Tanzanian law related to foreign labour employment

Tanzania bolstering the Tanzanian law related to foreign labour employment

Breakthrough Attorneys understands that key to every investment, is its human capital. We also understand that human capital is clustered into unskilled, semi-skilled and skilled classes. Tanzanian labour market is lacking necessary expertise in some areas, hence forcing both domestic and foreign investors to look across the borders for necessary expertise.

Realizing the expanding need of employing personnel from abroad, in March, 2015 the Tanzanian Parliament passed the Non-Citizens (Employment Regulations) Bill, 2014. The proposed Act, seeks to regulate the recruitment of non-citizens in Tanzania, complimenting the already existing Immigration Act No. 7 of 1995 which addresses elements of labour influx. This Non-Citizens (Employment Regulations) Act (hereafter “the Act”) is expected to come into force by July 1^st, 2015 if the President of the United Republic of Tanzania assents to it.

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.

Breakthrough Attorneys’ labour department in review of the Proposed Act has narrowed down the key issues stemming up from the now looming Act:

1. The proposed 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.
2. Under the proposed 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.
3. Employers of non-citizens in Tanzania, according to the proposed law, will be required to prepare a succession plan, setting out mechanisms for transferring expertise from the non-citizen to local workers. Further, the proposed 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.
4. Just like the Immigration Act, it illegalizes 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.
5. The Proposed Act seeks to limit the original duration of the permit to only two years but under the Immigrations Act, the original duration may be two or three years. Like in the current law, this period can be renewed but only to an aggregate limit of five years.
6. The Proposed Act also imposes a fine of up to ten (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 proposed 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.
7. The Proposed Act, also amends the Immigrations Act, 1995 to add in the definitions list the words “Work permit” to mean permit issued by the Labour Commissioner. It further amends the Tanzania Investment Act, 1997 to delete the words “Immigrations Officer” to replace it with the words “Labour Commissioner” so as to shift the powers of issuing work permits solely to the Labour Commissioner.

Currently the Immigration Act, 1995, provides that any foreign citizen who has been offered employment opportunity in Tanzania and wishes to engage in such employment he or she should apply for a work permit Class B. The process of obtaining a work permit can normally take up to 2 or 3 weeks to complete and it may involve authorities including; The Ministry of Labour and Employment, The Immigration Office and the Tanzania Investment Center (TIC). This application should be done before the said employee takes office. The Application for Work Permit Class B together with its attachments like work contracts, credentials and related documents must be submitted at the office of the Director of Employment, Ministry of Labour and Employment or The Tanzania Investment Center (in case the business or project of the employer is registered with the  Tanzania Investment Center).

With the forthcoming law, still, the applicable work permit class will remain Class B, which of course, is reflective of the classes provided under the Immigration Act, No. 7 of 1995.

Breakthrough Attorneys reckons that the process will still be based on the discretion of the Labour Commissioner to define the need of any non-citizen being employed in Tanzania. That is the case because currently the law obliges the Labour Commissioner to see;-

1. Whether the prospective employee possesses qualifications or skills necessary for that employment.
2. The availability of qualified Tanzanians for the position.
3. Whether his employment will be of benefit to Tanzania.
4. The complexity of technology employed by business enterprise (employers) that necessitates the need of employing the foreign staff.
5. Employer giving security for the permit prior to the prospective employee’s entering the country or prior to issuance of the permit.
6. Agreements reached with the investor (Employer).

We reckon as thus because the proposed Act does not override this position but rather condenses the areas of practicability of non-citizens staffing. This discretion therefore, stands to be applied within those areas green-lighted by the Minister of Labour for foreign employment resourcing.