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Box 342-01000
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Email: Info@mku.ac.ke

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DEPARTMENT OF MANAGEMENT

COURSE CODE: DBM1312

COURSE TITLE: LABOUR LAWS

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 COURSE OUTLINE

Purpose: to educate students in labour laws

Course objectives: by the end of the course the students should be able to:
i. Discuss the legal framework governing employee’s right to organize and
engage in concerted activity
ii. Discuss management s right to discipline and discharge
iii. Describe the legal environment governing human resource management
Course content
 Historical and statutory development of unionization
 Union organization and unfair labor practices
 Negotiation and administration of the collective bargaining agreement
 Public-sector regulation
 Transnational labor/ management issues
 Management right to discipline and discharge
 Employee rights to organize and engage in concerted activity
 The legal framework of contract negotiation and administration
 Fair employment practices
 Legal environment and regulatory process in human resource management
 Other selected legal influences

Recommended text books

Collins S. and McGolgan (2001), labour law text materials, Hart Publishing London

Text book for further reading:

Owiti O (1990), you and the law: the rights of an employee in Kenya, Oxford
University. Oxford

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TABLE OF CONTENT
COURSE OUTLINE .................................................................................................................................................. 2
CHAPTER ONE: INTRODUCTION............................................................................................................................ 5
1.0 HISTORICAL AND STATUTORY DEVELOPMENT OF UNIONISATION ............................................................ 5
1.1 ORIGINS AND EARLY HISTORY .................................................................................................................... 7
1.2 ENACTAMENT OF THE FIRST TRADE UNION LAW ORDINANCE NO. 35 OF 1949........................................ 9
1.3 UNION ORGANISATION IN KENYA ADMINISTRATION, STRUCTURE AND ORGANIZATION....................... 10
1.4 CLOSED SHOP ARRANGEMENTS ............................................................................................................... 12
1.5 SHOP TYPES............................................................................................................................................... 13
1.6 THE CASE FOR THE CLOSED SHOP............................................................................................................. 13
CHAPTER 2: TRADE UNION LEADERSHIP STYLES................................................................................................. 15
2.1 STRUCTURE AND ORGANIZATION OF TRADE UNIONS IN KENYA ............................................................. 15
2.2 THE NATIONAL UNION OFFICE ................................................................................................................. 16
2.3 THE SHOP STEWARD ................................................................................................................................. 18
2.4 THE CENTRAL ORGANISATION OF TRADE UNION (KENYA) COTU (K) ....................................................... 18
2.5 AFFILIATES................................................................................................................................................. 20
2.6 EMPLOYERS ASSOCIATION IN KENYA ....................................................................................................... 21
2.7 THE FEDERATION’S MAIN FUNCTION ARE ................................................................................................ 22
CHAPTER THREE: GENERAL PROCESS AND PROCEDURES IN INDUSTRIAL RELATIONS....................................... 24
3.1 RESPONSIBILITY FOR INDUSTRIAL RELATIONS.......................................................................................... 25
3.2 THE ROLE OF FIRST LINE SUPERVISOR ...................................................................................................... 26
3.3 THE ROLE OF SHOP STEWARDS ................................................................................................................ 26
3.4 WHY INDUSTRIAL RELATIONS PROBLEMS ARISE ...................................................................................... 27
3.5 BASIC STEPS IN SOLVING INDUSTRIAL RELATIONS PROBLEMS. ............................................................... 27
3.6 DIAGNOSTIC SKILLS FOR MANAGERS ....................................................................................................... 29
CHAPTER FOUR: MANAGEMENT RIGHT TO DISCIPLINE AND DISCHARGE ......................................................... 32
4.1 BEHAVIORAL ASPECTS OF DISCIPLINE ADMINISTRATION ........................................................................ 34
4.2 THE DISCIPLINE INTERVIEW ...................................................................................................................... 35
4.3 DISCIPLINE –PRINCIPLES, POLICIES AND PROCEDURES ............................................................................ 35
4.4 THE HOT STOVE RULE ............................................................................................................................... 36
4.5 CONCILIATION........................................................................................................................................... 38
4.6 ARBITRATION ............................................................................................................................................ 40
4.7 MEDIATION ............................................................................................................................................... 41
4.8 MEDIATION PROCESS ............................................................................................................................... 42
CHAPTER FIVE: LEGAL FRAMEWORK OF CONTRACT NEGOTIATIONS AND ADMINSTRATION ........................... 44
5.1 NEGOTIATIONS SKILLS .............................................................................................................................. 44
5.2 COMMUNICTION SKILLS IN NEGOTIATIONS ............................................................................................. 45
5.3 THE CONDUCT OF JOINT DISCUSSIONS AND NEGOTIATIONS .................................................................. 46
CHAPTER SIX: DISPUTES AND COLLECTIVE BARGAINING.................................................................................... 49
6.1 HOW TO MANAGE INDUSTRIAL CRISIS ..................................................................................................... 52
6.2 TRADE DISPUTES ....................................................................................................................................... 52
6.3 THE DISPUTE SOLVING MACHINERY ......................................................................................................... 53
CHAPTER SEVEN: EMPLOYEE’S RIGHT TO ORGANIZE AND ENGAGE IN CONCERTED ACTIVITY ......................... 56
7.1 HANDLING THREATS OF INDUSTRIAL ACTION .......................................................................................... 57

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 7.2 HANDLING A STRIKE SITUATION ............................................................................................................... 57
7.3 POST STRIKE PROCEDURES ....................................................................................................................... 60
7.4 THE MINISTRY OF LABOUR ....................................................................................................................... 60
7.5 CONSULTATION AND CONCILIATION........................................................................................................ 61
CHAPTER EIGHT: LEGAL FRAMEWORK OF CONTRACT NEGOTIATIONS AND ADMINISTRATION........................ 63
8.1 THE INDUSTRIAL COURT ........................................................................................................................... 64
8.2 PRINCIPLES AND PRACTICE OF COLLECTIVE BARGAINING ....................................................................... 68
8.3 HOW COLLECTIVE BARGAINING OPERATES IN KENYA ............................................................................. 69
8.4 FORMS OF COLLECTIVE BARGAINING ....................................................................................................... 70
8.5 BARGAINABLE ISSUES ............................................................................................................................... 72
8.6 NEGOTIATING PROCEDURES .................................................................................................................... 74
8.7 THE ROLE OF THE GOVERNMENT AND INDUSTRIAL COURT .................................................................... 75
8.8 BARGAINING TECHNIQUES ....................................................................................................................... 77
8.9 NEGOTIATIONS ......................................................................................................................................... 77
8.10 STRUCTURE OF NEGOTIATION................................................................................................................ 77
8.11 WAGE NEGOTIATIONS ............................................................................................................................ 79
CHAPTER NINE: UNFAIR LABOR PRACTICE.......................................................................................................... 82
9.1 PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT CASES. .................................. 85
9.2 CONCILIATION OF CHARGES OF UNLAWFUL PRACTICES. – ...................................................................... 86
9.3 FAIR EMPLOYMENT PRACTICES ................................................................................................................ 87
CHAPTER TEN: THE LEGAL ENVIRONMENT OF HUMAN RESOURCE MANAGEMENT ......................................... 93
10.1 LAWS AND EXECUTIVE ORDERS AFFECTING EMPLOYMENT................................................................... 95
10.2 DISTINCTION BETWEEN EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION ......................................... 99
10.3 WHAT IS THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)? ....................................... 100
10.4 WHAT DISCRIMINATORY PRACTICES ARE PROHIBITED BY THESE LAWS? ............................................ 100
10.5 HOW DOES EEOC RESOLVE DISCRIMINATION CHARGES? .................................................................... 102
10.7 KEYS TO RETENTION OF OLDER WORKERS ........................................................................................... 104
10.8 SEXUAL HARASSMENT .......................................................................................................................... 106
10.9 FACTORS DETERMINING HOSTILE ENVIRONMENT............................................................................... 107
10.10 WAYS TO REDUCE SEXUAL HARASSMENT .......................................................................................... 108
CHAPTER ELEVEN: EMPLOYMENT CONTRACT .................................................................................................. 109
11.1 MATERNITY LEAVE PROVISIONS ........................................................................................................... 111
11.2 TEN THINGS TO CHECK BEFORE SIGNING A CONTRACT ....................................................................... 112
CHAPTER TWELVE: TRANSNATIONAL LABOUR ISSUES ..................................................................................... 115
12.1 INTERNATIONAL LABOUR ORGANIZATION ........................................................................................... 116
12.2 DISPUTES – INTERNATIONAL ................................................................................................................ 116
12.3 TRAFFICKING IN PERSONS .................................................................................................................... 116
12.4 INTERVENTIONS TO REHABILITATE AND REINTEGRATE VICTIMS OF HUMAN TRAFFICKING AND
FORCED LABOUR........................................................................................................................................... 117
12.5 ILLICIT DRUGS ....................................................................................................................................... 121
SAMPLE PAPERS ................................................................................................................................................ 124

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 CHAPTER ONE: INTRODUCTION

Objectives
By the end of the chapter, the learner should be able to;
(a) Define the term labour laws
(b) Describe Historical and statutory development of unions
(c) Describe the origin and early history of union
(d) Discuss enactment of the first trade union law ordinance no. 35 of 1949
(e) Explain union organisation in Kenya administration, structure and organization

Labor law (also called labor law or employment law) is the body of laws, administrative rulings,
and precedents which address the legal rights of, and restrictions on, working people and their
organizations. As such, it mediates many aspects of the relationship between trade unions,
employers and employees. There are two broad categories of labour law. First, collective labour
law relates to the tripartite relationship between employee, employer and union. Second,
individual labour law concerns employees' rights at work and through the contract for work. The
labour movement has been instrumental in the enacting of laws protecting labour rights in the
19th and 20th centuries. Labour rights have been integral to the social and economic
development since the Industrial Revolution. Employment standards are social norms (in some
cases also technical standards) for the minimum socially acceptable conditions under which
employees or contractors will work. Government agencies (such as the former U.S. Employment
Standards Administration) enforce employment standards codified by labour law (legislative,
regulatory, or judicial).

1.0 HISTORICAL AND STATUTORY DEVELOPMENT OF UNIONISATION

The Trade Unions Act of Kenya (Cap 233) defines a trade union as:
(a) An association of combination whether temporary or permanent of more than six persons
(other than a staff association, employees’ association or employee’s organization not
deemed to be a trade union under section 3 of this Act), the principal objects of which are
under its constitution, the regulation of the relations between employees and employers,
whether such combination would or would not, if this Act or any Act thereby repealed had

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 not been enacted, have been deemed to have been an unlawful combination by reason of
some one or more of its purposes being in restraint of trade.
(b) Trade union or labor union is also an organization of workers that have banded together to
achieve common goals such as better working conditions. The trade union, through its
leadership, bargains with the employer on behalf of union members (rank and file members)
and negotiates labour contracts (collective bargaining) with employers. This may include the
negotiation of wages, work rules, complaint procedures, rules governing hiring, firing and
promotion of workers, benefits, workplace safety and policies. The agreements negotiated by
the union leaders are binding on the rank and file members and the employer and in some
cases on other non-member workers.

Originating in Europe, trade unions became popular in many countries during the Industrial
Revolution, when the lack of skill necessary to perform most jobs shifted employment
bargaining power almost completely to the employers' side, causing many workers to be
mistreated and underpaid. Trade union organizations may be composed of individual workers,
professionals, past workers, or the unemployed. The most common, but by no means only,
purpose of these organizations is "maintaining or improving the conditions of their
employment".

Over the last three hundred years, many trade unions have developed into a number of forms,
influenced by differing political objectives. Activities of trade unions vary, but may include:

 Provision of benefits to members: Early trade unions, like Friendly Societies, often
provided a range of benefits to insure members against unemployment, ill health, old age
and funeral expenses. In many developed countries, these functions have been assumed
by the state; however, the provision of professional training, legal advice and
representation for members is still an important benefit of trade union membership.
 Collective bargaining: Where trade unions are able to operate openly and are recognized
by employers, they may negotiate with employers over wages and working conditions.
 Industrial action: Trade unions may enforce strikes or resistance to lockouts in
furtherance of particular goals.

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  Political activity: Trade unions may promote legislation favorable to the interests of their
members or workers as a whole. To this end they may pursue campaigns, undertake
lobbying, or financially support individual candidates or parties (such as the Labour Party
in Britain) for public office.

The origins of unions' existence can be traced from the 18th century, where the rapid expansion
of industrial society drew women, children, rural workers, and immigrants to the work force in
numbers and in new roles. This pool of unskilled and semi-skilled labour spontaneously
organized in fits and starts throughout its beginnings, and would later be an important arena for
the development of trade unions. Trade unions as such were endorsed by the Catholic Church
towards the end of the 19th Century. Pope Leo XIII in his "Magna Carta"—Rerum Novarum—
spoke against the atrocities workers faced and demanded that workers should be granted certain
rights and safety regulations. The term "trade union" was first coined by the Romanian professor
Matei Coltan who studied at the University of the West of England.

1.1 ORIGINS AND EARLY HISTORY

Trade unions have sometimes been seen as successors to the guilds of medieval Europe, though
the relationship between the two is disputed. Medieval guilds existed to protect and enhance their
members' livelihoods through controlling the instructional capital of artisanship and the
progression of members from apprentice to craftsman, journeyman, and eventually to master and
grandmaster of their craft. A trade union might include workers from only one trade or craft, or
might combine several or all the workers in one company or industry.

Trade unions and/or collective bargaining were outlawed from no later than the middle of the
14th century when the Ordinance of Laborers was enacted in the Kingdom of England. Union
organizing would eventually be outlawed everywhere and remain so until the middle of the 19th
century.

Since the publication of the History of Trade Unionism (1894) by Sidney and Beatrice Webb, the
predominant historical view is that a trade union "is a continuous association of wage earners for
the purpose of maintaining or improving the conditions of their employment." A modern
definition by the Australian Bureau of Statistics states that a trade union is "an organization

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consisting predominantly of employees, the principal activities of which include the negotiation
of rates of pay and conditions of employment for its members."

Yet historian R.A. Leeson, in United we Stand (1971), said:

Two conflicting views of the trade-union movement strove for ascendancy in the nineteenth
century: one the defensive-restrictive guild-craft tradition passed down through journeymen's
clubs and friendly societies, ... the other the aggressive-expansionist drive to unite all 'labouring
men and women' for a 'different order of things'.

Recent historical research by Bob James in Craft, Trade or Mystery (2001) puts forward the view
that trade unions are part of a broader movement of benefit societies, which includes medieval
guilds, Freemasons, Oddfellows, friendly societies, and other fraternal organisations.

The trade union movement in Kenya began in the early 1900’s. However it took almost 50 years
before the first real trade union movement became a permanent feature of the industrial relation
scene. A number of factors contributed to this. These include.
(a) The strong opposition of the elite settler employers
(b) The small number of wage earners and their lack of technical know how in the trade
union organization
(c) The authoritarian nature of the colonial political system
(d) The restrictive Labour Laws
(e) The high rate of illiteracy among wage earners

Between 1900-1946, some important changes occurred which contributed to the emergence of
the trade unions. The impact of the two world wars, the enlistment of solders form East Africa
and their intensive training not only in arms but also as carpenters, masons, drivers, fitters etc,
had its effect on the workers.

Their experience abroad in place like Italy, Egypt, India, Ceylon and Burma had shown the m
new ways of life. After the war, they had to return home, but after seeing conditions of work in
other parts of the world and with the intensive training they were given, these people could not

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be expected to come back and be contented with the terms and conditions of work at home. Most
of them therefore became militant leaders of workers, but the colonial government did not give
them a chance to organize themselves.
The increase in the concentration of wage-earners in the agricultural, manufacturing and other
sector led to a greater awareness amongst wage earners of their economic plight. The increased
awareness led to the formation of the workers organization in the 1940’s.

1.2 ENACTAMENT OF THE FIRST TRADE UNION LAW ORDINANCE NO. 35 OF 1949
1. Any seven or more members of a trade union which was registered under the Trade
Unions and Trade Disputes Ordinance 1943 before the 20th day of April 1948, may
within one month form the commencement of this ordinance, apply for re-registration
under the principal ordinance.
2. Such application shall be deemed to be an application for new registration under section 7
of the principal ordinance and the principal ordinance shall apply accordingly except that
the trade union shall not be registered unless the application is made within the period
aforesaid of the period of three principal ordinances.
3. The registration may be granted and ante-dated to the date of the original registration or
may be refused upon any ground upon which registration could be refused or cancelled
under the provisions of the principal ordinance.
4. No fee for re-registration shall be payable by any trade union to which this ordinance
appliers.
5. If no applications for re-registration is made within one month from the commencement
of this ordinance by any trade union to which the ordinance applies, the Registrar shall
cancel the registration of such trade union and there upon the trade union shall be an
unregistered trade union and the provisions of section 5 of the principal ordinance and
any other provisions of the principal ordinance relating to unregistered trade unions shall
apply there to.
6. A cancellation of a registration under this section shall not be subject to appeal or be
called in question in any court.

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Thus in 1949, a trade union registration ordinance, Compulsory Labour Act, and a deportation
ordinance were introduced to give the government stronger powers of control over unions and
workers.
In an attempt to discourage the development of trade unions and limit their political power
during the early 1950s the colonial government:
(a) Sponsored the establishment of staff associations and works committees.
(b) Established a statutory wage determination machinery by forming wage councils for
various industries
(c) Provided close control over internal activities of the unions through the Registrar of
Trade Unions with the powers to de-register the unions, and
(d) Extended compulsory arbitration and other restrictions to almost all major industries
through a liberal application of the Essential Services Ordinance

1.3 UNION ORGANISATION IN KENYA ADMINISTRATION, STRUCTURE AND

ORGANIZATION
The majority of unions in Kenya are organized on an industrial basis and any union applying for
registration is scrutinized and registered or refused registration on this basis.
Disputes in respect of recognition are also resolved on the basis of whether or not they conform
to the industrial -type system of trade union organization. The system of trade union organization
on industrial basis can be traced back to an agreement reached in 1957 between the Federation of
Kenya Employers (FKE) and the Central Organization of Trade Union (COTU), at that time
knows as Kenya Federation of Labour. The Agreement state that.

(i) The functions of a union of employees as a body with which employers can negotiates is
accepted, but to be recognized such union must be duly registered and must be to
show that it can ensure that agreement reached will be observed by the workers in the
industry
(ii) The overlapping of spheres of activity of unions should be avoided
(iii)Unions should be organized on industrial basis
(iv)No form of coercion should be brought to bear upon the individual either to join or not
join a union.

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Following this agreement, voluntary machinery was set up to deal with demarcation problems
between unions.
Generally, union activity is restricted to workers below the rank of supervisor and excludes
personnel engaged in confidential, directive and administrative representational and supervisory
activities of the undertaking.
The impetus of trade union organization and development in Kenya has always come from the
top, from the COTU. Weak unions are given various forms of assistance such as finding them
able leaders and the central organization negotiates on behalf of most unions.
Thus, COTU developed its own forms of organizing the development of unions on industry-wide
basis rather than on the structure of a craft or general union, as is the case in Britain. Some of the
reasons that influenced such a decision were:
(i) Workers in a certain industry more or less face similar environment and may make
uniform demands
(ii) Employers’ inclination to deal with people who know the economic of the industry.
The employer’s reasons to support industry based unions has lent itself to various interpretations.
Casual observers of the Kenyan scene, point out that the key word is not the knowledge of the
economics of the industry but “manipulation” of the industrial relations system to suit their own
purpose.

The employer’s ability to manipulate union officials cannot b over emphasized. During the
negotiations, the employers find it easy to manipulate industry based unionists, by promising
them certain favours so as to divert their attention form the substantive issues at hand.
Wagu Ananaba pointed out that “… it is not common to hear that some full time salaried
officials of trade unions are on the payroll of the employers whose workers they represent “ Gin
and Tonic” is a popular nickname in Nairobi. Thus, it refers to a union official and his
connection and deals with the employer.
The trade union movement in Kenya, though numerically strong, (in 1997) it had about 40,000
members) is quite weak in terms of influencing key managerial decisions. “The weaknesses of
trade unions in Kenya are indicated by the fact that:
(a) Unions do not provide any forms of assistance to their striking members.

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 (b) Except for a few unions, the enrolling of new members is the responsibility of the
organizing Secretaries and the part-time (generally non-paid) branch Chairman and Shop
stewards.
(c) Relatively few unions offer any service other than collective bargaining to the members.
(d) The majority of the unions are really “one man show” with the general secretary doing all
the collective bargaining and handling all major grievances, resolving the may branch
problems that occur as well as administration the union:.
In contrast, the Federation of Kenya employers (FKE) is better organized. Because of its strong
financial position, it provides all sorts of assistance to its affiliated employer associations.
The federation of Kenya employers has a wide range of professional staff eg economic advisers,
lawyers and industrial relations experts. These help to consolidate FKE’s strong position against
the weak trade unions.

1.4 CLOSED SHOP ARRANGEMENTS

This is a situation in which employees come to realize that a particular job is only to be obtained
and retained if they become and remain members of one of a specified number of trade unions.
In some cases a person may have to be a member of a trade union before he can obtain the job he
is seeking. This is a ‘pre-entry’ closed shop. In other cases he may be obliged to join a trade
union within a short time of beginning the job he has secured. This is the ‘post entry’ closed
shop. In Britain the pre entry is less common than the post entry closed shop.

A justification for the closed shop commonly put forward by trade unionist is that the benefits
of agreements negotiated with employers apply to employees irrespective of whether they are
union members or not. Consequently non-members who pay no trade union subscriptions are
receiving benefits at the union’s expense. They should therefore be obliged to contribute.
Some unions insist upon the close shop wherever thy have the strength to enforce it, but there
are others which tolerate a majority of non-members even where they could take action for
force them to join the union or lose their jobs.

Whether a closed shop will be imposed or not depends on the particular circumstances of the
industry, and of the undertaking. If it seems probable that a closed shop will add considerably to

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the bargaining strength of the union or group of workers, then the closed shop is likely to be
imposed. On the other hand, if non- unionists are not a serious source of weakness, then their
presence will be tolerated.

