Labour Laws Protection Over Third Party In Tanzania.

 

PRELIMINARY

For the better understanding one need to be familiar with several terminologies connected to labour. One must understand who is an employer against an employee. Then it is necessary to test the duties and responsibilities which differentiate between employer and employee.

Employer is a person or organization/department which employs while an employee is a person employed for wages or salary, especially at non-executive level. Employer conducts all supervisory duties and payment of wages to workers, employer is responsible to make safe environment for work and provides to the workers all necessary tools for work. Employee provides labor to a company or another person, he/she depends on directives given by employer, an employee can be terminated by employer on failure to abide to directives for work given, causing loss, or working under expected capacity.

The employer and the employee both depend on each other for achieving a set target and therefore both mutually benefits from each other . The relationship that exists between the employer and the employee is a relationship that must be developed over time. This development requires the input of both parties, that is, the employer and the employee. The employer can play their part of establishing and developing a relationship with their employees by showing interest in their life away from work, asking the employees about their families and learning about what their interests are. Employees can contribute by being more open to their employers and talking about themselves and their lives away from work comfortably. These relationships are important to the success of the work or business since a strong relationship makes the workers satisfied and consequently increases productivity.

Employer employees relationship exists when a person performs work or services under certain conditions in return for remuneration. The employment relations defines rights, duties and obligations imposed to both employer and employee. Love affection is totally discouraged between employer and employee as it is a source of failure of many business world wide. Love affairs between employees reduce productivity since there will be no good performance due to conflict of interests between work and love affair.

United Republic of Tanzania is a country with several laws governing employment and labour relations between employers and employees. The Employment and  Labour Relations Act , The Labour Institutions Act , Employment and Labour Relations (General) Regulation , Public Service Act , and Public Service Regulation  are few of many laws, regulations and rules forming part of employment and labour legal regime in Tanzania. Laws governing employment provides rights and duties between employers and employees, but the same laws protects interests and rights of third parties who are not part of employment contract. Employment and Labour Relations Act is a statute which applies  to  all employees including  those  in the  public service of  the  Government  of Tanzania mainland, but  shall not  apply to members, whether temporary or permanent, in the  service of The Tanzania Peoples Defense Forces, The Police Force, The Prisons Service, or The National Service.

Employees in public service are governed by Public Service Act and it’s regulations and rules, reference can be made to ELRA in case of rights and duties but not to public employees excluded by the statute. Labour laws basically protects interests of employees in an employment contracts but third parties are also protected and given rights by labour laws on several occasions. Third parties who benefits from employees (relatives and family members of employees), people who suffers loss or damages connected to employees, and people who are legally prohibited to be employed are among third parties protected by the labour laws.

LABOUR LAWS PROTECTION OVER THIRD PARTY

Employee's death and dependants compensation. S. 19(1) of The Workers Compensation Act  provides that, “Where an employee has an accident resulting in the employee’s disablement or death, the employee or the dependants of the employee shall be entitled to the compensation.” Labour laws provides a venue or protection to dependants of a deceased worker who died in course of his/her work. Dependants who are not part of a deceased's contract with employer, are entitled to compensation and other rights as the beneficiaries of deceased’s estate .

Prohibition of child labour. Child labour includes all forms of employment that are done by children under a given age, but work which is detrimental to child's health, welfare development is particularly harmful. Employment of a child under 14 years old is totally prohibited under S. 5(1) of ELRA , the only exception to this provision is provided under S. 5(2) of the same statute where by it is provided that, “A child of fourteen years of age may only be employed to do light work, which is not likely to be harmful to the child’s health and development; and does not prejudice the child’s attendance at school, participation in vocational orientation or training programmes approved by the competent authority or the child’s capacity to benefit from the instruction received.”

In addition, S.5(3) of ELRA, a child under eighteen years of age cannot be employed in a mine,  factory or as crew on a ship or in any other worksite including non-formal settings and  agriculture,  where work conditions may be considered hazardous. No person is allowed to employ a child under eighteen years to an employment which is inappropriate for a person of that age or an employment which places a child at  risk of harm mentally or physically. A child can be permitted to work under the  age of  eighteen on  board  a  training  ship  as  part  of the child’s training, in  a factory  or  a mine  if  that work  is part of  the child’s training, in any  other  worksites  on condition  that the health, safety  and  morals of the child are fully  protected  and  that  the child has received  or  is receiving  adequate  specific instruction or vocational  training in  the relevant  work  or activity. See S.5(5) of ELRA.

R.4(1) of Employment and Labour Relations (General) Regulation  prohibits a child who is still attending school to work for more than three hours per day,  a child of fourteen years and above who is on leave, has completed his studies, or is not in school for any justifiable reason, may be employed to work in an establishment for not more than six hours per day provided that the employer shall be responsible for the safety of the child so employed at the work place. A child allowed by the law to be employed shall not work for three consecutive hours without a one hour break, or to work overtime and at night hours. See R. 5 and 6 of regulations.

It is prohibited under Regulation 7 for a child allowed to work under ELRA to be assigned works involving carrying of any load weighing more than 15 kilograms, a child of above sixteen years shall not be permitted to carry any load weighing more than 20 kilograms. The labour commissioner or any labour officer is entitled powers by order to prohibit the employment of children in any case if he is satisfied that the conditions of employment of children are unsatisfactory.

Labour laws protects children from hazardous employments which interferes with their studies, health and social well-being. It provides guidelines on how children may be subjected to employment without infringement of their basic rights. 

