Legal Requirements As To The Form Of Agreement
Employment and Labour Relations Act, 2004 together with the Law of Contract Act govern employment agreements therefore they provide legal requirements as to the form of agreement.
An agreement can be oral or written. It can be for an unspecified period of time, for specified period of time or for a specific task.
Legal requirements as to the form of agreement are:
Mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity (majority age being 18) and legality.
Rights to be expressed such as terms and conditions, the form of employment, meaning whether the employment is permanent, fixed term, part-time or casual, probationary period, place of recruitment, job description, commencement date, place and hours of work, salary and leaves, location of work, hours of work.
Mandatory Requirements
There is no mandatory requirements for hiring an employee in Tanzania, however, there are restrictions against:
Child labour
In accordance with provisions of Employment and Labour Relations Act, 2004, minimum age for employment is 14 years. 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. Employment of a child must not affect 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.
The minimum age for hazardous work is 18 years. A person may not employ or engage a child in any kind of exploitative labour. This includes employment that is inappropriate for a person of that age; that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development or where the child receives inadequate remuneration.
Forced labour
The Constitution of Tanzania prohibits all forms of forced labour. The Employment and labour Relations Act, 2004 also prohibits all forms of forced labour. Forced labour includes bonded labour or any work exacted from a person under the threat of a penalty and to which that person has not consented. Any person who procures, demands or imposes forced labour, commits an offence.
Discrimination at recruitment.
Section 7 (4) of the Employment and Labour Relations Act, 2004 prohibits discrimination against an employee in any employment policy or practice, on one or more grounds including Colour, Nationality, Tribe or place of origin, Race, National extraction, Social origin, Political opinion or religion, Sex, Gender, Pregnancy, Marital status or family responsibility, Disability, HIV/AIDS and Age.
Also, the law provides that an employer explicitly provides for hours of work, Special rules for part-time work, Earnings, and other non-compulsory terms as herein under provided;
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Trial Period
There is no explicit provision in the Employment and Labour Relations Act 2004 about probation period. However, this act implicitly requires a probationary period of six (6) months by saying that a worker with less than six (6) months of employment may not bring an unfair termination claim against the employer. Section 35 of Employment and Labour Relations Act 2004 provides for this.
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Hours Of Work
The maximum ordinary working hours that an employee is allowed under the law to work is 45 hours per week that is a maximum of nine (9) hours a day. The nine (9) hours are exclusive of the one (1) hour daily lunch break. The lunch break is to be provided after five (5) hours continuous working time. Lunch break is unpaid time and is the employee's own time because they are not paid for lunch breaks. Any hour (s) in excess of the 45 hours must be compensated as overtime hours. It is also prohibited for an employee to work more than 12 hours in a day. An employee is permitted to work (6) days in a week and the seventh day must be a resting day.
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Special Rules For Part-time Work
There are no special rules for part time workers in Tanzania.
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Earnings
Every person without discrimination of any kind is entitled to remuneration commensurate with work and all persons working according to their ability shall be remunerated according to the measure and qualification for the work. Every person is entitled to just remuneration (Article 22 of the Constitution). The wage rates are determined by Wage Boards constituted in accordance with Labour Institutions Order 2007. The minimum wage rates have been fixed under the Wages Order 2013. Minimum wage is fixed according to sectors as follows:
- Health Services Tanzanian shillings 80,000/-
- Agriculture Tanzanian shillings 70,000/-
- Commerce, Industrial and Trading only one wage, Tanzanian shillings 80,000/-
- Transport and Communications has four (4) types of wages as follows:
- Aviation Services Tanzanian shillings 350,000/-
- Clearing and Forwarding Tanzanian shillings 230,000/-
- Telecommunication Tanzanian shillings 300,000/-
- Inland Transport Tanzanian shillings 150,000/-
- Mining Sector also has four (4) types of wages:
- Mining Licences/Prospecting Licences Tanzanian shillings 350,000/
- Primary Mining Licences/Prospecting Licences Tanzanian shillings 150,000/-
- Dealers Licences/Lapidary Tanzanian shillings 250,000/-
- Brokers Licences Tanzanian shillings 150,000/-
- Marine and Fishing Tanzanian shillings 165,000
- Domestic Services including Hotels has six (6) types of wages:
- Domestic servants employed by Diplomats and Potential Businessmen Tanzanian shillings 90,000/-
- Entitled Officers for domestic services provision Tanzanian shillings 80,000/-
- Other domestic servants Tanzanian shillings 65, 000/-
- Potential and Tourist Hotels Tanzanian shillings 150,000/-
- Medium Hotels Tanzanian shillings 100,000/-
- Restaurants, Guest Houses and Bars Tanzanian shillings 80,000/-
- Private Security Services has two (2) types of wages:
- International or Potential security companies Tanzanian shillings 105,000
- Others Tanzanian shillings 80,000
While determining the minimum wage, the Wage Board takes into account all relevant factors including the cost of living, level of wages and income in the country, economic development, level of employment, the minimum subsistence level, ability of employers to carry on their businesses, operation of small, medium and micro enterprises, the remuneration and terms and conditions of employment of employees employed in the East African Community in the sector, any collective agreements providing for remuneration and terms and conditions of employment in the sector, alleviation of poverty and any other relevant matter (Section 37 of the Labour Institutions Act, 2004).