1.5 SHOP TYPES

Companies that employ workers with a union generally operate on one of several models:

 A closed shop (US) or a "pre-entry closed shop" (UK) employs only people who are
already union members. The compulsory hiring hall is an example of a closed shop — in
this case the employer must recruit directly from the union, as well as the employee
working strictly for unionized employers.
 A union shop (US) or a "post-entry closed shop" (UK) employs non-union workers as
well, but sets a time limit within which new employees must join a union.
 An agency shop requires non-union workers to pay a fee to the union for its services in
negotiating their contract. This is sometimes called the Rand formula. In certain
situations involving state public employees in the United States, such as California, "fair
share laws" make it easy to require these sorts of payments.
 An open shop does not require union membership in employing or keeping workers.
Where a union is active, workers who do not contribute to a union still benefit from the
collective bargaining process. In the United States, state level right-to-work laws mandate
the open shop in some states.

1.6 THE CASE FOR THE CLOSED SHOP

The two most convincing arguments for the closed shop refer only to the first group of
employment, and depend upon the close link between effective bargaining and strong trade
unions.
The first is that in some industries, it is impossible or difficult for a union to establish effective
and stable organization without the help of the closed shop. The second is that even where
membership can be recruited and retained without its assistance there are instances where it is
needed to deploy the workers’ bargaining strength to the full.

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There are however, other arguments which can apply even where these two lack force. There are
certain it ensured that in dealings with the union, they were meeting an organization “which does
represent all your people.”
A similar argument is that the closed shop helps to secure the observance of agreements, since it
ensured that in dealings with the union, they were meeting an organization “which does represent
all your people.”
A similar argument is that the closed shop helps to secure the observance of agreements, since it
adds to the power of the union to discipline those who ignore them.
It must not be supposed however that good industrial relations are the invariable accompaniment
of the closed shop. On the contrary, for example in Britain, the closed shop is widespread in
motor manufacturing, ship building, coal mining and the docks- the four industries in which
strikes in breach of agreement have been most common in recent years

Review questions:
i. Discuss the emergence and development of trade unions in one country with which
you are familiar.
ii. Trade union movements are tools of political liberation. Discuss.
iii. Critically evaluate the current industrial relations systems in Kenya.
iv. (a) define a trade union
(b) In the late 20th century why do you think wage earners in Kenya have opted to go
against their unions when fighting for their rights?

Reference:
i. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
ii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iii. Davies .I, African trade unions, 1966.
iv. I.L.O, The role of trade unions in developing societies, 1978

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 CHAPTER TWO: TRADE UNION LEADERSHIP STYLES

Objectives
By the end of the chapter, the learner should be able to;
(a) Explain structure and organization of trade unions in Kenya
(b) Describe the national union office
(c) Discuss role of a shop steward
(d) Explain the role of central organisation of trade union (Kenya) COTU (k)

In the early day’s leadership styles often centered on a single charismatic leader as was the case
of Tom Mboya who was the First General Secretary of the Kenya Federations of Labour and
Dennis Akumu who founded Kenya African Workers Congress. During their tenure of office, the
ordinary rank and file followed their union directions without question.
Decisions were taken at the very top of the hierarchy and then handed down. This was mainly
due to the nature of the development of trade unions, that is, form top to bottom, and partly
because of the cultural acceptance of the rank and file to be led form the top. The status quo
prevailed because of inexperience and high level of illiteracy among the working class.
It is not uncommon now to find educated and professionals in the ranks of trade union
organization. These people see trade unionism as “a career” and as “avenues” for future political
prominence.

2.1 STRUCTURE AND ORGANIZATION OF TRADE UNIONS IN KENYA

The structure and organization of trade unions is adequately covered by the provisions of the
Trade Act (cap 233) of the laws of Kenya. The trade unions constitutions which form the
foundation and pivot on which the administrative functions of various organs of the Trade Union
is question rotate is mandatory as inscribed in the Act. The same Act has provisions for Trade
Unions Funds and Accounts, Trade Union Property, registration of Officers, Rights, and
Liabilities, Staff Association, Employees Association, Employers Organizations, Regulation,
Picketing offences, penalties etc
All unions’ constitutions provide for the aims and objectives for which the particular Union is
formed. It also provides for areas the union is to represent and specifies explicitly cases like craft

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or industrial union and the extent of representation, category of workers to be members or to be
represented, the membership fees and monthly contribution fees, provision for honorary
membership and other rules.

2.2 THE NATIONAL UNION OFFICE

National Union Official is elected as the constitution so provides. The same applies with their
Assistants or Deputies as the case may be.

ANNUAL, SPECIAL OR QUINQUENNIAL CONFERENCES

Union National Officials are elected at the Union Annual Conference or Special Conference. The
Conferences cited above are attended by Branch delegates and National delegates who are
constitutionally allowed to attend and vote thereat. The constitution also provides for the system
of voting, whether by voice, show, of hands or Secret Ballot or others. Those to be elected to
occupy National Offices include.

(a) 1. National Chairman

2. 1st Vice National Chairman
3. 2nd Vice National Chairman
(b) 1. National General Secretary
2. Deputy National General Secretary
3. Assistant National General Secretary
(c) 1. National Treasurer
2. Assistant National Treasurer
(d) 1. National Organizing Secretary or Director of Organization (as the case may be)
2. Six National Executive Committee Members.

GENERAL COUNCIL
The compositions of the Central Council, the quorum, how often it shall meet, voting system and
percentage that can make a valid decision or changes desired are provided for in the constitution
as the case may be.

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NATIONAL EXECUTIVE COMMITTEE
Most Union constitutions provide that the National Executive Committee looks into the day to
day running of the union affairs. In most cases it meets once every month. It has control over all
officers on all matters and recommends whatever action to be considered by the Central Council
that passes on the recommendations to the conferences. Any decision made at this Committee if
done constitutionally are binding on the Union.

AREA OFFICERS
The constitution where it is applicable may provide for the composition of the Union Area
Offices, Area committee, quorum and percentage that votes to make a valid decision. The
provisions must also be made on how the area office relates to the Head Office of the Union in
Question.

BRANCH ORGANIZATION
Although requirements of branch Organization are inscribed in the Trade Unions Act, Union
constitution also provide which union body will decide on the formation of Union Branches and
such necessary rules. In Kenya Not all unions have branches but quite a substantial number have.

BRANCHES OFFICES
Branch officers provided for in Most Union Institution are:
1. Branch Chairman
2. Branch Vice Chairman
3. Branch Secretary
4. Branch Assistant Secretary
5. Branch Treasurer
6. Branch Assistant Treasurer
7. Six Branch Committee Members
The branch officers together with the six branch committee members form a constitutionally
constituted branch committee. The quorum, system of voting and the percentage thereof are all
provided for in the union constitution.

17
BRANCH COMMITTEE
Where a Union is established as provided for in the Union Constitution, the Constitution will
also provide for composition of the Branch Committee, its quorum and the percentage that can
vote to make any desired changes or valid and binding decision on the branch.

BRANCH GENERAL MEMBERS MEETING

Most union constitutions provide that Branch General members meeting shall be the supreme
authority of the branch, how often it should meet, the quorum, system of voting and the
percentage that can make a binding decision on the branch are all n the Union Constituion.

THE WORKS COMMITTEE

This is a committee where representatives of the workers and the employer meet to discuss
problems of labour management relations. These may consist of individual grievances and
collective grievances or disputes. The works committee where they exist are attended by workers
representatives, shopstewards and or branch secretary or his representative

2.3 THE SHOP STEWARD

The shop stewards are elected by their workmates to represent the workers and union interest at
the plant or workplace. Under the law, the shops wards are not registered. The shop stewards
handle all cases, grievances or informal disputes at their level. Where they fail to strike a deal or
understanding with the employer, they report the matter to the branch secretary fail, he will
report to the general secretary for formal arbitration as the laws so provides.

2.4 THE CENTRAL ORGANISATION OF TRADE UNION (KENYA) COTU (K)

The 1965 presidential Ministerial Commission which put in place the dissolution of both the
Kenya federation of Labour and the Kenya African Workers Congress recommended that a
National Trade union center know as the Central Organization of Trade Union (Kenya) be
formed. Thus COTU (K) came into being.

18
COTU (K) STRUCTURE
This is the supreme authority of the organization. It is freee to conduct any business including
laying down the policy of COTU and giving directions regarding the organization. It meets every
six months during the months of March and September. The Governing Council is composed of
(a) 1. The Chairman General
2. First Vice Chairman General
3. Second Vice Chairman General
(b) 1. The Secretary General
2. The Deputy Secretary General
3. The assistant Secretary General
(c) 1. The Treasurer General
2. The Deputy Treasurer General

(d) 1. First Trustee

2. Second Trustee
3. Third Trustee
All together these are referred to as COTU Office Bearers. The chairman Secretary and
Treasurer are known as the Principal Council. One representative per 2000 members, but not
more than 13 including the Principal Officers from any one affiliated union form part of the
COTU office bearers.

(ii) THE EXECUTIVE BOARD OF COTU

This Board is responsible for the management of day to-day affairs of COTU, subject to
directions of the Governing Council. It exercises control over COTU office bearers, Ordinary
members of the Executive Board, affiliated Unions, Principal officers of affiliated Unions and
Ordinary members of affiliated unions.

(iii) COMMITTEES
COTU (K) has the following standing committees:
1. Finance Committee
2. Industrial Relations Committee

19
 3. Co-peration Committee
4. Economic Research Committee
5. Organization and Publicity Committee
6. Organization and Publicity Committee

OTHER COTU (K) INSTITUTIONS

The structure of COTU (K) also include its other institutions such as:
1. The Tom Mboya Labour College, Kisumu
2. The Tailoring Institute, Mombasa
3. The Workers Education Printing Press, Kisumu
4. The COTU Study Circle Education Programme, situated at the Headquarters with
representatives in all the provinces.

2.5 AFFILIATES
All registered Unions in Kenya are supposed to affiliate to COTU (K) as the country’s only
National Trade Union Centre. In 1996 there were twenty nine (29) Unions affiliated to COTU
except the Kenya National Union of Teachers and Kenya Union of Civil Servants who affiliation
to (COTU) (K) was cancelled by a Presidential decree in the 1960s. The recently formed Kenya
Wildlife and Allied Workers Union and the Kenya Union of Employees of Voluntary
Associations, Trade Unions and Allied Organization have applied for affiliation.

LIST OF COTU (K) AFFILIATED UNIONS

1. Amalgamagee Union of Kenya Metal Workers
2. Bakery, Confectionery Manufacturing and Allied Workers Union (Kenya)
3. Dock Workers’ Union
4. Kenya Airline Pilots Association
5. Kenya Building, Construction, Civil Engineering and Allied Trades Worker’s Union
6. Kenya Chemical and Allied Worker’s Union
7. Kenya Engineering Workers’ Union
8. Kenya Game Hunting and Safari Worker’s Union
9. Kenya Jockey and Betting Workers’ union

20
 10. Kenya Local Government Workers’ Union
11. Kenya National Union of Fishermen Workers
12. Kenya Plantation Agriculture Workers’ union
13. Kenya Petroleum Oil Workers’ Union
14. Kenya Quarry and Mine Workers’ Union
15. Kenya Scientific, Research , International ,Technical and Allied Institutions Workers’
Union
16. Kenya Shoe and Leather Workers’ Union
17. Kenya Union of Commercial, Food and Allied Workers
18. Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied
Workers
19. Kenya Union of Entertainment and Music Industry Employees
20. Kenya Union of Printing, Publishing, Paper Manufacturing and Allied Workers
21. Kenya Union of sugar Plantation Workers’
22. National Seamen Union of Kenya
23. Railway Workers Union (Kenya)
24. Tailors and Textile Workers’ Union
25. Transport and Allied Workers’ Union
26. Union of Posts and Telecommunications Employees (Kenya)
27. Banking insurance and Finance Union (K)
28. Kenya shipping, clearing and warehouse workers’ Union

2.6 EMPLOYERS ASSOCIATION IN KENYA

The earliest employers association in Kenya was know as the Association of Commercial and
Industrial Employers (ACIE). It was renamed the Federation of Kenya Employers in 1956.
After its amalgamation with the Coast Employers Association and Agricultural and Plantation
Industry Trade Association, it was Federation of Kenya Employers in 1956.
The amalgamation was influenced by the need to have a central employers body that could
approach both the government and the trade union representatives with a united front on all
matters pertaining to industrial relations. Secondly such amalgamation was influenced by the

21
need to improve managerial skills through systematic management training and development
programmes.
Membership of the Federation is open to all Employer Associations in both public and private
sectors on payment of annual subscription fee and building levy. These duties vary depending on
the number of employees engaged by an organization. These are special rates for trade
associations and religious and charitable institutions. The Federation’s membership has grown
form 209 in 1961 to 3000 in 1996.

2.7 THE FEDERATION’S MAIN FUNCTION ARE

1. Consultancy services, which it offers to individual members of association
2. Training-helps in the training of its members by organizing and running course on
Industrial relations
3. Industrial stability-Has played a big role in the industrial stability of the country. It is one
of the signatories to the Industrial Relations Charter. This Charter is a Social Contract
between the Government, employer and Workers. It spells out their respective rights and
responsibilities in the management of Kenya’s Industrial Relations.
4. Dissemination of information – it keeps its members informed of any changes in the
Industrial Relations System through a news letter, which is sent to members periodically.
The Federation has the following objectives in Industrial relations training
(i) Developing the ability of managers to handle industrial relations training organization
(ii) To develop a skilled and knowledgeable management team, and
(iii)To improve industrial relations in the Organization

There is need for the Federation to allocate more resources to the industrial relations training for
managers so as to equip them fully to face the future challenges in the industrial relations scene.

The biggest problem we have in this country is lack of a labour relations faculty in any of our
local universities. This has made it impossible for both managers and employees dealing with
labour relations to be trained up to diploma or degree level in industrial relations.

22
 Review questions.
(i) Evaluate the effectiveness of the central organization of trade unions (COTU) in
relation to the industrial relation in Kenya.
(ii) Evaluate the effectiveness of the federation of Kenya employers (FKE) or any other
employer’s organization with which you are familiar.
(iii) Explain the role played by shop stewards in industrial relations.
(iv) Define the term closed shop and the various types that exist

Reference:
(i) P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
(ii) L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
(iii)Davies .I, African trade unions, 1966.
(iv)I.L.O, The role of trade unions in developing societies, 1978

23
 CHAPTER THREE: GENERAL PROCESS AND PROCEDURES IN INDUSTRIAL
RELATIONS

Objectives
By the end of the chapter, the learner should be able to;
a) Explain responsibilities for industrial relations
b) Explain the role of first line supervisor in industrial relations
c) Explain the role of shop stewards in industrial relations.
d) Discuss why industrial relations problems arise

The problems in the industrial relations area are caused by a number of variables, one of which is
the disparity of managerial roles in the industrial relations. The general policies and practices in
an organization can do much to make or mar a manager’s effectiveness. However there is often
much more that the manager can do to increase his or her effectiveness. It is likely that expertise
in industrial relations will have a general spin – off in terms of overall managerial effectiveness.
This because general skill conflict resolutions developed in the industrial relations area may also
be useful in dealing with the organizational conflicts outside the relation arena.
Operationally, industrial relations can be defined as that part of employee relations policies
concerned with the formal union relationships. In some organizations and distinction is drawn
between employee relations and industrial relations. This is because of the need to have positive
policies towards employees regardless of whether they are in recognized trade unions or not. It
should be understood that labour problems are not simply the recognition or non recognition of
trade unions.

The main objectives which managers seek to achieve in the industrial relations are:
(a) The absence of employee sanctions such as strikes and go slows
(b) The absence4 of restrictive working practices
(c) The facilitation of high levels of productivity; and
(d) The acceptance of change that is seen a being in the interest of the organization as a
whole.
Such objectives need to be achieved without unreasonable costs or embarrassing precedents for
the rest of the organization. A commonly identified but fallacious objective is the avoidance of

24
conflict. This is not a realistic objective because inevitably there will be some divergence in the
aims of different groupings in an organization. Occasions may, however, arise when
management will prefer to run the risk of a strike rather than concede some important principle
such as the introduction of new cost-saving arrangements.
The essential skill of the manager in the industrial relations area lies in the handling and
resolving of conflicts

3.1 RESPONSIBILITY FOR INDUSTRIAL RELATIONS

The responsibility of the individual manager for industrial relations will vary enormously. The
key factors which will determine the line manager direct responsibility for industrial relations
include.
(i) The size of the organization (ii)
The technology involved (iii)The
nature of the manager’s job
(iv)His ability or availability or non availability of industrial relations senilities.
Since managers must operate with their own particular organization constraints and policies, the
responsibility which they have for the industrial relations will vary according to their
organizational role and the problems that organization faces, its policies and traditions in the
industrial relations area and a host of other factors. The extent to which line managers will be
expected to handle industrial relations problems themselves rather than rely on specialists may
depend on the technology of the industry concerned.
Whatever the distribution of responsibilities of industrial relations function between line
managers and the specialists, a large measure of integration exists. This is an objective that is
often much easier to formulate than achieve. There centralized on one unit or on a national basis
within the “personnel” structure . such pressure include the expertise that management specialists
and shop stewards particularly senior steward develop.
This expertise is not just the negotiating skill but also knowledge of the many and various
agreements. Much can be done in an organization to facilitate the establishment of a viable role
for line managers in industrial relations area
Key need are:
(a) The formulation of clear industrial relations policies

25
 (b) Clear identification of responsibility for decision taking in this area
If line mangers are to implant policies, monitor them and recommend changes, there is an
obvious need to know what these policies are in the first place. Assuming that the policies are
clarified, it is then up to line managers to familiarize themselves with the aspect relevant to their
area. Clarity about which decision managers can and cannot take is necessary. One particular
danger is for managers not to use the discretion whih they actually possess. An example of this is
in the disciplinary area. Many managers may complain that no one is ever disciplined but fail to
initiate disciplinary proceedings themselves when appropriate.

3.2 THE ROLE OF FIRST LINE SUPERVISOR

Line managers and industrial relations specialists alike may find it worthwhile to examine the
role of the first line supervisor since the key area of industrial relations in any organization is the
interface between the fist line supervisior and his subordinates.
This is the are where:
(i) Most problems occur
(ii) Policies are enforced or not enforced
(iii)Customs and other practices about working arrangements are developed
What perhaps are the most difficult areas in industrial relations are handled by those at the lowest
level in the management hierarchy. To aggravate this, the supervisor is likely to be within
competition with a shop steward for influence with the work group. This competition is likely to
be particularly acute in the area of patronage. Influence with the group is likely to correlate with
the distribution of overtime and other favours. It will also depend on who really attends to the
grievances that employees have.

3.3 THE ROLE OF SHOP STEWARDS

Managers also need to examine the role of shopstewards whom they and their supervisors have
to deal with. Although there is likely to be competition between stewards and supervisors for
influence with work groups, there is likely to be some areas of common interest. Both for
example, are likely to want work continuity without aggravation, but there may be disagreement
about the term as on which this is to be obtained.

26
In all probability, the shopstewards will seek to promote and protect their members’ interests in
areas such as pay, work arrangements and job security and also to shield them against the
arbitrary use of managerial authority. Since supervisors are likely to be under pressure to achieve
work targets within specified cost limits, it is not surprising if there is conflict between stewards
and supervisors on such issues while pursuing what they both believe to be legitimate objectives.
Resolutions of such conflicts are likely to be assisted by examination of the position of a shop
steward rather than stereotyping the steward as a trouble maker. Similarly, the pressure on
stewards needs to be considered. As elected representative they can be under direct pressure to
look after the interests of their members. While the nature and cause of the issues raised by the
stewards may be self-evident, others may need careful and patient investigation.

3.4 WHY INDUSTRIAL RELATIONS PROBLEMS ARISE

The identification of the effects of industrial relations problems is easier than the identification of
the cause of these problems. Very often the causes and by implication solutions to industrial
relations problems may lie in different parts of the organization other than those where the
effects are felt and seen. One of the great fallacies concerning industrial relations is that solutions
like in the same area as the problems. The truth is that although organizations are arranged into
compartments, the problems that th3e organizations have to cope with the often highly
interactive. For example, a faulty marketing strategy is likely to have industrial relations
implications – it may result in excess capacity and lead to redundancies and while the
redudandacy problems may have to be faced, the real preventive work lies in the marketing area.
Another example is faulty production planning which may lead to work shortages. There amy be
repercussions, particularly if employees work in an incentive bonus scheme. If production
planning is improved, the industrial relations problem over incentive earnings may disappear.

3.5 BASIC STEPS IN SOLVING INDUSTRIAL RELATIONS PROBLEMS.

(i) Receiving and Defining the Nature of Complaint
The manner and attitude with which the manager receives the complaint or grievance is very
important. All should essentially seek agreement and an integrations of interests. The manager

27
should assume that the employee is fair in presenting the complaint or grievance. Discussion
should not be prejudged on the basis of past experience. The manager should not be too busy to
listen and above all should adapt a friendly attitude towards the complainant or aggrieved party.

The manager should receive the problem with an open mind and an attitude devoid of any
measure of prejudice. One should never regard any problem as too small, petty or unimportant;
what may appear petty or unimportant may be fundamental to the complaint.

(ii) FACTS ABOUT THE COMPLAIN

One of the cardinal rules of natural justice is “…….. No man should be condemned unheard”.
Allow the complaint time to express his case. Obtaining the facts about a complaint requires tact
and patience. Facts must be separated from opinion and impressions.

Confer with the complainant and any other concerned parties first and advice accordingly. This
will allow emotions to run down and people will start to reason more logically.

(iii)MAKE A DECISION
Once a problem has been defined and the facts obtained, it is important to analyze and evaluate
them and then make a decision. There is usually more than one possible solution. If though
independent consultations the parties can agree to sort out the problem between themselves, give
them a chance but let them revert to you later. If you have to resort to the “court process” then it
is important to
 Be completely impartial
 Carry out discussions in camera only with those who may assist in the solution of the
problem
 Practice the rules of natural justice so that the guilty party may see and appreciate his
fault.
(iv)TAKE A STAND
Even though the solution decided upon my be adverse to a particular employee, some answers
are better than none.

28
Employees dislike managers who will take no stand – good or bad. They will often accept
unfavorable decisions when such decisions have legitimate foundation that is explained to them.
(v) FOLLOW UP
This is important in order to ascertain the after effects of the application of the solution.

In all these, it is important to be aware the decision may constitute a precedent to be lived with in
other cases in the future. Further, collusion between the managers and the shopstewards cannot
be ruled out in the handling of employees problems. The shopsteward may trade a favourable
decision from the manager for unusual co-operation in the future.

