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

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

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization. Right of organizations to organize their activities and to formulate their programmes freely. In its previous comment, the Committee trusted that the Government would bring its legislation into conformity with the Convention and in this respect referred to the following issues:

• -the need to amend section 2(1)(iii) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) so as to ensure that prison guards enjoy the right to establish and join organizations of their own choosing;
• -the need to amend section 2(1)(iv) of the ELRA so as to clearly indicate that only the military members of the national service are excluded from the scope of the Act;
• -the need to amend section 76(3)(a) which prohibits picketing in support of a strike or in opposition to a lawful lockout;
• -the need to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No. 19 of 2003) to align it with the relevant provisions of the ELRA which also applies to workers in the public service; and
• -the need to ensure that any service designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA is based on the strict definition of the term.

The Committee notes the Government’s general indication that efforts will be made in consultation with social partners and the technical support of the ILO to study the best possible way to take into consideration the comments of the Committee. Regarding the right of prison guards to establish and join organizations, the Committee notes the Government’s indication that following the recent legislative amendments, prison guards are recognized as military officials and are regulated by their own legislation. The Committee considers that the functions exercised by this category of public servants do not justify their exclusion from the rights and guarantees set out in the Convention. The Committee requests the Government to provide information on the right of prison guards to establish and join organizations along with copies of the abovementioned amendments. The Committee further expects that the Government will provide full details on measures taken in consultation with the social partners to bring the legislation into conformity with the Convention on the abovementioned issues.

Regarding the practical application of sections 4 and 85 of the ELRA, which prohibit protest action in case of a dispute in respect of which a legal remedy exists,the Committee notes the Government’s indication that there is neither restriction nor interference, and that the object of the procedures is to ensure the prevention of harm to the public under Article 30 of the Constitution. The Committee considers that while the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, it expresses concern that prohibiting all protest actions in respect of disputes for which a legal remedy exists may unduly interfere with the exercise of trade union rights. The Committee requests once again that the Government provide information on the application of the above-mentioned provisions in practice.

Zanzibar

Articles 2 and 3 of the Convention. The Committee had previously noted that section 2(2) of the Labour Relations Act (No.1 of 2005) (LRA) excluded from its scope judges and all judiciary members; members of special departments; and employees of the House of Representatives and requested the Government to provide relevant pieces of legislation that grant the abovementioned categories of workers the right to organize. The Committee notes the following pieces of legislation provided by the Government: The Special Departments Service Commission Act, No.6/2007; the Jeshi la Kujenga Uchumi Act, No.6/2003; and the Kikosi Maalum cha Kuzuia Magendo Act, No.1/2003. The Committee observes that the three Acts apply to the members and judges of special departments and to forces that protect the territories of the State, and none of the acts refer to the right to organize. The Committee therefore requests once again that the Government ensures that the above-mentioned categories of workers are granted the right to organise and to provide the relevant pieces of legislation in this regard.

The Committee had previously requested the Government to amend the following provisions of the LRA:

• -section 42, so that trade unions have the power to manage their funds without undue restrictions from the legislation;
• -section 42(2)(j), to ensure that trade unions do not require the approval of the Registrar on the institution which they may choose to contribute to; and
• -section 64(1) and (2), so that the prohibition of the right to strike only extends to public servants exercising authority in the name of the state or to essential services in the strict sense of the term.

The Committee notes the Government’s indication that all labour laws are undergoing review. The Committee further takes note of the Government’s request for technical and financial support from the Office. The Committee expects the Government to take the necessary measures in the near future to amend the abovementioned provisions, in consultation with the social partners and with the technical assistance of the ILO. The Committee requests the Government to provide information on all developments in this regard.

The Committee had previously requested the Government to indicate whether the time frame for advance notices was the same for strikes and protest actions. The Committee recalls that in its previous comments it considered that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice waiting for its expiry in order to be able to exercise their right to strike. The Committee notes the Government’s indication that while the advance notice period for strikes is different from the one for protest action, efforts will be made in consultation with stakeholders to take into account the issues raised by the Committee in this regard. The Committeerequests the Government to provide information on all developments in this regard.

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

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization. Right of organizations to organize their activities and to formulate their programmes freely. The Committee notes the Government’s indication in its report that most of the issues raised by the Committee in its previous comments will be taken into account during the ongoing labour law reform. The Committee trusts that the Government will provide in full details on the measures taken in consultation with the social partners to comply with its comments and bring its legislation into conformity with the Convention on the following issues:

• -the need to amend section 2(1)(iii) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) so as to ensure that prison guards enjoy the right to establish and join organizations of their own choosing;
• -the need to amend section 2(1)(iv) of the ELRA so as to clearly indicate that only the military members of the national service are excluded from the scope of the Act;
• -the need to amend section 76(3)(a) which prohibits picketing in support of a strike or in opposition to a lawful lockout;
• -the need to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No. 19 of 2003) requiring certain conditions to be satisfied for civil servants to take part in a strike, so as to align it with the relevant provisions of the ELRA which also applies to workers in the public service; and
• -the need to ensure that any service designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA is based on the strict definition of the term.

In relation to sections 4 and 85 of the ELRA, the Committee recalls its previous comments that, while the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. The Committee notes that the Government limits itself to referring to the existence of a competent machinery to deal with labour disputes. It therefore requests once again the Government to provide information on the practical application of the above provisions.

Zanzibar

Articles 2 and 3 of the Convention. In its previous comments the Committee requested the Government to amend the following provisions so as to bring its legislation into full conformity with the Convention:

• -Section 2(2) of the Labour Relations Act (No. 1 of 2005) (LRA), which excludes the following categories of employees from the LRA’s provisions: (i) judges and all judiciary officers; (ii) members of special departments; and (iii) employees of the House of Representatives. In this regard, the Committee notes that the Government indicates that these categories are governed by their own laws but are not excluded from the right to organize. The Committee requests the Government to provide the relevant pieces of legislation.
• -Section 42 of the LRA, which forbids the union to use, directly or indirectly, its funds to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization. The Committee notes the Government’s indication that the law allows union funds to cover officers who incur penalties while discharging their duties on behalf of their organizations, although it does not allow fines to be paid from union funds. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation.
• -Section 64(1) and (2) of the LRA, which sets forth categories of employees that may not participate in a strike, including managers, and lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee notes the Government’s indication that the categories referred to in these sections cannot be allowed to participate in strikes due to the nature of their positions and work. The Committee wishes to recall, however, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.
• -Section 41(2)(j) of the LRA, which requires the Registrar’s approval regarding institutions to which a trade union may wish to contribute. The Committee notes the Government’s indication that this section will be removed.

The Committee expects that due measures will be taken without further delay and in consultation with the social partners to amend the legislative provisions referred to above. It requests the Government to provide information on the developments in this regard and reminds the Government that it may avail itself of technical assistance from the Office with respect to all issues raised in its present comments.

With respect to sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to strike and protest action respectively, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action, the Committee requested the Government to shorten this 44-day period. The Committee takes due note of the Government’s indication that the advance notice is not 14 days but 48 hours in the private sector and seven days in the public sector. The Committee requests the Government to indicate whether the same time frame for advance notices applies for strikes and protest actions.