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Holidays/Rest Periods
According to Tanzanian law, employers are responsible for all paid time off for their employees. Once they have worked at a company for six months, employees are entitled to 28 days of paid annual leave and 17 government holidays. Holidays falling on a weekend day are not generally compensated. Tanzanians are also entitled to sick time and personal leave. As long as a worker can prove that they're no longer able to work, they can receive up to 126 days of paid sick time in an 18-month period in addition to the 28 days of paid annual leave.
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Minimum/Maximum Age
Generally, the law prohibits employment of a child under the age of 14 years. It further prohibits employment of a child under the age of 18 years in a mine, factory, as a craw in a ship, or any other work site including non-formal settings and agriculture where work conditions may be considered hazardous by the Minister. The Constitution and The Employment and Labour Relations Act provides for minimum age. However, the law permits employment of a child of 14 years in 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, vocational orientation, or a training programme. The general welfare of the child must not be prejudiced.
Maximum age of an employee in Tanzania is 60 years. The National Social Security Fund Act provides for pensionable age.
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Illness/Disability
Employees are entitled to sick time and personal leave. As long as a worker can prove that they're no longer able to work, they can receive up to 126 days of sick time in an 18-month period. The Employment and Labour Relations Act provides for sickness leave.
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Location Of Work/Mobility
An employer can station an employee anywhere in Tanzania; however, the employer has to move them from the point of recruitment.
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Pension Plans
i. Before 2018, the Tanzanian pension system comprised five (5) mandatory defined benefit schemes operated under the pay-as-you-go principle. These funds were Parastatal Pension Fund (PPF), Public Service Pension Fund (PSPF), Local Authority Pension Fund (LAPF), Government Employees Provident Fund (GEPF) and National Security Social Fund (NSSF). In 2018, the parliament passed Act No. 2 of 2018 which consolidated the social security schemes by merging four public funds, PPF, PSPF, LAPF and GEPF, into one (1) scheme which is the Public Service Social Security Fund (PSSSF). The main purpose of PSSSF is to collect contributions and make payments of terminal benefits to employees of public service. NSSF remained for private sector employees.
For Private sector employees, the governing Act is The National Social Security Act (R.E. 2008).
Retirement Pension shall be payable to an insured person who has attained pensionable age; In respect of whom not less than 180 monthly contributions have been paid and who has attained the age of 55 or above but before attaining pensionable age.
Benefit payable is commuted pension (Initial Lump sum) paid immediately before starting pension which is equal to 25% of calculated annual pension times 12.5; Old age special lump sum for non-qualifying members – i.e. total contributions plus interest. Minimum Pension is 40% of the lowest Sartorial Statutory Minimum Wage while maximum Pension is 72.5% of the Annual Pensionable Emoluments.
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Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
Current labour laws in Tanzania have no specific and clear provision for working parents. There are, however, provisions for pregnant and breastfeeding working mothers.
The law prohibits pregnant women to work at night two months before the expected date of confinement or much earlier if the employee produces a medical certificate to confirm that she is no longer fit to perform night work. There is a very clear provision of the law requiring an employer to transfer any employee working night shift who becomes certified as unfit to do night work.
The law has no clear provision on time off to attend pre-natal and post-natal clinics. The practice has usually been that any pregnant or nursing mother wanting to attend clinic, or needing to seek medical treatment, has asked for some days from her sick leave days or annual leave. However, some companies have a collective bargaining agreement or workplace policy which provides for some days off for pre- and post-natal clinics.
A nursing mother is under the law entitled to two (2) hours per day to feed her/breastfeed her child. The law does not say at what time of the day they should be utilised. It is therefore up to the employer and the breastfeeding employee to discuss and agree. Neither does the law provide for how long this right should proceed; it is therefore left up to the discretion of the employer and employee to agree.
In a leave cycle (period of 36 months) an employee is entitled to 84 days paid maternity leave if she gives birth to a single child or 100 days paid maternity leave if the employee gives birth to more than one (1) child. These days include rest days and public holidays. However, if due to any birth/delivery complications the female employee requires extra days she can discuss this with the employer concerned, about using sick leave days or some days from her annual leave or getting extra unpaid leave days.
The duration of paternity leave is three (3) days in a leave cycle which is thirty-six months. The three (3) days are the total number of days irrespective of the number of children that are born within the leave cycle.
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Compulsory Terms
Contracts of employment with an employee shall contain the following particulars in writing under section 15(2) of the Employment and Labour Relation Act –
- name, age, permanent address, and sex of the employee;
- place of recruitment;
- job description;
- date of commencement;
- form and duration of the contract;
- place of work;
- hours of work; and
- remuneration, the method of its calculation and details of any benefits or payments in kind.
