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

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Scope of the Convention.The Committee, in its previous comments, requested the Government to include members of the prison service and exclude only members of the military service from the scope the Employment and Labour Relations Act (No. 6 of 2004) (ELRA), by amending sections 2(1)(ii) and 2(1)(iv) respectively. The Committee notes the Government’s indication that prison guards have been recognized as military officials following an amendment in the law, and they are regulated by their own legislation. The Committee recalls that civilian personnel in the armed forces enjoy the rights and guarantees set out in the Convention. The Committee considers that the functions exercised by this category of workers do not justify their exclusion from the rights and guarantees set out in the Convention, and it trusts that the Government will take the necessary legislative measures, in consultation with social partners, to bring national legislation in conformity with the Convention.

Article 4 of the Convention. Compulsory arbitration.The Committee notes with regret that the Government does not provide information on the measures taken to ensure that compulsory arbitration in the framework of collective bargaining is acceptable only in relation to public servants engaged in the administration of the state, essential services in the strict sense of the term, and acute national crisis. It reiterates its previous request for information on the progress made in this regard, particularly by amending sections 17 and 18 of the Public Service (Negotiating Machinery) Act.

Collective bargaining in practice.The Committee previously requested the Government to provide information and statistics on the collective agreements signed and in force in the country. The Committee notes the Government’s indication that between July 2021 and June 2022, 32 collective agreements were lodged between the Tanzania Union of Industrial and Commercial Workers (TUICO) and various companies in diverse sectors (industrial and commerce (16), transportation (1), beverages (2), education (1), commercial (6), agriculture (3), health (1), mining (1) and textiles (1)). The Government adds that there are 3 collective agreements in Tanzania-Zanzibar, covering 398 workers in two sectors. The Committee requests the Government to: (i) continue providing information in this respect, including statistics on the total number of collective agreements in force in the country, the sectors concerned, and the number of workers covered; and (ii) provide information on the measures taken to promote collective bargaining in the different sectors of the economy.

Article 4 of the Convention. Legislation on collective bargaining. In its previous comment, the Committee requested the Government to take the necessary measures to: (i) amend section 57 of the Labour Relations Act, 2005 (LRA) to remove anyambiguity concerning the meaning of the term “majority”and toclarify that the most representative trade union, even when it does not represent more than 50 per cent of the workers, has the exclusive right to bargain with the employer; and (ii) amend section 54(2)(b) of the LRA to guarantee managerial employees their rights under the Convention, and to indicate the categories of employees excluded under section 54(2)(c). The Committee notes the Government’s indication that the relevant provisions in the labour laws would be amended, post consultation with social partners and that it has requested the technical assistance of the Office to review and amend all labour laws. The Committee takes due note of this request for technical assistance and trusts that the Government will take the necessary steps to ensure the full compliance of the legislation with the Convention. The Committee requests the Government to provide information on progress made in this regard.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee recalls that its previous comments concerned:

Scope of the Convention. The necessity to take measures to: (i) amend section 2(1)(iii) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) so that members of the prison service enjoy the rights enshrined in the Convention; and (ii) amend section 2(1)(iv) of the ELRA so that it is clearly indicated that only the military members of the national service are excluded from the scope of the Act.

Article 4 of the Convention. Compulsory arbitration. Necessity to take measures to amend sections 17 and 18 of the Public Service (Negotiating Machinery) Act, so as to ensure that compulsory arbitration in the framework of collective bargaining, is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crisis.

Noting that the Government indicates that the matters referred to above will be taken into account during the ongoing Labour law reform, the Committee expects that its next report will contain detailed information on progress made in this regard.

Article 4. Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country, indicating the sectors and the number of workers covered.

Zanzibar

Article 4 of the Convention. Trade union recognition for purposes of collective bargaining. On several occasions, the Committee requested the Government to indicate whether, under section 57(2) of the Labour Relations Act of 2005 (LRA), where no union covers more than 50 per cent of the workers in a bargaining unit, the minority unions can enter into collective bargaining, at least on behalf of their members. The Committee notes that for the Government section 57(2) of the Act does not refer to the absolute majority and therefore cannot be understood as imposing a 50 per cent threshold for an organization to be authorized to engage in collective bargaining, as it reads: “A representative trade union for the purpose of [collective bargaining] means a registered trade union that represents the majority of employees at appropriate bargaining level and recognised as such under this section”. In view of the above, the Committee requests the Government to take the necessary measures with a view to modifying section 57 of the LRA in order to remove any ambiguity concerning the meaning of the term “majority” and clarifying that the most representative trade union shall have an exclusive right to bargain with the employer.

Categories of employees excluded from the right to bargain collectively. In its previous comments the Committee had requested the Government to take the necessary measures 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 working conditions, 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 that the Government agrees that these provisions can be amended. The Committee expects that the Government will take any necessary measures to ensure full compliance with the abovementioned principle and that it will be in a position to report on progress in this regard.

The Committee reminds the Government that it may avail itself of technical assistance from the Office with respect to all issues raised in its present comments.

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

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) of 2012, according to which employers in the private sector often deny the right of workers to bargain collectively and that collective agreements must be submitted to the Industrial Court for approval. The Committee notes that the Government indicates that section 71(1) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) provides that a collective agreement shall be in writing, signed by the parties and binding on the last signatures, and that the parties are not bound to submit it for approval to a court. The Government highlights that parties to collective agreements are no longer required to submit the collective agreements agreed upon to the Industrial Court for approval as it used to be under the Industrial Court of Tanzania Act No. 41 of 1961. Act No. 41 of 1961 was wholly repealed by the ELRA and the Industrial Court became defunct. Taking due note of this information, the Committee requests the Government to provide information on the number of collective agreements concluded in the private sector and their coverage.

The Committee takes note of the observations of the ITUC of 2014 concerning allegations of arrests and of acts of anti-union dismissal on grounds of participation in strikes. The Committee requests the Government to provide its comments in this regard.

Scope of the Convention. The Committee had previously noted the Government’s indication that the 2003 Public Service (Negotiating Machinery) Act excludes employees of the prison service and national service; and requested the Government to indicate 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. The Committee notes that the Government indicates that:

• -Civilians employed in the prison service enjoy fundamental principles and rights, including freedom of association, as granted under the ELRA and are affiliated to the Trade Union for Government and Health Employees (TUGHE). The Committee notes, however, that section 2(1)(iii) of the ELRA explicitly excludes members of the prison service from the scope of the Act. Accordingly, the Committee 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 rights enshrined in the Convention.
• -With respect to the types of workers included in the category of the “national service”, 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. The Committee observes, however, that under section 2(1)(iv) of the ELRA, 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 only the military members of the national service are excluded from the scope of the Act.

Article 4 of the Convention. Compulsory arbitration. The Committee recalls that compulsory arbitration in the framework of collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. In its previous comments, the Committee requested the Government to take measures to amend sections 17 and 18 of the Public Service (Negotiating Machinery) Act, so as to ensure their full conformity with these principles. The Committee trusts that its next report will contain information on progress made in this regard.

Zanzibar

Article 4 of the Convention. Trade union recognition for purposes of collective bargaining. The Committee previously requested the Government to take the necessary measures 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 respective members. The Committee requested the Government to ensure that the rules and regulations that were being drafted for the implementation of the LRA provide for objective procedures and criteria for the determination of representative trade union status. Furthermore, the Committee 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 Government indicates that there are no new developments in this regard and that there are no available statistics relating to minority unions that have exercised collective bargaining. The Committee notes that the Government is requesting technical assistance of the Office in this regard. The Committee requests the Government to indicate whether, under the LRA, where no union covers more than 50 per cent of the workers in a bargaining unit, the minority unions can enter into collective bargaining, at least on behalf of their members.

