Analysis and Rationale for the Proposed Amendments to the Employment and Labour Relations Act (Cap. 366)

The amendments proposed by The Labour Laws (Amendments) Act 2024 introduce significant changes aimed at addressing gaps in the existing law, clarifying ambiguities, and strengthening protections for employees while balancing employer obligations. Below is a detailed analysis of the key amendments, their rationale, and their impact compared to the existing provisions.

1.     Amendment to Section 4 (Definitions)

Existing Provisions: The term “basic wage” included allowances for work on Sundays but lacked clarity on other rest days. Definitions for “award,” “personal representative,” and “process server” were absent. In the Proposed Amendments , “Basic wage” now references “rest day” instead of “Sunday,” broadening its scope to account for diverse work schedules.

There are new definitions added:

·      Award: Includes mediated agreements, decisions, decrees, or rulings that finalize a dispute.

·      Personal representative: A designated representative in labour disputes.

·      Process server: Recognized under written laws to serve court documents.

These changes provide clarity and inclusiveness regarding rest days, particularly for industries operating outside traditional Monday-to-Friday schedules. They also address procedural gaps in representation and document service in labour disputes, ensuring efficient resolution processes.

2.    Amendment to section 9(6) (b)

Existing Provision: Senior management employees include employees who, by their positions, can make policies on behalf of the employer and are authorized to conclude collective agreements on behalf of the employer. The Proposed Amendments add a new criterion for determining a Senior management employee as one who has the authority to hire, discipline, or terminate other employees. The provision clarifies the scope of authority and decision-making power of a senior management employee in relation to employee management.

3.    Amendment to Section 14 (Contracts of Employment)

Existing Provisions: Limited categories for fixed-term contracts, primarily for professional or managerial roles. The Proposed Amendments expand fixed-term contracts to include:

·      Temporary increases in workload (12-month cap).

·      Graduate trainees (training/work experience for up to 24 months).

·      Seasonal workers and those in externally funded or public works projects.

·      Non-citizens with work permit for defined durations.

These changes cater to evolving labour market needs, including short-term projects and internships. They also seek to create job opportunities for graduates and address seasonal labour demands.

4.    Addition of Section 16A (Agreement on State of Emergency)

Existing Provisions: No provisions addressed workplace agreements during emergencies like pandemics or natural disasters. The Proposed Amendments provide that employers and employees are required to agree on methods to address disruptions while safeguarding mutual interests. Lessons from the COVID-19 pandemic highlighted the need for a legal framework to manage workplace operations during emergencies. These changes also promote workplace continuity, safety, and equitable decision-making during crises.

5.    Amendment to Section 33 (Maternity Leave)

Existing Provisions: Statutory maternity leave applied universally, without consideration for premature births. The Proposed Amendments provide that employees giving birth prematurely are entitled to paid maternity leave from childbirth until the 36th week of pregnancy, in addition to the standard maternity leave. These changes will address mothers' and premature infants' unique health and caregiving needs. They also align with international labour standards, advocating additional maternity protections for vulnerable employees.

6.    Addition to Section 34A (Unpaid Leave)

Existing Provisions: No explicit legal provision for unpaid leave. The Proposed Amendments introduce unpaid leave (up to 30 days), extendable through mutual agreement. This provides flexibility for employees to manage personal or family emergencies. Establishes a formal process for unpaid leave requests, preventing exploitation or mismanagement.

7.    Amendment to Section 37 (Disciplinary Proceedings)

Existing Provisions: Allowed disciplinary actions even when the matter was under review by the Commission or Court, except where a criminal charged had been filed. The Proposed Amendments prohibit employers from initiating or continuing disciplinary proceedings if the dispute has been referred to the Commission or Court. This seeks to prevent duplicative and potentially prejudicial actions against employees and ensures a fair and orderly dispute resolution process.

8.   Amendment to Section 40 (Remedies for Unfair Termination)

Existing Provisions: Compensation for unfair termination was capped uniformly at 12 months' remuneration. The Proposed Amendments introduce new compensation caps: Unfair termination: Up to 12 months' remuneration and Discrimination or harassment-related termination: Up to 24 months remuneration. These changes aim to address the severe impact of discriminatory or harassing termination practices and strengthen deterrence against workplace discrimination and harassment.