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) received on 1 September 2015. The Committee also takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization. Right of organizations to organize their activities and to formulate their programmes freely. The Committee notes the Government’s replies to the following points raised in its previous comments concerning the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) and the 2003 Public Service (Negotiating Machinery) Act:

• -The need to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing. The Committee notes that the Government indicates that civilians employed in the prison service enjoy the right to organize under the ELRA and are affiliated to the Trade Union for Government and Health Employees (TUGHE). The Committee observes, however, that section 2(1)(iii) of the ELRA as currently written explicitly excludes members of the prison service from the scope of the Act. Accordingly, the Committee once again requests the Government to take the necessary measures to amend section 2(1)(iii) of the ELRA so that members of the prison service enjoy the right to establish and join organizations of their own choosing.
• -The need to determine the types of workers included in the category of the “national service” referred to in section 2(1)(iv) of the ELRA, who are excluded from the provisions of the law. The Government indicates that: (i) employees employed in the national service include military members and civilians employed or seconded to the national service; and (ii) while military members of the service are excluded from the ELRA, civilians employed in the national service enjoy fundamental principles and rights including freedom of association as granted under the ELRA, and most of them are members of the TUGHE. While it takes due note of the Government’s indication that civilians employed or seconded in the national service enjoy the right to organize, the Committee observes that section 2(1)(iv) of the ELRA provides that all members of the national service are explicitly excluded from the scope of the Act. Accordingly, the Committee requests the Government to take the necessary measures to amend section 2(1)(iv) of the ELRA so that it is clearly indicated that the exception only applies to military members of the national service.
• -The need to amend the ELRA, which does not provide for specific time limits within which the registration procedure of an organization should be concluded, and to adopt a provision determining a reasonable time period for the processing of applications for registration of employers’ and workers’ organizations. The Government indicates that this issue has been addressed in the Regulations for Act No. 7 of 2004 and that the Committee will be informed in detail once these Regulations are finalized. The Committee requests the Government to provide information on this matter and to provide a copy of the said Regulations once finalized.
• -In relation to sections 4 and 85 of the ELRA, the Committee recalls its previous comments that, while the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. The Committee requests the Government to provide information on the practical application of these provisions.
• -The need to initiate consultations addressing the amendment of section 76(3)(a), which prohibits picketing in support of a strike or in opposition to a lawful lockout. The Government has previously indicated that the Committee’s comments would be communicated to stakeholders for consultation. The Committee requests the Government to provide information on any progress made thereon.
• -The need to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No. 19 of 2003), which requires certain conditions to be satisfied for civil servants to take part in a strike. The Government had previously indicated that section 80(1) of the ELRA, which also applies to workers in the public service in mainland Tanzania, provides that a strike has to be called by a trade union and a ballot is conducted under the union’s constitution. The Committee had previously observed that section 26(2) of the Public Service Act needed to be aligned with the relevant provisions of the ELRA. In this regard, the Government indicates that measures have been taken to amend the ELRA to clarify that in cases of any law contravening the provisions of the ELRA, the ELRA will prevail. The Committee requests the Government to provide more detailed information as to the measures that have been taken to this effect.
• -Essential services. In its previous comments, the Committee noted that no service had been designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA, and recalled that essential services should be defined in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee notes that the Government once again indicates that no service has yet been designated as essential by the Essential Services Committee. The Committee reiterates its hope that in establishing a list of essential services the abovementioned definitional principle will be fully taken into account.

Zanzibar

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

• -Section 2(2) of the Labour Relations Act (No. 1 of 2005) (LRA), which excludes the following categories of employees from the LRA’s provisions: (i) judges and all judiciary officers; (ii) members of special departments; and (iii) employees of the House of Representatives.
• -Section 42 of the LRA which forbids the union to use, directly or indirectly, its funds to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation.
• -Section 64(1) and (2) of the LRA, which sets forth categories of employees that may not participate in a strike, without any additional indication, and lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.
• -Sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action. The Committee requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). The Committee recalls that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike.
• -Section 41(2)(j) of the LRA so that institutions to which a trade union may wish to contribute to are not subject to the Registrar’s approval.

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

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

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization. Right of organizations to organize their activities and to formulate their programmes freely. The Committee notes the Government’s report which merely indicates that the issues raised by the Committee in its previous comments will be brought to the attention of the Labour, Economic and Social Council (LESCO) which will then advise the minister on measures to be taken. The Committee trusts that the Government will provide in its next report full details on measures taken in consultation with the social partners to comply with its comments and bring its legislation into conformity with the Convention on the following issues:

• -the need to amend section 2(1)(iii) of the Employment and Labour Relations Act (No. 6 of 2004) (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing;
• -the need to determine the types of workers included in the category of the “national service” referred to in section 2(1)(iv) of the ELRA – which is excluded from the provisions of the law. In the meantime, the Committee recalls that only the armed forces and the police may be excluded from the application of the Convention (Article 9 of the Convention);
• -the need to amend the ELRA which does not provide for specific time limits within which the registration procedure of an organization should be concluded and to adopt a provision determining a reasonable time period for the processing of applications for registration of employers’ and workers’ organizations; and
• -the need to amend section 4 of the ELRA so that restrictions on protest actions are limited to a rights dispute; as well as section 76(3)(a) which prohibits picketing in support of a strike or in opposition to a lawful lockout.

Public sector. In its previous comments, the Committee requested the Government to amend section 26(2) of the Public Service (Negotiating Machinery) Act (No.19 of 2003) requiring certain conditions to be satisfied for civil servants to take part in a strike, since the provision could constitute an act of interference in trade union activities (the supervision by the administrative authority of a strike ballot under section 26(c)), could unnecessarily hinder the possibility of carrying out a strike (the requirement of a decision of the majority of the public servants of the respective service scheme for the calling of a strike under section 26(c)) and could constitute an obstacle to collective bargaining (a 60 days’ notice to be served to the Government from the date of the ballot under section 26(d)). The Committee notes the Government’s indication according to which the ELRA also applies to workers in the public service in Mainland Tanzania and that it is provided under section 80(1) of the said Act that a strike has to be called by a trade union and a ballot is conducted under the union’s constitution. Thus, the public servants have the right to choose either the Public Service (Negotiating Machinery) Act or the ELRA. The Government adds as an example that the Teachers’ Trade Union called a strike under the ELRA. While taking due note of the possibility for workers in the public sector to call a strike under the ELRA, the Committee considers that section 26(2) of the Public Service (Negotiating Machinery) Act should be put in line with the relevant provisions of the ELRA in order to align the two pieces of legislation and requests the Government to indicate any development in this regard.

In its previous comments, the Committee noted that no service had been designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA, and recalled that essential services should be defined in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. While noting the indication from the Government that the principles outlined by the Committee are under consideration, the Committee hopes that while establishing a list of essential services the abovementioned principle will be fully taken into account.

Zanzibar

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous comments, the Committee had requested the Government to review and amend section 2(2) of Labour Relations Act (No. 1 of 2005) (LRA), which excludes the following categories of employees from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. The Committee notes the Government’s indication according to which social partners are engaged in consultations to the effect of amending section 2(2). The Committee requests the Government to indicate any progress made in this regard.

Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had requested the Government to provide further information on section 21(1)(c) of the LRA, particularly on the criteria employed by the registrar for determining whether an organization’s constitution contains suitable provisions to protect its members’ interests, and on the expeditiousness of the registration procedure, including the average time period, from the submission to the application, for an organization to be registered. The Committee notes the Government’s indication according to which draft regulations for the implementation of the Act are awaiting publication. The Committee requests the Government to provide a copy of the regulations for the implementation of section 21(1)(c) of the LRA once adopted.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous comments, the Committee had noted that the Government indicated that section 42 of the LRA forbids the union to use, directly or indirectly, its funds to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation. The Committee notes that the Government indicates in its report that the social partners are engaging into consultations taking into account the comments of the Committee. The Committee requests the Government to indicate any progress made in this regard.

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

• -the need to amend sections 64(1) and 64(2) of the LRA, which set forth categories of employees that may not participate in a strike, without any additional indication, and list several services that are deemed essential, including sanitation services, and in which strikes are forbidden. In this regard, the Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the case of an acute national crisis;
• -the need to amend sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action. The Committee requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). The Committee recalls that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike;
• -the need to amend section 41(2)(j) of the LRA so that institutions a trade union may wish to contribute to are not subject to the Registrar’s approval.

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

The Committee notes the Government’s reply to the 2009 comments made by the International Trade Union Confederation (ITUC), as well as the comments submitted by the ITUC in a communication dated 24 August 2010 concerning issues already raised by the Committee.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous comments, the Committee had requested the Government to amend section 2(1)(iii) of the Employment and Labour Relations Act No. 6 of 2004 (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing. The Committee notes that the Government indicates in its report that account will be taken of the Committee’s observations. The Committee hopes that the Government will take the necessary measures without delay to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing, and provide information on any progress made thereon in its next report.

In its previous comments, the Committee had requested the Government to provide information on the types of workers included in the category of the “national service” referred to in section 2(1)(iv) of the ELRA – which is excluded from the provisions of the ELRA – so that it may assess whether they qualify for the exceptions of Article 9 of the Convention. The Committee had noted that the Ministry of Labour, Employment and Youth Development was at a preparatory stage of formulating rules on the definition of the category of workers included in the national service. The Committee notes that the Government indicates in its report that as regards the national service, the rules and regulations for the implementation of the ELRA and the Labour Institutions Act are not yet finalized. The Committee recalls that only the armed forces and the police may be deprived of the rights provided in the Convention. The Committee requests the Government to take the necessary measures to ensure that these rules and regulations will be adopted in the near future, and to provide information thereon in its next report, as well as a copy of the regulations once adopted.

Right of workers and employers to establish organizations without previous authorization. In its previous observation, the Committee had noted that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period within which the registrar must either approve or refuse an organization’s application, and had requested the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration. The Committee notes that the Government reiterates in its report that the rules and regulations referred to above will address this matter. The Committee requests the Government to take the necessary measures to ensure that the rules and regulations will provide for a reasonable time period for the processing of applications for registration, and to provide information on any progress made thereon in its next report.

Article 3. Right of organizations freely to organize their activities and to formulate their programmes. In its previous observation, the Committee had noted that while sections 4 and 85 of the ELRA allow for protest action (i.e. strikes in disputes that are not interest disputes) under section 4, such action is not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy” which, according to the Government, refers to any dispute in which a party may apply for relief in any authority with competent jurisdiction. The Committee therefore requested the Government to amend section 4 of the ELRA so that restrictions on protest actions would be limited to a rights dispute. The Committee notes the Government’s indication in its report, that the Committee’s observations will be communicated to stakeholders for consultation. The Committee requests the Government to provide information on any progress made thereon in its next report.

Furthermore the Committee had requested the Government to amend section 76(3)(a) of the ELRA, which prohibits picketing in support of a strike or in opposition to a lawful lockout. The Committee notes the Government’s indication in its report that the Committee’s observations will be communicated to stakeholders for consultation. The Committee expects that, following consultations, due measures will be taken to amend section 76(3)(a) of the ELRA and requests the Government to provide information on any progress made thereon in its next report.

Public sector. In its previous observation, the Committee had requested the Government to modify the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector were limited to public servants exercising authority in the name of the State. The Committee notes that the Government indicates in its report that section 26(1) of the 2003 Act of the Parliament No. 19 (Public Service (Negotiating Machinery)) stipulates that “any public servant” may take part in a strike or lockout in the case of a subsisting dispute or complaint. The Committee further notes that section 26(2) provides, as conditions to be satisfied to take part in a strike, that: (i) a ballot strike has to be conducted under the supervision of the labour officer and the majority of the public servants of the respective service scheme has to support the strike; and (ii) a 60 days’ notice has to be served to the Government counting from the date on which the ballot was cast. The Committee considers that the supervision by the administrative authority of the strike ballot constitutes an act of interference in trade union activities; that the requirement of a decision of the majority of the public servants of the respective service scheme for the calling of a strike is excessive and could unnecessarily hinder the possibility of carrying out a strike; that if the legislation requires a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee considers that the 60 days’ notice could constitute an obstacle to collective bargaining. In these circumstances, the Committee requests the Government to take the necessary measures to amend section 26(2)(d) of the Act No. 19 in accordance with the abovementioned principles, and to provide information thereon in its next report.

Finally, the Committee notes that the Government indicates that there is no service that has been designated as essential by the Essential Services Committee pursuant to section 77 of the ELRA. The Committee recalls that essential services should be defined in the strict sense of the term that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee requests the Government to take the necessary measures to ensure that account will be taken of this principle when establishing the list of essential services referred to by section 77 of the ELRA, and to provide information on any developments in this respect in its next report.

Zanzibar

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous observation, the Committee had requested the Government to review and amend section 2(2) of Labour Relations Act No. 1 of 2005 (LRA), which excluded the following categories of employee from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. Noting the Government’s indication in its report that the amendment of section 2(2) of the LRA is not yet done, the Committee once again recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention (i.e. the armed forces and the police) and that other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee requests the Government to take the necessary measures to amend section 2(2) of the LRA in accordance with this provision and to provide information thereon in its next report.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to provide further information on section 21(1)(c) of the LRA, particularly on the criteria employed by the registrar for determining whether an organization’s constitution contains suitable provisions to protect its members’ interests, and on the expeditiousness of the registration procedure, including the average time period, from the submission to the application, for an organization to be registered. The Committee had recalled that the competent authority must not be given discretionary power to refuse registration, as it could amount in practice to a system of previous authorization, contrary to the principles of the Convention. The Committee had also recalled that the registration procedure must not be too long and complicated, so as to comply with the Convention (see General Survey, op. cit., paragraphs 73–75). The Committee notes that the Government indicates in its report that the rules and regulations for the implementation of the Act will take into account the concerns raised by the Committee. The Committee requests the Government to provide a copy of the said rules and regulations once adopted and to provide information thereon in its next report.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous observation, the Committee had noted that the Government indicated that section 42 of the LRA forbids the union to use, directly or indirectly, its funds to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the organization. The Committee had recalled that trade unions should have the power to manage their funds without undue restrictions from the legislation (see General Survey, op. cit., paragraph 124). The Committee notes that the Government indicates in its report that this provision does not apply to fines or penalties imposed upon the union itself and that the objective pursued by this section was to prevent embezzlement and fraudulent use of trade unions’ funds by individuals. The Government’s report adds that this section will be reviewed and that consultations will be held in line with the concerns raised by the Committee. The Committee requests the Government to provide information on any progress made thereon in its next report.

