Salient Features of the Employment and Labour Relations Act, 2004 (ELRA)

Salient Features of the Employment and Labour Relations Act, 2004 (ELRA) and how they establish a framework for fair and effective employment relations in Tanzania?

Preliminary
The Employment and Labour Relations Act, 2004 (ELRA), was enacted as Act No. 6 of 2004 and came into force on February 2005.[1] It repealed and replaced several outdated pieces of legislation, including the Employment Ordinance[2], the Regulation of Wages and Terms of Employment Ordinance[3], the Trade Unions Act[4], and others. Its enactment was part of broader labor reforms aimed at improving employment legal framework in Tanzania to protect labor rights, and enable enterprises to compete in a modern economy.[5] The ELRA sought to ensure the observance of core labor rights, establish basic employment standards, facilitate dispute resolution, and provide a framework for collective bargaining.

ELRA regulates the relationship between employers and employees in Tanzania. This relationship is defined by rights, duties, and obligations under the law ensuring mutual benefits and protections. To fully understand the scope of ELRA, one must first grasp key terminologies such as “employer” and “employee.” As per section 4 of ELRA, an “employer” means any person (natural or legal), including the Government and an executive agency, who employs an employee. Conversely, an “employee” offers labor and follows employer directives and exchanges his/her service for wage or salary.[6] The relationship between these two parties is governed by ELRA to the extent of every affair between employer and employee. ELRA establishes rights, duties and responsibility of both these parties and in case of default, a responsible party defaulted is subject to punishment according to the ELRA provisions and specific employment contract.

As per section 2 of the Act, ELRA applies to all employees in Tanzania, including those in public service, but excludes specific groups such as members of the Tanzania People’s Defense Forces, Police Force, Prisons Service, and National Service. Other laws, including the Public Service Act and the Labour Institutions Act, complement ELRA by addressing sector-specific labor matters. Notably, ELRA provides for the protection of third parties individuals who are not direct parties to employment contracts but derive certain rights from them.

Salient Features of the Employment and Labour Relations Act, 2004 (ELRA)

The right to freedom of association under Section 9 of ELRA, guarantees employees the ability to form and join trade unions and participate in their lawful activities [Section 9(1)].[7] This provision empowers employees to negotiate collectively for better working conditions and other affairs. However, the Act introduces limitations to this right for specific categories of employees to maintain professional integrity and organizational stability. For instance, magistrates may only form or join trade unions exclusive to judicial officers, prosecutors are restricted to unions of prosecutors or court officials, and senior management employees are barred from joining unions representing non-management employees of the same employer [Section 9(2)].[8]

These restrictions aim to prevent conflicts of interest and preserve neutrality in critical professions. While the Act upholds freedom of association, these limitations balance individual rights with the need for impartiality within specific roles, though some argue they may curtail employees’ ability to advocate for their rights in hierarchical institutions because they limit the options for union representation. For instance, magistrates and prosecutors are restricted to joining unions specific to their professional categories, which may not have the bargaining power or influence of larger, more inclusive unions. Similarly, barring senior management employees from joining unions that represent non-management employees isolates them, leaving their interests underrepresented, especially in workplaces with no dedicated unions for senior management.

Prohibition of Discrimination under Section 7 of the Employment and Labour Relations Act, 2004, mandates that employers promote equal opportunity and eliminate discrimination in the workplace based on various grounds, including race, gender, disability, and more [Section 7(1) and 7(4)].[9] This is achieved by requiring employers to register a plan with the Labour Commissioner to promote equal opportunity and eliminate discrimination [Section 7(2) and 7(3)]. Employers are prohibited from discriminating against employees directly or indirectly on grounds such as race, nationality, gender, pregnancy, age, and HIV/AIDS, among others [Section 7(4)]. In addition, harassment on any of these grounds is considered a form of discrimination and is prohibited [Section 7(5)].