Categories of employees excluded from the right to bargain collectively. The Committee previously requested the Government to take the necessary measures 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 that the Government is requesting technical assistance from the Office in this regard. The Committee hopes that with the technical assistance of the Office, the Government will take any necessary measures to ensure full compliance with the abovementioned principle and that it will be in a position to report on progress in this regard.

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

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.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010. The Committee also notes the Government’s reply to the allegation made by the ITUC in a communication dated 26 August 2009 that collective agreements must be submitted to the Industrial Court for approval and may be refused registration if they do not conform to the Government’s economic policy. The Government indicates in its report that section 71(1) of the Employment and Labour Relations Act (ELRA) provides that a collective agreement shall be in writing, signed by the parties and binding on the last signatures, and that the parties are not bound to submit it for approval to a court.

Furthermore, the Committee notes the Government’s replies to the points raised by the Committee in its previous observation concerning the 2003 Public Service (Negotiating Machinery) Act, in particular:

(i)    As regards the scope of application of the Act, the Government indicates in its report that the Act does not cover all civil servants, but covers teachers, servants of the health sector, and servants of the local and central Government and excludes employees of the prison service and national service. The Committee recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, in the armed forces and the police, should enjoy the right to collective bargaining with respect to salaries and other conditions of employment (General Survey of 1994 on freedom of association and collective bargaining, paragraphs 199 and 262). The Committee requests the Government to provide information in its next report 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.

(ii)   As regards the protection against acts of anti-union discrimination and interference, the Government indicates in its report that section 29 of the Act prohibits acts of discrimination against any public servant who takes part in a strike or lock-out, or is a leader or activist of a trade union which inspired or incited public servants to take part in a strike or lock-out. The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination in taking up employment and in the course of employment including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts) – i.e. not only acts of anti-union discrimination related to strikes and lock-outs – and that legal provisions prohibiting acts of anti-union discrimination shall be accompanied by effective and rapid procedures to ensure their application in practice. Furthermore, the Committee recalls that legislation should explicitly prohibit all acts of interference and make express provision for rapid appeals procedures, coupled with effective and sufficiently dissuasive sanctions against such acts, in order to ensure the application in practice of Article 2 (General Survey, op. cit., paragraphs 214, 223 and 232). The Committee requests the Government to provide information in its next report 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, in accordance with the abovementioned principles.

(iii)  As regards the subjects that may be negotiated under the Act, the Government indicates in its report that these relate to the terms and conditions of employment, including wages.

(iv)  As regards the duration of the collective agreements provided for in the Act, the Government indicates in its report that section 17(5) of the Act provides that every award made shall be final and binding upon the Government and the public servants to whom the agreement relates for a period of 12 months beginning on the date on which the award was made.

(v)   As regards the cases in which compulsory arbitration may be imposed under the Act, the Government indicates in its report that the functions of the Service Joint Staff Council include to negotiate on matters relating to the terms and conditions of service with respect to the public servants generally or to the service scheme to which that Service Joint Council belongs; that pursuant to section 8(1), all decisions on any matter which is subject of consideration and determination by the Service Joint Staff Council shall be referred to the Public Service Joint Staff Council for endorsement; that pursuant to sections 17–19, an agreement reached by the Public Service Joint Staff Council or any matter referred to it by the Service Joint Staff Council for approval in relation to any dispute regarding terms and conditions of service of public servants shall be forwarded to the minister; that the matters forwarded to the minister are for award making and in case upon finding that the Public Service Joint Staff Council was unable to reach an agreement, the Minister may refer the dispute to the court. The Committee recalls 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 the public service, 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. In light of the above, the Committee requests the Government to take the necessary measures to amend sections 17 and 18 of the Public Service (Negotiating Machinery) Act, so as to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect in its next report.

(vi)  As regards to the question whether all individual public services have the right to conclude collective agreements, the Government indicates in its report that section 4 of the Act provides that a Service Joint Staff Council shall be established for each of the following services: civil service, teachers service, local government, health service and fire and rescue services and immigration service; that according to section 6, the functions of the Service Joint Staff Council shall be, inter alia, to negotiate on matters relating to the terms and conditions of service with respect to the public servants generally or to the Service Scheme to which that Council belongs.

Zanzibar

Article 4 of the Convention. Trade union recognition for purposes of collective bargaining. In its previous observation, the Committee had requested the Government to amend section 57(2) of the Labour Relations Act of 2005 (LRA), which provides that in order to be designated as representative – and thus be accorded exclusive bargaining agent status – the union concerned must be registered and represent “the majority of employees at the appropriate bargaining level”, which corresponds in fact to 50 per cent of the members of a bargaining unit. While noting once again the Government’s indication that the Committee’s comments have been noted, the Committee recalls that such a system denies the possibility of bargaining to a majority union which fails to secure this absolute majority (General Survey, op. cit., paragraph 241). The Committee therefore requests the Government to take the necessary measures, in the very near future, to amend section 57(2) of the 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, and to provide information thereon in its next report. The Committee also requests 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. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Furthermore, the Committee had requested the Government to provide full information on the procedures and criteria by which the disputes resolution authority, in cases brought before it under section 57(4) of the LRA, determines representative trade union status when there is an objection from another trade union or when the employer does not recognize the trade union. Noting the Government’s statement that the rules and regulations for the implementation of the Act are not yet finalized, the Committee requests the Government to take the necessary measures, in the very near future, to ensure that the rules and regulations will provide for objective procedures and criteria for the determination of representative trade union status and to provide a copy of the said rules and regulations once finalized, as well as information thereon in its next report.

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 bargain collectively, 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 recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, the armed forces and the police, should enjoy the right to collective bargaining with respect to salaries and other conditions of employment. Noting once again the Government’s statement that the rules and regulations referred to above will address this matter, the Committee requests the Government to take the necessary measures, in the very near future, to amend section 54(2)(b) of the LRA so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employees excluded from the right to bargain collectively under section 54(2)(c).

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report. It also notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009. The ITUC alleges that collective agreements must be submitted to the Industrial Court for approval and may be refused registration if they do not conform to the Government’s economic policy. It further alleges employees in privatized industries are denied freedom of association and the right to collective bargaining, despite difficult working conditions. The Committee requests the Government to provide its observations in respect of these matters.

The Committee takes note of the Government’s statement that the Public Service (Negotiating Machinery) Bill is now an Act of Parliament and is referred to as the Public Service (Negotiating Machinery) Act, 2003. The Committee requests the Government to provide a copy of the said Act in its next report.

In respect of the Public Service (Negotiating Machinery) Act, 2003, the Committee notes that according to the Government section 4 of the said Act establishes the service joint staff councils as negotiating and consultation mechanisms for the civil service, the teachers’ service, the local civil service and the health service, and section 9 of the Act provides for the establishment of the public service joint staff council as the highest participatory negotiating and consultative body in the public service. The Government also indicates that section 17(1) of the Act provides that the minister, upon receipt of an agreement reached by the public service joint staff council, may either accept the agreement or remand the matter to the council if he considers further negotiations necessary. In light of these indications, the Committee requests the Government: (1) to indicate whether the Act covers all civil servants, without exception; (2) to indicate whether the Act makes express provision for protection against acts of anti-union discrimination and interference, including through the use of sufficiently dissuasive sanctions; (3) to provide information on the subjects that may be negotiated under the Act, particularly wages, as well as on those matters that may only be the object of consultation; (4) to indicate whether all agreements and decisions of the public service joint staff council require the approval of the minister or another authority; (5) to indicate whether the Act contains any provisions respecting the duration of collective agreements; (6) to indicate in which cases compulsory arbitration may be imposed under the Act; and (7) to indicate whether all the individual public services each have the right to conclude collective agreements.

