LABOUR LAWS

INTRODUCT
ION

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Introduction
Labour law deals with the relationship between
the employer and the employee or master and
servant relationship.
The law regulates the relationship between the
user of labour and the supplier of labour.
The law doe not confine itself on master and
servant relationship but it goes further by dealing
with other incidents arising out of master-servant
relationship e.g. workers organisation

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A major concern of labour law is labour
power i.e. a capacity or skills of a person to
work.
Another concern is the relationship between
labour and capital; here capital means
employer and labour means employee.
For the labour laws to apply there must be a
contract of service as opposed to contract for
service

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 For wage labour to exist there must be at least two social
groups:
 A group which has nothing to live on except through the sale of
something i.e. ability to work. This group must also be free to
sell that ability to work
 A group which is in position of owning or controlling the means
of production
 So wage labour arises when the producer is separated from
the means of production. The effect of this separation
varies from society to society depending on the form of
ownership of the major means of production, production
system and distribution of material wealth.

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At an individual level the law takes the view that
the contract of employment is like any other
contract, namely a legally binding agreement that
two equal parties have voluntarily entered into.
 At a collective level workers and employers have
banded together into trade unions and employers’
association in order, partly, to give themselves
greater bargaining power with each other.

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Origin
After the First World War there was the
considerable increase of the cost of living.
This in turn made the owners of industries to
devote their sole attention to the
maintenance of machines and the
improvements of the technical know- how to
the utter neglect of the workers rights.
Workers were available in the large number
and could be replaced in no time.

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In that epoch, the employers did not care of
socio-economic welfare of employees thus the
opposing interest was overweighed by the side of
employers as they had hegemony on the contract
of service.
The governments and the courts did not
intervene to balance the opposing interests which
prevailed hitherto because there was the policy of
non – interference in employer and employee
relation.

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As the time went on the government started to
intervene the relationship between the employer
and the employee.
The government imposed the conditions on the
employers to improve the labour conditions of the
employees.
This was achieved by the enactment of the labour
legislation which balance the opposing interests
between employer and employee.
In Tanzania the labour laws, mainly the Acts of
parliament and other sources of law, have
reiterated the balancing of interests between the
two sides.
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Overview of the old labour law
The development of labour laws in Tanzania has a
long history.
The Employment Ordinance was enacted in 1955
and came into force in the year 1957.
Other legislations were enacted after
independence and these included;
 the Security of Employment Act, Act No 62of 1964
 the Industrial Court of Tanzania Act, Act No 41 of 1967.

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The Employment Act, CAP 366 of the Laws of
Tanganyika
The Employment Ordinance was essentially
enacted to deal with;
Employees and employers’ rights and
obligations.
Also established some institutional personnel to
deal with interpretation of various matters under
contract of employment. (section 130 of the
ordinance).
The procedures were provided for under Part XI of
the Ordinance.
The Employment Ordinance, which was later
referred to as the Employment Act (EA) provided
for oral and written contract of employment.
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The Security of Employment Act, (Cap 387 R.E
2002)
Security of Employment Act (SEA) provided, inter
alia, for a labour grievance settlement procedure
which restricted the powers of the employers to
dismiss summarily or to take any disciplinary
action against employees.
The restriction was to the extent that the
employer could only impose a disciplinary penalty
for a proven disciplinary offence within the
meaning of the law.
The SEA therefore, among others, dealt with
cases of summary dismissal or intended summary
dismissal for the employee alleged to have
breached the disciplinary code.
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Section 23(1) of the SEA required the employee to
refer the matter to the Conciliation Board within 14
days from the statement of summary dismissal or
notice of intention to dismiss him summarily.
The process could be resolved by the Conciliation
Board or could be resolved by the Minister and the
decision of the Minister was final and conclusive.
[Section 26 of the SEA]
 Both the Board and the Minister have powers of re
instatement, re engagement. [Section 24 (1) of the SEA]
NOTE: The Disciplinary Code was annexed to the
second schedule to the Security of Employment Act.

