Framework of Industrial Relations in Kenya

Players in Labour Relations in Kenya

Labour relations matters in Kenya is regulated by three bodies. These are the Central Organization of Trade Unions of Kenya, which represents the interests of workers through trade unions; the Federation of Kenya Employers, which is the apex bodies of employers and the Industrial Court which assists in settling disputes.

Central Organization of Trade Unions of Kenya (COTU)

All trade unions in Kenya except Kenya National Union of Teachers (KNUT) are affiliated to COTU.

The objectives of (COTU (K)) are to:

Improve the economic and social conditions of all workers in all parts of Kenya and to render to them assistance whether or not such workers are employed or have ceased to be employed.
Assist in the complete organization of all workers in the trade union movement
Organize the structure and spheres of influence and amalgamation of trade unions affiliated to COTU
Assist in settling disputes between members of trade unions and their employers or between trade unions and their members or the employees of one union and the employees of another union or between two or more trade unions
Encourage the principle of the development and maintenance of good relations between employees and employers
Form area offices of COTU in any specified geographical areas of Kenya where there are braches of registered trade unions
Secure adequate representation on government boards and committees dealing with labour legislation on matters affecting workers
Establish and maintain funds by means of membership fees monthly contribution donations subscriptions levis and by borrowing on such securities and terms as may from time to time be arranged by the executive amount as may be determined by the minister for labour.
Set up appropriate committee to provide training education and other facilities and enterprise for the advancement of workers and the labour movement

Functions of COTU

The functions of COTU follow from its objectives. The reader is cautioned not to confuse objectives and functions though they may appear to be similar. The major functions of COTU are:

Maintaining and advancing the terms and conditions of employment as well as improving the physical working conditions of all workers in all parts of Kenya.
Safeguarding and increasing employment opportunities
Conducting industrial disputes, raising and disbursing funds, in this connection, it assists in settling disputes between members of trade unions and their members or employees of one union and employees if another union or between two or more trade unions:
Settling up appropriate committees to provide benefits and welfare activities such as education, training, legal aid and sickness benefits;
Increasing workers’ participation in the control of industry
Organizing the structure and spheres of influence and amalgamation of trade unions affiliated to COTU;
Maintaining adequate representation on government boards and committees dealing with labour legislation on matters affecting workers;
Assisting the complete organization of all workers in trade union movement
Serving as agencies for the purpose of commenting on economic, social and political affairs

Federation of Kenya Employers (FKE)

The Federation was formed as a central body of employers in 1959. It is registered under the Trade Unions Act (Cap 233) of the Laws of Kenya. It is the apex body of employers in Kenya.

Objectives:

Its principal objects are to:

Promote good industrial relations between employers and their employees through their trade unions;
Encourage fair labour practices among the employers;
Provide forum for consultation between and among members;
Collect and circulate information and statistics and advise members on their rights and obligations on employment matters
Initiate, promote and support legislative measures which are likely to benefit employers or to promote their interests;
Represent, advocate and defend the interest of employers generally.

Membership

Unions mainly depend on membership participation and they must of necessity include service. FKE membership is open to all employers in both public and private sectors upon payment of membership fee, an annual subscription and a building levy. Both the annual subscription and the building levy are based on the number of employees engaged by the employer. FKE is a member of ILO, International Organization of Employees (IOE) and Pan-African Employers Confederation (PAEC). There are four main categories of membership for the purposes of negotiations. There are several rates for trade associations, religious and charitable organizations.

Membership is not constant since new members join, others withdraw while others may be expelled. The four categories of membership are:

Individual Firms and Companies. These are the business organizations which prefer to negotiate or deal with the trade unions directly. They may or may not have common industrial or trade interests with other business organizations.
Groups of Companies or Firms. These are individual member companies or firms, which are voluntarily grouped together for the purpose of negotiations with their commonly recognized trade union. They are organizations with similar industrial or trade interests.

Employer Associations. These are associations registered under the laws as employer associations but they are affiliated to FKE for purposes of industrial relations. They have their own constitutions and rules. Some of them receive secretarial services from FKE and some provide their own secretarial and administrative services.

