CHAPTER ONE

INTRODUCTION TO LABOUR LAW

You should be familiar with the following areas

  • Concept of Labour Law
  • Historical Background of Labour Law
  • Classification of Labour Law
  • Sources of Labour Law
  • Function of Labour Law

1.1  CONCEPT OF LABOUR LAW

This course deals with the relationship between the employers on one hand employees on the other. It is a course of immense theoretical interest because of the great variety of regulative techniques it employs and because in the study of this subject one so frequently comes up against the question of what are the true limits of effective regulation by the law

1.1.1Meaning of Labour Law

Is body of laws administrative rulings and precedent which address the relationship between employer, employee and labour organization often dealing with issues of public law.

OR

Is that branch of law which is basically concerns with various aspects of master-servant and employer-employee relationship. It concerns with rights and obligation as workers union member and employer in workplace. Labour law gives special rights and obligations, also regulates how they can conduct themselves an contractual terms and how they can enforce their rights.

1.2 CLASSIFICATION OF LABOUR LAW

Labour law can be divided into two

  • Substantive labour Law
  • Procedural labour Law

1.2.1 Substantive Labour Law

This is that branch of labour law that prescribes the standard  to be observed by both employer and employee. Example contract for service, termination of contract. Those provided under Employment and Labour Relation Act (Act No.6 of 2004).

1.2.2 Procedural Labour Law 

This that branch of labour law that prescribe procedure to be followed in all labour matter. This is done by providing for institutions for implementation of the substantive standards and enforcement of rights. This is provided for by the labour institutions Act No.7 of 2004 and the specific rules issued in 2007.

1.3 HISTORICAL BACKGROUND OF LABOUR LAW IN TANZANIA

1.3.1 Pre Colonial

The history traces back its origin from slave mode of production. During this mode a slave was used as tool of production, and slave master owned slave who owned their labour power. Slave and their families had no right s whatsoever because their considered as lower class. The laws which regulate them were penal laws, not civil laws, thus they were no contract of employment the law gave the position of slave on inform position. The relation of production changed during the feudal mode of production. There were classes of feudal lords and tenants, where labour were exploited in various ways: taxes, forced labour and labour in kind and payment of law wages.

The introduction of industrial and growth of industries during capitalism mode changed the relations of production. The introduction of cash economy lead to the introduction of law of contract, banking, sale of goods e.t.c. With theses developments there emerged “freedom of contract” where by workers/laborers were left free to sale their labour in exchange with wages. This paved the way for development of wage labour and employment contracts.

1.3.2 Colonial Era

During colonial era, when Capitalism was at its apex capitalist had to extend by capitalist powers colonizing other territories. The subject of colonialism were subjected the laws and traditions of colonialist governing employment relations.

During the German rule, “land alienation” policy was adopted. This was aimed at depriving the peasants of their major means production by parting them the essential means of livehood.The administration did not just end in depriving their subjects of their land, they went on and imposed various forms of taxes which were enforced by corporal punishment for the defaulters. Forced labour was another means of acquiring the labour force during the German colonial rule.

During British, an exploitative employment culture was developed to get the native to work in plantations, mines and processing industries. Forms of labour were developed;

  • Communal labour
  • Tax defaulters
  • Conscription labour

The various legislations were passed to curter for this;

  • The Master and Native Servants Ordinance Cap 29 No.32 of 1923
  • The Minimum Wages Ordinance e.t.c

By 1946 necessary labour laws were enacted to implement the colonial labour legacy. These laws supported a forced labour regime commonly known as “Manamba”. The sruggle for independence and International Labour Organization’s (ILO) initiative to eliminate forced labour made a major contribution to change of labour relations by improving it.

