EMPLOYEE RELATIONS

HIGHER DIPLOMA IN HUMAN RESOURCE

MANAGEMENT

ERICK .O. OMBOK

BBM (Marketing), H.dip HRM, Dip Sales & Marketing, Dip Ed, Dip BA
TABLE OF CONTENTS
Topic 1: Nature And Role Of Employee Relations..................................................1
History Of Industrial Relations In Kenya..................................................................1
Significance Of Industrial Relations..........................................................................3
Conditions For Good Industrial Relations.................................................................4
Causes Of Poor Industrial Relations..........................................................................6
The Industrial Relations Charter................................................................................7
The Recognition Agreement......................................................................................9

Topic 2: Framework Of Industrial Relations In Kenya..........................................10

Players In Labour Relations In Kenya.....................................................................10
Central Organization Of Trade Unions Of Kenya (Cotu)........................................10
Functions Of Cotu....................................................................................................10
The Structure Of Cotu..............................................................................................11
Federation Of Kenya Employers (Fke)....................................................................11
The Structure Of Fke................................................................................................12
Functions Of Fke......................................................................................................13
Industrial Court........................................................................................................13
Establishment Of Industrial Court...........................................................................14
Industrial Court Procedures......................................................................................15
Pre-Industrial Court Procedures...............................................................................16
Collective Bargaining...............................................................................................17

Topic 3: Grievance And Dispute Settling Machinery............................................21

Causes Of Grievances..............................................................................................22
Grievance Procedure................................................................................................23
Desirable Features Of A Grievance Procedure........................................................25
Benefits Of Grievance System.................................................................................26
Industrial Dispute.....................................................................................................27
Causes Of Disputes..................................................................................................27
Forms Of Strikes......................................................................................................28
Economic Impact Of Industrial Disputes.................................................................29

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Topic 4: Trade Union And Trade Unionism...........................................................37
Trade Union Organisation And Structure................................................................37
Types Of Trade Unions............................................................................................39
Functions Of Trade Unions......................................................................................40
Historical Background Of Trade Unions In Kenya..................................................42

Topic 5: ILO Conventions......................................................................................46

The International Labour Organisation....................................................................46
International Labour Organizations (Ilo).................................................................49
Birth Of A Convention.............................................................................................51

Topic 6: Relevant Labour Legislation In Kenya....................................................53

Public Health Cap 242.............................................................................................53
The Employment Act Cap 226.................................................................................54
Regulations Of Wages And Conditions Of Employment Act Cap 229...................60
Workmen’s Compensation Act (Cap 236)...............................................................63
Trade Unions Act.....................................................................................................65
Overall Health And Safety Legislation....................................................................70
Trade Disputes Act Cap 234....................................................................................75

Topic 7: Participation And Joint Consultation.......................................................71

Aims Of Employee Involvement & Participation....................................................71
Issues In Participation..............................................................................................72
Requirements For Successful Involvement And Participation................................72
Forms Of Employee Involvement And Participation...............................................73
Counselling In The Work Place...............................................................................78

Topic 8: Communication........................................................................................80

Topic 9: Discipline And Disciplinary Procedures..................................................83

Types Of Discipline Problems.................................................................................83

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 Disciplining Special Employee Groups...................................................................85

Topic 10: Termination Of Employment...............................................................87

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TOPIC 1: NATURE AND ROLE OF EMPLOYEE RELATIONS.

Definition Of Terms Commonly Used In This Unit

i) Industrial Relations: is the study of job regulation, the making and administering
of the rules which regulate employment relationships regardless of whether these are seen
as being formal or informal, structured or unstructured thereby raising the fundamental
question of who regulates, what, how etc

- The above definition stresses the political nature of industrial relations

phenomenon.
- Industrial relations activities are interested in the creation of wealth,
distribution of income and control over decisions i.e. who gets what, how and when
- Industrial relations is an important supervisory and managerial activity
requiring knowledge and skills to create the right organizational culture
- Its growth is due to many factors;
a) The power of trade unions
b) Motivating employees
c) Industrial democracy
d) Sociological, education and political changes
e) Larger corporations

- Industrial relations can be regarded as a system or web of rules regulating

employment and the ways in which people behave at work. The systems theory of
industrial relations, as propounded by Dunlop (1958) states that the role of the system
is to produce the regulations and procedural rules which govern how much is
distributed in the bargaining process and how the parties involved, or the ‘actors’ in the
industrial relations scene, relate to one another.
- The system is expressed in many more or less formal or informal guises, in
trade union regulations, in collective agreements and arbitration awards, in decisions,
and in occupied custom and practice.
- The rules may be defined and coherent or ill-defined and incoherent. Rules are
therefore meant to define the status quo of the parties involved
- Hence, in this case industrial relations is a normative system where a norm can
be seen as a rule, a standard, or a pattern for action which is generally accepted or
agreed as the basis upon which the parties concerned should operate.
ii) Employee relations – consist of the approaches and methods adopted by
employers to deal with employees either through trade unions and/ or directly.

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- They will be based on the organization articulated or implied employee
relations policies, objectives and strategies, industrial relations processes aspects of
employee relations i.e. dealing between employers and trade unions.
iii) Labour relations – represent the relationship that exists between the employer and
employee in an industrial undertaking.
iv) Employee – means a person who has entered into or works under contract with an
employer, whether the contract is for manual labour, clerical work or otherwise, i.e.
express on implied, oral or in writing and whether it is a contract of service or
apprenticeship or a contract personally to execute any work
v) Employees association - means an association or combination whether temporary
or permanent of more than six employees, which has as its principal purpose the
regulation of relations between such employees and their employer or between such
employees amongst themselves
vi) Employees organization – means an association or combination, whether
temporary or permanent, of more than six employees who work for different employers,
which has as its principals purposes the regulations of relations between such employees
amongst themselves.
vii) Executive – means the body, by whatever name called, to which the management
of affairs of a trade union is entrusted, and includes the chairman, the secretary and the
treasurer of any trade union.
viii) Staff association – means an association or combinations, whether temporary or
permanent, of more than six employees employed in a civilian capacity under the
government or a local authority or authorities, the principal object of which is the
regulation of the relations between such employees and the government or such local
authority or local authorities or between such employees amongst themselves.
ix) Employer – Includes the Government and any public or local government
authority.
x) Organization – Includes a trade union and federation.
xi) Federation – Means a trade union which is itself an association or combination of
trade unions.
xii) Industrial court – means the court established under section 14 (Trade Disputes
Cap 234).
xiii) Redundancy means the loss of employment, occupation, job or career by
involuntary means through no fault of an employee involving termination of employment
at the initiative of the employer where the services of an employee are superfluous, and
the practices commonly known as the abolition of office, job or occupation and loss of
employment due to the Kenyanisation of a business; but it does not include any such loss
of employment by a domestic servant.
xiv) Strike – means the ceasation of work by a body of persons employed in any trade
or industry acting in a combination or a concerted refusal, or a refusal under a common
understanding of any number of persons who are, or have been so employed, to continue
to work or accept employment and includes any interruption or slowing down of work by
any number of persons employed in any trade or industry acting in concert or under a
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 common understanding (including any action commonly known as “sit down strike or go
slow”)
xv) “Lock out” – means the closing of a place of employment or the suspension of
work, or the refusal by an employer to continue to employ any number of persons
employed by him in consequence of a dispute, done not with the intention of finally
determining employment but with a view to compelling those persons, or to aid another
employer in compelling persons employed by him to accept terms or conditions of or
affecting employment.
xvi) Industrial court – means the court established under session 14 of Trade
Disputes Act Cap 234.
xvii) Trade Dispute – means a dispute or difference between employers and
employees, or between employees and employees, or between employers and trade
unions or between trade unions and trade unions, connected with the employment or non-
employment or with the terms of employment or with conditions of labour.

Nature and purpose of employee relations

- Employee relations policies express the philosophy of the organization on what sort of
relationships between management and employees and their unions are wanted, and
how they should be handled.
- The overall aim of the policies should be to develop and maintain a positive,
productive, cooperative and trusting climate of employee relations.
- When articulated, policies on employee relations provide guidelines for action on
employee relations issues and can help to ensure that these issues are dealt with
consistently.
- They therefore provide the basis for defining management’s intentions on key matters
such as union recognition and collective bargaining.

Employee Relations Policies

The specific areas covered by employee relations policies are:-
i) Trade unions recognition – whether trade unions should be recognized or
derecognised, which unions or unions the organization would prefer to deal withm7
, and whether or not it is desirable to recognize only one union for collective
bargaining and/or employee representational purposes.
ii) Collective bargaining – the extent to which it should be centralized or
decentralized and the scope of areas to be covered by collective bargaining.
iii) Employee relations procedures – the nature and scope of procedures for
redundancy, grievance handling and discipline.
iv) Employee relationship – The extent to which terms and conditions of
employment should be governed by collective agreements or based on individual
contracts of employment.
v) Harmonization of terms and conditions of employment for staff and manual
workers.
vi) Working arrangements – the degree to which management has the
prerogative to determine working arrangements without reference to trade unions or
employees.
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Employees Relations Objectives
Employee relations objectives define what the organization means to achieve in the
application of its employee relations policies. These are to:

i) Improve the employee relations climate

ii) Decentralize collective bargaining arrangements
iii) Introduce single table bargaining
iv) Derecognize trade unions
v) Develop HRM type approaches of involvement and communication to
increase mutuality.

Employee Relations Strategies

- Employee relations strategies set out how objectives such as those mentioned are to
be achieved.
- Employee relations strategies should be distinguished from employee relations
policies, strategies are dynamic.
- They provide a sense of direction, and give an answer to the question, how are we
going to get from here to there?
- Employee relations policies are more about the here and now. They express the way
things are done around here as far as dealing with unions and employees is concerned.
- Revolving around unions is not a solution, but only when a deliberate effort is made
to change policies that a strategy for achieving this change has to be formulated.
- Thus, if the policy is to increase commitment the strategy could consider how this
might be achieved by involvement and participation processes.
- The intentions expressed by employee relations strategies may direct the organization
towards any of, the following:

i) Changing forms of recognition, including single union recognition, or

derecognition.
ii) Changes in the form and content of procedural arrangements
iii) New bargaining structures, including decentralization or single table
bargaining.
iv) The achievement of increased levels of commitment through involvement or
participation.
v) Generally improving the employee relations climate in order to produce more
harmonious and cooperative relationships.
vi) Increasing the extent to which management controls operations in such areas
as flexibility.
vii) Developing a partnership with trade unions, recognizing that employees are
stakeholders and that it is to the advantage of both parties to work together (this
could be described as a unitarist strategy aiming at increasing mutual
commitment)

Employee Relations Climate

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- The employee relations climate of an organization represents the perceptions of
management, employees and their representatives about the way in which employee
relations are conducted and how the various parties (Managers, employers and trade
unions) behave when dealing with one another.

- An employee relations climate can be good, bad or indifferent according to perceptions

about the extent to which:
i) Management and employee trust one another
ii) Management treats employees fairly and with consideration.
iii) Management is open about its actions and intentions i.e. employee relations
policies and procedures are transparent.
iv) Harmonious relationships are generally maintained on a day-to-day basis
which result in willing cooperation rather than grudging submission.
v) Conflict, when it does arise, is resolved without resort to industrial action and
resolution is achieved by integrative processes which result in a win-win solution.
vi) Employees are generally committed to the interests of the organization and
equally, management treats them as stakeholders whose interests should be
protected.

Improving the Climate

Improvements to the climate can be attained by developing:
i) Fair employee relations policies and procedures and implementing them
consistently.
ii) Line managers and team leaders who are largely responsible for the day-to-
day conduct of employees need to be educated and trained.
iii) Transparency should be achieved by communicating policies to employees.
iv) And commitment increased by involvement and participation processes.
v) Problems which need to be resolved can be identified by simply talking to
employees, their representatives and trade union officials.
vi) A quality of working life (QWL) strategy can be developed. There is also
need to build trust and an ethnical approach when dealing with employees.

The Institute of Personnel and Development, UK suggests that building trust is the only basis
on which commitment can be generated and these tensions contained. For these reasons,
attaining or sustaining world class levels of performance will be increasingly unlikely in
organizations which do not treat their employees in ways which are consistent with their
status as the key business resource with two aims:

i) Employees cannot just be treated as a factor of production.

ii) Organizations must translate these values into specific and practical action.

In too many organizations inconsistency between what is said and what is done undermines
trust, generates employees cynicism and provides evidence of contradictions in management
thinking.

REVIEW QUESTIONS FOR CHAPTER ONE:

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1. Briefly define the following terminologies
a) Industrial relations
b) Employee relations
c) Labour relations

2. What is the role of employee relations in managing the organization?

3. Distinguish industrial relations and employee relations

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HISTORY OF INDUSTRIAL RELATIONS IN KENYA.

What follows is brief discussion of the Kenyan industrial relation scene from a historical
perspective.

Industrial relations in the 1900’s and 1960’s

Introduction of capitalism in Kenya through British colonialism was the genesis of the
present day employer-employee relations in Kenya. As early as the 1900’s trade unionism in
Kenya has began making itself felt within the then major employer organisation – the Kenya-
Uganda Railway.

By 1939, the total number of employees in Nairobi then represented about 1% of the potential
labour force in the country. The total labour force was at about 5%. However, this tinny % of
wage employees was to constitute a significant force for the employers to reckon with and in
1947, the first major worker – employer confrontation took place. The first major trade
union-African workers federation formed that same year was responsible for this strike in
Mombasa.

This strike was the beginning of militancy that was to continue well into the emergency
period starting in October 1952. The perceived link between Mau Mau and Trade unionism
by the colonial government helping slacken Union activity. The defeat of the armed struggle
saw the revival of unionism and by 1958, among others, the following unions had been
registered; Kenya Shoe and Leather Workers Union, Kenya Engineering Workers Union,
Kenya Timber and Furniture Workers Union, Kenya Electrical Trade Workers Union,
Tobacco Brewing and Bottling Workers Union, Kenya Motor Engineering and Allied
Workers Union and Kenya Quarry and Mine Workers Union.

The issue of recognition of the unions was another matter all together. For instance, the
Kenya Engineering Workers Union was only recognized on 10 th June 1960. Recognition by
the employer organization was and still is, therefore, an important step in the process of
establishing formal union-employer remuneration negotiation channels.

It is significant that in the Agricultural sector, the trade union movement made itself felt
fairly late. It is only in 1959 that the first agricultural workers union – sisal and coffee
plantations Workers Union was formed. This was followed by Tea Plantation Workers
Union, General Agricultural Workers Union, Kenya Union of sugar plantation Workers union
all coming in 1960. These appeared in the plantations near Nairobi, possibly due to pressure
and influence from the urban movements.

Industrial Relations Development, 1960’s – 1970’s

By the 1960’s the industrial relations scene in Kenya had become dominated by foreign –
owned commercial and industrial organisations. The employers association (later renamed
federation of Kenya employers) the ACIE (Association of Commercial and Industrial
Employers) felt the need for closely monitoring the development of amicable industrial
relations.

In 1962, the industrial relations charter was signed by the three major actors in Kenyan IR
scene; the Kenya Government, Federation of Kenya Employers and the Kenya Federation of
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Labor. The charter was to stem the tide of strikes that had begun in 1961. It was to avoid such
strikes that the charter pointed out that: -

“It is in the National interest for the Government, Management and workers to recognize that
consultation and cooperation on a basic of mutual understanding render an essential
contribution to the efficiency and productivity of an undertaking and that progress can only
be made on a foundation of goods terms and conditions of employment which include
security of service and income, also the improvement of workers conditions of service”

The cause of these strikes were as varied as the various employer organisation, but they all
shared the usual grievances; poor supervision, racial connotation in access to higher status
positions and remuneration.

Strikes continued to be occasioned even after the charter – more often, employers failed to
meet some of their promised obligations and the new African government was more
sympathetic to the employers cause than to that of the workers, who were being accused of
engaging in counter productive practices.

Workers now felt betrayed by their leaders who had become national political figures, and
soon, the Kenya Federation of labour found itself facing stiff rivalry from the Kenya African
Workers Congress, which claimed to be the real champion of the workers cause.

The government swiftly stepped in to avoid conformations. The end result was the formation
of C.O.T.U (Central Organisation of Trade Union), which though an amalgamation of the
two warring factions took more of the nature of Kenya Federation of Labour in its policies.
The government Employer alliance had now won a major battle against workers.

Through time, the trade union movement in Kenya has continued to be subjected to server
restrictions by the government. The industrial court had been seen as an effective instrument
for meeting out justice. However government activities like through the issuance of wage
guideline has now cast doubts to the courts independence

The Trade Disputes Act, 1965, apart from establishing the Industrial Court introduced into
the Kenyan industrial relations system, complicated procedures before a strike can take place.
The Act and its rules and procedural regulations have tended to minimize the freedom of the
workers in resorting to a strike as a last resort.

The trade union movement though strong in numbers is still weak in terms of influencing key
managerial decisions. The weakness of trade unionism is vindicated by the fact that:

Unions do not provide any form of assistance to their members in the event they set
victimized due to a strike Except far a few unions, membership recruitment is done by the
organizing secretaries and shop-stewards Relatively few unions after any service other than
bargaining and grievance handling to the members Most unions are one-man shows with the
general secretary doing all the bargaining, handling all major grievances, resolving problems
in the branches and so on.

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These Union weaknesses are contrasted with the powerful position of the employers. The
FKE provides all sorts of assistance to its employer associations, has great financial strength
and always counts on government support in the event of a strike. The FKE has its own
economics advisers, lawyers and IR experts, who boost the organisations, position vis-à-vis
that of the workers on the bargaining table.

NATURE OF EMPLOYMENT RELATIONSHIP

Over the years the employer-employee relationship has changed from master and servant to
one of employer and employee. This relationship is contractual, reciprocal and mutual.

Obligations of the employer include; provision of wages, statement and provision of benefits,
while the employee is expected to provide an honest, efficient, faithful service, obey
instructions and so on. Employees have a right to job security, entitlements to pay and
benefits, freedom of association, refusal to work if the workplace is unsafe, right to strike,
right of appeal to redress grievances.

Employer rights include; right to formulate rules for recruitment etc, right to discipline
(within the allowance of relevant Acts), expect the employee to work and behave within rules
as per agreed terms.

TASKS.
 What is meant by the term codetermination in industrial relations?
 How is codetermination useful to an organisation?
 What are the likely problems to be encountered by codetermination?

SIGNIFICANCE OF INDUSTRIAL RELATIONS

The significance of good industrial relations in any country cannot be overemphasized. Good
industrial relations are necessary for various reasons.;

 Good industrial relation helps in the economic progress of a country. The problem of
an increase in productivity is essentially the problem of maintaining good industrial
relations
 Good industrial relations help in establishing and maintaining true industrial
democracy, which is a prerequisite for the establishment of a socialist society
 Good industrial relations help management both in the formulation of informed labour
relations policies and their translation into action
 Good industrial relations encourage collective bargaining as a means of self-
regulation. They consider the negotiation process as an educational opportunity, a
chance both to lean and to teach
 Good industrial relations help government in making laws for bidding unfair practices
of unions and employers
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  Good industrial relation reflects themselves in several ways. In workers movement –
unions gain more strength and vitality. There is no inter-union rivalry. Employers give
unions their rightful recognition and encourage them to participate in all decision.
Unions divert their activities form fighting and belligerence to increasing the size of
the distribution –cake and to making their members more informed, no vital issues
concerning them.
 Good Industrial relations boosts the discipline and morale of workers. Maintenance of
discipline ensures orderliness, effectiveness and economy in the use of resources

CONDITIONS FOR GOOD INDUSTRIAL RELATIONS

Good industrial relations depend on a great variety of factors. Some of the more obvious ones
are listed below:

1. History of Industrial Relations

2. Economic satisfaction of workers
3. Social and psychological satisfaction of workers
4. Off-the-job conditions of workers
5. Enlightened and responsible labour unions
6. Negotiating skills and attitudes of management and workers
7. Public policy and legislation
8. Education of workers
9. Nature of industry and business cycle

1. History of industrial relations

A good history is marked by harmonious relationship between management and workers. A
bad history by contrast is characterized by militant strikes and lockouts. Both types of history
have a tendency to perpetuate themselves. But a perpetuating tendency does not mean that a
history of conflict cannot be overcome or that a history of harmony cannot explode into
violence

2. Economic satisfaction of workers

Human needs have a certain priority. Need number one is the basic need for survival. Man
workers because he wants to survive. Hence the economic satisfaction of workers is another
important contributor to good industrial relations.

3. Social and psychological satisfaction

Identifying the social and psychological urges of workers is an important step in the direction
of building good industrial relations. Man has several other needs besides his physical needs
which should also be given due attention by the employer.

The supportive climate of an organisation is essentially built around social and psychological
rewards. Workers participation in management, job enrichment, suggestion schemes,

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redressal of grievances, effective two-way communication are same such social and
psychological rewards.

4. Off-the-job conditions
Although some employers may occasionally wish that they could employee only a person’s
skill or brain, they in fact end up employing a whole person. His home life is not totally
separable from his work life, and his emotional condition is not different from his physical
condition. Hence for good industrial relations, it is not enough that the workers factory life
alone should be taken care of. His off-the-job conditions should be improved.

5. Enlightened Labour Unions

The most important single condition necessary for good industrial relations is a strong and
enlightened labour movement, which may help to promote the status of labour without
jeopardizing the interests of management. Investigations show unions though talk much of
the employer’s obligations to the workers, say very little about the workers responsibility to
the employer. Many enlightened unions usually do focus on employee contribution and
responsibility and they have gained both social and economic rewards by this approach. Such
unions exhort workers to produce more, persuade management to pay more, mobilize public
opinion on vital labour issues and help government to enact progressive labour laws.

6. Negotiating Skills and Attitudes of Management and Workers

Well trained and experienced negotiators who are motivated by a desire for industrial peace
create a bargaining atmosphere conducive to the writing of a just and equitable collective
agreement. On the other hand, ignorant, inexperienced, and ill-trained persons fail because
they do not recognize that collective bargaining is a difficult human activity that requires
careful preparation.

7. Public Policy and Legislation

When government regulates employee relation, it becomes a third major force determining
industrial relations – the fist two being the employer and the union. Governments intervene in
management – union relationships by enforcing labour laws and by insisting that the goals of
the whole society take precedence over those of either of the parties. Governments intervene
in a number of ways:

 It helps in catching and solving problems before they become serious

 It provides a formalized means to the workers and employers to give emotional
release to their dissatisfaction
 It acts as a check and balance upon arbitrary management action

8. Better Education
Industrial workers in developing countries are generally illiterate and are misled by outside
trade union leaders who have their own axe to grind. Better workers’ education can be a
solution to this problem.

9. Nature of Industry and Business Cycle

Industrial relations are good when there is boom and prosperity all around. During such
period’s levels of employment and wages rise, which make workers happy. But during

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recession, there is a decline in employment levels and wages. This makes workers unhappy
and mars good industrial relations.

CAUSES OF POOR INDUSTRIAL RELATIONS

Poor industrial relations are the result of a number of socio-economic, political and
psychological factors, which are as follows:
 Uninteresting Nature of work
 Political Nature of Unions
 Poor Wages
 Occupational Instability
 Poor behavioural climate

1. Uninteresting Nature of Work

The problem of poor industrial relations is essentially a product of large scale production
which has made man subordinate to the machine. Due to specialization, a worker in a factory
performs only a minor operation in the entire production process. This has made him lose his
sense of pleasure, pride and satisfaction from work, which he used to get. This dissatisfaction
of the worker on the shop floor generally culminates into big strikes and lockouts.

2. Political Nature of Unions

Another major irritant to good industrial relations is the politicization of labour unions by
outside political leaders. This leads to multiple unions and inter-union rivalry. Inter –union
rivalry depresses both a union’s membership and its finances. As such, unions are unable to
be effective.