Statutory Boards. These include parastatal bodies. They negotiate or deal with trade unions in the same way as any private company and they participate fully in the affairs of FKE.

The structure of FKE

The Management Board comprises of thirty members, who represent the broad industrial and geographical interests of the membership. The Management Board controls the business and affairs of FKE. The board may delegate its powers as it may see it fit to the Executive Committee which consists of the Chairman, two Deputy Chairmen, three Vice-Chairmen, the immediate Past Chairmen and not more than twenty-four members elected annually by members in addition to co-opted members. The day to day running of FKE business and affairs is the responsibility of the Executive Director who is also the Secretary to both Management Board and Executive Committee

Functions of FKE

FKE is the only representative of employers recognized by the Government. Its functions are:

Representation on Tripartite and other Boards. FKE is recognized by the Government as the employers’ representative outside the civil service. FKE serves and represents the interests of employers on the following tripartite boards:
- The General Wages Advisory Board and other sectoral Wage Councils
- The National Social Security Fund Advisory Board
- The National Industrial Training Council and its various committees
- The Tripartite Committee dealing with Trade Disputes
Secretarial services. FKE acts as secretariat to a number of trade associations.

Consultancy Services. FKE’s Executive staff assist members in negotiations with their trade unions by providing up-to-date data acting as their spokesman or by agreement as chairman of joint negotiating committee; drafting collective bargaining agreements and following them up for registration by the Industrial Court. They also assist members at conciliation meetings, prepare memoranda in respect of trade disputes and represent them in the Industrial Court.

FKE offers training to the staff members and the executives of its member’s organizations. This is in line with their belief that training of personnel is necessary for the promotion of productivity and good industrial relations.
Industrial Stability. FKE is one of the social signatories to the Industrial Relations Charter which is a social contract between the social partners government, employers and workers. It spells out the rights and responsibilities of the signatories in the management of industrial relations in Kenya.
Creation of Employment. FKE has been associated with the tripartite agreements for temporary relief of unemployment.

Dissemination of Information. One of FKE’s major functions is to keep its members well informed of the developments in matters relating to employment, like changes in labour laws, and the policy decisions which are of interest to them.

Industrial Court

The Industrial Court is probably the most important feature of labour relations in Kenya. The Industrial Court was established under the Trade Disputes Act (Cap 234) of Laws of Kenya. Until January, 1989, the Court had only one judge, assisted by members of the Court, however another position for the second judge was created so as to ease the workload of the court.

The main objective was and still is the settlement of trade disputes which are referred to it by either parties (employer and employees) or the Minister for Labour when all other procedures have failed. The Court is empowered to make award (s) to the aggrieved party of parties. The award is final and there is no provision for appeal; the decisions are binding.

When making decisions, the Court takes into consideration the national economic conditions, the financial position of the employers and the existing collective bargaining agreement.

Presentation of a case to the Court involves the employer represented by the FKE, the employee(s) represented by a union and the Industrial Court Judge presiding and assisted by members of the Court. The procedures are different from those found in the Courts of Law, although order must be maintained. Some of the matters settled through the Court are wrongful dismissal which leads to reinstatement (not all the time), salary/wage disputes, redundancy and any other disputes unresolved by voluntary negotiating machinery so long as they are within the existing CBA. In this respect, the Industrial Court acts as a bridge between the employer and employees in settling disputes and ensuring that industrial peace prevails in the county.

Tripartite Committee – means a committee consisting of a representative of the Minister, who shall be the chairman, and two other members appointed by the Minister, one from a panel of persons nominated by or on behalf of organizations of employers, and the other from a panel of persons nominated by or on behalf of organizations of employees.

Establishment of Industrial Court

The first industrial court was established in June 1964 by virtue of Trade Disputes Act of 1964 was later repeated on June 8th 1965. Section 14 of Trade Disputes Act gives powers to the President to establish an Industrial Court: Today we have two industrial courts in Kenya:

The first court was filled with disputes which was making them to take long. This called for an establishment of a second court.

Functions of I.C.

The I.C. adjudicates in Trade Disputes which have complex questions and issues of economic social & political nature.
Trade dispute is a dispute or a difference between employers and employees, employees & employees.
The dispute must be connected with employment or no employment.
It may also be concerned with conditions of employment.