Zanzibar

Article 4 of the Convention. Trade union recognition for purposes of collective bargaining. Previously, the Committee had requested the Government to amend section 57(2) of the Labour Relations Act of 2005 (LRA), which provides that in order to be designated as representative (and thus be accorded exclusive bargaining agent status), the union concerned must be registered and represent “the majority of employees at the appropriate bargaining level”, which corresponds in fact to 50 per cent of the members of a bargaining unit. While noting the Government’s indication that the Committee’s comments have been noted and will be taken on board in the Rules and Regulations for the implementation of the Act, the Committee must once again recall that such a system denies the possibility of bargaining to a majority union which fails to secure this absolute majority (see 1994 General Survey on freedom of association and collective bargaining, paragraph 241). The Committee once again requests the Government to take the necessary measures to amend section 57(2) of the 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.

In its previous comments, the Committee had requested the Government to provide full information on the procedures and criteria by which the disputes resolution authority, in cases brought before it under section 57(4) of the LRA, determines representative trade union status when the employer does not recognize the trade union or when there is an objection from another trade union. Noting the Government’s statement that the rules and regulations referred to above would address this matter, the Committee expresses the hope that the rules and regulations will provide for objective procedures and criteria for the determination of representative trade union status and requests the Government to provide a copy of the rules and regulations once finalized.

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 bargain collectively, and to indicate the categories of employee excluded from the right to bargain collectively by the minister under section 54(2)(c) of the LRA. Noting the Government’s statement that the rules and regulations referred to above would address this matter, the Committee, recalling once again that only the armed forces and the police, public servants directly engaged in the administration of the State, and workers in essential services in the strict sense of the term may be denied the right to bargain collectively, once again requests the Government to amend section 54(2)(b) of the LRA so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employee excluded from the right to bargain collectively by the minister under section 54(2)(c).

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which principally refer to matters previously raised by the Committee.

Zanzibar

In respect of Zanzibar, the Committee notes the provisions of the Labour Relations Act of 2005 (LRA), which repeals and replaces the Trade Unions Act of 2001 and the Industrial Court Act of 1994. The LRA applies to both the public and private sectors.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes with interest that section 5 of the LRA prohibits acts of anti-union discrimination on the basis of trade union membership or activities. Section 8 similarly prohibits acts of interference, by an employer or employers’ organization, in the affairs of a trade union. The Committee further notes that under section 11 of the LRA, claims of anti-union discrimination or interference may be brought before the Labour Court, which in respect of such actions is empowered to make such order as it deems necessary, including reinstatement, the restoration of any benefit or advantage to the party concerned, the payment of compensation for damages suffered and, where appropriate, of a punitive indemnity.

Article 4. Trade union recognition for purposes of collective bargaining. The Committee notes with interest that the LRA contains several provisions designed to promote free and unfettered collective bargaining. Section 55 guarantees the right to collectively bargain over not just the terms and conditions of employment, but over the regulation or determination of any matter deemed necessary by the parties concerned. Section 56 provides that bargaining may take place at the enterprise, industry, sectoral and national levels, and furthermore section 59 establishes the duty to bargain in good faith on the part of both employers’ and workers’ organizations.

The Committee further observes that, according to section 57(1), a “representative trade union” shall be accorded exclusive bargaining agent status. Section 57(2) further provides that in order to be designated as representative, the union concerned must be registered and represent “the majority of employees at the appropriate bargaining level”. The Committee recalls, in this respect, that a system wherein a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent denies the possibility of bargaining to a majority union which fails to secure this absolute majority (see 1994 General Survey on freedom of association and collective bargaining, paragraph 241). Accordingly, the Committee requests the Government to take the necessary measures to amend section 57(2) 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 notes that under section 57(3) of the LRA, a trade union seeking to be recognized as a representative trade union shall “raise the issue with the employer”. Section 57(4) additionally provides that, where the employer does not recognize the trade union, or if there is any objection raised by another trade union, the trade union seeking representative status shall refer the matter to the disputes resolution authority for determination (the disputes resolution authority, furthermore, is defined under section 3(1) as the “mediator, arbitrator or Court, whichever has the authority in respect of a particular dispute”). In this regard, the Committee recalls that in order to encourage the harmonious development of collective bargaining and avoid disputes, it would be desirable to draw up and apply objective procedures which make it possible to determine the most representative trade unions for the purpose of collective bargaining when it is not clear which trade unions the workers would like to represent them (see General Survey, op. cit., paragraph 242). With reference to the principle cited above, the Committee requests the Government to provide full information on the procedures and criteria by which the disputes resolution authority, in cases brought before it under section 57(4) of the LRA, determines representative trade union status.

Article 6. The Committee notes that section 54(2) of the LRA excludes from the right to bargain collectively not only public officers actually engaged in the administration of government affairs, which is not in contravention of the Convention, but also the following categories of employee: “senior officers who are actually in the management of the affairs of the employee”, and “any other category that the Minister may, in consultation with the Labour Advisory Board, by notice in the gazette exclude”.

In respect of these exclusions, the Committee recalls that only the armed forces and the police, public servants directly engaged in the administration of the State, and workers in essential services in the strict sense of the term may be denied the right to bargain collectively. Accordingly, the Committee requests the Government to take the necessary measures to amend section 54(2)(b) of the LRA, so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employee excluded from the right to bargain collectively by the Minister under section 54(2)(c).

Tanzania

Finally, the Committee requests the Government to provide full information in its next report on all of the following matters raised in its previous comments concerning the United Republic of Tanzania, which it repeats as follows:

1. Article 4. Scope of collective bargaining in the public service. The Committee had noted the draft Public Service (negotiating machinery) Bill, section 4 of which provided for the establishment of a Joint Staff Council (“the Council”) comprised of eight persons working in the public service trade unions, eight representatives of the Government, and two persons – the Chairperson and Vice-Chairperson – appointed by the President.

The Committee had noted that section 6(1) of the draft Bill provided for the functions of the Council, and that section 6(1)(d) in particular empowered it “to negotiate on matters relating to the terms and conditions of service of public employees generally or to specified categories of employee”. The Committee noted, however, that under section 6(2)(a) the Council did not have competence over matters relating to minimum wages, or to matters for which the Minimum Wage Board or Wages Council has been appointed.

The Committee had thus observed that it was unclear whether section 6(2)(a) prevented the Joint Staff Council from negotiating wages in general, or just the minimum wage. It recalled, in this connection, that the special characteristics of the public service required some flexibility in applying the principle of collective bargaining, so that legislative provisions, which allowed Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, are compatible with the Convention, provided that a significant role is left to collective bargaining, and that the authorities respect the agreement concluded (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). The Committee once again requests the Government to provide clarifications on the scope of the Council’s mandate to negotiate the wages of public service employees under sections 6(1)(d) and 6(2)(a). With regard to its previous request to provide information on the Minimum Wage Board and the Wages Council, and to indicate in particular whether these bodies make provision for the representation and input of public employees’ organizations in the wage-fixing process, the Committee notes the Government’s indication that these boards are made up of Government, employers’ and workers’ representatives to safeguard the interests of all constituents.

The Committee had further noted that under section 6(2)(b) of the draft Public Service Bill, the Council was not competent over matters concerning the appointment or non-appointment, disciplinary control, or removal from office of any individual public servant or employee. In this connection the Committee had requested the Government to consider amending section 6(2)(b) so as to grant to organizations of public employees not engaged in the administration of the State, the right to collectively bargain over the abovementioned issues or, at a minimum, on those aspects concerning the fairness of any related proceedings. The Committee notes that the Government reiterates its commitment to observe the tripartite principles in employment and labour issues and indicates that in so doing, it will facilitate the enhancement of the capacity of workers’ unions in the public sector so as to enable effective negotiations and participation in the council. The Committee once again requests the Government to keep it informed of the measures taken or envisaged to this end, including the amendment of section 6(2)(b) of the draft Public Service Bill.