9.    Addition of Section 41A (Material Breach of Contract)

Existing Provisions: No specific remedies for material breaches of fixed-term contracts by employers. In the Proposed Amendments, arbitrators or courts may order employers to compensate employees for the remaining term of a breached fixed-term contract. This seeks to uphold employee rights and deter employers from prematurely terminating fixed-term contracts without just cause. Aligns with contractual justice principles, ensuring employees are not unfairly disadvantaged.

10.                Amendment of Section 71(2) (Binding Nature of Collective Agreement)

Existing provision:  A collective agreement becomes legally enforceable and binding once all the necessary parties have signed the agreement; no further formalities or approvals are required unless the agreement explicitly states otherwise. In the Proposed Amendments, a collective agreement becomes binding upon the last signature unless the agreement specifies otherwise. However, for public institutions, the collective agreement is only binding upon approval by the permanent secretary or the ministry responsible for establishments, even after the last signature.

These changes seek to ensure that collective agreements involving public institutions are not only signed by the relevant parties but also reviewed and approved by the appropriate government authority, likely to ensure alignment with broader public policies, budgets, or regulatory requirements.

11.  Amendment of Section 73(1) (Workers Participation Agreement)

Existing Provision: Only recognized trade unions and an employer or employers' association may conclude a collective agreement establishing a forum for workers' participation in the workplace. In the Proposed Amendments, multiple Unions, recognized or not, may participate in a collective agreement, potentially widening the scope for workers' representation. The change provides more flexibility in the practical realities of workplace organization. Non-recognized unions may include workers who have yet to achieve formal recognition but are still significant in number. The amendment ensures that these workers are included in meaningful discussions about their rights and involvement in workplace governance.

12. Amendment of Section 86 (Referral of disputes for Mediation)

Existing Provision:

• In subsection (6), No explicit requirement for parties to be present during Mediation. Also, a party to a dispute could use any personal representative for Mediation. In the Proposed Amendments, parties must be present during the mediation process. Additionally, only employees can use a personal representative. A specific time frame for referring a complaint to arbitration (within 30 days of Mediation's failure) is introduced. The rationale for these changes is to make it mandatory for parties to be present during the Mediation ensures that all parties are directly engaged and involved in the resolution process. Also, the use of personal representatives by employees only helps to protect their rights by ensuring that they are not at a disadvantage in terms of representation.

13. Amendment to Section 87 (Consequences of not attending Mediation Hearing)

Existing Provision:   In subsection (3), The mediator is allowed to either decide the complaint if the other party fails to attend or to dismiss the complaint if the party who referred the complaint fails to attend. In subsection (4), The mediator's decision can be enforced in the Labour Court as a decree. In subsection (5), The Commission is allowed to reverse a decision made under the section. In the Proposed Amendments, the mediator will be mandated to dismiss the complaint if the party who referred it fails to attend and to simply mark the dispute as failed if the other party fails to attend. Also, the mediator's decision is no longer enforceable as a court decree in the Labour Court. The Commission can only restore matters dismissed due to attendance failure rather than reverse the mediator's decision.

14. Amendment to Section 88 (Resolving Disputes by Compulsory Arbitration)

Existing Provision: No requirement that powered arbitrators’ issue automatic awards for admitted claims. Additionally, no time limit was given to apply to set aside decisions. In the Proposed Amendments, if a party admits a claim or parts of a claim, the arbitrator must issue an award for the admitted portion. Also, a new provision is introduced to allow the aggrieved party to set aside or restore the matter if it was dismissed or heard ex-parte within 14 days.

This article is provided for informational purposes only. It is not intended to offer a comprehensive overview of Tanzanian law, nor should it be considered as formal legal advice. For specific legal guidance or assistance, please reach out to our legal team. For further inquiries, contact us at temu@africorp.co.tz or info@africorp.co.tz.