Section 15(3) of the Employment and Labour Relation Act the Law clearly stated that if an employee does not understand the written particulars the employer shall ensure that they are explained to the employee in a manner that the employee understands. If an employer fails to produce a written contract or the written particulars the burden of proving or disproving an alleged term of employment shall be on the employer.
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Non-Compulsory Terms
All non-other terms as long as they are not against any specifically provided law are permissible and they can be stated in a contract of employment.
Types Of Agreement
A contract for an unspecified period.
A contract for a specified period for professionals and managerial cadre.
A contract for a specific task.
Secrecy/Confidentiality
An employee shall not be obliged to disclose information that –
- is legally privileged;
- the employer cannot disclose without contravening a law or an order of court;
- is confidential and, if disclosed, may cause substantial harm to an employee or the employer; and
- is private personal information relating to an employee without that employee’s consent.
Ownership of Inventions/Other Intellectual Property (IP) Rights
The Constitution of the United Republic of Tanzania allows ownership of intellectual property and guarantees its protection.
- Copyrights are regulated by Copyright and Neighbouring Rights Act.5
- Trademarks are governed by the Trade and Service Marks Act No. 12 of 1986. In addition to that, Tanzania ratified Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Union) 1957–1977.
- Patents are governed by the Patent (Registration) Act, 17. Tanzania has also ratified WIPO Convention, 19671, Patent Cooperation Treaty (PCT) 19702, The Protocol on Marks within the Framework of African Region Industrial Property Organization (the Harare Protocol), 1993), Agreement on the Creation of the African Regional Industrial Property Organization (ARIPO), 19794, Paris Convention 1883–19675; and “Agreement on Trade Related Aspects of Intellectual Property Rights (Annex 1C of the Marrakesh Agreement Establishing the WTO 1994”
- Registration of trademarks and patents are administered by the Business Registration and Licensing Agency (BRELA). Registration of a trademark is for a period of seven years and may be renewed for further periods of ten years in perpetuity. Unregistered trademarks are also offered protection under common law if it can be shown that the proprietor has established goodwill associated with its mark.
- There is no local system for registration of designs in Tanzania. However, Tanzania has ratified the Agreement on the Creation of the African Regional Industrial Property Organization, 1979 (effective for Tanzania as from 12 October 1983); and the Protocol on Patent and Industrial Designs within the Framework of African Region Industrial Property Organization (the Harare Protocol), 1982) (effective for Tanzania as from 01 September 1999).
Pre-Employment Considerations
Every employer is at liberty to have a good recruitment and appointment policy indicating that the organisation is an equal opportunity organization. That is, recruitment and appointment are made not only on merits, but the organisation administers all personnel actions without regard to race, age, colour, tribe, religion, political opinion, marital status, gender, disability etc.
Hiring Non-Nationals
Realising the expanding need of employing personnel from abroad, in March 2015 the Tanzanian Parliament passed the Non-Citizens (Employment Regulations) Act. The Act regulates the recruitment of non-citizens in Tanzania, complimenting the Immigration Act No. 7 of 1995 which addresses elements of labour influx. The Act, therefore, gives the Labour Minister (through the Labour Commissioner) wide powers in all matters relating to employment of non-citizens in Tanzania Mainland.
The key issues stemming up from the Act:
- The Act empowers Minister of Labour to publish in the Government Gazette, specific fields where non-citizens can be employed, implying that the work permits for non-citizens shall be issued exclusively for employment in the Gazetted fields.
- Under the Act, the Labour Commissioner is the sole authority responsible for issuing work permit. However, the Commissioner may delegate such powers to any person or public institution.
- Employers of non-citizens in Tanzania, according to the law, will be required to prepare a succession plan, setting out mechanisms for transferring expertise from the non-citizen to local workers. Further, the law requires an employer to establish an effective training program aimed at building capacity to local employees who should be able to take over upon expiry of non-citizens’ time in Tanzania.
- Just like the Immigration Act, it illegalises the employment of non-citizens in any occupation without a work permit from the Commissioner. Hence, it is an offence for a non-citizen to engage in any occupation or a person to employ a non-citizen who does not have a work permit.
- The Act seeks to limit the original duration of the permit to only two (2) years but under the Immigrations Act, the original duration may be two (2) or three (3) years. Like in the current law, this period can be renewed but only to an aggregate limit of five (5) years.
- The Act also imposes a fine of up to 10 million Tanzanian Shillings or 12 months’ imprisonment or to both a fine and imprisonment if a person contravenes any provision of the Act and commits offences articulated in the Immigrations Act, 1995. It should be noted that, the offences provided under the Act are similar to the ones in the Immigrations Act, 1995 except that the latter’s list of offences is more extensive from the former.
Hiring Specified Categories Of Individuals
An employer can hire a specified category of individuals as they wish as long as there is no discrimination of any kind to other employees.
Outsourcing And/Or Sub-Contracting/Temporary Agency Work
It is permissible under the laws to outsource/sub-contract or having temporary agency work and it is governed by the law of contract and employment laws.