Political activities. In its previous observation, the Committee had requested the Government to provide information on the definition of political affiliation under section 8(2) of the LRA, and to indicate in particular whether under this provision trade unions may still pursue certain political activities, including the expression of opinions on economic and social policy. The Committee takes due note of the Government’s indication that while section 8(2) of the LRA forbids trade unions from being affiliated to political parties, all citizens under the 1984 Zanzibar Constitution – including trade unions’ members and the unions themselves – enjoy the right to express their opinions on any matter, be it social, economic and political, without any intimidation.

The right to strike. In its previous observation, the Committee had requested the Government to take the necessary measures to amend section 64(1) of the LRA, which sets forth categories of employees – namely: (a) employees of any public authority who are actually engaged in the management of such authority; and (b) employees actually engaged in the management of a business of the employer for which such an employee is engaged – that may not participate in a strike, without any additional indication, and section 64(2) of the LRA, which lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee notes that the Government indicates that section 64(1) (a) and (b) was meant to enable people in the managerial cadre to have an opportunity to resolve strikes, but that the comments of the Committee will be taken into account. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the case of an acute national crisis. The Committee hopes that the Government will take the necessary measures to amend sections 64(1) and 64(2) of the LRA in accordance with this principle and requests it to provide information on any progress made thereon in its next report.

Protests. Previously, the Committee had requested the Government to amend sections 63(2)(b) and 69(2) of the LRA, which determine that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action; it had requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). The Committee notes that the Government indicates that the amendments of sections 63(2)(b) and 69(2) of the LRA are not yet done. The Committee once again recalls that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike (see General Survey, op. cit., paragraph 172). The Committee urges the Government to take the necessary measures to amend sections 63(2)(b) and 69(2) of the LRA in the near future in accordance with the abovementioned principle, and to provide information on any progress made thereon in its next report.

Finally, in its previous observation, the Committee had regretted that the Government did not provide information about section 41(2)(j) of the LRA, which concerns restrictions on the use of trade unions’ funds and had requested it to take the necessary steps to amend section 41(2)(j) of the LRA so that the institutions a trade union may wish to contribute to are not subject to the Registrar’s approval. The Committee notes that the Government refers in this respect to its comments under Article 3 concerning the use of trade unions’ funds (see above). In these circumstances, the Committee reiterates its request to the Government to take the necessary measures to amend section 41(2)(j) in light of the principles referred to above and to provide information thereon in its next report.

Expressing the hope that the Government will make every effort to bring its legislation into full conformity with the Convention, the Committee welcomes the Government’s request for technical assistance and hopes that it will be provided as soon as possible.

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

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), in a communication dated 26 August 2009, which primarily concern matters previously raised by the Committee and also refer to the denial of freedom of association rights to employees in privatized industries; to the difficulties in organizing legal strikes for teachers, 2,000 bank employees and railway workers; to the locking up by employers of fish processing plant workers during an official visit; and to the dismissal of 350 strikers in the textile sector. The Committee requests the Government to provide its observations thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee had previously requested that the Government amend section 2(1)(iii) of the Employment and Labour Relations Act (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing. In this respect, the Committee notes with regret that the Government reiterates that prison guards were part of the armed forces, and were thus governed by their respective sets of law. The Committee must once again recall that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). Accordingly, the Committee once again requests the Government to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing.

The Committee had previously requested the Government to provide adequate information on the types of workers included in the category of the national service, which is excluded from the provisions of the ELRA, so that it may assess whether they qualify for the exceptions of Article 9 of the Convention. The Committee notes the Government’s indication that the Ministry of Labour, Employment and Youth Development is at a preparatory stage of formulating rules which will set the definition of the category of workers included in the national service. The Committee recalls that only the armed forces and the police may be deprived of the rights provided in the Convention, and requests the Government to provide a copy of the said rules and regulations once they are finalized.

Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had noted that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period in which the registrar must either approve or refuse an organization’s application, and had requested the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration. Noting the Government’s statement that the rules and regulations referred to above would address this matter, the Committee, recalling once again that problems of compatibility with the Convention arise where the registration procedure is long and complicated, expresses the hope that the rules and regulations being prepared by the Ministry would, once finalized, provide for a reasonable time period for the processing of applications for registration.

Article 3. Right of organizations freely to organize their activities and to formulate their programmes. The Committee had previously noted that sections 4 and 85 of the ELRA allow for protest action, i.e. strikes in disputes that are not interest disputes, but that, under section 4, such action is apparently not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy”. The Committee notes the Government’s statement that it covers any dispute in which a party to the dispute may apply for relief in any authority with competent jurisdiction. In this connection, the Committee recalls again that the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, and that the prohibition of strikes in such situations does not constitute a breach of freedom of association rights. However, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. The Committee once again requests the Government to amend section 4 of the ELRA so as to limit the restriction on strikes to those taking place in relation to a dispute of rights.

The Committee had also previously requested the Government to amend section 76(3)(a) of the ELRA, which prohibits picketing in support of a strike, or in opposition to a lawful lockout. In this regard, the Committee regrets that the Government confines itself to stating that the Committee would be notified if and when any progress is made respecting this matter. Recalling once again that it considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (see General Survey, op. cit., paragraph 174), the Committee once again requests the Government to amend section 76(3)(a) of the ELRA accordingly.

In its previous comments, the Committee had requested the Government to modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector were limited to public servants exercising authority in the name of the State. It takes note of the Government’s answer that the restrictions on the right to strike in the public sector are limited to those holding paid public office in the United Republic, charged with the formulation of government policy and delivery of public services, and to any office declared by or under any other law to be a public office. While noting this information, the Committee must once again recall that a too broad definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers (see General Survey, op. cit., paragraph 158). Accordingly, the Committee once again requests the Government to modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector are strictly limited to public servants exercising authority in the name of the State.

The Committee had also previously requested the Government to provide information in respect of the designations of essential services that the Essential Services Committee has made under section 77 of the ELRA. It notes the Government’s answer that no designation had yet been made by the Committee to that effect. Recalling that essential services should be defined in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee requests the Government to inform it of any designations of essential services that the Essential Services Committee has made under section 77 of the ELRA.

Zanzibar

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous comments, the Committee had requested the Government to review and amend section 2(2) of the Labour Relations Act (LRA), which excluded the following categories of employee from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. Noting the Government’s indication that the relevant authorities will be advised accordingly and to take appropriate measures to address the matter, the Committee once again recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. Recalling once again that other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing, the Committee trusts that the Government will soon review and amend section 2(2) of the LRA in accordance with this principle.