  • In 1955 the Employment Ordinance No. 47 Cap 366 of 1955 was enacted to put the labour regime in line with the ILO conventions for the welfare of employees.
  • The Factories Ordinance Cap 297
  • The workman’s Compensation Ordinance Cap 263
  • The Accidents and Occupation Diseases (Notification) Ordinance Cap 330
  • The regulation of wages  and Terms of Employment Ordinance Cap 300
  • Trade Unions Act Cap 387

1.3.3 During and after Independence

This can be categorized into two phases

1.3.3.1 The 1961-2004

A number of piece of Legislations existed during this phase

  • Employment Ordinance No. 47 of 1955 Cap 366
  • This was an Act to consolidate the law relating to labour and to regulated conditions of employment for employers and employees
  • This was renamed to the Employment Act in 2002 it dealt with all substantive and procedural matters concerning employment relations
  • It came into force in February 1957
  • The security of Employment Act No. 62 of 1964 Cap 387
  • This was an Act to provide for the establishment of Workers Commitees in certain businesses and undertakings, to restrict the powers of employers, business and employees summarily and otherwise in relation to the discipline of employees, to provide for the payment of additional compensation on the occasion of the termination of employment except in specified circumstances.
  • This was the first labour legislation to be legislated by the union parliament. In a nutshell it provided for security of employment for workers, by limiting the powers of employers to dismiss employees at their will more or less the colonial legacy.
  • The Industrial Court of Tanzania Act No. 41 of 1967 Cap 60 (The Permanent Labour Tribunal Act);
  • This was an Act to establish an industrial Court of Tanzania and to make provision for the settlement of trade disputes by negation, conciliation and reference to the industrial Court, and to provide for related matters.
  • This law created the machinery for settlement of collective industrial disputes  i.e between an employer and a group of employees. These disputes were referred to as trade disputes
  • These disputes concerned conditions of work, terms of employment
  • Trade Union Act No.10 of 1998 Cap 244
  • This was a piece of legislation to curter for trade unions. These were defined to mean association of either employers or employees. Among other things the Act gocerned;
  • The registration and de-registrations of Trade unions]
  • Their functions
  • And general affairs
  • Severance Allowance Act No.57 1962 Cap 386

The preamble Act provided that this was an Act provide for the payment of allowances to employees on the termination of their employment in certain circumstances.

  • The National Union of Tanganyika Workers (Establishment) Act Act. 18  of 1964
  • The secretary General of NUTA was also the Minister responsible for labour, in this case serious struggle for workers right was technically impossible. The trade union was turned into a mass organization of the ruling party.
  • Jumuiya ya Wafanyakazi was Tanzania Act of 1979

With coming into power of Chama cha Mapinduzi (CCM) NUTA was reduced to one of the mass organizations of the ruling party and was renamed Jumuiya ya Wafanyakazi Tanzania (JUWATA) which was established though the Jumuiya ya Wafanyakazi wa Tanzania Act of 1979.

  • In 1991 the was an attempt to de-link trade union from the party by the formation of the Organisation of Tanzania Trade Unions (OTTU), this did not however lead to a new free trade union.
  • OTTU still strong allegiance to the party and the government. The law establishing OTTU gave the Register of Societies the power to deregister it at any time this was provided by s. 9 of the Organisation of Tanzania Trade Unions Act no. 20 of 1991. This Act received much criticism especially from the Nyalali Commission which critised it as limiting the right to organize freely by prohibiting the right to strikes. According to the commission OTTU could not simply be said to be a Trade Union. The commission recommended the re-examination of this law and many other laws.
  • The ELRA curter for the right to Strikes and lock outs. This provided for by part VII of the Act.

1.3.3.2 2004-to date

This phase consists of new Labour legislations namely;