Membership/Composition

Judges

The court consists of 2 judges of the High court appointed by the President of the Republic of Kenya for a term of not less than 5 yrs.

The qualifications of the persons appointed are the same as those of High Court Judges and has also been an advocate of a high court for not less than 7 years.

Members

There are 8 members of IC appointed by the Minister of Labour after consultation with FKE and COTU.
Appointments is for a term of not less than 3 years.
One of the members is the Deputy appointed to the Judge by the Minister for Labour
Where expedient (useful) the Judge may appoint two accessors one representing the employers and the other representing employees.
Where members are unable to agree as to the award or decision in any matter, the matter is decided by the Judge of the Court acting with full powers of the Umpire.
The award is final and there is no provision for appeal – the decision is binding.
When making decisions, the court takes into consideration the national economic conditions, the financial position of the employees and the existing collective bargaining agreements
Presentation of the case to the court involves the employer represented by the FKE, the employees represented by a union and the industrial court judge presiding and assisted by the other members of a court.
The judges and other members are eligible to re-appointment.
The appointments are notified in Kenya Gazette which also states terms for which such appointments are made
The IC is not part of Kenya Judiciary Court. It is a special court created under the T.D Act and is entirely from the vote of the minister for labour
The decisions taken by the industrial court are not necessarily based on legal arguments and technicalities alone. They go beyond the legal rights of the parties and stretch deeply into the spheres of economic, social human relations and political necessities which keep changing.
The success and the ad justification of the courts lies in the fact that it is not too regulastic in awards of decisions.
Although the court is financed by the Ministry of labour it is very independent hence is under no influence whatsoever either of the Ministers for labour or any other development except to the extent that the court has to take into consideration wages guidelines issued by the Minister for Finance.
The Judges are of the same status as High Court Judges.

Industrial Court Procedures

Industrial court procedures are made by Chief of Justice of Kenya for the purposes of regulating the procedures of Industrial Court.
The court may regulate its own procedures if it thinks fit on other matters which may not be covered by rules.
One does not have to be a lawyer to be submitted in this court ie you must be accredited by your employer or Trade Unions.

The Industrial court operates more or less like any other court with all the formalities. But it has its own rules which may be stipulated in Legal Notice No. 186 of 1965. However, it should be noted that it has deliberately left out the swearing on oath practice in order to create a relatively relaxed atmosphere in the court room.

The disputes referred to the Industrial court must be either through voluntary signing of Form A by the parties to the dispute or by the Ministers order under section 8 of the Trade Disputes Act.

The court cannot however register any case unless there is a certificate from the labour commissioner under Form `G’ and Form `H’ signed by the Minister to the effect that the dispute had been reported to the Minister and that the voluntary settlement machinery had been exhausted.

The rules also provide for the parties to make written submissions.

The court also has powers to sermon witness to appear before it and give evidence on both or to furnish in writing such particulars as it may require and produce any relevant documents.

At its discretion the court may admit evidence of affidavit (written statement). The rules also allow lay down procedures where is a party wishes to appeal to the IC or against a Minister’s decision.

There are rules also covering the interpretation of applications and the rectification of the clerical mistakes including errors of omissions.

The proceedings to the court are governed by the rules of the court and in conclusion, the court would give its judgement by way of awards to either of the parties.

In cases of dismissal of an employee, the court can award reinstatement or compensation for wrongful loss of employment to the extent of maximum of 12 months wages. The court awards are final and cannot be challenged in any other court. There is no appeal failing to comply with court order regarding reinstatement is an offence and subject to a fine of 10,000/= for every month one fails to implement the order.

Finally, the industrial court has the responsibility to consider and register all the collective agreement entered into by the unions and employers and similarly, the objective is to ensure that the wages agreed must be in line with the wage guidelines.