Previously, the Committee had requested the Government to amend section 4(1) of the LRA in order to bring it into conformity with the principle that Article 2 of the Convention guarantees the right to organize to employers and workers, including those who are not in contractual employment relationships. It takes due note of the Government’s answer that when read together with sections 43, 44 and 45(1) of the Employment Act, (which provide for the definition and different types of services), section 3(1) of the LRA includes even workers and employers who are not in contractual employment relationships and therefore grants them the right to organize.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to provide further information on section 21(1)(c) of the LRA, particularly on the criteria employed by the Registrar for determining whether an organization’s constitution contains suitable provisions to protect its members’ interests, and on the expeditiousness of the registration procedure, including the average time period, from the submission to the application, for an organization to be registered. The Committee recalls that the competent authority must not be given discretionary power to refuse registration, as it could amount in practice to a system of previous authorization, contrary to the principles of the Convention No; it also recalls that the registration procedure must not be too long and complicated, so as to comply with the Convention (see General Survey, op. cit., paragraphs 73–75). Noting the Government’s report to the effect that the intended Rules and Regulations for the implementation of the Act will address the matter, the Committee requests the Government to provide a copy of the said rules and regulations once they are finalized.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous comments, the Committee had requested the Government to indicate whether, under section 42 of the LRA, trade union’s funds could be applied to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the Organization. The Committee takes note of the Government’s reply concerning section 42 of the LRA, confirming that this provision forbids the union to use, directly or indirectly, its funds for the abovementioned purpose. The Committee recalls, in this regard, that trade unions should have the power to manage their funds without undue restrictions from the legislation (see General Survey, op. cit., paragraph 124). Accordingly, the Committee requests the Government to amend section 42 of the LRA so that the trade unions may use their funds if they wish to, inter alia, pay fines or penalties incurred by trade union officials in the discharge of their duties.

Political activities. Previously, the Committee had requested the Government to provide information on the definition of political affiliation under section 8(2) of the LRA, and to indicate in particular whether under this provision trade unions may still pursue certain political activities, including the expression of opinions on economic and social policy. In this regard, the Committee notes the Government’s indication that section 8(2) of the LRA forbids trade unions from being affiliated to political parties. While further noting the Government’s statement that section 8(2) emphasizes trade unions’ independence from political influences, the Committee nevertheless recalls that the legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention: workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy (see General Survey, op. cit., paragraphs 131 and 133). Accordingly, the Committee requests the Government to amend section 8(2) of the LRA in accordance with the principle cited above.

The right to strike. In its previous comments, the Committee had requested the Government to take the necessary measures to amend section 64(1) of the LRA, which sets forth categories of employees, namely (a) employees of any public authority who are actually engaged in the management of such authority; and (b) employees actually engaged in the management of a business of the employer for which such an employee is engaged, that may not participate in a strike, without any additional indication, and section 64(2) of the LRA, which lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee regrets that the Government confines itself to stating that the relevant authorities would be advised accordingly. Recalling once again that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee requests the Government to amend sections 64(1) and 64(2) of the LRA accordingly.

Protests. Previously, the Committee had requested the Government to amend sections 63(2)(b) and 69(2) of the LRA, which determines that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action; it requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). In this respect, the Committee regrets that the Government confines itself to stating that the relevant authorities would be advised accordingly. The Committee recalls once again that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike (see General Survey, op. cit. paragraph 172). The Committee requests the Government to amend sections 63(2)(b) and 69(2) of the LRA accordingly.

Finally, with respect to Zanzibar, the Committee regrets that the Government still provides no information about section 41(2)(j) of the LRA, which concerns restrictions on the use of trade unions’ funds. Accordingly, it once again requests the Government to take the steps necessary to amend section 41(2)(j) of the LRA so that the institutions a trade union may wish to contribute to are not subject to the Registrar’s approval.

The Committee again expresses the hope that the Government will make every effort to bring its legislation into full conformity with the Convention and provide detailed information on the abovementioned points in its next report. Further recalling that it has been commenting upon the abovementioned legislative matters for a period of several years, the Committee invites the Government to seek the technical assistance of the Office in this regard.

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

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

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

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

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

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

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

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

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

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

Political activities. Section 8(2) provides that “no union or organization shall join or form part of trade union movement [sic] and shall be independent from political affiliation with any political party”. In this regard, the Committee recalls that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133). With reference to this principle, the Committee requests the Government to provide information on the definition of political affiliation under section 8(2), and to indicate in particular whether under this provision trade unions may still pursue certain political activities, including the expression of opinions on economic and social policy.

The right to strike. Section 64(1) of the LRA provides that the following may not engage in strikes, or conduct in contemplation or furtherance of a strike: (a) employees of any public authority who are actually engaged in the management of such authority; and (b) employees actually engaged in the management of a business of the employer for which such employee is engaged. Furthermore, section 64(2) lists several services, including the sanitation service, that are deemed to be essential and in which strikes are prohibited. The Committee recalls, in this connection, that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee requests the Government to take the necessary measures to amend sections 64(1) and 64(2), in keeping with the abovementioned principle. Further, the Committee recalls that a negotiated minimum service could be established during strikes in the sanitation service. Such a service must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, and workers’ organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities.

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

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

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

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

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

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

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

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

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

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

–      modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector are limited to public servants exercising authority in the name of the State.

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

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

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006 concerning matters previously raised by the Committee.

Article 2. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to ensure the right to organize to employees in the prison service and to provide clarifications on the types of workers in the national service, both services being excluded from the scope of the Employment and Labour Relations Act (ELRA) under section 2(1)(iii) and (iv), respectively. The Committee notes the Government’s indication that the prison service and the national service are excluded from the right to organize as they are based on military force: the nature of the duties in these services is such as to require a different working environment, with stricter rules than those provided for under the ELRA. In this connection, the Committee once again recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). Accordingly, the Committee once again requests the Government to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing. With regard to the national service, the Committee regrets that the Government has not provided adequate information on the types of workers included in this category and requests the Government to include this information in its next report so that it may assess whether they qualify for the exceptions of Article 9 of the Convention.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously referred to the absence of specific time limits within which the trade union registration procedure should be concluded. Noting the Government’s statement that the time limit provided under the Act is intended to ensure that freedom of association is not abused by allowing unions to organize and bargain without legitimacy, the Committee points out that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period in which the registrar must either approve or refuse an organization’s application. The Committee recalls, in this connection, that problems of compatibility arise where the registration procedure is long and complicated (see General Survey, op. cit., paragraph 75). It requests the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration.

Article 3. Right to strike. The Committee had previously noted that sections 4 and 85 of the ELRA allow for protest action, i.e. strikes in disputes that are not interest disputes, but that, under section 4, such action is apparently not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy”. The Committee notes the Government’s statement that protest action may apply in such circumstances as a means to promote and defend the socioeconomic interests of workers, and that when a dispute has a legal remedy, protest action becomes unlawful and any aggrieved party should pursue the matter through the procedures prescribed under the ELRA. In this connection the Committee recalls that the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, and that the prohibition of strikes in such situations does not constitute a breach of freedom of association. However, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. In this connection, the Committee once again asks the Government to provide information on the scope of section 4’s definition of protest action – in particular the types of dispute referred to for which there might be a legal remedy.