Generally, the Committee recalls that while tripartism is particularly appropriate for regulation of questions of a large scope (drafting of legislation, formulating labour policies), the principle of tripartism should not substitute the principle of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of work. The Committee recalls that in the public sector, free and voluntary bargaining with a view to the regulation of terms and conditions of employment should be, in general, conducted between workers’ organizations and public employers. The Committee requests the Government to keep it informed of the measures taken to ensure the application of this principle.

2. The Committee notes that the Government failed to provide information on certain points previously raised, which read as follows:

Administrative approval of collective agreements. The Committee notes that, where an agreement is reached by the Joint Staff Council in relation to any dispute regarding the terms and conditions of service of public employees, section 11(2)(b) of the draft Public Service Bill empowers the Minister to make such modifications to the agreement as the Chairperson and Vice-Chairperson of the Council find necessary and consent to. If the Chairperson and Vice-Chairperson do not consent to the Minister’s modifications, section 11(4) provides that the matter shall be regarded and treated as a dispute and referred by the Minister back to the Council for further negotiations. Under these circumstances, the Committee recalls that legislation providing that agreements must be submitted for approval to the administrative authority before coming into force is not compatible with Convention No. 98, unless it merely stipulates that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey, op. cit., paragraph 251). The Committee therefore requests the Government to amend section 11 of the draft Public Services Bill so as to remove the Minister’s power to modify collective agreements concluded by the Joint Staff Council. Noting further that section 11 refers only to negotiated agreements for disputes regarding terms and conditions of service, the Committee asks the Government to provide clarification on the scope of the Joint Staff Council’s mandate to negotiate matters that are not subject to dispute.

Duration of collective agreements. The Committee notes that section 11(5) of the draft Bill states that “every award made [i.e. every agreement accepted by the Minister] shall be final and binding upon the Government and the operational service employees to whom the agreement relates for a period of 12 months beginning on the date on which the award was made”. Section 11(6), moreover, provides that no matter already covered by an agreement shall be discussed by the Council or placed on the Council’s agenda for a period of 12 months from the date on which the agreement was made. The Committee considers that legal provisions setting forth in a rigid manner the lengths of time negotiated agreements shall be in force for, and during which negotiations on the matters contained in these agreements may not take place, run counter to the principle of free collective bargaining. Accordingly, it asks the Government to amend section 11(5) of the draft Bill so as to allow the interested parties to negotiate a longer duration for the agreements they reach, and to amend section 11(6) so as to not prohibit the parties, if they wish, from renegotiating matters already covered by agreements.

Compulsory arbitration. The Committee notes that several provisions of the draft Public Service Bill comprise a system of compulsory arbitration. Section 12 of the draft Public Service Bill provides that, where the Joint Staff Council is unable to reach agreement on any dispute, the Chairperson and Vice-Chairperson shall submit a report to the Minister containing the minutes of the Council’s deliberations and a memorandum on the subject matter of the deliberations. The Minister may then refer the dispute back to the Council for further negotiation under section 13(a), or refer the dispute to the court under section 13(b). Section 15 provides that where the Minister has referred the dispute to the court, the court shall consider the matter and submit a report in respect thereof to the Minister. Section 17(1) provides that the Minister may then submit the report, together with any comments he may wish to make thereon, to the President of the Joint Staff Council, who, under section 17(2) may then issue an award on the dispute that is binding for a period of 12 months (section 19). With respect to the above provisions, the Committee recalls that compulsory arbitration is acceptable only for: (1) workers employed in essential services in the strict sense of the term, that is to say services whose interruption would endanger the life, personal safety or health of the whole or part of the population; and (2) public employees engaged in the administration of the State. Its imposition, at the discretion of the public authorities and leading to a final award which is binding upon the parties concerned, is otherwise not compatible with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey, op. cit., paragraphs 254–259). The Committee notes, moreover, that the ICFTU confirms these restrictions on collective bargaining to fix the terms of employment of public service employees. In these circumstances, the Committee requests the Government to amend the above-noted provisions so as to remove compulsory arbitration for public employees who are not engaged in the administration of the State.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s communication which contains its reply to some of the issues raised in the Committee’s previous direct request.

1. Article 4. Scope of public service collective bargaining. The Committee had noted the draft public service (negotiating machinery) Bill, section 4 of which provided for the establishment of a Joint Staff Council (“the Council”) comprised of eight persons working in the public service trade unions, eight representatives of the Government, and two persons – the Chairperson and Vice-Chairperson – appointed by the President.

The Committee had noted that section 6(1) of the draft Bill provided for the functions of the Council, and that section 6(1)(d) in particular empowered it “to negotiate on matters relating to the terms and conditions of service of public employees generally or to specified categories of employee”. The Committee noted, however, that under section 6(2)(a) the Council did not have competence over matters relating to minimum wages, or to matters for which the Minimum Wage Board or Wages Council has been appointed.

The Committee had thus observed that it was unclear whether section 6(2)(a) prevented the Joint Staff Council from negotiating wages in general, or just the minimum wage. It recalled, in this connection, that the special characteristics of the public service required some flexibility in applying the principle of collective bargaining, so that legislative provisions, which allowed Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, are compatible with the Convention, provided that a significant role is left to collective bargaining, and that the authorities respect the agreement concluded (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). The Committee once again requests the Government to provide clarifications on the scope of the Council’s mandate to negotiate the wages of public service employees under sections 6(1)(d) and 6(2)(a). With regard to its previous request to provide information on the Minimum Wage Board and the Wages Council, and to indicate in particular whether these bodies make provision for the representation and input of public employees’ organizations in the wage-fixing process, the Committee notes the Government’s indication that these boards are made up of Government, employers’ and workers’ representatives to safeguard the interests of all constituents.

The Committee had further noted that under section 6(2)(b) of the draft public service Bill, the Council was not competent over matters concerning the appointment or non-appointment, disciplinary control, or removal from office of any individual public servant or employee. In this connection the Committee had requested the Government to consider amending section 6(2)(b) so as to grant to organizations of public employees not engaged in the administration of the State, the right to collectively bargain over the abovementioned issues or, at a minimum, on those aspects concerning the fairness of any related proceedings. The Committee notes that the Government reiterates its commitment to observe the tripartite principles in employment and labour issues and indicates that in so doing, it will facilitate the enhancement of the capacity of workers’ unions in the public sector so as to enable effective negotiations and participation in the council. The Committee once again requests the Government to keep it informed of the measures taken or envisaged to this end, including the amendment of section 6(2)(b) of the draft public service Bill.

Generally, the Committee recalls that while tripartism is particularly appropriate for regulation of questions of a large scope (drafting of legislation, formulating labour policies), the principle of tripartism should not substitute the principle of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of work. The Committee recalls that in the public sector, free and voluntary bargaining with a view to the regulation of terms and conditions of employment should be, in general, conducted between workers’ organizations and public employers. The Committee requests the Government to keep it informed of the measures taken to ensure the application of this principle.