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The Industrial Court of Tanzania Act, Cap (Cap 60
R.E 2002)
The Industrial Court of Tanzania Act was
essentially enacted to deal with trade disputes-
section 4 (1) of the Act.
These disputes were reported to the
Commissioner by notice in writing given either by
or on behalf of the employees, as a case may be,
by a general secretary of a trade union of which
the employee are members.
Section 3 of the Act defined ''trade dispute'' as
any dispute between an employer and employees
in the employment of that employer connected
with the employment or non-employment, or the
terms of the employment, or with the conditions
of labour, of any of those employees.
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 In 1990 amendment of the Act which added section 4 (1)
(A) which allowed;
 employees who were not employees within the meaning
assigned to that term by the Security of Employment Act;
 an employee who is not the member of the trade union;
 And employee though a member of the registered trade union,
is not supported by the field branch in the dispute with the
employer;
 to institute before the court the trade dispute between him
and his employer, either in person or by advocate.
 Unlike in the SEA, casual employees were also covered by
the Industrial Court of Tanzania Act.

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Why new labour laws
Employees and employers faced problems in the
time of disputes; for instance the disputes which
were resolved under the regime of the
Employment Ordinance were resolved by
invoking the rules of adversarial dispute
resolution.
Although Section 134 (3) of the Employment
Ordinance required the magistrate to hear and
determine such proceedings according to
substantive justice without undue regard to the
technicalities of procedure envisaged by the Civil
Procedure Code-such requirement was not
strictly followed.
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Over the years, the rationale behind these
provisions, which was to simplify and expedite
employment proceedings, were undermined as
courts, prompted by employers’ advocates,
tended to follow civil procedure strictly.
Another problem was associated with the error of
jurisdiction where the employees used to fail
which court/tribunal they should take their
disputes when they were in disputes with the
employers.

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Other problems were summarized by the task
force formed to review the then labour laws. (See
Cornel K. Mtaki, the New Labour Laws in
Tanzania: Implications for Employers,
Employees and the Economy. Paper presented
at a Policy Dialogue Seminar on New Labour
Laws in Tanzania at the Conference Hall of the
Economic and Social Research Foundation, 12th
September, 2005)
They were categorised into internal and external

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Conclusion
 All these factors necessitated the enactment of the new
labour laws which would provide for the effective
regulation of the relationship between employer and
employee which reflects the achieved external and internal
changes in the labour market.
 The laws were required to enhance cohesion between the
parties to the contract of employment and further to
address national, regional and global economic changes
which were said to have affected employment laws.
 The Employment and Labour Relations Act 2004 and
Labour Institutions Act 2004] were then enacted. In as far
as dispute resolution the Acts introduced the method of
resolving labour disputes by way of mediation, arbitration
and adjudication.

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Individual and collective labour law
The relationship in the workplace can be divided
into two broad categories.
There is an individual relationship between an
employer and an employee.
This is usually called individual relationship
because it relates to the employee as an
individual.
Individual labour law focuses on the relationship
between the employer and the individual
employee.

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This includes the contract of employment
that is concluded by an employer and a single
person.
Employment contract can not be concluded
by a group of people on behalf of any
individual: the conclusion and the termination
of contracts are aspects of individual labour
law.

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In the relationship between the employer and
the individual employee, the employment
relationship and the termination of the
contract of employment are vitally important
aspects.

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The relationship between employers, employers’
organisation, trade unions and trade union
federations are called collective relationships,
because they are relationships between collective
entities or groups.
Collective labour law concentrates on matters
such as collective bargaining between employers
and trade unions as well as strikes and loc outs (a
strike is normally a collective action taken by a
number of employees for a work-related
purpose).

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There is no watertight distinction between
collective labour law and individual labour law.
Actions by collective entities may impact on
individual relationship: a wage agreement
concluded between an employer and a trade
union may determine the amount of remuneration
to which an employee will be entitled, even
though the employee did not conclude that
agreement (it was concluded on behalf of the
employee by the trade union).

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Actions that belong in the sphere of the
individual relationship may have consequences
on a collective level: the dismissal of an employee
may lead to a grievance, and the trade union may
place collective pressure on the employer to
address that grievance.
When an employer contemplating disciplining a
trade union representative, for example, the
employer is required to inform and consult with
the trade union before taking any disciplinary
steps against the representative (shop steward).

