LABOUR LAW
INTRODUCTION:
DEFINITION AND NATURE
Labour refers generally to a body of wage earners and includes any person employed in
any industry to do any skilled or unskilled supervisory, technical or clerical work for a
reward, whether the terms of employment contract are expressed or implied
Labour law therefore may be defined as law which relates to workers and work. Labour
law therefore has been established to show relationship between the employee, the
employer and the government in the industrial settings
The discipline of Labour law is defined in part by its subject matter, and in part an
intellectual tradition.
1. Subject matter of Labour law
-Consist of rules which govern the employment relationships. However, a broader
perspective would see labour as the normative framework for the operation and
existence of all the institutions of the labour market.
Institutions of labour market consist of:-
-The business enterprises
-Trade Unions
-Employers organizations
-The state as the regulator/employer labour therefore is specific to those categories of
economic relationship which involves the exchange of personal service for remuneration
What is labour law concerned with
-Mainly concerned with how employment relationship are constituted and which is
primarily based on contract and with how they are regulated and the 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 as unified discipline which has outgrown its diverse origins in the role of
obligations and the regulatory interventions. labour law must establish itself as branch
and it’s more than the sum of its parts.
In the early 20th Century jurists, viewed labour law as the embodiment of social policy in
action and therefore should embrace sociology, social policy and the theory of business
organization.
TITLES USED IN LABOUR LAW
There are a bewildering number of titles that are used in labour law and it’s a question
of choice i.e.
a) Industrial law – which was popular in the 1960s
b) Employment law – which was used in 1970s
c) Labour law – which is used currently.
It is best to think of labour law as a market regulation – it’s a process in which the state
and other players intervene in the market.
SCOPE OF LABOUR LAW
Labour law is concerned with three major areas viz:-
(i) Law which guides employer (management) and their employees
(individuals)
(ii) Law relating to collective relations between employers and
labour unions (Trade Unions)
(iii) Laws relating to the role of Government in the regulation of
factors in labour matters
There have been a number of approaches to the scope of labour law according to lord
Welderbern, a German Jurist
a) The employment relationship between the employer and the individual workers
b) Collective bargaining between Trade Unions and employers.
c) Parliamentary provision, by statute overflows of rights for individual employees -
safety at work right in respect of job security and matters such as equal pay
discrimination.
d) Strike, lockouts and industrial action generally, this is industrial conflict
e) Status of Trade Unions and the role of Trade Union Movement.
Smith and Wood
-In their book, suggest that labour law may be split into 3 three principal areas.
a) Industrial safety law - includes :-Work injury benefits act 2007
- Occupational safety and Health Act
b) Employment law - includes – Employment Act 2007
c) Industrial relations law - includes – Labour Institutions Act 2007
- Labour relations Act 2007
- Employment and labour relation Court Act 2011
PURPOSE OF LABOUR LAWS
(1) Tool for dealing with labour issues - Enable government to deal with
issues affecting industrial relations e.g. unfair practices of unions and employees
(2) Good industrial relations – boosts morale, reduces incidences of industrial
disputes and discipline of workers thereby creates orderliness. effectiveness and
efficiency of economy
(3) Industrial peace – which increases productivity resulting to rapid economic
development.
(4) Industrial democracy – necessary for establishment of good socialist society
by providing on the formation of Trade Unions and employers associations
OBJECTIVES OF LABOUR LAWS
(1) Elimination of industrial action – strives to eliminate strikes and lockout by
providing reasonable wages, improved working condition and settling of
grievances.
(2) Safe guarding the interest of labour and management –by securing the
highest level of mutual understanding and good will.
(3) Harmonious relations – by avoiding conflicts and strife essential for improving
productivity.
(4) Industrial democracy – aims at establishing and nursing the growth of
industrial democracy based on labour partnership in sharing of profits and
management decisions.
(5) Government control – provides for establishment of government controls over
plants and units
(6) Reduction of absenteeism and labour turnover- resulting to enhanced
productivity.