3. Poor Wages
Too much tight or complicated wage and incentive and pay systems are a cause of poor
industrial relations. Wage and salary differentials between occupations also create a feeling
of inequality and mar good industrial relations.

4. Occupational Instability
Occupational stability makes workers feel secure on their jobs, and as such positive industrial
relations.

5. Poor Behavioral Climate

The behavioral climate of an organization which is made up of its culture, traditions and
methods of action may by either favourable to the worker or unfavorable. Favorable climate
helps the worker meet his economic, social and psychological needs. It produces a good
image of the organisation in his mind. An unfavourable climate prevents a worker from
meeting his various types of needs and produce a negative impression of organisation. This
drives the worker to seek membership of a militant labour organisation to vent his negative
feelings. This causes poor industrial relations.

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Suggestions to Improve Industrial Relations

 Both management and unions should develop constructive attitudes towards each
other.
 All basic policies and procedures relating to industrial relations should be clear to
everybody in the organisation and to the union leaders
 The personnel manager should remove any distrust by convincing the union of the
company’s integrity and his own sincerity and honesty.
 The personnel manager should not vie with the union to gain workers loyalty. He
should not try to win them away from the union
 Management should encourage the right kind of union leadership
 After a settlement is reached between the employer and employee’s unions the
agreement should be properly enforced

THE INDUSTRIAL RELATIONS CHARTER

As earlier indicated, the period between 1958 and 1961 saw a lot of agitation, upheavals and
strikes in the labour movement in Kenya, although there was confusion between agitation for
political independence and labour matters.

The above confusion led the colonial government to formulate a document in 1962 to insulate
industrial agitation from political agitation. This document was the Industrial Relation
Charter. It became the ‘mother’ of industrial relations in Kenya. The charter was revised in
1980.

The charter defines the social contract between the three parties involved in Industrial
Relations – the Government of Kenya, the employees and the employers. The charter made
provisions for the RECOGNITION AGREEMENT, which forms the basis of the collective
bargaining system. The three parties started TRIPARTITE.

General Clauses of the Charter

 To affirm the faith of the three parties to democratic principles on labour matters i.e.
differences should be solved through mutual negotiations, conditions and arbitrations.
 In case of strikes or lockouts parties agreed to be bound by: - mutual agreements and
the law i.e. the Trade Dispute Act
 The three parties agreed to abide by and co-operate in implementing the Collective
Bargaining Agreements (CBA’s)
 They undertook to observe the grievance procedure contained in the Recognition
Agreement
 The government to educate labor officers, Federation of Kenya Employers (FKE) to
educate employers, and COTU to educate employees on the importance of good
Industrial Relations
 The three parties agreed to form the National Consultative Council to advice the
Minister for labour on all general Industrial Relations Matters.
 The NCC was to form a demarcation committee to determine areas of jurisdiction in
the event of conflict by Trade Unions
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  Each party was to respect one another’s Freedom of Association.
 Parities agreed to act expediently in replying to correspondence from another party.
 The charter established a Tripartite Consultative Council to advice the minister on
matters affecting the economy in general and employment in particular
 The charter excluded the following groups of workers from participation in Union
matters: -
 Staff who formulate, control or administer any aspect of organisation policy
 Staff who perform work that is of confidential nature

PARTIES INVOLVED
These are; the government (Ministry of Labour), COTU (for all employees in unions) and
FKE (for employers)

THE GOVERNMENT
Responsibilities include: -
 Ensure speedy settlement of disputes and a return to work formula
 Have joint consultations with COTU and FKE on matters of employee policy and
administration
 Promote Industrial Trade Unionism as opposed to Craft Trade Unionism
 Ensure no overlaps among registered unions through clear definition of each Union
 To display the charter in the offices and ensure that officers comply with it.

EMPLOYER (FKE)
Individuals or groups of employers undertook: -
 Accord recognition to unions as the negotiating bodies, by signing the recognition
Agreement
 Not to be involved in the right to registration of a union
 Not to discriminate, malign or coerce any employee because of his union activities
 To recognize the ILO Convention No. 98 – the right to bargain collectively and to
organize/associate freely.
 To take action to settle grievances that may arise in the organisation
 To implement all decisions in the CBA
 Not to be irrational – be able to distinguish between acts that require dismissal and
those that require other less severe disciplinary action
 To avail time and opportunity of ordinary workers to reach employer/management on
personal maters
 To let managers and workers know about the charter and give the document publicity.

COTU (for employees)

The union under took to: -

 Discourage breach of peace or civil commotion by Union Members
 Ensure the union representatives do not encourage or cause members to engage in
union activities during working hours

8
  Discourage members from neglect of duty, destruction of property, use of abusive
language and disturbance of normal work
 Make the charter known to members and give it publicity
 Promote a high degree of union membership so that CBA covers a majority of
workers.

THE RECOGNITION AGREEMENT

This is a document, which defines the relationship between employers and employee, and
gives rights and privileges to each party. The signing of this document leads to Collective
Bargaining Agreements (CBA’s)

The document is in recognition of ILO convention number 111, which provides guidance to
social policy on employment. This ILO document calls for: -

 All parties to avoid discrimination based on race, gender etc

 All parties agree to end strikes/ lockouts as a means to settle disputes
 Employees no to intimidate employers
 No press statements to be issued before an issue is settled
 Managers should no be intimidated by union in performance of their work
 No closed shop trade unionism-where workers are forced to become members of a
particular union
 Hit lists are prohibited and work council recognized
 Subsidiaries of multi-nationals to be bound by regulations of the local country.

Components of a Recognition Agreement

 Recognition Agreement must define confidential staff those handling confidential
corporate matters
 After elections unions must notify employers of the elected officials at National and
Branch levels and accord these officials proper credentials
 Employers are bound to negotiate only with accredited union officials
 Recognition Agreements must state that no employee will be forced to join a
particular union and neither should the employer punish employees for joining a
union.
 Employers will reserve the right to manage in certain matters
 Union activities must be conducted outside working hours unless with permission
from the employer

Note: Tripartite Approach – is used in resolving labour related issues where the
government, COTU and FKE sit together and deliberate until an agreement is reached.

 TASK.
Identify and discuss the causes of poor industrial relations in
post independence Kenya.
9
TOPIC 2: FRAMEWORK OF INDUSTRIAL RELATIONS IN KENYA

PLAYERS IN LABOUR RELATIONS IN KENYA

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

Central Organization Of Trade Unions Of Kenya (COTU)

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

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

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

Set up appropriate committee to provide training education and other facilities and enterprise
for the advancement of workers and the labour movement

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

10
 1. Maintaining and advancing the terms and conditions of employment as well as
improving the physical working conditions of all workers in all parts of Kenya.
2. Safeguarding and increasing employment opportunities
3. Conducting industrial disputes and raising and disbursing funds, in this connection, it
assists in settling disputes between members of trade unions and their members or
employees of one union and employees if another union or between two or more trade
unions:
4. Settling up appropriate committees to provide benefits and welfare activities such as
education, training, legal aid and sickness benefits;
5. Increasing workers’ participation in the control of industry
6. Organizing the structure and spheres of influence and amalgamation of trade unions
affiliated to COTU;
7. Maintaining adequate representation on government boards and committees dealing
with labour legislation on matters affecting workers;
8. Assisting the complete organization of all workers in trade union movement
9. Serving as agencies for the purpose of commenting on economic, social and political
affairs
THE STRUCTURE OF COTU
To clearly understand the organizational structure of COTU, we will need to look at its
organization chart (Fig. 15.1.)

GOVERNING COUNCIL

EXECUTIVE BOARD

SECRETARY GENERAL

DEPUTY SECRETARY GENERAL

CHAIRMAN GENERAL
TREASURER GENERAL

1ST VICE-CHAIRMAN
DEPUTY TREASURER GENERAL

2ND VICE-CHAIRMAN

ASSISTANT SECRETARY GENERAL

THREE TRUSTEES

11
 COMMITTEES AND DEPARTMENTS

FINANCE EDUCATION INDUSTRY ECO. RE CO-OPER ORGAN & PUB

AREA OFFICES

COAST EASTERN RIFT VALLEY CENTRAL NYANZA NAIROBI WESTERN

12
 UNION INDUSTRY
Garages and Motor repair shops, tyre retreadres,
1 Amalgamated Union of Kenya electrical and electronic equipment assemblers
Metal Workers including radio and television repair shops and
motor assemblers.

2 Dockworkers’ Union Cargo Handling

Kenya Building and
3 Construction, Civil Engineering Building and Construction and Civil
and Allied traders Workers Engineering Industries
Union
Manufacturers and converters of basic industrial
chemicals, including fertilizers, salts, plastics,
4 Kenya Chemical Workers Union rubber, perfumes, insecticides, paints, glasses,
cement, pottery, china earth ware, plaster
products and asbestos.

5 Kenya Engineering Workers General Engineering and allied industries; metal

Union converting, smelting, refining, and rolling mills.
Kenya Local Government
6 Workers Union Local Authorities

7 Kenya Airline Pilots Association Airlines

Kenya Electrical Trade and
8 Allied Workers Union Electrical and related industries
Kenya Bakers and Confectioners
9 Workers Union Bakeries and Confectioneries
Kenya Game Hunting and Safari
10 Workers Union Game reserves, Safari parks and national parks

Kenya Quarry and Mine

11 Workers Union
Mining and quarrying industries

12 Kenya National Union of Fishing and related industries

Fishermen
Kenya Shoes and Leather
13 Workers union Shoes and leather manufacturers

14 Kenya Jockey Workers Union Horse racing and related activities

Kenya Plantation and Plantations and agricultural except sugar
15 Agricultural Workers Union growers and millers
Petroleum refining, petroleum products,
16 Kenya Petroleum and Oil distributors, aviation oil filers, petroleum oil
Workers Union exploration, drilling, processing, marketing and

10
 oil pipeline
Kenya Union of Sugar
17 Plantation Workers Sugar growers and millers
18 Kenya Union of Commercial, Food processing, commercial and distribution
Food and Allied Workers trades
19 Kenya Union of Entertainment Music Industry, record manufacturers and
and Industry Employees entertainment
20 Kenya Union of Journalists Newspapers, magazines and periodical
publishers
21 Kenya Union of Printing, Printing establishments, paper pulp and board
publishing paper manufactures makers
and allied workers
22 National Seamen’s Union of Ship crews engaged in Kenya
Kenya
23 Railway Workers Union Kenya Railways
24 Tailors and Textiles Workers Textiles, tailoring and garment manufacturing
Union
25 Kenya Union of Domestic, Hotel and Catering establishments bars, and
Hotels, Educational institutions, domestic servants, educational institutions and
Hospitals and Allied Workers schools, harambee institutes of technology,
village polytechnics, night clubs, churches,
private hospitals and charitable organizations
26 Union of Posts and Postal, internal and external telecommunication
Telecommunication Employees services
(K)
27 Union of Scientific, Research, Scientific, Research and its total labour force
Technical and General
Employees (K)
28 Transport and Allied Workers Transport companies, transport equipment
Union operators including aircraft, bus companies and
tour operators
29 Banking Insurance and Finance Banks, Insurance and other financial institutions
Union
The above is a list of trade unions affiliated to COTU and the type of industry they
represent.

Federation Of Kenya Employers (FKE)

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

Objectives:
Its principal objects are to:

a) Promote good industrial relations between employers and their employees through
their trade unions;

11
b) Encourage fair labour practices among the employers;
c) Provide forum for consultation between and among members;
d) Collect, collate and circulate information and statistics and advise members on their
rights and obligations on employment matters
e) Initiate, promote and support legislative measures which are likely to benefit
employers or to promote their interests;
f) Represent, advocate and defend the interest of employers generally.

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

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

Individual Firms and Companies. These are the business organizations which prefer to
negotiate or deal with the trade unions directly. They may or may not have common
industrial or trade interests with other business organizations.

Groups of Companies or Firms. These are individuals member companies or firms, which are
voluntarily grouped together for the purpose of negotiations with their commonly recognized
trade union. They are organizations with similar industrial or trade interests.

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

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

The structure of FKE

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

12
affairs is the responsibility of the Executive Director who is also the Secretary to both
Management Board and Executive Committee

Functions of FKE
FKE is the only representative of employers recognized by the Government. Its functions are:
1. Representation on Tripartite and other Boards. FKE is recognized by the Government
as the employers representative outside the civil service. FKE serves and represents the
interests of employers on the following tripartite boards:

a) The General Wages Advisory Board and other sectoral Wage Councils
b) The National Social Security Fund Advisory Board
c) The National Industrial Training Council and its various committees
d) The Tripartite Committee dealing with Trade Disputes

2. Secretarial services. FKE acts as secretariat to a number of trade associations.

3. Consultancy Services. FKE’s Executive staff assist members in negotiations with

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

4. Training. FKE offers training to the staff members and the executives of its member’s
organizations. This is in line with their belief that training of personnel is necessary for
the promotion of productivity and good industrial relations.

5. Industrial Stability. FKE is one of the social signatories to the Industrial Relations
Charter which is a social contract between the social partners government, employers and
workers. It spells out the rights and responsibilities of the signatories in the management
of industrial relations in Kenya.

6. Creation of Employment. FKE has been associated with the tripartite agreements for
temporary relief of unemployment.

7. Dissemination of Information. One of FKE’s major functions is to keep its members

well informed of the developments in matters relating to employment, like changes in
labour laws, and the policy decisions which are of interest to them.

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

The main objective was and still is the settlement of trade disputes which are referred to it by
either parties (employer and employees) or the Minister for Labour when all other procedures
13
have failed. The Court is empowered to make award (s) to the aggrieved party of parties. The
award is final and there is no provision for appeal; the decisions are binding.
When making decisions, the Court takes into consideration the national economic conditions,
the financial position of the employers and the existing collective bargaining agreement.

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

Tripartite Committee - means a committee consisting of a representative of the Minister, who

shall be the chairman, and two other members appointed by the Minister, one from a panel of
persons nominated by or on behalf of organizations of employers, and the other from a panel
of persons nominated by or on behalf of organizations of employees.

Establishment of Industrial Court

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

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

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

Membership/Composition
i) Judges
- The court consists of 2 judges of the High court appointed by the President of the
Republic of Kenya for a term of not less than 5 yrs.
- The qualifications of the persons appointed are the same as those of High Court
Judges and has also been an advocate of a high court for not less than 7 years.

ii) Members

14
 - There are 8 members of IC appointed by the Minister of Labour after consultation
with FKE and COTU.
- Appointments is for a term of not less than 3 years.
- One of the members is the Deputy appointed to the Judge by the Minister for Labour
- Where expedient (useful) the Judge may appoint two accessors one representing the
employers and the other representing employees.
- Where members are unable to agree as to the award or decision in any matter, the
matter is decided by the Judge of the Court acting with full powers of the Umpire.
- The award is final and there is no provision for appeal – the decision is binding.
- When making decisions, the court takes into consideration the national economic
conditions, the financial position of the employees and the existing collective
bargaining agreements
- Presentation of the case to the court involves the employer represented by the FKE,
the employees represented by a union and the industrial court judge presiding and
assisted by the other members of a court.
- The judges and other members are eligible to re-appointment.
- The appointments are notified in Kenya Gazette which also states terms for which
such appointments are made
- The IC is not part of Kenya Judiciary Court. It is a special court created under the T.D
Act and is entirely from the vote of the minister for labour
- The decisions taken by the industrial court are not necessarily based on legal
arguments and technicalities alone. They go beyond the legal rights of the parties and
stretch deeply into the spheres of economic, social human relations and political
necessities which keep changing.
- The success and the ad justification of the courts lies in the fact that it is not too
regulastic in awards of decisions.
- Although the court is financed by the Ministry of labour it is very independent hence
is under no influence whatsoever either of the Ministers for labour or any other
development except to the extend that the court has to take into consideration wages
guidelines issued by the Minister for Finance.
- The Judges are of the same status as High Court Judges.

Industrial Court Procedures

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

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

15
iii) The disputes referred to the Industrial court must be either through voluntary
signing of Form A by the parties to the dispute or by the Ministers order under section 8
of the Trade Disputes Act.
- The court cannot however register any case unless there is a certificate from the
labour commissioner under Form `G’ and Form `H’ signed by the Minister to the
effect that the dispute had been reported to the Minister and that the voluntary
settlement machinery had been exhausted.
- The rules also provide for the parties to make written submissions.
- The court also has powers to sermon witness to appear before it and give evidence on
both or to furnish in writing such particulars as it may require and produce any
relevant documents.
- At its discretion the court may admit evidence of affidavit (written statement). The
rules also allow lay down procedures where is a party wishes to appeal to the IC or
against a Minister’s decision.
- There are rules also covering the interpretation of applications and the rectification of
the clerical mistakes including errors of omissions.

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

- In cases of dismissal of an employee, the court can award reinstatement or

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

v) Finally, the industrial court has the responsibility to consider and register all the
collective agreement entered into by the unions and employers and similarly, the
objective is to ensure that the wages agreed must be in line with the wage guidelines.
- Any collective agreement which has not been registered with the court is illegal and
its implementation is an offence and subject to a fine not exceeding Kshs1,000/=
Pre-Industrial Court Procedures
- Parties are required first to result to their own voluntary laid down machinery for
solving disputes.
- In all recognition agreement as in disputes from collective agreement and an elaborate
procedure be specified to deal with collective claims and grievance procedures for
individual complaints.
- The highest forum at the parties own level is usually the central negotiations council
or the Joint Industrial council.
- If a deadlock is recorded at this level, then either party is free to report the existence
of a trade dispute to the Minister for labour.
- In order to forestall any industrial action either party may report an existing or
apprehended trade disputes to the Minister for Labour. This is more so especially on
essential services such as the Docks, Banks, Fire & Ambulance services and teaching.
- These services are too essential and that is why the Minister is too keen to stop strikes
in these areas.

16
Why workers prefer industrial court as opposed to other courts?
i) Consideration taken into account by the industrial court are much wicker than
mere legal arguments.
ii) The court puts into consideration aspects of industrial relation practices.
iii) The court is not too legalistic although legal arguments are also given weight and
considerations.
iv) The court does not allow legal technicalities to defeat end of Justice.
v) Parties do not have to pay any court costs or litigation fee.
vi) The intention of the court is that no impediments should be placed in the way of
parties in bringing their cases to the industrial court.
vii) Costs would be an obstacle if introduced and there being no court fees, hence the
issue of paying cost to parties when one has lost does not arise.
viii) The IC resolve is final and legally binding and any violation against sanctions of
the IC is incriminating.
ix) The IC considers the bounds of fairness and justice by considering the rights of
both partners involved in a dispute.
x) The award compensation enhances good relations.
Enforcement of awards or court decisions
- In disputes over collective agreement the award of the court becomes effective from
the date it is made. If an employer fails to implement (comply with) an industrial
court award, workers action will not be declared unlawful by Minister.
- For every time you fail to implement courts decision there is a fine of 10,000/= per
month or part of the month.

Submissions
- Once the disputes has been accepted by court, parties appear before the Judge for the
mention of the dispute.
- The first appearance is just a mention, then they are given time to put their
submissions in support of a case.
- Claimants who are usually Trade Unions are given the final chance then the
respondents usually management provide answers.
- When the court makes awards on salaries it ensures that the rewards do not militate
against creation of employment.
- The court therefore has a very difficult task that calls for people of great integrity and
high moral standards. Thus magistrates who are likely to be bribed and make the poor
suffer are not required.
- The court ensures that workers get a share of their sweat by improving their standard
of living, while shareholders expect to earn reasonable return either on their capital.
Therefore the court has to balance between employees and the shareholders.
- The IC also puts into consideration depreciation of machinery and even replacement
of machines, expansion of enterprise and creation of new jobs. Hence the court’s
decisions have to be fair and balanced.
- The parties are usually required to comply with the following provisions:
i) Each party (within 7 days) sends a memorandum to court (that is after
mention)
17
 a) In the case of workers or trade unions it sets out: the nature and full
particulars of each item of the claim involved; the classes of workers involved
in the dispute (s); such submissions as the claimant party may wish to make in
support of its claim.
b) In the case of respondent usually management they will: send such
reply as they may wish to give in the item of the claim raised by the claimants
memorandum; an admission of such submission set out in the claimants
parties memorandum as the respondents admit and denial of any such
submission as the respondent party does not admit; any submissions which the
respondent parties may wish to make in support of its reply i.e. quote
authorities which make you take your stand.
ii) Parties are required to submit the names of witnesses they wish to call
during the hearing.
iii) The hearing date is also fixed at the first mention of the dispute.
iv) Parties are required to table all documents which they are going to align on
with written submission (usually in the appendix)
v) The time for parties submission is usually 4 weeks after mention.
vi) Written submissions are delivered through court officials.
vii) The parties may apply to the court for permission to extend the time for
them to give their submissions.

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

Summary of the role of IC in industrial relations

a) It accepts the collective agreements for registration for it to be legally
recognized and implemented

18
b) It determines and verifies the desirability and legality of collective
agreements before they’re implemented. This is done through amendments and
further negotiating between the concerned parties
c) It plays a big role in the settlement of trade disputes and matters
relating thereto
d) Whereupon there an award to be made after the settlements of a trade
dispute this is in domain of the industrial court
e) When there’s need the industrial court can also investigate matters
related to trade disputes with the purpose of gathering relevant evidence

19
Collective Bargaining
Definition
a) Bargaining – A bargain is an agreement and it takes at least two parties to
make a bargain
b) Collective bargaining - Are those set up agreements between managements,
employer’s associations, or joint employer negotiating bodies and trade unions to
determine specified term and conditions of employment for groups of employees. The
process of collective bargaining occurs only when a trade union is involved. Hence the
term only applies to relations between the employees (trade union) and the employers. It
is a long lasting process because once it is negotiated it is reviewed from time to time as
conditions may necessitate.

The Nature of collective Bargaining

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

Collective Bargaining Agreement contents

- A collective bargaining results into a labour contract, which is written agreement
between the trade union and management.
17
- The contract specifies rules and procedures to be followed by both parties during the
contract period.

The contract may have some of its contents are:

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

Basic of Collective Bargaining Agreement

i) Communication – can be seen as a way of communicating workers expectation,
fears, threats, anxieties, promises, rights, duties and limitations.
ii) Sanction and legitimization:
iii) A involves recognition of the power of the employer generally and the power of
the same to provide or impose remedial collective or individual punishment.
iv) Leeway and discretion
- CBA legitimizes alteration of terms according to circumstances.
- Inflexible management such as leeway is crucial in allocating work, adjusting labour
supply to demands and products.
- However, leeway may be crucial for management when an agreement gives power
without the duty to enforce it for instance rules on punctuality, the right to search workers
when leaving the organization.
- Employers may use leeway and discretion to favour certain categories of employees at
times of peace to please workers generally.
- In times of tension and conflicts, leeway is used to harass and punish un-cooperative
elements and reduce opinion leaders to size.
v) Ideological function – includes use of contracts to legitimize unequal pay, power
relations and also employers domination, differential payments among workers etc.
- C. B. is a contract about roles and rules.

What do trade unions bargain for?