2. The Committee notes that the Government failed to provide information on certain points raised in its previous direct request, which read as follows:

Administrative approval of collective agreements. The Committee notes that, where an agreement is reached by the Joint Staff Council in relation to any dispute regarding the terms and conditions of service of public employees, section 11(2)(b) of the draft Public Service Bill empowers the Minister to make such modifications to the agreement as the Chairperson and Vice-Chairperson of the Council find necessary and consent to. If the Chairperson and Vice-Chairperson do not consent to the Minister’s modifications, section 11(4) provides that the matter shall be regarded and treated as a dispute and referred by the Minister back to the Council for further negotiations. Under these circumstances, the Committee recalls that legislation providing that agreements must be submitted for approval to the administrative authority before coming into force is not compatible with Convention No. 98, unless it merely stipulates that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey, op. cit., paragraph 251). The Committee therefore requests the Government to amend section 11 of the draft Public Services Bill so as to remove the Minister’s power to modify collective agreements concluded by the Joint Staff Council. Noting further that section 11 refers only to negotiated agreements for disputes regarding terms and conditions of service, the Committee asks the Government to provide clarification on the scope of the Joint Staff Council’s mandate to negotiate matters that are not subject to dispute.

Duration of collective agreements. The Committee notes that section 11(5) of the draft Bill states that “every award made [i.e. every agreement accepted by the Minister] shall be final and binding upon the Government and the operational service employees to whom the agreement relates for a period of 12 months beginning on the date on which the award was made”. Section 11(6), moreover, provides that no matter already covered by an agreement shall be discussed by the Council or placed on the Council’s agenda for a period of 12 months from the date on which the agreement was made. The Committee considers that legal provisions setting forth in a rigid manner the lengths of time negotiated agreements shall be in force for, and during which negotiations on the matters contained in these agreements may not take place, run counter to the principle of free collective bargaining. Accordingly, it asks the Government to amend section 11(5) of the draft Bill so as to allow the interested parties to negotiate a longer duration for the agreements they reach, and to amend section 11(6) so as to not prohibit the parties, if they wish, from renegotiating matters already covered by agreements.

Compulsory arbitration. The Committee notes that several provisions of the draft Public Service Bill comprise a system of compulsory arbitration. Section 12 of the draft Public Service Bill provides that, where the Joint Staff Council is unable to reach agreement on any dispute, the Chairperson and Vice-Chairperson shall submit a report to the Minister containing the minutes of the Council’s deliberations and a memorandum on the subject matter of the deliberations. The Minister may then refer the dispute back to the Council for further negotiation under section 13(a), or refer the dispute to the court under section 13(b). Section 15 provides that where the Minister has referred the dispute to the court, the court shall consider the matter and submit a report in respect thereof to the Minister. Section 17(1) provides that the Minister may then submit the report, together with any comments he may wish to make thereon, to the President of the Joint Staff Council, who, under section 17(2) may then issue an award on the dispute that is binding for a period of 12 months (section 19). With respect to the above provisions, the Committee recalls that compulsory arbitration is acceptable only for: (1) workers employed in essential services in the strict sense of the term, that is to say services whose interruption would endanger the life, personal safety or health of the whole or part of the population; and (2) public employees engaged in the administration of the State. Its imposition, at the discretion of the public authorities and leading to a final award which is binding upon the parties concerned, is otherwise not compatible with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey, op. cit. paragraphs 254–259). The Committee notes, moreover, that the ICFTU confirms these restrictions on collective bargaining to fix the terms of employment of public service employees. In these circumstances, the Committee requests the Government to amend the above-noted provisions so as to remove compulsory arbitration for public employees who are not engaged in the administration of the State.

The Committee hopes that the Government’s next report will contain information on all the abovementioned matters.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the report of the Government, and the draft Public Service (Negotiating Machinery) Bill.

Article 4. Scope of public service collective bargaining. The Committee notes the draft Public Service (Negotiating Machinery) Bill, section 4 of which provides for the establishment of a Joint Staff Council (“the Council”) comprised of eight persons working in the public service trade unions, eight representatives of the Government, and two persons – the Chairperson and Vice-Chairperson – who shall be appointed by the President.

The Committee notes that section 6(1) of the draft Bill provides for the functions of the Council, and that section 6(1)(d) in particular empowers it “to negotiate on matters relating to the terms and conditions of service of public employees generally or to specified categories of employee”. The Committee notes, however, that under section 6(2)(a) the Council shall not have competence over matters relating to minimum wages, or to matters for which the Minimum Wage Board or Wages Council has been appointed.

The Committee thus observes that it is unclear whether section 6(2)(a) prevents the Joint Staff Council from negotiating wages in general, or just the minimum wage. It recalls, in this connection, that the special characteristics of the public service require some flexibility in applying the principle of collective bargaining, so that legislative provisions, which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, are compatible with the Convention, provided that a significant role is left to collective bargaining, and that the authorities respect the agreement concluded (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). Accordingly, the Committee requests the Government to provide clarification on the scope of the Council’s mandate to negotiate the wages of public service employees under sections 6(1)(d) and 6(2)(a). The Committee also requests the Government to provide information on the Minimum Wage Board and the Wages Council, and to indicate in particular whether these bodies make provision for the representation and input of public employees’ organizations in the wage-fixing process.

The Committee further notes that under section 6(2)(b) of the draft Public Service Bill, the Council is not competent over matters concerning the appointment or non-appointment, disciplinary control, or removal from office of any individual public servant or employee. In this connection the Committee, recalling that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention (see General Survey, op. cit., paragraph 250), requests the Government to consider amending section 6(2)(b) so as to grant to organizations of public employees not engaged in the administration of the State the right to collectively bargain over the abovementioned issues or, at a minimum, on those aspects concerning the fairness of any related proceedings.

Administrative approval of collective agreements. The Committee notes that, where an agreement is reached by the Joint Staff Council in relation to any dispute regarding the terms and conditions of service of public employees, section 11(2)(b) of the draft Public Service Bill empowers the Minister to make such modifications to the agreement as the Chairperson and Vice-Chairperson of the Council find necessary and consent to. If the Chairperson and Vice-Chairperson do not consent to the Minister’s modifications, section 11(4) provides that the matter shall be regarded and treated as a dispute and referred by the Minister back to the Council for further negotiations. Under these circumstances, the Committee recalls that legislation providing that agreements must be submitted for approval to the administrative authority before coming into force is not compatible with Convention No. 98, unless it merely stipulates that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey, op. cit., paragraph 251). The Committee therefore requests the Government to amend section 11 of the draft Public Services Bill so as to remove the Minister’s power to modify collective agreements concluded by the Joint Staff Council. Noting further that section 11 refers only to negotiated agreements for disputes regarding terms and conditions of service, the Committee asks the Government to provide clarification on the scope of the Joint Staff Council’s mandate to negotiate matters that are not subject to dispute.

Duration of collective agreements. The Committee notes that section 11(5) of the draft Bill states that “every award made [i.e. every agreement accepted by the Minister] shall be final and binding upon the Government and the operational service employees to whom the agreement relates for a period of 12 months beginning on the date on which the award was made”. Section 11(6), moreover, provides that no matter already covered by an agreement shall be discussed by the Council or placed on the Council’s agenda for a period of 12 months from the date on which the agreement was made. The Committee considers that legal provisions setting forth in a rigid manner the lengths of time negotiated agreements shall be in force for, and during which negotiations on the matters contained in these agreements may not take place, run counter to the principle of free collective bargaining. Accordingly, it asks the Government to amend section 11(5) of the draft Bill so as to allow the interested parties to negotiate a longer duration for the agreements they reach, and to amend section 11(6) so as to not prohibit the parties, if they wish, from renegotiating matters already covered by agreements.