Also, the Act emphasizes equal remuneration for men and women for work of equal value [Section 7(10)], directly contributing to reducing gender inequality in the workplace. The provision that employers must prove that no discrimination occurred when an employee makes a prima facie case of discrimination [Section 7(8)] shifts the burden of proof to the employer, which strengthens the protection of employees’ rights. Section 7 establishes a legal framework that promotes diversity, inclusion, and fairness in employment practices, promoting a just and equitable work environment in Tanzania.

Employment Contracts: Section 14 of ELRA, require that all employees employed for six months or more must have a written contract. This provision enhances transparency by outlining the terms and conditions of employment such as job duties, duration, and compensation which minimize disputes between employers and employees. The Act provides for three types of contracts: an unspecified period of time, a specified period for professionals and managerial positions, and a contract for a specific task which gives flexibility in employment agreements while ensuring clear expectations are set from the start [Section 14(1)].[10]

By mandating written contracts, especially for those working within or outside Tanzania, the law protects employees from exploitation, ensuring both parties understand their rights and obligations. Written contracts also promote legal accountability, as employers are obliged to document key aspects of the employment relationship which eventually reduce ambiguities in case of disputes.[11] Although the law is clear, compliance remains a challenge in practice, especially in the informal sector, where many employees still work without written agreements.[12] This creates vulnerabilities for workers, as they may lack formal recourse in the event of exploitation or disputes. Nonetheless, the requirement for written contracts under Section 14 establishes a foundation for protecting employees’ rights and promoting fair employment practices.

Working Hours: Section 19(1) of ELRA establishes that employees should not work more than 12 hours in a single day, and overtime work is restricted to a maximum of 50 hours every four weeks. Overtime should be paid at a rate of at least one and a half times the employee’s basic wage. The Act also addresses night work under section 20 of the Act, prohibiting employers from requiring certain employees such as pregnant women, nursing mothers, and children under 18 from working at night, with exceptions for medical reasons or written agreements. Employees working night shifts must receive at least 5% of their basic wage for each hour worked at night.[13]

Section 19 and 20 of the Act ensures that employees are not overworked, promoting their well-being and preventing exploitation. The requirement for overtime to be compensated at no less than one and a half times the basic wage further guarantees that employees are fairly remunerated for extra work. In addition, the Act protects vulnerable workers such as pregnant women, nursing mothers, and children under 18 years from being required to work night shifts, with provisions for exceptions only under strict conditions like medical necessity.[14] These measures create a balanced and protective legal environment that supports both the interests of employers and the rights of employees, promoting fair treatment and a more equitable workforce.

Leave Entitlements: The Act under section 31, 32 and 33 specifies entitlements for annual, sick, and maternity leave. Employees are entitled to 28 consecutive days of annual leave, which must be taken within a specified period after the leave cycle ends. Sick leave is provided for up to 126 days per leave cycle, with the first 63 days paid at full wages and the next 63 days at half wages. Maternity leave allows employees up to 84 days of paid leave, with an additional 84 days if the child dies within a year of birth. Employers must provide suitable alternative work for pregnant employees performing hazardous duties. These leaves ensures that employees have adequate time for rest and recuperation, promoting productivity and work-life balance.

Employee Rights on Breaks and Rest: Section 23 ensures employees working for more than five continuous hours receive a break of at least 60 minutes, although this break is unpaid unless the employee is required to work during it. Employees must also be given a daily rest period of at least 12 hours and a weekly rest period of at least 24 hours.

Termination Procedures: The provisions regarding termination of employment under the Act ELRA are designed to ensure fairness, transparency, and protection for both employees and employers. Section 37 of the Act stipulates that an employer must provide a valid reason for terminating an employee’s contract. This reason must be based on objective factors, such as performance issues, misconduct, redundancy, or incapacity. Termination cannot be done arbitrarily or without justification, ensuring that employees are not unjustly dismissed. In addition, Section 38(1) provides that the employer must follow a fair procedure before terminating employment, which includes providing the employee with an opportunity to defend themselves against the allegations or reasons for dismissal. This protects employees from being unfairly treated in the event of a dispute.

