Q&A – 28 October 2013
Two union reps in one company
I am a foreign investor owning a factory in the outskirts of Dar es Salaam and have employed a large number of people. Recently three people identifying themselves as officials from a certain trade union showed up in my office requiring that they be allowed to speak to my employees and recruit them in their trade union. I turned down this request on reason that there is already an existing trade union in my factory. They have now formally written to me requiring me to inform them the date, and venue when they can have time to speak to the employees? I have not replied to this as a caution until I am legally advised. Is this a request normal? Please advice.
NQ, Dar
This request in not uncommon since the requesting trade union is exercising its right under the Employment and Labour Relations Act (“ELRA”). The ELRA clearly provides that any authorized representative of a registered trade union shall be entitled to enter the employer’s premises in order to recruit members, communicate with members, meet members in dealings with the employer, and hold meetings of employees on the premises. Apart from the foregoing rights a registered trade union may establish a field branch at any workplace where ten or more of its members are employed.
In your case you only need to satisfy yourself whether the so called officials are really coming from such a trade union (there is no shortage of those who are not) and if yes, then whether the said trade union is duly registered. As an employer you cannot prevent them from recruiting member’s notwithstanding the fact that there is another trade union already existing.
After all, membership in a trade union is a matter of employee’s choice and not employer’s choice.
Further, it is the employees who will decide whether they should join the trade union or not. You can contact your lawyers further guidance.
Pharmacy operated by non-pharmacist
I came to Tanzania as a culture tourist and witnessed that there are no satisfactory supplies of medicine in rural areas. I wish to come and establish this business of pharmacist in rural areas and have already done the preliminaries for this including getting opinion on business structure. I want to make these medicines available at cheaper and affordable prices. However I have been informed that not being a pharmacist by profession I cannot do this? Is this true? Your guidance on this shall be highly appreciated.
TX, Dar & UK
The local legislation for regulation and control of pharmacy profession and practice is the Pharmacy Act No. 1 of 2011. It is this piece of legislation which has also established a Pharmacy council as a sole authority for registering, enrolling and listing of Pharmacists, pharmaceutical technicians and assistants. In this it is an offence for a person to carry a business of pharmacist unless that person is a pharmacist or is in association with a pharmacist. Also this Act under Section 43 provides that no person other than a Pharmacist shall manufacture for sell, supply or dispense any medicine except under the immediate supervision of a Pharmacist. The sentence for going against such provision is a fine not less than one million shilling or imprisonment for a term of not less than six months or both and if the offender is an association, firm or body corporate, the sentence is a fine of not less than five million shillings.
Coming back to your query, the intended investment venture is possible save that you should carry that business with a pharmacist in order to comply with the law, and such pharmacist must be registered in Tanzania.
What is perhaps more challenging for you is the fact that there is a shortage of pharmacists in Tanzania and getting a pharmacist, let alone one in rural areas, may prove to be challenging. The law has not addressed this and we advise you to contact the sector Ministry to discuss this.
Death of the sole Defendant in a civil suit
I filed my civil case against a sole defendant based on breach of contract. Before the hearing commenced, the Defendant died. What is the status of my case? Who will be the substitute of the defendant and what procedures should I follow?
OT, Moshi
If the defendant dies, the law allows the Plaintiff to apply for joining the legal representative of the deceased defendant within 90 days of the said death. Where within the time limited by law no application is made, the suit shall abate against the deceased defendant unless the plaintiff will have sought and obtain extension of time to do so. Your attorneys will guide you on the necessary documentation for the purposes of the application for joining the legal representative and/ or extension of time.
Misrepresentation by foreign banker
A foreign banker came to Tanzania and promised great returns for a new investment product that it was launching in the Far East. I found the product quite lucrative only to find myself now having lost 30% of my investment already. There were some crucial points not disclosed to me by the banker. Can I sue?
LK, Dar
First and foremost, the soliciting of business by the banker in Tanzania is illegal. If you are Tanzanian, it is also illegal for you to bank outside the country without approval of the Bank of Tanzania.
Subject to the above, if you believe that the banker misrepresented to you, you will have a cause of action against the bank and may sue. However the suit will be subject to the choice of law clause in the agreement you entered into, which is likely the laws of where the bank is registered in. Before instituting the suit, we suggest a lawyer who specializes in foreign banking practices be consulted as misrepresentations must be balanced with some risk that a client will take when investing. There is nothing like a risk free investment – the old adage of higher the risk, higher the return still holds true.