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Who is an employee under our labour laws?
Section 4 of the ELRA defines employee as an
individual who- has entered into a contract of
employment; or has entered into any other
contract under which-
 (i) the individual undertakes to work personally for the
other party to the contract; and
 (ii) the other party is not a client or customer of any
profession, business, or undertaking carried on by the
individual; or a person who is deemed to be an employee
by the Minister under section 98(3).

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According to section 98 (3) of the ELRA the
Minister, after consultation with the Council,
may, by notice in the Gazette, deem any
category of persons to be employees for the
purposes of this section, any provisions of this
Act or any other written law in respect of
which the Minister is responsible.

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Section 4 of the ELRA defines council to
mean the Labour, Economic and Social
Council (LESCO) established under section 3
of the Labour Institutions Act, 2004.

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Who is an employer under our labour laws?
Section 4 of the ELRA defines an employer as
any person, including the Government and an
executive agency, who employs an employee
is the employer.

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Understanding of employer’s association and
trade union (s. 4 of ELRA)
Employer’s association is any number of
employers associated together for the purpose,
whether by itself or with other purposes, of
regulating relations between employers and their
employers' or the trade unions representing
those employees.
Trade union means any number of employees
associated together for the purpose, whether by
itself or with other purposes, of regulating
relations between employees and their employers
or the employers' associations to which the
employers belong.

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Functions of labour law
The major function of labour law is the protection
of the employees
 a) By restricting the powers of the employer to dismiss
employees or to terminate employment: See s 37 of the
ELRA 2004 which deals with unfair termination
 b) By regulating the wage to be paid to workers and
hence maintaining the financial capacity of the employee
SS 26-28 of the ELRA 2004 and PART V of the Labour
Institutions Act 2004

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c) By regulating conditions of work or
employment for example it provides for rest
hours, rest days etc: See part III sub part B of
the ELRA
d) By providing for care and welfare of
the employee such as repatriation of the
employee, subsistence allowance, etc
e) By providing the pension and other
terminal benefits after retirement

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Labour law helps to balance conflicts of
interests as between employer and the
employee
Labour law helps to dissolve industrial
disputes
 Labour law helps to maintain industrial
peace by maintaining good relationship
between employers and employees.

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Sources of labour law
a) Constitution
b) Statutes
c) Case law
d) Received law
e) International instruments
f) Collective agreements

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Constitution
 A supreme law of the country
 Is a written law as it was enacted by
Constituent Assembly in 1977.
 All laws must conform to it otherwise may be
declared null and void.
Article 22 (1) states that every person has a
right to work and as far as remuneration is
concerned article 23 (1) & (2) is very clear to
that effect

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Statutes
Statutes may be principal Legislation
and subsidiary legislation.
Principal legislation include;
 all Acts enacted by the parliament of Tanzania and
its predecessors
 All Acts enacted by the East African Community
and its predecessors
 All Applied UK and India Acts extended to
Tanganyika

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 The most part of labour law in this country is codified in the
statutes; these statutes are divided in Principal legislation
and subsidiary legislation
 Examples of principle legislation are
 the Employment and Labour Relations Act 2004 (Act No.
6 of 2004)
 the Labour Institutions Act, 2004 (Act No. 7 of 2004)
 the Occupational Healthy and safety Act, 2003 (Act No 5
of 2003)
 the Workers’ Compensation Act, 2008 (Act No 20 of
2008
 the Public Service Act, 2002 (Act N o. 8 of 2002

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Examples of subsidiary legislation
the Employment and Labour Relations (Code of
Good Practice) Rules, 2007 [Government
Notice No 42 of 16th February 2007]
the Labour Institutions (Mediation and
Arbitration) Rules, 2007 [government Notice
No. 64 of 23rd March 2007]
the employment and Labour Relations (Forms)
Rules, 2007 [Government Notice 65 of 23rd
March 2007]

