LABOUR LAW

Lectures

The discipline of labour is defined in part by its subject matter and in

part an intellectual tradition.

Subject matter of labour law consists of the rules which govern the

employment relationship but a broader perspective would see labour

law as the normative framework for the existence and operation of all

the institutions of the labour market.

Institutions of labour market

The business enterprise

Trade Unions

Employers Organizations

The state as the regulator/employer

The starting point for analysis is the existence of the employment

relationship as a distinct economic and legal category. Labour law

1. stems from the idea of subordination of the individual worker

to the capitalist enterprise;

2. Is the role of dependent labour

a. Dependent Labour

b. Independent Labour - labour that you can use as an

independent worker on your own not subordinated to

anybody else

From this we infer that dependent labour is specific to those categories

of economic relationship which involve the exchange of personal

service or remuneration.

What is labour law concerned with?

It is concerned with how these relationships are constituted

relationships of dependent labour and in the common law system the

constitution is primarily based on contract and with how they are

regulated and this role is shared by common law and social regulation

and also by extra-legal sources such as collective bargaining and work

place custom and practice.

Intellectual tradition sees labour law as a unified discipline which has

outgrown its diverse origins in the role of obligations and the

regulatory intervention of the states.

Labour law must establish itself as a branch

Labour law is more than the sum of its parts and this views derives

from the views of German jurists in the early decades of the 20 th

century and this approach sees labour law as the embodiment of social

policy in action.

At its broadest it implies that labour law should embrace sociology,

social policy and the theory of business organisation. There are a

bewildering number of titles that are used in labour law.

What is the name of the discipline – it is a question of choice, industrial

law popular in the 60s, employment law in 70s and now we call it

labour law.

Any discipline must be based on theory that informs what we learn in

that discipline thus there must be a body of theory for labour law. in

the context of labour law, although there may be a number of

approaches, it is best to think of labour law as market regulation. The

process in which the state and other players intervene on the labour

market.

There has been a number of approaches to the scope of labour law,

according to Lord Welderberne

1. The employment relationship between the worker and the

employer

2. Lord Wederberne refers to area of collective bargaining

between trade unions and employers

3. Parliamentary provision by statute overflow of rights for

individual employees – safety at work, rights in respect of job

security and mattes such as equal pay and discrimination

4. Strikes, lockouts and industrial action generally, this is

industrial conflict

5. Status of Trade Unions and the role of the trade union

movement.

Smith and Wood in their book industrial law suggest that the subject

may be split into 3 principal areas

1. Industrial safety law

2. Employment law

3. Industrial relations law which was characterised by

Course outline

1. Foundations of Labour Law

Introduction to labour law

Historical revolution of labour law

Colonial factor in revolution of labour law

2. Individual employment Law

Employment relationship

Contract of service

Contract of employment.

3. Collective Labour Relations

Collective bargaining

Industrial conflict

Compulsory dispute resolution

Law of strikes

4. Trade Union Law

5. Social Security Law

6. Status Employer

Labour Law-

There are other developments that impact on the terms of the

contract:

1. Terms that implied in the contract

2. Incorporation of collective agreement that is an agreement

between an employer and a trade union. A collective agreement

lays down the procedure that will bind the signatories and

provides for the terms and conditions of employment of those

covered by the agreement. These terms should be incorporated

in the employment contract.

A similar process is delegated collective bargaining which can

also be used to improve/incorporate terms of employment. It

comes via the procedure of minimum wage regulation,

Regulation of Wages and Conditions of Employment Act, Cap

229.

Not every worker works in an industry where there is a trade

union, or the union finds it difficult to organize.

Under Cap 229 the Minister is empowered to form wage

councils, and there ware two wage councils: general wages

advisory board and agricultural wages advisory board.

There are function is to advise the minister on forming councils

for particular industry and to make recommendations on

minimum wage. The also perform the function of wages

councils.

The function of the wage council is to step in where there is no

trade union and make recommendation for employment

terms/minimum wages. We have more than 40 wage councils at

the present. Once the council makes the recommendations and

the minister accepts the recommends, these are gazetted and

become the minimum wages ion that industry.

The terms of employment are set by employer and employee

but they are modified by the above.

The obligations and duties of employment

Employment gives rise to duties and obligation. The law imposes

a number of duties and obligations on both parties during the

continuance of the performance of the contract and even beyond

after the end of the contract. Some of these duties arise by

virtue of the common law and some out of the implications of

legislation:

The duties of the employer

1. The implied duty of mutual respect. This refers to two areas

essentially. Certain areas where the duty of respect may

require positive courtesy, like in domestic employment. The

employer must treat the employee with such a degree of

consideration and tolerance as would allow the contract to

be executed. If there is no mutual respect, it would be

difficult for the employer to perform his contract.

2. the duty to provide work. Under the common law there is no

independent obligation to provide work, only to pay. But

that is the historical position that required to be qualified. In

certain special circumstances failure to provide work may

be a breach of employment duty; if there is no work there is

a fundamental breach of the contract.

If the failure to provide work can lead to a loss of reputation

and publicity, it can amount to a breach of a legal duty.

Or if the failure to provide work lead to a reduction of the

employees actual or potential earning.

Labour Law-Lecturer 3

1973 the case

Misuse of confidential information

Read Brian’s article, “The employee and trade secrets law”, in Vol. 30

current Journal of Legal Problems.

An employees has a duty not to misuse confidential information.

During the course of his employment and employee has an implied

duty not to disclose confidential information to third party.

What if he leaves his employment? To determine what cannot be

disclosed regard must be had to all the circumstances and in particular

the following four things:

1. the nature of the employment

2. the nature of the information itself.

3. whether the employer regarded the information as being

confidential and informed the employee of this.

4. whether the information could be easily isolated from other

information which the employee is free to use. See the example

of Fachienda Chicken Ltd v Fowler (1987) Ch 117. In this case

the employer sought an injunction to restrain two former

employees from using their knowledge of sales and price

information when they set up a competing business. But the

court held that this was not confidential information and the

application for an injunction was refused.

An ex employee is entitled to make use of his knowledge and skill

which he has generally acquired in his previous employment.

Exceptions to disclosure: if you are disclosing a crime.

What can an employer do to protect himself. “Garden leave

clauses”, the idea here is that the employer can agree with an

intending employee on terms upon which they will leave

employment. That is to say the employer frequently agrees on the

employee on the amount of notice period required. But what the

employer is trying to avoid is the employee jumping into another

employment. So he may give the employee leave say for two years

to protect his interests.

But what about after the end of the employment? Here such

“garden leave clauses” might not be helpful. But the law recognizes

“covenant in restraint of trade”. That is to say that during the

tenure of employment, as part of the employment contract, the

employer and employee can agree that after the termination of

employment the former employee will be restricted as to whom he

may work for a defined period of time. Generally the law frowns

upon the restraint of trade but it is recognize in employment terms.

Holds the balance between two competing forces: an employees

freedom to take employment where and when he wishes, and on

the other hand the need for an employee to protect his business

from disclosure or exploitation by former employment. So the law

will protect the employer by implying a term of fidelity in the term

of the employment which restrains the employee from divulging

confidential information.