3.6 DIAGNOSTIC SKILLS FOR MANAGERS

The very nature of industrial relations problems as well as their causes and possible remedies can
be so complex that managers need ‘diagnostic skills’ to be effective in this area. As has already
been indicated, the interactive nature of the organizational process means that the actual causes
of industrial relations may be far from self evident. While some problems and their causes may
be obvious, others may arise through a complex interaction of psychological, further, industrial
relations is perhaps the most emotive of the areas of organizational activity and one where the
people concerned may have preconceptions about the nature of the issues. This can be
compounded by the way in which industrial relations issues are sometimes reported by the mass
media. There is a tendency by managers to a void seeing particularly unpalatable aspects of
industrial relations problems by a process of selective perceptions. The starting point must be to
identify the problems as they are. Invariably, identification of industrial relations problems
involves analysis of the power relationship between the concerned parties. This aspect is often
difficult for managers and others for that matter to accept. Regrettably, we do not live in a world
where conflicts of interest are resolved simply by morality or the sheer intellectual strength of a
case. The reality if that, while such factors may play a part in resolving conflicts in industrial
relations as in other areas of potential conflict, power realities play a major part in the outcome
of any struggle.
Managers, like doctors, need to diagnose objectively and dispassionately the nature and causes of
problems before contemplating any prescriptive advice restrictive practices are in operation, it is
far more constructive to try and analyze the reasoning behind such practices rather than to
complain that such practices should not exist.

29
A further aspect of the diagnostic process is the differentiation between symptoms and causes of
problems. Sometimes the problems are fairly obvious while on other occasions it may be the
symptoms which are obvious and these may be mistaken for causes. For example, there is the
habit of employees expressing a whole range of grievances and frustrations as a demand for
more money. While it would be dangerous not to treat demands for more money at their value, it
can be dangerous not to probe for further underlying causes. If employees are bored and express
this as demand for more money once can gain have an actual indication of the underlying cause.
A further general diagnostic skill which needs to be employed concerns the sequence in which
facts are collected. Facts need to be established and analyzed prior to any diagnostic
pronouncements. It can be all too easy to reverse this process and assemble facts selectively to
justify a predetermined course of action. The distinction between fact and opinion must also be
maintained. Although accurate diagnosis of actual problems and their causes is of critical
importance, in industrial relations the pressure for managers to neglect or organizational cultures
that put a premium on action rather than thought. The primary skill needed for effective
diagnosis is the resistance of such pressure. Knowledge of the industrial relations area can
further help with diagnosis provided it is used at the outset to facilitate diagnosis and only to
consider appropriate action.

Review questions.
(i) Describe the role of an industrial relation officer in processing grievances, with
respect to the employee union, steward and personnel department.
(ii) Describe the role of the shopsteward in dealing with employees, supervisors and
senior union officers in any organization with which you are familiar.
(iii) What diagnostic skills should a manager have?
(iv) What basic steps are involved in solving industrial relations problems

30
Reference:
(i) P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
(ii) L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
(iii) Davies .I, African trade unions, 1966.
(iv) I.L.O, The role of trade unions in developing societies, 1978
(v) Www.Cotu-Kenya.Org/Profile.Htm
(vi) Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981.

31
 CHAPTER FOUR: MANAGEMENT RIGHT TO DISCIPLINE AND DISCHARGE

Objectives
By the end of the chapter, the learner should be able to;
(a) Explain behavioral aspects of discipline administration
(b) Discuss the discipline interview
(c) Explain discipline –principles, policies and procedures
(d) Explain the hot stove rule

An evaluation of an organization’s policies in the disciplinary area

In any organization, there are two types of policies: the espoused policy and the operational
policy. The espoused policy is a summation of the proposal, objectives and standards that top
level management hold for establishing the organization’s approach to its employees. The
operational policy is the way the senior management control the organization and crucially
through the control. Reward and punish the line management.
It is largely through the reward punishment system that line management assesses the internal
value system of the organization. The organization policy in the disciplinary area falls under the
espoused and operational policies.
The disciplinary policies of any organization vary from one organization to another depending
on the nature of the organization system. Some of the general disciplinary policies include:
(i) The employees should be made aware of the behavior detrimental to good work in the
organization.
(ii) On new appointment, all employees must sign the official secrets act.
(iii)The management should ensure the disciplinary procedure is followed failry
(iv)The employees should recognize management rights to discipline them
(v) The disciplinary process should provide for an appeal
(vi)The disciplinary policies must be in writing and should be brought to the attention of all
employees

32
 The first objective of disciplinary procedure is to try and achieve a change in the behavior on
the part of the employee concerned so that further action is not necessary. Sometimes a
breakdown occurs in the disciplinary area because
i. Employees may not be aware of what is expected of them
ii. A failure by management to communicate an organization’s disciplinary rules.
To evaluate an organization’s policies in the disciplinary area is not an easy task. However,
there are certain problems which may indicate that there is lack of discipline in an organization.
For example, there could be problems connected with.
(i) Non-delivery of goods and services; and organization where discipline is lacking among
its employees will find it difficult to deliver goods and services. For example, in
Kenya it is not uncommon in government offices to find that some employees come
on duty late, sneak out during working hours and leave before official time. If they
happen to stick around the office, they attend to their own “private business” eg
knitting, selling items in offices, misuse of telephone and stationery for private
business etc
(ii) Unauthorized absence – the organization will be plagues with chronic absenteeism
amongst its employees. If the absence4 is over 35% among the employees, then the
situation is very critical.
(iii)Unbecoming behavior – there will be signs whereby an employee cannot attend to his
official duties unless he is bribed. For example in some government and private
offices, employees demand bribes form clients before they serve them.
To ensure that discipline is effective, it is necessary to look at particular issues such as the
standard of performance, attendance, punctuality, observance of safety regulations and
misappropriation of the organization’s property. These is need to improve the general
understanding of the organization’s disciplinary rules and procedures. Sometimes changes will
be necessary in the managerial behavior. This may involve improving the support for employees,
or altering work standards.
To handle disciplinary policies/procedures effectively, managers need training in communication
skills and counseling skills and negotiating skills. Depending on the organization, there may be
training needs in areas like introduction of technology, clarification of employer policies and job
evaluation.

33
If employers do not take positive action to improve disciplinary skills, the likelihood is that some
supervisors and managers may tend to opt out of their disciplinary role.
There is need for supervisors and managers to practice the skills in handling disciplinary
situations, in an non-threatening environment before trying them out for real. Managers and
supervisors could use individual appraisal reports in assessing the capability and conduct of the
employees. However, it is vital that when doing so the appraisal reports are properly completed
to portray the true picture of the employees.
In Kenya for instance, some supervisors in government offices have the tendency to rate their
employees adversely partly because the employees do not dance to their “true” or partly because
they don’t hail from the same ethnic group. The employees are never informed of their
shortcomings and yet they are expected by their supervisors to live up to the expectations of the
organization.
If the employees are not informed of their shortcomings, there is likelihood that they will never
change their unbecoming character. If supervisors are honey into heir reporting, they should
inform their juniors about their shortcomings.

4.1 BEHAVIORAL ASPECTS OF DISCIPLINE ADMINISTRATION

The attitude of management must be positive i.e. those administering discipline must operate
under the assumption that people can change, that by and large most people want to behave
decently, and the employer can achieve reasonable goals. They must realize that employees have
three important needs that mesh with discipline-needs for achievement, acceptance and
recognition and must Endeavour to work through those needs positively. Further they must
understand that the purpose of criticism is to learn, and learning takes place best under relatively
pleasant conditions rather than in an atmosphere of extreme of extreme anger or fear. Hence their
relation to the employee should be a counseling problem-solving one.
Management must understand clearly the causes for deviation from organizational standards. It is
because of information or it’s due to lack of ability. Are personality factors involved? Is the
employee immature or is self-centered is rebellious, resistant to direction? Etc.
Management must guard against the many disastrous errors e.g. Exploding as soon as an error is
discovered blaming the employee without adequate investigation. Saving up a number of small

34
irritants or misdeeds and then recounting them to the employee after a particular act causes the
manager to become “fed up”.
Discipline must be administered such that the employee’s perception of it together with that of
his peers is positive. It should not be viewed as a threat. It should not evoke a response of hurt or
of anger or indifference.

4.2 THE DISCIPLINE INTERVIEW

(a) Remember that privacy is basic to effective discipline interviewing. When an interview is
not private the employees defensiveness increases as does resentment on the part of those
who hear the criticism.
(b) Keep in view main purpose of the interview: to prevent recurrence, to teach and improve
efficiency and planning to conduct the interview along those lines. The interview should
be regarded as a conference and what the parties should be trying to do is to discover
corrective action.
(c) To avoid being emotional, defer if possible, taking with the employee until you have
yourself well under control. But at the same time, the interview should be held as soon as
possible after an event. Interviews held after some time lapse are resented, often the
employee will have come to hope that what happened is unnoticed, forgotten or forgiven.

(d) Seek the employee’s point of view; hear his side of the story. A question such as “what
happened?’ when answered often sheds new light, alters preconceived judgment, and
places the interview on an examination of-fact basis. Do not monopolize the floor.

4.3 DISCIPLINE –PRINCIPLES, POLICIES AND PROCEDURES

A clinical, cause-finding, problem-solving approach is preferable to a punitive one which seeks
only to affix responsibility for a deed and then to sentence the employee with whatever
punishment is suitable. Trade unions however tend to strengthen the feeling that is narrow.
Judicial approach is needed. Hence the overemphasis on the following precedent, on following
the union contract and basing decisions on how they would stand up in arbitration.

35
The principle of favoritism or discrimination must always be observed. Discipline must not be
applied in whimsical or inconsistent manner though circumstances should influence the extent of
the punishment.
The procedure should ensure that the rules and regulations are only spelled out and known to the
employee through induction and training. It should ensure that the specific acts of employees are
recorded and that serious penalties are not imposed unilaterally. There should be a right of appeal
built into the system. The concept of equity should pervade all judgment. It has been said that the
best discipline is self-discipline i.e. the normal human tendency to do one’s share and to live up
to the rules. The atmosphere should be that in which subordinates willingly abide by the rules
which they consider fair. In such atmosphere, it is possible that a group may easily exert pressure
on wrong doers and reduce the need for the negative punitive discipline.

4.4 THE HOT STOVE RULE

The hot stove rule provides a good guide or positive administration of discipline. It draws an
analogy between touching a hot stove and undergoing discipline. When one applies the hot stove
rule, the discipline which immediately follows is:
i. Immediate
ii. Supported by prior warning
iii. Consistent
iv. Impersonal

SOME NEGATIVE INCENTIVES

(i) CRITICISM AND REPROOF

This is justified under the following circumstances
 When the employee knows what he should do
 When it looks as if the employee is not trying
 When the employee seems to be “trying” the boss
Even with criticism, a problem –solving approach will most likely be more effective. It might
turn out to be that there are ways in which the boss himself is responsible.

36
 (ii) REBUKE AND REPRIMAND
Putting it in no uncertain terms that action must change normally should take place after other
steps including mild reproof have failed unless something dangerous has happened and the
employees responsible should have known and done better. It may be necessary to place it on the
worker’s record. The employee responsible should be warned informally and orally before
he/she is given a written warning.

(iii)NEGLECT AND DOGHOUSE

This consists of intentionally ignoring and employee, for example by omitting him from
consideration he has received in the past. It can be quite effective but is likely to create long-term
if not permanent resentments in the employees and feelings of frustration that will probably
result in some sort of aggressive behavior such as trying to get other employees to make it hard
for the boss perform his/her work.

(iv)LAYOUTS
Where they are practiced, they are normally determined on the basis of seniority, the common
procedure being.
LIFO (Last In, First Out)
LOFI (Last Out, First In)
But management should always insist on the provision that “as long as those retained are able to
perform the work available.”

(v) FINE
Fines are levied, for instance, from the Administration police following Board Room Proceed

(vi)DEMOTION
As a penalty, demotion is not employed often because of the lasting blow it causes to an
employee’s pride. Quite often “cooling out” eg by kicking the employee upstairs or such other
tactics as rapidly and continually transferring one from one place to another thereby forcing his
resignation, are employed. Sometimes the employee is even “bribed’ out of service eg by early

37
retirement. This process is called dehiring – frustration and employee to force one to resign or
retire.

(vii) DISCHARGE (DISMISSAL)

The incidence of discharge has undergone a sharp decline due to industrial courts intervention.
As a penalty, it is no more a correction of serious organizational ills than is the death penalty
inhibitor or murder. In the civil service it means not only loss of employment but also loss of
retirement, leave and other terminal privileges.

4.5 CONCILIATION
Conciliation could broadly be defined as the intercession of an outsider or third party to assist
parties in resolving labour disputes. Conciliation is normally appropriate only when parties have
exhausted their own procedures without resolving the disputes or when they agree overriding
consideration require it. Requests for conciliation assistance come from either trade unions or
employers or are made by the parties jointly.
The job of the conciliator is to help employers and unions to settle their differences by
agreement, if possible in a lasting way. This objective cannot always be achieved in full.
Sometimes the conciliator must be content to help the parties reach a strictly temporary
accommodation or perhaps narrow the extent of their differences without resolving it. Sometimes
he can do more than clarify the issue in dispute.
Conciliation processes are various and flexible. The conciliator works through confidential and
largely informal discussions with the parties jointly and separately. He has no powers other than
the power of reason and persuasion but he may seek to induce movement in the positions of the
parties to the point where they can settle.
Conciliators chiefly work with the broad assumption that in coming to conciliation the parties
wish to reach agreement so long as satisfactory terms can be found and that they wish to avoid or
end any industrial action in the form of strikes, lockouts and other sanctions. It is also assumed
that the parties will be generally co-operative. However their failure to resolve their difference
without recourse to third party assistance suggests that more or less serious difficulties remain to
be overcome.

38
To be of assistance, the conciliator must understand both the dispute and the attitudes of the
parties. This can be relatively simple or very complex task. He needs to know hwy particular
claims or proposals were made and why refused. What are the objectives and priorities of both
sides and what are the pressures acting on them? What would be the implications of their
making particular concessions or of failing to reach agreements?
The conciliator needs to win the acceptance of all parties to the dispute and establish a good
working relationship with them. This depends on his gaining their trust and confidence which in
turn depends on his personal qualities knowledge, skills and effectiveness. The most fundamental
of his characteristic is the conciliators neutrality or impartiality. His integrity should never be in
doubt. He also needs to have a strong commitment to his job. Conciliation can be demanding
work often carried out in a tense atmosphere and lasting many hours or even several days.
All conciliators need to develop the skills of listening patiently and sympathetically and of
asking relevant questions and they need to judge the timing and sequence of moves which can
lay a crucial part in achieving a settlement. In the course of understanding a particular dispute the
conciliator naturally forms his own views about it. But is not his role to pronounce on the merits
of either sides case nor to state how he thinks the dispute should be settled, although he may
make suggestions at an appropriate stage. Conciliation usually involves the following stages.

(i) INITIAL STAGES

The action which brings the conciliator into dispute is most commonly a request the trade union
on behalf of the employees or the employer or it be a joint request.

(ii) PRELIMINARY BRIEFING

The conciliator’s prime objective in his preliminary briefing is to gain a clear understanding of
the issues in the dispute and the attitude of the parties. He therefore seeks as much information
as he needs and can obtain at that stage.

(iii)DECIDING WHAT ACTION TO TAKE

Conclusion as to whether his efforts should be directed to persuading the parties to follow agreed
procedures or to dealing with the substantive difference where no procedural point arises

39
 (iv)CONCILIATION MEETINGS
The timing of conciliation meetings in relation to the conciliator’s initial briefing must be a
matter of judgment taking account of the wishes of the parties and the nature of the dispute.
Some meetings need to be arranged as a matter of urgency. Others may deliberately delay unitl
the parties are ready.

(v) SIDE MEETINGS

These present the conciliators with opportunities that are not available to him in a joint meetins.
The parties may be more wiling to give him in confidence information about their side of the
dispute, the limits to which they can go in seeking a settlement and concession form the other
side that they regard as essential.
The general aims of the conciliator in side meetings are to encourage the participants to speak
freely to reduce any feelings of the tension and above all adapt a problem solving approach to the
resolution of their dispute.

(vi)JOINT MEETINGS
These provide an opportunity for the conciliator to observe the parties in their direct relationships
with each other. He listens closely to their discussions and observes the parties behavior so that
he can assess the nature of their difference and their respective positions. A joint meeting
occasionally leads directly to a settlement. The conciliator may decide to call for an adjournment
for a number of reasons, for example when a new proposal has emerged. Occasionally one or the
other of the parties may themselves call for an adjournment to matp out a new line of approach to
the problem.

(vii) CONCLUDING STAGES

The conciliator is not a party to any agreement reached in conciliation and for this reason he does
not normally sign any agreed document except perhaps as a witness.

4.6 ARBITRATION
Voluntary arbitration provides a long standing method of establishing disputes between
Employment and Trade Unions by inviting one or more impartial persons to make an award

40
which the disputing parties undertake in advance to accept. However, arbitration is normally
regarded as a last peaceful resort where disputes cannot otherwise be resolved.
Arbitration can be used to settle most types of disputes but is considered to b mainly suitable
where the issue in dispute is clear or concerns interpretation of an agreement. Good examples of
arbitrable issues are disputed over pay, job grading, dismissal and disciplinary matters and
demarcation of work. Issus of principle as trade union recognition or complicated and many –
sided disputes are often regarded as less suitable for arbitration. Employers and union may
jointly agree to refer their disputes to arbitration, either when their own negotiation has reached
an impasse or as a result of conciliation. Some established procedures for the avoidance and
settlement of disputes provide for reference to arbitration, usually by joint agreement but
sometimes at the request of either party. In UK the ACAS oversees the whole process of
arbitration. The main stages of arbitration are:
(i) Appointment of an arbitrator or board of arbitration
(ii) The preparation and exchange of written statements of case by the parties
(iii)An oval hearing by the arbitrator or board of arbitrators at which the parties make their
submissions and; the whole process is informal and confidential. Hearing are in
private and awards are not published unless the parties jointly agree otherwise.

4.7 MEDIATION
Mediation provides a further method of settling trade disputes and may be regarded as a half-way
house between conciliation and arbitration. The mediator proceeds by way of conciliation but in
addition is prepared and expected to make his own formal proposals or recommendation which
may be accepted as they stand or provide the basis for further negotiations leading to a
settlement. Such recommendations may be similar information to an arbitrator s award but the
crucial difference is that the parties do not undertake in advance to accept them.
Mediation, therefore, provides a more positive intervention and tends to constrain the parties
more than conciliation. On the other hand, it is more flexible but less than arbitration. Mediation
may be work consideration as a form of assistance where conciliation has so far proved
unsuccessful but where the parties are unwilling to commit themselves to arbitration and accept a
binding word. It enables the parties to retain control over the final settlement while providing a

41
degree of positive independent direction which they may sometimes desire or be prepared to
accept.
In U.K, ACAs oversees the process of mediation. It may appoint a single mediator or a board of
mediation and these appointments are made form persons outside ACAs
Arrangements for referring a dispute to mediation are essentially the same as those already
described as applying to arbitration. The same three preconditions need to be observed namely.
(i) The consent of all the parties involved required
(ii) Any agreed procedures should be fully used and every effort should first be made to
reach a settlement through conciliation.

4.8 MEDIATION PROCESS

The parties are asked to send written statement of case to the mediator and exchange the
statement some days before a mediation meeting. In some cases the mediator meets the parties in
joint and separate meetings to establish areas of agreement and disagreement and explore
possible ways towards a settlement. At some stage he may make recommendations for a
settlement and may maintain a dialogue on these proposals until agreement is reached. In other
cases a hearing proceeds in the style of an arbitration when the parties put their argunments
which may be subject to further negotiations. As with arbitration Mediator’ reports are finally
send to the parties through an approved manner. Where a settlement has been reached at the
mediation meeting, the report usually merely records the terms of the agreement and no further
action is required.

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 Review Questions
i. Under what circumstances and in what ways can arbitration, conciliation and
mediation be of use in resolving industrial dispute and differences?
ii. Compare and comment on the role of arbitration and conciliation in resolving
industrial despites and differences in Kenya and one other country which you are
familiar with.
iii. Under what circumstances and in what ways can arbitration be of use in resolving
industrial disputes and difference?
iv. Examine the case for and against pendulum arbitration. Identify any safe guards
that are necessary in such a process.
v. Define the hot stove rule and list comments on various types of punishments under
discipline, both positive and negative.

Reference:
i. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
ii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iii. Davies .I, African trade unions, 1966.
iv. I.L.O, The role of trade unions in developing societies, 1978

43
 CHAPTER FIVE: LEGAL FRAMEWORK OF CONTRACT NEGOTIATIONS AND
ADMINSTRATION

Objectives
By the end of the chapter, the learner should be able to;
(a) Explain the legal framework of contract negotiations and administration
(b) Discuss negotiations skills
(c) Explain communication skills in negotiations
(d) Explain the conduct of joint discussions and negotiations

5.1 NEGOTIATIONS SKILLS

The general skills in the art of negotiations re:

(i) Social Skills
Interpersonal social skills are required in negotiations. Social perception and the role of attitude
change at an interpersonal level. That’s the ability to interact with other people in a long term
relationship
(ii) Information
Ability to have information relevant to negotiation. This entails knowing not only what the issue
is about but also understanding the context in which it occurs.
(iii)Judgment
One comes to the conclusion dependant upon an estimate of what is fair based upon the
interpretation of the offer in relation to the knowledge of the case. Secondly, his conclusion is
reached on the basis of whether people concerned on his side will accept the decision. Reaching
an acceptable judgment is the ability to assess all aspects of the information content and social
skills experience and estimate whether the solution achieve the best that could be reached in the
circumstances, and to assess whether it will be acceptable t the parties represented. It could be
that training needs to be concentrated on. The skill of selecting persons rather than teaching a
person to become a negotiator.