The Act also outlines procedures for different types of termination, such as dismissal, resignation, or retirement, which ensures that employers adhere to established processes. For instance, in cases of misconduct, the employer must issue a warning and allow time for improvement before taking any further action. Similarly, if an employee is dismissed on the grounds of redundancy, the employer is required to follow a set procedure that includes providing notice and severance pay. This ensures that employees receive adequate compensation and notice of termination, preventing abrupt or unfair job loss.

Furthermore, the Act provides specific provisions for the termination of vulnerable groups, such as pregnant employees, nursing mothers, or those on maternity leave, which protect them from unfair dismissal during these critical periods. These measures ensure that termination practices are fair, just, and transparent, balancing the rights of both the employee and employer while fostering an environment of mutual respect and understanding in the workplace.

Conclusion

The Employment and Labour Relations Act, 2004, establishes a competent legal framework for the fair and effective employment relations in Tanzania, balancing the rights and responsibilities of employers and employees. Its salient features include provisions on working hours, leave entitlements, termination procedures, and protections against unfair dismissal, ensuring fairness and transparency in the workplace. The Act also promotes equality by addressing issues such as non-discrimination, freedom of association, and the protection of vulnerable groups like pregnant women and minors. By emphasizing compliance with clear procedures and standards, the Act promotes harmonious labor relations and protects the welfare of workers, contributing to a stable and productive employment environment in Tanzania.

Bibliography

Books
Collins, H., Ewing, K., & McColgan, A. (2021). Labour law: Text, cases, and materials. Cambridge University Press.
Kileo, A. M. (2023). Comprehensive issues of employment and labour law: Practice for modern business in Tanzania. Lexis Nexis.
Rutinwa, B., Kalula, E., & Akson, T. (2016). Employment and labour law relations in Tanzania. LawAfrica Publishing.
Papers
Daza L J, ‘Informal Economy, Undeclared Work and Labour Administration’ a paper presented in Social Dialogue, Labour Law and Labour Administration Departments (2005) 4.
Legislations
Employment Ordinance Cap 366
The Employment and Labour Relations Act, No. 6 of 2004
The Regulation of Wages and Terms of Employment Ordinance Cap 300
Trade Unions Act No. 10 of 1998
Web-sources
Ontop, ‘what is an employer’ <https://www.getontop.com/glossary/employer> Accessed 24th November 2024
Scribd, ‘salient features of the new labour laws in Tanzania’ <https://shorturl.at/5jSHB> Accessed 24th November 2024
Susan B.J.D, ‘Pros and Cons of Written Employee Contracts’ < https://shorturl.at/CKLsp> Accessed 24th November 2024

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[1] Scribd, ‘salient features of the new labour laws in Tanzania’ <https://shorturl.at/5jSHB> Accessed 24^th November 2024
[2] Employment Ordinance Cap 366
[3] The Regulation of Wages and Terms of Employment Ordinance Cap 300
[4] Trade Unions Act No. 10 of 1998
[5] Rutinwa, et al (2016). Employment and labour law relations in Tanzania. LawAfrica Publishing. 7
[6] Ontop, ‘what is an employer’ <https://www.getontop.com/glossary/employer> Accessed 24^th November 2024
[7] The Employment and Labour Relations Act, No. 6 of 2004. S. 9(1).
[8] The Employment and Labour Relations Act (n 7) 9(2).
[9] The Employment and Labour Relations Act (n 7) 7(1) and (4).
[10] The Employment and Labour Relations Act (n 7) 14(1).
[11] Susan B.J.D, ‘Pros and Cons of Written Employee Contracts’ < https://shorturl.at/CKLsp> Accessed 24th November 2024
[12] Daza L J, ‘Informal Economy, Undeclared Work and Labour Administration’ a paper presented in Social Dialogue, Labour Law and Labour Administration Departments (2005) 4.
[13] Kileo, A. M. (2023). Comprehensive issues of employment and labour law: Practice for modern business in Tanzania. Lexis Nexis. 14
[14] Collins, H., Ewing, K., & McColgan, A. (2021). Labour law: Text, cases, and materials. Cambridge University Press. 7