But that may not be sufficient and if the employer wants to go

further he can extract and explicit undertaking or express promise

from the employee, such as not to engage in a certain trade.

Emphasis on three things:

1. An employer cannot prevent an ex employee from competing

with him nor using the skill and knowledge gained during the

employment.

2. The employer can extract a promise that the employee will not

use his personal influence over customers or his knowledge of trade

secrets to the disadvantage of the employer.

3. An employer who has a genuine interest to protect should get the

employer to sign a covenant to this effect so that the employers

interest is protected.

There are four established areas in which the employer is entitled to

be protect through a covenant:

1. Trade secrets and confidential information

2. Existing customers and connections

3. working for competitors

4. influence on existing employees

Good faith

Patents, inventions and copyright

Philips, “Employees inventors and the new Patents act” vol 7 industrial

journal

Wothorspoon, “Employees investors revisited, Industrial Law journal,

The common law position has always been or was that in the absence

of an express terms in a contract of employment the employer was

entitled to the benefits of an invention made by his employees if they

were referable to the employment. This position in this country has

now been changed by the Industrial Property Act, cap 509, Part 4 of

the Act, sections 14-18. Particularly section 14: it says that

1. The right of a patent belongs to the inventor.

2. It also provides that if two or more persons have jointly made an

invention then the right to the patent shall belong to them

jointly.

3. Where an invention is made during the validity of a contract

whose express object is research in Kenya and in which the

inventive activity and improvement of the employee has been

foreseen or is implied by the very nature of the functions

performed under the contract, the invention shall belong solely

to the employer.

4. Inventions made without relations to an employment or service

contract and without the use of the employer’s resources (data,

installations, etc) shall belong solely to the employee or the

inventor.

5. If there are inventions which are made by the employee which

result from both the personal contribution of the employee and

the resources of the employer, such inventions shall be owned

jointly by the employee and the employer.

Disciplinary procedures in the workplace

During the performance of the employment contract the employer may

find it necessary perhaps through his foreman, supervisors, committee,

etc. to exercise some form of disciplinary authority over his employees.

This may take many forms. But here were are concerned with the

procedures for the disciplinary powers, the matters that will give rise to

those procedures being implemented, and those powers.

Lawful disciplinary measures: the employer must have the powers to

impose them. It will involve having the contractual capacity to do so. If

you look at modern trends the tendency is to put down in written form

the organization’s policy on discipline and the procedure to be

followed. In that way we can say the employer acquires the powers to

implement them.

The disciplinary measures should be known to the employees. The

employees should be aware of the consequences of breaking the rules.

The responsibility of drawing up the disciplinary procedure is on the

employer. The participation of employer and trade union is good but

not mandatory. Distinction should be made between disciplinary

measures brought for misconduct and those brought for capability.

The size of the organization determines the elaborateness of the

procedures. The employer must be able to prove the existence of the

procedures and their dissemination.

The employer can invoke disciplinary measure if one of three

conditions exist:

1. if the general law authorizes the disciplinary measure. E.g.

section 6 allows for deduction of wages for damage under the

Employment Act, can be dismissed for absence under section

17, summary dismissal for certain offences.

2. the disciplinary measure should be customary and the custom to

be authorized in the industry.

3. the disciplinary measure should be provided for as an integral

part of the contract of employment

Warnings and reprimands, demotions or transfers, temporary

withdrawal of privileges, fines or deductions from wages, leave without

pay, and finally dismissal

Terminal of employment contract

The methods by which an employment contract can be brought to an

end:

1. Death or dissolution of the enterprise.

At common law, death would bring the contract of employment to an

end, whether it is the death of the employee or employer. When death

occurs the employee is discharged from further performance, the

result of an implied condition that the continued existence of the

parties is an essential part of the control. Death terminates the

contract. But in practice most employees will be employed by non

human beings which do not die.

See Graham’s article, “The effects of liquidation on contracts of

service”, 1952 vol. 15, Modern Law Review from page 48

Davis and Freeedman, “The effects of receivership upon employees of

companies”, 1980 vol. 9 Industrial Law Journal from page 95

Partnerships: in the case of a partnership where a partner dies and

there is a consequent dissolution of partnership the contract of

employment will be discharged.

But in the case of a company the situation is complex. The position

appears to be as follows.

1. First an order of the court for compulsory winding up of a

company operates as notice of dismissal to its employees.

2. The effect of voluntary winding up depends on whether the

business is to be carried in some form. If the business is to carry

on it does not operate as notice of dismissal but if there is not

intention to carry then it operates as a notice of dismissal just as

in the case of a compulsory order.

3. The appointment of a receiver by the court terminates contracts of

employment but the appointment of a receiver out of court by the

debenture holders does not have that effect, except in four cases:

(i) where the receiver is appointed to act as agent for the

creditors only not for the company

(ii) where the receiver sells the business so that there is not

continuation

(iii) where the receiver enters a new contract of employment

with the employee in question which is inconsistent with

the old one

(iv) where the continuation of the contract of employment is

inconsistent with the appointment of the receiver because

of the nature of the employment.

Frustration of contract

It is a general principle of the law of contract a contract will be

terminated automatically if it is frustrated. If circumstances change so

completely that performance becomes impossible or leads to a

completely different result then it is terminated

1. if the contract is frustrated it is terminated automatically and

immediately upon the happening of frustrating event.

2. there is no right to back pay from the date of frustration

3. if the contract is frustrated its termination is due to the

operation of law and not to dismissal

Expiry

LABOUR LAW Lecture 4

Mutual consent must be voluntary without pressure on the employee

or employer. Mutual consent eventually ends contract.

Methods of bringing a contract to an end

1. Redundancy and

2. Dismissal

REDUNDANCY

The theme here is economic dismissals others being reorganisation

of work and business transfer such as in when companies merge.

These kinds of dismissal touch on key areas of managerial

prerogative. How do economic dismissals which result in social cost

can be distributed between the workers and employers, what is the

most reasonable arrangement?

What is the rationale of redundancy law?

We have accepted that an employee has some certain rights to a

job which means he ought not to be unjustifiably dismissed.

Economic dismissals are also accepted as a reality so there is

conflict here. We must accept the reality that economic dismissals

will take place from time to time. The concern of the law is equity

and social protection.

In the common law tradition the regulation or termination of

employment and of redundancy more specifically may be seen as

justified the following:

1. There is a conception of individual justice as between employer

and the employee whereby employers are prohibited from

making arbitrary dismissal decision. This justifies the

intervention of the law.

2. There is also a market intervention and economic regulation

rationale within which context legal intervention is justified by

reference to a desire to minimise the costs of dismissals to the

employee.

3. Legal regulation can be seen as protecting public rights i.e. rights

to join a trade union, right not to be discriminated against on any

grounds.

4. A clear regulatory framework can be viewed as a mechanism by

which employers may be protected from excessive litigation

cost.

5. To the extent that dismissal regulation promotes employment

security such regulation can be seen as encouraging employers

to invest in the training and development of workers.