Any collective agreement which has not been registered with the court is illegal and its implementation is an offence and subject to a fine not exceeding Kshs1,000/=

Pre-Industrial Court Procedures

Parties are required first to result to their own voluntary laid down machinery for solving disputes.
In all recognition agreement as in disputes from collective agreement and an elaborate procedure be specified to deal with collective claims and grievance procedures for individual complaints.
The highest forum at the parties own level is usually the central negotiations council or the Joint Industrial council.
If a deadlock is recorded at this level, then either party is free to report the existence of a trade dispute to the Minister for labour.
In order to forestall any industrial action either party may report an existing or apprehended trade disputes to the Minister for Labour. This is more so especially on essential services such as the Docks, Banks, Fire & Ambulance services and teaching.
These services are too essential and that is why the Minister is too keen to stop strikes in these areas.

Why workers prefer industrial court as opposed to other courts?

Consideration taken into account by the industrial court are much wicker than mere legal arguments.
The court puts into consideration aspects of industrial relation practices.
The court is not too legalistic although legal arguments are also given weight and considerations.
The court does not allow legal technicalities to defeat end of Justice.
Parties do not have to pay any court costs or litigation fee.
The intention of the court is that no impediments should be placed in the way of parties in bringing their cases to the industrial court.
Costs would be an obstacle if introduced and there being no court fees, hence the issue of paying cost to parties when one has lost does not arise.
The IC resolve is final and legally binding and any violation against sanctions of the IC is incriminating.
The IC considers the bounds of fairness and justice by considering the rights of both partners involved in a dispute.
The award compensation enhances good relations.

Enforcement of awards or court decisions

In disputes over collective agreement the award of the court becomes effective from the date it is made. If an employer fails to implement (comply with) an industrial court award, workers action will not be declared unlawful by Minister.
For every time you fail to implement courts decision there is a fine of 10,000/= per month or part of the month.

Submissions

Once the disputes has been accepted by court, parties appear before the Judge for the mention of the dispute.
The first appearance is just a mention, then they are given time to put their submissions in support of a case.
Claimants who are usually Trade Unions are given the final chance then the respondents usually management provide answers.
When the court makes awards on salaries it ensures that the rewards do not militate against creation of employment.
The court therefore has a very difficult task that calls for people of great integrity and high moral standards. Thus magistrates who are likely to be bribed and make the poor suffer are not required.
The court ensures that workers get a share of their sweat by improving their standard of living, while shareholders expect to earn reasonable return either on their capital. Therefore the court has to balance between employees and the shareholders.
The IC also puts into consideration depreciation of machinery and even replacement of machines, expansion of enterprise and creation of new jobs. Hence the court’s decisions have to be fair and balanced.

The parties are usually required to comply with the following provisions:

Each party (within 7 days) sends a memorandum to court (that is after mention)
- In the case of workers or trade unions it sets out: the nature and full particulars of each item of the claim involved; the classes of workers involved in the dispute (s); such submissions as the claimant party may wish to make in support of its claim.
- In the case of respondent usually management they will: send such reply as they may wish to give in the item of the claim raised by the claimants memorandum; an admission of such submission set out in the claimants parties memorandum as the respondents admit and denial of any such submission as the respondent party does not admit; any submissions which the respondent parties may wish to make in support of its reply i.e. quote authorities which make you take your stand.
Parties are required to submit the names of witnesses they wish to call during the hearing.

The hearing date is also fixed at the first mention of the dispute.

Parties are required to table all documents which they are going to align on with written submission (usually in the appendix)
The time for parties’ submission is usually 4 weeks after mention.
Written submissions are delivered through court officials.

The parties may apply to the court for permission to extend the time for them to give their submissions.

Presentations

On the hearing date of the dispute the claimants start the hearing by making their opening submissions both written and verbal.
This is followed by the respondents who again present their opening submissions written and verbal
Parties emphasize on their strong points in their cases and are expected to highlight and attack the weak points in each others submission
During the opening submissions and final submissions and infact at all times, parties should be prepared to answer fully any questions directed to them by the judge.
The evidence of the witness is given on oath or affirmation
The party calling the witness leads the evidence and the other party then cross examines the witness with a view of testing his credibility
After cross examination, the party calling the witness may re-examine the witness to eliminate any confusion that may have been caused during cross examination
During re-examination, the party is not allowed to introduce any new point to previously brought up by witness
The final submissions are made by parties after the evidence has been given by witnesses
Claimants also sum up their cases then followed by respondents. After the hearing the count reserves its judgment and the award of the court is announced in due course on notice generally within four weeks after the hearing has been concluded.