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5.2 COMMUNICTION SKILLS IN NEGOTIATIONS
It is critical that issues handled in the procedure are handled without misunderstanding.
Negotiations can, and often do, breakdown simply because of communication failure, partly
because the processes are more complex than it’s often realized. Often insufficient time is
devoted to the development skills of communication and in addition the amount of time devoted
to the process aspect of negotiations can be adequate. Usually, the issues are complex involving
many conflicting interests and are emotionally loaded. This means that misunderstanding may
well arise and should be avoided. Some of the more frequent causes of communication
breakdown are as follows.
(i) Selective Memory and Perception
From the mass of information and argument that can be presented parties may identify and
remember that which strengthens their case most. Because of this selective process the different
sides may have quite different perceptions of discussion
(ii) Incorrect Evaluation
Parties may have problems in explaining just what they want. It is often necessary to coax the
case of a party and important not to jump to conclusions as to what the case is. As the saying
goes, “Listen to what people mean and not what they say”.
(iii)Failure to Listen
The emotional heat that can be engendered by industrial relations issues is particularly difficult
for the parties to concentrate on or listen to just what the other side is saying. Yet discussions can
hardly proceed unless each side takes it in turn to hear just what is being said. A constructive
way of proceeding is for management to concentrate first on getting the union side to state their
case. This identifies the listening of management. It may bring the advantage that when the
union side have stated their case they are then able to listen genuinely to what management has
to say.
(iv)Reporting Back Pressure
Parties often have to report back: managers to more senior managers and stewards to their
constituents. People who have not been exposed to the pressure and argument of negotiations
may be critical of any concessions that have been made. This can lead to the front line
negotiators playing down concessions made or even neglecting to mention some at all. If both
sets of negotiators are doing this, the groups to which they have reported back may form quite

45
opposite view of what has happened in the negotiations. It may also be counter productive to
exclude hard-liners form negotiation; if they are present, even if only as observes, they can at
least hear the arguments first hand.
(v) Ambiguity
Many an apparent agreement has collapsed when it has been revealed that it meant different
things to different people. Subsequent negotiations may then be complicated by mistaken belief
that management tried the unions in to agreements.
Negotiators may see the ambiguity in particular term when “agreement” is reached yet not clarify
its meaning on the basis that they can legitimately place their interpretation on that term. They
may not point out the possibility of alternative interpretation on that term. They may not point
out the possibility of alternative interpretation on that term for fear of putting ideas into the other
party’s head. The other party may, however be behaving in reverse way, that is, reading the
interpretation favorable to them into a particular clause. It is better to have no agreement at all
than the illusion of an agreement which will be shattered when it comes to implementation.

5.3 THE CONDUCT OF JOINT DISCUSSIONS AND NEGOTIATIONS

Three separate roles need to be clearly identified. These are the management of the process, the
presentation of the substantive case, and then recording of what has been said or agreed. These
roles need to be identified for each of the side. There are often “hawks’ and “doves” within each
side. The use of the device of adjournment can be very useful to enable both sides to consider
fresh issues which surface during negotiations and which need private discussions.
It is all too easy for managers involved in negotiations to play reactive role and respond to union
demands by simply seeking to minimize concessions that are made. While this may be an
appropriate behavior on occasion, there is need for positive identification of managerial
objectives. It’s only when this has been accomplished that appropriate e negotiating strategy and
tactics can be worked out.
The identification of objectives can show what positive initiative or counter responses are
required by management. In some cases it may even reveal that is in management’s interests to
concede certain points.
At times negotiators can get so locked into negotiations that they develop and focus too much on
contention detail. The clear identification of objectives should help as a reference point if this

46
happens. A way of adding realism to the identification of objectives is to try and work out what
each side will do if they cannot achieve their objectives.
Threats by management such as sacking everyone or by steward such as “everybody out” are a
lot easier said than executed. Even if they are implemented they do not always work. This was
witnessed in 1992 in Kenya, when the Minister for labour threatened to have all striking teachers
sacked if they carried out their intended strike. The threat did not work; an amicable solution was
found and the strike averted. A sober assessment of who is likely to do what and to whom and
what effects, should negotiations fail, may be of considerable assistance in seeing that realistic
objectives are set from the start.
The “pitching” of the initial offer may have a crucial effect on the ultimate outcome, if an offer is
too low, it may so antagonize the union side, that they resort to direct action and escalate their
real demands. If an offer is too high it my create the expectation that the offer can be worked up
more than is possible. In pay negotiations there may be a considerable amount of maneuvering
by each side to get the other to be the first to quantity a claim offer. The pattern which the
negotiators have set for themselves in previous negotiations may provide a clue to their pitching
of initial offers or claims.
On technique for management is to ask for pay demands to be put in writing. This may be
countered by a request for a substantial increase.
Union negotiators may feel that they have not asked for enough if a claim is accepted too readily.
Even if this is of the case, this may be view of those whom they are representing in negotiations,
be they management or union. So while it may seem quicker to simply state what is an offer on
take-it – or- leave- it basis this may well lead to a less acceptable result than going through the
bargaining ritual. Unexpected changes in the industrial relations scene are inevitable and the
situation is set to continue in future. It follows that the increasing attention should be given to the
ability of managers to cope with industrial relations problems when they are appointed. An
increasing training effort here may be necessary not just because of the increasing industrial
relations involvement of so many more managers but also because of the sheer costs which could
be incurred as a consequence of industrial relations problems.

47
 Review questions
i. To what extent can joint consultation contribute to the achievement of
participation?
ii. Why do you think that mangers should have diagnostic skills in industrial relations?
iii. Define communication skills in negotiations and list and comment on at least five
frequent causes of communication breakdown.
iv. Discuss the conduct of joint discussions and negotiation, listing all the necessary
steps to be taken before the parties involved could strike a compromise.

REFERENCES
i. Cowling, et al. Managing Human Resource, 1981 p 167
ii. Limb, M, Paper on Industrial Relations in Britain, 1986
iii. Cowling, A G et al Managing Human Resource 1981 ( p 1675)
iv. Limb, M, Paper on Discipline Proc, 1987
v. Personnel Management Journal No. 10- UK
vi. Cowling, Ag et al, Managing Human Resource, 1987, P. 173
vii. Rees, D., Paper on Industrial Relations in Britain, 1987
viii. Paper on Mediation, Conciliation and Arbitration. An International Comparison of
Australia, Great Britain and USA – 1986 by Dr. Nicholas Blain et. Al

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 CHAPTER SIX: DISPUTES AND COLLECTIVE BARGAINING

Objectives
By the end of the chapter, the learner should be able to;
(a) Discuss disputes and collective bargaining
(b) Explain how to manage industrial crisis
(c) Explain the role of trade unions in disputes
(d) Discuss the dispute solving machinery

The identification of trade unions and national goals has proved in many ways to be a definite
advantage. The current industrial relations practice developments. While early legislation was
remodeled on the British system, at independence the legislation was remodeled to accommodate
the needs of an independent country. Thus the system that is now in operation could rightly be
described as “a blend of voluntarism and government concern for development’.

However, now, there is compulsory recognition of unions under Section 5 (2) of the Trade
Disputed Act of 1980. (Cap 234 of the laws of Kenya). Briefly this Act states that “……. Where
a trade dispute involves an issue concerning a recognition agreement or the recognition of trade
union by an employer or organization of employers, the Minister ….. may order in writing the
employer or organization of employers as the case may be to accord recognition to that union for
negotiating and collective bargaining purposes .”

The first and foremost step in establishing the relationship between a trade union and an
employers or a group of employers is the recognition of agreement. It was in view of this that the
government enacted this Act to protect some unions form obstinate employers who are reluctant
to recognize them.

Owing to the nature of the union organization in Kenya i.e. emanating from top to bottom, the
unions felt that groups were easier to organize because they had already been organized; the
remaining problem was the recognition by the management. So to overcome this hurdle they
sought some form of compulsory machinery.

49
It should be understood that recognition rights is a very sensitive issue in Kenya Industrial
relations scene. Even after recognition rights have been settled, there is as always infighting
within unions, culminating in new groups which continuously seek recognition rights. The
apparent infighting is basically caused by.
(i) Greed for power and material wealth amongst union officials
(ii) Desire to enter into national politics through labour movement by some union officials.
Such infighting within unions only helps the employers to consolidate their position. Thus unions
spend most of their time fighting amongst themselves and have very little time left to face the
powerful employers on real issues affecting their members.
Amazingly, the real power struggle that causes the infighting in the labour movement is to be
found in COTU. For instance, in 1986, in an effort to silence his opponents within COTU, the
then secretary General fired his deputy. The Government stepped in and reversed the decision. It
is a pity that it has not been possible to resolve the recurrent infighting within the labour
movement through the union structure because it also emanates form top to bottom.

Another important feature of the industrial relations is that Section 6 of the Trade Disputes Act
provides for compulsory third party arbitration.
Briefly, this Section states that “…… The minister may in relation to a trade dispute so reported
or in relation to any issue in such dispute from time to time and as he deems expedient take any
one or more of the following steps:

(a) Appoint any person (who may be public officer) or any other person considered by the
Minister to be suitable to act as a conciliator.
(b) Appoint a conciliation panel consisting of an independent Chairman (who may be a
public officer or any other person considered by the Minister to be suitable) and one or
more persons selected by the Minister as being representative 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 panel composed in
accordance with the wishes of the parties.
Or

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 (d) Withdraw or temporarily suspend the operation of any of the aforesaid conciliation
measures
Casual observers of the Kenya Industrial relations scene feel that compulsory arbitration has
denied the employers and the unions the opportunity to voluntarily settle disputes, in that there is
tremendous pressure on trade unions from employees to refer nearly all trade unions from
employees to refer nearly all trade disputes to the Industrial court.
But still, t here is a problem. In view of the fact that the Court is already inundated with
dismissal cases and other issues, the effectiveness of the court in disposing of cases with speed
would be seriously impaired were there to be a substantial increase in cases referred to the Court.

The Kenya Government has continued to support compulsory arbitration for two purposes:
(i) To guarantee equity for all parties and industrial peace
(ii) As a form of government control over wages, i.e. It is an easy way of implementing
incomes policy. “The Government’s income policy is being enforced through the
Industrial Court. The incomes a policy criterion operates through the guidelines
provided for the Court by the Minister of Finance. These guidelines restrict the
Court’s scope and neutrality as do the recommendations given to it by the Minister of
Labour.
For example, these guidelines have instruction to the effect that.
 Productivity increase cannot be used to justify wage increases
 Overall wage increase shall average to more than half of the rise in the cost of living.
However higher increase should be allowed for the lower paid groups.
 The compensation for price increase will spread in equal installments so that later year (s)
of the contract period are not left without any increase allowed only if the wage increase
stipulated in agreement fail to compensate for price increase to the extent permitted.
However, Kenya’s incomes policy is not without problems. These include:
(i) The conflict between increasing the number of employed and raising wages of those
already in employment
(ii) The limits imposed by world markets, price level and exports quotas ion the capacity of
our basic industries to pay.;

51
 (iii)The limits by local purchasing power and by our tax revenues on the capacity of ou4r
basic industries to pay.
(iv)The limits set by local purchasing power and by our tax revenues on the capacity of both
home-market producers and the public services to better the conditions of their
employees.
(v) The shortage of investment capital – both local and external – to promote big economic
expansion that Kenya so desperately needs in ort to overcome its problem of poverty
and population increases.
(vi)The subtle problem of redistributing the National wealth so as to benefit the mass of
people, while at the same time permitting profit margins which are sufficiently
attractive to investors.”

6.1 HOW TO MANAGE INDUSTRIAL CRISIS

There are 3 basic steps towards managing an industrial crisis. These are:
(i) The resolution of trade disputes
(ii) Industrial action prevention and settlement
(iii)Post strike procedures

6.2 TRADE DISPUTES

Under the Trade Disputes Act, trade dispute is defines a “… 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 terms of employment with the conditions of labour of any person and
includes disputes regarding the dismissal or suspension of employees, allocation of work or
recognition agreements and it also includes an apprehended trade dispute.”
Arising from the above, it is easy to understand that the emergence of a trade dispute in the
easiest thing in industry. It is vital that those responsible for handling and resolving disputes be
prepared at all times to ensure that once a trade dispute emerges it is dealt with as speedily and as
impartially as possible.

52
Past experience shows that it is lack of preparedness and seriousness in dealing with, more often
than to a simple issue that develops into a major dispute which destroys the confidence between
the key players in the industrial relations scene.
Once a dispute emerges, those responsible should immediately put into motion the dispute
settling machinery and one should always treat each dispute with equal importance and attention
and not to classify them into “minor” once as one is too busy. Equally one should also not try to
run away form the ‘major’ dispute as it is too complicated for him to handle.

6.3 THE DISPUTE SOLVING MACHINERY

This can be split into two items namely:
(a) Within the organization
(b) Outside the organization (when a 3rd party is involved)
(a) Within the Organization : A dispute may arise as a result of:
(i) Failing settlement, he could then approach his supervisor about his problem.
(b) Failing settlement, he could then approach a Line Manager in the company of a shop
steward and union official (say Branch Secretary)
(c) Failing a settlement at (b) above then the case will be referred to top union leadership
(say Secretary General) who will try and solve the dispute with top management officials.
(d) Failing a settlement at (c) above then the case will require the intercession of the 3rd
party.

Procedures for the settlement of grievances within an undertaking are most frequently
established by Collective Agreements or by Unilateral Employer action in work rules. If a
grievance procedure within an organization is to fulfill its function effectively, it is essential that
the workers should be familiar with it; they should have confidence in fairness of the
management in handling grievances and should not suffer reprisals for presenting them. One
should always remember that the settling of a dispute may be much easier at the first stage other
than at the second stage when the matter is referred to a 3rd party.
In large undertaking, a common type of grievance procedure involves successive steps at
different levels a workers’ grievance bring first discussed with the immediate e supervisor and
then if no solution is found with higher levels of management.

53
The number of levels and steps in the procedure usually increase with the size of the
undertaking. Under some procedures tripartite or joint grievance committees within the
undertaking composed of representatives of management and workers, hear grievances when
they have been considered at lower levels at a number of earlier stages in the procedure. A
settlement reached jointly by the worker and management representatives at any level is
generally regarded as final and binding on the parties.

A grievance is also deemed to be settled if an appeal is not lodged at the next highest level within
a given time. The consideration of a grievance through normal procedure involves informal
discussion, negotiations or investigations.
The works committee represents the workers on the investigation team.
Universally, there is no model solving machinery that will ensure all disputes are settled
immediately on their emergence. The organization should ensure that most of the disputes that
arise are dealt with at the first stage.
(b) Outside the Organization
When grievances are not satisfactory settled within the organization, they may give rise to an
atmosphere of tension and conflict affecting worker – management relations and the efficiency
of work and may result in confrontation and disruption of production.

The Trade Disputes Act provides for submission of such grievances to final settlement outside
the undertaking i.e. by the Ministry of Labour or in the Law Court or tribunals, the most effective
of them all being the Industrial Court. Such tribunals or Law Courts are manned by impartial and
competent personnel with adequate knowledge in labour laws and labour practices which plays a
very vital role in our industrial relation. Because these tribunals are part of the judicial system or
are invested with appropriate powers, they are able to adjudicate rights and disputes with
authority and finality. The Kenya Industrial Courts are a replica of such arbiter’s institutions.

Another procedure which has been followed in a growing number of countries in private
grievance arbitration provided for by a collective agreement and usually applicable only to
disputes concerning the interpretation or application of the Collective Agreement. In cases where
the Collective Agreement lays down a procedure for the initial examination of grievances within
the undertaking and for final settlement by arbitration, the Agreement may be considered to be

54
the law of the undertaking or industry to which it applies and to be supplemented by a kind of
private judiciary set up by the parties themselves for application of the Agreement. The initial
grievances procedure is designed to filter the number of grievances and settle the minor and less
difficult grievances within the undertaking thereby reducing the number of disputes submitted to
final settlement by an arbitrator.

Review questions

(i) What do you consider to be the reasons for industrial relations problems?

(ii) Describe the dispute solving machinery.

(iii) Explain how organizations manage industrial crisis.

(iv) Explain the various types of industrial disputes.

Reference:
(i) P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
(ii) L.P.A Aluchio, trade union in Kenya, development and system of industrial
relations, Nairobi. 1998.
(iii) Davies .I, African trade unions, 1966.
(iv) I.L.O, The role of trade unions in developing societies, 1978
(v) Www.Cotu-Kenya.Org/Profile.Htm
(vi) Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi
1981

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 CHAPTER SEVEN: EMPLOYEE’S RIGHT TO ORGANIZE AND ENGAGE IN
CONCERTED ACTIVITY

Objectives
By the end of the chapter, the learner should be able to;
(a) Explain how to handle threats of industrial action

(b) Discuss the process of handling a strike situation

(c) Outline post strike procedures

(d) Discuss consultation and conciliation

INDUSTRIAL ACTION: PREVENTION AND SETTLEMENT

STRIKES

The trade Disputes Act (Cap 234 of the Laws of Kenya) defines a strike as “the cessation of
work by a body of persons employed in any trade or industry acting in combination or 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 and includes any interruption or slowing
down of work by any number of persons employed in any trade or industry acing in concert or a
common understanding.”

This includes any action commonly know as “sit down strike” or “go slow.” Employees will go
on strike to try and force an issue when they feel that all other avenues may not achieve the
desired end. Failure to settle disputes or actions that are seen as flagrantly unfair by the
employees on the part of the employer are fertile grounds for strikes. Sympathy strikes also exist
eg between bank (s)

(i) Types of Strikes

These can be broadly grouped into two:
(a) Wild – cat strikes
(b) Lawful strikes

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 (a) Wild Cat Strikes
The most common type of strike is the wild-cat strike which is illegal. All the laid down
procedures are ignored and employees withdraw their labour. There may be some rumour
about impending strike or at other times it may take place instantly for example when a
shop steward or other union official is dismissed.
(b) Lawful Strikes
A lawful strike takes place when all the laid down procedures have been exhausted.
Under the Trade Disputes Act, a
(i) Unless a report in writing of dispute has been made to the Minister and 21 days have
elapsed since the date on which the dispute was so reported and the period of notice
specified in the recognition or registered collective agreement relevant to that trade
dispute has expired.
(ii) Where the Minister has refused to accept the dispute in accordance with the Act, should
strike action be taken it will be considered unlawful.
(iii)A lawful strike may turn out unlawful if the minister so declares and the workers do not
resume work.

Whatever the cause of the strike, what is important is to end it and not to belabor the point that
the strike is unlawful.

7.1 HANDLING THREATS OF INDUSTRIAL ACTION

Threats of industrial action are common. The threats may be made in writing or verbally. When a
threat is made, the employer should not take it light but should investigate the grounds for the
threat. Once the reasons have been established, the employer should ensure that he puts his house
in order to avoid the impending strike. Should the threats arise form unfounded grounds, it is
wise to alert the local labour officer and the union representative.

7.2 HANDLING A STRIKE SITUATION

When a strike takes place management representatives should not panic and take of unless there
is threat of bodily injury.

(a) The Role of the Supervisor

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The supervisor should report immediately to his immediate superior or to the Line Manager. He
should then ensure that all machinery is stopped where the employees have walked out of their
work stations and try to safeguard the company’s property as appropriate. If no information has
been passed on to management, the supervisor should try an elicit any bit of information he can
get either form the ordinary workers or form the shop stewards if the environment is conducive
to such an action.

(b) The Role of the Line Manager

Once it has been reported to the Line Manager or he has found out that there is a strike, he
should call the local labour officer and union official. While waiting for their arrival, he may call
in shop stewards, and request them to tell the employees to resume work and have their
grievances settled in the normal way.

Should this fail then he is to ensure, as far as is practicable, that the company’s property is safe
and wait for the labour officer and union official. It is also necessary to inform his superiors of
the position and to seek any advice he may need form the Personnel Department on how to
proceed. Similar advice should besought form the FKE and/or a Trade Association if any, and
invite them whenever necessary to participate in any deliberations.

The Line Manager should be fully responsible for the situation and should not try to take
shortcuts by calling in the police and the administration to end the strike. This is escapism and
should not happen at all.

(c) The Role of the Personnel Department

The personnel Department should once it is informed of the situation, advises the Line Manager
on how to proceed and if they are in close proximity, attend to the place of the Strike. More often
than not, the staffs of the personnel department are more knowledgeable about industrial
relations matters than the Line Manager, and they must involve themselves immediately.

(d) The Role of the Labour Office

The Labour Officer, who is a Government representative, should try and conciliate the parties i.e.
the employer and the Union to bring about an agreement and end the strike. The Labour Officer

58
will try and make whatever proposals he may to end the strike some of which may not be in the
best interests of the employer. He should not compel any party to take a certain course of action
but his role should be purely advisory.

(e) The Role of the Trade Union

The trade union is the employees’ representative. It will more often than not take the side of the
employees in trying to justify their action. The importance of its presence is that it will negotiate
with the employer on how the strike should be ended. Reality may not necessarily be their guide
especially so where they find out that the grounds for the strike is not strong enough. They will
probably try to introduce other issues to back up the employees’ action.

(f) The Role of the Federation of Kenya Employers

The Federation is the umbrella employer’s trade union. It is important to consult the Federation
and seek advise and if possible ask that a representative be sent to assist.

(g) Significance of a Return to Work Formula

Where a strike does not break immediately, a meeting is necessarily held between the local
labour officer, the employer and the union. This would entail negotiating an agreement to break
or end the strike. This agreement is commonly referred to as “a Return to Work Formula”.

At this stage, the mot important thing is to end the strike and resume work and care should be
taken for parties not to involve themselves with settling grievances. Note may be taken for
parties not to involve themselves with settling grievances. Note may be taken of the employees
‘grievances/disputes but their resolution should be spared for another forum. The Return to Work
Formula re-establishes the parties’ machinery and brings back normality. Common contents of a
Return to Work Formula are:

(i) That all striking workers resume their duties immediately

(ii) That there will be no victimization
(iii)That in future, parties will adhere to the established machinery and the law
(iv)That the issues raised by the workers will be dealt with in accordance with the parties
established machinery

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 (v) That there will be no pay for the hours/days the employees were on strike. The issue of
pay is often left out as the employer is under no obligation to pay wages for time not
worked.

7.3 POST STRIKE PROCEDURES

The end of a strike does not in any way mean that an organization’s problems are over. Another
strike may crop up almost immediately if care is not taken.

Every effort should be made to ensure that what has been agreed upon will be implemented
including the processing of the workers grievances or disputes. Both parties must be committed
to this and neither party should gloat over its success in bringing the other to its knees as this
merely causes resentment which may create more problems.

Understanding is called for form both parties and strengthening their relationship and looking
forward to a better working relationship should be the goal by both parties.

7.4 THE MINISTRY OF LABOUR

The Ministry of Labour is the agency responsible for the provision, elaboration and
implementation of labour laws and the regulation of industrial relations generally. It is also
concerned with the enforcement of labour standards as well as the provision of conciliatory
services to employees and workers.

Within the Ministry of Labour there is an Industrial Relations Division. When parties fail to
resolve their differences, the Labour laws require that such disputes must be reported to the
Minister of Labour for any action he deems fit.