- What is bargainable?
- Mostly this centers around salaries and allowances. However, there is no delivery
division between what’s bargainable and what is not.
- What is bairgainable is what trade unions succeed in bargaining and what employers
concede to.
- People bargain for:
a) Allowances – The most impressive benefits in recent times has been paid
through allowances i.e house allowances, leave allowance, travel allowance or
reimbursement of these expenses.
b) Shift allowance was introduced to compensate for working odd hours e.g
night shifts.
18
 - Employers who do not avail transport and canteen benefits are beginning to offer such
allowances for instance bicycle.
- In some organization newly-employed employees are given graduate allowances.
- Other allowances include lunch allowance, special duty allowance, cash handling
allowance, hardship allowance, entertainment allowance.

c) Bonuses Allowances
- This is dependent on performance while in some countries its dependent on status.
- Besides, many companies pay according to overall efficiency or cordial relations or
high safety enrolment.

d) Job Security
- A growing area of union concern is job security but the increasing rationalization
and automation is causing threat.
e) Welfare benefits – These include house loans, pay of life group,
accident insurance premium of the employer, education of children allowance and
facilities, canteen and death benefit schemes, saving schemes which employers make a
monthly contribution, gratuity benefits, paid holidays paternal leave for 4 days provided
you don’t have more than 2 children.
- Other allowances include lunch allowance, special duty allowance, cash handling
allowance, hardship allowance, entertainment allowance.

Basis of Collective Bargaining

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

Major steps of C.B

i) Recognition of each other on the legitimate representation of employers or
employees (Recognition Agreement must exist first).
ii) Making of proposals by one party and then counter proposals by the other.
iii) Joint meetings depending on the number of weight of issues.
iv) Failure to reach an agreement leads to deadlock registration thus it becomes a
trade dispute
- C.B can’t be compelled, its based on the principle of voluntarism.
v) If you agree on all issues then you sign an agreement (endorsed and sent to the
chief Industrial relations officer who looks at the legal and economic implications
before taking it to the industrial court which register it.

Collective Bargaining Agreement Formation

- Agreed issues are put in a memorandum document when duly signed it becomes a
CBA. The CBA will contain specific terms and conditions of employment.
- In addition procedures which parties agree to follow in regulating their relationships.
This include grievance procedures – if one party is aggrieved the procedures for
action must be well spelt out.
- To be legally enforceable CBAs, have to be registered by the Industrial court.
- Once registered by the industrial court the CBA binds parties under it.
- Failure to perform by either party gives rise to a trade dispute which is dealt with in
accordance with the Trade Disputes Act.
19
 - All CBAs differ in matters of details depending on industry and level of employers
concerned.

Issues in most CBAs

The CBA has provisions to deal with specific issues as they arise. These can be dealt with
under any of the following:
- substantive agreements
- procedural agreements
- distributive bargaining
- integrative and productivity deals

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

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

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

d) Integrative Bargaining and Productivity deals

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

REVIEW QUESTIONS FOR CHAPTER TWO

1. Why do we refer the frame work of industrial relations tripartite?

2. What is the role of industrial court in industrial relations?

20
3. Why workers prefer the industrial court than other courts?

4. What are the functions of Federation of Kenya Employers (FKE)?

5. Why may it no be easy to negotiate for terms and conditions of employment where
there has never been a collective bargaining agreement?

6. What do Trade Unions bargain for?

7. What are the major steps in collective bargaining agreements?

8. CBA has provisions to deal with specific issues as they arise. Discuss how these issues
can be dealt with?

9. Explain the contents of collective Bargaining Agreement Contract.

21
TOPIC 3: GRIEVANCE AND DISPUTE SETTLING MACHINERY

GRIEVANCES AND DISPUTES

Labour relations involve more than negotiating a labour agreement. In fact, the real test of
effective labour relations begins after agreement is signed. The acid test is found in the day-
to-day administration of the agreement. It has been said that management usually gives away
more in the administration of an agreement than in the negotiation of the agreement.
Similarly, unions may feel that they sometimes lose in application of what they thought they
had gained at the bargaining table. Hence, the administration of a collective bargaining
agreement is a matter of substantial concern to both management and labour because it is
here that a number of grievances arise which need to be resolved every day.

Meaning
 A grievance is an alleged violation of the rights of workers on the job. It may occur in
one of several forms:
 As a violation of the collective bargaining agreement
 As a violation of Central or State laws
 As a violation of past practice
 As a violation of company rules
 As a violation of management’s responsibility.

According to Michael .J. Jucuis, the term “grievance” means “any discontent or
dissatisfaction whether expressed or not and whether valid or not, arising out of anything
connected with the company that an employee thinks, believes or even feels, is unfair, unjust
or inequitable” this definition is very broad and covers dissatisfactions which have the
following characteristics:

The discontent must arise out of something connected with the company. Workers may be
dissatisfied because of several reasons, e.g., illness in the family, quarrel with a neighbour,
disliking for the political party in power, and so on. Such outside sources are beyond the
control of the company and, therefore, do not constitute a grievance.

The discontent may be expressed or implied. Expressed grievances are comparatively easy to
recognize and are manifested in several ways, e.g., gossiping, jealousy, active criticism,
argumentation, increased labour turnover, carelessness in the use of tools and materials,
untidy housekeeping, poor workmanship, etc.

Unexpressed grievances are indicated by indifference to work, daydreaming, absenteeism,

tardiness, etc. It is not wise to recognize only expressed grievances and overlook the
unexpressed ones. In fact, unexpressed or implied grievances are more dangerous than the
expressed ones because it is not known when they may explode. Hence, the executive should
develop a seventh sense for anticipating grievances. He should be sensitive to eve the weak
and ‘implied’ signals from the employee.

An employee may casually remark that it is too hot in the room or that he has been assigned a
job that he does not like. All such casual remarks and grumbling are grievances by
implication. Only for a painstaking and observant supervisor is it possible to discover what is
bothering employees before they themselves are aware of grievances. The personnel
655778271.doc 21
department can be helpful by training supervisors to become proficient in observing
employees. The techniques of attitude surveys and statistical interpretations of trends of
turnover, complaints, transfers, suggestions, etc are also helpful in this connection.

The discontent may be valid, legitimate and rational or untrue and irrational or completely
ludicrous. The point is that when a grievance held by an employee comes to the notice of the
management it cannot usually dismiss it as irrational and untrue. Such grievances also have to
be attended to by the management in the same way, as rational grievances. We should know
that a large part of our behaviour is irrational. This may be largely due to our distorted
perception. Emotional grievances which are based upon sentiments (like love, hatred,
resentment, anger, envy, fear, etc), misconceptions and lack of thinking are examples of our
irrational behaviour. These grievances are the most difficult to handle.

One advantage of giving a widest possible meaning to the term “grievance” is that the
possibility of the manager overlooking any complaints is very much reduced.

Even those discontents, which have not yet assumed great importance for the complainant
and have therefore not moved into formal procedural channels- such as casual remarks or
grumbling – technically called “complaints”, come within the purview of the grievance
handling machinery of the organization and are removed in the course.

Causes of grievances
The causes of grievances may broadly be classified in the following categories;

 Grievances resulting from working conditions:

 Improper matching of the worker with the job.
 Changes in schedules or procedures.
 Non-availability of proper tools, machines and equipment for doing the job.
 Tight production standards.
 Bad physical conditions of workplace
 Failure to maintain proper discipline (excessive discipline or lack of it, both are
equally harmful)
 Poor relationship with the supervisor.

Grievances resulting from management policy:

 Wage payment and job rates.
 Leave.
 Overtime.
 Seniority
 Transfer
 Promotion, demotion and discharges
 Lack of career planning and employee development plan
 Lack of role clarity, delegation, etc
 Lack of regard for collective agreement
 Hostility toward labour union

Grievances resulting from personal maladjustment:

655778271.doc 22
  Over-ambition
 Excessive self-esteem
 Impractical attitude to life, etc.

GRIEVANCE PROCEDURE
Machinery for Handling Grievances
Every organization has need for a continuing process of conciliation to facilitate settlement of
controversies and to assure an employee with a grievance that his case will be given a
hearing. One of the important jobs of front-line supervisors is to handle problems with
employees right on the spot to mutual satisfaction of workers and management. Inevitably
grievances will arise that cannot be easily settled by the parties immediately concerned at the
outset. The supervisor himself may be the course of the grievance in the worker’s mind. For
this reason an organization needs a standing procedure or machinery for orderly redressal of
grievances. The machinery makes provision for appeal up the ladder to top-level
management. In situations where union contracts so provide, grievances not otherwise settled
may be sent to arbitration. Morale is boosted by speedy disposition of grievances handled in
conformance with set procedures.

A grievance procedure is a graduated series of steps arranged in a hierarchy of increasing

complexity and involvement. The number of steps in a grievance procedure vary with the
size of organization. A small organization may have only two steps – the supervisor and the
manager – but a big organization may have as many as ten steps. The first and the last steps
are almost always the same for all organisations. Though a labour union is not essential to the
establishment and operation of a grievance procedure, one is assumed in the schematic
diagram of a four-step grievance procedure, which is shown in the diagram below.

As shown in the diagram, the front-line supervisor is always accorded the first opportunity to
handle grievances. He is the first rung of the ladder. If the concerned is unionized, a
representative of the union may also join him. This step is very necessary to preserve the
authority of the supervisor over his workers. But all grievances cannot be handled by the
supervisor because many of them involve issues or policies, which are beyond limits of the
authority. There may be some grievances, which he may fail to redress and find solution for.
Hence provision is made for a second step in handling grievances. The second step may be
the personnel officer himself or some middle-level line executive. If the concern is unionized,
some higher personnel in the union hierarchy may join him. It should, however, be
remembered that by injecting the personnel officer into the procedure at this step and by
giving him authority to overrule and reserve the decision of the supervisor the fundamental
principle of line and staff relation is violated.

A third step is constituted by the top management to handle grievances involving company
wide issues. In this step the top union representatives join. The redressal of grievance
becomes complex and difficult because by now they acquire political hues and colours. If the
grievance has not been settled by top management and top union leadership then in the fourth
and final step it may be referred to an impartial outside person called an “arbitrator”. The two
possibilities are that the issue may be temporarily or permanently dropped or the workers
may go on strike.

655778271.doc 23
 Arbitration
IV

FAILURE
Top Management Top Union leaders
III

Middle Management Middle level union managers

II

Front line supervisor Union representative

I Step

Aggrieved employee

The “Open-door” Policy

Some managers do not share the view that there should be a formal grievance procedure and
that grievances should go through a graduated series of steps. In their opinion there should be
a general invitation to all employees to informally drop in any time and talk over their
grievances. At first glance, this policy may appear very attractive but it has the following
limitations.

This policy is workable only in small organisations. In big organizations where management
by exception is practiced; the top management does not have the time to innumerable routine
grievances daily, which is the work of lower-level managers.
655778271.doc 24
Under this policy the front-line supervisor who should be the first man to know about the
grievances of his sub-ordinates is bypassed. This provokes him in two ways:

First, he thinks the man who skipped him is disrespectful. Secondly, he fears that he will
incur his superior’s displeasure because this will be interpreted by the superior as his failure
to handle his sub-ordinates.

By following an “open-door” policy the top management cannot have adequate clues to
assess supervisor’s skill in handling grievances. It does not know what action, if any; the
supervisor would have taken to resolve a grievance.
Top management is likely to be too unfamiliar with the work situation in which the
grievances developed to be able to correctly evaluate the information that it gets. There may
be several levels of management between the operative employee and the top executive of a
company. Theoretically, each level affords an equal opportunity for distortion, fading and
delay of certain facts on which a complaint may be based.

Though the door of the executive’s office remains physically open, psychological and social
barriers prevent employees from actually entering it. Some employees hesitate to be singled
out as having a grievance. Others are afraid they will incur their supervisor’s disfavour.

Sometimes an open-door policy is used to hide the top management’s own hesitation to make
contacts with the operatives and the open door is often a sign to conceal closed minds.

The way an open-door can be most effective is for a manager to walk through it and get out
among his people. The open door is for managers to walk through, not employees. The true
test of such a policy is whether the top man behind the door has an open-door attitude and his
employees psychologically free to enter.

Desirable Features of a Grievance Procedure.

A grievance procedure should incorporate the following features:

 Conformity with existing legislation. The procedure should be designed to supplement

the existing statutory provisions. Where practicable, the procedure can make use of
such machinery as the law might have already provided for.
 Acceptability. The grievance procedure must be accepted by everybody. In order to be
generally acceptable it must ensure (a) a sense of fair-play and justice to the worker,
(b) reasonable exercise of authority to the manager, and (c) adequate participation of
the union.
 Simplicity. The procedure should be simple enough to be understood by every
employee. The steps should be as few as possible. Channels for handling grievances
should be carefully developed. Employees must know the authorities to be contacted
at various levels. Information about the procedure can be thoroughly disseminated
among all employees through pictures, charts, diagrams, etc.
 Promptness. Speedy settlement of a grievance is the corner stone of a sound personnel
policy. Justice delayed is justice denied. The procedure should aim at rapid disposal
of the grievance. This can be achieved by incorporating the following features in the
procedure;
655778271.doc 25
As far as possible grievances should be settled at the lowest level.
No matter should ordinarily be taken up at more than two levels, i.e., normally there should
be only one appeal. Different types of grievances may be referred to appropriate authorities.
It may be useful to classify grievances as those arising from personnel relationship and others
arising out of conditions of employment. In the former case, a grievance should be taken up,
in the first instance with the authority in the line management immediately above the officer
against whom the complaint is made. Thereafter, the matter may go to the grievance
committee comprising representatives and management and worker. Other grievances should
be taken up, in the first instance, with the authority designated by the management.
Thereafter, a reference may be made to the grievance committee and finally to the top
management. Time limit should be placed at each step and it should be rigidly followed at
each level.

Training. In order to ensure effective working of the grievance procedure it is necessary that
supervisors and the union representatives are given training in grievance handling.

Follow-up/Evaluation. The working of the procedure should be reviewed periodically by the

personnel department and necessary structural changes introduced to make it more effective.

A good grievance procedure attacks problems as they arise; excellent grievance procedure
anticipates them and prevents them from occurring. A manager can know about the
simmerings even before they turn into actual grievances through several means such as
opinion surveys, open door policy, suggestion schemes and exit interviews.

Benefits of Grievance System

 It brings human problems into the open so that the management can learn about them
and try corrective action.
 It helps in preventing grievances by encouraging management to probe underlying
problems before and correct them. The management catches and solves a problem before
it becomes a grievance.
 It provides employees a formalized means of emotional release for their
dissatisfactions. Even if a worker does not use the grievance system for his own
emotional release in a particular situation, he feels better because he knows the system is
there to use if he wants to do so. It builds within him a sense of emotional security.
 It helps in establishing and maintaining a work culture or way of life. As problems
one interpreted in the grievance procedure, the group learns how it is expected to respond
to the policies that have been set up.
 It acts as a check upon arbitrary and capricious management action. When a manager
knows that his actions are subject to challenge and review in a grievance he becomes
more careful in taking decisions.
 Ensures work progresses on with lesser interruptions.

What is industry?
Industry means any systematic activity carried on by co-operation between an employer and
his workmen (whether such workmen are employed by such employer directly or through any

655778271.doc 26
agency, including a contractor) for production, supply, or distribution of goods or services
with a view to satisfy human wants or wishes whether or not –

 Any capital has been invested for the purpose of carrying on such activity; or
 Such activity is carried on with a motive to make any gain or profit.

Industrial dispute.
An industrial dispute means any dispute or difference between employers and employers or
between employers and workmen, or between workmen and workmen, which is connected
with the employment or non-employment or the terms of employment or with the conditions
of labour, of any person.

Important points which emerge from this definition are:

 The use of the adjective “industrial” in the term “industrial dispute” relates the
dispute to an industry.
 Only specific types of disputes, i.e., those which bear upon the relationship of
employers and workers and the terms of employment and conditions of labour are
included under the term. Thus, disputes between government and an industrial
establishment or between workmen and non-workmen are not industrial disputes.
 The use of plural number for the disputant parties in the definition raises doubt on
whether there can be an industrial dispute between an employer and an individual
workman. An individual dispute is considered an industrial dispute only if it relates to
discharge, dismissal, retrenchment or termination of a worker’s services.

CAUSES OF DISPUTES
Disputes arise from a variety of causes including wages and allowances, bonuses,
redundancies, leave and hours of work, indiscipline and violence etc. The most common
cause of all industrial disputes has been ‘wages and allowances’ followed by ‘personnel
matters and retrenchment’.

Forms of Disputes
Strikes and lockouts are the most common forms of organized protests followed by the
workers and employers against each other. Both these forms produce highly disquieting
effects on the economic life of the country. They leave behind a lot of privation for the
workers, reduction in output and profits for industries, high prices and inconvenience for the
general public and an atmosphere of mutual distrust and suspicion for the workers and the
employers. The nation as a whole suffers in as much as the national dividend gets reduced
owing to reduced production.

“Strike means a cessation of work by a body of persons employed in any industry acting in
combination, or a concerted refusal under a common understanding of any number of persons
who are or have been so employed to continue to work or to accept employment”
Thus, the essential ingredients of a strike are:

There should be an ‘industry’ in which the striking persons should be employed.

655778271.doc 27
There should be stoppage of work in pursuance to a concerted plan in combination. Where
the workers absent together from the work-place not to stop work but to participate in a
demonstration which may incidentally result in the stoppage of work it is not a strike because
it is not in pursuance to a concerted plan.

There should be a contract of employment between the striking workmen and the industry.
Thus when the workmen refuse to do additional work which the employer in law has no right
to ask them to do it would not amount to strike. It should be remembered that the duration of
the cessation of work is absolutely irrelevant for the purpose of determining whether a
particular cessation amounts to strike or not.

The cessation of work need not necessarily be connected with an industrial dispute to amount
to a strike. For this reason, sympathetic strikes, protest strikes, etc are ‘strikes’ within the
meaning of the term.

Forms of Strikes.
Cessation of work may take place in a number of ways as described below:

Stay-in-strike, sit-down strike, pen-down strike or tool-down strike. All these forms of strike
are considered by courts as an invasion on the rights of employer and therefore illegal. Sit-
down or stay-in strike amounts to trespass upon the property of the employer.

Go-slow. Slowing down the pace of production is one of the most pernicious practices that
discontented workmen sometime resort to. It would not be far wrong to call this dishonest.
For, while thus delaying production and thereby reducing the output, the workmen claim to
have remained employed and thus to be entitled to full wages. Apart form this also, ‘go-slow’
is likely to be much more harmful than total cessation of work by strike. For, while during a
strike much of the machinery can be fully turned off, during the ‘go-slow’, the machinery is
kept going on a reduced speed which is often extremely damaging to machinery parts. For all
these reasons ‘go-slow’ has always been considered a serious type of misconduct. But it is
not a strike because at no time is the work stopped in this form.

Hunger strike. Hunger strike is a strike with fasting with some or all strikers or even
outsiders for acceptance of the demands.

Lightning or wildcat strike. A wildcat strike is an unofficial strike, i.e., strike not sanctioned
by the union. Such strikes occasionally occur in violation of no-strike pledge in collective
bargaining agreements. In such a situation the union is obligated to use its best efforts to end
the strike. Such strikes are prohibited in public utility services.

Lock out. “Lock out” is the temporary closing of a place of employment or the suspension of
work, or the refusal by an employer to continue to employ any number of persons employed
by him. Lock out, thus, is the counterpart of strike-the corresponding weapon in the hands of
the employer to resist the collective demands of workmen or to enforce his terms.
Strikes and lock-outs and the threat of strikes and lock-outs are said to be necessary to make
the collective bargaining process work. The pressure of strikes and lock-outs compels both
sides toward agreement. Nonetheless, strikes and lock-outs cause inconvenience for those

655778271.doc 28
involved and often for the public as well. They also sometimes disrupt public peace. Hence
they have often been subject of legal regulation.

Regulation of Strikes and Lockouts.

Employees do not have an unfettered right to go on strike nor do employers have such right
to impose lock-out. The Industrial Disputes Act lays down several restrictions on the rights of
both the parties. A strike or lock-out commenced or continued in contravention of these
restrictions is termed illegal and there is severe punishment provided for the same.

Illegal strikes and lockouts are of two types:

 Those which are illegal from the time of their commencement; and
 Those which are not illegal at the time of commencement but become illegal
subsequently.

ECONOMIC IMPACT OF INDUSTRIAL DISPUTES.

Industrial disputes affect all the stockholders in different ways: -

Employer
 Riots can lead to destruction of the plant and buildings
 Machinery can also get damaged due to work stoppage lasting long
 Production is reduced leading to low sales and therefore low profits
 Financial obligations may not be met especially when using credit facilities.

Employee
 Loss of income arising from days on strike or termination of service
 Failure to meet financial obligations for self, family and other dependants.
 On a positive note, may lead to better remuneration where Trade Union succeeds.

Government
 Loss of revenue in taxes from both employers and employees
 Lower Gross National Product
 Economic instability, which can lead to political and social instability/investor
confidence.

Consumers
 Scarcities of the product leading to high prices
 Importation of substitutes leading to eating up into the scarce
 Foreign reserves.

655778271.doc 29
The following figures show the number of strikes that took place in Kenya between the years
1962 – 1979

Year No. of strikes Employees Man days

Involved lost

1962 285 - -
1963 230 - -
1964 244 - -
1965 200 - -
1966 155 39,123 114,125
1967 138 29,985 109,128
1968 93 20,508 47,979
1969 124 37,641 87,516
1970 84 18,945 60,761
1971 72 17,300 162,108
1972 110 26,000 141,000
1973 83 15,834 49,053
1975 25 4,148 9,725
1976 44 13,421 26,248
1977 45 7,288 9,277
1978 46 10,380 20,309.58
1979 54 13,487 33,082.97

There is no doubt that strike action has drastically dropped in Kenya. This can be attributed
mainly to the fact that the parties to industrial disputes have access to a forum, which over the
years proved that it is truly and genuinely impartial.

TASK
 What are some of the alternative approaches
to handling disputes?

655778271.doc 29
GRIEVANCE AND DISPUTE SETTLEMENT MACHINERY

The areas to be covered include

- Meaning of industrial grievance and dispute
- Sources of industrial disputes
- Types of industrial action
- Economic impact of industrial disputes
- Grievance handling procedure
- Role of industrial court n settlement of industrial disputes

Meaning of industrial grievance and dispute

1) Industrial grievance – is any discontent or dissatisfaction expressed openly or otherwise
by a worker or a group of workers.
- It can be valid or not valid, it can arise out of anything concerned with
management hat a worker or workers think, believe, feel or imagine to be unfair.
- It can grow out of bad relationships between workers and their supervisors
especially workers and their supervisors feel that they are not being treated fairly.
- Grievance emanate from problems associated with human nature and the
personal characteristics of the workers, shop stewardess and supervisors
- Complaints are usually made by workers, management grievances are very
rare.
- Workers’ grievances are commonly based on alleged violation of existing
right or alleged unfair treatment of workers by management.

2) A dispute – can arise out of unsettled grievances. A trade dispute means any dispute
between an employer and workers (trade union) which is connected with employment o r
non-employment of the terms of employment and conditions of labour of any person.
- A dispute will arise if a trade unions claim within the negotiation
procedure is not given consideration by management
- In any country where there exists trade unions (officially recognized
and registered) it is important for the management to have knowledge of the laws
governing grievances/disputes

3) Strike – trade disputes CAP 234 define strike as withdrawal of labour or work stoppage.
- A strike occurs when a group of workers refuse to work. Union officials can
issue a strike order if there is an impasse in negotiations or if management violates the
labour contract.
- A strike is a trade unions strongest negotiation weapon. It forces management
to sit at the negotiating table and listen to workers demands
- As far as trade unions are concerned, are not evil, they are part of collective
bargaining
- Strikes are serious interruptions of an organizations operations. The threat of a
strike and the actual strike are major weapons for trade unions against management’s
refusal to meet their demands.
- Stopping work is a demonstration to management of the importance of the
issue in dispute

655778271.doc 30
 - Issues leading to strikes and other labour unrest are normally those contained in
the collective bargaining agreement, although there can be other issues outside the
agreement which can lead to labour unrest
- Such issues are solidarity, that is sympathy strike which can occur when a
member has been dismissed or when workers in another organization are on strike
- Union members may stage a strike or a go slow to show solidarity with or
sympathy for their colleagues
- These actions are regulated under the Trade Dispute Act CAP 234, which
requires that all the negotiation machinery must be exhausted before a strike, otherwise
the strike is illegal
- There are different types of strikes as follows: -
a) Primary strike – Involves withdrawal of labour from the employer
who is directly party to the dispute/grievance
b) Secondary level strike – involves the employer directly. They are
party to the dispute but may have some indirect connection to the employer
c) Shop floor level strike – also referred to as wild cat strike. They are
normally called without higher level authority
d) Direct action- it is uncommon and stress the use of physical force
e) Sabotage – a classic form of direct action.
- In summary strikes are meant to disadvantage the other side (employer)
- They aim to: -
a) Standardize costs
b) Address common interests
c) Improvement of market and product position
d) Are a positive sanction to induce an agreement

4) pickets- A picket occurs when a strike is in progress, union members stand outside the gate
of an organization’s premises to draw the attention of other workers and the general public.

