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

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), in a communication dated 29 August 2008, which primarily concern matters previously raised by the Committee and also refer to the dismissal of 1,000 strikers following a strike in the mining sector. The Committee requests the Government to provide its observations respecting these matters.

With respect to Zanzibar, the Committee had previously commented upon a number of provisions of the Trade Union Act of 2001. In this respect, the Committee notes the adoption of the Labour Relations Act, 2005 (LRA), which repeals the 2001 Trade Union Act. The Committee notes that some of the LRA’s provisions are not in conformity with the Convention, and are therefore in need of amendment or modification, while certain other provisions need to be clarified concretely.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations.

–      Section 4(1) of the LRA provides for the right of employees to establish and join trade unions (under section 3(1) an employee is defined as any person who has entered into or works under a contract of service with an employer whether by way of manual labour, clerical work or otherwise and whether the contract is expressed or implied or is oral or in writing). Recalling that Article 2 of the Convention guarantees the right to organise to employers and workers, including those who are not in contractual employment relationships, the Committee requests the Government to amend section 4(1) so as to bring it into conformity with this principle.

–      Section 2(2) excludes the following categories of employee from the LRA’s provisions: (a) Judges and all judiciary officers; (b) Members of Special Departments; (c) Employees of the House of Representatives. In this regard, the Committee recalls that the only categories of worker who may be excluded from the right to organise guaranteed under Article 2 of the Convention are the armed forces and police. The Committee requests the Government to take the necessary measures to review and amend section 2(2) of the LRA in accordance with this principle.

Right of workers and employers to establish organizations without previous authorization. Section 21(1)(c) concerning the Registrar’s refusal to register an organization does not specify the criteria for determining whether or not the constitution of an organization contains suitable provisions for the protection of its members’ interests; nor does it specify a timeframe within which the Registrar must render a decision. In these circumstances, the Committee requests the Government to provide further information 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 of the application, for an organization to be registered.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes.

–      Section 41(2) of the LRA sets out the legitimate objects for which trade union funds may be used, including “contributions to a charitable, educational or cultural institution or society approved by the Registrar” (subsection (j)). In this respect, the Committee recalls that provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with principles of freedom of association. The Committee accordingly requests the Government to take the steps necessary to amend section 41(2)(j) so that the institutions a trade union may wish to contribute to are not subject to the Registrar’s approval.

–      Section 42 of the LRA states that “the funds of a trade union shall not be applied either directly or indirectly in payment of the whole or any part of any fine or penalty imposed upon any person by sentence or order of a Court, other than a fine or penalty imposed upon the union under this Act”. The Committee requests the Government to indicate whether the funds of a trade union may, under this provision, be applied in payment of any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization.

Political activities. Section 8(2) provides that “no union or organization shall join or form part of trade union movement [sic] and shall be independent from political affiliation with any political party”. In this regard, the Committee recalls that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133). With reference to this principle, the Committee requests the Government to provide information on the definition of political affiliation under section 8(2), 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 right to strike. Section 64(1) of the LRA provides that the following may not engage in strikes, or conduct in contemplation or furtherance of a strike: (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 employee is engaged. Furthermore, section 64(2) lists several services, including the sanitation service, that are deemed to be essential and in which strikes are prohibited. The Committee recalls, in this connection, that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) 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). The Committee requests the Government to take the necessary measures to amend sections 64(1) and 64(2), in keeping with the abovementioned principle. Further, the Committee recalls that a negotiated minimum service could be established during strikes in the sanitation service. Such a service must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, and workers’ organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities.

Prerequisites before engaging in a strike. Section 63(2)(b) requires the exhaustion of dispute resolution procedures, followed by a mandatory cooling-off period of at least 30 days following the failure of the dispute resolution procedure, before parties may resort to industrial action. As section 74(2) establishes a mediation period of 30 days, the total waiting period before engaging in a strike is a minimum of 60 days. The Committee recalls that provisions establishing a mandatory cooling-off period though conciliation or mediation before a strike may be called cannot be regarded as infringements of freedom of association; such machinery must, however, have the sole purpose of facilitating bargaining: it should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey, op. cit., paragraph 171). The Committee therefore requests the Government to take the necessary measures to shorten the time period (to a maximum of 30 days, for example) before engaging in industrial action, as established under section 63(2)(b) of the LRA.

Protests. Section 69(2) provides that a protest action is lawful if the underlying dispute had been referred to mediation, and the mediation authority was given at least 30 days to resolve it, and if following mediation the trade union had subsequently given advance notice of 14 days explaining the purpose, nature and place and date of the protest action. The Committee requests the Government to take the necessary measures to shorten the time period of 44 days before resorting to protest action (to a maximum of 30 days, for example).

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. Section 4(1) of the LRA guarantees the right to establish trade union federations, and section 4(3) provides that trade union members may take part in the lawful activities of trade union federations. It further notes that section 9 guarantees the right of trade unions and employers’ organizations to form federations, while section 10 provides that “any trade union or employers’ organization and any federation of trade unions or employers’ organizations may affiliate with and participate in the activities of international workers’ or international employers’ associations, may make financial and other contributions to such associations, and may receive financial aid and other assistance from them”. The Committee requests the Government to indicate whether the right to form confederations is also provided for under the LRA or any other legislation.

Finally, the Committee regrets that the Government provides no information on other provisions of the legislation addressed by the Committee in its previous comment. Accordingly, it once again requests the Government to:

–      amend section 2(1)(iii) of the Employment and Labour Relations Act (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing;

–      provide adequate information on the types of workers included in the category of the national service, which is excluded from the ELRA’s provisions, so that it may assess whether they qualify for the exceptions of Article 9 of the Convention;

–      consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration;

–      provide information on the definition of protest action under section 4 of the ELRA – which provides that protest actions are unlawful when taking place in relation to “a dispute in respect of which there is a legal remedy”;

–      amend section 76(3)(a) of the ELRA, which prohibits picketing in support of a strike, or in opposition to a lawful lockout;

–      inform it of any designations of essential services that the Essential Services Committee has made under section 77 of the ELRA; and

–      modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill 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.

The Committee again expresses the hope that the Government will make every effort to bring its legislation into full conformity with the Convention and provide detailed information on the abovementioned points in its next report.