SOURCES OF LABOUR LAW
A source of law in Kenya is defined as a repository of authoritative rules to which the
law appliers, the ordinary citizens, practicing advocates, executive officers of
Government and importantly the judges turn to for guidance on the application of
norms.
(a) Social forces that direct law – For example the sociological factors that
impact on the content of law within a given jurisdiction e.g. culture, morality,
religion, science and technology, economic and politics etc.
(b) Law making entity institutions – within a given society, e.g. parliament
(c) Territorial/Geographical origin of the principles or rules of law. For
example much of the Kenya law originated from British and India.
A source of law generally refers to the origin of the law which may either be Historical
or Geographical e.g. most of the Kenyan law historically originated from British and
India. The main sources of labour laws in Kenya however are:-
1. The Constitution of Kenya
The new constitution – The constitution of Kenya 2010 recognizes the constitution as
a source of law under articles 36, 41 and 162 as follows:-
Supremacy of the Constitution – all laws MUST conform to provisions of
constitution
Article 36 (1) provides that every person has the right to freedom of association
which includes the right to form, join or participate in the activities of an association of
any kind.
Sub article (2) provides that a person shall not be compelled to join an association of
any kind
Sub article (3) also provides that any legislation that requires registration of an
association of any kind shall provide that:-
(a) Registration may not be withheld or withdrawn unreasonably
(b) There shall be a right to have a fair hearing before a registration is cancelled.
Labour Relations - Article 41
Article 41(1) provides that every person has the right to fair Labour practices
Article 41(2) provides that every worker has the right to:-
(a) Fair remuneration
(b) Reasonable working condition
(c) Form join or participate in activities and programmes of a trade union
(d) Go on strike
Article 41(3) however, provides that every employer has the right to form and join an
employer’s organization and participate in activities and programmes of an employer’s
organization.
Article 41(4) provides that every trade union and employer’s organization has the
right:-
(a) To determine its administration, programmes and activities.
(b) To organize
(c) To form and join a Federation.
Collective Bargaining – Article 41(5) also provides that every trade union and
employers organization and the employer has a right to engage in collective bargaining.
Article 162(2) provides that parliament shall establish courts with status of High Court
to hear and determine disputes relating to employment and labour relations
2. International Labour Organization
In Kenya the International Labour Organization (ILO) conventions and
recommendations are fully recognized and supported as Kenya ardently subscribes to
the ILO and the principle for which inspired the Kenya Government Labour
administration policies are based on the declaration of Philadelphia of 1944: which
stated thus:-
- Labour is not a commodity
- Freedom of association and expression are essential to sustained progress
- Poverty anywhere constitutes a danger to prosperity.
ILO convention 98 concerning the application of the principle of the right to organize,
and to bargain collectively is fully honored in Kenya and its various articles
implemented.
Various Article of the Convention 98
Are as below:-
a) Protection to workers against the acts of anti-union discrimination in respect of
their employment.
b) Protection of workers against non membership of trade unions.
c) The workers are protected against victimization for their trade union activities
outside working hours, or with the consent of the employer within working
hours.
d) Workers and employers organization should enjoy adequate protection against
any act /act of interference against each other or each other’s agents or
members in their establishment and administration.
However,
in adopting the above national condition must be adhered to.
3. Industrial Relation Charter
Before Independence (1963) industrial confrontation
Between trade unions and employers arose not only from traditional trade unions but
also from the movement political role in the struggle for freedom from colonial
domination- particularly after individual political leaders had been declined. Between
1961/1962 it was realized that Kenya being a young nation could not progress without
harmonious industrial relation to reduce the incidence(s) of strike and lock outs and
this resulted in signing of industrial charter in October in 1962.
The charter laid the solid foundation for an industrial relation system in Kenya in a
number of ways.
4. Judicial precedents
These are rules and principles which are given in judicial decisions through the years. In
deciding disputes, judges and magistrates of inferior courts follow the decisions of
higher courts in cases involving similar facts and points of law.
