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 these views derive from the views of German jurists in the early
decades of the 20th 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
i.e 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
There are other developments that
impact on the terms of the contract:
1.
Terms that are implied in the contract
2.
Incorporation of collective agreement, that is an agreement between an
employer(s) 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.
Their function is to
advise the minister on forming councils for particular industry and to make
recommendations on minimum wage. They 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 recommendations, these are gazetted and become the minimum
wages in 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 led
to a reduction of the employees actual or potential earning.
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 employee 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 recognized 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 employer 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 terms 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 an 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 employee 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 term 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 we 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
incapability.
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 that 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
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 economic dismissals which result in social
cost do 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 in the following:
- 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.
- 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.
- 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.
- A clear regulatory framework can be viewed as a mechanism by which employers may be protected from excessive litigation cost.
- 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.
- the Government is concerned 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 it 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 drunk 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 44 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 office 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 employees 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 reflection 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.
Protection of essential services
Industrial Court and its work
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.
What
goes where is not clear.
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 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.
This list is not exhaustive.
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 years 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 ever 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.
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