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 the Labour Institutions and Code of Conduct for
Mediators and Arbitrators Rules 2007, [Government
Notice No. 66 of 23rd March 2007]
 The Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 [Government Notice No 67 of
23rd March, 2007)
 The Public Service Regulations, 2003 (Government
Notice No 168 of 20th June 2003)
 The Public Service Scheme (Government Notice No 169
of 20th June 2003 )

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Case Law
 Judicial precedents/pronouncements of superior courts
 Application depends on the common law doctrine of stare
decisis and doctrine of precedent
 Simply meaning a judge is bound by the decision of his
predecessor
 The doctrine is fundamental in the process of judicial
law making in East Africa
 Decisions of superior courts in our country are binding
upon courts subordinate to them
 Superior court in Tanzania are Court of Appeal and High
Court.
Example of a case law;
Kitundu Sisal Estate V Shingo Mshuti And Others (1970)
HCD 243 the case defined summary dismissal to mean
termination of contract of service without notice.

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The decision of the Court of Appeal bind
subordinate courts and tribunals regardless
of its correctness
 See JUWATA v KIUTA [1988] TLR 146

The decisions of the High Court bind all

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Received Laws
 The Tanganyika Order in Council, 1920 (22 July,
1920) received English common law, doctrines
of equity and statutes of general application in
its article 17 (2) [the reception clause]
 The Judicature and Application of Laws
Ordinance, 1961 retained the application of
such laws in our country under section 2(2)
 After the coming into force of Revised Edition of
Laws of Tanzania JALO was renamed the Judicature
and Application of Laws Act, (Cap 358 R.E
2002) and the reception clause can be seen in
section 2(3)

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Later after the enactment of the Revised
Laws the same is reflected under section 2 (3)
of the Judicature and Application of Laws Act,
(Cap 358 R.E 2002).
Received Laws help as sources of Labour Law
in Tanzania particularly where there is a
Lacuna in our laws.

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International and Regional Conventions
Through a large number of conventions and
recommendations, the ILO has built up a set of
principles which regulate a large number of
labour matters. There are different ways in which
the provisions of the convention or
recommendation of ILO can play a role in labour
law.
This has, for example, happened in Tanzania’s
case with the adoption of the ELRA which seeks
to give effect to ILO instrument dealing with
freedom of association and unfair dismissal.

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 Another way is when a court, faced with a
labour dispute in absence of clear principles
to guide it, decides to look for guidance to
the principles contained in the Conventions
and Recommendations of the ILO.

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Collective Agreement
Collective agreements are written agreements
concluded by an employer and a trade union. If a
collective agreement has been concluded and
since the same are recognised by the ELRA
therefore these instruments are of pivotal
importance in determining what terms and
conditions of employment apply to an employee.
An employee’s remuneration, working hours,
leave and other terms and conditions of
employment may be regulated in a collective
agreement

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The nature of employment contract
A contract of employment is created like any
other contract and may be made orally or in
writing (or in any combination) and will be found
in a mixture of express and implied terms.
It is the cornerstone of the employment
relationship.
The contract of employment outlines many of
the rights and obligations of the employment
relationship.
Further, it provides the basis on which the
structure of statutory protection is built.

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Statutory protections provide a floor of employment
rights.
But in many cases they are conditional on the
existence of a contract of employment (rather than,
for example, on a contract for services).
Further, their operation depends on contractual
notions such as contractual termination (dismissal)
and can be blocked by contractual concepts such as
frustration.
In Tanzania the statutory regulation of contract of
employment is made by the Employment and Labour
Relations Act, 2004 (Act No 6 of 2004), the Labour
Institutions Act, 2004 (Act No 7 of 2004) and the
Public Service Act, 2002 (Act No 8 of 2002).
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Contract of work vs Contract of
Employment
 There have been problems as in the distinction between
contract of service and contract for service; while the
former is the relationship between the employer and
employee the latter involves the relationship between the
employer and independent contractor.
 Drawing a distinction between the two types of contract is
of fundamental importance for the following reasons:
1. Protection against unfair dismissal;
2. entitlement to redundancy payment;
3. income tax matters;
4. entitlement to social security benefits; and
5. matters of vicarious liability.

