EMPLOYMENT LEGAL OBLIGATIONS

ABSTRACT: The Articles examines employment statutory contributions imposed against the employers that are to be paid to The Tanzania Revenue Authority (TRA), The National Social Security Fund (NSSF), The Occupation Safety and Health Authority (OSHA), and The Workers Compensation Fund (WCF) on behalf of their employees as provided by the Law.

PREPARED BY; NEEMA NKYA

EMPLOYMENT STATUTORY REQUIRED CONTRIBUTION

As an employer, you are obliged to pay your employee fairly, whilst meeting legal obligations and ensuring that any necessary contributions are made on the employee behalf.

When an employer employs an employee, there are number of legal obligations imposed by the law that are to be taken into account and to make sure they are adhered to.

1. PAYE (PAY AS YOU EARN)

Definitions:

1. PAYE stands for Pay-As-You-Earn. It is a withholding tax on taxable incomes of employees. Under this system, an employer is required by law to deduct income tax from an employee’s taxable salary or wages.
2. Employee means: An employee means an individual who is a subject of an employment conducted by an employer. It includes a permanent employee, part time, manager, director and casual employees. Employees may be employed by one or more employers (Primary and Secondary Employment).
3. Employer means: An employer means a person who conducts, has conducted or has prospect of conducting the employment of an individual.
4. Full time service director means: Means a person at a managerial position and is in full time service in a corporation.

Administration of PAYE:

An employer is required to withhold income tax from salaries, wages and all other payments forming taxable income paid to an employee.

Gains or profits included in calculating income from employment:

The employment income includes;

1. payments of wages, salary, payment in lieu of leave, fees, commissions, bonuses, gratuity or any subsistence travelling entertainment or other allowance received in respect of employment or service rendered.
2. payments providing any discharge or reimbursement of expenditure incurred by the individual or an associate of the individual.
3. payments for the individual’s agreement to any conditions of the employment.
4. retirement contributions and retirement payments.
5. payment for redundancy or loss or termination of employment.
6. other payment made in respect of employment including benefits in kind quantified in accordance to the prescribed rules.
7. other amounts as may be required to be included.
8. annual director’s fees payable to a director other than a full-time service director.

Gains or profits excluded from calculation of income from employment:

1. Exempt amounts and final withholding payments.
2. On premises cafeteria services that are available on a non-discriminatory basis.
3. Medical services, payment for medical services, and payments for insurance for medical services to the extent that the services or payments are –
4. Available with respect to medical treatment of the individual, spouse of the individual and up to four of their children; and
5. Made available by the employer (and any associate of the employer conducting a similar or related business) on a non-discriminatory basis;
6. Any subsistence, travelling, entertainment or other allowance that represents solely the reimbursement to the recipient of any amount expended by him wholly and exclusively in the production of his income from his employment or services rendered.
7. Benefits derived from the use of motor vehicle where the employer does not claim any deduction or relief in relation to the ownership, maintenance or operation of the vehicle.
8. Benefit derived from the use of residential premises by an employee of the Government or any institution whose budget is fully or substantially out of Government budget subvention.
9. Payment providing passage of the individual, spouse of the individual and up to four of their children to or from a place ofemployment which correspond to the actual travelling cost where the individual is domiciled more than 20 miles from the place of employment and is recruited or engaged for employment solely in the service of the employer at the place of employment.
10. Retirement contributions and retirement payments exempted under the Public Service Retirement Benefits Act.
11. Payment that it is unreasonable or administratively impracticable for the employer to account for or to allocate to their recipients.
12. Allowance payable to an employee who offers intramural private services to patients in a public hospital; and
13. Housing allowance, transport allowance, responsibility allowance, extra duty allowance, overtime allowance, hardship allowance and honoraria payable to an employee of the Government or an institution the budget of which is fully or substantially paid out of Government budget subvention.
14. These are non-cash benefits which employee may enjoy from the employer. Benefits in kind are quantified by the prescribed rules and included into taxable income of an employee. They are quantified in the following rules.

1. Provision of premises/house allowance to an employee:

Benefit in kind related to premises/housing is taken as the lower of the Market Value Rent of the premises and the higher of the following:

1. 15% of the employee’s total annual income and
2. The expenditure claimed as deduction by the employer in respect of the premises.

Note:

If an employee contributes to part of rent paid on premises, the amount of quantified benefit will be reduced by the amount of rent paid by the employee.

• Provision of Motor vehicle to an employee:

The quantifications for Benefits in kind from a motor vehicle are based on engine size and age of a vehicle provided. The following annual amounts are applied;

Note:

The Motor vehicle benefit is not applicable where the employer does not claim deduction in respect of the ownership, maintenance or operation of the vehicle.

