Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the Government’s reply to the 2009 comments made by the International Trade Union Confederation (ITUC), as well as the comments submitted by the ITUC in a communication dated 24 August 2010 concerning issues already raised by the Committee.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous comments, the Committee had requested the Government to amend section 2(1)(iii) of the Employment and Labour Relations Act No. 6 of 2004 (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing. The Committee notes that the Government indicates in its report that account will be taken of the Committee’s observations. The Committee hopes that the Government will take the necessary measures without delay to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing, and provide information on any progress made thereon in its next report.

In its previous comments, the Committee had requested the Government to provide information on the types of workers included in the category of the “national service” referred to in section 2(1)(iv) of the ELRA – which is excluded from the provisions of the ELRA – so that it may assess whether they qualify for the exceptions of Article 9 of the Convention. The Committee had noted that the Ministry of Labour, Employment and Youth Development was at a preparatory stage of formulating rules on the definition of the category of workers included in the national service. The Committee notes that the Government indicates in its report that as regards the national service, the rules and regulations for the implementation of the ELRA and the Labour Institutions Act are not yet finalized. The Committee recalls that only the armed forces and the police may be deprived of the rights provided in the Convention. The Committee requests the Government to take the necessary measures to ensure that these rules and regulations will be adopted in the near future, and to provide information thereon in its next report, as well as a copy of the regulations once adopted.

Right of workers and employers to establish organizations without previous authorization. In its previous observation, the Committee had noted that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period within which the registrar must either approve or refuse an organization’s application, and had requested the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration. The Committee notes that the Government reiterates in its report that the rules and regulations referred to above will address this matter. The Committee requests the Government to take the necessary measures to ensure that the rules and regulations will provide for a reasonable time period for the processing of applications for registration, and to provide information on any progress made thereon in its next report.

Article 3. Right of organizations freely to organize their activities and to formulate their programmes. In its previous observation, the Committee had noted that while sections 4 and 85 of the ELRA allow for protest action (i.e. strikes in disputes that are not interest disputes) under section 4, such action is not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy” which, according to the Government, refers to any dispute in which a party may apply for relief in any authority with competent jurisdiction. The Committee therefore requested the Government to amend section 4 of the ELRA so that restrictions on protest actions would be limited to a rights dispute. The Committee notes the Government’s indication in its report, that the Committee’s observations will be communicated to stakeholders for consultation. The Committee requests the Government to provide information on any progress made thereon in its next report.

Furthermore the Committee had requested the Government to amend section 76(3)(a) of the ELRA, which prohibits picketing in support of a strike or in opposition to a lawful lockout. The Committee notes the Government’s indication in its report that the Committee’s observations will be communicated to stakeholders for consultation. The Committee expects that, following consultations, due measures will be taken to amend section 76(3)(a) of the ELRA and requests the Government to provide information on any progress made thereon in its next report.

Public sector. In its previous observation, the Committee had requested the Government to modify the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector were limited to public servants exercising authority in the name of the State. The Committee notes that the Government indicates in its report that section 26(1) of the 2003 Act of the Parliament No. 19 (Public Service (Negotiating Machinery)) stipulates that “any public servant” may take part in a strike or lockout in the case of a subsisting dispute or complaint. The Committee further notes that section 26(2) provides, as conditions to be satisfied to take part in a strike, that: (i) a ballot strike has to be conducted under the supervision of the labour officer and the majority of the public servants of the respective service scheme has to support the strike; and (ii) a 60 days’ notice has to be served to the Government counting from the date on which the ballot was cast. The Committee considers that the supervision by the administrative authority of the strike ballot constitutes an act of interference in trade union activities; that the requirement of a decision of the majority of the public servants of the respective service scheme for the calling of a strike is excessive and could unnecessarily hinder the possibility of carrying out a strike; that if the legislation requires a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee considers that the 60 days’ notice could constitute an obstacle to collective bargaining. In these circumstances, the Committee requests the Government to take the necessary measures to amend section 26(2)(d) of the Act No. 19 in accordance with the abovementioned principles, and to provide information thereon in its next report.

Finally, the Committee notes that the Government indicates that there is no service that has been designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA. The Committee recalls that essential services should be defined in the strict sense of the term that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee requests the Government to take the necessary measures to ensure that account will be taken of this principle when establishing the list of essential services referred to by section 77 of the ELRA, and to provide information on any developments in this respect in its next report.