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Distinction between the contract of service and
the contract for service
In distinguishing between the contract of
service and the contract for services there
have been tests which have endeavoured to
make a clear distinction between the two.
They include
i) Control test
ii) Organisational test
iii) Multiple/Dominant impression test

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Control Test
In the case of Stevenson Jordans and
Harrison Ltd v Macdonald and Evans
[1952] 1 TLR 101 Lord Justice Denning at pp
110-111 stated;
It raises the troublesome question of
distinction between a contract of service and a
contract for services. The test usually applied
is whether the employer has the right to
control the manner of doing work.

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In Collins v Herts County Council Mr
Justice Hilbery said;
“The distinction between the contract
for service and a contract of service can
be summarised in this way: In one case
the master can order or require what is
to be done while in the other case he
cannot only order what is to be done but
how it shall be done”.

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Control test
Indicators of the extent of control the employer
has over the employee were reiterated in the case
ofGould v Minister of National Insurance and
Another (1951) ALL E.R 368 at 371 to include;
 the master’s power of selection of his
servant
 the payment of wages and other
remuneration
 the master’s right to control the method of
doing the work
 the master’s right of suspension or dismissal

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Control test is not always easy to apply as it was
observed in the case of Walker v. Crystal Palace
(1910) 1 KB 87
In this case a professional footballer was held to
have a contract of service with the club. He was
paid 3.50 pounds per week for a year contract, in
which he was supposed to provide his playing
services exclusively to Crystal Palace Football Club.
He was given detailed rules about training and
under whose direction he was during training.

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He was also expected to be available for
training and matches.
The club argued that he did not have a
contract of service because, it asserted, it
was essential that in such a relationship the
master should have the power to direct how
work should be done.

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The case of Yewens v. Noakes (1880) 6QD 530
at p 532 was cited where Bramwell J had defined
a servant as
 A person subject to the command of his master as to the
manner in which he shall do his work
It was argued that this definition should not be
applicable to a professional footballer who was
hired to display their talents and skills.
The control of the club is limited to deciding
whether the player is picked for the team or not.

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 Farewell J dismissed the argument on the basis
that many workmen display their own initiative,
like footballer, but were still bound by the
directions of their master.
In this case the player had agreed to follow
detailed training instructions and to obey his
captain’s instructions on the field.
“I can not doubt that he is bound to obey any
directions which the captain, as the delegate of
the club, may give him during the course of the
game – that is to say, any directions that is
within the terms of his employment as a
football player.”
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The control exercise need not be done directly.
If the employer has influence on the manner the
third party controls its employees, the employer
may find itself in troubles.
 In Motorola Ltd V Davidson & Melville Craig Group
Ltd [2001] IRLR 4;
 An individual was engaged by an agency to work at
Motorola’s premises. The individual was dismissed by
the agency at the request of the company. The level of
the control, even though exercised by a third party, was
sufficient to establish an employment relationship
between the company and individual.

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Organizational Test
This is sometimes termed as “Integration
test”
Sometimes it is difficult to establish
categorically the nature of employment
relationship just by looking on control test.
Some of employees, because of their
professional skills, the employer cannot be
said to be controlling each and every
conducts of such employees.

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In the case of Cassidy v Ministry of Health,
Lord Justice Somervell pointed out that there
are many contracts of service where the master
cannot control the manner in which the work is
to be done as in the case of captain of ship.
Lord Justice further stated that under the
contract of service a man is employed as part of
the business whereas under the contract for
services his work although done for the business
is not integrated to it but only accessory to it.

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In the case of Stevenson Jordans and
Harrison Ltd v Macdonald and Evans
[1952] 1 TLR 101 Lord Justice Denning
when he was trying to distinguish
between the contract for service and
contract of services stated that in the
contract of service a man is employed as
part of the business and his work is done
as an integral part of the business.

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A good example of a situation where an
organizational test can easily be tested is in
Hospital workplace.
◦ It is hard to see how the hospital management can
exercise control over doctors who is in surgical
room.
◦ The only visible possibility of control here is in
selection process other than in operation.
◦ However, it has to be distinguished here between a
doctor who has been hired as an expert for a certain
specific task (Independent contractor) and one who
is employed as an employee.

