
provided in the contract of employment such as hours of work, leave,
allowances, employment policies and rules relating to recruitment,
training, promotion, suspension, discipline and termination of
employment;491
 Topics relating to collective bargaining relationship matters such as
organizational rights, negotiation and dispute resolution procedures as
per s.95 of the ELRA; and grievance, disciplinary and termination of
employment procedures.492

9.2.2 Conditions for involving in collective bargaining

The right to engage in collective bargaining is granted to both employer and
registered trade associations. This demands that for an association to
represent interests of the employee, it should observe the following:
(a) It must have been registered in accordance with the provisions of the
law (comply with the conditions for registration of trade association) 493
(b)It must be representing the interest of the majority of employees in the
sector or at work place. For instance, CWT represents the interests of
teachers (Primary and secondary) in Mainland Tanzania; RAAWU
represents interests of workers in the Universities; TUGHE represents
interests of workers in the health sector, etc.
(c) It must have been recognized by the employer as a bargaining agent
or exclusive bargaining agent. This is in accordance with the decision
491
Ibid, at pp.231-232
492
Ibid, p.232
493
Ss.46 and 47 of the ELRA

238
 of the court in the Matter of the Complaint Between COTWU (T) AND
TTCL&TEWUTA,494where Rweyemamu,J; observed:
“Sub-section (1) of the Act...does not make the trade union that represents
the majority of the employees automatically the exclusive bargaining agent of
the employees in that unit. The section provides that the trade union that
represents the majority of employees ‘shall be entitled to be recognized as
the exclusive bargaining agent’ and does not say a trade union ‘shall be
recognized as the exclusive bargaining agent’...what the law says is that its
optional for such a trade union to exercise the right to seek recognition as the
exclusive bargaining agent, and if it does so, then it will notify, the employer,
or the employers Association in the prescribed form.”

The conditions for recognition as exclusive bargaining agent is that such an

association must be registered and should represent the interests of the
majority of employees.495 This is done through a notification by a trade
association seeking recognition to the employer, who within thirty days may
conclude an agreement recognizing the association. However, where the
employer does not conclude an agreement, a dispute must be filed to the
CMA for mediation and later to the Labour Court. 496

Normally, it is the nature of the employer’s business which determines the

trade association to act as collective bargaining agent, on one hand, and the
constitution of trade union on membership. For example, CWT cannot act as
a bargaining agent for workers in industrial sector or mining sector. If this
happens, then the employer can refuse to grant recognition to the
association since it does not represent the interests of employees at
respective establishment (industry). In the case of Tanzania Union of
Industrial and Commercial Workers (TUICO) vs Tanzania Tobacco Processors
(Ltd),497where the respondent refused to grant recognition to the applicant
(TUICO) on the factor that it was not representing the interests of majority of
employees at the workplace (according to its constitution). The employer
alleged that it was Tanzania Plantation Workers (TPAWU) which had been
494
Complaint No.1 of 2007, High Court of Tanzania-Labour Division (Unreported)
495
Refer to s.67(1) and (2) of the ELRA
496
Refer to s.67(3-7) ibid
497
Revision No. 20 of 2008, High Court of Tanzania-Labour Division (Unreported)

239
recognized by the respondent under repealed laws and with which the
respondent had entered into a Voluntary Agreement (VA), which was
registered in the court on 15/12/2006 as per repealed laws and it was valid
for two years from 1/4/2006 to 1/4/2008. The employer then gave a notice to
TPAWU to acquire the majority of members within three months as per s.69
(1) (a) & (b) of the ELRA, since its membership had declined.

Before the expiry of the time given by the employer, TUICO submitted its
application to the respondent for recognition as exclusive bargaining agent
on 2/7/2007, which was not accepted by the respondent, leading to referral
of the case to CMA on the ground that the respondent had failed to perform
its legal duty under s.67 of the ELRA to meet with the complainant and
conclude a recognition agreement because TUICO was the Union
representing the majority of employees at the respondent’s premises and
that it ought to be recognized as exclusive bargaining agent.

It is so unfortunate that this aspect was not determined by the court; rather
it was remitted back to the CMA to be determined according to law as the
court found that there were procedural irregularities in the CMA proceedings.

9.2.3 Duty of the parties during collective bargaining

As previously discussed, the law permits the parties to enter into voluntary
negotiations so as to improve the standards of work. To some sectors such
as essential services, collective bargaining is a compulsory process so as to
avoid engaging in strikes. The negotiations can effectively be done if the
duty imposed on the employer to bargain in good faith with a recognized
trade union is observed.498 Likewise, the trade union is obliged to bargain in
good faith with the employer or employers’ association that has recognized it
as per s.67 of the Act. It means that if the parties have to achieve the
objectives of collective bargaining, then they must (obligatory) so do in good
faith.

