ABSTRACT: The Employment standards respond to a growing number of needs and challenges faced by workers and employers in our economy, this article analyzes the compliance of employment standards and enforcement of fundamental rights under the Tanzanian Employment and Labour Relations Laws. These compliances are enforced so as to effectively prevent employment standards violation.
PREPARED BY: NEEMA NKYA.
UNDERSTANDING EMPLOYMENT STANDARDS IN TANZANIA
This article is intended to assist on the essential employment standards as set out by the law, that aims to protect employees’ rights and set forth employers’ obligation and responsibilities. The primary functions of Employment law are to provide equal opportunity, to improve both employer and employees’ physical and mental well-being and safety in workplace.
This analysis has simplified the law and regulations in order to guide employers on the application of the law and its regulations.
EMPLOYMENT STANDARDS
Employment standards aims at promoting opportunities for every individual to offer and obtain decent and productive work, in conditions of freedom, equity, security and dignity. In today’s globalized economy, these standards are essential factors for ensuring that the growth of the global economy provides benefits to all.
Generally, the essential employment standards as set out in Tanzania statute relates to, hours of work, termination of employment or minimal severance pay requirements, overtime pay, and leave, statutory holidays and pregnancy leave. The employment standards herein discuss does not apply to seafarer whose terms and condition of employment are regulated under The Merchant Shipping Act.
Employment standards are provided for under Part III of The Employment and Labour Relations Act [Cap 366 R.E 2018].
| 1. Contract of Employment; An employment should always start with the signing of an employment contract. Employment contracts outline the terms of the relationship between employers and their employees. This legally binding document sets out the nature of employment duties and defines entitlements such as salary, benefits and terms of termination. Contracts clarify for both parties what they can expect of one another and there are legally protected by the law. An employment standard constitutes a term of a contract with an employee unless a. The contract contains a term that is more favorable to the employee, | |
| b. A provision of an agreement alters the employment standard to the extent permitted by the law, | |
| c. A provision of any collective agreement, a written law regulating employment, wage determination or exemption granted alters the employment standard. | |
A contract with an employee shall be of the following types; a. a contract for an unspecified period of time. | |
| b. a contract for a specified period of time for professionals and managerial cadre. c. a contract for a specified task. Note: Every contract must be in writing and shall consist of particulars of contracts. 2. Hours of Working The work time is placed in order to regulate the working time of all employees by prescribing limits on the maximum number of hours which can be worked in the week and by requiring employers to give their workers daily and weekly rest breaks. It is not allowed by the law for an Employee to work more than 12 hours per day. Employee is allowed to work; a. Six (6) days in a week; b. 45 hours in a week ; c. 9 hours in a day; d. An employer shall not permit an employee to work overtime unless; – It is allowed in their agreements for employment. – And if allowed it shall not exceed 50 work hours in a 4-week cycle – And working hours shall not exceed 12hours. – And an Employer is required to pay the employee not less than 11/2 of the employee’s basic salary. e) For night work, night shall mean 20 hours and before 6 hours Night work shall be paid 5% of the wage for the night hours worked and if there was overtime 5% will be based on the basic pay plus overtime. It is not permitted for an employer to allow an employee to work at night who is; -A pregnant woman who is 2 months before the expected date of confinement. -A pregnant woman who has a certificate by a medical implies that she is not fit to perform night work. -Mothers to work for a period of 2 months after the date of birth, she can be allowed to work before that if only she produces a medical certificate indicating that her and her baby’s health shall not be endangered and after that she should not be allowed to work if she produces a certificate indicating that she is not fit to perform night work. – Children under 18 years of age. – Any employ who is medically certified unfit to do night work. f) An agreement can be made between to a compressed (shorter) working week which shall be; – for working up to 12 hours in a day inclusive of meal interval without receiving over time but that agreement shall no permits employee to work more than; 5 days in a week 45 hours a week 10 hours overtime in a week g) There can be a collective agreement shall provide for averaging of ordinary and overtime hours of work over an agreed period. This agreement shall not require an employee to work more than average of; – 40 ordinary hours per week calculated over agreed period. – 10 hours overtime per week calculated over agreed period. – It shall not permit an averaging for a period longer than a year. h) An employer is required to give an employee who work continuously for more than 5 hours a break of at least 60 minutes. – And he may require the employee not to take a break if only the work cannot be left unattended or if there is no other employee who can perform such work. i) The employer shall allow an employee a resting hour; – Of 12 hours to 8 hours with an agreement between the ending of a day to another day it can only be reduced if only the time is extended to the following week. – Of 24 hours weekly rest period between the end of one week to another week with agreement this can be extended to 60 hours every 2 weeks. j) Employees shall not work on public day; The employer can allow the employee to work on public day only if is paid double of his basic wage for each hour worked in that day. 3. Payments / Remuneration It is provided by the laws on the manners under which wages/payments to employees shall be paid which are; a) That An employer shall pay the employee wages in cash, cheque in a sealed envelope or by direct deposit into an account designated by employee in writing. And together with the payment it shall be accompanied by a written statement. b) That An