6. the Government concern about two things

(i) possible economic social and even political effects of

mass dismissal;

(ii) public order and the need to avoid industrial unrest.

For all these justifications state has developed redundancy law which

focuses on procedure.

What is redundancy?

Section 2 of the Trade Disputes Act Cap 234 defines redundancy as

a. Loss of employment, occupation, job or career by involuntary

means through no fault of the employee involving termination

of employment at the initiative of the employer where the

services of an employee are superfluous.

b. The practices commonly known as abolition of office, job or

occupation and loss of employment due to the Kenyanisation

of a business.

Redundancy does not include loss of employment by a domestic

servant.”

Termination of the employment must be at the initiative of the

employer, the services of the employee must be superfluous. The

classic cases of superfluity relate to two situations

(a) Where there is cessation of business

(b) Diminishing requirements of labour or where labour has

become surplus. Apart from suspensions and closures, there

could be business difficult such as difficulty in obtaining raw

materials which are all based on management decisions that

cannot be questioned. Changes in procedures of job can also

bring about suspensions. Relocation, where the company

closes and moves to another country,

Who decides on superfluity?

Firstly in relation to closing down of a business, the answer is straight

forward as it is essentially the employer to decide if and when to close

the company i.e. the motive of the employer is irrelevant. It is

management prerogative. When work is given to an independent

contractor or organised such that it can be done by fewer people.

There are two tests for determining diminished requirements:

1. The job function test – this test attempts to identify a

redundancy in terms of the economic requirement for

employees to perform a particular quantum of work.

2. The contract test – in order to determine whether there is a

redundancy it is necessary to ascertain whether there is a

diminished requirement by reference to the whole range of

contractual duties which the employee could be required to

perform not merely those which he had been performing.

In the job function test, we are asking the employer to decide whether

the employee is valuable. If his job function goes, the employee goes

but in the second one. In the first test we heavily rely on the

employer.

In the second class

Refer to the case of Nelson v. BBC (1977) ICR

The law requires that a certain amount be paid to the employee as

compensation. The basic purpose of payment of redundancy was to

compensate a long serving employee for the loss of a right that he has

in a job. It is not an employment payoff it is as Denning said in the

case of Lloyd v Brassey (1969)2 QBD 98 “compensation for real

service. Denning was emphatic that it is not an employment payoff.

Whatever the purpose, the procedure is as follows. When an employer

is obliged to terminate employment contract we need a criteria and

this is found in Section 16(a) of the Employment Act which was

introduced vide Act No. 4 of 1994 which is the finance Act. The section

provides as follows:

The employer must inform the trade union of which employee is a

member and the labour officer in charge of the area where the

employee is employed. He notices them the reasons for and the

extent of the redundancy. What constitutes notification? Can the

employee object to the redundancy? What happens when the

employer does not inform the law officer or the union? The law is

silent.

In England similar legislation requires an employer to consult employee

representative or union.

The employer is required to have due regard to seniority in time, skill,

ability and reliability of the employee.

No employee should be placed at a disadvantage for being or not

being a member of a trade union.

Payment of Redundancy

1. Any leave due to any employee who is declared redundant

shall be paid off in cash;

2. An employee declared redundant shall be entitled to the

following

(a) One month’s notice or one month’s wages in lieu of

notice.

(b) Severance pay at the rate of not less than 15 days pay

for each completed year of service.

There are similar procedures under the Wages Order Act and all these

statutes tend to improve what the law has laid down as the law only

lays down the minimum.

It appears as if there is only one remedy that is provided under Section

4(5) of the Trade Disputes Act which provides that termination of

employment through a redundancy is deemed to be a trade dispute.

This means that trade unions can contest that decision in an industrial

court. This remedy is only available to employees who are members of

the Trade Union.

Is it fair for employers to be force to pay for redundancy fees? Should

be the employer’s moral responsibility to take the economic burdens of

their former employees? Might it be better if redundancy schemes

were organised in social security fund? Is redundancy as bad as illness

or accident or might we approach it differently and instead have some

employment benefit of some kind? These are questions of policy.

DISMISSAL AS A FORM OF TERMINATION

Dismissal is the most important method of bring employment to an

end.

What is dismissal?

It is the exclusion of the employee from further employment with the

intention of severing the relationship of employer and employee. We

do not have a statutory regime relating to dismissal and our fallback

position is the common law and doctrines of equity which guide is in

matters of dismissals.

There are 3 kinds of dismissal known to the common law

1. Dismissal by notice

2. Dismissal for cause

3. Wrongful dismissal

All of which there are remedies.

DISMISSAL BY NOTICE

Most contracts of employment may be terminated by either party

giving the necessary notice of termination. This is what is called

dismissal by notice. Under the common law of employment, a

dismissal on proper notice is lawful regardless of the motive behind it

i.e. at common law there is no obligation upon the employer to give

reasons for dismissal. Refer to Ridge v Baldwin [1964]A.C 40.

DISMISSAL FOR CAUSE

At common law an employer may dismiss an employee summarily i.e.

without notice if he has sufficient cause to do so. This is called

Dismissal for Cause. The right to dismiss summarily is explained on

the ground that the conduct of the employee was such that it shows a

repudiation by him of the contract of employment. To be able to

dismiss an employee summarily the employee must have behaved in a

way that led to his dismissal like stealing, going to work drank etc.

each case must be treated on its merit. Refer to Jupiter General

Insurance Co. V Shroff [1937] 3 A.E.R 67 in this case the privy council

held that summary dismissal is a strong measure justified only in

exceptional circumstances. The court also said that the test to be

applied in determining whether a dismissal was justified must vary

with the nature of the business and the position held by the employee.

In Kenya the Employment Act helps by listing in Section 17 of the

employment Act several grounds of misconduct that can lead to

summary dismissal.

There are exceptions to the Notice and Summary Dismissal Rules

1. Statutory Restrictions – where a statute prescribes certain

conditions which must be observed if a decision to dismiss is

to be valid then failure to observe those conditions may

render the decision a nullity. A good example is Section 62 of

the Constitution which is on Judges tenure. The section also

provides procedure for removal.

2. Contractual job security clauses – a contract of employment

may impose its own conditions just like statutes. Employment

contracts may contain express or implied terms which purport

to provide guarantees of job security going beyond that

provided by the common law right to notice. This can happen

by guaranteeing in the contract that the employee will not be

dismissed except in accordance with certain procedure or

certain stated grounds. Most contracts today seem to provide

that an employee is only to be dismissed if there is cause and

provide procedure for dismissing. A contract of employment

may omit the normal provision allowing the employer to

terminate the contract by simply giving notice.

3. It is possible for a contract of employment to incorporate

Terms of Disciplinary or Dismissal Procedures. This requires

the employer to go through the procedure before he can

dismiss.

