By Jaba Shadrack, UDSM – School of Law, 2009
What were the problems in the law leading to the enactment of the “Employment and Labour Relations Act” (ELRA) of Tanzania 2004? Are there still deficiencies in the law as it stands now? How does this enactment compare with a similar enactment in any Eastern or Southern African country?
(1) Problems in the previous labour law regime.
(2) Deficiencies in the current labour law regime.
(3) Similarities between Tanzania, and Kenyan labour law regimes.
PROBLEMS IN THE PREVIOUS LABOUR REGIME
(a) Allowed summary dismissal- S. 42 of the Employment Act.
(b) Jurisdiction to determine legal matters were vested in quasi-judicial bodies like labour officer/commissioner, minister for labour affairs, and the industrial court. (Refer, the Industrial Court Act). Also, S.28 (4) of the Industrial Court, made the award (decisions) of the Industrial court final and conclusive i.e not appealable or reviewable in the courts of law. Unlike the current regime where further determination of labour suits from quasi-judicial bodies goes to the High court (Labour Division) deals with labour matters.
(c) The Acts were silent as to the issues such as Picketing during strike, use of the replacement labour in lawful strike or lockout by employer, locking the employer in the premises. [The ELRA, 2004 in S.76 (3) prohibit the aforesaid conduct during lawful strike or lockout].
DEFICIENCIES IN THE CURRENT LABOUR REGIME (i.e (ELRA, 2004)
(i) The new law provides no grounds for employees to embark on a conflict of rights.
(ii) Gives workers the right to strike on disputes of interests on the one hand, and indirectly denies it on the other. For example, Section 75 of the Act gives employees the right to strike but the right should be in line with limitations stated thereto. This is due to the facts that, Workers strike for a variety of reasons, but the mostly for economic reasons such as poor remuneration, poor working tools, an unfavourable working environment, lack of motivation and dissatisfaction. Section 80 stipulates that before engaging in a strike, workers should ensure that the dispute is of interest and that the dispute has gone through mediation and remains unresolved after mediation. The law also calls for a trade union to approve the strike through a ballot conducted under union constitutions. The prevailing legal discrepancy is costly to the employees especially when engaging in disputes, because failure to meet the conditions necessary to the strike might be taken to mean violation of laws, therefore civil or criminal proceeding might be taken against them. Generally, the ELRA allows the right to strike on the one hand, and indirectly takes away the right by imposing strict conditions, which workers must follow before they strike.
(iii) The Act does not define a contract of service and a contract for service. [The Labour Institutions Act, 2004 under Section 61 provide for a presumptions as to who may be deemed as an employee].
(iv) The ELRA is silent as to what happens to the employees' rights where the employer is insolvent.
SIMILARITIES BETWEEN TANZANIA, AND KENYAN LABOUR LAW REGIMES
(a) Both prohibit against child labour, forced labour, discrimination in employment, and sexual harassments. [Refer, ELRA (TZ) SS. 5-8, while in the Employment Act 2007, SS. 4-6 and, 52-65].
(b) Both regime bars summary dismissal, and unfair termination [ELRA, 35-41, while Kenya (Employment Act) SS. 35, 44 and 45].
(c) Both provide for the basic statutory rights and duties in employment, such as minimum conditions of employment, hours of work, annual leave, maternity leave, sick leave, housing, water, food, medical attention, remuneration and etc. [ELRA, SS. 19-34, while Kenyan E.A, SS. 16-34].
(d) Kenyan E.A impliedly in SS. 11-14 allows Collective bargaining/agreement through trade unions, likewise the ELRA in SS. 66-74.
(1) The ELRA provide expressly the right to strike and lockout unlike the Kenyan E.A.
(2) In Kenya, the E.A under SS. 71, 87(1)(2) confers to the legal officer and the industrial Court to determine complaints unlike the TZ's ELRA.
(3) In Kenyan, EA under S. 87, dispute settlement procedure is that the aggrieved party may complain to the labour officer or seek adjudication in the industrial court. While in TZ, under SS. 86-95 of the ELRA, the dispute resolution methods are conciliation, mediation, arbitration, and adjudication in the labour court.
(4) The ELRA is silent as to what happens where the employer is insolvent, while the Kenyan, EA under 66-73 provide for the same.
What are the sources of law generally and specifically in business and company law in Tanzania. What is the role of customary, Muslim, Indian, other Foreign and Local Laws?
(i) Sources of law generally.
(ii) Sources of law specifically in Business and Company law in Tanzania.
(iii) The role of customary, Muslim, Indian & other foreign & local laws.
SOURCES OF LAW GENERALLY IN TANZANIA
(a) The constitution
(b) Principle legislation (statutes)
(c) Judicial decisions (case laws)
(d) International conventions (treaties), jus cogens
(e) Bi-lateral and Regional Agreements
(d) Customary laws, e.g. Trade usages (merchant rules), tribal and clan rules (customs)
(f) Religious Laws, e.g. Islamic, Canon and etc
(g) by-laws (subsidiary legislations), and etc.
The JALA (Judicature and Application of Laws Act) CHAP. 358 (RE: 2002) generally provides for laws that applies in Tanzania. For example S. 2(3) of JALA allows courts to apply; written laws that are in force in Tanzania, Common laws, doctrines of equity, and Statutes of general application. Further, S. 9 allows certain Acts made by the Parliament UK to apply in Tanzania as enumerated in the 1st Schedule to JALA. The Act also under S. 11 guarantees the application of customary law. Finally, the Act in S. 14 provides for applied Indians Acts, more specifically in the 2nd Schedule to JALA. On the other hand, the Tanzania Constitution impliedly under Article 63(3)(e) allows ratified and domesticated international treaties by The Union Parliament to apply in Tanzania.
Refer also: the Magistrates' Courts Act, No.12 of 1984, [RE: 2002]
SOURCES OF LAW SPECIFICALLY IN BUSINESS AND COMPANY LAW IN TANZANIA
(i) The Law of Contract Act, CHAP. 345 (RE: 2002)
(ii) The Company Act, of 2002
(iii) Agreements or contracts between the parties concerned
(iv) Customary Laws
(v) The Constitution of United Republic of Tanzania, of 1977
(vi) The Fair Competition Act, CHAP. 285 (RE: 2002)
(vii) The Sales of Goods Act, CHAP. 214 (RE: 2002)
(viii) Financial Institutions Act,
(ix) Insurance Act,
(x) The Income Tax Act, of 2004, and etc.
THE ROLE OF CUSTOMARY, MUSLIM (ISLAMIC), INDIAN, OTHER FOREIGN AND LOCAL LAWS
(a) To govern personal matters by using personal laws of the people, e.g. customary law, and Islamic laws.
(b) Foreign laws are specifically used in case where there is a lacuna (gap) in our laws, or just to elucidate some point especially where such foreign law is in parimateria (similar) to/with ours.