Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization. Right of organizations to organize their activities and to formulate their programmes freely. The Committee notes the Government’s indication in its report that most of the issues raised by the Committee in its previous comments will be taken into account during the ongoing labour law reform. The Committee trusts that the Government will provide in full details on the measures taken in consultation with the social partners to comply with its comments and bring its legislation into conformity with the Convention on the following issues:

• -the need to amend section 2(1)(iii) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) so as to ensure that prison guards enjoy the right to establish and join organizations of their own choosing;
• -the need to amend section 2(1)(iv) of the ELRA so as to clearly indicate that only the military members of the national service are excluded from the scope of the Act;
• -the need to amend section 76(3)(a) which prohibits picketing in support of a strike or in opposition to a lawful lockout;
• -the need to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No. 19 of 2003) requiring certain conditions to be satisfied for civil servants to take part in a strike, so as to align it with the relevant provisions of the ELRA which also applies to workers in the public service; and
• -the need to ensure that any service designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA is based on the strict definition of the term.

In relation to sections 4 and 85 of the ELRA, the Committee recalls its previous comments that, while the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. The Committee notes that the Government limits itself to referring to the existence of a competent machinery to deal with labour disputes. It therefore requests once again the Government to provide information on the practical application of the above provisions.

Zanzibar

Articles 2 and 3 of the Convention. In its previous comments the Committee requested the Government to amend the following provisions so as to bring its legislation into full conformity with the Convention:

• -Section 2(2) of the Labour Relations Act (No. 1 of 2005) (LRA), which excludes the following categories of employees from the LRA’s provisions: (i) judges and all judiciary officers; (ii) members of special departments; and (iii) employees of the House of Representatives. In this regard, the Committee notes that the Government indicates that these categories are governed by their own laws but are not excluded from the right to organize. The Committee requests the Government to provide the relevant pieces of legislation.
• -Section 42 of the LRA, which 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 notes the Government’s indication that the law allows union funds to cover officers who incur penalties while discharging their duties on behalf of their organizations, although it does not allow fines to be paid from union funds. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation.
• -Section 64(1) and (2) of the LRA, which sets forth categories of employees that may not participate in a strike, including managers, and lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee notes the Government’s indication that the categories referred to in these sections cannot be allowed to participate in strikes due to the nature of their positions and work. The Committee wishes to recall, however, 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, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.
• -Section 41(2)(j) of the LRA, which requires the Registrar’s approval regarding institutions to which a trade union may wish to contribute. The Committee notes the Government’s indication that this section will be removed.

The Committee expects that due measures will be taken without further delay and in consultation with the social partners to amend the legislative provisions referred to above. It requests the Government to provide information on the developments in this regard and reminds the Government that it may avail itself of technical assistance from the Office with respect to all issues raised in its present comments.

With respect to sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to strike and protest action respectively, 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, the Committee requested the Government to shorten this 44-day period. The Committee takes due note of the Government’s indication that the advance notice is not 14 days but 48 hours in the private sector and seven days in the public sector. The Committee requests the Government to indicate whether the same time frame for advance notices applies for strikes and protest actions.