WRONGFUL DISMISSAL

Found under the common law. Wrongful dismissal means dismissal of

an employee in breach of his contract of employment. It is a common

law concept. Wrongful dismissal arises in the following situations

1. If a contract is for a fixed period or is expressly stated to be

terminable, only in certain ways and it is terminated before

the term expires or in an improper way that constitutes

wrongful dismissal;

2. Where the employer dismisses the employee with either no

notice or inadequate notice again that is wrongful dismissal;

3. Where the employer purports to dismiss an employee for

cause where the facts do not justify such action again this is

wrongful dismissal.

REMEDIES FOR WRONGFUL DISMISSAL/BREACH OF

EMPLOYMENT CONTRACT

If an employee is wrongfully dismissed the general rule is that his

remedy lies in damages or in an appropriate case a quantum meruit

action. There are certain exceptions in which other kinds of remedies

may be available.

The remedy for damages is the most important remedy given by

common law and equity for a number of reasons

1. In the case of most ordinary contracts of employment, it will be

the only remedy available because specific performance or

declaration of invalidity of dismissal will not normally be allowed

by the common law the remedy is also important because the

employee will not be allowed to claim wages in respect of the

period following wrongful dismissal; in the ordinary course of

employment an employee will not be granted the order of

specific performance but it will be difficult to get a court to

declare that dismissal is invalid, the court can declare a dismissal

wrongful but not invalid. The employee must understand that he

can only get damages if wrongfully dismiss. It should fall that

the measure of damages obtained for wrongful dismissal is very

important because it is the measure of protection of the security

of employment at common law.

The basic principle underlying the assessment of compensatory

damages both in contract and in tort is that of putting of the plaintiff in

the position in which he would have been if he had not sustained the

wrong. This is restitutio in integram. This principle has been applied in

a very restrictive manner in the case of wrongful dismissal both as to

the heads of damage which may be considered and as to the

assessment of damages under those heads. Refer to the case of Addis

V. Gramaphone Co. Ltd [1909] A.C 488 This case decided that injury to

feelings and reputation cannot be taken to account in assessing

damages for wrongful dismissal. This is an example of how restrictive

the principle has been applied to wrongful dismissal.

Damages in respect of loss of earnings are limited to earnings during

the period of notice required to terminate the contract. There is a

presumption that all contracts can be terminated by giving notice so

that employees will expect notice before notice.

Failure to compensate adequately for the loss of fringe benefits and

seniority rights.

In spite of the general principle in contract of restitutio in integram

when it comes to wrongful dismissal it is applied in a different manner.

Where an employee is wrongfully dismissed he is entitled subject to

mitigation to damages equivalent to the wages he would have earned

under the contract from the date of dismissal to the end of the

contract.

There are employees who are employed under a fixed term of contract.

If an employee is working under a fixed term contract which does not

contain a notice clause, then the employee is prima facie entitled to

receive net salary for the unexpired period of the contract. Read

Friedlan the contract of employment page 278 – 292. Benefits other

than salary will be paid depending on whether the benefits were

discretionary as opposed to the employee as of right.

The employee is under a duty to mitigate his/her loss. Mitigation is a

question of fact.

Rules of mitigation are characterised into two

1. Rule as to

2. Rule as to avoided loss – the loss that the employee could

have avoided but he didn’t.

In Addis an employee who was paid at a fixed salary plus commission

was wrongfully dismissed and he claimed damages under the following

heads;

I Salary for the 6 month notice period

II Reasonable commission for a 6 month period

Iii Damages for the humiliating manner of dismissal

Iv Damages for loss of reputation leading to future difficulty

in obtaining employment

The House of Lord Held that only I and II were recoverable.

There are a number of explanations why injunctions are not available

The basis of this rule is the equitable doctrine of reciprocity – this

doctrine refuses specific performance to one party if the same remedy

cannot be given to the other one. Since the employer cannot be

compelled to retain an employee as a wage slave, it would be unfair to

compel the employer to retain the employee. It is also explained that

there is need to maintain mutual confidence which is lost upon

dismissal.

It is also explained that damages are an adequate remedy and

therefore reinstatement is not necessary. The general rule is that

remedy of specific performance cannot be granted if the court has to

supervise.

There has been the claim that it would be unfair and inappropriate to

allow reinstatement of employees but however there are exceptions to

that general rule.

1. A negative restrained clause - where the employee has

agreed to do certain things like not work for a competitor for a

few years after leaving employment;

2. Where the dismissal is a nullity – in certain situations a

dismissed employee may invoke administrative law remedies

e.g. judicial review etc and to argue that his dismissal is

invalid. If this argument is accepted the legal result is that

there was no effective dismissal and so the contract of

employment continues or it is indirectly enforced. This

represent the encroachment of the principles if administrative

law upon the private law of contract of employment. The two

principle basis for challenge are that

(i) the dismissal was contrary to the rules of natural

justice

(ii) principle situations in which employees have argued

that the dismissal was in some way ultra vires the

powers of the dismissing body.

Vine V. National Labour Board [1957] A C 488

Ridge V. Baldwin

The courts have recognise that some employees have the benefit of

especially protected status which justifies a declaration of invalidity of

wrongful dismissal and that in certain types of employment wrongful

dismissal may be treated as ultra vires the employing body and void

upon that ground. In the case of Ridge a Police Chief Constable was

dismissed without the benefit of being heard and the court believed on

an old English rule… the Court held Ridge’s dismissal to be a nullity as

he had not been heard.

IN vine by legislation there was a national dock labour board and the

applicant lost his registration as a docker on disciplinary grounds but it

was not the labour board that disciplined him but a committee which

did not have the power to do it and the court held the action to be

ultra vires.

If one is an officer holder then one is entitled to a special hearing and

on this basis some dismissals have been declared to be a nullity.

In England, the common law approach of termination has been

abandoned and all employees are now protected in their employment

and this right created by statute now requires that dismissal must be

for cause. Not only do the courts examine the procedure used in

dismissal but they go behind to find out the cause and reasons for the

dismissal. An employee is entitled to benefits including reinstatement

into employment. The legislation protecting employment introduced …

every employee now has a right not to be unfairly dismissed.

In Kenya we have had statutory developments.

The Trade Act through 1971 amendment at S. 15 empowers the

industrial court to reinstate wrongfully dismissed employees. It also

increases the compensation payable to dismissed employees to a

maximum of 12 months monetary wages. The discretionary nature of

this arrangement is that there is no guidance as to how the industrial

court is to exercise this power. It is at at the court’s discretion. There

is no base on which to proceed. It has been the tradition of the

Industrial Court Judges to give very short judgments that are not

reasoned. They don’t explain the jurisprudence behind their

judgments. Apart from the provisions of S 15 it is a criminal offence

for an employer to refuse to reinstate if it is so ordered by the

Industrial Court. the industrial court cannot cite for contempt and has

to use criminal law to enforce. There is a fine of 2000 shillings per

month for failure to obey the orders. The industrial court has

established the necessity of justifiable cause for dismissal so that it is

not enough for the employer to say that he followed the rules and is

prepared to pay the damages in lieu. Cockar reasons that labour

practices must be fair and there must be a cause for dismissing them

and also he argues that the principles of good industrial relations

dictate that employers must be fair to their employees.