498
Refer to s.68 of the ELRA

240
This can be done if the parties comply with rule 54 of the Code of Good
Practice, providing for proper conduct and misconduct. Rule 54(1) and (2)
provide that, bargaining in good faith is for the parties to explore issues with
an open mind and with the intention of reaching an agreement, particularly:
 respecting the representatives of the parties
 preparing for negotiations in advance
 retaining consistent representation during negotiation process (unless
there is a justifiable reason)
 attending meetings in time at the agreed place or venue
 motivating any proposals made and considering proposals made by
the other party (if not accepted, then reasons should be given)

Thus, if parties observe the above issues during negotiations, they are said
to be bargaining in good faith; the contrary would automatically mean that
parties are bargaining in bad faith. Rule 54(3)of the Code of Good Practice,
specifically stipulates examples of what one could say is bargaining in bad
faith:
 making grossly unreasonable demands
 refusing without good reasons to make concessions;
 refusing to disclose relevant information which is reasonably required
for collective bargaining. Rule 56(1) of the Code of Good Practice
describes relevant information as information that is reasonably
required to allow the union to represent its members in consultations
and collective bargaining with the employer or employers’ association.
However, the employer is not obliged to disclose information which is
legally privileged; that the employer cannot disclose without
contravening a law or court order; that is confidential whose disclosure
may cause substantial harm to the employer or employee; and any
private information relating to an employee. 499
Any dispute relating to
disclosure of information the party may refer the same to the CMA for

499
S.70(2) and (3) of the ELRA

241
 mediation; and in case of failure of mediation, the party may refer the
case to the Labour Court which must ensure that proceedings are held
in camera.500
 insulting or use of derogatory /abusive language in negotiations;
 delaying the negotiations unnecessarily;
 imposing unreasonable conditions for negotiations to proceed;
 engaging in unilateral actions such as unilateral alteration of terms and
conditions or industrial action before negotiations have been
concluded.

9.2.4 Conditions for a valid and binding collective agreement

Section 71 of the ELRA provides that a collective agreement shall be in
writing and signed by the parties. This means that for a valid and binding
agreement, the parties must write all the terms of agreement and sign it
thereof; otherwise it can be avoided. It stipulates further that it will be
binding on the last signature unless otherwise stated. The duly written and
signed collective agreement is equated to the consent judgment; that is, it
can be enforced in the court of law.
The collective agreement shall be binding on the parties to the agreement,
any members of the parties to the agreement, and any other employees who
are not members of a trade union party to it if such trade union is recognized
as the exclusive bargaining agent.

Once the agreement has commenced, it remains binding on the parties to it

until it is terminated by any party to it on reasonable notice; 501 or where
another agreement is concluded. The law requires the parties to a collective
agreement to lodge ac copy of the agreement to the Labour
Commissioner.502In case there is a dispute concerning the application,
interpretation or implementation of a collective agreement, the parties shall
refer the same to the CMA for mediation unless the parties agree to the
500
S.70(5) and (6) ibid
501
S.71 (6) of the ELRA
502
S.71(7) of the ELRA

242
contrary. If the mediator fails to resolve the dispute, any party may refer the
dispute to the Labour Court for a decision.503

9.2.5 Agency shop agreements for collective bargaining purposes

The law requires that employees should conclude collective agreements
through recognized trade union. However, not all employees in Tanzania
have joined or formed trade unions. Thus, such employees who do not
belong in any trade union may enter into agreement with registered trade
union for purpose representation in collective bargaining processes. This is
what the law under s.72 of the ELRA terms as agency shop agreement.

Section 79(9) of the ELRA defines agency shop to mean ‘a union security
arrangement in terms of which employees in a bargaining unit, who are not
members of the recognized trade union, are required to pay an agency fee to
the trade union’. However, such arrangement should not compel an
employee to become a member of a trade union. Furthermore, the trade
union so contracted must fairly represent the employees within a recognized
bargaining unit; that is to say:
 the union cannot refuse to represent non-union members;
 the union must not enter into collective agreements that favour its
members at the expense of non-union members;
 the union may not discriminate against non-union members. 504
A binding agency shop agreement should comply with the conditions
prescribed under rule 58(2) of the Code of Good Practice, that:
 the agency fees collected from non-union members shall be paid to
into a separate account administered by the union;
 the monies in that account may only be used to advance and protect
the socio economic interests of the employees in that workplace;
 the socio-economic interests of workers including labour matters
affecting employment or labour relations, workers’ education,
503
S.74 of the ELRA
504
Refer to Rule 57(2) of the Code of Good Practice Rules, 2007

243
 scholarships, contributions to political parties or any person standing
for public office is prohibited.

The agency shop agreement shall be suspended if the trade union is not a
representative and its recognition is withdrawn by the employer under
s.69 of the Act. This will be regarded as automatic termination of the
agency shop agreement.

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