Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Republic of Tanzania (Ratification: 2000)

The Committee notes with interest the information contained in the Government’s first report as well as the text of the draft Bills on Employment and Labour Relations, Labour Institutions and Public Service (Negotiating Machinery). With regard to the mainland of the Republic, the Committee has confined its comments to the abovementioned Bills considering that they will be presented to Parliament shortly and will replace upon their adoption the current legislation, in particular, the Trade Unions Act, 1998 and the Industrial Court of Tanzania Act, 1967. With regard to Zanzibar, the Committee has based its comments on the Trade Unions Act, 2001 (TUA).

Article 2 of the Convention. Right of employers and workers to establish organizations of their own choosing without previous authorization. The Committee notes with interest that the provisions of the Employment and Labour Relations Bill eliminate the trade union monopoly established under section 15(2) of the Trade Unions Act.

The Committee would also like to draw the Government’s attention to the following points:

Prison guards and workers in the national service. The Committee notes that section 2(2)(c) and (e) of the draft Employment and Labour Relations Bill excludes from the scope of the legislation the prisons service and workers in the national service. The Committee recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e., the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee therefore requests the Government to review section 2(2)(c) of the draft Employment and Labour Relations Bill so that prison guards enjoy the right to establish and join organizations of their own choosing. With regard to workers in the national service, the Committee requests the Government to clarify the functions performed by these workers in order to determine whether they fall under the exceptions of Article 9.

Minimum membership. The Committee further notes that section 46(1)(d) of the draft Employment and Labour Relations Bill establishes an implicit minimum membership requirement of 30 workers which is higher than the current requirement of 20 members under section 8 of the Trade Unions Act. The Committee considers that a requirement of 30 employees may excessively restrict workers’ freedom to establish organizations of their own choosing. The Committee requests the Government to modify the provision of section 46(1)(d) so as to lower this requirement.

Zanzibar. The Committee notes that section 14(1) of the TUA establishes a minimum membership requirement of 50 workers for the establishment of their organizations. The Committee considers that this requirement is excessively high. The Committee also notes that according to section 14(3) of the TUA, the Minister has the discretion to grant registration regardless of the minimum membership requirement. The Committee considers that this provision confers to the Registrar a genuinely discretionary power to grant or reject a registration request and therefore amounts to a requirement of previous authorization (see General Survey, op. cit., paragraph 74). The Committee requests the Government to amend section 14(1) of the TUA so as to lower the minimum membership requirement and repeal section 14(3) of the TUA so as to bring its legislation in conformity with Article 2.

Membership limited to one trade union and to workers in the same occupation or branch of activity. Zanzibar. The Committee notes that according to section 21(1)(d) of the TUA, the Registrar may refuse to register a trade union if it consists of persons engaged at or working in more than one trade union or calling. The Committee notes that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of establishing and joining the corresponding trade unions. The Committee therefore requests the Government to amend this provision so as to enable workers engaged in more than one occupation to establish and join more than one trade union.

Recognition of the most representative trade union. Zanzibar. The Committee notes that section 54 of the TUA provides that where in respect of any workplace there is a dispute as to which trade union is the collective bargaining representative, the Minister shall issue a final decision. The Committee considers that legislation establishing the concept of the most representative trade union is not in itself contrary to the principle of freedom of association provided that certain conditions are met, in particular, that the determination of the most representative organization is based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse (see General Survey, op. cit., paragraph 97). The Committee therefore requests the Government to indicate in its next report the measures taken to establish objective, pre-established and precise criteria for the recognition of the most representative trade union.

Articles 2 and 7. Legal personality requirements. The Committee notes that the Bill does not clearly define the registration procedure and the applicable time limits for granting or denying registration and requests the Government to provide information concerning the specific time limits within which the registration procedure should be concluded.

Zanzibar. The Committee notes that section 24(1) of the TUA provides that no trade union or association shall perform any act in furtherance of the purposes for which it has been formed unless it has been registered. The Committee is of the opinion that trade unions should be able to exercise certain activities prior to registration. The Committee requests the Government to repeal this provision.