In his book the industrial court Cockar explains that the court grants

remedies to employees for wrongful dismissal if in terminating services

for employees the management’s action was wanting in the following

instances

1. Where there is want of good faith;

2. Where there is victimisation or unfair labour practices;

3. Where there is violation of the principles of natural justice;

4. When on the materials the finding is completely baseless or

perverse;

5. Where the employer has been unduly harsh for example

where the employer chooses to terminate an employee where

a warning would have been sufficient or a demotion.

Industrial Court Cause No. 23 of 1972 Kenya Union of Commercial Food

and Allied Workers V. Kenya Cooperative Creamaries

Kenya Industrial Court Page 112 – 114 by Justice Cockar – a discussion

of the above case.

COLLECTIVE LABOUR RELATIONSHIPS

1. Collective Bargaining:

By collective bargaining we mean the process of negotiation between

an employer or group of employers on the one hand and one or more

Trade Unions on the other which is designed to produce collective

agreements.

At a technical level, there are two important functions of collective

agreements

1. Procedural function or contractual function which is the

function of regulating the relationship between trade unions

and associations of employers;

2. The normative or the rule making function which consists of

the terms and conditions applicable to individual workers; the

idea of the joint employment relationship backed by certain

kinds of sanctions. In the case of collective bargaining there

are consultation but there is consultation in which the

employer asks unilaterally but does not have to take that

opinion.

Historically collective bargaining is an accommodation between two

warring parties the employers and the employees. When the

employees collect themselves into trade unions they can confront

an employer and usurp their interests better because of the

strength in numbers. These two forces are always at loggerheads.

The first and most important function of collective bargaining is

maintenance of industrial peace because if there was no collective

bargaining what workers want without the trade unions the

employers will not grant and the workers can either go on strike or

resort to destroying equipment. The two sides are able to advance

their interest through a peaceful negotiations and keeping of peace.

Behind every arrangement for collective bargaining there is a peace

settlement.

Collective Bargaining facilitates joint regulations at the work place

or labour participation in management. When employers agree to

negotiate with Trade Unions, they are saying that there are areas of

management decision making which will not be done unilaterally

and only with consultation with trade unions. Industrial democracy

becomes an important function.

Conflict resolution: in society distinct groups have interests that are

always conflicting with others. These conflicts rear their head in

realistic circumstances which must be addressed and resolved. The

two sides agree to resolve the conflicts through collective

bargaining.

Effective management of confrontation

Social regulation – society must have a framework with which to

define rights and duties of employers and employees. Just like the

law collective bargaining helps in social regulation in society.

Collective bargaining performs the role of law making. As ….

Explains the social and legal effect of a collective agreement is two

fold

(a) It is a peace treaty

(b) It is a law making treaty – it creates terms of employment

the development of collective bargaining

The terminology was invented in Britain and first used by a legal

historian in 1891. Although there was evidence of by nascent

traders it is basically a product of industrial revolution. Major trade

unions developed in the wake of the industrial revolution. There

were laws which reflected the pre-industrial revolution days. From

1824 workers became free to form Trade Unions with the repeal of

Anti Combination Legislation. Nevertheless it was not until 1950

when trade unions acquired immunity to be able to organise and

form themselves and participate in collective bargaining.

Collective Bargaining in England developed outside legal

framework. Essentially this was because courts were hostile to

Trade Unions for a long time. Because of this hostilities,

In Kenya we were victims of the British in more ways than one.

Among the other forms of victimisation is that from 1930’s we had

the idea of collective bargaining imposed on us. In 1937 we had

legislation that made trade unions develop. The influence of the

colonial office in England, and having seen what Trade Unions could

do in England, the government in 1930 the Secretary of State sent a

dispatch requiring compulsory registration of Trade Unions and

directing that Trade Unions be directed to issues of bread and

butter and not on other important issues. In 1937 the Trade Unions

Ordinance was passed which formed the basis for being able to

negotiate with employers.

In 1940 the Trade Dispute Arbitration and Enquiries Ordinance was

enacted. It was provided that the governor could settle trade

disputes by way of arbitration and the governor was empowered to

refer the disputes to an arbitration panel appointed by him. By this

time it was acknowledged that Trade Unions already existed in

Kenya. This legislation encouraged the governor to use the

arrangements which were introduced or proposed by the parties

themselves.

Certain developments were needed for trade unions to prosper

Workers should have the liberty to organise in independent trade

unions

Employers should be able and willing to bargain with workers

organised into trade unions

There should exist in terms of law and institutions a mechanism for

the resolution of Trade Disputes.

These are 3 basic minimum conditions required to develop trade

unions together with others passed in 1943 and 1952 which

endeavoured to lay a basis for collective bargaining.

COLLECTIVE BARGAINING IN KENYA BY OKOTH OWIRO

Between 1937 and 1952 a thesis for collective bargaining was laid.

Kenyans were trained abroad on how collective bargaining works.

Between the passage of enabling legislation and training, by 1960

collective bargaining was said to be very well developed in Kenya.

Later on a more comprehensive pattern emerged and as of 1960

collective agreements in this country were reported to be numerous

and that between 60 and 70% of eligible workers were covered by

some sort of collective bargaining agreements. Collective

agreements usually provides better terms for employees. In the

year 2000 the minimum wage was 3518 for a general labourer

working in Nairobi but collective Agreement produced a minimum

wage of 10,900 showing that collective Agreement produces better

results for employees.

There are 4 things that may be useful

Institutional framework for bargaining

Procedure used

Levels of bargaining

Content of collective agreements.

In the tradition of voluntarism this matters have been left in the

hands of trade unions to regulate. In Kenya we have tried to

suggest to workers that collective bargaining is good for them. The

government does not want to interfere. There is however an

important role for the Minister of Labour in performing various roles

to do with collective agreement. He participates and can intervene

with the industrial court if the collective bargaining does not reflect

govt policy under Section 4 and 5 of the Trade Disputes Act. He can

compel trade unions and employers to agree with the agreements

that they have entered into and he controls strikes and lock-outs.

Procedure

In terms of procedure collective bargaining in Kenya one needs to

know that the recognition agreement is the first step in collective

labour relations. Kenya industrial relations charter which was

entered into between the govt of Kenya and Kenya federation of

workers in October 1958 was an agreement of honour outside the

law. It has been the practice that the employer must sign

recognition of the trade union before they can sit down to negotiate

a collective agreement.

Unions and Employers tend to eventually agree as there is pressure

from both sides.

Process of dispute resolution commences with the minister trying to

resolve the situation through conciliation. FKE has organized

employers into groups with the same interest which has made it

possible to reach uniform agreements with the unions. FKE has

taken it to manage the collective agreements processes

themselves. Where bargaining breaks down the matter goes to the

Minister and if conciliation fails the matter ends in industrial court.

CONTENTS OF COLLECTIVE AGREEMENTS:

In some jurisdictions especially Britain they lay down what the subject

matter is for bargaining. But in Kenya the law is silent on the subject

matter of collective bargaining and it is expected that the matter will

be dealt with by the parties vide the procedure of the recognition

agreement.