Both common law and equity have developed through the doctrine of precedent or
stare decisis
The industrial court was established in 1964 essentially to settle industrial disputes. It is
presided over by principal Judge elected by the judges of industrial court. In its course
of making rulings, the Judges of the Court makes rulings and judgments in different
cases and these Judgments serves as a source of Labour laws.
5. Political philosophy
The political leaders who championed for the recognition and registration of trade
unions before independence, in their pronouncements and deliberations can be used as
a source of labour laws in Kenya.
6. Legislation
Parliament has since independent initiated various bills which have been passed into
law and amended several of them. These statute serves as a good source of law in the
country the examples of various statutes are as below:-
a) The employment Act 2007
b) Labour Institutions Act 2007
c) The labour Relations Act 2007
d) The work injury benefits Act 2007
e) The Industrial Training Act
f) The occupational health and safety Act 2007
g) The industrial Court Act 2011
7. The Common Law
Common law is a law which has its origin from England. All the common wealth
Countries have adopted and use the law in deciding relevant cases which affect them
daily Kenya being no exception has domesticated common law practices for example,
the common law rights and obligations of the employees and therefore common law is
also considered as one of the sources of the employment laws in Kenya.
8. Collective Bargaining Agreements
These are agreements between employers and the trade unions regarding terms and
conditions of employment
9. Employee Handbook and Work Ethics
I.e. terms and conditions of service
10. Customs and practice
I.e. the way work is done. It may be governed by express terms as the customs of the
industry.
A custom must be proved on balance of probabilities.
Article 1592(c) of the constitution provides that alternative forms of dispute
resolution including reconciliation, mediation, arbitration and traditional dispute
resolution mechanisms shall be promoted. However, traditional disputes mechanisms
shall not be used in away:-
- That contravenes bill of rights
- Repugnant to justice and morality
- Inconsistent with the constitution or any written law
HISTORY AND DEVELOPMENT OF LABOUR LAWS
Pre-colonial Kenya
In pre-colonial Kenya, labour was organized in Africa communal system which was
voluntary. Each member contributed to the means of wealth. There were defined roles
of the members of the community. Every individual was valued.
The African charter of people and human rights recognized reliance on the contribution
of all members of the community.
At the coast, the labour market relied on the provision of slave labour by the indigenous
Africans to the Arabs.
Colonial Kenya
The genesis of labour laws and practices in Kenya can be traced back to the time when
the European powers shared amongst themselves the African Nations. As the settlers’
community working grew in size, the need for labour also increased. This distorted the
customary working practices which were family and community based there was
therefore need for the settling community to pass legislation to ensure adequate labour
supply was a reliable to take care of their interests in Agriculture, building industry and
also to support their young and service sectors. Out of this scenario labour law came
into existence to regulate the interests of the settlers, and the local people. These laws
were used by the Government to regulate labour relations and also to effect
recruitment of forced, cheap labour for settler family. The first wage labour was
achieved through implementation of oppressive legislation that had effect alienating
Africa land and controlling the mobility of the Africans through the Kipande system and
enforcing the contract of labour through criminal sanctions.
The Africans had their own laws and rules on how they were staying in the society.
However, the colonialists introduced some legislations mainly to take care of their
interests. Some of the legislations were as follows:
1. The Anti slavery Edict of 1891
The aim of the legislation was to review the foundation of the competing Arab economy
and to release the slaves so that they could be made available to work when building
the railway.
2. The African Passage Ordinance of 1900
It was an intention of controlling mobility of labour– it allowed Africans to move from
one area to another. There was to be an authority allowing an employee to leave one
employment to get another. If one was caught without a pass, he was charged with
criminal offence.
3. Hut Tax Ordinance of 1901
Aimed at outsourcing African males to leave his home and seek employment and pay
tax.
The African men had no reason at the time to seek employment because they were
engaged in subsistence farming. The tax was paid in monetary terms the tax was levied
per hut and because of polygamous nature of the Africans society, male had to pay tax
for a number of huts many Africans men had many wives.
