Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received on 1 September 2015. The Committee also takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

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 replies to the following points raised in its previous comments concerning the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) and the 2003 Public Service (Negotiating Machinery) Act:

• -The need to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing. The Committee notes that the Government indicates that civilians employed in the prison service enjoy the right to organize under the ELRA and are affiliated to the Trade Union for Government and Health Employees (TUGHE). The Committee observes, however, that section 2(1)(iii) of the ELRA as currently written explicitly excludes members of the prison service from the scope of the Act. Accordingly, the Committee once again requests the Government to take the necessary measures to amend section 2(1)(iii) of the ELRA so that members of the prison service 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, who are excluded from the provisions of the law. The Government indicates that: (i) employees employed in the national service include military members and civilians employed or seconded to the national service; and (ii) while military members of the service are excluded from the ELRA, civilians employed in the national service enjoy fundamental principles and rights including freedom of association as granted under the ELRA, and most of them are members of the TUGHE. While it takes due note of the Government’s indication that civilians employed or seconded in the national service enjoy the right to organize, the Committee observes that section 2(1)(iv) of the ELRA provides that all members of the national service are explicitly excluded from the scope of the Act. Accordingly, the Committee requests the Government to take the necessary measures to amend section 2(1)(iv) of the ELRA so that it is clearly indicated that the exception only applies to military members of the national service.
• -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. The Government indicates that this issue has been addressed in the Regulations for Act No. 7 of 2004 and that the Committee will be informed in detail once these Regulations are finalized. The Committee requests the Government to provide information on this matter and to provide a copy of the said Regulations once finalized.
• -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 requests the Government to provide information on the practical application of these provisions.
• -The need to initiate consultations addressing the amendment of section 76(3)(a), which prohibits picketing in support of a strike or in opposition to a lawful lockout. The Government has previously indicated that the Committee’s comments would be communicated to stakeholders for consultation. The Committee requests the Government to provide information on any progress made thereon.
• -The need to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No. 19 of 2003), which requires certain conditions to be satisfied for civil servants to take part in a strike. The Government had previously indicated that section 80(1) of the ELRA, which also applies to workers in the public service in mainland Tanzania, provides that a strike has to be called by a trade union and a ballot is conducted under the union’s constitution. The Committee had previously observed that section 26(2) of the Public Service Act needed to be aligned with the relevant provisions of the ELRA. In this regard, the Government indicates that measures have been taken to amend the ELRA to clarify that in cases of any law contravening the provisions of the ELRA, the ELRA will prevail. The Committee requests the Government to provide more detailed information as to the measures that have been taken to this effect.
• -Essential services. 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. The Committee notes that the Government once again indicates that no service has yet been designated as essential by the Essential Services Committee. The Committee reiterates its hope that in establishing a list of essential services the abovementioned definitional principle will be fully taken into account.

Zanzibar

Articles 2 and 3 of the Convention. Legislative matters. The Committee takes note of the Government’s indication that the Legal Review Commission is planning to undertake a review of the labour laws and that the concerns raised previously by the Committee will be addressed in this framework. The Committee takes note of the request for ILO technical assistance in order to undertake the review. The Committee hopes that with the technical assistance requested to the Office, 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 and provisions in need of amendment recalled hereunder:

• -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.
• -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 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, without any additional indication, and lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. 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.
• -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.
• -Section 41(2)(j) of the LRA so that institutions to which a trade union may wish to contribute to are not subject to the Registrar’s approval.