• Provision of loan to an employee

When an employer provides a loan to an employee and the loan is at the interest rate below statutory rate, the amount of benefit in kind is taken as the difference of the following:

1. The amount of interest that would have been paid if the interest on loan would be charged at statutory rate, and
2. The amount of interest paid on the loan at the rate provided.

Exception

Where an employer provides a loan, whose term is less than twelve months and the aggregate amount of the loan and similar loans outstanding at any time during the previous twelve-month period do not exceed three months basic salary of an employee, then the amount of benefit in kind is nil.

• Other benefits in kind

The market value will apply in determining other benefits in kind.

The applicable rates for Tanzania mainland are different from those of Tanzania Zanzibar.

Secondary employment:

When a person is employed in more than one employment position then employment positions selected by an employee to be regarded as not the main source of income are called secondary employments.

All employers are supposed to withhold income tax but secondary employers are required to withhold in different manner from primary employer.

Responsibility of an employee with secondary employment:

1. To select, among employment positions, which one will be a primary employment and the other ones are secondary employments.
2. To timely notify a primary employer and other employers that are the employee’s secondary employers.

Responsibility of the employer:

1. To withhold tax at the highest rate of the individual income tax rates applicable.
2. Enquire all employees, at a minimum of six-month period intervals, whether the employment is a secondary employment or not.

Note:

If withholding at the highest personal income tax rate will cause hardship to the employee, he may apply to the Commissioner to allow a lower rate at which the secondary employer must withhold tax.

Local staff working to High Commissions, Embassies and diplomatic missions:

In general, High Commissions, Embassies and Diplomatic missions are not obliged to pay any tax, as covered under The Diplomatic and Consular Immunities and Privileges Act. In this regards those bodies they are not bound to operate PAYE schemes. Although some other bodies opt to operate in order to keep their records properly and help their employees to avoid wasting time in complying with their tax affairs so as to enable them concentrate with their duties at their offices.

Therefore, if a local employee is employed in these institutions, and the institutions opt not to operate PAYE system, he shall do the following:

1. Register as taxpayers by acquiring Taxpayer Identification Number (TIN).
2. File a statement of estimated income at the beginning of the year based on his monthly income.
3. File final returns.

Taxation of nonresident employees:

For nonresident employees (e.g. temporary employees from abroad) tax is withheld at a flat rate of 15% of the gross income from employment.  This is effectively a final withholding and the amount withheld satisfies the employee’s income tax liability with respect to the employment.

Specific rates applicable to certain categories of employees:

Some categories of employees have special treatment different from how normal employees, these are non-residents employee and directors other than full time service directors: –

Non-residents:

For nonresident employees (e.g. temporary employees from abroad) tax is withheld at a flat rate of 15% of the gross income from employment. This is effectively a final withholding and the amount withheld satisfies the employee’s income tax liability with respect to the employment.

Directors other than full time service directors:

Tax is withheld at a rate 15% to fees paid to directors other than full-service director. The tax payable is non-final withholding tax.

Documents to be maintained by the employer:

Documents includes an account, assessment, book, certificate, claim, note, notice, order, record, return or ruling and may take an electronic form

The employer is required to keep the following documents: –

1. Wage sheets and salary vouchers; and
2. Any other books, documents and records whatsoever relating to the calculation or payment of amounts to employees or tax withheld from such payments.

The employer must maintain these documents for a period of five years from the end of the year of income or years of income to which it relates unless the Commissioner otherwise specifies by notice in writing.

Lump sum payments:

Lumpsum payments to employees may take the form of gratuities, leave pay, compensations, bonus, commissions etc. which may cover several months of the year or the whole of a year. Lump-sum payments other than terminal payments should be included in the year of payment and be taxed on the basis of the adjusted monthly pay for the year. 

Terminal Lumpsum payments which include redundancy and other payments for loss or termination of office shall be spread over a period of six years or actual years of employment and shall be taxed as income for these years.

Contributions made to approved retirement funds:

The amounts of contributions made by employee/employer to the approved retirement funds are reduced from the gross pay when calculating the PAYE.  The amount of this reduction is equal to the lower of-

1. The total of the employee; or employer contributions where it is included in calculating the monthly pay made to approved retirement funds; and
2. The statutory amount of the fund.

2. SKILLS DEVELOPMENT LEVY (SDL)

Introduction:

Skills and Development Levy: is a levy collected by TRA under the Vocational Education Training Act and Income Tax Act.