  • The Employment and Labour Relations Act No.6 2004 which was passed as law in the parliament on the 14th April 2004 and assented on the 6th day of june 2004.
  • It is the legislation to make provisions for core labour rights. To establish basic employment standards, to provide for framework for collective bargaining, provide for the prevention and settlement of disputes and to provide for related matters
  • This law provides for both the substantive and procedural matters regarding labour law
  • It repeals all other old labour laws as provide for by the 2nd schedule to the Act that is made under s.103 of the Act
  • This law did not come into force immediately, it came into force on 5th January by G.N No. 1 of 2007
  • The Labour Institutions Act No.7 of 2004; which was passed as law on the 15th day of April 2004 and was assented on the 6th day of june 2004.
  • This act is enacted to establish the labour institutions and provide for the functions, powers and duties of institute ions these institutions includes the Commissions for Mediation and Arbitration (CMA) and Labour Court which are established by part III and VII of the LIA respectively.
  • The Employment and Labour relations (Code of Good Practice) Rules, 2007 which came into force by GN no. 42 of 16th February 2007
  • These rules are made under s. 99 (1) of ELRA
  • These rules to provide for standard of conduct of both the employers the employees and the organizations, mediators, arbitrators, judges, assessors and government officials.
  • The Labour Institutions (Mediation and Arbitration) Rules 2007, GN no. 64 of 23rd March 2007
  • These rules made under s. 15(1)(e) of Act No. 7 of 2004
  • These rules point out the procedures to be followed in mediation and arbitration for arbitrators, mediators and the parties and all those involved in arbitration
  • The Employment and Labour Relations (Forms), Rules 2007, GN 65, of 23rd March 2007.
  • These forms are made under ss 48,50,52,61,64,67,86 and 98 of Act No.6 of 2004
  • These are forms used for various purposes such as the process of dispute settlement
  • They are standard forms that are aimed at simplifying the procedures.
  • The Labour Institution (Ethics and Code of Conduct for Mediators and Arbitrators), Rules, 2007, GN no. 66 of 23rd March 2007
  • These are made under s 15(1)(g) and 19(4) of Act no.7 of 2004
  • These provide for ethics to be abided by mediators and arbitrators in the conduct of their duties
  • It gives the do’s and don’ts of Arbitrators and Mediators in their professional capacity.
  • The Labour Institution (Mediators and Arbitrators Guidelines), Rules, 2007, GN no. 67 of 23rd March 2007
  • These guidelines are made under s 15(1) (f) of Act No 6 of 2004
  • These are aimed at helping arbitrators and mediators in the exercise of their functions and powers

1.4 SOURCES OF LABOUR LAW

(a) The Constitution of United Republic of Tanzania, 1977 (Cap 2 as amended from time to time)

The Constitution provides for the right to work and th right to fruits to one’s labour, art 11,122 and 23 respectively.

(b) The Statutes/Legislation 

It includes both principal and subsidiary legislations E.g. The Employment and Labour Relations Act No.6 of 2004 (ELRA), The Labour Institutions Act No.7 of 2004 etc.

  • Subsidiary Legislations: The Labour Institution (Mediators and Arbitrators Guidelines), Rules, 2007, GN no. 67 of 23rd March 2007, The Labour Institution (Ethics and Code of Conduct for Mediators and Arbitrators), Rules, 2007, GN no. 66 of 23rd March 2007, The Labour Institutions (Mediation and Arbitration) Rules 2007, GN no. 64 of 23rd March 2007, The Employment and Labour Relations (Forms), Rules 2007, GN 65, of 23rd March 2007 e.tc

(d) Case Laws

These lay down principals by providing necessary precedents for courts to follow and fill the gaps left by statutes.

(e) The International Conventions and Agreements

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

(f) Books and Writings

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

1.5 FUNCTIONS OF LABOUR LAW

(a) The Protection of employees, this is done though

  • Limiting the powers of employer to dismiss employees or terminate employment at his will without just cause.
  • Regulating the wages to be paid by maintaining financial capacity of employees
  • By regulating conditions for work though providing for rest days and leave and hours of work and matters incidental to standard of work
  • By providing for case and welfare of employees

(b) Balancing conflicts of interest as between employers and amployees. By defining their rights and duties and regulating their conduct

(c) It helps in resolving industrial disputes by establishing a special institution which has the duty and power to enforce rights and duties under labour law

(d) Helps in increasing production of goods and provision of social services. This done by maintain industrial peace. 2Pi4zm�ppO��