It is after the dispute is referred to the Minister that the Industrial Relations Division steps in. the
Division provides certain services and advice to assist the parties in resolving their industrial
disputes.

The Ministry of Labour intervenes in industrial disputes in the following ways:

(i) Consultation with a Tripartite Committee and thereafter either or both parties
(ii) Arrangements for determining methods of conciliation

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 (iii)Arrangement to enforce recognition orders through fines against employers who fail to
comply with recognition order.
(iv)Arrangements for furnishing Industrial Court with a copy of every collective agreement
that has been lodged with him by parties.
(v) Arrangements for appointment of Board of Inquiry to look into matter (s) related to any
trade disputes.
(vi)Arrangement to declare any strike or lock-out (whether actual or threatened) in that
section of industry unlawful.”

In so far as the state is concerned, these arrangements are what ostensibly may appear as a good
intercession practice by the government in the industrial relations system.

But is should be understood that the arrangements are not only powerful variables in the
industrial relations process but also a dominant source of delay, frustration and hopelessness on
the art of other parties, effectively militated by concomitant “red-tape” and apparent
inexperience of some of those involved in the industrial relations process in the Ministry of
Labour. This statement may well be understood in the context of the 1997 eleven days successful
strike by teachers. The President ordered the Head of Public Service and Secretary the Cabinet,
the Solicitor General and the Permanent Secretary to the Treasury to find a desired solution to
the strike and report back to him within 48 hours. They indeed found a solution and teachers
resumed duty.

7.5 CONSULTATION AND CONCILIATION

The ministry of Labour employs officers who “act” as conciliation officers. The labour officers
in their “conciliatory’ role assist employers and the trade unions to resolve their differences and
give advice when needed.

Once a dispute is referred to the Minister, a Tripartite Committee is consulted and on its
recommendations the Minister, may among other things appoint an investigator. Normally in
case of “interest “disputes, the Minister appoints a conciliator and in “rights” disputes he
appoints an investigator.

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Only if conciliators fail, or if the parties reject the investigator’s recommendations will the
Minister refer the matter to the Industrial Court. The chart below shows the level of third party
interventions by the Government through the Minister of Labour in settling industrial disputes

Review Questions
i. Evaluate the current industrial relations system in Kenya with special reference to;
inordinate delays, ban on strikes and income policy.
ii. Despite there being a ban in Kenya, there are occasions when workers prefer direct
action for settling grievances rather than the laid down procedures. Why do you
think there is such attitude?
iii. Give clear examples of strikes you know of that have taken place in post
independence era.
iv. What are the general ingredients of the no-strike deal?

Reference:
i. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
ii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iii. Davies .I, African trade unions, 1966.
iv. I.L.O, The role of trade unions in developing societies, 1978
v. Www.Cotu-Kenya.Org/Profile.Htm
vi. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

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 CHAPTER EIGHT: LEGAL FRAMEWORK OF CONTRACT NEGOTIATIONS AND
ADMINISTRATION

Objectives
By the end of the chapter, the learner should be able to;
1. Discuss the legal framework of contract negotiations and administration
2. Explain the principles and practice of collective bargaining
3. Explain how collective bargaining operates in Kenya
4. Describe forms of collective bargaining

Prior to May 1964 when the Industrial Court was first established in Kenya, unresolved disputes
between organized labour and employers were tackled through the provisions of the following
acts:

(i) The Trade Disputed (Arbitration) and Inquiry Act Chapter 234 – Laws of Kenya
 This Act provided for establishment of Arbitration Tribunals and Boards of
Inquiry in connection with trade disputes and made provisions for settlement of
such disputes and for inquiring into economic and industrial conditions in Kenya.
(ii) The Essential Services (Arbitration) Act, Chapter 235 – Laws of Kenya.
(iii)The Essential Services (Arbitration) Act , Chapter 235 – Laws of Kenya
 This Act providing an arbitration tribunal for the settlement of disputes inessential
services.
There was a system or arbitration tribunal to settle disputes. However the main drawbacks to this
system were that:
(a) There was no continuity, consistency or guidance for the whole country
(b) In dismissal disputes, the tribunals had no power to order re-instatement of a dismissed
worker, even if the dispute was settled in favour of worker
(c) In recognition disputes , the employers were not obliged to recognize trade unions
(d) In collective agreement disputes, unions were legally impotent to enforce the awards of
the tribunal.
It was in view of this background therefore that the need for an institution such as the Industrial
Court was first recognized.

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Prior to Kenya’s independence in 1963, Industrial confrontations between the trade unions and
employers arose not merely form the traditional trade union movement activities, but also form
the political role of movements in the struggle for freedom form colonial domination particularly
after individual political leaders had been arrested and placed in detection.
However, as Kenya stood on the threshold of independent in 1963, it was realized by the
government, employers and workers alike, that if the infant nation was to make economic
progress it was vital that capital and labour should work in harmony; the incidence of strikes and
lockouts had to be drastically reduced.

As a result of this realization in October 1962, a landmark was established with the signing of the
Industrial relations charter. This Charter laid the solid foundation for an industrial relations
system in Kenya in a number of ways. It spelt out the agreed responsibilities of management and
unions and their respective obligations in the field of industrial relations. It defined a model
recognition agreement as a guide to parties involved and it set up a joint Disputes Commission.
The Charter further covered matters like redundancy, employment policy, intimidation, and joint
consultation.

In short, what ostensibly may appear to be a good Industrial Relations Charter was in essence a
gentlemen’s agreement, i.e. It was not legally binding to the parties. The drawbacks that existed
in the pre-independence industrial relations system continued to persist, despite the signing of
Industrial Relations Charter.

In 1964, the Trade Disputes Act, No 9, came into force. It was eventually emended by the Trade
Disputes Act of 1965. This Act made provision for the settlement of trade disputes, and the
establishment of an Industrial Court.

8.1 THE INDUSTRIAL COURT

One of the salient features of the Trade Disputes Act is that it established the Kenya Industrial
Court. This important institution in the independent Kenya was established in 1964. Besides this,
the Act made provisions for the settlement of trade disputes, the establishment of arbitration

64
tribunals and boards of inquiry in connection with trade disputes. The Industrial Court is
presided over by a Judge of the High Court Bench appointed by the President and:
(a) Two persons representing the employers
(b) Two persons representing the workers.
In 1965, the Trade Disputes Act was amended to widen the Court’s scope and powers. It
provided for the establishment of Boards of inquiry and a standing (permanent) Industrial Court,
the control and regulation of strikes and lockouts and it made provision regarding the collection
of union dues and other related matters. The major objectives of the Act were therefore:

(i) To ensure that parties to a trade dispute adhere to agreed procedure for settling disputes.
(ii) To limit sympathy strikes and sympathy lockouts.
(iii)To establish mandatory binding arbitration by the Industrial court in the trade disputes in
essential services.
(iv)To provide for the compulsory check-off of the union dues where permitted by the
Minister for Labour.
In 1971 the Trade Disputes Act was further amended to incorporate the following information:
(i) For the purpose of the settlement of trade disputes and of matters relating thereto to
president of Kenya may by order establish and Industrial Court consisting of:
(a) A Judge of the court who shall be an advocate of the High Court of not less than
seven years standing, and who shall be appointed for terms of not less than five years
by the president of Kenya.
(b) Four other members, who shall be appointed for terms of not less than three years by
the minister, after consultation with the minister for the time being responsible for
Finance and after consultation with the Central Organization of Trade Unions and
Federation of Kenya Employers and one of whom shall be appointed by the minister
to be the deputy to the Judge of the Court. Provided that whenever it appears to be
expedient to do so, the judge of the court may appoint two assessors, one to represent
employers and one to represent the employees, form a panel of assessors appointed by
the minister, to assist in the determination of trade dispute before the court.

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Further amendment to the Act states that the Industrial court shall be bound by any guidelines or
other directives relating to wage and salary levels and issued form time to time to the court by
the minister for the time being responsible for Finance.

Pre-Industrial court procedures include reporting disputes, conciliation investigating and bards of
inquiry. A trade dispute has to be reported to the minister in writing. The employee must then
allow the minister twenty one days within which to settle the dispute or refer it to the Industrial
Court. Whatever the source of the dispute, the first step is normally the identification of the
problem; where possible, the dispute is solved at this stage before it becomes a major complaint.

Usually this is done by employer’s representatives themselves, if it is in the interest of the

employer. The general position of worker’s representatives is that grievances should be
prevented as much as possible. This is done by creating good industrial relations. Once there is a
complaint which is not solved at the level of the shop floor, the mater normally goes to the trade
union branch within the work-place. Here the branch official investigate the complaint and
determine whether its genuine. They investigate inter-alia.

(a) Whether there is a violation of any existing law agreement, practice or company rules
(b) Whether it is an area of the management’s responsibility
(c) What the precise nature of the problem is
(d) Who is involved, and
(e) Where, when, how and why the grievance arose. The officials must then promptly take
action to discuss the problem. They are supposed to be calm, candid but firm and avoid
unnecessary delays.
At this stage there are usually numerous meetings, consultations and even further investigations,
where necessary. If there is failure to solve the problem at this stage the matter is referred to the
Joint Industrial Council, which is a body formed by representatives of the employees and the
employers and representatives of the Minister for Labour, usually Labour officers. The function s
of the Joint Industrial council goes beyond grievance-handling. They include.
(a) Setting up regular discussion between the employer and employees
(b) Negotiation of terms and conditions of service

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 (c) Negotiation of disciplinary procedures, and
(d) Encouragement of cultural activities in general and education in particular
The Joint Industrial Councils are however more prominent in the handling of grievances. The
Joint Industrial Council may conduct meeting at which it considers the grievance and the steps
taken so far. It may consult or carry out further investigations. For the latter purpose, it may even
set up sub-committees. In case of failure the matter is then referred to the minister in charge of
labour matters. It is vital to not hat in practice; there is continuous consultation at most levels.
Members of the management, the official of the trade union branch and members of the joint
industrial council often informally discuss, when there is grievance. Are Labour officers are
usually present when discussion takes place before there is a reference of a dispute to minister.
The steps enumerated above are hardly followed in every dispute situations.

At the ministerial level there are again further discussions, consultations and investigations.
Thereafter the minister may refer the matter to industrial court. Once the dispute has been
accepted by the Industrial court and it is formally registered, the parties are invited to a mention
before the judge of the Court where the “preliminaries” are decided and hearing date fixed. At
the mention, the claimant is required to submit a memorandum to the Industrial Court in support
of his demands. The time allowed is usually two weeks from the date of the mention, although
the parties can be allowed a longer period on request.
Once the claimant had submitted the memorandum, the copy is served on the respondent who in
turn is required to submit a memorandum to the Industrial Court in support of his demands. The
time allowed is usually two weeks from the date of the mention, although the parties can be
allowed a longer period on request.
Once the claimant has submitted the memorandum, the copy is served on the respondent who in
turn is required usually within a period of two weeks to submit a replying memorandum. After
the exchange of memoranda the parties are allowed a week before the hearing take place.
There is no provision, either in the Trade Dispute Act or in Industrial Court Procedure rules
relating to the payment of court fees by the parties who refer their dispute for settlement of the
Industrial court. Fees by the parties who refer their dispute for settlement to the Industrial Court.
Neither is there any provision relating to an award of costs against either party being made by the
industrial court under certain circumstances eg. Against the minister’s order declaring a

67
threatened or actual strike or unlawful lockout or against the Minster’s refusal to accept a trade
dispute on the ground that it is barred form negotiation under the terms of recognition agreement
or collective agreement.
The Industrial Court awards take effect form the date of its publication in the Kenya Gazette,
unless a different date is specified in the award itself. Its duration if it is an ‘issue” dispute, is
again specified in the court award. This means that many courts awards are retroactive which is
understandable because of the time factor involved in resolving the disputes at the parties own
level then through the endeavors of the ministry of labour and finally through arbitration by the
Industrial Court.
The Industrial Court does not execute its award like the civil courts where elaborate legal
provision exists in the civil procedure code for executing court decrees. There are no general
provisions in the Trade Disputes Act for the execution of the Industrial Court’s awards.

Since the Industrial Court cannot enforce its own awards, a party requiring enforcement has to
apply to the regular or ordinary courts. In practice, however employees rely on two procedures.
The fist is the use of the threat of strike to force an employer to carry out the demands of the
award. The second is the use of administrative pressure. This latter procedure is normally
brought to bear by the ministry of labour officials.
The employers take the pressure seriously because of the possibility of relying on the same
officials when they have problems with employees.
The industrial Court awards are final. Attempts have been made several times by the employers
for quashing the Industrial Court awards by the High Court but these attempts have been
unsuccessful, and the High Court upheld the Industrial Court awards.

8.2 PRINCIPLES AND PRACTICE OF COLLECTIVE BARGAINING

Collective bargaining is a process of negotiations between employers and the representatives of a

unit of employees aimed at reaching agreements which regulate working conditions. Collective
agreements usually set out wage scales, working hours, training, health and safety, overtime,
grievance mechanisms and rights to participate in workplace or company affairs.

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The union may negotiate with a single employer (who is typically representing a company's
shareholders) or may negotiate with a group of businesses, depending on the country, to reach an
industry wide agreement. A collective agreement functions as a labor contract between an
employer and one or more unions. Collective bargaining consists of the process of negotiation
between representatives of a union and employers (generally represented by management, in
some countries by an employers' organization) in respect of the terms and conditions of
employment of employees, such as wages, hours of work, working conditions and grievance-
procedures, and about the rights and responsibilities of trade unions. The parties often refer to the
result of the negotiation as a collective bargaining agreement (CBA) or as a collective
employment agreement (CEA).

The ILO in one of its publication entitled Collective Bargaining: a Workers “Educational Manual
(1960) defines collective bargaining as:
“Negotiations about working conditions and terms of employment between an employer, a group
of employers or one or more employers’ organizations on one hand and one or more
representative workers’ organizations on one hand and one or more representative workers’
organizations on the other with a view to reaching agreement.
An association of workers established, dominated or financed by employers or their agents is not
regards as a representative workers’ organization for the purpose of collective bargaining.”

8.3 HOW COLLECTIVE BARGAINING OPERATES IN KENYA

In Kenya, collective bargaining has developed as central feature of industrial relations system
which operates essentially on voluntary basis. The system seems to cater satisfactorily for the
interests of the workers, employers and the government. It is a system in which the employers do
not interfere in union organization or administration neither does the Government interfere where
the management and the union are capable of establishing their own procedures. The
Government can only assist the parties where disputes of serious consequences occur or threaten
to occur.
Usually, the Government offers the parties its good offices to settle disputes voluntarily. It may
bring pressure to bear but there is no compulsory conciliation as either party is technically free to

69
refuse participation in any conciliation meetings. It is only in cases of essential services where
disputes are statutorily prevented form ending in strikes or lockouts.
The present practice of collective bargaining in Kenya was established under the Industrial
Relations Charter of 1962 amended in 1980. The Charter introduced a code of conduct for the
employers, trade unions and the Government in the management of labour relations.

It outlines the responsibilities of the union and the management, has a Model Recognition
Agreement, and establishes the procedure to be followed in the event of disagreement between
the Unions and the Management without resort to strikes or lockouts, and the principles of
redundancy.

8.4 FORMS OF COLLECTIVE BARGAINING

Collective Bargaining in this country takes the following forms:
(a) Wages Councils
The first form of collective Bargaining is the wages Council. This is where the employers and
workers are equally represented, normally with three independent members representing other
interests appointed by the Minister for Labour. This form of collective bargaining is conducted
under the provision of the Regulation of terms and conditions of Employment Act (Cap. 229).
The terms and conditions of employment fixed through this form of bargaining are referred to
the minister for Labour before they are gazette in form of Government Legal Notice. The Wages
Councils are essentially intended to establish the minimum statutory terms and conditions of
employment for the workers who may not be represented by trade unions.

Presently, there are 12 regulations of Wages Orders covering the following industries and trade:
1. Agricultural Industry
2. Building and Construction Industry
3. Electrical Construction Industry
4. Road Transport
5. Hotel and Catering Trades
6. Motor Engineering Trades
7. Petrol and Services Stations

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 8. Tailoring, Garment Making and Associated Trades
9. Wholesale and Retail Distributive Trades
10. Apprentices Security Services
11. Timber and Saw Milling Trades

In addition, there is a Regulation of Wages (General) Order which applies to all industries and
trades with the exception of Agricultural and plantation Industries. The General Wages Order
and other Orders for specific industries or trades provide for the minimum terms and conditions
of employment which generally include wages, hours of work, overtime, annual leave, public
holidays warning system, housing and housing allowance, weekly rest days, safari redundancy,
and termination of employment, sick leave and gratuity.
(b) Joint Negotiating Committees or Councils
The second form of collective bargaining is where the representative the Union and management
negotiate and reach an agreement on terms and conditions of employment at their own level
meeting as a Committee or Council. In the even of failure to reach an agreement, they normally
seek assistance of a third party or the Government in accordance with the provisions of the Trade
Disputes Act (Cap 234).
Voluntary Collective Bargaining may be organized and conducted at the company/organization
level or through a registered association or an informal group of employers who recognize a
particular union for the purposes of negotiations. The terms of negotiated agreements once
registered by the Industrial Court apply to all unionisable employees covered by such agreements
irrespective of union membership.
Negotiations through the employer associations or group is fairly common in Kenya today. It
promotes the application of the agreed terms and conditions of employment across a wide
section of a particular industry or trade. It tends to stabilize not only the wage development but
also discourages an adverse or unnecessary labour mobility within the industry. Further, it
reduces the negotiating workload for the union officials as it enables them to achieve a wider
coverage of workers within a small number of collective agreements.
Presently, there are 13 employers’ association which negotiate directly with relevant trade
unions on terms and conditions of employment on behalf of their members with the assistance of
the Federation of Kenya Employers. These are:

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 1. Association of Local Government Employers
2. Distribution and Allied Trades Association
3. Kenya Association of Hotelkeepers and Caterers
4. Engineering and Allied Industries Employers Association
5. Kenya Association of Building and Civil Engineering Contractors
6. Motor Trade and Allied Industries Employers Association
7. Kena Bankers (Employers) Association
8. Agricultural Employers Association
9. Kenya Tea Growers Association
10. Sisal Growers and Employers Association
11. Timber Industries Employers Association
12. Nairobi Petrol Stations Association
13. Kenya Vehicle Assemblers Association

Some of these associations are registered as trade unions and others are registered as societies
companies.
It is legal requirement under the Trade Disputes Act (Cap 234) that all collective agreements
must be registered by the Industrial Court before they can be implemented. The agreements so
registered are binding and any dispute arising out of them are subject to adjudication by the
Industrial Court.
An employer who implements any provision of a collective agreement or part of an agreement
which ahs not been registered by the Industrial Court is guilty of an offence and liable to a fine
of Kshs 10,000 and, if after conviction the implementation of such agreement continues, a
further offence is committed for which a further fine of Kshs. 10,000 may be imposed for evry
month or part thereof during which such implementation is continued.

8.5 BARGAINABLE ISSUES

Collective bargaining encompasses more issues than those covered by the Wages Orders.
Generally, the bargain able issues to be covered in collective bargaining would include the
following.

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1. Union Security
 Check off system
 Access to members of potential members
 Rights and duties of the shopstewards
 Leave for Union activities

2. Wages Scales
 Basic pay and wages increases
 Housing allowance
 Piece Rates
 Other incentive methods
 Acting allowance
 bonuses
3. Hours of Work
 Overtime and rates of pay
 Shift work
 Rest periods

4. Types of Leave
 Annual Leave
 Compassionate Leave
 Maternity Leave
 Public Holidays
 Religious Holiday
 Sick Leave
5. Leave Traveling Allowance
6. Redundancy Principles and Lay-off procedures
7. Uniforms and protective clothing
8. Medical Treatment
9. Training

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 10. Warning System
11. Safari Allowance
12. Letter of Appointment
13. Certificate of Service
14. Gratuity and Retirement Benefits
15. Promotion Procedures
16. Transfer Allowances
17. Night shift Allowance
18. Casual Employment
19. Mileage Allowance
20. Provident Fund
21. Funeral/Burial Expenses
22. Termination of Employment
23. Effective Date and Duration of the Agreement
i. Procedure for termination and amendment of Agreement
ii. Implementation and interpretation procedures

8.6 NEGOTIATING PROCEDURES

Generally, every recognition agreement provides for procedures to be followed where a union
intends to raise collective claims with an employer. Normally, the procedure is that the Unon
submits its problems in writing to the employer who should, in turn, comment on them also in
writing within an reasonable time.
If the parties are unable to agree through such communication, then the matter is referred to a
Joint Negotiation Committee or Industrial Council composed of the employer and union
representatives. If no agreement is reached at this level, then either party has the right to report
the existence of a trade dispute to the Minister for Labour.
Upon receipt of such report, the Minister, after consultation with the tripartite Committee
composed of representatives of COTU, FKE and the Ministry itself, may take one or more of the
following steps to resolve the dispute:

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 (a) Inform the parties that any of the matters over which the trade dispute has arisen or is
apprehended are not suitable to be dealt with.
(b) Refuse to accept the report of the trade dispute where he is of the opinion that any matter
in dispute is barred form negotiation under the terms of the recognition agreement or
collective agreement in force between the parties.
(c) Advise the parties that he accepts or rejects the report of the trade disputes having regard
to the sufficiency or nature of the report, or to the endeavors made by any of the parties
with regard to any other matter which he considers to be relevant in the circumstances.
(d) Refer the matter back to the parties and, if he thinks fit, make proposals to them or to any
of them upon which a settlement of the dispute may be negotiated
(e) Endeavour to effect conciliation of the parties in accordance with the relevant provisions
of the Trade disputes etc.
(f) Cause an investigation of the dispute or matter connected with it to be made in
accordance with the relevant provisions of the Act
(g) Recommend to the parties that the dispute be referred to the Industrial Court.

It may be noted that if the Minister refuses to accept the report of a trade dispute, then the
Claimant party may appeal to the Industrial Court against his ruling. The Claimant party may
also refer the dispute to the Industrial Court where the matter is not settled by way of conciliation
or investigation.

With regard to individual grievances, most of the recognition agreements do provide for such
grievances to be raised in the first instance by the shopsteward who takes them up with
management before they are referred to the Union’s Office. If the matter is not satisfactorily
resolved at that level within a given time, then it is to be referred to the Union’s office for further
action. Thereafter, the procedure is the same as the one followed in collective claims or
grievances.