The Committee notes that section 76(3)(a) of the ELRA prohibits picketing in support of a strike, or in opposition to a lawful lockout. In this regard, the Committee recalls that it considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (see General Survey, op. cit., paragraph 174). It requests the Government to amend section 76(3)(a) accordingly.

The Committee had previously noted that section 22 of the draft Public Service (Negotiating Machinery) Bill prohibits strike by “staff grade officers”, a category that, as set out in section 2(c) and (d), includes the heads of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management. In this regard, the Government indicates that staff grade officers are prohibited from taking part in strikes as they are policy-makers, responsible for the supervision and implementation of the policies so formulated. The Government adds that staff grade officers represent the interests of management, therefore allowing them to strike would be akin to allowing the institutions they represent to strike against themselves. In these circumstances, the Committee once again recalls that the right to strike may be restricted for public employees only when they are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). The Committee once again requests the Government to modify section 22 of the draft Public Service (Negotiating Machinery) Bill so as to fully guarantee the right to strike of public employees not engaged in the administration of the State, including head teachers and school directors, and to inform it of the progress made with respect to the Bill’s adoption.

The Committee regrets that the Government provides no information on other provisions of the legislation addressed by the Committee in its previous comment. It expresses the hope that the Government’s next report will provide information in respect of those legislative issues, which it repeats as follows:

(a)   any designations of essential services that the Essential Services Committee has made under section 77 of the Employment and Labour Relations Act; and

(b)   sections 12, 13(b), 15, 17(1) and (2), and 19 of the draft Public Service (Negotiating Machinery) Bill which establish a system of compulsory arbitration at the discretion of the authorities for the determination of the terms and conditions of employment of operational service public employees (i.e. supporting staff not employed in the executive or officer grade).

With respect to Zanzibar, the Committee notes with regret that once again the Government has provided no response to its previous comments concerning the Trade Union Act (TUA). Accordingly, the Committee once again requests the Government to:

(a)   lower the minimum membership requirement of 50 workers (section 14(1) of the TUA) and eliminate the minister’s discretionary power to grant registration regardless of this requirement (section 14(3) of the TUA);

(b)   enable workers engaged in more than one occupation to establish and join more than one trade union (section 21(1)(d) of the TUA);

(c)   limit the registrar’s discretionary power to refuse to register a trade union if it consists of persons engaged in more than one trade union or calling and if, in his/her view, its constitution does not contain suitable provisions for the protection and promotion of its interests (section 21(1)(d) of the TUA);

(d)   abolish the absolute prohibition of performing any act prior to trade union registration (section 24(1) of the TUA);

(e)   modify the occupational requirement that all union members and officials be engaged in an industry or occupation in which the union is directly concerned (section 29(1) of the TUA), and eliminate the registrar’s discretionary authority to permit any union office to be held by a person not actually engaged or employed in an industry or occupation in which the union is directly concerned (section 29(1) and (3) of the TUA);

(f)    eliminate the literacy requirement for trade union office (section 29(4) of the TUA);

(g)   eliminate the requirement of previous authorization by the registrar for any expenditure which is not expressly authorized in the law (section 42(2)(t) of the TUA); and

(h)   eliminate the possibility for the registrar to require an account of the financial situation of a trade union at any time (section 45(1) of the TUA).

Finally, the Committee again requests the Government to provide any information on:

(a)   the right of trade unions to join federations and confederations in the form and manner deemed most appropriate by the workers concerned (sections 2, 32 and 33 of the TUA);

(b)   the provisions that ensure that, in exercising his functions as liquidator, the registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired (section 38(3) of the TUA);

(c)   the measures taken to establish objective, pre-established and precise criteria for the recognition of most representative unions (section 54 of the TUA);

(d)   any cases in which section 56 of the TUA has been applied and any measure taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful;

(e)   any regulations made by the minister on the manner in which trade unions and their constitutions shall be registered (section 66(2) of the TUA);

(f)    any regulations made by the Minister on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds (section 66(2)(b), (d), (e), (f) and (g) of the TUA); and

(g)   the manner in which the right to strike is ensured in Zanzibar.

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

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

With reference to its observation and in relation to its previous comments on the draft Employment and Labour Relations Bill which has now been enacted, the Committee notes with interest that meteorological services are now excluded from the list of essential services in section 77 of the Employment and Labour Relations Act and that the minimum membership requirement has been limited to 20 instead of 30 employees in section 46(1)(d) of the same Act. The Committee also notes, however, that the Government has not provided any response to its previous comments with regard to the following issues:

(a)  the need to ensure the right to organize for the prisons service and to provide clarifications on the types of workers in the national service excluded from the scope of the Employment and Labour Relations Act (section 2(1)(iii) and (iv) of the Employment and Labour Relations Act);

(b)  the need to limit the authority of the Registrar to require written explanations on an organization’s statement of membership, its auditor’s report or its financial statements within 30 days (section 52(2)(b) of the Employment and Labour Relations Act);

(c)  the specific time limits within which the trade union registration procedure should be concluded;

(d)  any designations of essential services that the Essential Services Committee has made (section 77 of the Employment and Labour Relations Act); and

(e)  the scope of section 4 of the Employment and Labour Relations Act on the basis of which it appears that protest action is not lawful when it takes place in relation to a dispute "in respect of which there is a legal remedy".

The Government has also not provided any indication with regard to the Committee’s previous comments concerning the need to modify the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions to the right to strike in the public sector are limited to public servants exercising authority in the name of the State. These comments relate in particular to:

(a)  sections 22 and 2(c) and (d) of the Bill which prohibit strikes by "staff grade officers", including the head of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management;

(b)  sections 12, 13(b), 15, 17(1) and (2), and 19 of the Bill which establish a system of compulsory arbitration at the discretion of the authorities for the determination of the terms and conditions of employment of operational service public employees (i.e. supporting staff not employed in the executive or officer grade).

With regard to Zanzibar, the Committee notes that the Government does not provide any response to its previous comments concerning the Trade Unions Act, 2001 (TUA), and in particular the need to:

(a)  lower the minimum membership requirement of 50 workers (section 14(1) of the TUA) and eliminate the Minister’s discretionary power to grant registration regardless of this requirement (section 14(3) of the TUA);

(b)  enable workers engaged in more than one occupation to establish and join more than one trade union (section 21(1)(d) of the TUA);

(c)  abolish the absolute prohibition of performing any act prior to trade union registration (section 24(1) of the TUA);

(d)  limit the Registrar’s discretionary power to refuse to register a trade union if in his/her view, its constitution does not contain suitable provisions for the protection and promotion of its interests (section 21(1)(d) of the TUA);

(e)  modify the occupational requirement so as to allow more scope for workers in the election of their trade union officers without being dependent upon the Registrar’s discretionary authority (sections 29(1) and (3) of the TUA);

(f)  eliminate the literacy requirement which is currently a prerequisite for trade union office (section 29(4) of the TUA)

(g)  eliminate the requirement of previous authorization by the Registrar for any expenditure which is not expressly authorized in the law (section 42(2)(t) of the TUA);

(h)  eliminate the possibility for the Registrar to require an account of the financial situation of a trade union at any time (section 45(1) of the TUA).