Roberts and … indicates what collective agreement tend to cover in

Anglophone Africa

the subject matter may be divided into two major categories,

procedural and substantive but when it comes to substantive the

following 6 themes tend to feature

1. Matters to do with Union recognition: check-off systems, when

they can have access to attend union matters, who can attend

etc

2. Terms of employment – seniority provisions, layoffs etc

3. Wage Scales – how much, how frequent, how much for over

time, bonuses;

4. Annual Leave

5. Safety Provisions – usually here there is already bench-mark

legislation like … Factory Act;

6. Duration of the Agreement – the negotiators want to know

how long is the agreement usually 24 months and then they

have to be renegotiated but the implementation date is

crucial. The employer wants the duration to be agreed last

the union wanting the agreement agreed first.

If there is not definition of the subject matter and it is left to the parties

where will Trade Unions stop with their demands? There be must

things in the realm of management that are not bargainable and some

in the realm of union that are negotiable. In Germany they have a

statutorily backed system of requiring workers representation at every

level of management including even the Board so every worker has a

voice.

DETERMINATION OF TERMS AND CONDITIONS IN THE PUBLIC

SECTOR

Collective Bargaining presumes private employers dealing with

workers. In this country the public sector outnumbers the private

sector.

What is the public sector?

With reference to the employer is so we may say that the government

is the employer because the public servants are employed by the

government. The Trade Disputes Act defines at Section 27 defines

Public Sector to include

1. The government

2. Local Government Authorities

3. Any Body incorporated or established for public purposes by

Act of Parliament;

4. Any body declared by the Minister or public gazette to be

within the public sector.

What does Government mean – the fact that one works for the

government need not mean that one is employed by the government.

What is the bargaining machinery in the public sectors?

There are a number of possibilities:

Firstly there is a provision in Section 27 of the Trade Disputes Act

which empower the Minister in charge of labour matters to establish

machinery for the determination of terms and conditions of

employment for any group of person in the entire public sector. This

means from the policy perspective that the govt meant for the terms of

civil servants to be determined different.

Where special legislation is enacted to establish the procedure for

determination of terms. A good example is found the Teachers Service

Commission Act which establishes the Teachers Service Remuneration

Committee which has the onus of reviewing teachers remuneration

from time to time. The Teachers Service Remuneration Committee

(Section 13) is established by the Minister and constitutes a Chairman,

five persons to be nominated by the Teachers Union another 5 persons

nominated as follows 3 by the Minister and 2 by the TSC. These 10

people under a chairman appointed by the Minister sit in the

Remuneration Committee.

Where there is special legislation with money implications they can

pass legislation that authorises expenditure.

Where the ordinary system operating in the private sector applies:

within the area of public sector there are sub sector which deal with

union in the ordinary way i.e. Telkom Union, Local Authorities Workers

Union is another one and the Universities are pushing in that direction.

Where remuneration is fixed through special commissions appointed

by the state it is a British tradition inherited that from time to time the

govt appoints commissions to look into matters. The commission

filters opinion without taking any responsibilities for it.

Parliament option: Parliament has a service commission which can

agree on their own skills and pay accordingly.

In some of the parastatals with trade unions their voices are heard but

for civil servants they don’t have representations.

Without an organised system of worker representation these systems

cannot operate very well.

LEGAL FRAMEWORK FOR COLLECTIVE BARGAINING:

There is need to explore history and theory. Suggest to discuss from

comparative perspective:

WHAT ARE THE FUNCTIONS OF LAW IN SOCIETY?

Law supplies framework for govt

Makes it possible to live in society

Live in free democratic societies with values

Social functions

Law protects the rights and freedoms of people and in so protecting

helps to enforce obligations in society. Naturally where there is a right

there is a corresponding duty. There are at least 3 sources of rights.

Natural rights like human rights, legal rights created by the law itself,

social rights which we create through our interactions for example

rights in contract. The best framework for enjoyment of rights is the

law. the first function of law is thus protection of rights.

Promotion and protection of freedom is the second function of law.

A third social function which the law serves is protection of legitimate

expectations. All human beings acting as individuals and as groups

have social political interest in the society. They have expectations.

Because society is complex and is full of people, these interests tend to

clash, i.e employers and trade unions and even interests of individuals.

It is the law that sorts and protects the legitimate interests and

sanctions those others. By this we get regimes of compensations and

social contracts, arbitration and conciliation etc.

Legitimate interests are not just clashing but are in direct conflict i.e.

industrial warfare but the law must process a way to deal with these

conflicting interests.

A fourth function of law is social control and social change. Social

control is the maintenance of law and order social change is the

transformation in society, society needs to change to grow. Law tries

to manage the change through social engineering. That social control

and social change connects with regulation whether economic or social

regulation.

Economic or Social Regulation:

Regulation is the substitution of commands or controls for the

economic signals of the market place.

Govt imposes regulations in the belief that it will increase efficiency.

When one leaves a system unregulated, they confront failure and

some regulation must come in to correct the inefficiencies.

In collective bargaining apart from the fact that we want to protect the

expectations of the parties the government will have to intervene

because problems always arise and govt must intervene in society.

In Britain there has been a claim in the last 100 that collective bargain

is voluntary and the role of the law is absentionist or non-

interventionist. Collective bargain developed outside any legal

framework. The law in Britain started intervening in the employment

relations to do the following things:

1. To fix wages which historically was always the function of the

state through magistrates;

2. The law started intervening to enforce the employment

contract – although employer had a lot of power over the

employee, there were limits to what the employer could do in

some situations;

3. Law intervenes to regulate working conditions;

4. But mostly to prevent the development of trade unions which

did not succeed.

Legal intervention therefore in collective bargaining in Britain started

early with a prevention of the mergence of trade union with the need

to control those trade unions with some interventionist rules.

When the British suggest that industrial relations that collective

bargaining was voluntary, they are not saying that there was no law

but what they are saying is that intervention of law was minimal,

indirect and gradual. The system of collective bargaining was to the

voluntary or private arrangement between the parties i.e. employers

and trade unions and that the law does not prescribe either the level,

the form or the content of collective agreements which continue to be

regarded as not giving rise to enforceable obligations between

employers and trade unions.

Collective agreements are not contracts but are agreements that are

binding and expected to be enforced through non-judicial methods the

most primary being through the strikes or lock-out on the part of the

employer. When one thinks of a collective agreement, it is a triangle

relationship, firstly the employees and the employer but then the

trade union only enters into this agreement only because it has

members who are part of the contract.

There are a number of reasons why we cannot sustain the argument

that in Britain collective bargaining is voluntary.

1. Historically from 1800 we find very many laws passed in

Britain either to stimulate development of collective

bargaining or to support institutions that made collective

bargaining possible; This include the anti combination Acts of

1924, Trade Union Act of 1871, the Trade Disputes Act of

1906 and Conciliation Act of 1896.

2. The law has attempted at various times to provide residual

machinery to facilitate industrial relations and minimise

industrial conflict. For example Britain has always had wages

councils which were used to aid collective bargaining in under

unionised trades; The Conciliation Act was passed in 1896 to

provide a machinery for conciliation of industrial disputes and

since that date there has existed a machinery in various

forms for industrial conciliation.