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Multiple/Dominant
impression test
The emergence of organisational test did not
automatically wither away the control test,
there are situations in which the courts are
faced with cases in which they fail to apply
either of the two tests to solve them.
This has led to the formulation of another test
i.e. multiple test. According to labour law
scholars they argue that multiple test means
the use of common senses.
The test is the combination of the control test
and organisational test.

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Several factors are considered under multiple
test in order to draw a distinction between
contract of service and contract for service.
These are like;
◦ The power of selection of employee by the employer
◦ The payment of wages by the employer
◦ National insurance stamps
◦ Income tax
◦ Holiday monies and pensions; and
◦ The power to suspend and dismiss

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This test was propounded by Lord Wright in the
case of Young v Montreal Locomotive Works
[1974] 1 DLR 161 at 169 where he stated that;
 In many cases the question can only be settled by
examining the whole of the various elements which
constitute the relationship between the parties.
At your own time read the case of;
◦ DPP V ELIATOSHA MOSHA & ANOTHER [1984] TLR 28
◦ Janeth Febbs v. TBC, High Court of Tanzania (Labour
Division of the High Court) Labour Revision No 287 of
2008 (Unreported)

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Reflection under the Statute
S.61 of the LIA (Act. No. 7 of 2004) sets
presumptions of who is an employee. The
factors considered are;
◦ The manner in which the person works is subject to the
control or direction of another person;
◦ The person’s hours of work are subject to the control or
direction of another person;
◦ In the case of a person who works for an organisation, the
person is a part of that organisation;
◦ The person has worked for that other person for an
average of at least 45 hours per month over the last three
months;

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◦ The person is economically dependent on the
other person for whom that person works or
renders services;
◦ The person is provided with tools of trade or work
equipment by the other person; or
◦ The person only works for or renders services to
one person
See the definition of who is an employee
under s.4 and 98(3) of ELRA, 2004.
The definition of an employer is provided
under s.4 of ELRA.
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In the case of Janeth Febbs v. TBC, in the
High Court of Tanzania (Labour Division of
the High Court) Labour Revision No 287 of
2008 (Unreported)
The court held that; the applicant was not the
employee as she was never
recruited/employed nor there is any contract
of employment entered between the parties.
As on the presumption as per section 61 of the LIA the
court found that there was no evidence to show that
she was working under direct control of the
respondent or part of the organisation.

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To qualify under that section, the court added
she ought to have shown things like;
terms of work, attendance register, monthly
salary, schedule of work etc.
The applicant used her own equipment of
work i.e. the camera she used was hers thus
she could not be presumed as an employee as
per section 61 of the LIA.

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Summary of the difference btn
the two contracts
Contract of employment Contract of Work
The object of the The object of the
contract of service is the contract of work is the
rendering of personal performance of a certain
services by the employee specified work or the
to the employer. The production of a certain
services are the object of specified result.
the contract. An independent
An employee rendering Contractor is not obliged
personal services to work personally. He
may hire other persons.

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Contract of employment Contract of work
Services to be rendered The independent
in terms of a contract of contractor is bound to
service are at the perform a certain
disposal of the employer specified work or
who may in his own produce a certain
discretion subject, of specified result within a
course, to questions of time fixed by the
repudiation decide contract of work or
whether or not he wants within a reasonable time
to have them rendered. where no time has been
specified.
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Contract of employment
 The employee is Contract of work
subordinate to the will of The independent
the employer. He is
contractor, however, is
obliged to obey the lawful
notionally on a footing of
commands, orders or
instructions of the
equality with the
employer who has the employer. He is bound to
right of supervising and produce in terms of his
controlling him by contract of work, not by
prescribing to him what the orders of the
work he has to do as well employer. He is not
as the manner in which it under the supervision or
has to be done. control of the employer.
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Contract of employment Contract of work
A contract of service is Whereas the death of the
terminated by the death parties to a contract of
of the employee. work does not
A contract of service necessarily terminate it.
terminates on expiration A contract of work
of the period of service terminates on
entered into. completion of the
specified work or on
production of the
specified result.”

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