employer is not required to deduct employee wage unless; – It is for statutory required – Or it is consented by an employee. Together with that the law provides for protection against minimum wages as to be paid to employees where it provides that minimum wages shall be as those provided by the law and they shall be regarded as minimum amount payable to employee in respective sector and employer may pay such employee above the minimum but shall not pay the employee below the prescribed amount as provided in respective of the sector. This minimum wage regulations are important as their there to prevent exploitation and to prevent employers from trying to compete on the basis of low wages in this era of globalization. Instead the firms should compete in the basis of quality and productivity. To that effect it is essential to avoid very low wage levels and ensure that equal productive employees are paid equally, regardless of characteristics such as race or sex. Tanzania law regulates pay in The Minimum wages structure is provided for under The Labour Institution Wage Order GN. 196 of 2013 which seeks to ensure that all employees receive minimum rate for their work. 4. Leave The law requires employers to provide various kinds of leave for their employees. The law specify that some kinds of leave should be unpaid or paid from an employee’s usual wage. a) An employee with less than 6 months of services is not entitled to leave b) an employee employed on seasonal basis is entitled to be paid leave c) Annual leave to employees shall be 28 consecutive days, can be extended but not later than 6 months after the end of leave circle and 12 months after the end of the leave cycle if employee consented or the extension is justified, the leave shall be inclusive of public holiday fall within the leave period. d) An employee shall be paid the same amount that would have been paid had the employee worked during period of leave before commencement of the leave. e) No payment in lieu of leave shall be permitted. f) Paid sick leave shall be 63 days full pay and 63 days half pay to a total of 126 days in any leave cycle which shall be 36 months includes ED, AN EMPLOYER shall not be required to pay sick leave if an employee fails to produce medical certificates or of the employee is entitled to be paid sick leave by other law, fund or a collective agreement. |
- Maternity leave
Maternity leave is provided by the law so as to protect mothers. Maternity leave itself implies a right to return to work and without losing her previous position and thus pregnancy or taking of maternity leave should not be permitted as grounds of dismissal. It is also implied that pregnant women or women who are breastfeeding should not be required to engage in hazardous work or night work.
- Maternity leave shall be authorized if the employee provides a notification of at least 3months before expected date of birth
- No employee shall work within 6 weeks of the birth of the child unless medically advised
- Maternity leave shall be 84 paid days or 100 paid days if the employee gives birth to more than one child at the same time. And additional 84 paid days within the leave cycle if the child dies within a year of birth
- An employer is only obliged to grant paid leaved for 4 terms.
- Paternity leave
In exercise of the right to equality of opportunity and treatment for both men and women workers with family responsibilities and between such employees and other employees, the law provides for paternity leave so as to enable the male employee whose wife had given birth to be provided with a leave in order to take care of a newborn child. Although mothers do take the primary responsibilities for childcare which that is also the reason why maternity leave are longer than paternity leave. However paternity leave should be provided and it should be there so as to ensure family responsibilities are not as such constitute a valid reason for termination of employment.
- An employee is entitled to 3 days paid leave if the leave is taken within 7 days of the birth of a child and the employee is the father of the child irrespective of how many of the events occurred in a leave cycle.
- An employee is also entitled to 4 days paid leave for the sickness or death of the employee’s child or the death of the employee’s spouse, parent, grandparent, grandchild, or sibling irrespective of how many of the events occurred in a leave cycle.
- Termination of employment
Most people value their employments, even if they do not enjoy. The needs for income are what keeps them in their jobs, also most employers loved their employees and even if the employee performed their work perfectly but that does not necessarily mean the employer will want to keep that employee in their job for life. Sometimes other employees are not productive, or they stop being productive or the employee wants to retire to a better work for another employer a few to mention. It is when the employers want to terminate such employee do bring so many conflicts. Hereafter are the ways provided by the law which aim at protecting both employers and employee against these conflicts and thus the following discussion provides for the guidelines under which one can exercise a proper termination from employment.
a. Termination of employment includes
- Lawful termination by the law
- Termination by an employee because the employer made continued employment intolerable for the employee
- a failure to renew a fixed-term contract on the same or similar terms if there was a reasonable expectation of renewal
- a failure to allow an employee to resume work after taking maternity leave granted under this Act or any agreed maternity leave
- a failure to allow an employee to resume work after taking maternity leave granted under this Act or any agreed maternity leave
- a failure to re-employ an employee if the employer has terminated the employment of a number of employees for the same or similar reasons and has offered to re-employ one or more of them;
b. Unfair termination
Termination will be considered unfair if an employer fails to prove
– that the reason for termination is valid
– that the reason is fair reason
– the reason is fair reason related to employees conduct, compatibility or capacity operational requirements
– that the employment was terminated in accordance with a fair procedure
c. Termination on operational requirement: This must follow retrenchment procedure e.g. reasons, selection method, timing retrenchment, severance pay and measures to avoid or minimize intended retrenchment.