- can also be used to publicize a dispute even when there is no strike in progress
- The striking workers block the entrance of the premises, thus preventing
workers from entering.
- This also prevents materials, supplies or finished goods from entering or
leaving the premises
- Sometimes, striking workers publicize their strike by carrying placards and
distributing literature
- They can also draw a picket line which could not be crossed by any workers
- The picket line is meant to stop workers from making contact with
management or non-union workers who are not on strike
- Picketing can turn into violence between the striking workers and those who
continue to work, but this is outright illegal because in the first place, picketing is
supposed to be peaceful.
- Secondary, violence according to law is a criminal offence. Furthermore,
before any group of workers decide to go o strike or engage in any labour unrest, they
are supposed to exhaust all the established and available machinery.

5) Boycotts – The approach in boycott is similar to that of picketing. The difference is that, it
involves workers and the general public.
655778271.doc 31
 - It is powerful economic weapon in drawing the attention of an organization to
necessary changes
- During a boycott, a union will direct workers and the general public not to buy
the goods and services of the employer
- The union and it s members will also tell the public not to transact any business
with the organization
- Sometimes violence erupts, especially when a group of workers or public
decide to go on transacting business with the organization
- During a boycott, just as in picketing there are demonstrations with placards
and distribution of literature
- Boycotts can result into an organization is business actions coming to a
standards especially when the public join the workers.

6) Lock- outs – A lockout occurs when an employer refuse to allow workers to enter the
working premises
- A lockout is the management counter weapon against trade unions strike, go-
slow or pickets
- They are used for defensive purposes
- This is done n order to protect the organizations property from being damaged
especially in cases where and when striking workers turn to vandalism
- Lockouts can also be used when and where management anticipates a strike

7) Go-slow and sickout –

- Go slow happens when workers report to work but perform at a very slow
speed
- Sick-out happens when workers report that they are sick and cannot come out
- Such a move can paralyze operation especially if a large number of workers in
key positions call in sick

8) Riots – Refer to wild or violent disturbance by a crowd of people. This is an extreme

outcome of boycott and picketing and can be destructive to life and organizations property

Types of industrial action

Workers can achieve their aims through: -
1. Industrial action
2. International action
3. Political action

Industrial action
Here workers can achieve their objective through: -
1. Collective bargaining and negotiation
2. Joint consultations
3. Withdrawals of labour

Sources of industrial disputes

1. Economic matters
2. Disciplinary matters
655778271.doc 32
 3. Recognition of Trade Union by Employer
4. Disputes between unions on representation of group workers

Some major causes of employees grievances

- The root of major employees grievances can be traced to the following factors: -
a. Poor interpretation and implementation of contract of employment by
management
b. Inconsistent personnel policies, practice and procedure
c. Poor definition of roles and overlapping authority and responsibilities
d. Differential perception of group goals, company’s rules and regulations
e. Introduce changes in the organization without considering the impact of such
changes on employees or without prior consultations
f. Prejudice and discrimination resulting in charges of tribalism and nepotism
g. Illicit use of authority and power over subordinates
h. Violation of group norms and values by other members of the group
i. Poor management/ union relations
j. Wage differential between grades of workers
k. Procedure for promotions
l. Disputes over disciplinary actions
m. Disputes over work demarcation
n. Disputes over the negotiating procedures
o. The role of government and wage policy
p. External forces, like rapid changes in technology or economic conditions
affecting the standard of living.

Signs of potential grievances

- In order to prevent grievances from turning into open confrontation and
dissatisfaction management should be alert to potential problems which workers may
have
- Any or a combination of the following situations can be sign of potential
grievances: -
a) Decreased interest in work
b) Negative statements about the job, colleagues, supervisors and the
organization
c) Unwillingness to cooperate
d) Poor job performance
e) Slowing down on the job
f) Being away form assigned place of work with no apparent reasons.

Economic impact of industrial disputes

a) Loss of profits by the organization or management
b) Inconvenience to the public (in case the strikes turn violent)
c) It scare away investors
d) It leads to wastages
e) Government loses revenue
f) Loss of wages for the workers
g) Trade unions don’t get subscriptions

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Reasons for grievance procedures
a) Absence leads to unrest, dissatisfaction, chaos
b) Management can detect trouble spots or friction areas in the enterprise
c) It is an orderly outlet of protect
d) Important supplement to collective bargaining agreement.

Individual/union/management role
Basically, grievances can be handled in two forms:
a) Individual grievance
b) Collective grievance

a) Industrial grievance – an individual employee of the company wishing to

raise grievance with which he is directly and personally concerned, shall first approach
his immediate supervisor. In case settlement is not reached, he/she shall have the right to
appeal to the higher levels of management as soon possible in accordance with the
established procedures. The employee shall be represented by an accredited union at all
stages.

b) Collective grievances – In FKE/COTU model agreement on recognition and

negotiating procedure, a collective grievance is defined as any dispute arising from a
breach of real or alleged or existing terms of service in the matters specified in clause 2(a)
of this agreement which may affect all employees or any of the employees” clause 2 or
the agreement specified negotiable items under the collective agreement.

The grievance machinery and its desirable features

- The machinery or procedure for the treat merit of grievance should be
thought of in the consent of a company dealing with organized labour.
- Even, so with or without existence of trade unions, in the undertaking, every
company should endeavor to establish such a procedure, perhaps, primarily for the
processing of individual complaints and grievances
- A good grievance machinery should possess the following features
a) Be fair – all supervisors should accept the employees, right of appeal or to
be represented. In other words they should be rights of representation of the
workers
b) Be clear cut – no procedure can work satisfactorily unless there are definite
provisions, always adhered to determining what is to be done, when and by
whom.
Every employee:
- With whom complaints should be lodged
- In what form (oral or written)
- What restrictions if any as to when complaints can be
presented
- How long a worker should expect to wait for final decision on
his complaints.
c) Simplicity – this procedure should be sufficiently simple, easy and quickly
explainable to each new employee

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 d) Speed in operation – Prompt action is desirable not only for the complaint
but also by management. Undue delay can be costly in the growth and
spread of discontents
e) Stage at which full time official is involved
f) Stages involved and time limits
g) Officers involved at each stage

The main components of grievance procedure

These are many types of grievance machinery or procedure. It is an error to thinks that there
is one just or best type. Types vary from one company to the other and the stages vary from
steps one to ten, more or less, depending on the size of the organization. Nevertheless, the
first and last steps appear to be the same always no matter the number of intervening steps.
- In order to expedite action on grievance settlement, it is also common practice
to attach a time tag to each step. For example, it could be that at each step in the
machinery, every effort must be made within a period of two or three days to resolve the
grievance, so that in all within 7 days, more or less, a final decision must have been
arrived at.
- The essence of grievance settlement is on the time factor. The longer it takes to
settle a grievance, the slimmer the chance of successful settlement.

STEP I
- The employee should raise the matter with his immediate supervisor or
manger, and may be accompanied by a follow employee
- The supervisor or manager will endeavor to resolve the grievance without
delay.

STEP II
- This is intermediate step. There can be a number of steps between the first and
the last step in machinery. At this step, the grievance is submitted to middle
management for settlement. In many companies, the personnel Department is
injected into the procedure as a decision-making power with authority to
reverse or overrule a supervisor who had featured prominently at the first steps.
- Similarly, the labour – Relations specialist should study the grievance although
it is appropriate that the power to decide should rest with line management.
- The line manager often consider grievance procedure incidental and distasteful
duty.
- Hence this lack of specialization has given rise to situation in which staff
personnel department is given authority to make decisions about grievance.
- On the union side, the intermediate levels are represented by higher personnel
in the union hierarchy (i.e. committee of shop stewards or National Officials of
the Union)

FINAL STEP
- Being in the last step, this involves a discussion of the grievance between
representatives of top management and top union officials. For the union, the
local or national officials would be involved
- It is often difficult to secure an integration of interests of this high level. The
grievance has now become an issue which has both political and social
655778271.doc 35
 implications. A lot of time, energy and common sense is now brought into play
for the final resolution of the grievance and or both parties to come to
agreement, knowing that in the event of failure the issue may be referred to
arbitration for final adjudication. If settlement at this final level fails, the union
has a number of options: -
a) To drop the matter temporarily or permanently
b) To call a strike action if the contract permits
c) To leave the matter with the National office or pursue any
appropriate action.
A typical codification of a grievance settlement procedure where an agreement with
union exists
a) Individual - grievance
- In this situation an individual raises his/her grievance to the immediate
supervisor.
- In case no agreement has been reached the employee forwards the case t the
higher levels of management. In case the employee is unionisable, he shall be
represented by an accredited union at all stages.
b) Collective claims
There shall be any claims for alteration to terms of service regarding matters negotiable as
per the recognition. Agreement which may affect all employee or any group of employees
i) Such claims shall be raised in writing with the management by the Union’s
General Secretary or his authorized representative normally three months
before the expiration of the current agreement within which period the parties
will endeavor to reach a settlement. All agreements jointly reached shall be
committed in writing and signed by both parties.
ii) Consideration – presupposes the reconciliation of the parties in a dispute by
an appointee of the minister having consulted the Tripartite committee, which
in turn is made up of a representatives of the government, the employers and
the workers
iii) Investigations – presupposes the appointment of an appointment of an
independent party to ponder and establish the truth on or otherwise of the
issue in dispute and to come up with a finding and recommendations on how
the issue can be settled
- Both conciliation and investigation results would only be binding on the parties
to a dispute if they voluntarily chose to honor them as a formula for the
settlement of their dispute. Where the parties fail to accept the efforts of the
conciliator or the recommendation of an investigator either party would be free
to refer the matter to the industrial court as a dispute

Benefits of a grievance system

i) It helps to establish and maintain a satisfactory working culture or way of
life
ii) It helps to arrest and solve the problems before they become serous and to
prevent them from spreading to other workers
iii) Grievances signal to management that part of its human relations is not
functioning properly and need readjustment
iv) It encourages human problems to be brought into the open so that
management can learn about them and take corrective action
655778271.doc 36
 v) It has provided a system of checks and balances in employer/employee
relations
- Awareness of grievance in work situation, makes the manager or supervisor to
give more care to the human aspect of his job when he knows that some of his
actions are subject to challenge and review in a grievance system

Problems of operating grievance procedure

i) Workers fear repercussions
ii) There is no clarity on who makes certain decisions for example line
manager? Personnel manager? On Director?
iii) Grievances take too long to deal with
iv) Shot-circuiting occurs thereby by passing certain procedures to get things
done quickly

Trade disputes at formal level

- Trade disputes become formal when the secretary of a Trade Union reports the
matter to the ministry of labour. The minister then consults the tripartite
committee (representative of workers plus the manager. The committee
therefore vetts (examines) disputes reported.
- The minister can:
 Can accept the dispute
 Can refuse to accept it
 Refer back the matter to the parties if he feels that they can be
resolved
 Can endeavor to effect conciliation
 Refer the matter for arbitration to the industrial court

- Any dispute whether existing or new can be reported to the minister for labour.
The dispute must be collected and reported by a trade union for it to be
accepted
- Disputes of dismissal must be reported within 28days. Why? So that the
vacancy is not replaced for unlawful dismissal
- This report must be in writing specifying the employee classes involved. The
party union must indicate the union and respondents involved and group of
employees and the matter in dispute. Furthermore, sufficient copies of the
report must be sent to the interested bodies
- Another example of a dispute is in redundancy. Redundancy can be defined as
super abundance of factors of production (laobour) existing without
employment
- There is need to explain reasons why there has to be redundancy; redundancy
cost to the union; severance pay (5day per year worked); notice of termination
of contract and gibing a certificate of service

Methods of conciliation, investigation and arbitration

Investigation – This occurs when the minister is satisfied that a dispute exist.

655778271.doc 37
 - A public officer (labour officer) is appointed and will call upon management and
union to make submissions on the dispute
- Alternatively a committee/panel of investigators might be appointed by the minister
for labour and make recommendation
- The committee must consist of members qualified in industrial relations and an
impartial member
- The investigator(s) is to make a report to the minister i.e. the report must have
proposals of how the dispute is to be sorted out. This therefore, must be considered
desirable by both parties
- The minister then processes the report; vary it or take it the way it was or change it
completely. If parties accept the report, the matter is finalized. And if rejected, it goes
to the industrial court for arbitration.

N/B it is worth noting that both parties are brought together on the discussion of the dispute
at hand.

655778271.doc 38
TOPIC 4: TRADE UNION AND TRADE UNIONISM

Trade Union Organisation and Structure

A trade union is an association of workers formed to protect their interests in employment
situations such as in matters of pay and working conditions and promoters of people at work.
It protects and promotes workers interests mainly by means of collective bargaining and
consultation with employers.

Trade unions provide workers with a collective voice to mark their wishes known to
management and thus bring actual and desired conditions closer together.

Trade unions exist to let management know that there will be, from time to time, an
alternative view on key issues affecting employee. Unions see their role as that of
participating with management on decision-making on maters affecting their interests.

Unions therefore work to secure through collective bargaining improved terms and conditions
for their members and also provide protection, support and advice to their members as
individual employees. Trade union success depends on members’ participation both as
individuals and as groups.

Over the years, trade union objectives have widened and have been influenced by economic,
political and social systems. The following have been found to also be part of the union
objectives.

 Secure for the workers fairer wages in the light of the cost of living and prevailing
standards
 Improve the workers working conditions by securing shorter working hours, better
working facilities and other welfare benefits.
 Assure the workers of a share of increased profitable of the organisation by providing
adequate payments for the job done
 Protect the workers interests and safeguard them against exploitation
 Ensure the workers’ job security by resisting retrenchment and any other
victimization likely to harm them
 Protect the larger interest of society by aiding in the improvement of trade and
industry
 Provide a medium through which workers’ interest and grievance can be expressed

Reasons for Joining Or Not Joining Trade Unions

Employees join a union for the following reasons: -

 To try to improve their working conditions

 To gain some control over working environments
 Due to pressure from colleagues who are already in a union
 Dissatisfaction with management
 Need for social outlet
 Need for avenues of leadership

655778271.doc 37
When a substantial number of employees are members of trade unions the effects on the
management of a company are that: -

 Decisions and policies are subject to challenge and negotiation

 Management powers are limited, and they may be used cautiously
 Decision making may become centralized so that a unified company industrial
relations policy can be formulated and practiced
 The management may be required to give certain information about the company to
union representatives

The reasons why individual workers refuse or avoid joining trade unions may include: -
 It costs money to be a union member
 The thought/idea that trade unions are unnecessary
 The belief that some benefits will be gotten since the CBA covers all workers in the
same grades
 Individual beliefs/convictions.

Organisation and Structure

The internal structure of individual trade unions varies greatly. However, they all depend on
membership participation and they endeavour to practice internal democracy.

Although some trade union leaders are dedicated to the movement, others may seek the
satisfaction of leadership or the opportunity to gain status, recognition and freedom from tight
supervisory control.

The affairs of a trade union are run by elected union officials. The chief Executive is the
secretary General who is elected by all the union members. The secretary general supervisors
the full-time officials, controls service facilities and pursues the policies derived upon by
union members.

Broadly speaking, trade unions officer are of three types: -

 The full time paid official, employed by the union

 The part time voluntary official who is elected to be a branch officer of his union
 The workplace representative – the shop steward or staff representative

At their place of work, workers are represented by a shop steward. This s an employee of the
firm, but who acts on behalf of a group of his fellow employees. The shop steward is
expected to perform a full day’s work as the other company workers and gets his orders and
instructions from the supervisor’s in-charge of the members he represents.

The shop steward is the daily contact between union members and management and is
expected to represent both the member’s interest and the union policy to management.

A steward is charged with the responsibility of recruiting new members. In the earlier days,
stewards used to collect union dues for the union, but this is no more. A check-off system
now allows the employer to remit union dues directly. The stewards also pursue grievances
with management and union officials. Large organisations with many stewards have a chief
655778271.doc 38
steward elected from among the shop stewards to be their overall representative to both
management and union.

Shop stewards powers are constrained by various company and trade unions rules. The
degree of power they hold depends on several factors including: -

 The extent to which collective bargaining is centralized at company / industry level

 The state of the local labour market
 The nature of the company’s wage structure
 The degree of support for the union amongst employees
 Statutory provisions

Shop stewards are less powerful if the labour market is plentiful, but have greater influence in
conditions of skills shortage.

Where wages depend heavily on incentive payments, worked out locally, the stewards will be
involved in negotiating pay-putting him in a strong bargaining position. However, if people
are paid annually on an incremental scale, then the stewards have no influence on pay. The
stewards also depend on their constituents for support – if available their position is strong,
but if missing, their position is weakened considerably.

TYPES OF TRADE UNIONS

There are basically four types of trade unions

 Crafts
 Industrial
 General
 Occupational of non-manual

CRAFT UNIONS
They consist of skilled workers who pursue the same craft. Originally, such unions were
exclusively for those skilled workers who had acquired their skills through traditional
apprenticeship e.g. carpenters, masons etc. they are the typical closed-shop trade unions

INDUSTRIAL UNIONS
These are organized in a particular industry, irrespective of craft, trade, occupational skill or
grade of the members.

GENERAL UNIONS
These bring together all categories of workers across a range of industries regardless of craft,
industry or occupation. They are mostly for those occupations, which cannot be easily
defined as either craft or industrial.

OCCUPATIONAL OR NON-MANUAL UNIONS

655778271.doc 39
These are basically concerned with organisation, technical, clerical, professional, supervisory
and managerial staff separately from other workers.

 TASK
1. Generate a list of 10 trade unions in the Country and categories them by type.

2. Discuss the achievements of the labour movement in Kenya in view of what has been
identified as the principle objectives of trade unions

FUNCTIONS OF TRADE UNIONS.

For the attainment of the above unions perform two types of functions militant and
ministrant. Militant functions are the strikes and go slows. Ministrant functions are those
services given to union members during strikes and lockout and to provide other benefits to
them. Ministrant functions can again be either intramural or extramural.

The former include those welfare efforts of unions, which are made within the factory
premises (e.g., improvement in working conditions, regulation of hours of work, provision of
rest pauses, adequate wages, sanitation, safety, etc). The latter include those welfare efforts of
unions, which are made outside the factory premises (e.g., provision of educational,
recreational and housing facilities to workers).

We list below the various functions of a trade union under these four heads:

1. Functions relating to the union members

2. Functions relating to the union
3. Functions relating to the organisation
4. Functions relating to society.

Functions Relating To The Union Members

 To' safeguard workers against all sorts of exploitation by, political parties by
the employer and by the union leaders.
 To protect workers from the atrocities and unfair labour practices of the
management.
 To ensure healthy, safe and conducive working conditions, and adequate
conditions of work.
 To exert pressure for enhancement of rewards associated with the work only
after making a realistic assessment of its practical implications.
 To ensure a desirable standard of living by providing various types of social
services-health, housing, educational, recreational, co-operative, etc." and by widening
and consolidating the social security measures.
 To guarantee a fair and square deal and social justice to workers.

655778271.doc 40
 To remove the dissatisfaction and redress the day-to-day grievances and
complaints of workers.
 To encourage workers' participation in the management of industrial
organisation and trade union, and to foster labour-management and leader-follower co-
operation.
 To make the workers conscious of their rights and duties.
 To impress upon workers the need to exercise restraint in the use of rights and
to enforce them after realistically ascertaining their practical implications.
 To stress the significance of settling disputes through negotiation, joint
consultation and voluntary arbitration, and not through adjudication.
 To raise the status of trade union members in the industrial organisation and in
the society at large.

Functions Relating To Trade Unions Organisation

 To formulate policies and plans consistent with those of the industrial organisation
and society at large
 To improve the network of communication between trade union and its members.
 To eradicate various types of 'isms' like tribalism, regionalism and linguism within the
trade union movement.
 To keep away from advocating the adoption of unfair labour practices.
 To save the union organisation from the exploitation by vested interests-personal and
political interests.
 To continuously review the relevance of union objectives in the context of social
change, and to change them accordingly.
 To prepare and maintain the necessary records.
 To manage the trade union organisation on scientific lines.
 To keep away from advocating the adoption of unfair labour practices.
 To continuously review the relevance of union objectives in the context of social
change, and to change them accordingly.
 To Publicise the trade union objectives and functions, to know people's reaction
towards them, and to make necessary modifications

Functions Relating To the Organisation.

 To increase production: quantitatively as well as qualitatively by laying down the
norms of production and ensuring their adequate observance.
 To help in the maintenance of discipline.
 To create opportunities for workers' to participate in management and strengthen
labour-management co-operation.
 To help in the removal of dissatisfaction and redressal of day-to-day grievances and
complaints.
 To promote dialogue and amicable relationships between the workers and the
management by settling disputes through negotiation, joint consultation and voluntary
arbitration, and by avoiding litigation.
 To create favourable attitude the management towards trade unions and improve their
status in industrial organisation.

655778271.doc 41
 To put pressure on the employer to enforce legislative provisions beneficial to the
workers, to share the profits equitably, and to keep away from various types of unfair
labour practices.
 To facilitate communication between the management and the workers
 To impress upon the management on the need to adopt reformative, and not punitive,
approach towards workers' faults.

Functions Relating To Society:

 To render all sorts of constructive co-operation in the formulation and implementation
of plans and policies relating to national development.
 To actively participate in the development of programmes of national development,
e.g. family planning, afforestation, national integration, etc.
 To launch special campaigns against the social evils of corruption, nepotism,
communalism, tribalism, regionalism, price-rise hoarding, black marketing, smuggling,
sex inequality, illiteracy, dirt and disease
 To create public opinion favourable to government's policies and plans, and to
mobilize people's participation for their effective implementation
 To enable unorganized sector to organize itself.
 To create public opinion favourable to trade unions and thereby to raise their status

TASK
 What are the effects on management of the existence of
active trade unions in the organisation?

655778271.doc 42
HISTORICAL BACKGROUND OF TRADE UNIONS IN KENYA
There are many reasons which lead to the formation of the trade unions in Kenya. The main
causes were:
i) Imposition of colonialism
ii) Land alienation
iii) Introduction of Indian labour
iv) Introduction of cash rupees in the economy
v) Passing of repressive ordinances

1895 – 1938:
In 1895, the British Government decided to build the Uganda Railway from Mombasa to
Kasese in Uganda based mainly in commercial and political reasons.
 During the same period, the British government was advised to encourage white
settlement in Kenya based on its climate, fertile land and abundant labour. Africans
were removed from their original land to give way for white settlement.

 The construction of the Railway and white settlement required abundant labour,
which was in short supply because African were reluctant to provide it. In order to
resolve this labour problems, the British government introduced in Kenya in 1896 the
Indian Labour . In 1901, hut tax ordinance and nature registration ordinance were
passed.

 Hut ordinance was deliberately introduced and enforced to make an adult African pay
his hut taxing rupees while the nature ordinance was used to control and count the
number of African – adult labour available.