8.7 THE ROLE OF THE GOVERNMENT AND INDUSTRIAL COURT

(a) The Role of the Government

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Although our system of collective bargaining is fairly free form Government interference, there
are many good reasons why the Government must directly be involved in the determination of
terms and conditions of employment through collective bargaining. Some of these reasons
include:
(i) The Government itself is the largest single employer with a huge expenditure taken up by
the wages/salaries of its employees and is also a large investor in or through the parastatal
organizations.
(ii) It must see through its economic planning that the wage development does not have
negative effects on the generation of employment opportunities for the growing
populations
(iii)It must ensure that healthy industrial relations are maintained in order to avoid any
possibility of industrial unrest that may threaten the security and economy of the country.

For these basic reasons, the Government amended the4 Trade Dispute Act in 1971 to empower
the Minister for Finance to issue form time to time wages guidelines to the Industrial Court
depending on the state of the economy. The Court uses such guidelines in determining wage
awards as well as in deciding whether or not a collective agreement should be registered. These
guidelines are used to ensure, as much as possible, that wage increases granted through collective
bargaining do not hamper the growth of wage employment in a country like ours where the wage
earners form a very small part of the population.

(b) The Role of the Industrial Court

A part from scrutiny and subsequent registration of collective agreements, the Industrial Court
adjudicates upon all types of trade disputes referred to it either by the parties themselves or the
Minister for labour. The disputes re usually referred to it after the parties have been unable to
settle them at their own level or by way of conciliation or investigation.
Each party to the dispute is required to file with the Court either copies of its written submission
within a specified time. In the case of economic dispute, the Court first refers the parties’
submissions to the Planning and Research Division of the Ministry of Labour for an independent
analysis based on the parties’ submissions vis-à-vis the Wage Guidelines. However, the court is
the final authority as far as the interpretation of the Guidelines is concerned.

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In both the economic and employment termination disputes, the parties are required to make oral
submissions to the Court and the parties may call witnesses to support their case with the
permission of the Court. After hearing the submissions of both parties, the Court then reserves its
judgment to consider the issues raised during the hearing for some time before an award is given.

8.8 BARGAINING TECHNIQUES

Negotiating an agreement is the very heart of collective bargaining. The people who negotiate
stand in definite organizational relationships to the interests they represent and perform definite
functions in the process of collective bargaining.
They shoulder a heavy responsibility, their work sets industrial relations policy and its results are
bound to affect the welfare, earnings, and chances of promotion, job security and job satisfaction
of every union sable employee. Equally affected are the company’s profits, productivity and
competitive position, as well as prices and products or services available to the public.

The proper discharge of the responsibilities that the bargaining places on the parties therefore
calls for a careful preparation for negotiations.

8.9 NEGOTIATIONS
Negotiation is a process whereby two or more parties who is a process whereby two or more
parties who have both common and conflicting interests come together and talk with a view to
reaching an agreement. The conflicting interest provides the need to negotiate. The common
interest provides the pressure to reach agreement.

8.10 STRUCTURE OF NEGOTIATION

Negotiation tend to fall into four phases
(i) Preparation
(ii) Discussion
(iii)Bargaining
(iv)Closure and agreement

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Those who participate in collective bargaining would probably agree that preparation is 90
percent or more of the bargaining techniques. The motivation to negotiate will be low if.
i) It is felt the other parties needs will be met and other not
ii) The expected outcome will be so low that is not worth the effort
iii) Past experience has shown that fighting and direct confrontation gets the best
results
iv) Their ideology is base on fighting and confrontation rather than compromise
v) The knowledge and skills as to how to negotiate are lacking

Effective use of the negotiation process depends on:

i) Intention of the parties (to achieve a settlement)
ii) Willingness to move
iii) Possession of sufficient power (to persuade, not to force a surrender0
iv) Clear mandates form constituents
v) Agreement on the rules of the game
vi) Acknowledgement of common interest
vii) Belief that negotiation will give the best result
viii) Mutual recognition
ix) Sufficient resources to allow outcomes that do not discredit the use of bargaining.
In preparing for an active negotiation, the management would at least be expected to take steps
which would include the following:
i) Study the existing agreement with a view to identifying provisions or clauses which
require modification
ii) Analyze the grievances in order to discover unworkable or poorly worded clauses which
create problems in supervisor-employee relationship
iii) Find out form the supervisors how the agreement has worked out in practice
iv) Review agreement signed between typical and comparable companies with the same
union
v) Collect an analyze economic data on issues likely to be important in the next
negotiations

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 vi) Study and analyze Industrial Court awards with a view to formulating proposals for
changes at the negotiations.
vii) A periodic audit of the existing agreement should be made so that the management may
avoid the element of surprise during the actual negotiations.

However, many employers tend to wait until the Unions have presented their demands before
getting ready for negotiation. This is commonly known as a defensive strategy; why not just
wait, see what they want and say no or yes?
Of course, there are employers who have found it wise to prepare more carefully and to
anticipate union demands or deflect them with proposals of their own. Some of these proposals
may even be things which the union may not expect.
Preparation for negotiations gives the management an active function instead of a passive
function. Also it enables the management to meet the union with concrete proposals rather than
a monotonous “ no, no, no,” followed by a reluctant “yes” to an arrangement shaped basically by
the union initiates.

This approach does not mean that the management gives up its strong defensive position. It
simply means that the management plans its defense and supplements it with a counter-offensive
strategy which does not leave all the issues or points of attack entirely to the union.

8.11 WAGE NEGOTIATIONS

Wage and wage increase are the heart of collective agreement. They tell the management how
much it will cost (in money terms) to get desired performance and production under the
following pay categories.
(a) Pay for time worked
This means hourly, weekly or monthly pay for the job.
(b) Premium Pay
This is the pay that would never be paid if an employee does not work outside his regularly
scheduled hours. The common types are:
(i) Overtime
(ii) Call- in pay

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 (iii)Shift allowance
(c) Pay for Time not worked
This is the payment which represents fixed labour cost, ie cost which is inescapable and
predictable. It includes
(i) All types of paid leave
(ii) Leave allowance
(iii)Bonus (if it is a fixed feature of pay)
(iv)Paid breaks (tea/meal)
(v) Wash –up time et
(c) Contingent Benefits
These differ form the above category in that not every employee gets all the benefits
they offer. The main types are:
i. Funeral or death benefits
ii. Pension/provident benefits
iii. Severance pay
iv. Health and Welfare plans

As mentioned above wage and wage increase are the major objective of the trade unions in
collective bargaining. Therefore, it is necessary that preparation in this area should be complete
and factual if an effective presentation is to be made by the management. Ideally, the following
information should be available to the management negotiating team.

Review Questions
i. Evaluate the effectiveness of the role and operation of the Kenya industrial court.
Do you think there is need for reforms?
ii. What do you consider to be salient features of an ideal industrial relations system?
iii. Compare and contrast private and public employee collective bargaining in Kenya.
iv. Describe the structure of negotiation

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Reference:
i. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
ii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iii. Davies .I, African trade unions, 1966.
iv. I.L.O, The role of trade unions in developing societies, 1978
v. Www.Cotu-Kenya.Org/Profile.Htm
vi. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

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 CHAPTER NINE: UNFAIR LABOR PRACTICE

Objectives
By the end of the chapter, the learner should be able to:

a) Outline Unfair labor practice

b) Mention Conciliation of charges of unlawful practices

c) Explain fair employment practices

Unlawful employment practices. – It shall be an unlawful employment practice:

(1) For any employer:

(i) To refuse to hire any applicant for employment because of his or her race or color, religion,
sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral
origin;

(ii) Because of those reasons, to discharge an employee or discriminate against him or her with
respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any
other matter directly or indirectly related to employment. However, if an insurer or employer
extends insurance related benefits to persons other than or in addition to the named employee,
nothing in this subdivision shall require those benefits to be offered to unmarried partners of
named employees;

(iii) In the recruiting of individuals for employment or in hiring them, to utilize any
employment agency, placement service, training school or center, labor organization, or any
other employee referring source which the employer knows, or has reasonable cause to know,
discriminates against individuals because of their race or color, religion, sex, sexual orientation,
gender identity or expression, disability, age, or country of ancestral origin;

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 (iv) To refuse to reasonably accommodate an employee's or prospective employee's disability
unless the employer can demonstrate that the accommodation would pose a hardship on the
employer's program, enterprise, or business; or

(v) When an employee has presented to the employer an internal complaint alleging
harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual
orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a
timely manner in writing to that employee the disposition of the complaint, including a
description of any action taken in resolution of the complaint; provided, however, no other
personnel information shall be disclosed to the complainant.

(2) For any employment agency to fail or refuse to properly classify or refer for employment
or otherwise discriminate against any individual because of his or her race or color, religion, sex,
sexual orientation, gender identity or expression, disability, age, or country of ancestral origin; or

(ii) For any employment agency, placement service, training school or center, labor
organization, or any other employee referring source to comply with an employer's request for
the referral of job applicants if the request indicates either directly or indirectly that the employer
will not afford full and equal employment opportunities to individuals regardless of their race or
color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country
of ancestral origin;

(3) For any labor organization:

(i) To deny full and equal membership rights to any applicant for membership because of his or
her race or color, religion, sex, sexual orientation, gender identity or expression, disability, age,
or country of ancestral origin;

(ii) Because of those reasons, to deny a member full and equal membership rights, expel him or
her from membership, or otherwise discriminate in any manner against him or her with respect to
his or her hire, tenure, compensation, terms, conditions or privileges of employment, or any other
matter directly or indirectly related to membership or employment, whether or not authorized or

83
required by the constitution or bylaws of the labor organization or by a collective labor
agreement or other contract;

(iii) To fail or refuse to classify properly or refer for employment, or otherwise to discriminate
against any member because of his or her race or color, religion, sex, sexual orientation, gender
identity or expression, disability, age, or country of ancestral origin; or

(iv) To refuse to reasonably accommodate a member's or prospective member's disability

unless the labor organization can demonstrate that the accommodation would pose a hardship on
the labor organization's program, enterprise, or business;

(4) Except where based on a bona fide occupational qualification certified by the
commission or where necessary to comply with any federal mandated affirmative action
programs, for any employer or employment agency, labor organization, placement service,
training school or center, or any other employee referring source, prior to employment or
admission to membership of any individual, to:

(i) Elicit or attempt to elicit any information directly or indirectly pertaining to his or her race
or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or
country of ancestral origin;

(ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation, gender
identity or expression, disability, age, or country of ancestral origin;

(iii) Use any form of application for employment, or personnel or membership blank
containing questions or entries directly or indirectly pertaining to race or color, religion, sex,
sexual orientation, gender identity or expression, disability, age, or country of ancestral origin;

(iv) Print or publish or cause to be printed or published any notice or advertisement relating to
employment or membership indicating any preference, limitation, specification, or
discrimination based upon race or color, religion, sex, sexual orientation, gender identity or
expression, disability, age, or country of ancestral origin; or

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 (v) Establish, announce, or follow a policy of denying or limiting, through a quota system or
otherwise, employment or membership opportunities of any group because of the race or color,
religion, sex, sexual orientation, gender identity or expression, disability, age, or country of
ancestral origin of that group;

(5) For any employer or employment agency, labor organization, placement service, training
school or center, or any other employee referring source to discriminate in any manner against
any individual because he or she has opposed any practice forbidden by this chapter, or because
he or she has made a charge, testified, or assisted in any manner in any investigation, proceeding,
or hearing under this chapter;

(6) For any person, whether or not an employer, employment agency, labor organization, or
employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to
be an unlawful employment practice, or to obstruct or prevent any person from complying with
the provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly
or indirectly to commit any act declared by this section to be an unlawful employment practice;

(7) For any employer to include on any application for employment, except applications for
law enforcement agency positions or positions related to law enforcement agencies, a question
inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been
arrested or charged with any crime; provided, that nothing in this subdivision shall prevent an
employer from inquiring whether the applicant has ever been convicted of any crime;

9.1 PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT

CASES.

– (a) An unlawful employment practice prohibited by may be established by proof of disparate

impact. An unlawful employment practice by proof of disparate impact is established when:

(1) A complainant demonstrates that an employment practice results in a disparate impact on

the basis of race, color, religion, sex, sexual orientation, gender identity or expression, disability,
age, or country of ancestral origin, and the respondent fails to demonstrate that the practice is
required by business necessity; or

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 (2) A complainant demonstrates that a group of employment practices results in disparate
impact on the basis of race, color, religion, sex, sexual orientation, gender identity or expression,
disability, age, or country of ancestral origin, and the respondent fails to demonstrate that the
practices are required by business necessity; provided that:

(i) If a complainant demonstrates that a group of employment practices results in a disparate

impact, the complainant shall not be required to demonstrate which specific practice or practices
within the group results in the disparate impact; and

(ii) If the respondent demonstrates that a specific employment practice within that group of
employment practices does not contribute to the disparate impact, the respondent shall not be
required to demonstrate that the practice is required by business necessity.

(b) A demonstration that an employment practice is required by business necessity may be

used as a defense only against a claim under this section.

(c) As used in this section:

(1) "Complainant" and "respondent" mean those individuals or entities defined as such in

(2) "Demonstrates" means meets the burdens of production and persuasion;

(3) "Group of employment practices" means a combination of employment practices or an

overall employment process; and

(4) "Required by business necessity" means essential to effective job performance.

(d) Nothing contained in this section shall be construed as limiting the methods of proof of
unlawful employment practices under to the methods set in this section.

9.2 CONCILIATION OF CHARGES OF UNLAWFUL PRACTICES. –

(a) Upon the commission's own initiative or whenever an aggrieved individual or an organization
chartered for the purpose of combating discrimination, racism, or of safeguarding civil liberties,
or of promoting full, free, or equal employment opportunities, that individual or organization

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being subsequently referred to as the complainant, makes a charge to the commission that any
employer, employment agency, labor organization, or person, subsequently referred to as the
respondent, has engaged or is engaging in unlawful employment practices and that the unlawful
employment practices have occurred, have terminated, or have been applied to affect adversely
the person aggrieved, whichever is later, within one year, the commission may initiate a
preliminary investigation.

(b) If the commission determines after the investigation that it is probable that unlawful
employment practices have been or are being engaged in, it shall endeavor to eliminate the
unlawful employment practices by informal methods of conference, conciliation, and persuasion,
including a conciliation agreement. The terms of the conciliation agreement shall include
provisions requiring the respondent to refrain from the commission of unlawful discriminatory
practices in the future and may contain any further provisions that may be agreed upon by the
investigating commissioner and the respondent, including a provision for the entry in superior
court of a consent decree embodying the terms of the conciliation agreement. Nothing said or
done during these endeavors may be used as evidence in any subsequent proceeding.

(c) If, after an investigation and conference, the commission is satisfied that any unlawful
employment practice of the respondent will be eliminated, it may, with the consent of the
complainant, treat the charge as conciliated, and entry of that disposition shall be made on the
records of the commission.

(d) The commission shall not enter a consent order or conciliation agreement settling claims
of discrimination in an action or proceeding under this chapter unless the parties and their
counsel attest that a waiver of all or substantially all attorneys' fees was not compelled as
a condition of the settlement.

9.3 FAIR EMPLOYMENT PRACTICES

Use merit, qualifications (for example, education, experience, or competencies) and other job-
related criteria as the sole bases for all employment-related decisions affecting employees and
applicants.

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Strictly observe all applicable labor and employment laws, including those relating to freedom of
association; privacy; the right of employees to engage in collective bargaining; forced,
compulsory and child labor; and nondiscrimination.

Recruit, hire, train, compensate, promote and provide other conditions of employment without
regard to a person’s race, color, religion, national origin, sex (including pregnancy), sexual
orientation, age, disability, veteran status or other characteristic protected by law.

Discrimination on any of these bases is strictly prohibited.

Demonstrate leadership in programs to increase employment opportunity for all citizens in

communities where the firm has facilities.

Provide a work environment free of harassment, such as harassment directed at a person because
of his or her race, religion, sex, etc.

Respect the privacy rights of employees by using, maintaining and transferring their personal
data in accordance with applicable Company guidelines and procedures. (While seeking to
maintain employee privacy, however, firms must reserve the right to monitor use of company
property and resources – for example, computers, e-mail, phones, proprietary information, etc. –
in accordance with applicable law.)

In the United States (and other locations where applicable):

Take affirmative action to provide equal employment opportunity complying with the spirit and
letter of all laws, regulations and government contract requirements. Affirmative action should
include programs and efforts to ensure that there are diverse applicant and candidate pools of
people who are qualified and who have the opportunity to compete for open positions. Selection
of successful candidates will then be based on qualifications and merit.

Definitions and examples:

Workplace harassment is a prohibited form of discrimination under this policy and can include
harassment based on an individual’s sex, race, religion, national origin, sexual orientation,
disability, age, etc. Such harassment can take many forms and includes unwelcome verbal or
physical conduct directed against a fellow employee or third party (e. g., customer or supplier)

88
such as distributing or posting (electronically or otherwise) hate literature, making fun of or
defaming a member of a particular religion, race, sex, etc., through use of inappropriate
stereotypes, telling offensive jokes, use of ethnic slurs or taking other actions which have the
purpose or effect of unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile or offensive work environment.

Sexual harassment is a specific form of workplace harassment that includes unwelcome sexual
advances or requests for sexual favors where submission or rejection of such conduct by an
individual is used as the basis for employment decisions affecting such individual. Sexual
harassment also includes unwelcome sexual advances, requests for sexual favors, or other verbal
or physical conduct of a sexual nature or based on a person’s sex where such conduct has the
purpose or effect of unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile, or offensive working environment.

Communicate the standards and prohibitions established in this policy by supporting educational
and training programs that will enable all employees (Employee responsibilities under this
policy:

Comply with all applicable labor and employment laws, and the requirements of this policy.

Promptly raise any concerns about a violation or possible violation of this policy.

Help firms maintain a workplace that is free of harassment, such as harassment directed at a
person because of his or her race, religion, sex, etc.

If a conflict arises between the requirements of this policy and the laws, customs or practices of a
particular geographic area, consult with management and company legal counsel to determine
the most appropriate course of action for firms.

Additional responsibilities of leaders under this policy:

Each manager is responsible for applying this policy within his or her component.

(including managers) to understand the basic requirements of this policy and applicable non-
discrimination and fair employment practices laws.

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Ensure that effective grievance or problem-solving mechanisms are in place to receive reports of
concerns from individuals and, where appropriate, to resolve them.

Review and ensure compliance with laws, and maintain acceptable a firms standards relating to
child labor, forced or compulsory labor and other fair employment concerns.

Seek out and assist individuals in gaining access to job opportunities at all levels consistent with
their qualifications and abilities. Help them reach their full potential while maintaining
appropriate job-related standards.

In the United States (and other locations where applicable):

Identify appropriate managers with sufficient authority to assure that effective equal employment
opportunity and affirmative action plans, programs and practices are developed and
implemented, and measured at least annually. Assign responsibility for overall management of
affirmative action programs within your components. This should include, where necessary,
responsibility for coordinating programs on a local or organizational basis.

Ensure that contracts with independent contractors, suppliers or others outside a firm contain
equal opportunity clauses if required by government contracts.

Examples of violations:

Allowing race, color, religion, national origin, sex (including pregnancy), sexual orientation, age,
disability, veteran status or other characteristic protected by law to be a factor in screening
employees for hiring, promotion, compensation or other employment-related decisions.

Providing or withholding work-related assistance, cooperation, and/or information to fellow

employees based on their race, color, religion, national origin, sex (including pregnancy), sexual
orientation, age, disability, veteran status or other characteristic protected by law.

Hiring, compensation, promotion and layoff practices that is not clearly job-related.

Hostile or demeaning behavior based on an employee’s race, color, religion, national origin, sex
(including pregnancy), sexual orientation, age, disability, veteran status or other characteristic
protected by law.

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Persistent on-the-job flirtations or other invitations for a social relationship with a fellow
employee when he or she has indicated that such advances or interests are unwelcome.

Displaying any sexually suggestive visual material in the workplace.

Displaying or posting (including, for example, transmitting via e-Mail) hate literature,
inappropriate ethnic stereotypes, or jokes that tend to ridicule or defame a member of a particular
racial, religious, or ethnic group.

Disclosing employment data to a person who does not have either a business-related need for the
data or the subject’s consent.

Penalties for violations:

Employees who violate the spirit or letter of firm’s policies are subject to disciplinary action up
to and including termination of employment. Violation of this policy can also mean breaking the
law, subjecting you or the company to criminal penalties (fines or jail sentences) or civil
sanctions (damage awards or fines). The firm could also lose government contracting privileges.

Legislative findings. – The practice or policy of discrimination against individuals because of

their race or color, religion, sex, sexual orientation, gender identity or expression, disability, age,
or country of ancestral origin is a matter of state concern. Such discrimination foments domestic
strife and unrest, threatens the rights and privileges of the inhabitants of the state, and
undermines the foundations of a free democratic state. The denial of equal employment
opportunities because of such discrimination and the consequent failure to utilize the productive
capacities of individuals to their fullest extent deprive large segments of the population of the
state of earnings necessary to maintain decent standards of living, necessitates their resort to
public relief, and intensifies group conflicts, thereby resulting in grave injury to the public safety,
health, and welfare.

Right to equal employment opportunities. – The right of all individuals in this state to equal
employment opportunities, regardless of race or color, religion, sex, sexual orientation, gender
identity or expression, disability, age, or country of ancestral origin, is recognized as and
declared to be a civil right.

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 Review Questions

i. What is prohibited discrimination?

ii. We hear a lot about “workforce diversity.” How does this concept relate to fair
employment practices?

iii. How would a firm prevent harassment in the workplace?

iv. What is affirmative action?

v. What does taking affirmative action in hiring or promotion mean?

Reference:
i. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982
ii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iii. Davies .I, African trade unions, 1966.
iv. I.L.O, The role of trade unions in developing societies, 1978
v. Www.Cotu-Kenya.Org/Profile.Htm
vi. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

vii. Tudor Jackson, The Law of Kenya, An Introduction, 2nd edition, Nairobi, 1984.

viii. www.wikipendia.com

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 CHAPTER TEN: THE LEGAL ENVIRONMENT OF HUMAN RESOURCE
MANAGEMENT

Objectives
By the end of the chapter, the learner should be able to:

a) Explain the legal environment of human resource management

b) Explain laws and executive orders affecting employment

c) Distinguish between equal employment and affirmative action

d) Explain how to deal with an aging workforce

TERMINOLOGY

Administrative Law-regulations issued by federal agencies established to enforce the law

Affirmative Action Plan – employers who have 50 or more employees and governmental
contracts or subcontracts in excess of $50,000 are required to develop written affirmative action
plan. Employers are expected to make good faith effort to hire and promote minorities, women,
Vietnam-era veterans, disabled veterans, and people with disabilities.