The principles for fair termination based on operational requirement shall be;
– Give notice of any intention retrench as soon as the shortcomings has contemplated;
– disclose all relevant information on the intended retrenchment for the purpose of proper consultation;
– consult prior to shortcomings or redundancy on;
– the reasons for the intended retrenchment;
– any measures to avoid or minimize the intended retrenchment;
– the timing of the retrenchments;
– severance pay in respect of the retrenchments;
– give the notice, make the disclosure and consult, in terms of this subsection, with
– any trade union recognized in terms of section 67;
– any registered trade union which members in the workplace not represented by a recognizes trade union;
– any employees not represented by recognized or registered trade union;
d. Proof of fair termination – burden of proof is on the employer.
e. Remedies for unfair termination
- Arbitrator or Labour Court may recommend reinstatement
- To Re-engage the employee
- To Pay compensation of not less than 12 months remuneration.
- f. Notice of termination
- g. A contract of employments can be terminated on notice if the notice –
- 7 days if the notice is given in the first month of employment
- 4 days if the employee is employed on a daily or weekly basis
- 28 days if employed on a monthly basis
- Or any more time if it is provided in the contract which shall apply equal to both employer and employee.
- h. A notice must be in writing stating the reason for termination and the date on which the notice was given.
- Severance payments Severance pay is money that an employer is required to provide for unfair termination of an employee. It is a Compensation paid to an employee (where certain criteria are met) when his or her employment is unfairly terminated by their employer.
- a. The rate for severance payment is 7 days wages for every completed 12 months service for a maximum of 10 years,
- b. And the employer shall pay severance payment only if the employee has completed 12 months continuous service with employer;
- c. Employer shall not pay severance payments if the termination is fair on ground of misconduct, to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer but who unreasonably refuses to accept alternative employment with that employer or any other employer and to an employee who attains the age of retirement or an employee whose contract of service has expired or ended by reason of time.
- d. If employee was terminated in a place other than the place of work agreed in a contract an employer on termination shall also pay transport cost. An employer shall issue to employee a certificate of service on termination of employment.
EMPLOYMENT RIGHTS AND PROTECTION
Together with Employment standards there are fundamental rights which must be adhered. The following are the fundamental rights and protection of employment
- Right against child labour
The definition of a child under Employment Law states; “a child is s person under 14 years, provided that for the employment in hazardous sectors, child means a person under the age of 18 years”.
It is prohibited for any person to employ a child under the age of 14 years. And if employed it should be for employed to do light work which it should not be harmful to his health and development and it should not prevent the child from accessing his basic needs including Education.
A child should not be employed in inappropriate places or any workplace where work conditions may be considered hazardous, or places that are at risk to the child well-being, education physical and mental health, spiritual, moral and social development.
The burden of proofing that it was reasonable to believe after investigation, that child was not underage for the purposes of protection of this right shall lie on the person employing or procuring the child for employment.
2. Right against forced labour
It is prohibited for any person to procure, demands or imposes forced labour. Forced labour includes bonded labour or any work exacted from a person under the threat of penalty and to which that person has not consented.
Forced labour works exclude the following;
- Work under National Defense
- Wok that form part of the normal civic obligation of a citizen of Tanzania
- Works as consequence of court of law or statutory required
- Works in cases of emergencies or any circumstances that would endanger the excitement of well-being of the whole or part of a population
- Minor communal services performed by members of the community
- Right against discrimination
It is required that every employer shall ensure that he promotes an equal opportunity in employment and to always undertakings every measure to eliminate harassments and discrimination of any means in work places. And that exceeds to responsibility to the employer to guarantee equal remuneration for men and women for work of equal value.
Together with that the law inquire that every employer to develop and to register to Labour commission a plan for promotion of equal opportunity and for elimination of discrimination in work place.
The burden of proof shall lie on the employer to prove that he undertakes all measure against discrimination.
It is also prohibited for any trade union and employer’s association to discriminate directly or indirectly for admission, representation, termination, in policy, practice or for any collective agreement of any means.
- Freedom of association
Every employers and employees have the right to form and join a trade union and to participate in lawful activities of the trade union.
NOTE:
Senior management may not belong to trade union that represents non – senior management.
As it is provided in the law “senior management employee” means an employee who, by virtue of that employee’s position-
- makes policy on behalf of the employer; and
- is authorized to conclude collective agreements on behalf of the employer.