Furthermore, the Committee notes that the Government does not provide any information on:

(a)  the measures taken to establish objective, pre-established and precise criteria for the recognition of most representative trade unions (section 54 of the TUA);

(b)  any regulations made by the Minister on the manner in which trade unions and their constitution shall be registered (section 66(2)(c) of the TUA);

(c)  any regulations made on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds (section 66(2)(b), (d), (e), (f) and (g) of the TUA);

(d)  any cases in which section 56 of the TUA has applied and any measure taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful;

(e)  the manner in which the right to strike is ensured in Zanzibar;

(f)  the provisions which ensure that in exercising his functions as liquidator, the Registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired (section 38(3) of the TUA);

(g)  the right of trade unions to join federations and confederations in the form and manner deemed most appropriate by the workers concerned (sections 2, 32 and 33 of the TUA).

The Committee hopes that the Government will make every effort so as to bring its legislation into full conformity with the Convention and provide detailed and complete information on all the above points which have been analysed in more detail in its previous direct request (see 2003 direct request, 74th Session).

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

The Committee takes note of the Government’s report. It also notes with satisfaction the text of the Employment and Labour Relations Act and the Labour Institutions Act which replaced upon adoption the Trade Unions Act, 1998, and the Industrial Court of Tanzania Act, 1967, thus terminating the trade union monopoly, the excessive requirements for the registration of trade union federations and the considerable restrictions on the right to strike previously established by the repealed Acts.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes with interest the information contained in the Government’s first report as well as the text of the draft Bills on Employment and Labour Relations, Labour Institutions and Public Service (Negotiating Machinery). With regard to the mainland of the Republic, the Committee has confined its comments to the abovementioned Bills considering that they will be presented to Parliament shortly and will replace upon their adoption the current legislation, in particular, the Trade Unions Act, 1998 and the Industrial Court of Tanzania Act, 1967. With regard to Zanzibar, the Committee has based its comments on the Trade Unions Act, 2001 (TUA).

Article 2 of the Convention. Right of employers and workers to establish organizations of their own choosing without previous authorization. The Committee notes with interest that the provisions of the Employment and Labour Relations Bill eliminate the trade union monopoly established under section 15(2) of the Trade Unions Act.

The Committee would also like to draw the Government’s attention to the following points:

Prison guards and workers in the national service. The Committee notes that section 2(2)(c) and (e) of the draft Employment and Labour Relations Bill excludes from the scope of the legislation the prisons service and workers in the national service. The Committee recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e., the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee therefore requests the Government to review section 2(2)(c) of the draft Employment and Labour Relations Bill so that prison guards enjoy the right to establish and join organizations of their own choosing. With regard to workers in the national service, the Committee requests the Government to clarify the functions performed by these workers in order to determine whether they fall under the exceptions of Article 9.

Minimum membership. The Committee further notes that section 46(1)(d) of the draft Employment and Labour Relations Bill establishes an implicit minimum membership requirement of 30 workers which is higher than the current requirement of 20 members under section 8 of the Trade Unions Act. The Committee considers that a requirement of 30 employees may excessively restrict workers’ freedom to establish organizations of their own choosing. The Committee requests the Government to modify the provision of section 46(1)(d) so as to lower this requirement.

Zanzibar. The Committee notes that section 14(1) of the TUA establishes a minimum membership requirement of 50 workers for the establishment of their organizations. The Committee considers that this requirement is excessively high. The Committee also notes that according to section 14(3) of the TUA, the Minister has the discretion to grant registration regardless of the minimum membership requirement. The Committee considers that this provision confers to the Registrar a genuinely discretionary power to grant or reject a registration request and therefore amounts to a requirement of previous authorization (see General Survey, op. cit., paragraph 74). The Committee requests the Government to amend section 14(1) of the TUA so as to lower the minimum membership requirement and repeal section 14(3) of the TUA so as to bring its legislation in conformity with Article 2.

Membership limited to one trade union and to workers in the same occupation or branch of activity. Zanzibar. The Committee notes that according to section 21(1)(d) of the TUA, the Registrar may refuse to register a trade union if it consists of persons engaged at or working in more than one trade union or calling. The Committee notes that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of establishing and joining the corresponding trade unions. The Committee therefore requests the Government to amend this provision so as to enable workers engaged in more than one occupation to establish and join more than one trade union.

Recognition of the most representative trade union. Zanzibar. The Committee notes that section 54 of the TUA provides that where in respect of any workplace there is a dispute as to which trade union is the collective bargaining representative, the Minister shall issue a final decision. The Committee considers that legislation establishing the concept of the most representative trade union is not in itself contrary to the principle of freedom of association provided that certain conditions are met, in particular, that the determination of the most representative organization is based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse (see General Survey, op. cit., paragraph 97). The Committee therefore requests the Government to indicate in its next report the measures taken to establish objective, pre-established and precise criteria for the recognition of the most representative trade union.

Articles 2 and 7. Legal personality requirements. The Committee notes that the Bill does not clearly define the registration procedure and the applicable time limits for granting or denying registration and requests the Government to provide information concerning the specific time limits within which the registration procedure should be concluded.

Zanzibar. The Committee notes that section 24(1) of the TUA provides that no trade union or association shall perform any act in furtherance of the purposes for which it has been formed unless it has been registered. The Committee is of the opinion that trade unions should be able to exercise certain activities prior to registration. The Committee requests the Government to repeal this provision.

Moreover, the Committee notes that according to section 66(2)(c) of the TUA, the Minister may make Regulations on the manner in which trade unions and their constitution shall be registered. The Committee requests the Government to transmit any such regulations made.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules and elect their representatives. Zanzibar. The Committee observes from section 21(1)(d) of the TUA that the Registrar may refuse to register a trade union if its constitution does not contain suitable provisions for the protection and promotion of the trade union’s interests. The Committee considers that provisions which require an organization to deposit its rules or its constitution, should establish a mere formality and should not make the constitution subject to prior approval at the discretion of the public authorities (see General Survey, op. cit., paragraphs 70 and 109). The Committee emphasizes that it should be up to the workers, not the Registrar, to evaluate the suitability of the provisions of the Constitution for the protection of their professional interests. The Committee therefore requests the Government to consider repealing this provision.

The Committee further notes that section 29(1) of the TUA provides that all trade union officials (with the possible exception of the secretary under section 29(2)), shall be actually engaged in the industry or occupation with which that union is directly concerned. This rule may be deviated from only with the Registrar’s discretionary authority (section 29(3)). The Committee considers that such provisions infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties and it would be desirable in such cases to make legislation more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). The Committee requests the Government to amend sections 29(1) and (3) so as to allow more scope for workers in the election of their trade union officers without being dependent upon the Registrar’s discretionary authority.

The Committee also observes that according to section 29(4) of the TUA, no person shall hold the post of trade union secretary or treasurer if in the opinion of the Registrar he has not attained a standard of literacy sufficiently high as to enable him to perform his duties effectively. The Committee considers that this provision entails a risk of arbitrary interference by the Registrar in the election process of trade unions (see General Survey, op. cit., paragraph 115) and requests the Government to take the necessary measures for its repeal.