Alternative Dispute Resolution (ADR) –is a non judicial method of settling a charge of
discrimination through mediation by an impartial third party. Title VII encourages parties to
avoid litigation and resolve charges of discrimination through ADR. There are several forms of
ADR including negotiation, mediation, fact finding, and arbitration. The EEOC favors
mediation.

Arbitration – non judicial, legal technique for resolving disputes by referring them to a third
party for a binding decision. The arbitrator may be a single person or an arbitration board,
usually of three members.

Bona Fide Occupational Qualifications- BFOQ states that it is not unlawful for an employer to
discriminate on the basis or religion, sex, or national origin if such an attribute is a bona fide
occupational qualification” reasonably necessary to the normal operation of that particular

93
business. Example: Title VII permits unequal treatment based on sex if the employer can prove
that sex is a necessary qualification for specific job such as an actress playing the role of a
female.

Case Law- collective set of court decisions

Common Law- state laws and local ordinances establish a body of law that may contain
additional provisions or extend coverage in employment matters but may conflict with federal
laws , constitutional requirements, or federal court rulings.

Constitutional Law-basic rights set forth in the US Constitution

Disability- a physical or mental impairment that substantially limits one or more major life
activity such a caring for oneself, performing manual task, walking, seeing, hearing, speaking,
learning, and working.

Disparate impact is typically unintentional and involves decision rules that have unequal racial or
gender consequences by screening out disproportionate numbers of minority applicants.

Disparate treatment –occurs when persons protected by the law are treated differently because of
a person’s race, religion, gender, or national origin from other employees or job applicants. Most
often claims of disparate treatment are intentional and involve claims of sexual or racial
discrimination

Due Process – the systematic, order procedure in which the individual has a right to be fully
informed of and be heard concerning action that is pending against him or her.

Glass Ceiling – is a subtle form of discrimination that many women experience. The glass ceiling
is an organizational barrier that prevents women from receiving information on promotions,
training, mentoring, and other opportunities needed for advancement.

Mediation - when a third party assists the negotiators in the discussions and suggests settlement
proposals. The mediator is not a judge, but simply tries to get the parties to come to an
agreement.

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Procedural Due Process – gives the employee the opportunity to object to a proposed action
before a fair, neutral decision maker.

Sexual harassment – illegal form of sex discrimination

Statutory Law- federal law and executive orders

Substantive Due Process- focuses on the content of the action (such as free speech_, the
employer must provide substantive due process and show a compelling or overriding interest in
the action.

10.1 LAWS AND EXECUTIVE ORDERS AFFECTING EMPLOYMENT

Civil Rights Act of 1866 – Prohibits employers from denying persons (employees and
applicants) equal protection on the laws.

Civil Rights Act of 1871 – Prohibits local government officials from acting under color of local
law or custom to deprive citizens of constitutional rights.

Davis-Bacon Act of 1931 – Known as the prevailing wage rate law. It covers workers in public
work contracts such as construction, etc. Applies to laborers and mechanics at the job site for
contracts above $2,000. Prevailing wage established by the Secretary of Labor (usually the local
union wage rate) . Intended to stop importation of cheaper labor in order to undercut local wages.

Copeland Act of 1934 – Law prohibits unfair treatment of employees by federal contractors.
Contractors may not demand that employees pay back part of their wages to employer. There is
some evidence that this existed as an attempt to circumvent the Davis-Bacon Act Contractors
must file statements to show wages paid and the deductions from wages Anti-Kickback Act,
1948 amended the Copeland Act to reinforce the prohibition against kickbacks to employers.

Wagner Act of 1935 – established the rights of industrial employees to form unions and to
bargain collectively with management as well as to engage in activities such as strikes, picketing,
and boycotts. The Act provided the basic model for the labor relations process that would later
develop in the public sector.

Walsh-Healey Act of 1936 – (Public Contracts) Extended the Davis-Bacon Act to all
government contracts exceeding $10,000. Required minimum wage rates and overtime pay on

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contracts to provide goods to the federal government. Overtime is required to be paid at the rate
of 1 1/2 times the hourly rate for all hours in excess of 40 hours per week Originally this law
required overtime for all work above 40 hours per week or 8 hours per day. The 8 hour day
requirement was eliminated by a recent Defense Authorization Bill.

Fair Labor Standards Act of 1938 – targeted private industry initially setting a minimum wage
for workers and requiring overtime for hours worked over 40 per week, time keeping records and
reporting. This Act is administered by the Department of Labor. In 1985 the U. S. Supreme
Court brought all functions of local government under the provisions of the Fair Labor Standards
Act.

Portal to Portal Act of 1947 - Amended the FLSA. Clarified some specific “hours of work”
circumstances. Generally the normal travel time to work is not compensable. Employer’s
restrictions about what an employee can do or where he can go when off duty may constitute
working time which will be compensable.

Taft-Hartley Labor Act of 1947- was initiated by the Republican Party amended the Wagner Act
and prohibited unfair labor practices by unions.. It was an anti-labor law which outlawed wildcat
strikes and union shops. It also increased the size of the National Labor Relations Board,
(NLRB)

Landrum-Griffin Act of 1959 – amended the Wagner Act giving rights to union members. The
Act is important because it provides the model for public sector labor legislation at the state
level.

Equal Pay Act of 1963- an amendment to the Fair Labor Standards Act dealing with wage
discrimination against women. Men and women doing the same or substantially similar work
requiring skill, effort, and responsibility under the same conditions must be paid the same. There
are exceptions for seniority, productivity and merit. Prohibits employers from reducing the pay
of a man in order to provide equal pay for a woman.

Title VII of the Civil Rights Act of 1964 as amended by the EEO Act of 1972 -

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The most comprehensive civil rights statute. It prohibits discrimination in employment on the
basis of: 1) race, 2) color, 3) religion, 4) sex, or 5) national origin. The law applies to employers
to employers with fifteen or more employees, employment agencies, labor organizations, state
and local governments, and educational institutions. Established the Equal Employment
Opportunity Commission and outlined the procedures that the commission should follow to
prevent unlawful employment practices. Outlawed discrimination in housing, transportation,
education, and employment. Once again, the Act was written to regulate the private sector.

Executive Order 11246 signed in 1965, amended by Executive Order 11375 in 1967 and
Executive Order 11478 in 1969. This order prohibits employment discrimination by federal
government contractors and subcontractors. The order not only prohibits racial discrimination,
but also requires contractors and their subcontractors who have 50 or more employees and
$50,000 or more of contracts to develop written affirmative action plans and to establish
numerical goals and timetables for achieving them. These are administered by the Office of
Federal Contract Compliance Programs (OFCCP), the Department of Labor.

Age Discrimination in Employment Act of 1967 – is designed to protect employees over the age
of 40 and under age 65 from arbitrary and age-biased discrimination in hiring, promotion,
training, benefits, compensation, discipline, and terminations. The ADEA applies to all private
employers with 20 or more employees, governmental employers, employment agencies, and
labor unions with 25 or more members.

Executive Order 11478 in 1969 prohibits discrimination in the U. S. Postal Service and in the
various government agencies on the basis of race, color, religion, sex, national origin, handicap,
or age

Equal Employment Opportunity Act of 1972 – strengthened enforcement powers of EEOC and
extended coverage of the Act to governmental employees, higher education institutions, and
other select groups, required the enforcement of Affirmative Action.

Vocational Rehabilitation Act of 1973 –Prohibits employers with federal contracts over $2,500
from discriminating against individuals with disabilities.

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Vietnam-Era Veterans Readjustment Act of 1974 prohibits discrimination against Vietnam-era
veterans by federal contractors and the U.S. government and requires affirmative action.

Pregnancy Discrimination Act of 1978 – prohibits discrimination against women because of

pregnancy, childbirth, or related medical condition. This Act prevents employers from requiring
women to take unpaid leaves or to resign due to pregnancy. The Act also requires employers to
grant sick leave for childbirth and pregnancy-related illnesses if sick leave is granted for any
other medical conditions.

Civil Service Reform Act of 1978 – had a major impact on the personnel function in state and
local government. The Civil Service Commission was replaced by the Office of Personnel
Management (OPM), an independent agency intended to work closely with the president to
manage the personnel aspects of the federal bureaucracy. The Act created the Merit Systems
Protection Board with general oversight functions. The Act also strengthened protection for
whistle blowers. It created a merit system for mid-level managers based on job performance and
not longevity. The Act also created the Senior Executive Service for the top level of government
managers.

Immigration Reform and Control Act of 1986 as amended in 1990 and 1996-designed to reduce
the number of illegal immigrants coming into the United States for employment. Establishes
penalties for employers who knowingly hire illegal aliens. It also prohibits employment
discrimination on the basis of national origin or citizenship. The IRCA requires employers with
four or more employees to verify the right of each job applicant to work. All new employees are
required to complete and sign a verification form (Form I-9) to verify citizenship and eligibility
for employment as required by the Immigration and Naturalization Service (INS).

Americans with Disabilities Act of 1990- This Act protects people with disabilities from job
discrimination. An employer may not make any pre-employment inquiries about whether an
applicant has a disability either on application forms, in job interviews, or in background or
reference checks. In the hiring process, employers are expected to describe the essential
functions for the job and then ask the applicants if they can perform them. If an otherwise
qualified person needs an accommodation, it is that person’s responsibility to request it and the
employer’s responsibility to decides whether it is reasonable. Administered by the EEOC.

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Older Workers Benefit Protection Act of 1990- Prohibits age-based discrimination in early
retirement and other benefit plans

Civil Rights Act of 1991 – Congress amended the Civil Rights Act in 1991 to define more
clearly which actions are discriminatory and what procedures should be followed in prosecuting
them. It more severely punishes employers who intentionally discriminate against protected
groups. The Act overturns several past Supreme Court decisions and changes damage claim
provisions.

Uniformed Services Employment and Reemployment Rights Act of 1994 – grants reemployment
rights to individuals who enter the military. Employers cannot discriminate on the basis of
military obligation in the areas of hiring, job retention, or advancement.

Congressional Accountability Act of 1995 – Extends EEO and Civil Rights Act provisions to the
U.S. congressional staff

10.2 DISTINCTION BETWEEN EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION

EQUAL EMPLOYMENT OPPORTUNITY

1) Anti-discrimination
2) Present, past
3) Class/victims
4) Individuals/victims
5) Perpetrators
6) Statutory standards
7) Make whole

AFFIRMATIVE ACTON

a. Remedial, corrective
b. Present, future
c. Class/prospective

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 d. Innocent third party
e. Individual rights
f. Constitutional standards
g. Hiring, promoting

10.3 WHAT IS THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)?

 EEOC is an independent federal agency originally created by Congress in 1964
 Created to enforce Title VII of the Civil Rights Act of 1964
 Carried out enforcement, education, and technical assistance through 50 field offices
Job Discrimination Laws Enforced by the Equal Employment Opportunity Commission
(EEOC)

 Title VII of the Civil Rights Acts of 1964 (Title VII)

 Equal Pay Act of 1962
 Age Discrimination and Employment Act
 Title I of the Americans with Disabilities Act of 1990
 Section 501 of the Rehabilitation Act of 1973
 The Civil Rights Act of 1991

10.4 WHAT DISCRIMINATORY PRACTICES ARE PROHIBITED BY THESE LAWS?

 Hiring and firing
 Compensation, assignment, or classification of employees
 Transfer, promotion, layoff, or recall
 Job advertisements
 Recruitment
 Testing
 Use of company facilities
 Training and apprenticeship programs
 Fringe benefits
 Pay, retirement plans, and disability leave
 Other terms and conditions of employment

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  Harassment on the basis of race, color, religion, sex, national origin, disability, or age
 Retaliation against an individual for filing a charge of discrimination, participating in an
investigation, or opposing discriminatory practices
 Employment decisions based on stereotypes or assumptions about the abilities, traits, or
performance of individuals of a certain sex, race, age, religion, or ethnic group, or
individuals with disabilities
 Denying employment opportunities to a person because of marriage to, or association
with, an individual of a particular race, religion, national origin, or an individual with a
disability
Who can file a charge of discrimination?

 Any individual who believes that his or her employment rights have been violated may
file a charge of discrimination with the EEOC.
 An individual, organization, or agency may file a charge on behalf of another person in
order to protect the aggrieved person’s identity
How is a charge of discrimination filed?

 Charges may be filed by mail or in person at the nearest EEOC office

 Individuals who need an accommodation in order to file a charge should inform the
EEOC field office so that appropriate arrangements can be made
What information must be provided?

 The complaining parties name, address, and telephone number

 The name, address, and telephone number of the respondent employer, employment
agency, or union that is alleged to have discriminated, and number of employees (or
union members) if known
 A short description of the alleged violation
 The date(s) of the alleged violation
What are the time limits for filing?

 All laws enforced by the EEOC, except the Equal Pay Act, require filing a charge with
EEOC before a private lawsuit may be filed in court.

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 o A charge must be filed with EEOC within 180 days from the date of the alleged
violation, in order to protect the charging party’s rights
o The 180-day filing deadline is extended to 300 days if the charge also is covered
by a state or local anti-discrimination law.
o These time limits do not apply to claims under the Equal Pay Act, because under
that Act persons do not have to first file a charge with the EEOC in order to have
the rights to go to court.
o To protect legal rights, it is always best to contact the EEOC promptly when
discrimination is suspected

10.5 HOW DOES EEOC RESOLVE DISCRIMINATION CHARGES?

 If the evidence does not support the claim, the EEOC closes the case and gives the
charging party 90 days to file a lawsuit on his or her own behalf.
 If the evidence establishes that discrimination has occurred, the employer and the
charging party will be informed of this in a letter of determination that explains the
findings. The EEOC will then attempt conciliation with the employer to develop a
remedy for the discrimination
 If the case is successfully conciliated, or if a case has earlier been successfully mediated
or settled, neither the EEOC nor the charging party may go to court unless the
conciliation, mediation, or settlement agreement is not honored
 If the EEOC is unable to successfully conciliate the case, the agency will decide whether
to bring suit in federal court. If the EEOC decides not to sue, it will issue a notice closing
the case and giving the charging party 90 days in which to file a lawsuit on his or her own
behalf.
What remedies are available when discrimination is found?

 Any combination of the following may be awarded

o Back pay
o Hiring
o Promotion
o Reinstatement

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 o Front pay
o Reasonable accommodation
o Other actions that will make an individual “whole”
o Attorneys fees
o Expert witness fees
o Court costs
AGE DISCRIMINATION PREVENTION FOR EMPLOYERS

 Make decisions on documented performance appraisals

 Eliminate policies that might indirectly be age discriminatory
 Train supervisors to refrain from making references to age
 Chart ages and other employee characteristics protected from discrimination

10.6 DEALING WITH AN AGING WORKFORCE

The average age of the US labor force is rising, and it will continue to do so for the foreseeable
future. Anyone who hires, fires, or manages older works should be aware of the tremendous asset
they represent—and the dangers involved in treating them unfairly.

Applicable regulations:

 Age Discrimination in Employment Act of 1967 (ADEA)

 Older Workers’ Benefit Protection Act (OWBPA)
 Equal Employment Opportunity Commission

The first of 78 million baby boomers turned 60 on January 1, 1996, and the average age of the
workforce has been rising ever since. It is projected that by 2005, older workers will account for
14 percent of the total workforce. Our company’s ability to adapt to an aging workforce is
perhaps the biggest challenge it faces today.Surveys show that older employees are not absent
any more often than younger ones. Older workers have skills, training and experience. And with
the shortfall of qualified workers in most industries today, few employers can afford to lose their
most seasoned employees.

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Myths about Older Workers

According to a 1997 survey conducted by the American Association of Retired Persons (AARP)
and the Society for Human Resource Management (SHRM), the majority of employers do not
agree with the following assumptions:

 That older works have a harder time grasping new concepts

 That older workers have higher rates of absenteeism than younger workers
 That older workers tend to be less flexible than their younger counterparts
 That older workers tend to have higher rates of absenteeism
 That older workers are more costly to train
 That older workers tend to be less likely to stay abreast of new developments in the field
According to SHRM and AARP survey, most employers do agree with the following statements:

 That older works tend to be more reliable than younger employees

 That older workers generally show a higher level of commitment to the organization
 That older workers tend to be more motivated to do their work
 That older workers may take longer to train than younger workers
 That older workers tend to be more fearful of technology
 That older workers are often uncomfortable reporting to younger workers
As the survey makes clear, then general perception is that on the whole, workers over the age of
50 tend to excel or perform at least as well as their younger counterparts.

10.7 KEYS TO RETENTION OF OLDER WORKERS

 Most companies are desperate for qualified workers which is a good reason to hold on to
older, more experience employees. How do you meet the needs of the older worker?
 Cross-train them; give them variety and new challenges
 Be alert to the stresses that baby boomers are under
 Be prepared to redesign jobs to accommodate older workers’ skills
 Use mentoring and team-building strategies to improve relationships
EXAMPLES OF AGE BIAS

 Favor younger applicant over older, better qualified ones

 Exclude older workers from important projects and activities

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  Cut them off from job-related education, career development, or promotional
opportunities
 Pressure them into early retirement
 Hire younger people to take over their key responsibilities, assuming that they will retire
in the near future
 Force older employees out of the workforce by making unjustified negative comments in
their performance evaluations
HELP TO CHANGE ATTITUDES TOWARD OLDER WORKERS

 Make a point of discussing age discrimination, older adult issues, and successful
strategies for utilizing older workers more fully with your colleagues in other
organizations, professional associations, and industry groups
 Talk to your older workers regularly about their attitudes toward the job and their plans
for the future. Let them know you will do everything possible to keep them happy where
they are
CONSTITUTIONAL ISSUES OF LOCAL GOVERNMENT EMPLOYMENT

Due Process rights under the 14th Amendment granted to public employees in 1972 by the U.S.
Supreme Court in Board of Regents v Roth.

Equal Protection rights are also provided under the 14th Amendment. In 1976 the Supreme Court
in Washington v. Davis required plaintiffs to show a discriminatory purpose in order to
successfully challenge a written exam, which had a harsh racial impact. This decision suggested
that human resource practices having a disparate impact on protected groups, when challenged
on constitutional grounds, will generally be upheld unless they have a discriminatory intent.

Free Speech – The Supreme Court ruling in Pickering v Board of Education protects public
employee’s freedom of expression as long as it does not impair discipline and harmony in the
workplace, breach confidentiality, impede job performance, or jeopardize close personal loyalty.
Also Rankin v. McPherson provides protection for “whistle blowing” activities.

Freedom of Association – The right to join or not to join organizations (includes unions and
political parties).

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The Right to Privacy –These rights are derived from the 4th Amendment which protects citizens
from unreasonable searches and seizures, and the 5th Amendment protection against self-
incrimination.

Liberty involves many personal issues regarding things such as dress codes and grooming
standards, and residency requirements. Restrictions are allowed as long as they are not arbitrary,
capricious or unfairly enforced.

Personal Liability of Public Officials – A public official who violates either the constitutional or
statutory rights of employees is exposed to personal tort liability and may be personally sued.

10.8 SEXUAL HARASSMENT

 Title XII of the Civil Rights Act of 1964 made sexual harassment discriminatory
 Sexual harassment is illegal and unfair
 Undermines fairness, respect, trust, morale, and productivity
 Anyone can be an instigator or victim
 Sexual harassment may link sex to work-related rewards or penalties or create a hostile
work environment
 Sexual harassment is physical, verbal, or nonverbal sexual conduct that the target does
not want and finds uncomfortable
 Employers can be legally liable unless they have strong, well-publicized sexual
harassment policies that are well publicized
 Employers must follow through with reporting, investigation, and penalties for violators

TWO TYPES OF SEXUAL HARASSMENT

 Quid Pro Quo - Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute "quid pro quo" sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a term or condition
of an individual's employment, or (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting such individual.

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  Hostile Environment - Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute "hostile environment" sexual
harassment when such conduct has the purpose or effect of unreasonably interfering with
an individual's work performance or creating an intimidating, hostile, or offensive
working environment.

10.9 FACTORS DETERMINING HOSTILE ENVIRONMENT

 Whether the conduct was verbal or physical or both

 how frequently it was repeated
 Whether the conduct was hostile or patently offensive
 Whether the alleged harasser was a co worker or supervisor
 Whether others joined in perpetrating the harassment
 Whether the harassment was directed at more than one individual

DISCRIMINATION COMPLAINT STEPS

1. The employee's inquiry is filed with the EEOC or a state commission dealing with human
rights.
2. If the EEOC finds that there may be probable cause-a reasonable possibility of
discrimination, the commission requests the employer’s records.
3. The EEOC arranges a conciliation meeting with the employer to discuss the employee’s
complaint.
4. If there is no satisfactory conciliation agreement, the EEOC may issue a right to sue to
the complainant.

WHY 95% OF PEOPLE DO NOT REPORT HARASSMENT

 The fear of losing one’s job.

 The need for a future job reference.
 The possibility of being considered a troublemaker.
 The assumption that nothing would change if harassment was reported.
 Concerned about being accused of inviting the harassment.

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  A reluctance to draw public attention to private lives.
 The prospect of emotional stress for filing a lawsuit and undergoing long, costly legal
procedures.

10.10 WAYS TO REDUCE SEXUAL HARASSMENT

1. Do not presume guilt

2. Use the reasonable person standard
3. Maintain confidentiality
4. Document all complaints
5. Establish clear policies
6. Provide training, training, training to ALL employees

Reference:
i. http://library.uncg.edu/depts/docs/us/harass.html#Important

ii. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982

iii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iv. Davies .I, African trade unions, 1966.
v. I.L.O, The role of trade unions in developing societies, 1978
vi. Www.Cotu-Kenya.Org/Profile.Htm
vii. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

viii. Tudor Jackson, The Law of Kenya, An Introduction, 2nd edition, Nairobi, 1984.

ix. www.wikipendia.com

x. http://www.uakron.edu/lawrev/robert1.html

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 CHAPTER ELEVEN: EMPLOYMENT CONTRACT

Objectives
By the end of the chapter, the learner should be able to:

a) Explain what is meant by employment contract

b) Explain maternity leave provisions
c) Highlight Ten things to check before signing a contract

A contract of employment is a category of contract used in labour law to attribute right and
responsibilities between parties to a bargain. On the one end stands an "employee" who is
"employed" by an "employer". It has arisen out of the old master-servant law, used before the
20th century. Put generally, the contract of employment denotes a relationship of economic
dependence and social subordination. In the words of the influential labour lawyer Sir Otto
Kahn-Freund,

"The relation between an employer and an isolated employee or worker is typically a relation
between a bearer of power and one who is not a bearer of power. In its inception it is an act of
submission, in its operation it is a condition of subordination, however much the submission and
the subordination may be concealed by the indispensable figment of the legal mind known as the
'contract of employment'. The main object of labour law has been, and... will always be a
countervailing force to counteract the inequality of bargaining power which is inherent and must
be inherent in the employment relationship."