Chargeability: 

SDL is charged based on the gross pay of all payments made by the employer to the employees employed by such employer in the particular time. It is important to understand that SDL is due and payable by an employer.

The gross emoluments: 

Gross emoluments are sum of amount from salaries, wages, payments in lieu of leave, fees, commissions, bonuses, gratuity, any subsistence travelling, entertainment or other allowance received by employee in respect of employment or service rendered.

Where in any case an employer pays emoluments to any employee at intervals of less than a month or at intervals of greater than a month, such payments shall apply as if such employee was entitled to monthly payments and the monthly chargeable emoluments of such employee in respect of any month shall be deemed to be the chargeable emoluments that would have accrued to the employee had the emoluments been payable monthly.

Who is liable for SDL?

Any employer who employs four or more employees shall pay SDL from gross emoluments.

Applicable rates:

The rate applicable for SDL is 4.5% of the total emoluments paid to all employees during the month.

The employee includes permanent employees, part time employees, secondary employees, casual laborers etc.

Employer’s obligation:

1. To calculate the amount of the levy and pay the amount to Commissioners account to the respective Tax Region in which such employer is registered.

The SDL payments shall be made using Form ITX 300.01.E – Employment Taxes Payment Credit Slip.

• To prepare a monthly return and submit to the TRA office on or before the 7th day of the month following the month of payroll.
• To prepare and remit half year certificate which tally with the monthly returns submitted during the period.

The Skills and Development Levy shall not be charged to: –

1. A Government department or a public institution which is wholly financed by the Government;
2. Diplomatic Missions;
3. The United Nations and its organizations;
4. International and other foreign institutions dealing with aid or technical assistance;
5. Religious institutions whose employees are solely employed to-
6. administer places of worship; or
7. give religious instructions or generally to administer religion;
8. Charitable organizations; or
9. Local government authority.
10. Farms employers whose employees directly and solely engaged in farming and shall not include employees, who are engaged in the management of the farm or processing of farming products,
11. Registered educational Institutions (Private Schools including Nursery, Primary and Secondary schools; Vocational, Educational and Training Schools; Universities and Higher Learning Institutions).

Charitable: 

Organization means a resident entity of a public character registered as such and performs is functions solely for:

1. the relief of poverty or distress of public;
2. provision of education or public health; and the Commissioner General is, upon due diligence making, satisfied that the business conducted by such entity is for public good.”

Note;

• The gross emoluments include wages, salaries, leave pay, sick pay, pay payment in lieu of leave, fees commission, gratuity, bonuses, any subsistence, travelling or entertainment allowances.
• Exemptions for Zanzibar is applicable only from 1-4 and 7 above. 

4. NATIONAL SOCIAL SECURITY FUND (NSSF)

Establishment of NSSF:

Tanzania NSSF The National Social Security Fund (NSSF) of Tanzania was established by the Act of Parliament No. 28 of 1997 to replace the defunct National Provident Fund (NPF). NSSF is a compulsory scheme providing a wider range of benefits which are based on internationally accepted standards.

NSSF covers the following categories of employers and employees: –

1. Private Sector (companies, non-governmental organizations, embassies employing Tanzanians, international organizations and organized groups in the informal sector)
2. Government ministries and departments employing non-pensionable employees – Parastatal organizations
3. Self-employed or any other employed person not covered by any other scheme – Any other category as declared by the Minister of Labour

Source of Funds:

1. The scheme is financed through contributions at the rate of 20% of employees’ salary.
2. The employer is required to deduct from employee’s gross salary the amount of contribution not exceeding 10% of the employee’s salary.
3. The employer adds the remaining balance to make the required contribution rate of 20%.
4. NSSF is a fully funded scheme running under defined benefit principles. All funds collected are wholly invested for the purpose of financing benefit payments.

Insured persons and contributing employers – Insured:

• Every person who is a member of the existing Fund shall be an insured person.
• Every person who is self-employed or who is employed in the private sector, other than in a body which is a parastatal organization shall be registered as an insured person.
• Every non-pensionable employee in the Government service and parastatal organization shall be registered as an insured person.
• The Minister may by order in the Gazette, provide for the conditions and procedure under which any person who is not eligible to become an insured person may so become.
• The Minister may by order in the Gazette-
• declare any employees or category of employees to be registrable as insured person;
• declare any employer or category of employers to be contributing employers. 
• Minister may declare categories of employees or of employers by reference to the number of employees in the service of an employer and may exclude from such number any category of employees.
• Where an order is made by the Minister may by the same or a subsequent order appoint a date upon which sections 11, 12, and 14, of the Act shall apply in respect of the insured persons registered under that order.