Right of employers’ and workers’ organizations to organize their administration and formulate their programmes. The Committee notes that section 52(2)(b) of the Employment and Labour Relations Bill requires every registered organization or federation to provide within 30 days of a request by the Registrar a written explanation of anything relating to its statement of membership, its auditor’s report or its financial statements. The Committee notes that although this provision represents a certain improvement in relation to sections 67, 68, 69 and 71 of the Trade Unions Act, which enabled the Registrar to request and inspect account books and members’ lists at any time, the authority of the Registrar is still excessively broad. The Committee recalls that supervision should be limited to exceptional cases (for example, to investigate a complaint, or if there have been allegations of embezzlement), and more generally if there is a presumption that there is an infringement of the law (see General Survey, op. cit., paragraph 125). The Committee requests the Government to consider modifying section 52(2)(b) of the Bill so that the Registrar may request written explanations only in exceptional cases when there are serious grounds for believing that the organization has infringed the law or at the request of the organization’s members.

Zanzibar. The Committee notes that section 42(2)(t) of the TUA which contains an exhaustive enumeration of the purposes for which trade union funds may be spent, provides that expenditure on any other object must be authorized by the Registrar. The Committee considers that this provision restricts excessively the freedom of trade unions to freely dispose of their property and funds, and gives the administrative authorities powers of permanent control over trade union activities (see General Survey, op. cit., paragraph 126). The Committee requests the Government to repeal this provision.

Noting that section 66(2)(b), (d), (e), (f) and (g) provides that the Minister may make regulations on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds, the Committee requests the Government to transmit any such regulations made.

The Committee further notes that section 45(1) of the TUA provides, inter alia, that every trade union treasurer shall render at any time to the Registrar an account of all moneys received and paid and of trade union property. The Committee considers that there are no sufficient safeguards against interference in the internal affairs of trade unions where an investigation can take place at any time and in the absence of a formal complaint (see General Survey, op. cit., paragraphs 125 and 126). The Committee requests the Government to amend section 45(1) of the TUA so as to eliminate the possibility for the Registrar to require an account of the financial situation of the union at any time.

The right to strike. The Committee notes with interest that upon adoption of the Employment and Labour Relations Bill, certain provisions of the Industrial Court of Tanzania Act, 1967 which considerably restricted the right to strike (compulsory arbitration at the discretion of the labour authorities, two-thirds majority for a successful strike ballot and heavy penalties in case of participation in an unlawful strike), will be repealed. The Committee also notes with interest that contrary to section 77(3) of the TUA, the Bill does not make reference to the law relating to riot, unlawful assembly, etc.

The Committee further notes however that meteorological services are listed among the essential services in section 77 of the Bill. The Committee considers that meteorological services are not essential services in the strict sense of the term, i.e., those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; rather than imposing an outright ban on strikes in these services, the authorities could establish a system of minimum service (see General Survey, op. cit., paragraphs 159 and 160). The Committee requests the Government to modify section 77 of the Bill so as to exclude the personnel of meteorological services from the list of essential services.

The Committee notes that Part 4 of the draft Labour Institutions Bill establishes an Essential Services Committee entrusted with designating essential services and determining disputes about whether or not an employee or employer is engaged in a designated essential service. The Committee also notes that according to section 77 of the draft Employment and Labour Relations Bill, the Essential Services Committee may designate an essential service after, inter alia, conducting an investigation and holding a public hearing on the matter, and shall publish a notice to that effect in the Gazette. The Committee requests the Government to keep it informed of any designations of essential services that the Essential Services Committee may make, once it has been established.

The Committee notes that sections 4 and 84 of the draft Employment and Labour Relations Bill allows for protest action, i.e., strikes in disputes that are not interests disputes. However, it appears from section 4 that such action is not lawful when it takes place in relation to a dispute "in respect of which there is a legal remedy". The Committee requests the Government to provide information on the scope of this provision and the type of action referred to for which there might be a legal remedy.

With regard to the right to strike in the public service, the Committee notes that section 22 of the draft Public Service (Negotiating Machinery) Bill prohibits strikes by "staff grade officers" which include, according to section 2(c) and (d), the head of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management. The Committee notes that the right to strike may be restricted for public employees only when they are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). All other persons employed by the Government, public enterprises or autonomous public institutions, including teaching staff or educational institution directors, should be able to exercise the right to strike. The Committee requests the Government to consider modifying section 22 so as to fully guarantee the right to strike of public employees not engaged in the administration of the State including head teachers/school directors.

The Committee also notes with regard to public employees’ right to strike that sections 12, 13(b), 15, 17(1) and (2) and 19 of the Public Service (Negotiating Machinery) Bill establish a system of compulsory arbitration at the discretion of the authorities concerning the conditions and terms of employment of operational public service employees (i.e., supporting staff not employed in the executive or officer grade) which effectively amounts to a prohibition of the right to strike. The Committee is of the opinion that compulsory arbitration at the initiative of the public authorities is acceptable only for public employees exercising authority in the name of the State (see General Survey, op. cit., paragraphs 153 and 158) and that the scope of the abovementioned provisions, which apply throughout the public service, is excessively wide. The Committee requests the Government to modify the above provisions, so as to ensure that restrictions on the right to strike in the public sector are limited to public servants exercising authority in the name of the State.

Zanzibar. The Committee notes that Part VIII of the TUA on Picketing and Intimidation provides in section 56, read in conjunction with section 55, inter alia, that it shall not be lawful for one or more persons acting on behalf of a trade union, to attend at or near a place where a person works for the purpose of persuading or inducing any person to abstain from working, if they attend in such number or manner as to be likely to intimidate any person, that is to say, to cause in the mind of that person a reasonable apprehension of injury to himself or to any member of his family or to any of his dependants or of violence or damage to any person or property. The Committee considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful and that the authorities should refrain from any interference which would restrict freedom of assembly except in cases of serious and imminent threats to public order (see General Survey, op. cit., paragraphs 35 and 174). The Committee requests the Government to provide information on any cases in which this provision has applied and any measures taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful.

The Committee requests the Government to provide any information on the manner in which the right to strike is ensured in Zanzibar.

Article 4. Dissolution and suspension. Zanzibar. The Committee notes that section 38(3) of the TUA provides that the High Court may appoint the Registrar as liquidator pursuant to the dissolution of a trade union. The Committee considers that the assets of dissolved trade unions should be used for the purposes for which they were acquired (see General Survey, op. cit., paragraph 186). The Committee therefore requests the Government to indicate the provisions which ensure that in exercising his functions as liquidator, the Registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired.

Article 5. The right of workers’ and employers’ organizations to establish federations and confederations of their own choosing. The Committee notes with interest that the draft Employment and Labour Relations Bill has eliminated the excessively long and detailed requirements for the registration of trade union federations established under the Trade Unions Act.

Zanzibar. Although it would appear implicitly from sections 2, 32 and 33 of the TUA that trade unions have the right to form federations and confederations of their own choosing, the Committee requests the Government to confirm that trade unions have the right to join federations and confederations in the form and manner deemed most appropriate by the workers concerned, as required by Article 5 of the Convention.