Compulsory arbitration The Committee notes that several provisions of the draft Public Service Bill comprise a system of compulsory arbitration. Section 12 of the draft Public Service Bill provides that, where the Joint Staff Council is unable to reach agreement on any dispute, the Chairperson and Vice-Chairperson shall submit a report to the Minister containing the minutes of the Council’s deliberations and a memorandum on the subject matter of the deliberations. The Minister may then refer the dispute back to the Council for further negotiation under section 13(a), or refer the dispute to the court under section 13(b). Section 15 provides that where the Minister has referred the dispute to the court, the court shall consider the matter and submit a report in respect thereof to the Minister. Section 17(1) provides that the Minister may then submit the report, together with any comments he may wish to make thereon, to the President of the Joint Staff Council, who, under section 17(2) may then issue an award on the dispute that is binding for a period of 12 months (section 19). With respect to the above provisions, the Committee recalls that compulsory arbitration is acceptable only for: (1) workers employed in essential services in the strict sense of the term, that is to say services whose interruption would endanger the life, personal safety or health of the whole or part of the population; and (2) public employees engaged in the administration of the State. Its imposition, at the discretion of the public authorities and leading to a final award which is binding upon the parties concerned, is otherwise not compatible with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey, op. cit. paragraphs 254-259). The Committee notes, moreover, that the ICFTU confirms these restrictions on collective bargaining to fix the terms of employment of public service employees. In these circumstances, the Committee requests the Government to amend the above-noted provisions so as to remove compulsory arbitration for public employees who are not engaged in the administration of the State.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes from the Government’s report that in order to ensure that workers’ and employers’ organizations are protected against acts of interference by each other, specific provisions have been included in the Employment and Labour Relations Act concerning the functions to be performed by workers’ representatives, the disclosure of information to trade unions, the granting of paid trade union leave, the recognition of exclusive bargaining agents and the duty to bargain in good faith. While taking due note of these provisions, the Committee considers that legislation should establish an express prohibition of acts of interference coupled with rapid appeal procedures as well as sufficiently dissuasive sanctions against such acts in order to ensure the application of Article 2 in practice (see General Survey on freedom of association and collective bargaining, 1994, paragraph 232). The Committee therefore requests the Government to indicate if the legislation contains provisions on this point and to send the relevant texts.

With regard to its previous comments concerning the Trade Unions Act, the Committee notes that this Act has been repealed by the Employment and Labour Relations Act (section 103 and Second Schedule). However, the Committee also notes that under section 2(1)(iii) and (iv) of the new Act, prison staff and workers in the national service are excluded from the scope of the new legislation. The Committee recalls that according to Articles 5 and 6 of the Convention, the right to bargain collectively applies to all workers and can only be restricted in respect of the police, the armed forces and public servants engaged in the administration of the State. The Committee requests the Government to indicate the provisions which enable prison staff to exercise the right to collective bargaining and to specify the exact function performed by employees in the national service.

Zanzibar

With regard to its previous comments concerning the need to provide trade union members with protection against anti-union discrimination during recruitment and for participation in trade union activities, the Committee notes with interest from the Government’s report that, in addition to the protection currently provided in section 7 of the Trade Union Act, in the framework of the forthcoming labour law reform provisions for protection of trade union members against anti-union discrimination will be provided in the Zanzibar Industrial Court Act and the new Labour Act. The Committee requests the Government to keep it informed of the progress made in the adoption of the Zanzibar Industrial Court Act and the new Labour Act and to provide copies of the new laws once adopted.

With regard to its previous request for information concerning the way in which protection is provided against acts of interference by employers’ and workers’ organizations, the Committee notes from the Government’s report that section 10 of the Trade Union Act provides adequate protection against acts of interference by prohibiting support by financial or other means to a workers’ organization with a view to dominating it. The Committee trusts that in the framework of the forthcoming labour law reform mentioned by the Government, the Zanzibar Industrial Court Act and the new Labour Act will include provisions on protection against acts of interference which shall be accompanied by rapid appeal procedures and sufficiently dissuasive sanctions. The Committee requests the Government to indicate in its next report any measures taken or contemplated to this effect.

With regard to its previous request for information concerning the criteria for the registration of collective agreements and the reasons given for a refusal of registration (sections 4(5), 18(2)(c) and 28(6)(b) of the Zanzibar Industrial Court Act, 1994), the Committee notes that the Government has taken note of this point and indicates that this issue will be corrected during the forthcoming labour law reform. The Committee requests the Government to indicate in its next report any measures taken or contemplated in this respect.

The Committee notes that the Government does not provide any information with regard to its previous comments concerning the exclusion of seafarers and the public sector as a whole from the scope of the Labour Act (section 3 of the Labour Act). The Committee hopes that special provisions will be adopted during the current labour law reform so that these categories of workers may enjoy the rights and guarantees provided by the Convention, and requests the Government to keep it informed in this respect.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report.

The Committee takes note with satisfaction of the recent adoption of the Employment and Labour Relations Act, 2004 and the Labour Institutions Act, 2004 which put an end to the Industrial Court’s power to refuse the registration of a collective agreement if it is not in conformity with the Government’s economic policy by repealing Act No. 41 of 1967 (section 103 and Second Schedule of the Employment and Labour Relations Act to which section 66(1) of the Labour Institutions Act also refers).

The Committee is addressing a request on certain other points directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

It notes in particular the Government’s indication that a labour law reform project has been launched to render its legislation compatible with the Convention, without, however, providing any detailed information in this regard. The Committee expresses the firm hope that the next report will include full information on the matters raised in its previous direct request, which concerned the following points.

1. The Committee had observed that section 82(c) of the Trade Unions Act, 1998, prohibits officials of the prison service from becoming members of any trade union organization, thereby denying them the right to bargain collectively, in contradiction with Article 5 of the Convention (except when these workers are integrated in the structure of the police or military forces).

2. The Committee also observed that section 8 of Act No. 2 of 1993 amending the Industrial Court of Tanzania Act, 1967, allows the Labour Commissioner to refer a dispute in the context of a collective agreement to the court, which shall make an award or advise the Labour Commissioner accordingly. The Committee recalled that, in general, compulsory arbitration by decision of the authorities and not freely chosen by both parties is not in conformity with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 254-259).

3. The Committee requested the Government to take the necessary measures to bring its legislation into full conformity with Article 4 of the Convention.

Zanzibar

Article 1 of the Convention. The Committee had asked the Government to take the appropriate measures to protect trade union members against anti-union discrimination at recruitment or by reason of participation in legitimate union activities, given the fact that the provisions of the Zanzibar Industrial Court Act and of the new Labour Act do not contemplate this protection.

Article 2. The Committee had asked the Government to indicate how adequate protection, coupled with dissuasive sanctions, is granted to organizations of workers and employers against acts of interference by each other and, in particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or their organizations (see General Survey, op. cit., paragraphs 228-231).

Article 4. The Committee had asked the Government to indicate criteria for the registration of collective agreements and reasons used for the refusal of registration (sections 4(5), 18(2)(c) and 28(6)(b) of the Zanzibar Industrial Court Act, 1994).

Articles 5 and 6. Noting that the new Labour Act only applies to the private sector and excludes from its scope seafarers (section 3 of the Labour Act), the Committee recalled that all workers should enjoy the rights and guarantees provided by the Convention with the sole possible exception of public servants engaged in the administration of the State, the armed forces and the police.

The Committee asks the Government once again to amend its legislation in this regard and to keep it informed of developments.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

In its previous comments, the Committee had requested the Government to take measures to amend sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, which empower the court to refuse to register a collective agreement if the agreement is not in conformity with the Government’s economic policy. The Committee had recalled that provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation.

In its latest report, the Government indicates that it has launched a labour law reform project. The Committee requests the Government once again to take measures to amend the legislation accordingly and to keep it informed of any developments in this regard.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

1.  The Committee observes that section 82(c) of the Trade Unions Act, 1998, prohibits officials of the prison service from becoming members of any trade union organization, thereby denying them the right to bargain collectively, in contradiction with Article 5 of the Convention (except when these workers are integrated in the structure of the police or military forces).