4. The Master and Servant Ordinance of 1904
It was used to regulate employer and employee. The regulation imposed on employer
civil action for breach and employee. It was a penal sanction especially for deserters.
5. The Labour Law of 1907
Required Government officers to recruit and provide labour to the settlers to set
employment conditions.
6. Registration of Domestic Servant Ordinance of 1910
7. Registration of Domestic Servant Ordinance of 1915
It was to ensure compulsory registration for all adult male from the age of 16 years.
The effect of all these legislations was to make Africans to work at the risk of facing
criminal sanctions. The Kipande contained information on the name of the employer the
day of recruitment, the wages, and the date of birth etc.
First World War - During the First World War, Africans were recruited to assist in the
war, the exposure of the more developed labour system caused in other countries to
them come home enlightened on employment.
Working Conditions
The returnees learned, trade, Iron mongery and skills. This exposure had a direct effect
on the establishment of the workers assembly and later trade union that a agitated for
better working conditions and employment.
Young Kikuyu Association of 1921
The first organization to agitate for workers’ rights was the young Kikuyu association
formed in 1921. The association sent a letter to the commission for Government to
desist from reducing wage labour and forced labour of women and children by digging
trenches around reserves. They also opposed the Kipande system. Harry Thuku
complained about segregation, increased taxes, and alienation of land and reduction of
wages. Discrimination of Africans and Asians.
1922-ARREST OF HARRY THUKU
The colonial Government began to sense danger from the unity of workers and hence
arrested Harry Thuku which culminated to a major strike and the Government was to
use troops to quell the mob. There was an attempt by then Government to weaken, the
National Organization and the Kavirondo Association agreed to a welfare Association.
This association was given support by the Government and the missionaries, it was
restructured and was therefore nonpolitical and restricted its demands to better housing
clothing etc. East African Association was banned and changed its name to Kikuyu
Central Association without its leaders being arrested.
1917 – 1922 - During this period many trade unions were formed such as;
European Council Servant Union
Railway Staff Association
Kenya Civil Servant Association
Railway Artisan Union
1929 - Young Kikuyu Association formed in 1921 changed its name to East Africans
Association to unite all the tribes. At the same time there was the establishment of
Kavirando Association which also on 23rd September 1921 advocated for the removal of
the penal sanctions, Hut Tax as well as the Title Deeds.
1931 – A trade union was formed in Mombasa to represent Artisan employees in 1931.
They requested for workman compensation after a worker was killed at Kilindini
Harbour.
1935 – Labour Trade Union
In 1935 the labour trade union of Kenya was formed, it was then first nonracial union
and its mandate was to fight for the improvement of the economic condition of the
workers and it later become labour Trade Union of East Africa. It was at this time that
the Government demanded to introduce laws to curb the growing menace of the same
Trade Union. Its aim was to ensure that there was compulsory trade union. The
Registrar of trade unions had immense power. He could refuse to register and cancel as
well.
1939 – A major strike was reported in Mombasa which resulted into strengthening of
Trade Unions. The Government gave into the demands of better wages and better
housing. During this time the Labour party had come to power.
1947 – There was another major strike in Mombasa and an African Union was formed.
The strike called for increased, wages, equal pay, and removal of discrimination. The
Government (colonial) supported the Trade Union to the extent of controlling employer
employee relationship and not with respect to political relation.
The settler was afraid of Trade Unions and the National Independent Movement.
The Government was to keep trade unions divided and a loof from independent
movement. There were associations for different Trades, house boys, Taxi cabs,
mechanics, tailors garment makers, shop steward, messengers and quarry workers.
1949 – The East Africa Trade Union was formed by Fred Kubai, its function was to
coordinate the activities of all Trade Unions in East Africa and give united front on
addressing issues facing workers. The congress called for independence and release of
prisoners.
1950 – Kubai and Singh were arrested as officials of unregistered Trade Union
1952– The Kenya Federation of registered trade union was formed as a Central
Organization of Trade Unions. Its registration was refused. It was at this time that the
state of emergency was declared and Trade Unions were linked to Mau Mau Movement.
