INTRODUCTION
Peculiar features:
This subject deals with
the relationship between the employers on one hand and employees on the other.
It is a subject 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]
Ano
ther interesting thing in this subject is the use of special courts. It is argued that the use of specialised and industrial tribunals have been adopted because they are thought to be able to offer advantages of speed, informality and cheapness that normal courts cannot not provide.[1]
The approach to the subject is also remarkable. There are different approaches to labour law depending on the level of development. Thus, while in Tanzania the labour law is less developed in areas of organised labour, in the developed countries the principal purpose of labour law is to regulate, to support and to restrain the power of management and thepower of organised labour.[1] The field of organised labour is not as strong compared to the one found in developed countries.
The origin of this law should not be ignored. Modern, Tanzanian labour
law traces back to the colonial period. The main source of this branch of law
is statutory law although case law also has played but only a significant role
in the development of labour law in Tanzania.
This is not surprising because generally even in developed countries the
case law has played a minor role in formulating the labour laws. Explaining this situation, Kahn-Freund the
English writer argues that:-
“In the formulation of the rules which regulate the
relationship between employers and workers the Common Law has played a minor
role. The courts have had a small share in the evolution. … This is because the
rules and principles in which we are interested are designed to govern the
normal typical behaviour of the parties (ie. hours of work, length of overtime,
rates of wages etc.) which case law can only deal with pathological situations
…but rules needed in labour relations must work ex-ante, while case law operates ex-post.”[1]
In line with the above
view, one can learn that most of labour regulations come from enactments rather
than case law.
Thus the main labour statute of the colonial time was the Master and Native Servants Ordinance of 1929. This statute underwent various amendments before it was repealedand replaced by the Employment Act in 1955 (which came into force in 1957). Ever since, the Employment Act has been the main statute governing the relationship between employers and employees until today subject to several amendments effected to it from time to time. Other important statutes governing labour relations in Tanzania today include the Permanent Labour Tribunal Act of 1967 (the Industrial Court Act), the Security of Employment Act 1964, and the Workmen’s Compensation Act, Cap 263 to mention but a few.
Sources of Labour Law in Tanzania
A. Legislation:
Legislation of General
Character
1.
Conditions
of employment: The state through legislation takes interest in the conditions
under which the employees work. E.g. work place diseases, occupational
diseases, workplace hazards, injury and accidents in workplace. The
Workmen’s Compensation Act governs condition of employment in so far as
occupational diseases and accidents are concerned.
As regards terms of
employment it deals with holidays, leaves (annual leave, sick leaves,
overtimes). As regards wages it regulates the minimum wage which is to be just
enough to sustain a living. No employer can lawfully give lesser rights than
what the statutes indicate. That is to say that no employer is to contracts out
of statute. So a contract of employment must be read with statute.
2.
Workers
Organisations: These exist in the form of Trade Unions designed to foster
collective bargaining for the rights of the employees. The history of trade
unions in Tanzania may be summarised in the following sequence: TFL, NUTA,
JUWATA, OTTU etc. NUTA and JUWATA were the extensions of the ruling party.
Trade Unions Act no. 10 of 1998 repealed JUWATA and OTTU Acts and came to force
on 1/7/2000. It allows greater measure of independence of trade unions.
Legislation
which governs Public Service
2.
Public
Service (Negotiating Machinery) Act, 2003 (repeals the Civil Service
(negotiating machinery) Act 1962, the Local government (negotiating machinery)
Act 1982 )
3.
National
Defence Act of 1966.
The laws mentioned here govern
the employees who belong to more or less than what are called government
employees. In the past most parastatals organisations were substantially owned
by the government. Today the public parastatal’s service has become smaller and
smaller because of privatisation.
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