Note:

No person shall be registered as an insured person when he is a temporary employee unless the Minister by order published in the Gazette have declared temporary employees generally or temporary employees of a category to which he belongs to be registrable as insured person.

Registration and contributions to the fund:

Every contributing employer shall, unless such employer has been registered under the existing Fund, within 1 month, register in the prescribed manner.

1. The period of one month mentioned 
2. shall, in every case, begin on the date when the person concerned becomes a contributing employer.
3. Upon the first day of the month following the month in which the period mentioned expires, the employer to whose registration that period relates shall be a contributing employer
4. The Minister may, for the purpose of the initial registration of any category of employers by order published in the Gazette declare that category of employers shall not be contributing employers until the expiry of such further period as the order may specify.
5. A contributing employer who ceases to be an employer of any employee shall thereupon cease to be a contributing employer in respect of such employee.
6. A contributing employer who registers or is registered shall, without delay, register as an insured person every person who is or who subsequently becomes an employee in his service, by notifying the Director General of the particulars of such employees as may be prescribed.

Contribution Amounts:

A contributing employer shall for every contribution period after the appointed day during which he employs an insured person pay to the Fund a contribution that consists of the employer’s contribution 10% percentage (5%) and the employees’ contribution at 10% percentage.

No contribution shall be paid in respect of-

1. temporary employee unless the Minister has made an order declaring such temporary employees registrable as insured persons; or
2.  an insured person who dies during the contribution period unless the employer deducts the employee’s share of the contribution from the wages payable in respect of any part of such period to the estate of the deceased member.

Every contribution shall be paid to the Fund within one month after the end of the month in which the last day of the contribution period to which it relates falls.

A contributing employer who is liable to make or has made a statutory contribution in respect of an insured person may deduct the employees’ share of the statutory contribution

1. From the wages due from him to the employee in respect of the contribution period to which the statutory contribution relates; or
2. From the wages due from him to the employee in respect of any period within 6 months after the end of the contribution period to which the statutory contribution relates, but not otherwise, and where a deduction is made under paragraph (b) it shall be made in not less than four approximately equal instalments unless the employee agrees to it being deducted in a fewer number or in one lump sum.

Where an employer deducts the employee’s share of a statutory contribution front the wages of an insured person under this section in advance of the payment of such contribution to the Fund, the employer shall hold that share on trust.

A contributing employer shall pay contributions to the Fund in the manner prescribed under the law, within one month after the end of the month in respect of which the contributions are due and payable.

Payment of contributions:

An employer shall submit with the payment all prescribed supporting particulars concerning the identity, period of employment and earnings; of the insured person to whom the contributions relate.

If any contribution is not paid within the period stated a sum equal to 5% percent of the amount unpaid shall be added as penalty for each month or a part of a month after the date when payment should have been made and the amount of the penalty shall be recovered as a debt owing to the Fund by the employer:

Benefits:

The following classes of benefits are payable under this fund, namely-

1. Retirement pension
2. Invalidity pension
3. Survivors’ pension
4. Funeral grants
5. Maternity benefit
6. Employment injury benefit; and
7. Health insurance benefit

• WORKERS COMPENSATION FUND (WCF)

Definitions:

1. “an accident” includes any injury reported by an employee to the employer, if the employee when reporting the injury alleges that it arose out of, and in the course of employment, irrespective of whether the employer believes that it did not;
2. “compensation” includes the cost of medical aid and any other amount paid or payable and, in the case of a pension, the capitalized value of the pension as determined by the Director-General, irrespective of whether a lump sum is at any time paid in lieu of the whole or a portion of the pension and periodical payments or allowances, as the case may be;
3. “earnings” means the remuneration of an employee at the time of the accident the commencement of the occupational disease as calculated by the law;
4. “employee” means-
5. any person, including an apprentice but excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
6. any other person who in any manner assists m carrying on or conducting the business of an employer;
7. “employer” means any person, including the Government and an executive Agency, who employs an employee; “employers’ organization” has the meaning ascribed to it under the Employment and Labour Relations Act;
8. “Fund” means the Workers Compensation Fund established under section 5 of Workers Compensation Fund Act;
9. “serious disablement” means disablement which may render the employee incapable of engaging in his employment or require him to be hospitalized beyond a period of twenty-four months;
10. “monthly pension” means a pension payable monthly during the lifetime of the employee and which expires at the end of the month in which the employee dies.

Current status in the implementation of the Act:

The Minister has powers to appoint different dates of commencement for different Parts or provisions of the Act as empowered under Section 1(2) of Act No. 20 of 2008.