1955 – The Kenya Federation of labour was formed and Tom Mboya was the Secretary
General –It became the Central body of employee Union.
After independence the Government felt their conventions were not relevant to
developing nations because at the time the convention on workers Rights Africans were
not represented therefore their interest were not taken into account.
The Government also said that it will not allow the obstruction of economic
development by the union. The legislation therefore seems to regulate the activities of
the union so that they don’t get involved in the political activity. The Trade Union Act
provided the Registrar with immense powers to refuse or cancel the registration of a
Trade Union more recently there were very clear efforts to compromise independence
of COTU by influencing the election of leaders to support the political parties in power
were observed.
In 2007 there was an enactment of new labour laws. However it still bears the
undertone between the workers and promoting employability.
Key points from the History
1. The history of labour law legislation of Kenya was primarily based on exploitative
policy of an imperialist Government
2. Workers rights were upheld in as far as they contributed to that exploitation.
3. Trade Union was closely tied to the political struggle in Kenya, consequently the
fear of organized employment and hence curtailments that of Trade Union
power.
4. The link between Trade Union and Government in power shows that Government
would only support Trade Union for its benefits/advantage as legislation has
followed the colonial trend and registration of Trade Union is highly controlled.
Characteristics of the Colonial Labour Laws
The colonialists during their occupation and administration of Kenya tried to impose the
labour laws which were mainly beneficial to them and not to the employees. The
colonial labour laws had therefore, the following characteristics.
1) Forced Labour – in most cases the employees were forced into working for the
colonialists in their big farms and manufacturing industries forcibly and without
pay.
2) Want of Union Representation.
The emergence of trade unionism was suppressed by the colonial Government most of
the leaders of the union who championed for the rights of the workers were more often
than not arrested for their union activities.
3) Lack of proper machinery for the resolution of industrial disputes
The colonial labour laws lacked a proper machinery for the resolution of their disputes
which arose between the colonial Government, the workers and their representatives.
Since the Government did not recognize the trade union, they could not sit with them
on a table to resolve any dispute and moreover the representative of the employer – a
body like the FKE Federation of Kenya Employers was not in existence during those
times.
4) Industrial action
In the absence of a properly constituted body or machinery in resolving industrial
dispute, the colonial labour laws were characterized by strikes and riots organized by
the employees towards the Government (colonial Government)
5) Poor terms and conditions of work
This was as a result of lack of proper legal framework which regulates the terms and
conditions of the workers and therefore their wages was minimal and terms and
conditions were also very poor.
6) Government Interference
The Government of the day a live to the fact a strong labour movement will not make
them realize maximum returns in the industries and the farms interfered. with the
labour laws by in some instances sponsoring trade union organizations which were
sympathetic to them and to weaken the real workers organization sympathetic to the
plight of a majority of workers.
7) Labour Movement and political Activities
The labour law during the colonial times was also characterized by the link between the
trade union movement and the political agitation for political freedom. The workers
linked up with the leaders to champion for their right and recognition. This culminated
in the arrest and detention of most of the politicians.
8) Lack of the relevant statutes to comprehensively deal with Labour
laws
The Government (colonial) did not pass legislation at that time which could regulate
and protect the workers from unfavorable terms and conditions of work most of the
labour statutes existing today were passed after independence
9) Ignorance
The development of labour laws during the colonial times was also characterized by
ignorance of the workers. The workers were ignorant as a result of high rate of illiteracy
and lack of awareness of the labour laws. The trade union movement became active
only after the soldiers who were enlisted in the first and Second World War returned
with experience of how labour laws operated in the countries like India, Bangladesh etc.
10) Restrictive Labour Laws
Even after the enactment of the first trade union law, the Movement still restricted the
full operation of these laws to the extent that some other laws were enacted principally
to give Government stronger power of control over unions and workers.
- The laws were enacted and principally provided for interests of the settlers and not
the Africans/workers