3. The industrial courts Act was enacted in 1890 to provide

machinery for Industrial Arbitration and there has been this

machinery every since. Since 1975 they have established

something called ACAS Advisory Conciliation Arbitration

Services.

4. It has been a common practice in statutes establishing or

governing major employers in the public sector to find a

clause placing them under a duty to seek consultation with

appropriate trade unions with a view to concluding

agreements for establishing joint industrial negotiating

machinery thereby establishing a system of collective

bargaining.

There is a technical theory that challenges the theory of absenteeism,

the British are very proud of the claim that collective agreements are

not enforceable. It is mostly because of this that they claim that their

system is voluntary and not enforced by the law as it were. But it is

hardly voluntary or absentionist. From the time of the case of Ford

Motor Co. Ltd V. Amalgamated Union of Engineering and Foundry

Workers [1969] 1 WLR 339 This is the first case which established

unequivocally that collective bargains are not enforceable because the

parties don’t intend them to be legally enforceable. From 1971 to

1974 through the Industrial Relations Act the govt changed the law

and created a presumption that collective agreements were intended

to be legally binding.

What rights and obligations are created between the employees and

the government of Kenya and the employee

Between employee and his foreign employer

Does the government of Kenya owe a duty to someone working abroad

by way of their own private arrangement? If there is a duty, what is

the nature of the duty and to who is it owed?

Human Rights

Wages and remuneration

There are core rights and labour conventions

The right of migrant workers

The Iraq Saga

Is a duty of care owed by the employer? Yes

What about the Iraq Government, does it owe them a duty of care to

give them safe passage?

Who are the capturers and who answers for them?

In comparing collective bargaining and collective arguments with what

is happening in other jurisdictions

1. The legal status of trade unions

In Britain a trade union is an unincorporated association without a

distinct legal existence but in fact and for historical reasons trade

unions in Britain enjoy most of the benefits and suffer many of the

burdens of incorporation. In other words for a number of specified

purposes they are treated like incorporated bodies but in reality they

are not legal bodies. The legal nature of a trade union is based on an

association of individuals bound together by a contract of membership.

They are subject to an array of provisions in what they can do and

what they cannot do. The courts in particular for a long time wanted to

control trade unions but on the other hand they did not want to give a

legal status to trade unions as this would make them too powerful.

In Australia for example there is legal provisions that trade unions have

legal status which means they can enter into contracts, sue, be sued,

own property etc.

The Trade Unions Act requires the trade unions to be registered but

what rights and duties are created by the registration?

Our jurisprudence is underdeveloped and we keep falling back on the

residual law which is the common law but in England the law has

completely changed.

The duty to Bargain:

In most of the continental European countries, Australia and New

Zealand a legal duty was imposed on employers and trade unions to

bargain and not only to bargain but to do so in good faith. So in these

countries there is a clear legal duty. Good faith in bargaining means

that both sides look at what is available and come to an amicable

agreement. Eventually the duty to bargain and bargain in good faith

can be reduced to the following propositions

1. The employer must recognise the trade union for collective

bargain purposes

2. Disclosure of information for bargaining purposes – the

information needed for bargaining purposes must be availed;

3. The duty to consult – this applies on both sides on part of

union and part of management;

In Britain Union recognition for collective bargaining purposes is not a

matter for legislation. In other words there is no law that requires an

employer to recognise a trade union for purposes of bargaining. It is a

question of practical industrial relations. Here they provide the Trade

Union Act and give it recognition which is a proper recognition of

dispute. One can use the procedure to solve the matter. They also

provides that if an employer elects to recognise a trade union there are

certain very important legal consequences follow. The law provides

that recognition can be a proper basis for a trade dispute.

A recognised trade union has the following rights:

1. Right to receive bargaining information; you do not have to

recognise a union but if you do, you must have the right to

receive bargaining infor.

2. Right to be consulted on impeding redundancies;

3. Right to appoint safety representatives;

4. Right to receive information and to be consulted about an

impeding transfer of business; consultation is very important as

transfer always means loss of jobs;

5. Right to be notified about matters relating to company pension

schemes – workers are supposed to be represented in all pension

schemes;

In Kenya we are entitled to information but the procedure is complex

since the law expect that the employers will recognise trade unions for

bargaining purposes. A number of problems arise, sometimes the

employers refuse to recognise trade unions as recognition comes with

certain rights, there is also competition among Trade Unions and the

Employer may not know which one to deal with. For reasons based on

policy if the voluntary procedure fails, there is a procedure in which

unions can declare recognition disputes and the Minister is empowered

to deal with the unions administratively. The Minister if he finds that

they are duly constituted can order the employer to recognise the

union.

SYSTEM OF ARBITRATION:

The resolution of disputes is the most important aspect of collective

bargaining and industrial relations generally. Dispute resolution is

principally done through conciliation and arbitration. In Britain the

system of arbitration is built towards conciliation and arbitration. The

system has always been voluntary – the system is provided by the

consent of the parties, they must consent to conciliation and to

arbitration. From 1975 through the Employment Protection Act there

is a service for handling conciliation and is established under

Employment Protection Act and its functions are

1. Collective conciliation – refers to conciliation between trade

unions and employers;

2. Individual conciliation – personal grievance procedure;

3. Arranging arbitration – ACAS goes through the process of

determining what cases require arbitration and provide for

conciliation, but they have to appoint independent arbitrators

4. ACAS provides advise on industrial relations and advise on

disputes specifically;

5. ACAS has powers of enquiry which may be into industrial

aspect or particular industries or firms these powers can be

exercised without being solicited;

6. ACAS develops codes of practice for various purposes – a code

of practice is a best practices approach in industrial relations

but it is not legally binding;

There is a body under the Employment Act called the Central

Arbitration Committee and ACAS refers matter to it. Both conciliation

and arbitration are functions that are voluntary and if one does not

wish to use them one can proceed to the industrial court.

In much of continental Europe the civil law traditions have long

traditions of having labour courts and labour codes called codes of

rules and regulations and they provide a special procedure for dealing

with labour disputes. In Belgium there also voluntary arrangements

provided for conciliation and arbitration before matters can go to court.

there are special courts that sort out industrial disputes. Even in these

places they still fall back on conciliatory methods of solving the

disputes.

In Australia and New Zealand there is arbitration which is compulsory

in all British colonies, they introduced compulsory arbitration but with a

provision for voluntary arbitration.

In Kenya we have compulsory arbitration. If something is called a

trade dispute, one does not decide if it will go to industrial court or not

it will end there anyway. What we do to encourage parties to agree on

procedures and to create machinery for resolving their disputes. The

Minister is encouraged to use the procedures which the parties have

agreed to and only when this fails can the Minister declare a dispute

but even before this the Minister may try several methods to solve the

disputes using the methods which are voluntary only after failing in

this that he hands over the matter to the industrial court. by this time

it becomes compulsory because the decision of the Industrial Court is

final and it is binding.