2.  The Committee observes that section 8 of Act No. 2 of 1993 amending the Industrial Court of Tanzania Act, 1967, allows the Labour Commissioner to refer a dispute in the context of a collective agreement to the court which shall make an award or advise the Labour Commissioner accordingly. The Committee recalls that, in general, compulsory arbitration by decision of the authorities and not freely chosen by both parties is not in conformity with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 254-259).

3.  The Committee requests the Government to take the necessary measures to bring its legislation into full conformity with Article 4 of the Convention.

Zanzibar

Article 1 of the Convention.  The Committee asks the Government to take the appropriate measures to protect trade union members against anti-union discrimination at recruitment or by reason of participation in legitimate union activities, given the fact that the provisions of the Zanzibar Industrial Court Act and of the new Labour Act do not contemplate this protection.

Article 2.  The Committee asks the Government to indicate how adequate protection, coupled with dissuasive sanctions, is granted to organizations of workers and employers against acts of interference by each other, and in particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or their organizations (see General Survey, op. cit., paragraphs 228-231).

Article 4.  The Committee asks the Government to indicate criteria for the registration of collective agreements and reasons used for the refusal of registration (sections 4(5), 18(2)(c) and 28(6)(b) of the Zanzibar Industrial Court Act, 1994).

Articles 5 and 6.  Noting that the new Labour Act only applies to the private sector and excludes from its scope seafarers (section 3 of the Labour Act), the Committee recalls that all workers should enjoy the rights and guarantees provided by the Convention with the sole possible exception of public servants engaged in the administration of the State, the armed forces and the police.

The Committee asks the Government to amend its legislation in this regard and to keep it informed of developments.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report.

The Committee has commented for several years on sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, as amended in 1990 and 1993, which empower the court to refuse to register a collective agreement if the agreement is not in conformity with the Government’s economic policy. The Committee recalls as a general rule that provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. In this respect, the Committee notes the Government’s statement that efforts are being made to amend the Act.

The Committee requests the Government to take measures to amend the legislation accordingly and to keep it informed of any developments in this regard.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report and the adoption of the Trade Unions Act, 1998.

1. The Committee observes that section 82(c) of this Act prohibits officials of the prison service from becoming members of any trade union organization, denying, by this means, the right to bargain collectively, in contradiction with Article 5 of the Convention (except when these workers are integrated in the structure of the police force or military forces).

2. The Committee observes that the Government's report does not answer the previous direct request which is, therefore, recalled and read as follows:

The Committee notes that section 8 of Act No. 2 of 1993 amending the Industrial Court Act, 1967, allows the Labour Commissioner to refer a dispute in the context of a collective agreement to the court which shall make an award or advise the Labour Commissioner accordingly. The Committee recalls that, in general, compulsory arbitration by decision of the authorities and not freely chosen by both parties is not in conformity with the principles of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 254-259).

3. The Committee requests the Government to take the necessary measures to bring its legislation into full conformity with Article 4 of the Convention.

Zanzibar

Article 1. The Committee asks the Government to take appropriate measures to protect trade union members against anti-union discrimination at recruitment or by reason of participation in legitimate union activities, given the fact that the provisions of the Zanzibar Industrial Court Act and of the new Labour Act do not contemplate this protection.

Article 2. The Committee would ask the Government to indicate how adequate protection and dissuasive sanctions are ensured to workers' and employers' organizations against any acts of interference by each other, i.e. protection against trade unions dominated by the employers by financial or other means or against acts of interference in the functioning of a union.

Article 4. The Committee would ask the Government to indicate criteria for registration of collective agreements and reasons used for the refusal of registration (section 4(5) of the Zanzibar Industrial Court Act, 1994).

Articles 5 and 6. Noting that the new Labour Act only applies to the private sector and excludes from its scope seamen (section 3 of the Labour Act), the Committee recalls that all workers should enjoy rights and guarantees provided by the Convention with the sole possible exception of public servants engaged in the administration of the State, the armed forces and the police.

The Committee would ask the Government to answer its request for information and to amend the legislation in this regard.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee takes note of the Government's report and of the adoption of the Trade Unions Act, 1998.

The Committee had made comments for several years on the provisions of sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, as amended in 1990 and 1993, which give the court the power to refuse to register a collective agreement if the agreement is not in conformity with the Government's economic policy. In this respect, the Committee recalls as a general rule that the provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation.

The Committee requests the Government to take measures to amend the legislation in this regard and to keep the Committee informed.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied by the Government's report. The Committee notes also that section 8 of Act No. 2 of 1993 amending the Industrial Court Act, 1967 allows the Labour Commissioner to refer a dispute in the context of a collective agreement to the Court which "shall make an award or advise the Labour Commissioner accordingly".

The Committee recalls that compulsory arbitration by decision of the authorities and not freely chosen by both parties is not in conformity with the principles of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 254-259).

The Committee requests the Government to take the necessary measures to bring its legislation into full conformity with the principle of voluntary collective bargaining provided by Article 4 of the Convention.

Zanzibar

The Committee notes with interest the entry into force on 1 February 1998 of the new Labour Act in Zanzibar.

The Committee would like to draw the attention of the Government to the following points.

Article 1. The Committee would ask the Government to take appropriate measures to protect trade union members against anti-union discrimination in employment recruitment or by reason of participation in legitimate union activities, given the fact that the provisions of the Zanzibar Industrial Court Act and of the new Labour Act do not contemplate this protection.

Article 2. The Committee would ask the Government to indicate how adequate protection and sanctions are ensured to workers' and employers' organizations against any acts of interference by each other, i.e. protection against trade unions dominated by the employers by financial or other means or against acts of interference in the functioning of a union.

Article 4. The Committee would ask the Government to indicate criteria for registration of collective agreements and reasons used for the refusal of registration (section 4(5) of the Zanzibar Industrial Court Act, 1994).

Articles 5 and 6. Noting that the new Labour Act only applies to the private sector excluding from its scope even seamen (section 3 of the Labour Act), the Committee recalls that all workers should enjoy rights and guarantees provided by the Convention with the sole possible exception of public servants not engaged in the administration of the State.

The Committee would request the Government to inform it on any measure taken or envisaged for a better application of the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the report supplied by the Government.

The Committee had recalled for several years that the provisions of sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, as amended in 1990 and 1993, give the Court the power to refuse to register a collective agreement if the agreement is not in conformity with the Government's economic policy. The Committee had observed that the Government had explained that registration of collective agreements was intended to give them compulsory force and had admitted that registration had sometimes been refused.

The Committee notes with interest that the Government states in its report that it is seriously looking at ways of amending the legislation to bring it into conformity with the Convention. The Committee recalls as a general rule, that the provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation.

The Committee requests the Government to indicate in its next report all the measures taken or envisaged to bring the legislation into conformity with the Convention.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that for several years it has been indicating to the Government that the provisions of sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, as amended in 1990 and 1993, give the court the power to refuse to register a collective agreement if the Convention is not in conformity with the Government's economic policy. The Committee considers that these provisions are not compatible with the principles of voluntary negotiation of collective agreements between employers and employers' organizations on the one hand and workers' organizations on the other hand with a view to regulating conditions of employment by this means. The Committee observes that in its last report the Government explains that registration of collective agreements is intended to give them compulsory force. It admits that registration has sometimes been refused but adds that that has not prevented the parties from executing their agreement. The Government states that registration is intended to ensure that the provisions of the agreement do not contradict the provisions of the Industrial Court Act or other legislation and that it so happens that parties to the refused agreement decide to amend it so as to ensure no contradiction in its execution. According to the Government, the Industrial Court's role is advisory. It emphasizes, however, that the parties may opt to execute an agreement without registering it and this has no consequences for the agreement. The Committee notes with interest that, according to the Government, the parties may apply the agreement even though it has not been registered. It recalls, however, as a general rule, that the provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective 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 collective agreement subject to prior approval, which is a violation of the principle of autonomy of the parties. The Committee requests the Government to indicate in its next report all the measures taken or envisaged to take into account the clarification mentioned above and to bring the legislation into conformity with the practice it affirms in its report. Furthermore, it also asks it to specify how many unregistered collective agreements have actually been applied between the parties during the period covered by the report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report.