The 1^st March, 11 was the commencement date on which Parts I, II, III & XII except for S. 98 as provided by The Government Notice No. 105 of 11^th March 2011.

Pursuant to operation of Parts II & III of the Act, members of the Board of Trustees & Director General were appointed with effect from 22^nd January, 2015

The 1^st July of the year 2015 is the commencement date for payment of Tariff regulated by the Government Notice No. 169, 1^st May 2015.

Current Status in the Implementation of the Act (GN No.169)

• Tariff is 0.5% of AEE (public sector) (S. 6.1 of GN no. 169)
• Tariff is 1% of AEE (private sector) (S. 6.2 of GN no. 169)
• There is a transition period for 1 year (1stJuly 15 -30thJune 16) (S. 8 (1)/ (2) of GN No. 169)
• During the period, contributions shall be collected from all employers (S. 9 (1) of GN No. 169)
• WCF shall not affect compensation payments during the transition period (S. 9 (2) of GN No. 169)
• Payments of benefits during the period shall continue to be affected as per currently done (S. 9 (3) of GN No. 169)

According to the Government Notice No. 212A dated 30^th June 2016, employers from Private Sector should contribute one per centum (1%) of their annual wage bill while employers from Public Sector should contribute zero point five percent (0.5%) of their annual wage bill for a period of one year from 1^st July 2016to 30^th June 2017.Contributions (also known as tariff) shall be made on monthly basis as provided in the referred Government Notice. The payment of tariff relating to a particular month shall be made in that month or within a period of one month after the end of the month to which the tariff relates.

The employer who does not remit contributions on time will, in addition to the contributions required, pay ten per centum (10%) of the amount unpaid as interest for the delayed time. Together with the required interest payment, an employer who does not pay contributions timely shall be liable to a fine of up to TZS 50 million or imprisonment for a term of ten (10) years or both. These penalty provisions are provided under Section 75 (2),(3) and 75 (4) of the Workers Compensation Act[CAP. 263 R.E. 2015] read together with Regulation 13 (7) of the Workers Compensation Regulations, 2016 and Regulations7 (3) and (4) of the Government Notice No. 212A dated 30thJune 2016 in addition to payment of contributions, all employers are kindly informed that according to the Government Notice No. 212Adated 30thJune 2016, the Fund has started receiving claims and pay compensation benefits in line with the requirements of the Workers Compensation Act [CAP. 263 R.E. 2015] read together with the Workers Compensation Regulations, 2016.

Source of fund:

There is an established Fund that is known as Workers Compensation Fund.

The funds of the Fund shall consist of-

1. The assessments paid by the employers;
2. Any other moneys paid by employers to the Fund;
3. Any penalty imposed under the law, other than by a court;
4. Any interest on investments of the Fund;
5. Any subvention from the Government; and
6. Any other monies legally acquired.

Contribution/Assessment Amounts:

1. For private sector employers must contribute 1% of their annual tax bill in monthly basis
2. And public sector employers must contribute 0.5% of their annual tax bill in monthly basis.

The payment of contribution relating to a particular month shall be made within that particular month or one month after the end of the month to which the tariff relates and not otherwise. Failure to pay contribution within this prescribed period shall be deemed as failure to remit contributions on time

Obligations of employers:

1. An employer carrying on business in Tanzania shall within the prescribed period and in the prescribed form register himself to the Director-General and furnish the Director-General with-
2. the prescribed particulars of the employer’s business; and
3. any additional particulars he may require.
4. The particulars referred to above shall be furnished separately in respect of each business carried on by the employer.
5. An employer shall, within 7 days of any change in the particulars so furnished, notify the Director General of the change.
6. Any person who fails to comply commits an offence and shall on conviction be liable to a fine not exceeding 50 million shillings or imprisonment for a term not exceeding 5 years or to both.

• An employer shall keep a register or other record of the earnings and other prescribed particulars of all employees employed by the employer and shall, at all reasonable times, produce the register or record or a satisfactory reproduction on demand to an authorized person for inspection.
• An employer shall retain the register, record or reproduction for a period of at least 3 years after the date of the last entry on that register or record.
• An employer who fails to keep register commits an offence
• A health and safety representative elected shall have the right to inspect and bring to the attention of the Director-General, any register, record or document which the employer maintains, keeps or completes.