Public servants benefits i.e compulsory health insurance to beneficiaries. S. 14(1) of The National Health Insurance Fund Act  requires all public servants to be compulsory members of NHIF, in addition, sub-section 2 of s. 14 of NHIF Act, the beneficiaries of  public servant are recognized as part of the members of NHIF hence their medical expenses are covered by the fund. This is a protection to third parties (beneficiaries of public servants) who are not part of employment contracts.

Breast feeding during working hours. S. 33(10) of ELRA  and Regulation 15 of GN No 47 requires a woman for not less than 6 months after maternity leave, being allowed to leave the office for a maximum of two hours of his convenience during the working hours for breast feeding the child. This is a right given to a woman who gave a birth to a child, but it is a protection to a child’s right of breast feeding because that child depends on breast feeding for survival. Here the labour laws protects a child whose mother is an employee. 

In Halisi Camps Limited v. Pendosta Michal Tarimo , the respondent was employed by the applicant on July, 2013 and on June, 2015 she was given a 2 years contract as an accountant. She conceived and when her due date was approaching she applied for maternity leave on 5th July, 2018. Her leave commenced after delivery on 9th July 2018. It was alleged that when she reported back from her maternity leave, she found major changes in her office. Among these were that, she was denied access to her computer, and all the information therein deleted. She thus reported her concern to a person called Charles in respect of the missing information and was told that, her duties had changed, she was now to work as a cashier.

She was aggrieved by the situation and she filed resignation letter on ground that the working environment had become intolerable. She later filed suit before CMA claiming payment of her rights depending on contract of employment. CMA ruled on her favor by ordering applicant to pay a total of Tshs. 21,008,076/= and a Certificate of Service to a respondent on the ground that, changes to her duties and denial of access to her computer was a constructive termination. Being aggrieved by decision of CMA, applicant filed an revision application before H.C labour division, and one of the grounds for application was that, “the change of Respondent's duties was to accommodate her breast feeding schedule as per the law”. The High Court found no merit on all grounds of application but this application has showed that, breast feeding is a right to an employee and when this right granted become a protection to a child.

Prohibition of forced labour. S.6(1) of ELRA prohibits forced labour, any person who procures, demands or imposed forced labour commits an offence. Forced labour is any labour or work influenced by threat of penalty, without consent of one who is doing it. Some form of labour are excluded from being forced labour depending on a nature or emergency situations that may happen in society. Forced labour does not include works under National Defense Act  which are military works in nature, any work that form part of the civic obligation in the society, any work exacted from any person as a consequence of a conviction in a court of law, provided that the work is carried out under the supervision and control of a public authority and that the person is not hired to, or placed at, the disposal of private persons, any work carried in an emergency situation that could endanger the wellbeing of the society and minor communal services  performed by the members of a community in the direct interest of that community after consultation with them or their direct representatives on the need for the services. 

This is a protection to outsiders or third parties not forming part of the employment contract, ELRA prohibits people being forced to perform some works or activities without their consent or under threat to harm or penalty. People are given right to work and to choose what do do without any force, forced labour is an offence not only provided under labour laws, but other statutes provides the same. S.256 of Penal Code  prohibits unlawful compulsory labour to citizens of Tanzania, likewise Article 25(2) of constitution  prohibits forced labour in Tanzania.

CONCLUSION

Third parties are protected by labour laws in Tanzania. Beneficiaries or dependants of employees are entitled to several rights arising from contract which they are not original parties, Medical expenses to depends of public servants by NHIF is a right which not only covers public servants but their dependants. Compensation to dependants of a deceased public servants is a right to third parties who are not original parties of employment contract between a deceased and employer. All other outsiders who provide loans to public servants are protected by labour laws  Protection of third parties by labour laws is subject to limits. For instance, NHIF covers only four dependants of a public servant in medical expenses, other dependants may get separate service from that arising from public servant.

Compensation to dependants of a deceased public servant who died in course of his/her work is limited, a deceased public servant whose death cause by his/her mis-conduct or acting out authority given to him/her by laws, is not entitled to compensation. Dependants are entitled to other rights that deceased left.

REFERENCE

BOOK

Mwakisiki, M.E (2019). “The Law on Employment and Labour Relation In Tanzania”. A comprehensive students training manual. Moshi Cooperative University. Moshi. P. 209-11.

STATUTES

The Constitution of United Republic of Tanzania, [CAP. 2 0f 1977)

Employment and Labour Relations Act, [CAP. 366  R.E.  2019]

The Labour Institutions Act, [CAP 300 R.E. 2019]

Employment and Labour Relations (General) Regulation, GN NO. 47 published on 24/02/2017

Public Service Act, [CAP 298 R.E. 2019]

Public Service Regulation, GN NO. 168 published on 20/06/2003

The Workers Compensation Act, [CAP 263 R.E. 2009]

The National Health Insurance Fund Act, [CAP. 395 R.E. 2015]

National Defense Act, [CAP 192 R.E. 2010]

Penal Code, [CAP. 16 R.E 2019]

CASE LAW

Halisi Camps Limited v. Pendosta Michal Tarimo, Labour Revision No. 29 of 2019

OTHER SOURCES

Humaniam,. “Children of Tanzania”,. Available at < https://www.humanium.org/en/tanzania/> (accessed at July 16 2021)

Japhet, B., “Are Tanzanian Mothers Entitled To Work ‘Half-Day’ After Maternity Leave?”, Available at <https://pesacheck.org/are-tanzanian-mothers-entitled-to-work-half-day-after-maternity-leave-fb5db39b1548> (accessed at 17 July 2021)

Mywage.org., “prohibition on forced and compulsory labour”,. Available at<https://mywage.org/tanzania/in-the-workplace/fair-treatment/forced-labour> (accessed at 17 July 2021)