Moreover, the Committee notes that according to section 66(2)(c) of the TUA, the Minister may make Regulations on the manner in which trade unions and their constitution shall be registered. The Committee requests the Government to transmit any such regulations made.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules and elect their representatives. Zanzibar. The Committee observes from section 21(1)(d) of the TUA that the Registrar may refuse to register a trade union if its constitution does not contain suitable provisions for the protection and promotion of the trade union’s interests. The Committee considers that provisions which require an organization to deposit its rules or its constitution, should establish a mere formality and should not make the constitution subject to prior approval at the discretion of the public authorities (see General Survey, op. cit., paragraphs 70 and 109). The Committee emphasizes that it should be up to the workers, not the Registrar, to evaluate the suitability of the provisions of the Constitution for the protection of their professional interests. The Committee therefore requests the Government to consider repealing this provision.

The Committee further notes that section 29(1) of the TUA provides that all trade union officials (with the possible exception of the secretary under section 29(2)), shall be actually engaged in the industry or occupation with which that union is directly concerned. This rule may be deviated from only with the Registrar’s discretionary authority (section 29(3)). The Committee considers that such provisions infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties and it would be desirable in such cases to make legislation more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). The Committee requests the Government to amend sections 29(1) and (3) so as to allow more scope for workers in the election of their trade union officers without being dependent upon the Registrar’s discretionary authority.

The Committee also observes that according to section 29(4) of the TUA, no person shall hold the post of trade union secretary or treasurer if in the opinion of the Registrar he has not attained a standard of literacy sufficiently high as to enable him to perform his duties effectively. The Committee considers that this provision entails a risk of arbitrary interference by the Registrar in the election process of trade unions (see General Survey, op. cit., paragraph 115) and requests the Government to take the necessary measures for its repeal.

Right of employers’ and workers’ organizations to organize their administration and formulate their programmes. The Committee notes that section 52(2)(b) of the Employment and Labour Relations Bill requires every registered organization or federation to provide within 30 days of a request by the Registrar a written explanation of anything relating to its statement of membership, its auditor’s report or its financial statements. The Committee notes that although this provision represents a certain improvement in relation to sections 67, 68, 69 and 71 of the Trade Unions Act, which enabled the Registrar to request and inspect account books and members’ lists at any time, the authority of the Registrar is still excessively broad. The Committee recalls that supervision should be limited to exceptional cases (for example, to investigate a complaint, or if there have been allegations of embezzlement), and more generally if there is a presumption that there is an infringement of the law (see General Survey, op. cit., paragraph 125). The Committee requests the Government to consider modifying section 52(2)(b) of the Bill so that the Registrar may request written explanations only in exceptional cases when there are serious grounds for believing that the organization has infringed the law or at the request of the organization’s members.

Zanzibar. The Committee notes that section 42(2)(t) of the TUA which contains an exhaustive enumeration of the purposes for which trade union funds may be spent, provides that expenditure on any other object must be authorized by the Registrar. The Committee considers that this provision restricts excessively the freedom of trade unions to freely dispose of their property and funds, and gives the administrative authorities powers of permanent control over trade union activities (see General Survey, op. cit., paragraph 126). The Committee requests the Government to repeal this provision.

Noting that section 66(2)(b), (d), (e), (f) and (g) provides that the Minister may make regulations on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds, the Committee requests the Government to transmit any such regulations made.

The Committee further notes that section 45(1) of the TUA provides, inter alia, that every trade union treasurer shall render at any time to the Registrar an account of all moneys received and paid and of trade union property. The Committee considers that there are no sufficient safeguards against interference in the internal affairs of trade unions where an investigation can take place at any time and in the absence of a formal complaint (see General Survey, op. cit., paragraphs 125 and 126). The Committee requests the Government to amend section 45(1) of the TUA so as to eliminate the possibility for the Registrar to require an account of the financial situation of the union at any time.

The right to strike. The Committee notes with interest that upon adoption of the Employment and Labour Relations Bill, certain provisions of the Industrial Court of Tanzania Act, 1967 which considerably restricted the right to strike (compulsory arbitration at the discretion of the labour authorities, two-thirds majority for a successful strike ballot and heavy penalties in case of participation in an unlawful strike), will be repealed. The Committee also notes with interest that contrary to section 77(3) of the TUA, the Bill does not make reference to the law relating to riot, unlawful assembly, etc.

The Committee further notes however that meteorological services are listed among the essential services in section 77 of the Bill. The Committee considers that meteorological services are not essential services in the strict sense of the term, i.e., those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; rather than imposing an outright ban on strikes in these services, the authorities could establish a system of minimum service (see General Survey, op. cit., paragraphs 159 and 160). The Committee requests the Government to modify section 77 of the Bill so as to exclude the personnel of meteorological services from the list of essential services.