Summary of the role of IC in industrial relations

It accepts the collective agreements for registration for it to be legally recognized and implemented
It determines and verifies the desirability and legality of collective agreements before they’re implemented. This is done through amendments and further negotiating between the concerned parties
It plays a big role in the settlement of trade disputes and matters relating thereto
Whereupon there an award to be made after the settlements of a trade dispute this is in domain of the industrial court
When there’s need the industrial court can also investigate matters related to trade disputes with the purpose of gathering relevant evidence.

Collective Bargaining

Definition

Bargaining: A bargain is an agreement and it takes at least two parties to make a bargain

Collective bargaining: Are those set up agreements between managements, employer’s associations, or joint employer negotiating bodies and trade unions to determine specified term and conditions of employment for groups of employees. The process of collective bargaining occurs only when a trade union is involved. Hence the term only applies to relations between the employees (trade union) and the employers. It is a long lasting process because once it is negotiated it is reviewed from time to time as conditions may necessitate.

The Nature of collective Bargaining

The nature of collective bargaining is that workers do not negotiate individually and on their own but do so collectively through trade union representatives (officials)
It therefore only takes place where there is a trade union recognized by management
Once there is a union recognized by management, cannot deal with workers on an individual basis.
Collective bargaining agreements should aim to provide the basis for maintaining a good employee relations climate and harmonious relationships with trade unions and employees generally.
Collective bargaining agreements however, can only function where there is:
- Willingness by the workers and their trade union officials to be involved.
- The power to force the employer to accept negotiations
Willingness by management to accept that decisions affecting workers must be agreed on between the two parties before they are implemented.
On top of the above, collective bargaining entirely depends on the political climate.
In Kenya collective bargaining has been trilateral for example wage fixing to satisfy the objectives of management, the union and the government.
This is contrary to what is in an ideal democracy should be happening where we have bilateral.
If collective bargaining has to be fully effective, a favourable political climate must exist. The particular government of the day must be convinced of the collective bargaining’s positive contribution to industrial peace.
If such an attitude of government exists, it will do everything to facilitate the bargaining process like providing machinery for the settlement of grievances and disputes through mediation, conciliation and arbitration.

Collective Bargaining Agreement contents

A collective bargaining results into a labour contract, which is written agreement between the trade union and management.
The contract specifies rules and procedures to be followed by both parties during the contract period.

The contract may have some of its contents are:

Name of the parties (the employer and trade union) duration to be covered by the agreement, provision for its renewal and signatures of the parties officials.
Wage rates and fringe benefits, job classifications and overtime.
Working conditions like permissible breaks, severance pay, timing and
Working shifts.
Union security, like check-off procedures and recruitment of union members.
Job security, termination, promotion, demotion and transfers.
Limitation of strikes, lockouts and picketing.
Grievance and dispute procedures.
Managements rights

Basic of Collective Bargaining Agreement

Communication can be seen as a way of communicating workers expectation, fears, threats, anxieties, promises, rights, duties and limitations.
Sanction and legitimization: involves recognition of the power of the employer generally and the power of the same to provide or impose remedial collective or individual punishment.
Leeway and discretion
1. CBA legitimizes alteration of terms according to circumstances.
2. Inflexible management such as leeway is crucial in allocating work, adjusting labour supply to demands and products.

However, leeway may be crucial for management when an agreement gives power without the duty to enforce it for instance rules on punctuality, the right to search workers when leaving the organization.

Employers may use leeway and discretion to favour certain categories of employees at times of peace to please workers generally.
In times of tension and conflicts, leeway is used to harass and punish un-cooperative elements and reduce opinion leaders to size.

Ideological function – includes use of contracts to legitimize unequal pay, power relations and also employer’s domination, differential payments among workers etc.
is a contract about roles and rules.

What do trade unions bargain for?

What is bargainable?

Mostly this centers around salaries and allowances. However, there is no delivery division between what’s bargainable and what is not.
What is bairgainable is what trade unions succeed in bargaining and what employers concede to.