 Between 1919 –1922, Africans organized colonial government ordinances, Kipande,

forced labour etc and various organizations were formed namely:- Kikuyu Central
Association, young Kikuyu Association and the Kavirondo welfare Association.

 In 1992, agitation against the colonial government was so tense that the government
decided to arrest and detain Harry Thuku who was the leader of the young Kikuyu
Association and his detention was followed by a strike in Nairobi.

 Between 1922 & 1930 there were consultations sent to probe land and labour
problems. It encouraged colonial Government to pass for the first time the colony
trade union and trade dispute ordinances of 1937.

 Despite the passing of the ordinance organizing and recruitment was difficult because
of colonial government, employers and white settlers, hostilities against trade
unionism.

 Trade union leaders were harassed victimized and threatened with deportation by
criminal authorities.

 In 1938, the labour Trade Union of Kenya (LTUK) organized a big conference on
workmen’s
compensation in order to suggest clauses in favour of workers.
655778271.doc 42
  In 1939 the Labour Trade Union of Kenya was renamed Labour Trade Union of East
Africa (LTUEA) so as to represent those from Tanganyika and Uganda. The LTUEA
also organized trade union courses in Kiswahili and English.

 (1939 – 1952): Trade union activities continued during the war period including:
i) The establishment of the Labour Advisory Board in 1942.
ii) The first African Eliud Mathuu entered the legislature council in 1944
iii) The formation of Kenya’s Study Union (KSU) in 1946 later renamed as
Kenya African Union (KAU).
 In 1947, the British Government brought in a colonial labour officer who was charged
with the responsibility to advice the local trade unions in organizing, bargaining and
grievance handling.

 During the same period there was a general strike of 15000 members in Mombasa. It
was organized by African Workers Federation (AWF).

 In 1895 at a place called Ribe in Mazeras at the Coast Province, African workers who
were employed by the church mission of East Africa formed as worker’s
organization .

 It recruited workers from the mission in Ribe. Some of its demand were to improve
the conditions of the workers and assist in individual grievances.

 Other trade unions formed in 1947 were African Taxi Driver’s Union (ATDU) later
renamed as Kenya African Road Transport and Mechanic Union. (KARTMU).

 Others include Kenya Houseboys Association Tailors and Garments Workers Union,
Night Watchman Association and African Press Workers Association..

 In 1949, Makhan Singh and other Africa trade unionists formed the East African
Trade Union congress.

 By the end of 1949, the East African trade union congress had brought together the
wings of the labour movement in Kenya.

Various trade unions and political agitation took place in 1950-1952, the government
declared a state of emergency banning all political activities including Kenya African Union.
It arrested and detained most political leaders.

1952-1965: In 1952, six trade unions formed the first African dominated National centre of
trade unions namely: The Kenya Federation of Registered Trade Unions (KFRTU). These
were:
i) Transport and allied workers union.
ii) Tailoring, Tent makers and Government workers Union
iii) Domestic and Hotel workers union
iv) Night watchman, clerk and shop workers union
v) Typographical union of Kenya
655778271.doc 43
 vi) East Africa Federation of Building and construction workers union.

The Kenya Federation of Registered Trade Union wads affiliated to Brussels based
International Confederation of Free Trade Union. In 1955 the KFRTU was renamed as
Kenya Federation of Labour (KFL)

In 1960, a constitutional conference took place in London. In 1962 Kenya was granted
internal self-government and Tom Mboya became the Labour Minister.
In 1963, Kenya became independent and the role of trade union had to be redefined in an
independent Kenya.

Internal disagreement led to a split in the organization leading to the formation of another
Revival National center of Trade Unions which was called Kenya African Workers Congress
(KAWC). The four National Trade unions which formed the KAWC were:

i) Quarry and mine workers union

ii) Dock workers union
iii) Petrol and oil worker union
iv) Custom workers union

The two National Centers Rivalism led to a scuffle, which left three persons dead in
Mombassa in 1965. The government intervened by appointing presidential Ministerial
Committee of trade unions. The committee made their recommendations in line with the
government sessional paper on African socialism and its application No. 10 of 1965. The
recommendations were as follows: -
i) The deregistration of both KFRTU and KAWC
ii) The creation of new Central Organization of Trade union (COTU)

The committees recommendations were implemented. From 1965 to 1981 the Central
Organization of Trade Unions held five elections.

The second person who became the secretary general of COTU was James Dennis Akumu
who later became the secretary general in 1975 of the Pan African Trade Union Center. (The
Organization of African Trade Union Unity – OATUU)

At the organization’s forth coming meeting in 1975, Juma Boy who had taken over as the
secretary General form Denis Akumu faced a strong opposition from James Karebe who was
the secretary General of Kenya Local Government Union. Karebe finally lost to Juma Boy.

At one time, Karebe formed rival National center of trade unions called Federation of United
Trade Unions (FUTU) but it was not registered by the government. The disagreement
between FUTU and COTU was based on the representation of National Unions at COTU
governing council meeting. In 1980 the COTU’s constitution was amended with those
amendments registered by the government, Karebe fought to take over from Juma Boy but he
lost again. The current COTU Secretary general Francis Atwoli.
Juma Boy.

655778271.doc 44
QUESTIONS FOR REVIEW
1. Explain reasons that lead to the formation of trade unions in Kenya
2. Outline briefly the historical background of trade unions

655778271.doc 45
TOPIC 5: ILO CONVENTIONS

The International Labour Organisation

INTRODUCTION.
The ILO came into existence on the 19th of April 1919 as a result of the peace conference
convened at the end of World War 1.

The ILO is a tripartite body constituting of representatives from governments, employers and
workers of the member state. It is based in Geneva. Its primary duty is to set international
labour standards on labour laws and practice. Each year, the ILO looks at the various issues
affecting labour relations in the world, discuss and come up with a labour standard in that
particular area to be achieved by the countries of the world. These are called
CONVENTIONS. The ILO standards are designed to protect the interests of employers,
workers and the governments in matters concerning labour relations. The ILO also passes
other supplementary instruments called RECOMMENDATIONS that support but do not have
the same force as the Conventions.

National governments are expected to ratify and adopt international Labour standards to
rectify and translate them into labour legislation as they find relevant to their situations. To
that extent, the ILO Conventions and recommendations are standard setters and are often
referred to, to justify a case for legislation or amendment of an existing legislation or to
influence the industrial court on a given issue.

Kenya became a member of the ILO in 1964 and indicated it was now bound by 24 of the
ILO Conventions that had been ratified by the colonial government. This meant it was going
to continue discharging all its obligations in respect of all these ratified Conventions. Since
1964, Kenya has ratified a further 22 Conventions thus bringing a total 46 ratified
Conventions to date.

Objectives of the ILO.

 To achieve full employment and to raise the standards of living.
 To provide employment to workers in the occupation in which they can have the
satisfaction of giving the fullest measure of their skill and make contribution to their
common well being.
 To provide facilities for the training and transfer of labour.
 To formulate policies in regard to wages and earnings, bonuses and other conditions
of labour calculated to ensure a just share of the fruits of progress to all, and a
minimum living wage to all employed and in need of protection.
 To get effective recognition of the right of collective bargaining, co-operation of
management and labour in continuous improvement of productive efficiency and
collaboration of workers and employers in social and economic measures.
 To extend social security measures to provide a basic income to all in need of such
protection and comprehensive medical care.
 To adequately protect the life and health of workers in all occupations.
 To provide child welfare and maternity protection.
 To provide adequate nutrition, housing and facilities for recreation and culture.
  To assure equality of educational and vocational opportunity.

Structure of the ILO

The total number of members to the ILO is 181. The ILO consists of 3 principal organs as
described below.

1. The International Labour Office.

This is the head office of the organization and is situated in Geneva. The main functions of
this office are: -

 To prepare documents on the items of the agenda of the International Labour

Conference.
 To assist governments in framing legislation on the basis of the decisions of the
International Labour Conference.
 To carry out its functions in connection with the observance of the conventions.
 To bring out publications dealing with industrial labour problems of international
interest.
 To collect and distribute information on international labour and social problems.

2. The Governing Body.

It is a tripartite body consisting of 56 members of which; 28 are drawn from governments, 14
from the employer’s organizations and another 14 from employee organizations. The
functions of this body are as follows: -

 To co-ordinate the work of the organization.

 To draw up the agenda of the ILC
 To appoint the Director-General of the Office
 To scrutinize the budget.
 To follow-up implementation by member states of the conventions and
recommendations adopted by the ILC.
 To fix dates, duration and agenda of the regional conference.
 To seek opinion from the International Court of Justice on the direction of the ILC.

3. The International Labour Conference (ILC)

This is a tripartite body in composition and meets at least once every year. Its functions are: -

 To formulate international labour standards.

 To fix the amount of contribution by each member state.
 To select once every 3 years members of the Governing Body.
 To elect its president.
 To ask the Governing Body to seek opinion from the International Court of Justice.
 To decide the budget expenditures prepared by the Governing Body.
 To appoint committees to deal with different matters during each session.
 To regulate its own procedures.
 To make amendments to the constitution.
 To confirm the powers, functions and procedures of the regional conference.

47
Functions of the ILO.
 It passes Conventions and makes recommendations on labour matters every year,
which are then considered by the governments of member-states for adoption. This
has helped build up an International Labour Code.
 It gives expert advice to member-countries in making plans for improving their labour
conditions.
 It carries out research studies on labour problems throughout the world and publishes
its findings in the form of books and magazines. This is done through the
International Institute for Labour Studies.
 It trains people in solving labour problems in their countries.
 It organizes regional conferences every year.

Types of Standards.
There are two main types of International Labour Standards, which are enforced via a 2/3
majority of the International Labour Conference.

The International Labour Conventions. A convention is an instrument, which is designed to

be ratified, and a member state that ratifies it hereby undertakes to apply the standards it
contains.

The International Labour Recommendations. This is an instrument which is exclusively

designed to set standards as a guide for action, but is not subject to ratification.

Both conventions and recommendations are adopted by the Conference and are officially
communicated to every member state of the organization, which is expected to bring them
before authorities – the national parliament.

Ratification of ILO
The following should be noted in the case of all ILO conventions.

 Conventions are designed to be ratified by the member states – and hence creating
binding obligations.
 Formal ratifications of all conventions must be communicated to the ILO Director
General for registration.
 A convention is binding only to the members whose ratifications have been
registered.
 A convention comes into force 12 months after the date on which the ratification of 2
members has been registered with the ILO Director General.
 Thereafter, a convention shall come into force for any member 12 months after the
date on which its ratification was registered.

Decision to ratify any convention

The final decision whether or not to ratify a convention or recommendation is reached by the
elected representatives of the people in parliament – that is, after recommendation by the
various competent authorities e.g. National Tripartite Labour Advisory Board.

48
It should also be pointed out that there is a basic distinction between submission of these
instruments to the competent authorities and ratification. The obligation to submit is general
in character and does not imply that the convention must be ratified. Moreover, this
obligation arises even with recommendations, which are not open to ratification.

The ratification of International Labour Conventions is a matter for free decision of each
country. Recommendations, which often complement conventions on the other hand, are
guidelines for national legislation and practice. They are subject to ratification and do not
give rise to substantive obligations.

What really matters is not the number of conventions ratified, but rather the extent to which a
country puts into effect the few international labour standards it has ratified.

Once a Convention has been ratified, the government is required (under Article 22 of the ILO
Constitution) to submit an annual report on its implementations in law and practice. Under
article 23 of the ILO Constitution, the government is required to send a copy of its reports to
the most representative organization of employers and workers in the country, and they may
make any comments they feel necessary, either through the government or directly to the
ILO.

Constraints with Regard to Ratification of ILO Standards.

 Pre-mature ratification of ILO standards i.e., ratification before ensuring harmony
between the Country’s laws with the relevant provisions of the Convention to be
ratified.
 Problems of acute shortage of staff in the Ministry with the requisite knowledge on
standards.
 Recent introduction of the “social clause” in international trade agreements – with the
possibility of the application of sanctions for alleged violation of ratified ILO
standards.
 Difficulties in application of ratified ILO standards in the face of the implementation
of the SAP’s (structural Adjustment Programmes)

 What in your opinion are the benefits to a country, for belonging or having
membership with the ILO?

 How has the ILO helped the labour movement in Kenya?

INTERNATIONAL LABOUR ORGANIZATIONS (ILO)

ILO was founded in 1919 and has its roots in the social conscience movement of the 19 th
century. It became recognized at the end of the first world war (1918). As a result of this ILO
was created by the Versailes Peace treaty to do the following. To
a) set international standards for protection of workers
b) Provide a body of knowledge on the world’s labour problems

49
The ILO was the first specialized agency of the UN (1926). Today hundred of ILO experts
are at work in all parts of the world assisting government in the following fields:
 Vocational training
 Management development
 Employment promotion
 Development of small scale
 Social security
ILO is an intergovernmental agency but employers and workers as well as government take
part in its work (Tripartite).

Functions of ILO
- One of the primary functions of ILO has always been to raise standards by building
up code of international law and practice (practice which relate to employment are
observed worldwide).
- The International Labour standards (ILS) are set by the International Labour Congress
(ILC) in the form of conventions and recommendations.

Conventions
- These are instruments which not only set standards of achievement, but which when
rectified create binding international obligation for the country concerned.
- It is conceived as a model for national legislation. A convention is binding only on
member countries that have ratified it.

Recommendations
- This creates normal such obligations but are essential guides to natural actions.
- Recommendations when rectified only act as guides they are not binding.

Research
- Research and Publishing are important aspects of the work of ILO.
- The ILO provides technical cooperations under three programmes through:
i) UNDP – United Nations Development Programme.
ii) Regular Budget Programme.
iii) Funds in trust.

ILO CONVENTIONS
International Institute of Labour Studies (ILLO)
It is based at Geneva Switzerland and was established in 1960.

International Centre for advance Technical & Vocational Training (I.C.A.T.V.T)

- Established in 1965 by the ILO. Its based in Turin in Italy. It provides advanced
technical and vocational training for members from the member states of ILO.

International Labour Conference (ILC)

- Takes place every year at Geneva.
- Delegates in this conference speak and vote independently.
50
The ILO governing body
- Its elected by the conference and is also tripartite. The body functions as the organs
executive council.

The International Labour Office (I.L.O)

Each member government sends four delegates. 2 government, 1 employees

1 employer to the annual meeting

National Labour Conference (ILC)

Governing Body
The supervises the international
Labour Office

International Institution International Centre for Advanced

For Labour Studies Technical and Vocational Training
Geneva

Regional Bodies

Birth of a convention
- The governing body is usually guided by the wishes expressed by inside and outside
the ILO.
- These wishes are usually from governments, employers and workers organization.

Examples of conventions that are significant to Kenyan situation convention No. 87

- Its called the freedom of association and protection of the right to organize.

Aims of the Standard (Conv. No. 87)

- The right, freely exercised by workers and employers without distinction, to organize
for furthering and depending their interests.

CONVENTION No. 87 (1948)

Summary of the Provision
- Workers and employers without distinction whatsoever have the right to establish and
join organizations of their own choice with a view to furthering and defending their
respective interest.
- And such organizations have the right to draw up their constitutions and laws.
- They have a right to elect their representative in full freedom
51
 - Have a right to organize their administration and activities and be able to formulate
their own programmes.
- Public authorities shall refrain from any interference which would restrict the rights or
impaired the lawful exercise of this right.

CONVENTION No. 98 (1949)

Aim of this standard
i) Protection of workers who exercise the right to organize
ii) Non-interference between workers and employers organization
iii) Promotion of voluntary collective bargaining.

Summary of he Provisions
- Workers shall enjoy adequate protection against acts of antiunionism discrimination
- Workers should be protected more particularly against dismissal or any other
prejudice by reason of union membership on participating in union activities
CONVENTION No. 135 (197)
Workers representatives
Aims of this standard
i) Protection of workers representatives in their undertaking against arbitrary
dismissals, dissemination

Summary of this provision: Workers representatives should be protected against prejudicial

acts based on their status; They should be afforded facilities in their undertaking to enable
them carry out their promptly and efficiently

CONVENTION No. 158

Termination of Employment
- Termination of employment is cessation of employment at the initiative of the
employer
- This convention provides that the employment of a worker shall not be terminated
unless there is a valid reason. This may have to do with the capacity or conduct of the
worker.

Resource which are not valid grounds for termination are:

i) Union membership.
ii) Participation in union activities at appropriate hours.
iii) Seeking office or acting as workers representative.
iv) Filing a complaint against the employer.

Summary of this provision

- This convention provides for procedures to be followed for the termination of
employment and also appeals.
- The burden of proving the existence of valid reason rests on the employer.
- Completed bodies shall be empowered to reach a conclusion with regard to the
evidence provided by parties according to procedures provided by National Law and
Practices

52
 - However, termination of employment may be valid if reasonable notice or
compensation in lieu of notice is given in time.
- If the termination is unlawful (wrongful, unjustified) then the decision can be reversed
to reinstatement or payment of compensation.

LABOUR LEGISLATIONS IN KENYA (LABOUR LAWS)

- This refers to general principle that govern relationships that exist between one who
sells personal labour and one who buys such labour.
- They can also be referred as laws which govern relationship between employers and
employees.

Sources of Labour Laws:

- Laws governing labour matters are derived from a number of sources. This is the
same sources from which laws governing other areas are derived.
i) Constitutions.
ii) Customs of society or areas.
iii) Common law for example proceedings of industrial court.
iv) Islamic Law.

CONSTITUTION OF KENYA
- This is the most basic law in Kenya and provides the legal bases for the structure of
the sate, the relationship between the state and the citizens and the relationship
amongst the citizens themselves.
- The constitution does not govern labour matters directly but forms a background
against which the labour laws and operations operate. It therefore provides for:
i) Power to create ministries and appoint Ministers hence the Minister and
other personnel dealing with labour matters.
ii) Power to make laws hence passing of labour laws by Parliament either
directly or indirectly.

TOPIC 6: RELEVANT LABOUR LEGISLATION IN KENYA

PUBLIC HEALTH CAP 242

This Act was first established in 1921. It is an Act of parliament established to safeguard on
pubic health. It makes provisions for securing and maintaining health.
Its divided into two:
i) Principal legislation
ii) Subsidiary legislation
i) Principal legislation
a) Notification of infections diseases (Part III)
This provision in the Act requires that all patients of infectious diseases be reported to
the nearest medical officer. Examples of infectious diseases include cholera, typhoid,
small pox, tuberculosis, whooping cough, plague and sleeping sickness.
b) Prevention and suppression of infectious diseases (Part IV)
This part of the Act empowers the medical officer to inspect infected premises and
examine persons suspected from suffering an infectious disease.
c) Venereal diseases

53
 Employers who continue to employ employees/persons suffering from any venereal
diseases in a communicable form are guilty of an offense especially if these persons
take care of children or handle any food utensils.
d) Sanitation and Housing
- It prohibits the use existence of nuisance in the premises. It also provides for health
authorities to maintain cleanliness and nuisance.
- It also provides for health authorities to prevent any danger to health from unsuitable
dwellings.
e) Protection of foodstuffs
- It provides for construction and regulation of buildings used for storage of foodstuffs
to be approved by the medical officer of health.
f) Public water supplies, meat, milk and other articles of food
- Provides for protection of water supplies against any pollution dangerous to health.
- It sets rules for protection of food and provides powers o municipalities to inspect
milk.

ii) Subsidiary Legislation

- These are laws which came later after 1921 through orders, reviews.
- Section 36 of the Act provides for public health rules for sleeping sickness,
tsetsefly areas, rats and mice destruction rules and rats viruses.
- Section 73 provides rules for ports, airports and shipping health.
- Section 126 provides rules for drainage of latrines. This section provides for the
following:
 Construction of drains
 Construction of soil pipes
 Construction of water closets and urinals
 Licensing of plumbers
- Section 134 provides for rules in manufacturing, preparation, packing and re-
packing of food stuffs.

In addition, it provides for meat inspection and importation of meat.

Questions for Review

1. Explain the provision of the Public Health Act Cap 242 which are relevant to occupational health in
organizations.

2. Explain the provisions of the Public Health Act Cap 242 which are applicable/relevant to a hotel
business.
THE EMPLOYMENT ACT CAP 226

The employment Act cap 226 is divided into 6 parts:

i) Preliminary – part 1
ii) Conditions of employment – part 2
iii) Foreign contracts of services – part 3
iv) Employment of women and juveniles - part 4
v) General – part 5
vi) Supplementary – part 6

54
PART 1 – PRELIMINARY

This Act may be acted as the Employment Act. The provisions of this Act shall not apply to
a) The armed forces or the reserve as respectively defined in the Armed Forces Act.
b) The Kenya Police, The Kenya Prisons Service or the Administration Police Force.
c) The National Youth Service
d) Such persons or class of persons, such trade to industry, or such public body, as the
minister may, by order, exempt from all or any of those provisions of this Act. But
subject to the foregoing shall be binding to the Government.

Labour Advisory Board

- There shall be a Labour Advisory Board whose duty it shall be to advise the Minister
upon such matters connected with employment and labour, and answer any question
referred to it by the minister.
- The members of the Board shall be appointed by the Minister. Out of the members,
the Minister shall appoint a chairman and an officer of the labour department to be
the Secretary.
- The following provisions shall have effect with respect to the constitution and
proceedings of the Board:
a) The Minister may at any time cancel the appointment of a member of the
Board. Unless his appointment is so cancelled, each member of the Board
shall hold office for three years.
b) If the chairman of the Board ceases to be a member of the Board, he shall also
cease to be the Chairman of the Board.
c) There shall be paid out of moneys provided by Parliament to the members of
the Board, including the chairman, in respect of their office as such, and other
reasonable allowances in respect of expenses properly incurred in the
performance of their duties as may be determined by the Minister with the
consent of Minister for the time being responsible for finance.

ii) PART II – CONDITIONS OF EMPLOYMENT

1) Protection of Wages
Subject to this Act, the entire amount of the wages earned by or payable to an
employee in respect of work done by him in pursuance of a contract of service shall
be paid to him directly in the currency of Kenya.
- If an employee requests in writing incase of an agreement made between a trade
union and an employer, payment may be made:
a) Into an account at a bank to building society, in his name whether alone or jointly
with any other individual.
b) By cheques, postal order or money order
c) In the absence of an employee, to a person other than the employee, if the person
is duly authorized by him writing to receive the wages on his behalf.
d) Payment of wages shall be made on a working day and during working hours, at
or near to the place of employment or at such other place as may be agreed to
between the employer and the employee.

55
 e) Payment of wages shall not be made in any place wherein intoxicating liquor is
sold or readily available for supply, except in the case of employees employment
to work therein.

- When wages are due – an employee shall be entitled:

a) When a task has not been completed, at the option of his employer to be paid by
his employer at the end of the day in proportion to the amount of the task which
has been performed, or to complete the task on the following day.
b) In the case of casual employee, at the end of the day.
c) In the case of an employee employed for a period of more than a day but not
exceeding month, at the end of that period.
d) In the case of an employee employed for a period exceeding one month, at the
end of each month.
e) In the case of an employee employed for an indefinite period or on a journey, at
the expiration of each month or of such period, whichever date is the earlier, and
on the completion of the journey respectively.
f) Where an employee is summarily dismissed for lawful cause, he shall be paid on
dismissal all moneys, allowances and benefits due to him up to the date of his
dismissal.

2. Deductions from Wages

- An employer may deduct from the wages of his employee:
a) Any amount due from the employee as a contribution to any provident or
superannuation scheme or any other scheme approved by the labour commissioner to
which an employee has agreed to contribute.
b) A reasonable amount for any damage done to or loss of, any property lawfully in
the possession or custody of the employer occasioned by the willful default of the
employee.
c) Any amount paid to the employee in error as wages in excess amount of wages due
to him.
d) Any amount the deduction of which is authorized by any written law for the time
being in force
e) Any amount in which the employer has no beneficial interest, whether direct or
indirect.