The Committee notes that Part 4 of the draft Labour Institutions Bill establishes an Essential Services Committee entrusted with designating essential services and determining disputes about whether or not an employee or employer is engaged in a designated essential service. The Committee also notes that according to section 77 of the draft Employment and Labour Relations Bill, the Essential Services Committee may designate an essential service after, inter alia, conducting an investigation and holding a public hearing on the matter, and shall publish a notice to that effect in the Gazette. The Committee requests the Government to keep it informed of any designations of essential services that the Essential Services Committee may make, once it has been established.

The Committee notes that sections 4 and 84 of the draft Employment and Labour Relations Bill allows for protest action, i.e., strikes in disputes that are not interests disputes. However, it appears from section 4 that such action is not lawful when it takes place in relation to a dispute "in respect of which there is a legal remedy". The Committee requests the Government to provide information on the scope of this provision and the type of action referred to for which there might be a legal remedy.

With regard to the right to strike in the public service, the Committee notes that section 22 of the draft Public Service (Negotiating Machinery) Bill prohibits strikes by "staff grade officers" which include, according to section 2(c) and (d), the head of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management. The Committee notes that the right to strike may be restricted for public employees only when they are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). All other persons employed by the Government, public enterprises or autonomous public institutions, including teaching staff or educational institution directors, should be able to exercise the right to strike. The Committee requests the Government to consider modifying section 22 so as to fully guarantee the right to strike of public employees not engaged in the administration of the State including head teachers/school directors.

The Committee also notes with regard to public employees’ right to strike that sections 12, 13(b), 15, 17(1) and (2) and 19 of the Public Service (Negotiating Machinery) Bill establish a system of compulsory arbitration at the discretion of the authorities concerning the conditions and terms of employment of operational public service employees (i.e., supporting staff not employed in the executive or officer grade) which effectively amounts to a prohibition of the right to strike. The Committee is of the opinion that compulsory arbitration at the initiative of the public authorities is acceptable only for public employees exercising authority in the name of the State (see General Survey, op. cit., paragraphs 153 and 158) and that the scope of the abovementioned provisions, which apply throughout the public service, is excessively wide. The Committee requests the Government to modify the above provisions, so as to ensure that restrictions on the right to strike in the public sector are limited to public servants exercising authority in the name of the State.

Zanzibar. The Committee notes that Part VIII of the TUA on Picketing and Intimidation provides in section 56, read in conjunction with section 55, inter alia, that it shall not be lawful for one or more persons acting on behalf of a trade union, to attend at or near a place where a person works for the purpose of persuading or inducing any person to abstain from working, if they attend in such number or manner as to be likely to intimidate any person, that is to say, to cause in the mind of that person a reasonable apprehension of injury to himself or to any member of his family or to any of his dependants or of violence or damage to any person or property. The Committee considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful and that the authorities should refrain from any interference which would restrict freedom of assembly except in cases of serious and imminent threats to public order (see General Survey, op. cit., paragraphs 35 and 174). The Committee requests the Government to provide information on any cases in which this provision has applied and any measures taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful.

The Committee requests the Government to provide any information on the manner in which the right to strike is ensured in Zanzibar.

Article 4. Dissolution and suspension. Zanzibar. The Committee notes that section 38(3) of the TUA provides that the High Court may appoint the Registrar as liquidator pursuant to the dissolution of a trade union. The Committee considers that the assets of dissolved trade unions should be used for the purposes for which they were acquired (see General Survey, op. cit., paragraph 186). The Committee therefore requests the Government to indicate the provisions which ensure that in exercising his functions as liquidator, the Registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired.

Article 5. The right of workers’ and employers’ organizations to establish federations and confederations of their own choosing. The Committee notes with interest that the draft Employment and Labour Relations Bill has eliminated the excessively long and detailed requirements for the registration of trade union federations established under the Trade Unions Act.

Zanzibar. Although it would appear implicitly from sections 2, 32 and 33 of the TUA that trade unions have the right to form federations and confederations of their own choosing, the Committee requests the Government to confirm that trade unions have the right to join federations and confederations in the form and manner deemed most appropriate by the workers concerned, as required by Article 5 of the Convention.