• An employer shall, not later than the 31st day of March in each year, provide to the Director-General with a return in the prescribed form, certified by the employer, as correct, showing-
• The amount of earnings up to the maximum contemplated amount paid by the employer to its employees during the period with effect from the first day of March of the immediately preceding year up to and including the last day of February of the following year; and
• Such further information as may be prescribed or as the Director-General may require.
• An employer who commences business after the last day of February of a particular year shall, within seven working days after commencement of his business, furnish the Director-General with a return in the prescribed form, certified by the employer as correct, showing the estimated earnings of its employees for the period with effect from the commencement of the business up to and including the last day of February of the following year.
• Where an employer carries on business at more than one place or carries on more than one class of business, the Director-General may require a separate return for each place or class of business from the employer.
• Where in a return, the amount shown as earnings, excluding earnings exceeding the maximum, is less than the amount actually paid, the Director-General may order the employer to pay the difference between the amount shown and the actual amount.
• Where an employer fails to furnish a return or if the estimate of the earnings which an employer expects to pay during a particular period is in the opinion of the Director General too low, the Director-General may estimate the earnings concerned.
• Where it appears that the actual earnings are less than the earnings assessed the Director General may make the necessary adjustment.
• An employer who fails to comply commits an offence.

• An employer shall be assessed or provisionally assessed by the Director-General according to a tariff of assessment calculated on the basis of the percentage of the annual earnings of the employer’s employees.
• Earnings shall be calculated in the prescribed form.
• The Director General may-
• assess a particular employer or category of employers by the degree of risk exposure or on such other objective basis; and
• Levy a minimum assessment in respect of a particular employer or category of employers.
• In determining the tariff of assessment, the Director-General shall provide for the capitalized value of pensions.
• Where the earnings paid by an employer in respect of a particular period differ from the earnings shown in respect of that period in the return concerned, the Director General shall adjust the employer’s assessment accordingly.
• An assessment of an employer shall be paid at such time and in such manner as the Director-General may directs.

• An assessment shall be paid to by an employer within thirty working days after the date of the notice of assessment or, with the approval of the Director General, in such installments and at such times and on such conditions as he may determine.
• Interest shall be payable on any overdue assessment at a rate determined by the Director-General, which shall not exceed a standard rate of interest determined by the Minister.
• An employer who contravenes commits an offence.
• If convicted the court convicting an employer shall, in addition to any penalty it may impose, order the employer to pay to the Fund within a specified period as the court may determine the assessment due and the interest thereon.

Right to compensation:

1. Where an employee has an accident resulting in the employee’s disablement or death, the employee or the dependents of the employee shall be entitled to the compensation.
2. Where an accident is attributable to the serious or willful misconduct of the employee, no compensation shall be payable unless-
3. the accident results in permanent total disablement;
4. the employee dies as a result of the accident leaving a dependent wholly financially dependent upon the employee.
5. The Director General may, on behalf of the Fund, to pay the whole or any portion of the cost of medical aid in respect of such accident.
6. Where the Director-General believes that an employee at the time of an accident was acting for the purposes, or in the interests of, or in connection with the business of an employer, the accident shall, be deemed to have arisen out of, and in the course of employment of the employee,

notwithstanding that the employee was at the time of the accident-

1. Acting contrary to any law applicable to the employee’s employment or to any instruction given by or on behalf of the employer; or
2. the employee was acting without any instruction of the employer.
3. Where an accident occurred during conveyance by employer
4. Where an accident occurred during training for or performance of emergency services
5. Right to compensation for occupational diseases
6. Any accident during the conveyance of an employee to or from his place of employment for the purpose of his employment by any means of conveyance shall be deemed to take place in the course of the employee’s employment.

An accident shall, be deemed to have arisen out of, and if in the course of employment if, at the time of the accident, the employee-

1. With the consent of the employer, was being trained in organized first aid, ambulance or rescue work, fire-fighting or any other emergency service;
2. Was engaged in the employer’s mine, works or premises in organized first aid, ambulance or rescue work, fire-fighting or any other emergency service; or
3. With the consent of the employer, was engaged in any organized first aid, ambulance or rescue work, fire-fighting or other emergency service on any mine, works or premises other than the employers.

Protection:

1. Where an employee contracts a disease provided by the Act, or any other disease, and the disease has arisen out of, and in the course of the employee’s employment, the employee shall, be entitled to the compensation.
2. Where an employee dies as a result of a disease, the depend ants of the employee shall, be entitled to the compensation.
3. Where an employee has contracted a disease and the Director-General believes that his recovery is being delayed or that the temporary total disablement of the employee is being prolonged by another diseases, the Director-General may approve medical aid for the other disease.
4. Where an employee has contracted a disease resulting in permanent disablement and the disease is aggravated by another disease, the Director General may, in determining the degree of permanent disablement, take into account the effect of the other disease;
5. Where an employee who has contracted an occupational disease set out in the Third Schedule to the law was employed in any work involving the handling of or exposure to any agent mentioned in the Schedule in respect of that disease, it shall be presumed, unless the contrary is proved that the disease arose out of, and in the course of the employee’s employment.
6. Where an employer carries on business mainly in Tanzania and his employee who is ordinarily working in Tanzania gets an accident or contracts an occupational disease while temporarily working outside Tanzania, the employee shall be entitled to compensation as if the accident or occupational disease had happened or been contracted, as the case may be, in Tanzania.
7. Presumption for cause of occupational disease Accidents or diseases contracted outside Tanzania Accidents or diseases contracted in Tanzania shall, with regards to accidents apply, mutatis mutandis, to a disease referred to in the law except where they are clearly inappropriate.
8. Refusal to pay compensation may not be alienated or reduced.

Persons who are not entitled to compensation:

1. if the employee has been employed outside Tanzania for a continuous period of more than twelve months, unless the Director-General, employee and the employer concerned, otherwise agree.
2. Where an employer carried on business mainly outside Tanzania and his employee who is ordinarily working outside Tanzania gets an accident while temporarily or contracts an occupational disease working in Tanzania, the employee shall not be entitled to compensation, unless the employer has paid the necessary assessments in respect of the employee.

The amount of compensation referred to shall be determined on the basis of the earning which the Director-General believes the employee would have received if the employee had remained in Tanzania.

Refusal of payment of Compensation:

The Director-General may refuse to pay the whole or any portion of compensation or any portion of the cost of medical aid if-

1. Presentation of false information regarding the injury, accident or cause of death by an employee
2. The Director General believes that the cause of death or prolonged injury was caused by the employee’s refusal to accept medical aid
3. The accident was attributable to willful or serious misconduct of the employee. However, if the accident causes total disablement and/or the employee dies as a result of the accident leaving depend ants who were financially dependent on him/her, he/she will be eligible for a claim
4. The employee fails to report the accident or injury within 12 months of its occurrence.

Note:

• Compensation shall not be-
• ceded or pledged;
• attached in any form of execution under a judgment or order of a court of law; or
• set off against any debt of the person entitled to the compensation.
• The Director General shall pay compensation accrued to the employee in whole or in part to an employer if the employer has made payments to the employee in respect of disablement arising out of an occupational injury or disease.
• Any agreement under which an employee cedes or purports to cede or relinquish any right to compensation shall be void.
• Any compensation due owing to the death of an employee shall be paid to the depend ants of the employee, or to any other person on behalf of the employee, and shall not form part of or become the subject of the employee’s estate.
• Nothing shall limit or in any way affect
• Any civil liability of an employer or any other person in respect of an occupational injury or disease resulting in the disablement or death of an employee if the injury or disease was caused by negligence, breach of statutory duty or any other wrongful act or omission of the employer, or any person for whose act or omission the employer is responsible, or of any other person.
• Any damage awarded to an employee or depend ant of an employee in an action at common law or any other law in respect of the negligence, breach of statutory duty or other wrongful act or omission of the employer or any other person, shall be reduced by the value of any compensation which has been paid or is payable by the Fund under this Act in respect of the injury, death or disease.
• Where an occupational injury, death or disease in respect of compensation which is payable, was caused in circumstances resulting in the employer or any other person being liable for damages in respect of such injury, death or disease, the Director-General may institute a case in a court of law against the employer or such other person for the recovery of compensation that the Director-General is obliged to pay.

Benefits of workers compensation fund (WSF)

1. Compensation for Temporary Total Disablement (TTD) or Temporary Partial Disablement (TPD)
2. Constant Attendance Care Grants
3. Depend ants’ Grant if an Employee Dies
4. Funeral Grants after the death of an employee
5. Conveyance of Injured Employee i.e. housing and hospital.
6. Payment of reasonable cost incurred by or on behalf of an employee in respect of medical aid necessitated by the accident or disease.
7. For restoration of employee’s health, independence and participation in society to the maximum extent practicable (options which may be considered: clinical rehabilitation, vocational rehabilitation & social rehabilitation)

• OSH (OCCUPATION HEALTH AND SAFETY)

Introduction

The Occupational Safety and Health Authority (OSHA) is the government agency under the Prime Minister’s Office-Policy, Parliamentary Affairs, Labour, Youth, Employment, and People with Disabilities. It has been set up with the aim of improving the health and wellbeing of workers and of workplaces. This will be achieved by promoting occupational health and safety(OHS) practices in order to prevent occupational injuries and diseases and ultimately achieve better productivity.

