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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - United Republic of Tanzania (Ratification: 1962)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012, according to which employers in the private sector often deny the right of workers to organize and to bargain collectively. Moreover, according to the ITUC, any collective agreement agreed upon must be submitted to the industrial court for approval and may be refused if it does not conform to the Government’s economic policy. The Committee requests the Government to provide its reply to the ITUC communication, in particular in the light of the new Labour Act. While awaiting the reply from the Government, the Committee recalls that provisions which prescribe the obligation to submit a collective agreement for prior approval by the authorities are only compatible with the Convention when they are confined to stipulating that approval may be refused if the agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. On the other hand, if legislation allows the authorities full discretion to deny approval or stipulates that approval must be based on criteria such as compatibility with the general or economic policy of the government, or official directives on wages and conditions of employment, it in fact makes the entry into force of the agreement subject to prior approval, which is in violation of the principle of the autonomy of the parties (see General Survey on the fundamental Conventions, 2012, paragraph 201).

Scope of the Convention. The Committee previously raised a number of points concerning the 2003 Public Service (Negotiating Machinery) Act. In particular, it requested the Government to provide information on the types of workers included in the national service and to take the necessary measures to ensure to prison staff the rights enshrined in the Convention. In this regard, the Committee notes the indication according to which its comments have been forwarded to the Labour, Economic and Social Council for further consultations and any progress made or any difficulty encountered will be reported. The Committee trusts that the next report of the Government will indicate concrete measures taken to determine the types of workers included in the national service and to ensure to prison staff the rights enshrined in the Convention.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. In its previous comments concerning the Public Service (Negotiating Machinery) Act the Committee also requested the Government to provide information on the measures taken or contemplated to include in the legislation adequate protection against all acts of anti-union discrimination and acts of interference, as well as sufficiently dissuasive sanctions against such acts. The Committee notes that, while acknowledging that section 29 of the Act only prohibits acts of discrimination against a public servant who takes part in a strike or lockout, the Government refers to the Employment and Labour Relations Act (No. 6 of 2004), which applies to all workers, including those employed in the public sector in Mainland Tanzania. The Government specifies that section 7(1) of Act No. 6 of 2004 prohibits discrimination in the workplace and strives to eliminate discrimination in any employment policy and practice. Moreover, section 37(3) of the Act prescribes that it should not be a fair reason to terminate the employment of an employee for the reason that such employee belongs, or belonged, to any trade union, or participated in the lawful activities of a trade union including a lawful strike. The Committee also notes that, according to section 40 of the Act, if an arbitrator or a labour court finds that a termination is unfair, it may order the reinstatement of the employee without loss of remuneration or the payment of compensation of not less than 12 months’ wages. Where an order of reinstatement is made and the employer decides not to reinstate the employee, the employer shall pay compensation of 12 months’ wages in addition to wages due and other benefits from the date of unfair termination to the date of the final payment. The Committee takes due note of this information.

Article 4. Compulsory arbitration. With regard to its previous comments concerning compulsory arbitration that may be imposed under the Public Service (Negotiating Machinery) Act, the Committee recalled that compulsory arbitration in the framework of collective bargaining is only acceptable if it is at the request of both parties involved, or in the case of disputes in the public service involving public servants exercising authority in the name of the State, or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Thus, the Committee requested the Government to amend sections 17 and 18 of the Public Service (Negotiating Machinery) Act, so as to ensure their full conformity with these principles. While noting the indication that the Government intends to work on the issue, the Committee trusts that its next report will contain information on progress made in this regard.

Zanzibar

Article 4. Trade union recognition for purposes of collective bargaining. The Committee previously requested the Government to amend section 57(2) of the Labour Relations Act of 2005 (LRA) so that, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit are not denied collective bargaining rights, at least on behalf of their members. The Committee also requested the Government to indicate whether, in practice, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. The Committee notes the Government’s indication that minority unions enjoy collective bargaining rights in cases where no union represents 50 per cent of the workers concerned. While inviting the Government to indicate the legal provisions in support of its statement, the Committee recalls the importance that the legislation establishes clearly that where no union covers more than 50 per cent of the workers in a bargaining unit, the minority unions should be allowed to enter into collective bargaining, at least on behalf of their members. The Committee requests the Government to indicate any development, in both law and practice, as well as to provide examples and statistics, including as regards minority unions that have exercised collective bargaining where no union represents 50 per cent of the workers concerned.

Furthermore, the Committee had requested the Government to ensure that the rules and regulations being drafted for the implementation of the LRA will provide for objective procedures and criteria for the determination of representative trade union status. The Committee notes the Government’s indication that draft regulations are awaiting publication and will soon be communicated. The Committee requests the Government to provide a copy of the regulations once promulgated.

Article 6. Public servants. The Committee had previously requested the Government to amend section 54(2)(b) of the LRA, so as to guarantee to managerial employees the right to collective bargaining with respect to salaries and other conditions of employment, and to indicate the categories of employees excluded from the right to bargain collectively by the minister under section 54(2)(c) of the LRA. The Committee notes the Government’s indication that social partners are engaged in consultations on this matter and that the Government is requesting technical assistance in this regard. The Committee hopes that the technical assistance of the Office will be provided to the Government in the near future and that the latter will be in a position to report on progress made in this regard.