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Thursday, 14 November 2019

CONSTITUTIONAL DIMENSIONS PROVIDED UNDER TANZANIA LABOR LAWS



CONSTITUTIONAL DIMENSIONS PROVIDED UNDER TANZANIA LABOR LAWS

The relationship between the employer and employee must be controlled by law. To furnish that control, there are constitutional dimensions that are provided under the Tanzania labor law. 

The focus here is to explain those constitutional dimensions and how they can be enforced in Tanzania.

What is Labor Law?



Labour Law is a branch of law that is concerned with the relationship between employer and employee. It defines the rights and obligations of the parties to the employment contract.

Labour law may be classified into two categories i.e. Substantive labor law and Procedural labor law.

Substantive labor law prescribes rights and obligations in employment relationships. It states the employment standards to be adhered to by both the employer and employee.

Read also  Everything you need to know about the Contract of employment


Procedural labor law deals with the procedures on how to obtain rights, fulfill duties, and enjoy justice in labor law. It stipulates the procedures to be observed in all labor matters.

The main legislations which govern labor matters in Tanzania are Employment and Labor Relation Act and Labour Institution Act both of 2004.

Constitutional Dimensions in Labour Laws

In labor laws there are constitutional dimensions, these dimensions are provided to guarantee fundamental rights and protections which impose duties to the employee and rights to the employer or both. 

They are constitutional dimensions in the sense that, they safeguard basic human rights and duties between employer and employee and they give rise to constitutional claims when infringed. The following are the constitutional dimensions provided under Tanzania labor law.
  • Prohibition of Discrimination
  •  Freedom of Association
  • Remunerations
  • Prohibition of Forced Labour
see Contract of Employment Template

 Prohibition of Discrimination

Article 12 (1) of The Constitution of the United Republic of Tanzania, 1997 (the Constitution) provides that 

All human beings are born free, and are all equal” also Article 13 (4) provides that “No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office”. 

Furthermore, Article 9 (h) provides that 

“state authorities and all the agencies thereunder, have to ensure that that all forms of injustice, intimidation, discrimination, corruption, oppression or favoritism is eradicated.”
This constitutional dimension is provided as fundamental rights and protections under Section 7(1) of Employment and Labor Relation Act, 2004 (ELRA) that 

“every employer shall ensure that he promotes an equal opportunity in employment and strives to eliminate discrimination in any employment policy or practice.
This suggests that all persons have equal opportunities in all employment matters depending on the required skills and qualifications. 

Also, Section 7 (4) of ELRA provides that, 

no an employer shall discriminate directly or indirectly an employee on the ground of color, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/Aids, Age and station of life. 

The same is provided under Para (29) (1) of The Employment and Labor Relations Citation (Code of Good Practice) Rules, G.N no. 42 of 2007.
Discrimination can be direct where particular grounds, for example, sex, race, religion, and age, maybe direct used to deny equal opportunities. 

Indirect discrimination can occur where the rules or practices appear on their surface to be neutral but in reality, they tend to exclude some individuals on the basis of sex, color, religious and beliefs. 

Nevertheless Harassment of an employee, whether of a sexual nature or otherwise, constitutes a form of discrimination.

However, discriminations at the workplace are not easy to prove.

In the case of Anthony Francis Munyigo v Total Tanzania LTD and two other Labour Complaint No. 30 of 2009 at p.5  it was stated that 

“in the case of employment discrimination, the employee must establish that there is differentiation in treatment between the complainant and employees who are doing similar work and are similarly situated. 

The said differentiation must base on the ground of color, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/Aids, Age and station of life and that the complainant is discriminated on such grounds”

In Tanzania labor law, the prohibition of discrimination does not remain to employer and employer rather it goes up to trade unions and employers’ association. No trade union or employers' association shall discriminate, directly or indirectly in its admission, representation or termination of membership, in any employment policy or practice, and in any collective agreement.

To guarantee this constitutional dimension in Tanzania labor law any employer, The trade union, or Employers’ association who shall discriminate an employee commits an offense.

Freedom of Association

This is the right of every individual in Tanzania, as it stipulated under Article 20 (1) of the Constitution that

“every person has the right to associate with others and to form or belong to organizations formed for the purposes of protecting or furthering his/her interest”.

