Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee takes note of the comments dated 31 July 2012 from the International Trade Union Confederation (ITUC) concerning issues already raised by the Committee.

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 report which merely indicates that the issues raised by the Committee in its previous comments will be brought to the attention of the Labour, Economic and Social Council (LESCO) which will then advise the minister on measures to be taken. The Committee trusts that the Government will provide in its next report full details on 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 that prison guards enjoy the right to establish and join organizations of their own choosing;
• -the need to determine 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 law. In the meantime, the Committee recalls that only the armed forces and the police may be excluded from the application of the Convention (Article 9 of the Convention);
• -the need to amend the ELRA which does not provide for specific time limits within which the registration procedure of an organization should be concluded and to adopt a provision determining a reasonable time period for the processing of applications for registration of employers’ and workers’ organizations; and
• -the need to amend section 4 of the ELRA so that restrictions on protest actions are limited to a rights dispute; as well as section 76(3)(a) which prohibits picketing in support of a strike or in opposition to a lawful lockout.

Public sector. In its previous comments, the Committee requested the Government 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, since the provision could constitute an act of interference in trade union activities (the supervision by the administrative authority of a strike ballot under section 26(c)), could unnecessarily hinder the possibility of carrying out a strike (the requirement of a decision of the majority of the public servants of the respective service scheme for the calling of a strike under section 26(c)) and could constitute an obstacle to collective bargaining (a 60 days’ notice to be served to the Government from the date of the ballot under section 26(d)). The Committee notes the Government’s indication according to which the ELRA also applies to workers in the public service in Mainland Tanzania and that it is provided under section 80(1) of the said Act that a strike has to be called by a trade union and a ballot is conducted under the union’s constitution. Thus, the public servants have the right to choose either the Public Service (Negotiating Machinery) Act or the ELRA. The Government adds as an example that the Teachers’ Trade Union called a strike under the ELRA. While taking due note of the possibility for workers in the public sector to call a strike under the ELRA, the Committee considers that section 26(2) of the Public Service (Negotiating Machinery) Act should be put in line with the relevant provisions of the ELRA in order to align the two pieces of legislation and requests the Government to indicate any development in this regard.

In its previous comments, the Committee noted that no service had been designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA, and recalled 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. While noting the indication from the Government that the principles outlined by the Committee are under consideration, the Committee hopes that while establishing a list of essential services the abovementioned principle will be fully taken into account.

Zanzibar

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 review and amend section 2(2) of Labour Relations Act (No. 1 of 2005) (LRA), which excludes the following categories of employees from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. The Committee notes the Government’s indication according to which social partners are engaged in consultations to the effect of amending section 2(2). The Committee requests the Government to indicate any progress made in this regard.

Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had 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 notes the Government’s indication according to which draft regulations for the implementation of the Act are awaiting publication. The Committee requests the Government to provide a copy of the regulations for the implementation of section 21(1)(c) of the LRA once adopted.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous comments, 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. The Committee notes that the Government indicates in its report that the social partners are engaging into consultations taking into account the comments of the Committee. The Committee requests the Government to indicate any progress made in this regard.

Finally, the Committee takes due note of the requests for technical assistance from the Government on a number of amendments to the LRA requested by the Committee. It notes that social partners will be engaged in consultations on the issues raised. The Committee hopes that the technical assistance of the Office will be provided to the Government in the near future and that the Government will be in a position to report on progress made to bring its legislation in full conformity with the Convention on the matters recalled hereunder:

• -the need to amend sections 64(1) and 64(2) of the LRA, which set forth categories of employees that may not participate in a strike, without any additional indication, and list several services that are deemed essential, including sanitation services, and in which strikes are forbidden. In this regard, 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, that is 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 need 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. The Committee requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). The Committee 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;
• -the need to amend section 41(2)(j) of the LRA so that institutions a trade union may wish to contribute to are not subject to the Registrar’s approval.