Zanzibar

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous observation, the Committee had requested the Government to review and amend section 2(2) of Labour Relations Act No. 1 of 2005 (LRA), which excluded the following categories of employee from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. Noting the Government’s indication in its report that the amendment of section 2(2) of the LRA is not yet done, the Committee once again 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) and that other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee requests the Government to take the necessary measures to amend section 2(2) of the LRA in accordance with this provision and to provide information thereon in its next report.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to provide further information on section 21(1)(c) of the LRA, particularly on the criteria employed by the registrar for determining whether an organization’s constitution contains suitable provisions to protect its members’ interests, and on the expeditiousness of the registration procedure, including the average time period, from the submission to the application, for an organization to be registered. The Committee had recalled that the competent authority must not be given discretionary power to refuse registration, as it could amount in practice to a system of previous authorization, contrary to the principles of the Convention. The Committee had also recalled that the registration procedure must not be too long and complicated, so as to comply with the Convention (see General Survey, op. cit., paragraphs 73–75). The Committee notes that the Government indicates in its report that the rules and regulations for the implementation of the Act will take into account the concerns raised by the Committee. The Committee requests the Government to provide a copy of the said rules and regulations once adopted and to provide information thereon in its next report.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous observation, the Committee had noted that the Government indicated that section 42 of the LRA forbids the union to use, directly or indirectly, its funds to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation (see General Survey, op. cit., paragraph 124). The Committee notes that the Government indicates in its report that this provision does not apply to fines or penalties imposed upon the union itself and that the objective pursued by this section was to prevent embezzlement and fraudulent use of trade unions’ funds by individuals. The Government’s report adds that this section will be reviewed and that consultations will be held in line with the concerns raised by the Committee. The Committee requests the Government to provide information on any progress made thereon in its next report.

Political activities. In its previous observation, the Committee had requested the Government to provide information on the definition of political affiliation under section 8(2) of the LRA, and to indicate in particular whether under this provision trade unions may still pursue certain political activities, including the expression of opinions on economic and social policy. The Committee takes due note of the Government’s indication that while section 8(2) of the LRA forbids trade unions from being affiliated to political parties, all citizens under the 1984 Zanzibar Constitution – including trade unions’ members and the unions themselves – enjoy the right to express their opinions on any matter, be it social, economic and political, without any intimidation.

The right to strike. In its previous observation, the Committee had requested the Government to take the necessary measures to amend section 64(1) of the LRA, which sets forth categories of employees – namely: (a) employees of any public authority who are actually engaged in the management of such authority; and (b) employees actually engaged in the management of a business of the employer for which such an employee is engaged – that may not participate in a strike, without any additional indication, and section 64(2) of the LRA, which lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee notes that the Government indicates that section 64(1) (a) and (b) was meant to enable people in the managerial cadre to have an opportunity to resolve strikes, but that the comments of the Committee will be taken into account. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the case of an acute national crisis. The Committee hopes that the Government will take the necessary measures to amend sections 64(1) and 64(2) of the LRA in accordance with this principle and requests it to provide information on any progress made thereon in its next report.

Protests. Previously, the Committee had requested the Government to amend sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action; it had requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). The Committee notes that the Government indicates that the amendments of sections 63(2)(b) and 69(2) of the LRA are not yet done. The Committee once again recalls that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike (see General Survey, op. cit., paragraph 172). The Committee urges the Government to take the necessary measures to amend sections 63(2)(b) and 69(2) of the LRA in the near future in accordance with the abovementioned principle, and to provide information on any progress made thereon in its next report.

Finally, in its previous observation, the Committee had regretted that the Government did not provide information about section 41(2)(j) of the LRA, which concerns restrictions on the use of trade unions’ funds and had requested it to take the necessary steps to amend section 41(2)(j) of the LRA so that the institutions a trade union may wish to contribute to are not subject to the Registrar’s approval. The Committee notes that the Government refers in this respect to its comments under Article 3 concerning the use of trade unions’ funds (see above). In these circumstances, the Committee reiterates its request to the Government to take the necessary measures to amend section 41(2)(j) in light of the principles referred to above and to provide information thereon in its next report.

Expressing the hope that the Government will make every effort to bring its legislation into full conformity with the Convention, the Committee welcomes the Government’s request for technical assistance and hopes that it will be provided as soon as possible.