In implementing OHS there was an establishment of the Act, named The Occupational Health and Safety Act of 2003 which covers workers in all sectors, including within the public sector and in local government authorities.

The purpose of this law was to make provision as to regulates safety, health and welfare of persons at work in factories and other places of work, to provide for protection of persons other than person at work against hazards to health and safety arising out of or in connection with activities of persons at work and to provide for any other connected matters.

This law shall apply to factories and all other workplaces as define by the Act, unless exempted by provision of law. For any work which would constitute a factory I applies if the owner or occupier of the workplace is the occupiers of the factory and the persons working there were employed in the factory.

In addition to the general act, the country has also adopted a number of laws providing for protection in individual industries that are perceived to be more hazardous than usual. Some of these laws include:

1. Tropical Pesticides Research Institute Act of 1979
2. Pharmaceuticals and Poison Act of 1978
3. Atomic Energy Act of 2003
4. Industrial and Consumer Chemicals Act of 1985
5. Public Health Act of 2009
6. Mining Act of 2010

The Employment and Labour Relation Act No. 6 of 2004 also contains provisions for OSH, although it is primarily concerned with industrial relations matters rather than worker safety.

In 2008 another law was made to support and simultaneously work with OSHA, The establishment of Workers’ Compensation Fund through Workers Compensation Act No. 20 of 2008 with objectives of providing for compensation to employees for disablement of death caused by or result from injuries or diseases sustained or contracted in the course of employment; to establish Fund for administration and regulation of workers compensation and to provide for related matter.

Role and function of OSHA

1. The role of OSHA is to improve health and safety (wellbeing) of workers, and workplaces by promoting occupational health and safe practices in order to eliminate accidents and occupational diseases and hence achieve better productivity in the workplaces.
2. The agency’s services extend to all workplaces as defined by the prevailing legislation i.e. The Occupational Health and Safety No. 5 of 2003 and other subsidiary legislation.
3. To make a place of work safer and healthy, in collaboration with stakeholders OSHA undertake several functions and roles as shown below:
4. Conducting general workplace inspection
5. Conducting health and safety audit
6. Regulating statutory Inspections (Electrical, Pressure Vessels and Lifting Equipment inspections)
7. Regulating Workplace Risk Assessment
8. Organizing and conducting trainings on occupational health and safety
9. Disseminating information on occupational health and safety
10. Carrying out researches and surveys on OSHA
11. Enforcing of safety and health standards and legislation at workplaces
12. Consultancy and Advice on OSH matters
13. Scrutinizing and approving workplace drawings/plans
14. Registering and keeping register of workplace
15. Regulating occupational medical examinations for the workers
16. Conducting workplace environmental monitoring
17. Offering (expert opinion in courts of law on OHS matters)
18. Authorizing OHS Private Providers
19. Accrediting OHS practitioners
20. Investigating accidents and occupational diseases
21. Assessing psychosocial factors
22. Initiating ratification of international conventions and treats on OHS

Registration of factories or workplaces

The law requires that any person being the owner or occupier of a factory or work place shall before operating register such factory or workplace. It is also required that before any person occupies or uses as a factory or workplace any premises, which were not so occupied or used by him to apply for registration of the premises.

Upon a successful registration he/she will be issues with a certificate of registration.

Where any person who intends to construct a factory or workplace or a building appurtenant to a factory or workplace or to alter or add to any existing factory or work place building shall submit drawing of the intended premises to the Chief Inspector for Approval and upon payment of required fee the Chief Inspector may approve or refuse to approve such drawings. Any person who is granted approval for construction shall call upon the Chief Inspector for subsequent inspections of the construction progress.

It is an offence for any person to construct a factory or workplace or appurtenant to a factory or workplace or install any plant or machinery in an existing building or new building without the approval of the Chief Inspector.

Once the factory or workplace is registered there are other safety requirements are to be thorough be carried out which include medical examination of employees by qualified occupational health physician or where necessary medical practitioner and other materials and the state of factory and work place safety as may be instructed by The Chief Inspector.

Employers’ Obligations under the OSH Act

In addition to, or in connection with, the employee rights outlined above, under the OSH Act and OSHA guidelines, employers have the obligations to:

1. To provide a safe workplace free of serious hazards;
2. Find health and safety hazards;
3. If hazards exist, eliminate or minimize them;
4. If workplace hazards cannot be eliminated, provide employees with adequate safeguards and protective gear at no cost to them;
5. Notify employees of any hazards and provide the training necessary to address them;
6. Post a list of OSHA injuries and citations, plus the OSHA poster in a place where employees will see them;
7. maintain records of work-related injuries.