The Committee recalls that for several years it has been indicating to the Government that the provisions of sections 22(e)(i), (v), (vii) and (ix), 23(3)(c) and 39(7)(c) of the Permanent Labour Tribunal Act, No. 41 of 1967, as amended in 1990 and 1993, give the court the power to refuse to register a collective agreement if the Convention is not in conformity with the Government's economic policy. The Committee considers that these provisions are not compatible with the principles of voluntary negotiation of collective agreements between employers and employers' organizations on the one hand and workers' organizations on the other hand with a view to regulating conditions of employment by this means.

The Committee observes that in its last report the Government explains that registration of collective agreements is intended to give them compulsory force. It admits that registration has sometimes been refused but adds that that has not prevented the parties from executing their agreement. The Government states that registration is intended to ensure that the provisions of the agreement do not contradict the provisions of the Industrial Court Act or other legislation and that it so happens that parties to the refused agreement decide to amend it so as to ensure no contradiction in its execution. According to the Government, the Industrial Court's role is advisory. It emphasizes, however, that the parties may opt to execute an agreement without registering it and this has no consequences for the agreement.

The Committee notes with interest that, according to the Government, the parties may apply the agreement even though it has not been registered. It recalls, however, as a general rule, that the provisions requiring prior approval of a collective agreement for it to enter into force are only compatible with the Convention provided they merely stipulate that approval may be refused if the collective 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 collective agreement subject to prior approval, which is a violation of the principle of autonomy of the parties.

The Committee requests the Government to indicate in its next report all the measures taken or envisaged to take into account the clarification mentioned above and to bring the legislation into conformity with the practice it affirms in its report. Furthermore, it also asks it to specify how many unregistered collective agreements have actually been applied between the parties during the period covered by the report.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's reports and the Industrial Court of Tanzania Act No. 2 of 1993 which amends the Permanent Tribunal Act No. 41 of 1967.

Further to its previous comments, the Committee observes that under sections 23(2), 22(e) and 39 of the Act, the Court retains discretionary power to decide whether or not to register an agreement. The Committee stresses again that the right of employees to negotiate freely wages and terms of employment with employers is a fundamental aspect of freedom of association and that, rather than subjecting the validity of collective agreements to government approval, steps should be taken to persuade the parties to have regard voluntarily in their negotiations to major economic and social policy considerations, the final decision on the matter resting with the parties to the agreement (1994 General Survey on Freedom of Association and Collective Bargaining, paragraphs 251-253).

The Committee further notes from the reports that it is the Government's position not to intervene in voluntary agreements in practice.

The Committee asks the Government to provide information on measures taken to promote voluntary collective bargaining and to indicate in its next report whether the registration of any agreements has been refused by the Court as well as the reasons given for such refusal.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and recalls that its previous comments concerned the legal requirement that negotiated or voluntary collective agreements be registered by the Permanent Labour Tribunal and that, in the event of their non-conformity with the Government's economic policies, registration would be refused, or accepted after modification of their clauses, without the possibility of appealing (sections 4, 6, 16, 22, 23, 27 and 39 of the Permanent Labour Tribunal Act, No. 41 of 1967), contrary to Article 4 of the Convention.

The Committee had observed that under sections 23(2) and 22(e) of the Act, the Tribunal has a wide discretionary power to decide whether or not to register a negotiated agreement. The Committee had indicated that the right of employees to negotiate freely wages and terms of employment with employers is a fundamental aspect of freedom of association and that, rather than subjecting the validity of collective agreements to government approval, steps should be taken to persuade the parties to have regard voluntarily in their negotiations to major economic and social policy considerations and to the general interest invoked by the Government (General Survey, Freedom of Association and Collective Bargaining, 1983, paragraphs 309-315).

In its report, the Government states that it has taken into consideration the comments made by the Committee and has requested the ILO expert who is currently assisting the Government in the drafting of the new Labour Code, to advise the Government on amendments to be made, where appropriate, to this end.

The Committee requests the Government to provide in its next report information on the measures that have been taken to give full effect to the Convention.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's report and recalls that its previous comments concerned the legal requirement that negotiated or voluntary collective agreements be registered by the Permanent Labour Tribunal and that, in the event of their non-conformity with the Government's economic policies, registration would be refused, or accepted after modification of their clauses, without the possibility of appealing (sections 4, 6, 16, 22, 23, 27 and 39 of the Permanent Labour Tribunal Act, No. 41 of 1967), contrary to Article 4 of the Convention.

According to the Government, although the Labour Commissioner and the Minister of Labour have the power to advise the Tribunal to modify such agreements, this is to ensure that the minimum standards provided for in the legislation are applied and is in no way designed to restrict free negotiations between employers and employees.

The Committee points out however that under sections 23(2) and 22(e) of the Act, the Tribunal has a wide discretionary power to decide whether or not to register a negotiated agreement. The Committee recalls once more that the right of employees to negotiate freely wages and terms of employment with employers is a fundamental aspect of freedom of association and that, rather than subjecting the validity of collective agreements to government approval, steps should be taken to persuade the parties to have regard voluntarily in their negotiations to major economic and social policy considerations and to the general interest invoked by the Government (General Survey, 1983, paragraphs 309-315).

The Committee therefore requests the Government to adopt legislative measures providing expressly that the power of the Minister of Labour as regards the registration of collective agreements is circumscribed so as to ensure that the minimum standards provided for in the legislation are applied, thus giving full effect to Article 4, which could be done during the drafting of the new Labour Code, currently under progress with the technical assistance of an ILO expert. The Committee further requests the Government to provide in its next report information on any developments in that respect.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report. It recalls that its previous comments concerned the following point:

- the requirement that negotiated or voluntary collective agreements be registered by the permanent labour tribunal and that, in the event of their non-conformity with the Government's economic policies, registration be refused or accepted after modification of their clauses, without the possibility of appealing (sections 4, 6, 16, 22, 23, 27 and 39 of the Permanent Labour Tribunal Act, No. 41 of 1967), contrary to Article 4 of the Convention.

In its previous observation, the Committee noted that, in practice, measures had been taken to encourage the development of collective bargaining, particularly by advising, at various levels, the parties concerned of the economic conditions of the country. It, nevertheless, requested the Government to amend the legislation so as to bring it into greater conformity with Article 4 of the Convention under which the principle of free negotiation implies, when economic conditions make this necessary, that the observance by the parties concerned of government policies should be sought through appropriate consultation procedures and not that these policies should be imposed, inter alia, through a system of compulsory registration of collective agreements. If such a registration system does exist, it should be limited to ensuring that the minimum standards set forth in the labour legislation are respected and to verifying questions of form.

On several occasions the Government has stated its readiness to amend the legislation, particularly on the basis of proposals that were formulated, at its request, by the ILO.

In its last report, the Government indicates that a draft Labour Code is currently under study with the technical assistance of an ILO expert, whose proposals in this connection will be transmitted to the Tripartite Advisory Labour Council and that the legislation can only be amended once the Government has been informed of the recommendations of the Council.

The Committee notes this statement and requests the Government to supply information in its next report on the measures that have been taken to give full effect to the Convention.