STATUS OF COLLECTIVE AGREEMENTS:

The issue is the legal enforcement of the collective agreement itself.

The agreement is between the employer and the trade union whether

a single employer or a union of employers not the individual

employees. The question that concerns us is on the effect of this

agreement as between the parties: there are two legal opinions

1. The no contract View – this view holds that a collective

agreement is not a contract which can be enforced in law;

2. Contract View – collective agreement is an enforceable

contract.

If we hold that collective agreements are not contract, what are they?

What obligations does it create between the parties. On the other

hand if we say that it is a contract, can a non legal body

BRITAIN

In Britain the legal position of collective agreement can be described or

analysed in 3 phases.

1. The Common Law Phase and accordingly at common law for

an agreement to be legally binding it must be intended by the

parties to create a legally binding relationship. There is no

intention to be legally bound in contract. It is usually

concluded that collective agreements are not intended to be

legally binding and are therefore not legally binding contracts.

2. The phase commencing with enactment of the Industrial

Relations Act in 1971 – that Act created the presumption that

where the collective agreement was made in writing then it

was presumed to be intended to be legally binding unless

there was an express clause stating that that was not the

intention.

3. In 1974 the law was changed through the Trade Unions and

Labour Relations Act of 1974 the presumption was reversed

and Section 30 of the Act now provided that a collective

agreement entered into after the 16th September 1974 shall

be conclusively presumed not to have been intended by the

parties to be a legally enforceable agreement unless two

conditions obtained

(i) It was in writing;

(ii) Included a provision to the effect that the parties

intended it to be legally enforceable.

In virtually all other European and developed countries the collective

agreement is a contract and Britain is the odd one out.

KENYA

This matter has not been addressed in court and is not specifically

provided for in legislation but we can draw certain inferences from the

decisions of the industrial court. it is expected that collective

agreements will be self enforcing and if not they can become the

subject matter of a trade dispute or of an appeal by the Minister to the

Industrial Court. but should there be a refusal to respect the terms of

a collective agreement they go to the Minister and then to Industrial

Court and the award of the Industrial Court is legally enforceable. We

tend to turn the collective Agreement into a trade dispute and

whatever award the industrial court gives becomes legally enforceable.

The Industrial power to enforce its orders but the industrial is not a

court of record and has not power to act over contempt but what it

could do is to make an application to the High Court asking High Court

to enforce its orders for it.

The Procedure of Collective Bargaining, legislation of agreements and

Dispute Resolution:

Our law are inchoate but we still reflect our tradition of voluntarism

and legislation are both found in our procedures. The following legal

provisions are important to note

1. The right to associate and the freedom to organise is

guaranteed in our constitution and in addition we are a

member of ILO and our freedom to organise is circumscribed

by the Trade Unions Act although it was supposed to be

descriptive it can be used to deny trade union registration;

2. The recognition of trade unions if provided for in the Trade

Disputes Act but bargaining cannot commence until the union

is there;

The Kenyan system is a hybrid, we have voluntary but we have legal

recognition under certain circumstances.

The procedure through which a trade union can be recognised is 4(4)

(1) and 5(2) of the Trade Disputes Act.

3. The Trade disputes Act Section 9 provides an elaborate

framework for dispute resolution. Section 9 provides that

collective agreements must be lodged with the Minister within

14 days of their conclusion and it is the responsibility of the

employer to supply the Minister with the collective

agreements. FKE does most of this for the employer;

Sub Section 2 of S. 11 a collective agreement shall not take

effect until it has been accepted for registration by the Industrial

Court. and for this purposes S 11 (1) the Industrial Court must

maintain a register of collective agreements which must be

accepted for registration. S. 11(5) says the Minister has a right

to object to the registration of a collective agreement in which

case he must supply the reasons for his objection. Where he

does the industrial court is under a duty to summon all parties to

the agreement and hear them S.

If there is no object, still the power of industrial court to register

a collective agreement is an independent power so that the court

must be satisfied that all relevant legal requirements have been

met. Among the most important is Section 14(10) of the Trade

Disputes Act this section empowers the Minister for Finance to

issue guidelines or other directives on wages and salary levels

and other terms and conditions of employment. If such

guidelines have been issued collective agreements must conform

with these guidelines or guidelines under this Section.

Under Section 12 the Industrial Court is empowered to do any of

the following 3 things with collective agreements

1. Accept a collective agreement for registration;

2. To accept it for registration with amendments and with the

consent of the parties;

3. To refuse to accept a collective agreement for registration

and refer the agreement back to the parties.

IMPLEMENTATION OF COLLECTIVE AGREEMENTS:

A collective agreement cannot take effect until it has been accepted

for registration by the Industrial Court.

Section 28 and 29 of the Trade Disputes Act grants a Minster very

broad powers in relation to agreed procedures, collective agreement

and in relation to an award of industrial court. these Sections

empower the Minister to order adherence to procedures that they have

agreed to, to respect the terms of agreement and can order parties to

respect the award of the Industrial Court which it has already given.

Section 32 allows any aggrieved person to appeal to the industrial

court and when this is being done the court may confirm, vary or

revoke the order. The court gives an award and remember that an

award is legally binding so this is a way of enforcing collective

agreements.

The problems that arise relate to disputes of right i.e. settle claims

relating to recognised terms of employment. Where there is a

question of dispute Section 33 says that

The Minister in the first instances that the settled claims be respected

but if the matter is not respected he can refer the matter to the

industrial court to be settled.

Dispute Resolution Procedure

Disputes are conceptually classified into two

1. Disputes of right; and

2. Disputes of interest – this is where parties are hoping to

negotiate new and changed terms of employment;

Ideally these two kinds of disputes should be treated separately the

reasons being that disputes about rights are amenable to legal

adjudication while disputes about interest are not. Secondly disputes

about rights can be brought by employees and don’t require trade

unions to bring them, an employee can litigate. In most jurisdictions

the interests are handled separately but in this country we treat all

disputes in the same manner.

Disputes under Section 2 are defined

All disputes by provisions of Section 4 are reportable to the Minister for

Labour. When the Minister receives the disputes under Section 5 of

the TDA he has a number of options of what to do with the disputes but

he is required to consider the trade dispute and in particular to consult

a tripartite committee i.e a rep of workers, rep of fke and cotu chaired

by an independent person. After this consultation the Minister has

several options on what to do. The major role of the Minister is to

promote settlement of dispute by whatever method. Among the

options that the Minister has are

1. He may find that the dispute cannot be dealt with under the

TDA and may inform the parties as such;

2. He can refuse to accept the report of the dispute or may

refuse if he feels there is a collective agreement to deal with

it

3. or accept report of the dispute and proceed to make the

necessary effort to resolve it;

4. refer the dispute back to the parties if he things fit and

propose to them useful methods they may be able to apply to

resolve the dispute by themselves

5. May endeavour to effect conciliation of the parties;

6. He may cause an investigation into the trade dispute either by

himself or an investigator to look into the dispute

7. He may refer the dispute directly to the Industrial Court.

Section 5(2) Minister is empowered to deal separately and

administratively with recognition disputes.