3. Leave, Housing, Health and Welfare

Every employee shall be entitled:
a) After every 12 consecutive months of service with his employer to not less than
twenty-one working days of leave with full pay.
b) Where employment is terminated after the completion of two or more consecutive
months of service during any twelve months, leave earning period, to not less than
one and three
quarter days of leave with full pay, in respect of each completed month of service
in that period, to be taken consecutively.

56
 - A woman employee shall be entitled to two months maternity leave with full
pay. Provided that a woman has taken two months maternity leave shall forfeit
her annual leave in that year.
- The leave referred to in subsection 1 shall be additional to all public holidays,
weekly rest days and any sick leave, whether fixed by law or agreement, in
respect of which as employee is not required to work.
- Every employee shall be entitled to at lest one rest day in every period of 7
days.
- Every employer shall at all times, at his own expense provide reasonable
housing accommodation for each of his employees either at or near to the place
of employment or shall pay to the employee such sufficient sum, as rent, in
addition to his wages or salary, as reasonable accommodation.
- Every employer shall provide a sufficient supply of wholesome water for the
use of his employees at the place of employment.
- Every employer shall, where provision of food has been expressly agreed to in
or at the time of entering into a contract of service, ensure that every employee
is properly fed and supplied with sufficient proper cooking utensils and means
of cooking at the employer’s expense.

4. Summary Dismissal
- Any of the following constitute justifiable or lawful grounds for the dismissal:
a) If, without leave or other lawful cause, an employee absents himself from the place
of proper and appointed for the performance of his work.
b) If an employee becomes intoxicated during working hours and renders himself
unwilling to perform his work.
c) If an employee uses abusive or insulting language or behaves in a manner insulting
to his employer or to a person placed in authority over him by his employer.
d) If an employee knowingly fails or refuses to obey a lawful and proper command
which it was within the scope of his duty to obey, issued by his employer or a person
placed in authority over him by his employer.

5. Certificate of Service
Every employee shall be given a certificate of service by his employer upon the
termination of his employment, unless the employment has continued for a period less
than four consecutive weeks.

iii) PART III – FOREIGN CONTRACTS

- This part shall apply in respect of every foreign contract of service, that is to say, a
contract of service made within Kenya and to be performed in all or part outside
Kenya.
- Every contract of service with a foreign state, except a contract for service entered
into with or by behalf of the Government.
- A foreign contract of service shall not be attested unless the labour officer is
satisfied:
57
 a) that the employee’s consent on the contract has been obtained
b) that the contract is in a prescribed form
c) that the employee is medically fit for the performance of his duties under the
contract

iv) PART IV – EMPLOYMENT OF WOMEN AND JUVENILES

- No person shall employee a child whether gainfully or otherwise, in an industrial
undertaking. The provisions of this section shall not apply to the employment of a
child in an industrial undertaking under a deed of apprenticeship or indentured
learnership lawfully entered into under the provisions of the industrial training Act.
- Subject to sect 29, no woman or juvenile shall be employed between the hours of
6.30 pm and 6.30 am in an industrial undertaking.

- Expect in the following situations:

 Women may be so employed in cases where their work is concerned with raw
materials, or materials in the course of treatment.
 Women holding responsible positions of a managerial or engaged in health and
welfare services
- No female shall be employed on underground work in a mine except in the following
circumstances:
 A woman holding a position of management who does not perform manual
works.
 A woman engaged in health or welfare services
 A woman who in the course for her studies spends a period of training in the
underground parts of a mine
- Every employer who employs any Juvenile shall keep and maintain a register
containing the following particulars of every Juvenile employed:
 Age or date of birth
 Date of entry into and of learning the employment
 Such other particulars a may be prescribed

v) PART V - GENERAL
- Every employer shall keep a written record of all employees employed by him with whom
he has entered into contracts under this Act.
- This shall contain such particulars as may be prescribed and the employer shall permit the
record to be examined by an authorized officer who may require an employer to produce for
inspection that record for any period relating to the preceding twelve months.
- Subject to section 77 of the Constitution, whenever a complaint is made under subsection
(1) of this section:
a) To a Labour Officer, he shall use his best endeavours, by the taking of such lawful steps as
may seen to him to be expedient, to affect a settlement between the parties.
b) To a Magistrate, he shall have the jurisdiction in all cases arising in his area of jurisdiction
to exercise any of the following powers:

i) He may adjust and set off one against the other all the claims on the part of either of
the employer or of the employee arising out of or incidental to, the relation between
them as the magistrate may find to be subsisting, whether claims are liquidated or

58
 unliquidated, and are for wages, damages or otherwise, and he may direct the payment
of such sum as he find due by one party to the other party.
ii) He may assess the amount of compensation due to an employer for the loss or damage
to his property occasioned by the wrongful act or neglect of his employee.
iii) He may decide the relative rights of the employer and employee, and may make such
directions as in his opinion meets the justice of the case.

vi) PART VI - SUPPLEMENTARY

- Every authorized officer shall be furnished by the Labour Commissioner with a
certificate of his appointment.
- With the issuance and production of the certificate to the employer the Labour
Officer has the following duties:
i) Enter, inspect and examine all reasonable times by day and night any land
or building or other structure whether permanent or temporary on or in
which he has reasonable ground for believing that an employee is living,
residing or employed and may make such inquiries and inspection or
examination as may be necessary to enable him to determine whether the
provisions of this Act are being compiled with.
ii) At all reasonable times require an employer to produce an employee
employed by him and a document relating to the employment of any
employee and may require an employee to produce any document elating
to his employment.
iii) Examine and take copies of a register, record, book or other document
relating or appearing to relate to employment, whether produced to him or
not, and take possession of that register, record, book or other ground for
believing to be or to contain evidence of an offence under this Act.
iv) Enter, inspect and examine all latrines and other sanitary arrangements or
water supply.
v) Order that all buildings and premises where employees are housed or
employed be kept in a clean and sanitary condition.

POWERS OF MEDICAL OFFICER

- A medical offer may for the purposes of this Act exercise the powers conferred upon
an authorized offer by paragraphs (a) to (f) inclusive of section 50, and may in
addition do all or any of the following:
a) Order an employee ho, in his opinion, is sick and for whom the conditions
prevailing at the place of employment are not conduciveness to the rapid recovery
of his health or strength to return to the place of his engagement, or to proceed to a
hospital, an din that case the employer shall at the earliest opportunity and at his
own place of his engagement.
b) Condemn any food provided for employee which, in his opinion, is unfit for
human consumption, and all food so condemned shall be destroyed forthwith in
the presence of a medical officer.
c) Order at the expense of the employer such variety of food for an employee as he
may deem necessary
- Any person who willfully obstructs or hinder an authorized offer or medical officer
in the exercise of any power conferred by this Act or any rules made thereunder shall

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 be guilty of an offeree and liable to a fine not exceeding 4,000/= or imprisonment for
a term not exceeding 6 months or both.

THE POWERS OF THE MINISTER

- The Minister, after consultation with the Board, may make rule providing for all or
any of the purposes, whether general may in additional perform the following:
a) Prescribing anything which under this Act is to be or may be prescribed.
b) Regulating the case of sick and injured employee
c) Controlling the conditions under which employees may be housed to employed,
including sanitary arrangements and water supply.
d) Controlling the feeding of employees in cases where food is to be supplied by the
employer under the contract of service, including the quantity, variety and kind of
food to be supplied.
e) Appointing labour supervisors where employees exceed the maximum prescribed.
f) The registration and employment of casual employees.
g) Prescribing particulars to be included in a certificate of services
h) Prescribing the age below which children are not to be employed
i) Requiring employers of children to furnish information and returns to any
specified officer in respect of such children or their employment or the conditions
of their employment.

REGULATIONS OF WAGES AND CONDITIONS OF EMPLOYMENT ACT CAP

229

- This Act is an act of Parliament which provides for establishment of:

i) Wages advisory boards
ii) Wages councils

- These two are put in place to regulate remunerations and other conditions of
employment.

Definition of terms:
Statutory minimum remuneration – these are fixed by the wages regulation order.

A wages council order – is an order made under sub-section 1 of section 7 which establishes
a wages council

Wages regulations order applies to: Employers by or under the government except for: armed
forces, policies, youth service, persons in the employment of UK.

How to appoint a wages advisory boards?

- Advises Minister on matters related to employment.
- The Minister may appoint a general wages advisory board and agricultural wages
council.

Functions of General Wages Advisory Board?

- Makes inquiry and recommendation specifying the basic minimum wage which should
be paid to employees coming within the terms of reference.
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 - Recommendations for the regulation of wages and other conditions of employment of
all or any such employees in the industry
- A recommendation or proposal made by the board is deemed to be a wages regulation
proposal

Functions of Agriculture Wages Advisory Board and Area Agriculture Wages Committees:
- The board inquires and submits a report containing the following: -
 A recommendation specifying the basic minimum wage which should be
paid to employee who fall under the terms of reference
 The report must contain proposals for the regulation of wages and other
conditions of employment of all or any of such employees
 A recommendation that a wages council be established in respect of such
employees
 The minister may also appoint such area agricultural wages committee as he
considers necessary to assist the board to inquire into any matters referred to
it. Establishment of wages council
 The minister in pursuance of a recommendation by the General Wages
Advisory Board made under section 6 (2) if he is of the opinion that no
adequate machinery exists for the affective regulation of the remuneration or
other conditions of employment of the employees in any trade industry or
occupation, may by order establish a wages council.

Establishment of wages council

- According to sect 8 of this Act, before mailing a wages council. Order, the minister has
to publish in the gazette twice within an interval of at least 7 days but more than 14
days between each publication in newspaper published and circulated in Kenya.
- A notice of his intention to make such order, specifying the place where copies of draft
thereof may be inspired and a time which shall not be less than 30 days from the 1 st
date of such publication within which any objection of such draft order shall be sent to
the minister.
- The minister might amend such objections. Its then published in the

Abolition of wages council or variation

- The minister can decide to abolish the wages council or he may also vary the limits of
its jurisdiction

Constitution, offers and proceedings of wages council

- A wages council shall consist of such number of members representing employers and
such number of members representing employees as the minister directs
- The number of independent members representing employers and such number of
members representing employees as the minister directs
- The number of independent members shall be an odd number
- The number of members representing employers shall be the same as the number of
members representing employees
- The minister shall appoint the peruses to be members of a wage council, and shall
appoint one of the independent members to be chairman of the wages council and

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 another of the independent members to be deputy chairman to act in the absence of the
chairman from any meeting
- Before making any appointment of persons representing employers or employee to be
members of a wages council, the minister shall consult any organization appearing to
him adequately to represent employers or as the case may be employees concerned
- The minister may appoint a secretary and such other officers as he thinks fit of a wages
council
- A wages council may delegate any of its powers under this Act (except the power to
submit wages regulation proposals) to a committee or as the case may be subcommittee
consisting of such number of persons being members of the council as the council
thinks fit
- The term for which a member of a wages council shall hold office shall be three years.

Contents of the wages regulation proposal or order

i) Minimum wage
ii) Minimum house allowance payable in addition to basic wage 15% of the basic
iii) A provision for the amendment of the same order/proposals
iv) No. of hours

Meaning of remuneration
- Refers to the amount paid or to be paid to the employee by the employer in cash clear
of any deductions expect authorized deductions (lawful deductions)for example
a) For the purpose of contribution to any provident fund or superannuating
scheme
b) In respect of actions supplied to an employee which an employer is charged to
provide
c) Under any provision where law provides that the employer deducts NSSF,
NHIF, PAY, cooperatives
d) At the request in writing by the employee for any purpose for which the
employer has no benefit
e) Ina situation where there’s no council order, the general wages order is
assumed to be in effect. Failure to comply is an offence. If an employer fails to
pay an employee to whom a wages regulation order remuneration less than the
statutory minimum or fails to provide the employment prescribed in that order,
he shall be guilty of an offence and liable to a fine not exceeding 400 shillings.
f) In case of underpayment the employer can pay the arrears.

Powers of officers to institute proceedings

- A labour officer / inspector may on behalf of an employee sue the employer and
recover the arrears.
- Employers are not supposed to receive any premiums from employees except those
undergoing training
- With the consent from a labour officer, an employer can pay a disabled person less.
Sect 21- sub sect 4 the labour officer has power to take any legal proceedings against an
employer breaching this Act and authority card can be demanded for identification

Powers of officers
- A labour officer or labour inspector shall have power for the performance of his duties
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 i) To require the production of wage sheets or other records of wages kept by an
employer and records of payments made to outworkers by persons giving out
work and any other such records as are required by this part to be kept by
employers and to inspect and examine those sheets or records and copy nay
material part
ii) To require any person giving out work and any outworker to give any
information which it is his power to give with respect to the names and addresses
of the persons to whom the work is given out or form whom the work is received
and with respect to the payments to be made for the work
iii) At all reasonable times to enter any premises at which an employer to whom a
wages regulation order applies carries on his business including any place need in
connection with that business for giving out work to outworkers and any premises
which the officer has reasonable cause to believe to be used by or by arrangement
with the employer to provide living accommodation for employees
iv) To inspect and copy any material part of any list of outworkers kept by an
employer or other persons giving out work to outworkers
v) To examine, either alone, or in presence of any other person the wages of
employee and there after sign a declaration of the truth of the matters n respect of
which he is so examined

LEGISLATION GOVERNING HEALTH AND SAFETY ISSUES

WORKMEN’S COMPENSATION ACT (CAP 236)

It has been in force in Kenya since 1949.

Objectives of Workman’s compensation Act:
i) to provide for compensation for loss of caring capacity suffered by workmen
injured or who meet death in accident arising out of an in he course of
employment.
ii) Provides for payment by the employer of medical expenses of the employee.
iii) Any employee who contracts or dies as a result of contracting any of certain
occupational diseases is also entitled to compensation.
Workman
- Refers to any person who has entered into or works under a contract of service,
apprenticeship or learnership with employer.
- Classes of employees examined from the definition of workman non-manual labour
workers whose
Accident
- Denotes an unlooked for mishap or an unexpected event which not designed or desired
by the injured workman.
Entitlement to compensation
a) He must have been doing what he’s employed to do.
b) The accident must have taken place when the person was in actual discharge of his
duties not before start of or after cessation of employment
c) The injury caused permanent disability or death to the workman or temporarily
disable him for at lest three consecutive days form earning full wages from the work
at which he was employed.

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 d) Negligence on the part of the employee doesn’t disentitle him to compensation but
serious and willful misconduct may, depending on the nature of the injury to preclude
payment.
e) The onus of proof of serious and willful misconduct rests with the employer.

Action to be taken after an accident

a) Immediately an accident occurs the law requires that a report if the accident is made
to the labour officer of the area or to the District Commissioner (where there’s no
labour officer)
b) Any workmen who suspects that the employer hasn’t made such a report should
immediately report the matter directly to the appropriate authority.

Compensation
- Compensation takes the form of monetary payment for which the employer is liable
and is paid in respect of one or more of the following heads:
i) Temporary incapacity
ii) Permanent incapacity
iii) Death
iv) Injury to health
- Assessed by the Labour Officer to whom the accident was reported.
- The amount is normally the periodical payment of not less than half of the workmen’s
basic wage at the time of the accident covering the period of temporary disablement as
certified by the doctor treating the injured workmen subject to a maximum of 96
months
- These periodical payments cease to be payable as soon as final award of permanent
disability (if any) has been made.

Compensation for permanent incapacity

Compensation for permanent incapacity falls under two headings:
a) Partial incapacity and total incapacity

b) The workman must have suffered partial loss of his earnings capacity as a result of the
loss of a part of the use of a part of the body thus decreasing his ability to earn full
wages.
c) Permanent partial incapacity is expressed by the doctor treating the workman in
percentage and may at least range from 1% to 99%
d) Compensation in respect of permanent partial incapacity is assessed as percentage of
60 months earnings being percentage specified by the medical practitioner as the
disability suffered by the workman subject to a minimum of Kshs 35,000 and a
maximum of Kshs 240,000

Compensation for Permanent total incapacity

- In fatal cases, a lump sum of 60 months earnings subject to a maximum of Kshs
240,000 payable where the deceased leaves a person o persons wholly, or partially
dependent upon his earnings at the time of his death.
- The amount payable is distributed , between the surviving dependants in accordance
with the respective degree to which they were dependent upon the deceased
- A widow who remarries before payment of compensation is still entitled to her share
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 - Where the dead man leaves behind no dependants reasonable expenses of the burial of
the deceased workman subject to a maximum of Kshs 500 is payable by the employer.
Compensation for injury or health
- If a workmen is certified by a doctor to be suffering from a scheduled occupational
disease occasioning his disablement or death and if such disease is proved to have been
caused by the nature of the workman having contracted the disease within 24 months
previous to the date of which disablement or death. Compensation shall be payable in
the same manner as if the disablement or death were caused by an accident.

Medical
Medical Aid – Employer is liable to pay reasonable expenses incurred by a workman as a
result of an accident which would entitle the workman to compensation.

These include:-
i) Expenses in respect of medical surgical and hospital treatment, nursing services and
supply of medicines subject to a maximum of Kshs6,000/=
ii) Expenses in respect of transportation of the injured workman to and from the place
where treatment is available subject to a maximum of Kshs1,000/=
NB: Workman compensation cannot be assigned or attached and no claim shall be made upon
such payment.

TRADE UNIONS ACT

Trade Union defined as per Cap 233 of the Laws of Kenya, it means an combination
whether temporary or permanent of more than six persons and must be registered by the
registrar of trade unions.

Employees Association means an association or combination, whether temporary or

permanent, of more than six employees who work for the same employer, which has as its
principal purpose the regulation of relations between such employees and their employer or
between such employees amongst employees.

Employees organization means an association or combination, whether temporary or

permanent of more than six employees who work for different employers, which has as its
principal purpose the regulation of relations between such employees and their employers or
between such employees and their employers or between such employees amongst
themselves.

Staff Association means an association or combination of more than 6 employees employed

in a civilian capacity under the government or local authority and the principal object of
which is regulations of relations of employees or government or local authority.

NB: It is worth noting that only requested trade unions can bargain/negotiate for wages.

Appointment of Registrar and other officers

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 - The Minister shall appoint a Registrar of Trade Unions, who shall be responsible for
the due performance of the duties and functions assigned to him as Register under this
Act.
- The Minister may also appoint a Deputy Registrar of Trade Unions and one or more
Assistant Registrars of Trade Unions and such other officers as may from time to time
be required for the purposes of this Act. Section 7 of Cap 233 says that no suit shall
be brought against any of the officers for anything done to omitted to be done by him
in good faith and without negligence.
- The trade union registration is to be done within 28 days. Any trade union which fails
to register within 28 days can be fined 5000 or jailed.

Registration
- Every application for registration shall be made to the Registrar in the prescribed
form, and shall be signed by at least seven members of the union.
- In case of association of trade unions, the prescribed form shall be signed by the
chairman and general secretary of each of the member trade unions.
- Every application for registration shall be accompanied by the prescribed fee and a
copy of the rules of the unions and statement of the following particulars namely:

a) The names, occupations and addresses of members making the application (or in
case of an association of trade unions)
b) The names and addresses of the registered office of each members trade union
c) The name of the union and the address of its registered office
d) Titles, names, ages, addresses and occupations of the officers of the union.
e) When it was cancelled/suspended
f) Date of registration or dissolution

Reasons for Registration of a Trade Union:

- The Registrar may refuse to register a trade union and defer its registration and notify
it accordingly.
- Upon that deferment the trade union shall become a probationary trade union
- After the expiration of 3 months and before the expiration of 12 months from the date
of deferment of registration of a trade union under section 11, the registrar, either in
the application of the probationary trade union of his own motion, shall if satisfied
that none of the grounds on which, under section 16, registration may be refused
exists, register the probationary trade union as a trade union in the manner prescribed.
- The Registrar, on registering a trade union under section 11 or section 12, shall issue
to the union a certificate of registration in the prescribed form, and that certificate,
unless proved to have been cancelled or withdrawn, shall be conclusive evidence for
all purposes that this trade union has been duly registered under this Act.
- The Registrar may call for further information for the purpose of satisfying himself
that any application complies with the provisions of section 10 or that the trade union
is entitled to registration under this Act.
- The Registrar has the power to alter the name of a trade union – if the name proposed
to be registered is identical with that by which any other existing trade union has been
registered.

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 - Or if in the opinion of the Registrar the name proposed resembles or may mislead the
members of the Public the Registrar may alter the name proposed for the trade union.

The Registrar may refuse to register any trade union or probationary trade union if he
is satisfied that:

a) The union has not complied with the provisions of this Act or any regulations made
thereunder or
b) Any of the objects of the constitution of the union is unlawful or conflicts with any
such provision or
c) The union is used for unlawful purposes
d) Any other trade union already registered is;
i) in the case of a trade union of employers or of employees, sufficiently
representative of the whole or of a substantial proportion of the interests in
respect of which the applicants seek registration
ii) In the case of an association of trade unions, sufficiently representative of
the whole or a substantial proportion of the trade unions eligible for
membership thereof.
e) The principal purpose of the trade union registration are not in accord with those set
out in the definition of trade union” contained in section 2
f) The trade union (not being an association of trade union) seeking registration is an
organization consisting of persons engaged in or working at more than one trade or
calling and that its constitution does not contain suitable provision for the protection
and promotion of their respective sectional industrial interests
g) The funds of the union are being applied unlawful
h) The accounts of the union are not being properly kept
i) The secretary or treasurer of the union is in his opinion incapable by reason of not
being sufficiently literate in English or Swahili language of carrying out adequately
the duties of secretary or treasurer

Cancellation of registration of a trade union

- The registration and the certificate of registration of a registered trade union may be
cancelled by the registrar
a) At the request of the trade union upon its dissolution, to be verified in such
manner as the registrar may require
b) If he is satisfied that the trade union has ceased to exist

The registration and the certificate of registration of a registered trade union may be cancelled
or suspended by the registrar if he is satisfied

a) That the registration was obtained by fraud, misrepresentation or mistake

b) That the objects of the trade union is unlawful
c) That the constitution of the trade union or of its executive is unlawful
d) That the trade union is being used for unlawful purpose
e) That the trade union has willfully and after notice from the registrar contravened any
provisions of Act or any regulations made there under or any les of the trade union

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 f) That the funds of the trade union are expended in an unlawful manner or on an
unlawful object or on an object not authorized by this Act and any regulations made
there under
g) The accounts of the union are not being properly kept
h) The secretary or treasurer of the union is in his opinion incapable by reason of not
being sufficiently literate in the English or Swahili language of carrying out
adequately the duties of secretary or treasurer as the case may be
- When the registrar refuses to register a trade union he shall notify the applicants in
writing of the grounds of that refusal and the following shall appear:
a) If a trade union before it became a trade union or applied for registration as
trade union was a staff association employees association or employees
organization it may within one month notification by the registrar or if an
appeal is taken under section 18 within one month from the dismissal of the
appeal elect to revert to its former status as such association or organization
and in default of such election within the time aforesaid, it shall be dissolved
b) If the trade union before it became a trade union or applied for registration as a
trade union was not such an association or organization as aforesaid the trade
union shall be dissolved within one month of the notification by the registrar if
an appeal is taken as aforesaid and dismissed within one month of dismissal of
the appeal

It is therefore liable to an offense if officials of trade unions continue to operate even after
dismissal or dissolution. They are liable to a fine not exceeding 5000 shillings or an
imprisonment of not less than 5 months

Registration of branches of trade unions

- Application for registration of a branch of a trade union shall be made by the secretary
of the trade union concerned within 28 days form the date of its formation and shall
be signed by the secretary
- It shall be accompanied by the prescribed fee (if any) and shall contain the following
particulars:
a) The name of the union concerned, the name of the branch, the postal
address of the branch office or of the place of meeting for carrying out the
business of the branch
b) The titles, names, ages, addresses and occupations of all the officers of the
branch
- Whenever any branch of a trade union is dissolved, notice of dissolution shall be
given by the secretary of the union concerned to the registrar who shall subject to
subsection (3) and subsection (4) there upon cancel the registration of that branch
- Before registering a branch of a trade union or canceling the registration of a branch
of a trade union, the registrar may require the production of a such evidence relating
to the formation or dissolution of the branch as the deems necessary
- If after such inquiry as he deems necessary, the registrar is not satisfied as to the
validity or propriety of the purported formation or dissolution of a branch of a trade
union, he may refer the matter to a Trade Union Tribunal composed of one or more
independent persons appointed by the minister and that Tribunal shall inquire into the
matter and make it’s recommendation thereon to the Registrar who shall thereupon

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 register or refuse to register the branch or cancel the registration of the branch as the
case may be in accordance with such recommendations
- In case of an appeal the branches should do so within one month of the date of refusal
or cancellation

Rights and liabilities

Once a trade union has been registered, it enjoys certain rights, immunities and privileges

i) Right to inspect the books of Trade Union.