A contract of employment not usually defined to mean the same as a "contract of service". A
contract of service has historically been distinguished from a "contract for services", the
expression altered to imply the dividing line between a person who is "employed" and someone
who is "self employed". The purpose of the dividing line is to attribute rights to some kinds of
people who work from others. This could be the right to a minimum wage, holiday pay, sick

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leave, fair dismissal, a written statement of the contract, the right to organize in a union, and so
on. The assumption is that genuinely self employed people should be able to look after their own
affairs, and therefore work they do for others should not carry with it an obligation to look after
these rights.

In Roman law the equivalent dichotomy was that between locatio conductio operarum and
locatio conductio operis (lit. a hiring contract of services and by services).

The terminology is complicated by the use of many other sorts of contracts involving one person
doing work for another. Instead of being considered an "employee", the individual could be
considered a "worker" (which could mean less employment legislation protection) or as having
an "employment relationship" (which could mean protection somewhere in between) or a
"professional" or a "dependent entrepreneur", and so on. Different countries will take more or
less sophisticated or complicated approaches to the question.

An Employment Contract in Kenya needs to contain the following

(a) The name, age, permanent address and sex of the employee;

(b) The name of the employer;

(c) The job description of the employment;

(d) The date of commencement of the employment;

(e) The form and duration of the contract;

(f) The place of work;

(g) The hours of work;

(h) The remuneration, scale or rate of remuneration, the method of calculating that remuneration
and details of any other benefits;

(i) The intervals at which remuneration is paid; and

(j) the date on which the employee's period of continuous employment began, taking into
account any employment with a previous employer which counts towards that period.

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For more a copy of the Employment Act and other employment related issues such as How to
Make Pay slips, Interview Techniques, How to write reference letters, visit

11.1 MATERNITY LEAVE PROVISIONS

1) A female employee shall be entitled to three months maternity leave with full pay.

(2) On expiry of a female employees maternity leave, the female employee shall have the right to
return to the job which she held immediately prior to her maternity leave or to a reasonably
suitable job on terms and conditions not less favourable than those which would have applied
had she not been on maternity leave.

(3) Where―

(a) the maternity leave has been extended with the consent of employer; or

(b) immediately on expiry of maternity leave before resuming her duties a female employee
proceeds on sick leave or with the consent of the employer on annual leave; compassionate
leave; or any other leave.

the three months maternity leave under subsection (1) shall be deemed to expire on the last day
of such extended leave.

(4) A female employee shall only be entitled to the rights mentioned in subsections (1), (2) and
(3) if she gives not less than seven days notice in advance or a shorter period as may be
reasonable in the circumstances of her intention to proceed on maternity leave on a specific date
and to return to work thereafter.

(5) The notice referred to in subsection (4) shall be in writing.

(6) A female employee who seeks to exercise any of the rights mentioned in this section shall, if
required by the employer, produce a certificate as to her medical condition from a qualified
medical practitioner or midwife.

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(7) No female employee shall forfeit her annual leave entitlement under section 28 on account of
having taken her maternity leave.

(8) A male employee shall be entitled to two weeks paternity leave with full pay.

11.2 TEN THINGS TO CHECK BEFORE SIGNING A CONTRACT

A promising company offers you an employment contract. If the numbers are right, shouldn’t
you just skim the legalese, sign and celebrate?

Not so fast -- you need to read the contract carefully, understand some employment law and have
an attorney review the relevant documents. Here’s a start on what to look for as you launch the
contract review process.

1. It’s the Job Security, Stupid

Protection from involuntary termination is not automatic with employment contracts. “You need
to ask, ‘Am I getting any job security with this agreement?’” says Joshua , a partner at Pryor LLP
in New York City. How do you do that? First of all, “determine whether you’re an at-will or
fixed-term employee,” says Truth Fisher, senior counsel at Gordon & Rees LLP in Miami.
2. Start and End Dates
“You must have a beginning date and an end date for your employment -- otherwise it’s just an
offer letter,” says Alan Lescht, founding partner of Alan Lescht & Associates, PC, in
Washington, DC. Those dates are necessary but not sufficient; read through the contract to
understand all terms of termination. “Employers will often include language that means the
relationship remains at will, which means you still can be terminated for any reason at any time,”
Lescht says. “I’ve had doctors thinking they’ve locked in a three-year term, but they missed
language that lets the employer terminate them with 30 or 60 days notice.”
3.Cause for Termination
“The employee wants just-cause termination,” Lescht says. “You don’t want the employer to
have wide discretion in termination.”
4. Compensation and Benefits
What’s your base pay? Is the bonus guaranteed or discretionary? Who decides whether you’ve
met the criteria for a performance-based bonus? How objective are those criteria? Are benefits

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guaranteed or changeable at the whim of the employer? “Make sure all types of compensation
are detailed,” Fisher says.
5. Job Description
If you’re agreeing to be locked into a job for a period of years, be sure it’s the job you think it is.
“I would expect to have my title and role spelled out, and what’s expected of me,” Fisher says.
6. Moonlighting
If you plan to do any work on the side, be sure the contract doesn’t prohibit you from doing so.
“Especially in this economy, a lot of people have more than one job, and a lot of employers will
have an exclusive employment provision,” Fisher says
7. Copyrights, Inventions and the Like
Your employer may make a claim to the fruits of your creative efforts, even if you labor on a
side project off your employer’s premises and outside of work hours. “If you invent anything
during your employment, the intellectual property generally belongs to the employer,” Fisher
says. What about that brilliant invention in your garage that’s nearly complete when you sign
with a new employer? “You might want to highlight anything you’re already working on, and
carve that out,” Zuckerberg says.
8. Nocompete Clause
Beware of signing any agreement that bars you from working for a competitor for a considerable
period after separation. “Employees have to make sure they don’t make themselves
unemployable in the future,” Fisher says. Still, the courts may not look kindly on a contract of
employment that bans you from working practically anywhere, forever. “To be enforceable,
noncompetes must have a reasonable term and a reasonable geographic restriction,” Lescht says.
9. Nonsolicitation of Clients and Employees
Look for post-employment restrictions on your ability to do business with people you’ve worked
with during the contract period. “There may be a prohibition of stealing employees,” Lescht
says. “To be enforceable, the term has to be reasonable -- probably one or two years.”
10. Sale of Employer
“What happens if the company is sold -- does the employment contract terminate or remain in
force?” asks Alyson Brown, a partner at Clouse Dunn Khoshbin LLP in Dallas.
Can you really challenge the terms of an employment contract? Yes and a reputable company
should respect you for it. “Nine times out of 10, it’s worth asking about stuff you have doubts

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about,” Zuckerberg says.
These 10 considerations are by no means an exhaustive list, and there are innumerable state and
local variations in employment law. So consult with a qualified attorney before you sign
anything.

Review Questions

i. What are some of the things one should consider before singing an employment
contract?
ii. Describe other leaves that an employee should be entitled to.
iii. explain the contents of an employment contract.

Reference:
i. http://library.uncg.edu/depts/docs/us/harass.html#Important

ii. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982

iii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iv. Davies .I, African trade unions, 1966.
v. I.L.O, The role of trade unions in developing societies, 1978
vi. Www.Cotu-Kenya.Org/Profile.Htm
vii. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

viii. Tudor Jackson, The Law of Kenya, An Introduction, 2nd edition, Nairobi, 1984.

ix. www.wikipendia.com

x. http://www.uakron.edu/lawrev/robert1.html

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 CHAPTER TWELVE: TRANSNATIONAL LABOUR ISSUES

Objectives
By the end of the chapter, the learner should be able to:

a) List and explain transnational labour issues

b) Explain the role of International labour organization

One of the crucial concerns of workers and those who believe that labor rights are important, is
that in a globalizing economy, common social standards ought to support economic development
in common markets. However, there is nothing in the way of international enforcement of labor
rights, with the notable exception of labor law within the European Union. At the Doha round of
trade talks through the World Trade Organization one of the items for discussion was the
inclusion of some kind of minimum standard of worker protection. The chief question is
whether, with the breaking down of trade barriers in the international economy, while this can
benefit consumers it can also make the ability of multinational companies to bargain down wage
costs even greater, in wealthier Western countries and developing nations alike. The ability of
corporations to shift their supply chains from one country to another with relative ease could be
the starting gun for a "regulatory race to the bottom", whereby nation states are forced into a
merciless downward spiral, not only slashing tax rates and public services with it but also laws
that in the short term cost employers money. Countries are forced to follow suit, on this view,
because should they not foreign investment will dry up, move places with lower "burdens" and
leave more people jobless and poor. This argument is by no means uncontested. The opposing
view suggests that free competition for capital investment between different countries increases
the dynamic efficiency of the market place. Faced with the discipline that markets enforce,
countries are incentivized to invest in education, training, and skills in their workforce to obtain a
comparative advantage. Government initiative is spurred, because rational long term investment
will be perceived as the better choice to increasing regulation. This theory concludes that an

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emphasis on deregulation is more beneficial than not. That said, neither the International Labor
Organization (see below), nor the European Union takes this view.

12.1 INTERNATIONAL LABOUR ORGANIZATION

The International Labour Organization (ILO), whose headquarters are in Geneva, is one of the
oldest surviving international bodies, and the only surviving international body set up at the time
of the League of Nations following the First World War. Its guiding principle is that "labour is
not a commodity" to be traded in the same way as goods, services or capital, and that human
dignity demands equality of treatment and fairness in dealing within the workplace. The ILO has
drawn up numerous conventions on what ought to be the labour standards adopted by countries
party to it. Countries are then obliged to ratify the Conventions in their own national law.
However, there is no enforcement of this, and in practice most conventions are not agreed to,
even if they are adhered to.

12.2 DISPUTES – INTERNATIONAL

Kenya served as an important mediator in brokering Sudan's north-south separation in February

2005; Kenya provides shelter to almost a quarter of a million refugees, including Ugandans who
flee across the border periodically to seek protection from Lord's Resistance Army (LRA) rebels;
Kenya works hard to prevent the clan and militia fighting in Somalia from spreading across the
border, which has long been open to nomadic pastoralists; the boundary that separates Kenya's
and Sudan's sovereignty is unclear in the "Ilemi Triangle," which Kenya has administered since
colonial times.

Refugees and internally displaced persons

Refugees (country of origin): 150,459 (Somalia), 76,646 (Sudan), 14,862 (Ethiopia)

IDPs: 431,150 (KANU attacks on opposition tribal groups in 1990s) (2006)

12.3 TRAFFICKING IN PERSONS

Kenya is a source, transit and destination country for men, women and children trafficked for
forced labour and sexual exploitation – children are trafficked within the country for domestic

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servitude, street vending, agricultural labour and sexual exploitation; men, women and girls are
trafficked to the Middle East, other African nations, Western Europe and North America for
domestic servitude,

12.4 INTERVENTIONS TO REHABILITATE AND REINTEGRATE VICTIMS OF

HUMAN TRAFFICKING AND FORCED LABOUR
1. Helping Victims. Rehabilitation programmes for victims of human trafficking and forced
labour are not clear on the kind of shelters to be provided for trafficked women, men and
children, the duration of stay within the shelters and when to commence their reintegration
process with the families and communities. The impact of codes of conduct in addressing
domestic/internal trafficking has not been ascertained and, generally, the codes have not been
properly introduced in many countries in the region.

2. Reintegration with Families and Communities

. Any meaningful re-integration interventions should include a component addressing the

push and pull factors contributing to trafficking. Some families who are in similar or worse
situations to those who traffic have been found not to succumb to traffickers. There is need to
understand their resilient characteristics through research and promote these qualities among
other vulnerable families and groups. Victims of trafficking often face isolation and lack
acceptance within their families and in the wider community upon reintegration. Strategies to
help such families and communities to cope with victims of trafficking and accept them are
required.

3. Directing Advocacy and Public Awareness. In most cases, information on human trafficking
reaching the public is through media reports, which often dwell on startling cases of trafficking
and forced labour. Though media reports are vital in advocacy and awareness-raising work, they
have sometimes contributed to the stigmatization of victims. There is need for civil society
organisations to lead on public awareness efforts and collaborate with the media to reduce the
sensationalisation of human trafficking reports . Campaigns against human trafficking and forced
labour are often hampered by the technical and official language used in conventions and
protocols on human rights. Such instruments need to be translated into local languages with clear
messages that debunk the ‘myth’ of a ‘better life’ in urban areas and abroad. Press conferences,

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local documentaries and radio broadcasts need to be organized. Teachers need to be trained as
well as child participation promoted through organizing nationwide school contests.

4. Interventions by the Civil Society Organisations. Civil society organisations that address
trafficking and forced labour work with victims in catchment areas have gained understanding on
the trafficking patterns and the reasons for trafficking. These experiences should be used to re-
focus attention to those interventions that address the root causes of human trafficking and forced
labour.

5. Experience Sharing, Capacity-Building, Collaboration and Networking . Some organisations

have addressed the problem of human trafficking and forced labour for a long time. Their
knowledge and experience can be tapped into through training, sharing experiences and
knowledge, exchange visits, collaboration and the pooling of resources. Efforts to combat human
trafficking and forced labour can only yield impact if they are well coordinated amongst the non-
governmental organisations, government departments and inter-governmental bodies. Such
collaboration needs adequate resources and be coordinated by a strong lead agency for
sustainability

1. Safer opportunities to discourage human trafficking and forced labour

. People at risk of trafficking and forced labour must be offered safer opportunities to improve
their lives. Hence, awareness-raising about the risks of trafficking should be matched with
concrete and attractive opportunities that are better than those offered by the traffickers.
Examples of such opportunities include education and vocational training.

. People are trafficked either because they cannot survive in their current situation at home or
because they hope for something better. Either way, practical solutions need to be found to
respond to these aspirations. . Migration is necessary for people and governments as they
respond to different needs. Hence, measures should be taken to ease the requirements and ensure
that migration is safe. In particular, governments of sending countries need to negotiate safety
measures for migrants with the destination countries.

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2. Empowering Local Communities to Protect Children. Local communities should be
empowered technically and financially to care for and protect their children. Millions of children
are left without parents and main carers due to HIV/Aids and conflicts, while other children have
parents who lack the capacity to provide for them. Either way,

guardians should be supported to take care of such children. Although some communities are
aware that they are losing children to trafficking and forced labour, they lack the capacity to take
organized action. There is a need to form child protection committees drawing members from the
community and service providers in the area to monitor the situation of vulnerable children and
protect them. Ensuring admission and retention of children at school improves protection and
monitoring efforts. It also reduces logistical costs of empowering communities and children with
information on the risks of trafficking and forced labour. Hence, the school and learning
environment should be improved in order to reduce vulnerability of children and promote
retention. Interventions on human trafficking at community level fail to achieve impact because
of size, lack of community participation and ownership, and failure by governments to
coordinate the efforts. There is need for government participation in interventions aimed at
supporting communities and victims as well as involvement of communities in the design and
implementation of such interventions and programmes.

3. Working with Governments and Regional Arrangements

. There is a need to initiate and strengthen cooperation within government departments charged
with the responsibility of addressing aspects of human trafficking and forced labour. . Action on
human trafficking needs to be integrated as part of governments’ responsibility for protecting
human rights. However, governments lack resources for effective enforcement of laws and
implementation of protection efforts against human trafficking and forced labour. The
international community should support governments with technical and financial resources to
address the problem. Regional agreements and arrangements such as the ECOWAS Plan of
Action are useful benchmarks in the fight against human trafficking and forced labour. However,
their effectiveness is dependent on sufficient monitoring and pressure from civil society
organisations to ensure that governments implement such agreements and make the
arrangements effective. Governments often yield to peer pressure offered by regional agreements

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and arrangements. Non-governmental organisations should use such agreements and
arrangements as opportunities to offer governments positive suggestions for action.

Bilateral agreements have proven their potential in dealing with cross-border trafficking

operations. Such agreements should be encouraged.

4. Trafficking as a Moving Target. Human trafficking and forced labour are fluid and dynamic.
There exists the ‘push down -pop up’ phenomenon where when action is taken in one area,
trafficking changes its pattern and mode and re-emerges elsewhere. There is need to create
strong regional mechanisms to facilitate communication between government departments and
civil society organisations to ensure timely warning and alert systems on emerging dimensions
and environments where trafficking is taking place. Trafficking occurs within and across borders.
There is a need to strengthen existing collaborations while at the same time creating new ones in
order to keep pace with the changing patterns of trafficking and forced labour, to effectively
tackle this practice at its source, transit and destination. . Reliable and up-to-date data and
information on trafficking and forced labour is difficult to find. There is a need to find ways of
updating and sharing available information to set up and improve the knowledge base.

5. Enforcement of Laws against Trafficking and Forced Labour . Removing the impunity of
traffickers is important, but increasing prosecutions may not be the approach that offers best
results. Deterrent sentences and penalties should be accompanied by interventions addressing the
push factors in home countries and other aspects of demand for trafficked people. Penalties and
sentences given to perpetrators of human trafficking and forced labour have not been deterrent
enough. There is need to amend existing laws to ensure that sentences match the severity of the
crime. Trafficking and forced labour is an illicit and dangerous practice both for the victims and
witnesses. The likelihood of cases being brought to light is directly linked to the protection and
support offered to trafficking victims and informants. Similarly, victims and those that give
evidence need assurances that they will not be immediately deported. Informants also need
assurances that their identities will not be revealed. Laws are weak. In fact, criminalisation of
aspects of trafficking is scattered across penal codes, labour and immigration laws. Sealing off
loopholes across national laws is necessary.

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6. Targeting specific Intermediaries. There are many sectors that contribute, knowingly or
unknowingly, to trafficking and forced labour. Transport companies, travel agents, airlines,
hotels and other sectors contribute in facilitating the existence of human trafficking. These
intermediaries need to be targeted individually and collectively to get their co-operation and
support. For example:

 Transport operators can be educated on what to look out for in order to spot cases of
human trafficking and alert authorities accordingly.
 Airlines can inform potential users of women and children in forced prostitution of the
crime and risks.
 Hotels can implement codes of conduct to prevent themselves from being used as
places of exploitation.

 Those who provide essential support mechanisms as part of their services can be
helped to see potential risks of being part of the trafficking process.

12.5 ILLICIT DRUGS

There's widespread harvesting of small plots of marijuana; transit country for South Asian heroin
destined for Europe and North America; Indian methaqualone also transits on way to South
Africa; significant potential for money-laundering activity given the country's status as a regional
financial centre; massive corruption and relatively high levels of narcotics-associated activities.

Achievements so far:

1. Legal framework- a draft counter trafficking bill awaits approval by the speaker of the
national assembly for publication.
2. National plan of action- a draft of action for combating human trafficking 2008-2013 has
been forwarded to the national steering committee, chaired by the permanent secretary
ministry of gender and children services.
3. Capacity building- IOM provided support to the ministry of labour and human resource
development to set up a user friendly web site to display pre-departure and post arrival
information on labour migrants and a data base system capturing and analyzing labour
migrated information. IOM has also been involved in training and capacity building for

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 officers from government, non governmental organisations and Kenya association of
private employment agencies (KAPEA) on managing labour migration, prevention of
human trafficking and providing assistance to victims of trafficking.
4. Awareness raising and public information campaigns. As a preventive measure, IOM has
engaged in continuous information and awareness raising activities in both print and
electronic media and targeted community outreach events.
5. Direct assistance to victims- in September 2008. IOM entered into cooperation agreement
with a local partner the centre for domestic training and development (CDTD), for the
establishment of a shelter to provide assistance to trafficked persons.
6. Cooperation and coordination. IOM has established a counter trafficking stakeholders
network that meets periodically and brings together government officials, NGOs,
international organizations and donors.

Review Questions

1. Interventions can the government of Kenya take to rehabilitate and reintegrate

victims of human trafficking and forced labour.

2. Explain the major achievements realized of late in the fight against human
trafficking and forced labour.

3. Discuss the role played by the international labour organization.

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Reference:
i. http://library.uncg.edu/depts/docs/us/harass.html#Important

ii. P.I. COATES, Etal, Trade Unions in Britain, Britain. 1982

iii. L.P.A Aluchio, trade union in Kenya, development and system of industrial relations,
Nairobi. 1998.
iv. Davies .I, African trade unions, 1966.
v. I.L.O, The role of trade unions in developing societies, 1978
vi. Www.Cotu-Kenya.Org/Profile.Htm
vii. Saeed R Cocker, The Kenya Industrial Court, Development and Practice, Nairobi 1981

viii. Tudor Jackson, The Law of Kenya, An Introduction, 2nd edition, Nairobi, 1984.

123
SAMPLE PAPERS

SCHOOL OF BUSINESS AND PUBLIC MANAGEMENT

DEPARTMENT OF MANAGEMENT

DBM1312: LABOUR LAWS

INSTRUCTIONS: ATTEMPT ALL QUESTIONS:

1. Discuss the impact of the economy on trade unions in Kenya (20 marks)

2. Explain how collective bargaining operates in Kenya (20 marks)

3. What role does the government and the industrial court play in negotiation procedures?
(20 marks)

4. Explain the role played by employers’ federations in Kenya (20 marks)

5. Describe the various forms of collective bargaining (20 marks)

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PAPER 2

SCHOOL OF BUSINESS AND PUBLIC MANAGEMENT

DEPARTMENT OF MANAGEMENT

DBM1312: LABOUR LAWS

INSTRUCTIONS: ATTEMPT ALL QUESTIONS:

1. Explain the various interventions taken by the Kenyan government in fighting

child labor and human trafficking. (20 marks)

2. Besides strikes what other industrial actions can employees take against their
employers? (20 marks)

3. Discuss the various skills that a manager should have if they are to engage in
negotiations. (20 marks)

4. Discuss the negative disciplinary actions that can be taken against an employee.
(20 marks)

5. Briefly explain the feature of .trade union organisation in Kenya (20 marks)

125