labour law lectures
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Consists of all course topics.TRANSCRIPT
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.