- According to Sect 48 Cap 233 – it provides that the accounts books and list of
members of registered trade union shall be opened for inspection by an officer or
members of the trade union

ii) Immunity from civil suit in certain cases (Section 23 Cap 233): No suit or legal
proceedings is maintainable in any civil court against any registered trade union in respect of
any act done in contemplation or in furtherance of trade dispute to which a member of the
trade union is a party on the ground only that the act induces some other persons to break a
contract of business or the act interferes with the rights of some persons or other persons to
dispose of its capital or labour as he will.

ii) Liability in tort – A suit against a registered trade union or against any member or officer
thereof on behalf of themselves and all other members of the trade union in respect of
any tortious act alleged to have been committed by or on behalf of the trade union shall
not be entertained by any court

iii) Liability in contract – Every trade union shall be liable on any contract entered into by it
or by an agent acting on its behalf. The Act provides that no office bearer or members of
a registered trade union will be liable if the following conditions are fulfilled
a) Any agreement between members of a trade union as such, concerning the
conditions on which any members for the time being of such union shall or shall not
sell their goods, transact business, employ or be employed
b) Any agreement for the payment by any person of any subscription or penalty
to a trade union
c) Any agreement for the application of the funds of a trade union
i. To provide benefits to members
ii. To furnish contributions to any employer or employee not a member of
such trade union, in consideration of such employer or employee acting in
conformity with the rules or resolution of such trade union
d) Any agreement made between one trade union and another
e) Any bond to secure the performance of any of the agreements referred to in
paragraphs (a) to (d)
f) Objects in restraint of trade not unlawful. The objects of a registered trade
union shall not by reason only that they are in restraint of trade
a. Be deemed to be unlawful so as to render any member of the trade
union liable to criminal prosecution for conspiracy
b. Be unlawful so as to render void or voidable any agreement or trust
c. Trust to amalgamate
d. Right to own property
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e. Rights of minors to be member
f. Immunity from trade union conspiracy

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OVERALL HEALTH AND SAFETY LEGISLATION

HEALTH AND SAFETY

Health and safety programmes
- This is concerned with programmes for protecting employees and other people by
what the company procedures does against hazards arising to of their employment

Types of programmes
i) Occupational Health Programme – these relate more to working environment than
the system of work
ii) Safety programmes – are concerned with prevention of employees against
accidents and minimizes the resulting loss and damage to persons and property

Elements of a health and safety programme

i) Analysis of health and safety performance
ii) Health and safety policy
iii) Health and safety organization
iv) Health and safety arrangements
v) Evaluating safety performance

i) Health and safety performance

- Health and safety performance programmes must be based on an analysis of the
facts about the organization of health and safety as it exists and concerning the
procedures and results obtained
- The facts should be analyzed under the following headings:
i) Policies
ii) Organization
iii) Systems and procedures
ii) Occupational Health and Safety Policies
- Written H and S polices are required to demonstrate that top management is
concerned about the protection of the organization employees form hazards at
work and to indicate how the protection will be provided
- The policy statement should consist of three parts.
i) General policy statement (GPS)
- The GPS should be a declaration of the intention of the employer to
safe guard the Health safety of employees
ii) Description of the organization of Health and Safety
iii) Details of arrangements of implementing policy

Role of management
i) To develop Health and Safety procedure / policy with the help of medical and
safety advisors
ii) To advise on policies and see that they are carried out. In large organization there
should be a specialized Health and Safety advisor. Smaller companies should
allocate responsibility to a suitable line manager who should be given special
training in his duties
iii) Top management must make department mangers accountable for H and S matters
in their areas.
Role of team leaders (Supervisors and Line managers)
- Team leaders are n immediate control and therefore should keep a watch on unsafe
practices and conditions
- They must also emphasize the accountability for H and S and must take priority
over output and cost considerations.
Role of medical advisors
- Medical advisors have two functions:
i) Preventive
ii) Clinical
- The preventive function is concerned with occupational health matters
- The clinical function deals with industrial injuries and diseases and advice on the
necessary steps to recover for injury or disease arising from works

Role of the safety committee

- Are concerned with the renewing of safe practices and conditions and making
suggestions on improving health and safety performance.

Role of safety advisors (managers)

i) To advice on H and S policy and procedures
ii) Advice on aspects of design and operation
iii) Advice on the use of safety equipment and protective clothing
iv) Conduct H and S investigations into causes of accidents
v) Maintain H and S records or statistics

Role of employees
i) House keeping
ii) Reporting of accidents
iii) Getting engaged in better working practice

Health and safety hazards

- A hazard is a risk that is likely to cause danger
- Occupational Health hazards will include risks affecting employees and others
who are affected by what the company does (e.g. neighbors, costumers)
- Safety hazards will include risks as a result of work practice in the organization

Identify Health and Safety Hazards

i) Heat/cold
ii) Stress/fatigue
iii) Noise/vibration
iv) Lightning
v) Blindness
vi) Fire explosions

Health and Safety Arrangements

- Can be divided into two:
i) Occupational Heath Programmes
ii) Accidents prevention programme
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i) Occupational Health Programmes
- The effective management of health people at work provides a major contribution
to improving performance and gaining competition advantage
- The control of occupational health and hygiene problems can be achieved by:
i) Eliminating the hazard at source by means of design and process engineering
ii) Isolate hazardous processes and substances so that others cannot come into contact
with them
iii) Changing the process or substance used to promote better protection
iv) By training workers to avoid risks

ii) Accident prevention programmes

- Accidents are mishaps that are unexpected and do happen in the course of our
working life.
Types of accidents
a) Minor accidents – not serious and requires 1-3 days of duty
b) Loss time accidents – more than 3 days off and requires compensation
c) Fatal accidents – one becomes incapable of going back to work. It could lead to
death or permanent injuries

Underlying causes of accidents

- The immediate cause may be carelessness, fatigue, inexperience, inadequate
training or poor supervision. All the above however are caused by system of work
factors
- System of work factors are as follows
i) Unsafely designed machinery, plant or process
ii) Congested layouts
iii) Poor housekeeping
iv) Overloading of machines
- From the above classes of factors, immediate factors are people created whereas
system of work factors are not.

Accident prevention programmes

The prevention of accidents is achieved by:
i) Identifying the cause of accidents and conditions under which they are most likely
to occur
ii) Carrying out regular audits, inspections and checks and taking action to eliminate
risks
Accident reporting and investigation
- A standard system for reporting accidents should be used which clarifies all accidents
under appropriate headings, indicate the likely causes of that accident and suggest any
remedial action which should be taken.
- The form is taken H and S Advisors/manager allocated for safety responsibilities for
record keeping and analysis
- The form is completed by the immediate supervisor and then it is forwarded to H and
S advisors or manager allocated to H and S responsibility
Building safety into the system
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 - A safety inspection is a systematic approach to identifying and locating safety
hazards. Safety inspections are normally carried out by the immediate
supervisors/managers or team leaders.
Aims of Safety Inspections
i) To help to identify and locate health and safety hazards.
ii) To provide a basis fro developing accident prevention measures or strategies.

The Systematic Approach to carrying out safety inspection:

- Safety Inspections need to be carried out in a systematic manner for them to be
effective. The systematic approach to safety inspection follows the following steps:
iii) Prepare checklists for safety points to be covered by the safety inspection.
iv) Divide the safety areas to be covered by the inspection
v) Develop a safety inspection form including all areas identified in the checklist above.

Areas to be covered by a safety check

i) Check supervisory levels
ii) Check job descriptions to identify dangerous jobs
iii) Check health and safety requirements
iv) Check the accident register

Safety Equipments
- The factories and other places of Work Act Cap 514 requires, employees to provide
adequate safety equipment to employees who work in hazards work environments.
- Some examples of safety equipment that may be required in a manufacturing
environment may include the following:
a) Firefighting equipment
b) First Aid boxes
c) Protective clothing
d) Safety belts

Fire and Explosions:

Causes of fires:
- Faulty cables
- Poor maintenance of equipments, plants and machinery
- Equipment outlines its life
- Carelessness/negligence
- Ga leaks/explosions

Measures
- Fire drills
- Fire emergency evacuation procedures
- Regular maintenance of equipment, plant & machinery
- Carrying out regular safety/audit and checks inspections
- Creating awareness among employees
- Provision of fire fighting equipments

V Measuring Safety Performance

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Types of measuring safety performance
i) Incidence rate which is the numbers of reportable injuries per 1000 employees
ii) Severity rate which is the days lost through accidents per/million hours worked
iii) Total loss control approach which covers the cost of accidents to the company under
such headings as pay to the people, damage cost to plant or equipment and loss of
production.

Health and Safety Training

- Health and safety training needs should be identified by an analysis of hazards
generally present at work and any particular hazard associated with organizations and
individual jobs.
- Managers, team leaders, health and safety representatives should be trainee in the
techniques of identifying potential hazards, conducting inspections and investigations,
analysis of health and safety performance data.
- Employees should be provided with:
a) Induction training – should be given to new employees a general
understanding of what they should do to avoid risks. The induction training
should cover:
 Health and safety policies
 Duties of employees work safety
 Main hazards they may face and what to do with them
 Methods of working to minimize health and safety issues
 The unsafe practices to avoid.

b) Job Safety Training – should be based on analysis of the special hazards

presented by the job.
c) Health and Safety Training Programme
Objectives of H & S Training Programmes
- To enhance ability of employee to recognize and analyse and safety hazards.
- To induce awareness and improve ability to implement legal recommendations in
respect of factory inspection.

d) The context of Health and Safety Training Programmes will vary depending
on the type of programme, employees to be covered & nature of the
operations.
However they will generally cover the following areas:
 Role of supervisor and employees in the promotion of Health and Safety
 Safety and Health legislation
 Health and Safety policies
 Health and safety hazards for example machinery, electrical
 Fire prevention and control

Types of Health and Safety Training Programme

a) Fire drills and fire fighting
b) First Aid training
c) Safety induction training
d) Health and safety seminars and workshops
Review Questions
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 i) Identify and analyse Health and safety hazards and problems in a manufacturing
environment
ii) Highlight the roles of various parties in a Health and Safety organizations?
iii) What is the need for investing in adequate occupational Health and Safety
programmes?
iv) Health and Safety in sometimes regarded as a luxury by senior management (a) what
action should be taken on the initiative of the HR department to change these view?

TRADE DISPUTES ACT CAP 234

- This Trade Disputes Act may be divided into eight parts:
a) Part I – Preliminary
b) Part II – Reporting, conciliation and investigation of Disputes
c) Part III – Registration of collection agreements
d) Part IV – Reference of Disputes for settlement or inquiry
e) Part V – Adherence to agreement and awards
f) Part VI – Protection of Essentials services, life and Property
g) Part VII – Collection of Trade Union Dues
h) Part VIII – Miscellaneous Provisions

Part I - PRELIMINARY
a) Board of inquiry – means a Board of inquiry appointed by the Minister under section
19.
b) Collective agreement – means an agreement made between a trade union and an
employer or organization of employers which relates to terms and conditions of
employment, whether or not enforceable in law and whether or not concluded under
machinery for negotiation.
c) Recognition agreement means an agreement in writing made between a trade union
and an employer or organization of employers which provides for the recognition of
the trade union as the body entitled to represent the interests of those of its members
who are specified in the agreement and who are or have been employed by the
employer or any of the employers compromising that organization.

Persons to whom Act does not apply:

a) the armed forces or any reserve force
b) police force, administrative police force to prison service or in the National Youth
Service.

PART II – REPORTING, CONCILIATION AND INVESTIGATION OF DISPUTES

Subject to subsection any trade dispute, whether existing or apprehended, may be reported to
the Minister by or on behalf of any party to the dispute.
Every report of a trade dispute shall be made in writing and shall sufficiently specify:
a) the employers and employees or the classes and categories of the parties to the
dispute.
b) The party or parties by whom or on whose behalf the report is made.
c) The nature of the authorization given by the party or parties desiring the dispute to be
reported on their behalf
d) Each and every matter over which the dispute has arisen or is apprehended (arrested)

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 - Every person reporting a trade dispute shall, without delay, furnish by hand or by
registered post a copy of the report thereof to each part to the dispute.
- However, in situations where parties to the dispute belong to he same
organization of employers or organization of employee the furnishing of a copy
of the report to such organization shall be a sufficient compliance to subsection 4.

Consideration and action by the Minister:

a) Inform the parties that any of the matters over which the trade dispute has arisen or is
apprehended is not suitable to be dealt with under this section.
b) Refuse to accept the report of the trade dispute where the Minister is of the opinion
that any matter in dispute is barred from negotiation under the terms of a recognition
or collective agreement in force between any of the parties to the dispute.
c) Inform the parties that he accepts or rejects the report of the trade dispute
d) Refer the matter back to the parties and if he thinks fit, make proposals to the parties
or any of them upon which a settlement of the trade dispute may be negotiated.
e) Recommend to the parties that the trade dispute be referred to the industrial court.

Methods of Conciliation
The Minister may, in relation to a trade dispute so reported take any one of the following
steps:

a) Appoint any person (who may be a public officer or any other person considered by
the Minister to suitable) to act as a conciliator.
b) Appoint a conciliation panel consisting of an independent chairman and of one or
more persons selected by the Minister as being representatives of employers and an
equal number of persons selected by him as being representative of employees.
c) Refer any matter, with the consent of the parties, to a conciliation of panel composed
in accordance with the wishes of the parties.
d) Withdraw or temporarily suspend the operation of any of the already said conciliation
measures.

Investigation of matters related to trade disputes:

- Where the Minister is satisfied that any trade dispute exists, whether or not the
dispute has been reported to him, he may appoint an investigator or a committee of
investigation.
- The investigation shall be a person who appears to be an independent and qualified
person.

PART III – REGISTRATION OF COLLECTIVE AGREEMENTS

- The industrial court shall maintain a register of collective agreements that have been
accepted by the court for registration.
- A collective agreement shall not take effect until it has been accepted for registration
by the industrial court.

Powers of Industrial Court:

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 - The Industrial court shall not accept a collective agreement fro registration unless
the court is satisfied that the agreement compiles with all relevant directives and
guidelines issued pursuant to section 14 (10).

PART IV – REFERENCE OF DISPUTE FOR SETTLEMENT

- For the purpose of the settlement of trade disputes and of matters relating thereto the
president may by order establish an Industrial court consisting of:
a) 2 Judges as may be determined by the President
b) 8 other members, who shall be appointed for terms not less than 3 yeas by the
Minister after consultation with the Central Organization Trade Unions and
the Federation of Kenya Employers.

Qualifications of the Judge:

- Should be an advocate of the High Court of Kenya.
- Not less than seven years standing every appointment made under the section shall
be notified in the Gazettee and the notice thereof shall state the term for which shall
such appointment is made.

PART V – ADHERENCE TO AGREEMENTS AND AWARDS

- This part deals with the following:
a) Unlawful strikes and lock-outs
b) The public sector
c) Adherence to agreed procedures
d) Prohibition of sympathetic strikes and lock-outs

PART VI – PROTECTION OF ESSENTIAL SERVICES LIFE AND PROPERTY

It deals with:
a) Breach and procurement of breach of contract by employee an offence.
b) Breach of employer’s contract not unlawful in certain circumstances.
c) Reference of disputes to industrial court
d) Minister may declare subsequent notice void.

PART VII – COLLECTION OF TRADE UNION DUES

a) Application of check-off system
b) Union to serve notice on employer
c) Employers to comply with order
d) Unions and Federations to acknowledge payments

PART VIII – MISCELLANEOUS PROVISION

a) Prevention of intimidation
b) Certain offences to be cognizable
c) Consent of Attorney General
d) Rules of Industrial court.

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TOPIC 7: PARTICIPATION AND JOINT CONSULTATION

Specific objectives.

At the end of this topic, the trainee should be able to:

 Define the term joint consultation.

 Explain the need for joint consultation.
 Explain the principles of joint consultation.
 Explain the steps necessary for successful joint consultation.

Introduction and definition.

The terms involvement and participation are sometimes used synonymously to cover all
forms of individual and representative information, consultation and participation. Collective
bargaining does not form part of participation or involvement. The terms refer to any
processes in organizations, which are introduced by management to convey information to
employees on business initiatives, decisions and results.

Employee involvement consists of those practices, which are initiated by management and
are designed to increase employee information about and commitment to the organization.

Participation is any process through which a person or group of persons determines what
other person or group of persons will do. Participation is about employees playing a greater
part in the decision making process.

Consultation is the most familiar method of participation. It is a means for management and
employees to get together in consultative committees to discuss and determine matters
affecting their joint or respective interests. Participation of non-managerial employees in the
decision-making processes of an organization is what constitutes employee participation. The
current options for employee participation in organizations may include among others share
ownership and job enrichment.

Involvement and participation differ in the sense that involvement seeks to increase
information given to employees and thus enhance their commitments. It treats employees as
individuals, addressing them directly rather than through their representatives.

Participation on the other hand refers to collective rather than individual processes that enable
employees through their representatives to influence decision-making.

AIMS OF EMPLOYEE INVOLVEMENT & PARTICIPATION.

 Generate commitment of all employees to the success of the organization.

 Enable the organization to meet the needs of its customers.
 Help the organization to improve performance and productivity and adopt new
methods of working – drawing on the resources of knowledge and practical skills of
all workers.
 Improve the satisfaction of employees get from their work.

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  Provide all employees with the opportunity to influence and be involved in decisions
that are likely to affect their interests.

Joint consultation seeks to provide a means of jointly examining and discussing problems,
which concern both management and employees. This seeks to generate acceptable solutions
via the exchange of views and information. Joint consultation allows management to inform
workers of proposals, which affect them, and lets the workers express their views about the
changes. It allows the workers to contribute their own views on such matters as: -

 How work is organized

 Working conditions
 Operation of personnel policies and procedures
 Health and safety

Joint consultation acts as a safety valve, relieving the pressure from grievances, which, if not
settled by some process of discussion, may escalate to a dispute.

ISSUES IN PARTICIPATION.

 Mode of Representation – deciding the means by which worker representatives should

be nominated to the forums. This is contentious when union strength is considered.
 Scope of Forums – what issues should be covered via joint consultations. Most
forums exclude interest related issues but cover most work related issues.
 Level of Participation – board-level participation is supported by few companies.
Most companies advocate shop floor participation.
 Voluntarism – since the issues of joint consultation are not part of employment
legislation, most of them are founded on the spirit of voluntarism.

REQUIREMENTS FOR SUCCESSFUL INVOLVEMENT AND PARTICIPATION.

The success of employee – management joint consultation depends on: -

 Building trust.
 Eliminating status differentials.
 Committing the organization to vigorous training and development.
 Breaking down barriers to change the organizations culture.

The Most Basic Requirements For Success Are: -

 Having well defined objectives in participation that have been discussed and agreed
by all concerned.
 The objectives must relate to aspects of the job, management or policies that affect the
interests of the employees.
 The need to begin with areas where it is relatively easier to have successful
experience.
 Management must believe in and must be seen to believe in involving employees.
 Unions must believe in participation as a means of advancing their interests of their
members and not simply as a way of getting more power.
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  Joint consultation should be in line with existing systems of negotiation and
representation. It should be seen as a form of integrative bargaining.
 Consultative committees should always relate to a defined working unit.
 Employee and management representatives should be properly briefed and trained and
have all the information they need.
 Consultation should take place before decisions are made. Communicate after this.
 Since participation takes place through councils, develop guidelines for decision-
making by the councils and fix responsibility and time frame for implementation of
the decisions.
 Need to identify the centre of responsibility for decision implementation in the
existing organizational structure so as to avoid situations where management may
give priority to their own tasks over the council’s decisions.
 Define roles, status, authority and facilities for members and office bearers of the
council in relation to the trade unions.
 The need to keep employees informed of the decisions arrived at, their
implementation and the outcome so that the workers are able to develop confidence
and faith in the forums.
 Continuous evaluation of the functioning of these councils through employee opinion
polls, meetings, suggestion boxes, etc.
 Managers and team leaders should be kept in the picture, and as appropriate, involved
in the consultation process.

Note

Employee participation can be ensured through representative system or through direct

participation and involvement of all employees. A representative system, usually the elected
or nominated representatives of one or more employee groups sit on committees that discuss
work related issues.
To date, no legislation on ‘employee participation’ has been put forward in Kenya.

FORMS OF EMPLOYEE INVOLVEMENT AND PARTICIPATION.

There are several employee participation options for companies.

 Downward Communications – takes place from managers to employees in order to

inform and educate staff so that they accept management plans.
 Upward Problem Solving – designed to tap into employee knowledge and opinion,
either at an individual level or in small groups. It seeks to increase the stock of ideas
in an organization, to encourage co-operative relationships at work, to legitimate
change.
 Task Participation – and job redesign processes engage employees in extending the
range and type of tasks they undertake.
 Consultation and Representation Participation – enables employees to take part
through their representatives in management decision-making. Joint consultation has
been introduced by management in some businesses to hinder trade union recognition,
or even to undermine their activities. Employee consultation may take several forms:
 Consulted before a decision is made, but management is not bound by their views,
though it usually tries to take them into account.
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  Employees are informed of decisions and are consulted about their effects. The
decisions may be modified in detail.
 Employees are informed of decisions and negotiations take place between them and
the management about implementation.
 Financial Involvement/Participation – takes the form of such schemes as profit
sharing and employee share ownership. The employees thus become part owners of
the company and receive all information normally made available to shareholders.
 Job Enrichment – employees are given greater discretion over immediate work
decisions. It increases their responsibility for their work outputs and increasing job
interest.
 Empowerment through Delegation – all employees are encouraged to play a part in
the decisions affecting their work.

Collective bargaining.
 Works Councils – these are joint bodies of managers and employees established to
consider and agree on key matters effecting employment within the organization.
They are not for union-only employees as would be the case in collective bargaining.

 Work councils are bodies comprising representatives of management and employees

who meet regularly to discuss matters of mutual interest. Work councils have the
authority to take decisions on particular topics effectively giving employee
representatives the right to veto on managements proposals in specific fields.
Decision-making powers vary from internal works rules – operation of grievance
procedures to recruitment methods.

 Works councils have a statutory right to receive and discuss large amounts of
important management information regarding the work of the firm; including
financial structures and plans, new investment, acquisitions, mergers and divestments,
working practices, introduction of new technology etc.

Advantages and drawbacks of works councils.