This constitutional dimension is provided in Tanzania labor law as a fundamental right of the employer and employee to form, join and participate in the lawful activities of a trade union or employer’ association. 

Every employee shall have the right to form and join a trade union and to participate in the lawful activities of the trade union on another hand every employer shall have the right to form and join an employer's association and to participate in the lawful activities of an employers' association. 

Therefore, in relation to employment, employee freedom of the association at the workplace can only be exercised through trade unions while that of an employer can only be exercised through employer associations.


 It is important to note that, no one shall be compelled to belong to an association without his own free will.
To guarantee this constitutional dimension in labor law, any person who shall discriminate against an employee on the grounds that the employee belongs to or has belonged to a trade union; or participates or has participated in the lawful activities of a trade union. 

Any a person who shall discriminate against an official of an office-bearer of a trade union or federation for representing it or participating in its lawful activities is committing an offense.

Nevertheless, a person commits an offense under labor law, if he shall discriminate against an employer on the grounds that the employer belongs or has belonged to an employees Association participates or has participated in the lawful activities of an employers' association or he shall discriminate against an official or office bearer of an employer's association or federation for representing it or participating in its lawful activities.

Remunerations

Article 23 (1) and (2) of The Constitution provides that 

(1) “Every person, without discrimination of any kind is entitled to remuneration commensurate with his work, and all persons working according to their ability shall be remunerated according to the measure and qualification for the work”

(2) “Every person who works is entitled to just remuneration”

This constitutional dimension is provided under Tanzania labor law as an employment standard that

 an employer shall pay to an employee any monetary remuneration to which the employee is entitled”. 

To ensure just remuneration ELRA at first the schedule provides a table for calculation of comparable wage rates of employee’s whose basic wage is set by, hour, day, week and month, on another hand, Labour Institution wages Order, 2013 G.N no. 196 provides for minimum wages for industrial workers and domestic workers.
To guarantee this constitutional dimension, in Tanzania labor law, any employer who shall not pay an employee any monetary remuneration to which the employee is entitled commits an offense.

Prohibition of Forced Labour

According to Black’s Law Dictionary forced labor means work exacted from a person under threat of penalty; work for which a person has not offered himself or herself voluntarily. 

Article 25 (2) of The Constitution provides that 

there shall be no forced labor in the United Republic of Tanzania. This constitutional dimension, in labor law, is provided as fundamental rights and protections that any person who procures, demands or imposes forced labor commits an offense

Enforceability of those Dimensions

 Zayumba Abeid v Tanzania Ports Authority Labour Revision No. 155 of 2008. 

In that case, the applicant alleged that an employer has violated his constitutional rights by persistently discriminating him and employed him below the terms enjoyed by others and he prayed declaration by Labour Court that his constitutional rights were violated.

it was stated that 

“for the enforcement of the basic rights as provided under the Constitution, the machinery set by the law is through the Basic rights and Duties Enforcement Act [CAP 3 R.E 2002] in this case the prayer of the complainant to this court involve its power to enforce a breached a constitutional right is misplaced because such power does not exist under the ELRA.

Therefore in the light of the case above, it is clear that the constitutional dimensions as provided under labor laws are enforced through the Basic rights and Duties Enforcement Act [CAP 3 R.E 2002]. 

Thus if employer or employee alleges that any of constitutional dimensions is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress.

An application to the High Court shall be made by petition to be filed in the appropriate Registry of the High Court by originating summons. 

A petition made shall set out among others; the specific sections in Part III of Chapter one of the Constitution which is the basis of the petition, the grounds upon which redress is sought, particulars of the facts but not the evidence to prove and the nature of the redress sought.

Wrapping up
Generally, the prohibition of discrimination, freedom of association, remunerations, and prohibition of forced labor are the constitutional dimensions that are provided under labor laws. 

In Tanzania enforceability of these dimensions does not exist under the ELRA rather is done through the Basic rights and Duties Enforcement Act whereby a complainant has to lodge his petition before the High Court to seek enforcement of those dimensions. 

Therefore even labor courts have no power to enforce a breached constitutional dimension provided under labor law.


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