People bargain for:

Allowances: The most impressive benefits in recent times has been paid through allowances i.e house allowances, leave allowance, travel allowance or reimbursement of these expenses.
- Shift allowance was introduced to compensate for working odd hours e.g night shifts.
- Employers who do not avail transport and canteen benefits are beginning to offer such allowances for instance bicycle.
- In some organization newly-employed employees are given graduate allowances.
- Other allowances include lunch allowance, special duty allowance, cash handling allowance, hardship allowance, entertainment allowance.
Bonuses Allowances: This is dependent on performance while in some countries it’s dependent on status.
- Besides, many companies pay according to overall efficiency or cordial relations or high safety enrolment.
Job Security: A growing area of union concern is job security but the increasing rationalization and automation is causing threat.
Welfare benefits: These include house loans, pay of life group, accident insurance premium of the employer, education of children allowance and facilities, canteen and death benefit schemes, saving schemes which employers make a monthly contribution, gratuity benefits, paid holidays paternal leave for 4 days provided you don,t have more than 2 children.
Other allowances include lunch allowance, special duty allowance, cash handling allowance, hardship allowance, entertainment allowance.

Basis of Collective Bargaining

Collective bargaining process is derived from industrial relations customs or rules or the Industrial relations charter.

Major steps of C.B.

Recognition of each other on the legitimate representation of employers or employees (Recognition Agreement must exist first).
Making of proposals by one party and then counter proposals by the other.

Joint meetings depending on the number of weight of issues.

Failure to reach an agreement leads to deadlock registration thus it becomes a trade dispute
B can’t be compelled, it’s based on the principle of voluntarism.
If you agree on all issues then you sign an agreement (endorsed and sent to the chief Industrial relations officer who looks at the legal and economic implications before taking it to the industrial court which register it.

Collective Bargaining Agreement Formation

Agreed issues are put in a memorandum document when duly signed it becomes a CBA. The CBA will contain specific terms and conditions of employment.
In addition procedures which parties agree to follow in regulating their relationships. This include grievance procedures if one party is aggrieved the procedures for action must be well spelt out.
To be legally enforceable CBAs, have to be registered by the Industrial court.
Once registered by the industrial court the CBA binds parties under it.
Failure to perform by either party gives rise to a trade dispute which is dealt with in accordance with the Trade Disputes Act.
All CBAs differ in matters of details depending on industry and level of employers concerned.

Issues in most CBAs

The CBA has provisions to deal with specific issues as they arise. These can be dealt with under any of the following:

Substantive agreements
Procedural agreements
Distributive bargaining
Integrative and productivity deals

a) Substantive Agreements

These lay down the terms and conditions of employment to be reflected in each worker’s contract of employment.
They include pay rates, working hours, holidays, pension’s schemes, sick leave and retirement age.

b) Procedural Agreements

These lay down procedures which are to be followed in specific situations.
They cover the way in which any dispute can be regulated, the timing and the approach is making substantive agreements.
The purpose is to provide a laid down procedures so that any additional conflict arising out of uncertainty can be avoided.

c) Distributive Bargaining

This is based on the assumption that one party’s gain is the other’s loss.
Usually, each party to any bargain tries to minimize its losses and maximize its gains. Whatever the workers (union) win through collective bargaining, in a way of additional pay or better working conditions the employer must pay for it. But this approach can tend to result to a conflict between the two parties.

d) Integrative Bargaining and Productivity deals

These arise when both parties negotiate without a loss to one another.
This happens when the workers agree to make changes in practices, which will lead to more economical operations and in return the employer agrees to increase pay and improve others agreed upon terms.

Review Questions for Chapter Two

Why do we refer the frame work of industrial relations tripartite?
What is the role of industrial court in industrial relations?
Why workers prefer the industrial court than other courts?
What are the functions of Federation of Kenya Employers (FKE)?
Why may it no be easy to negotiate for terms and conditions of employment where
There has never been a collective bargaining agreement?
What do Trade Unions bargain for?
What are the major steps in collective bargaining agreements?
CBA has provisions to deal with specific issues as they arise. Discuss how these issues can be dealt with?
Explain the contents of collective Bargaining Agreement Contract.

Framework of Industrial Relations in Kenya

Written by PDF Education Editorial

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