Advantages.
 Management is compelled to seek a consensus with unions on fundamental issues,
hence avoiding many sources of conflict.
 Works councils come to execute certain management functions (allocation of
overtime, decisions on working methods, determination of promotion criteria etc) that
otherwise would have to be undertaken by alternative (or even costly) management
committees.
 Discussion between management and labour encourage the employees to propose new
ideas, offer alternative solutions to problems and generally adopt constructive and
useful perspectives.
 Change can be introduced more easily.
 Management benefits as it is quickly made aware of any problems related to intended
developments that are likely to provoke hostile opposition from the workforce and
hence alter its plans in order to remove/minimize employee resistance.

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  Improves management – labour relations: fewer costly stoppages and delivery dates
are met.
 Contributes to a country’s competitive advantage.
 It makes use of the knowledge and experience of employees
 Employees are motivated in their work if they can take part in decisions affecting
their work. If they think that decisions are unfair to them, they will be less motivated.
 The greater the number of people involved in a decision the less the possibility of
important factors being overlooked.
 Unworkable impractical decisions are avoided.
 Many decisions impinge directly on employee’s lives; it is only right they should help
to make them.
 Modern educational methods and policies encourage independent informed thinking.
Employees should be encouraged to apply this to their work.

Disadvantages.
 Takes time, adding working days to the time taken to communicate and makes
management more demanding than usual.
 Efficiency improvements that involve shedding labour might be resisted by the
committees composed of worker’s.
 They are financially expensive to operate (time, costs, rooms, secretarial support etc)
 Decision taking can be slow and many employee representatives may not have the
technical knowledge upon which they can base decisions.
 Employees may adopt short-term perspectives and might oppose decisions that would
benefit the company in the long term, but do not offer many rewards to employees in
the immediate future. Innovation and enterprise may be discouraged.
 Councils can easily degenerate into vehicles for plant level collective bargaining,
undermining normal management – union negotiation machinery.
 Some employees argue that it is the responsibility of the management to make
decisions, not the workers.
 Participation at policy level may be cumbersome and only possible in small
companies.
 There is a fundamental conflict of interest between employers and employees;
negotiation is more realistic than participation.
 Board Representation – the appointment of rank-and-file employees to non-executive
directorships on the company’s board. Where there is s two-tier board system, the
employee-directors sit on the supervisory Board, but not on the smaller Executive
Board.

Involvement and participation takes various forms at different levels in an organization.

 The Job Level – Involves team leaders and their teams, and the processes include the
communication of information about work and interchange of ideas about how work
should be done. These processes are essentially informal.
 The Management Level – Involves sharing information and decision making about
issues, which affect the way in which work is planned and carried out, and working
arrangements and conditions.
 Policy Making Level – Where the direction in which the business is going is
determined. This is limited to communication of information about proposed plans,
and discussing the implications of the plans.
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  Ownership Level – A share in the equity of the company y enabling workers to have
ability to control the organization through voting rights to determine for example, the
composition of the Board.

 Scanlon Plan – a group-incentive plan rewarding all employees with bonuses derived
from their cost-saving suggestions. Such are derived from production committees at
departmental level. Suggestions accepted and under the control of the department are
immediately implemented.
 Quality Circles – A small group of workers constitute a quality circle on voluntary
basis. The circle groups can meet both during and after the working hours and discuss
issues & problems relating to their work unit and their own jobs. Quality circles are
also known as improvement groups and are associated with a total quality /continuous
improvement programme. They aim to improve productivity and quality, improve
employee relations and win commitment to the organization.
 Suggestion Schemes – they enable employees to channel their ideas to management.
They succeed where there is an established procedure for submitting and evaluating
ideas, with recognition for those, which have merit and an effective system of
explaining to the employee without discouraging them that their ideas cannot be
accepted. Most common arrangement is the ‘Suggestion Box’

Membership of Joint Consultative Committees.

 May include union officials where the organization is unionized.
 They often exclude managers and team leaders.
 Small companies have one large committee or work council governing the whole
organization but larger companies often separate committees for each major division
or unit.

TASKS.
 Explain the benefits that would accrue to the employees in

an organisation that practices joint consultation.

 Discuss the main considerations to be put in place before

joint consultation is instituted in an organisation.

PARTICIPATION & JOINT CONSULTATION

Aims of participation in decision-making at work place:

a) Workers and working community should have a greater scope for creativity and
initiative.
b) It gives independence in carrying out duties

Types of workers participation

There are many types of participation depending on the political, social, economic contexts
and variation based on:
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 1) Moral, ethical, ideological considerations.
2) Social, political objectives.

General Economic Objectives

- This is based on the assumption that whenever people are allowed to participate in the
preparation of measures and policies which they are called upon to implement, such
participation may prove suitable especially when linked with economic advantage.
- In some cases, this reduces conflict and enhances the cooperation spirit of all
concerned. And in some cases, ease in introduction of technological changes.
Opposition:
1) Movement in favour of workers participation in decision-making undertaking faces
numerous opposition.
2) It faces many practical problems and these are encountered at both the principle and
practical implementation level.

Principles problems
- if workers accepted involvement with the management Trade Unions are worried
about possible weakening of workers organization or solidarity
- workers do not have the aptitude to competently dodge and perceive issues involved
in participation
- workers representative at times are just merely militant and oppositionist not
adequately competent
How prepared are workers and their representative to effectively participate in
decision making?
- For workers participation in decision making to occur there must be a variety of
means and those include:
a) Constitutional means
b) Legislature provisions
c) National and industry – wide collective

Effective participation
- This would require:
1. The objective: - these must be shared between management and worker. The objective
must be known
2. Institutional framework must be in place for example constitution, labour laws,
industrial court
3. People must be able to understand the subject matter. It must be clear to the
participants. This must be defined clearly by statutory or other instruments.
- The types of machinery for participation vary according to:
a) Their particular objectives
b) The opposition encountered
c) Economy
d) Political systems
e) Industrial relations machinery

Workers participate in decision making:

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This varies from one palace to another. They therefore include:
1. workers management.
2. participation through membership of management.
3. participation through statutory boards.
4. voluntary consultation.
5. participation through Trade Unions Activities.

Critics of participation
1) There’s a break on efficiency.
2) Leads to other costs of redesigning jobs, retaining the supervisors.
3) Workers capacity to contribute usefully to managerial decisions maybe questioned
particularly on technical and financial matters.
4) There are doubts as to workers interest in such matters.
5) Others see a desire to participate but fear that its aims or objective is solely to advance
the interests of the management.

Factors determining participation potential

The principal ones are: -
a) the autonomy of the enterprise.
b) the technical factors.
c) the size of the enterprise.
d) the structure of the enterprise.

Benefits of participation
1) Co-operation and reduction of conflict. The expectation being that there’re are going
to be fewer strikes in the organization.
2) If workers are involved, then you reduce alienation in the sense that there’s greater
worker participation.
3) Participation of workers will lead to industrial democracy.
4) There’s utilization of human resources which increases efficiency and development of
this talent and initiative.

COUNSELLING IN THE WORK PLACE

- Counseling is a process that involves listening to people talk about their problems and
helping them to work out what to do about the problems.
- In the process, the counselor guides the counselor in making alternative choices to
either cope or overcome the problem.
- It refers to not only what’s going wrong but also what’s going better.

Why counseling at work?

- In developed countries counseling is given high premium. Its recognized that there’s
need for organization to take an integral approach to the employees well being and to
develop an integrated well-ness policies and procedures

Advantages of counseling
These can be measured financially or in tangible ways: -
a) Reduction of absenteeism.
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 b) Making a positive in road to working days lost every year due to stress and
mental illness.
c) Creating new working relationships based on counseling skills and approaches
based on trust, respect and mutual understanding.
What will organizations gain from counseling?
1) It improves communication between individual and the management.

2) It creates feed back loops back up into higher management levels so that management
can benefit form the sights gained.
3) Leads to realizing knowledge and increase business success.
4) It provides a feedback or sensitive issues on individual basis.
5) Counseling breaks barriers between managers and employees and creates mutual trust
and respect

What draws an organization towards counseling?

1) Uncertainty about litigations, industrial tribunals, industrial disputes and stress claims
at work.
2) Poor performance counseling systems can lead an organization towards counseling
3) Individual and group performance
4) With counseling you avoid litigation and disputes

Problems in counseling are concerned with the following issues

1. Counseling is about creating better interpretation relationships
2. Counseling is about other types of advice i.e. legal, financial, medical problems. For
this to succeed effective communication skills are called for

When life interferes with work/home?

Organization consist of people and there times when sad or disturbing life events cannot be
left at home.
It can take extreme forms as assault to it may be illustrated in the following ways: -
a) Absenteeism
b) Illness
c) Accidents
d) Lack of concentration

How to uncover the problems

1) Human problems
Some times an HRM practitioner can do the work (in house) or an external expert might
unearth these problems. Counseling is important because many people don’t expose their
problems but may release tension to trusted and specialized experts

2) Signs of problems in the work place

- Bereavement
- Illness
- Eating disorders
- Drug abuses
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- Marital relationship problems.

Bereavement
With bereavement or loss – the most useful realization with this is that the employee should
note it’s a process and not a state. Counselors dealing with bereaved people should make
people
a) Accept the reality of the loss
b) Experience the pain of grief
c) To adjust to the new situation

Many people experience a period of fantasy e.g. redundancy leads to unimaginable scenario
to many workers

How’s this likely to manifest itself in work place

Losses could be as diverse as having your house burnt or losing a precious object or breaking
a relationship/loss of job/ change of career. All these can affect work.

Signs of such people:

Workers who are affected can be identified through:
a) Lack of concentration
b) Increase in errors
c) Physical symptoms
d) Over reaction

Experts think that what a worker thinks is to retaliate (talk to others) and let out feelings. This
can only be offered through counseling services.

Illness and eating disorders

The out wide sign of illness can mean that someone needs medical attention. The physical
appearance may show sudden weight loss or gaining of the same.
Such workers must obtain medical attention at the earliest. In case of terminal illness like
cancer and

AIDS specialist agencies providing such services must be approached because you might not
understand reasons underlying the behaviour.
Further more people with such problems are reluctant to seek medical attention.

Signs of sickness and eating disorders

- weight loss/gain
- forced vomiting
- muscle weaknesses
- persistent stomach pains

Alcohol and drug abuse

- These affect productivity of workers. Research has shown that alcohol and drug abuse
can lead to absenteeism and presenteeism which can affect productivity
- Drug abuse and alcohol can be very costly to companies. To combat the above two it
is very difficult
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 - Alcoholism when it gets into the brain system it affect
o Judgment
o Skills e.g. driving, operating machines
o Self control

Questions for review:

1. What are the benefits of participation in an organization?
2. Outline the different ways workers participate.
3. What will organizations gain from counseling?

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TOPIC 8: COMMUNICATION

- Its derived from the Latin word `communis’ which means common. Therefore
communication is the transmission of a message from a source through a channel to a
receiver.
- Communication is effective if the receiver is able to interpret the symbols in which
the message has been coded.
- The purpose of communication:
i) To motivate people to act
ii) To change and achieve desired results
- In communication, the intention of the sender must be understood otherwise there
would be leakage in communication systems. Leakage occurs when information
reaches unintentioned destination.

Communication Process (variables)

a) Source – There must be at least two actors:
i) Message sender (communicator)
ii) Message receiver

b) Message
The message initially exists in the mind of the sender in form of idea. For the
message to be perceived by others, its given physical representation in forms of:-
verbal speech, written/graphic signs, manual gestures.
c) Selection of channel to use – The medium or channel must be effectively chosen. The
means of using the mental idea into the symbol as to form a message is called a
medium.
What is transmit/carries the message from source to the receiver is called a
channel/transmitter i.e. means by which the information moves from one end to the
other.
d) Communication cannot take place unless there’s feedback. No communication takes
place unless a message is sent to received thus need for feedback.
- When the information is sent to the receiver then communication is said to be
complete.
- Feedback assessment is important for the source because it is the only way by which
the source can judge the effectiveness of communication.

Message

Source
Receiver

Feedback

Verbal Channel:
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 - This involves passing of messages by use of spoken words/speech apparatus.
- It’s the most effective channel if exploited to the maximum. To be effective it
requires ability to develop a pleasant voice with a flexible range possible qualities.
- The voice should be varied to avoid monotony and sustain interest i.e voice
modulation. In addition there should be ability to choose appropriate linguistic
expressions (depending on the audience)
- Verbal channel is usually the most persuasive as you’re seeing the receiver and
feedback is immediate.
- Messages expressed through verbal channels are prone to distortion.

Advantages
i) Its persuasive

Disadvantage
- Lack of permanence
- There is need to use of other channels to reinforce this channel

Non-verbal channels
It includes anything that does not undue the spoken word. It includes:
a) Body language
b) Behaviour expression
c) Behaviour of eyes
d) Posture and body movement
e) Personal appearance

- Listeners trust body language as a way of repeating information communicated

verbally.
- The print and mechanized channel
- They convey their messages in graphic symbols (alphabet, hieroglyphics)
- Its valued for its relative performance as opposed to verbal channels
- It leaves evidence of communication having taken place
- It includes radio, video tape, television telephone. Other types of communication
channels include; in organization structures
- They are social, plan level communication
- People who are on the same level communicate horizontally. Those on different
(above or below) communicate vertically. Language used vertically is different from
that used horizontally.
- For horizontal communication there must be good understanding and psychological
factors.
- Social channels find their places in organization depending on psychological and
other factors operating in a group.

Communication Barriers:

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This refers to any factor that prevents passage of a message or anything that distorts a
message. A barrier may come between the source and the receiver and therefore affecting the
transmission of the message.
i) Internal noise – those barriers within the source on within the receiver are called
internal noise. Its also called a personal barrier.
Personal barriers are within the source or the receiver. They may be as follows:
a) Psychological
b) Physical eg pronunciation
c) Misunderstanding or understanding
d) Inability to read and write
e) Difference in perception
f) Lack of interest
g) Lack of fundamental knowledge on the part of the sender
h) Difference of personality
i) Poor listening
j) Distrust
k) Threat and fear

External Barriers:

- Those are between the receiver and sender. They include;

a) Bad telephone lines
b) Loud noise near the communicator
c) Lack of visibility where the Communicator requires sight.

Consequences of poor communication:

- Lead to poor employee relation
- Loss of life
- Los of a job
- Loss of a business deal

How do you overcome the above barriers? Communication is done through meetings,
reports, written texts, telephones, memorandum, letter. Its important that we:
a) Communicate carefully and honestly
b) Be specific
c) Clear and avoid ambiguity

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TOPIC 9: DISCIPLINE AND DISCIPLINARY PROCEDURES

DISCIPLINE

Discipline refers to a condition in the organization when employers conduct themselves in

accordance with the organization’s rules and standards of acceptable behaviour. However,
not all employees will accept the responsibility of self-discipline. Such employees therefore
will require some degree of extrinsic disciplinary action.

Types of Discipline Problems

a) Attendance – Absenteeism, tiredness, abuse of sick leave etc.

Why attendance such as serious problem?
- Many organizations have failed to align workers’ goals with those of the organization.
- A changing attitude towards employment. For many work isn’t their central life
interest and hence the desire to conscientiously be in their jobs regularly is not of
primary importance.
- Increased difficulty in firing an employee especially those union members protected
by collective bargaining agreement.

b) On the Job-Behaviours
For example insubordination, fighting, carelessness, abuse of alcohol and drugs etc.
The above represent clear violations of an organization acceptable standards of
behaviour. Thus corrective action should be taken immediately.

c) Dishonesty
For example theft, falsified information (lies).

d) Outside
- These are activities that employees engage outside of their work but which either
affect their on-the job performance. For example, unauthorized strike activity, having
one’s wages garnished, outside criminal activities.

Before disciplinary action: Put the problem in perspective:

The following nine contingency factors have been proposed to help analyse a disciplinary
problem:

1) Seriousness of the problem

2) Duration of the problem
3) Frequency and nature of problem
4) Employees’ work history
5) Extenuating factors
6) Degree of socialisation
7) History of the organization’s discipline practices
8) Implications for other employees.
9) Management backing.

General guidelines in administering discipline:

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 1) Make disciplinary action corrective than punitive.
2) Make disciplinary action progressive

Disciplinary Actions
Disciplinary generally follows a typical sequence of four steps:
a) Oral warning – this is the mildest form of discipline. This reprimand is best achieved
if completed in a private and informal environment. The manager should begin by
clearly informing the employee of the rule that has been violated and the problem the
infraction has caused.
i) After the problem and the implications arising thereof have been made clear by the
Manager, the employee should be given a change to respond giving emphasis to; is
she aware of the problem? Are there extenuating circumstances that justify her
behaviour? What does she plan to do to correct her behaviour?
ii) The Manager must determine if the employee has proposed an adequate solution
to the problem.
iii) If this hasn’t been done, then the Manager will need to consider direct the
discussion toward helping the subordinate figure out ways to prevent the trouble
from recurring.
iv) Once a solution has been agreed upon the Manager should ensure that the
employee understands what if any follow-up action will be taken if the problem
recurs.
v) If the oral warning is effective, further official disciplinary action can be avoided.
vi) If the employee fails to improve, the manager will need to consider more severe
action. A final point on the oral warning: its good idea to make a temporary record of
this reprimand and place it in the employee file.
vii) It should state the purpose, date and outcome of the interview with the employee.
Once the employee has demonstrated that she has corrected the problem the record of
the oral reprimand can be removed from the file.

b) Written Warning
- The second step in progressive discipline.
- In effect, its first formal stage of discipline procedure since written warning becomes
part of the employees official file. This is relieved by not only giving the warning to
the employee, but sending a copy to the personnel department to be inserted in the
employees permanent record.
- The employee is advised of the violation, its effect and potential consequences of
future violations. The only difference with the oral warning procedure is that the
discussion concludes with the employee being told that written warning will be
issued.
- Then the manager writes up the warning stating the problem the rule that has been
violated, any acknowledgement by employee to correct her behaviour and the
consequence from a recurrence of the deviant behaviour.

c) Suspension
- This is the next step taken only if the prior steps have been implemented without the
desired outcome.
- Exceptions – where suspension is given without any prior written warning.
Occasionally occur if the problem is of a serious nature.
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 - A suspension may be for one day or several weeks. Disciplinary layoffs in excess of
a month are rare.
- Some organizations skip this step completely because it can have negative
consequences for both the company and employee.
- For example if a suitable replacement isn’t located, the organization performance is
severely impacted.
- The suspended employee may return in a more unpleasant and negative frame of mind
than layoff.
- However, a short lay off, without pay has the potential to be a rude awakening to
problem employees.
- It may convince them that management is serious and shock them back to accepting
responsibility for following the organization’s rules.

d) Demotion
- If suspension hasn’t been effective and management wants to strongly avoid
dismissing the problematic employees demotion may be an alternative demotion.
- Its not commonly used because it tends to demoralize the employee but her co-worker
as well.
- If the demotion has a place as a disciplinary action, it probably is where:
i) the employee clearly has the ability to perform her job
ii) management perceived itself legally or ethically constrained from firing
the employee (for example one with 30 years of tenure in the organization)
iii) its believed that a blatant demotion will awaken the employee
- In such instances, emotion is a loud message that the employee will have to shape up
radically if she wants her old job back and that management has no intention of letting
her get away with chronic abuses of the organization’s rules.

e) Paycut
- This approach usually has a demoralizing effect on the employee, but it has been
suggested as a rational action by management if only other alternative is dismissed.
- From the management’s perspective dismissal means losing the individuals
experience and background.
- A replacement will be hired in at a lower salary, but has to be trained to do the job.
- If the problem employee alters her behaviour, then pay cut can always be reinstated.

f) Dismissal
- Management’s ultimate disciplinary punishment is dismissing the problem employee.
- Dismissal should be used only for the most serious offences. Yet, it may be the only
feasible alternative when an employees behaviour is so bad as to seriously interfere
with a department or the organisation operation.
- A dismissal decision should be given long and hard consideration.
- Being fired from a job is an emotional trauma. Thus, the management should
consider the possibility that a dismissed employee will take legal action to fight the
decision.

Disciplining Special Employee Groups

a) Unionised employees
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 - Where employee belong to a union, there will be a collective bargaining agreement.
This agreement among other things, will outline rules governing the behaviour of
union members.
- It’ll also identify disciplinary procedures and clarify the steps members are to follow
if they believe that they are receiving arbitrary or unfair treatment.
- Most collective bargaining agreements stipulate that employees can only be
disciplined for `just cause’ and provide a grievance procedure and opportunities for
third party arbitration if employees believe they’re wronged.
- Disciplining a unionized employee thus tends to be a more formal than the
disciplinary of non-union employees.

b) Professional Employees
- Engineers, computer specialists, accountant, medics also present unique disciplinary
problem. Because they hold high skills and frequently possess important and valuable
information about the organization.
- They are more difficult to replace if dismissed and can discredit the organization with
competitors, suppliers, customers, government agencies or other constituencies.
- Thus, management must take greater care in disciplining professional employees than
it might take with non-unionised operative employees.
- They may explain the replacement of traditional dismissal actions with the practice of
declining and offering outplacement services.
- Declining seeks to get the employee to voluntarily quit. If the employee isn’t
performing adequately and corrective, attempts have proved unsuccessful,
management can begin sending out clues that the professional services are no longer
needed.
- Excluding the employee from important meetings, by passing her on key memos and
reassigning her to boring and unchallenging tasks are examples of actions that should
convey the message.
- If they’re successful, the employee finds another job and gives her notice.
- This saves the employees and organization face.
- Outplacement counseling is usually provided to the professional by her employers for
the purposes of assisting him in marketing his services (designing & updating one’s
resume, making lists of contacts, coaching on how to go on interviews an advise on
how to follow up on leads and how to evaluate any job offers that are received.
- In contract to declining outplacement requires management to become a partner in
helping the professional find new employment. Its expensive for the organization but
a definite step forward in humanistic treatment of employees.

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TOPIC 10: TERMINATION OF EMPLOYMENT

- Contracts of employment like any other contract come to an end, how?

- Through resignation, retirement, dismissal (may miss benefits), redundancy, death,
normal termination (get benefits) by notice ( one month salary or notice of one month)
Dismissal
Dismissal refers discharge or termination from employment at the initiative of the employee
(due to gross misconduct)
Reasons to warrant dismissal
- There must be valid reasons
- There should be justifiable cause
Things to consider
- Capacity on qualification – are these alternative penalties (demotions, transfers)
- Consider the conduct of worker
- Overall policy of the organization
- Operational requirements (Is it ore costly? Can you do without him?)
Summary dismissal only done:
- For wrongs (proven).
- Dishonesty.
- Stealing company property.
- Gross misconduct.
- Concealing proper information about oneself.
Legal criteria employers should follow before termination:
- There must be reasonable grounds for the same.
- Reasonable notice or compensation in lieu.
- Specify the offence.
- Notify union or labour office.
- Pay legal entitlements i.e. leave days, certificate of service
Invalid termination of a contract:
- Union membership/ activities.
- Absence during maternity.
- Discrimination on grounds of race, colour, sex, marital status, family responsibility
- Illness or injury.
Entitlement of terminated worker:
- Right of defense.
- Right of appeal.
- Consider factors as CBA and the law.
Consequences of wrongful dismissal:
- Reinstatement.
- Payment of accrued rights/benefits.
- Compensation (if dismissal unlawful i.e. 12 months salary compensation and special
and general damages).
Categories not expected to enjoy terminal benefits:
- Workers under contract for specific periods or tasks.
- Those on probation or qualifying period.
- Casuals.
- Small firms (family firms).
Termination on account of redundancy:
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 - Give reasonable grounds.
- Inform the ministry of labour and /or union
- Principle of “last in first out”
Questions for Review
1. What are factors to consider before dismissed/
2. What legal criteria employers should follow before termination?
3. Which categories of workers are not expected to enjoy terminal benefits?

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