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CENTRAL MANAGEMENT CENTRE

STANDARD LECTURE NOTES

LABOUR AND INDUSTRIAL LAW

FOR
DIPLOMA IN HUMAN RESOURCE
MANAGEMENT

MODULE 2

AIRADS “Where quality is nurtured”

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TRAINING RESEARCH
DEVELOPMENT
The institute is approved by ministry of Science and Technology Reg no. MOST/PC/1049/07, Ministry of education Reg no P/TC/155/2007 Ministry of health
Pharmacy and Poisons Board Reg No.PPB/COL/013/07 and Kenya national Examination Council with centre number 509113 (technical) and 50903(ECDE)

MESSAGE FROM THE CHAIRMAN & MANAGING DIRECTOR.

I would like to take this chance to express my sincere gratitude to all the staffs who have
been involved in developing these standard lecture notes to be used in all our campuses.

The standard lecture notes are part of our bigger efforts to ensure total quality management
in our delivery of service. We anticipate that the standard lecture notes will enhance the
delivery of service by the lecturers .Students who have used standard lecture notes in the
past have shown remarkable performance in the internal and national examinations

I wish to urge all the lecturers and students to make maximal use of these lecture notes.

Positive and negative feedback are most welcome. We shall Endeavour to continuously
improve these manuscripts with the final intention of reaching international standard based
on your feedback.

Yours faithfully,

Dr. Noah Chepkech, Bpharm (UON), Dphil (SA), MPSK, Rh.P.

CHAIRMAN& MANAGING DIRECTOR

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 TABLE OF CONTENTS

1. INTRODUCTION

2. CONTRACT OF EMPLOYMENT

3. INDUSTRIAL COURT

4. LAW RELATING TO TRADE UNIONS

5. LAW RELATING TO TRADE DISPUTES

6. LAW RELATING TO REMUNERATION OF WORKERS

7. LAW RELATING TO WORKMENS COMPENSATION

8. LAW RELATING TO HEALTH AND SAFETY AT WORK

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 CHAPTER 1

INTRODUCTION TO LABOUR LAW

Specific objectives
By the end of this topic, the trainee should be able to:
a) Explain the meaning of labour law
b) Discuss the Historical background of labour law
c) Explain the sources of labour law
d) Highlight the case law and explain in detail

LABOUR AND INDUSTRIAL LAW

Labour law is the law that governs work relations between two parties i.e. employer being the person who engages
the services of another to perform a particular and agreed upon service s in exchange for a money consideration
called a wage and the other party i.e. Employee being the person whose service is engaged. It is also called
employment laws.

2.0 Sources of labour law

2.1 Statutes – These are laws enacted by parliament to govern specific areas of organization and operation the nations
with regard to labour law. Specific statutes enacted include:
Employment Act Cap 226
Regulation of wages and conditions of employment Act Cap 229
The factories Act Cap 514
The workmen‘s compensation Act Cap 236
The pension Act Cap 189
The trade union Act Cap 233
The trade disputes Act Cap 234

2.2 Case law – These are judgment s and decisions that define and interpret ambiguous sections of the statutes as to
form a law. These decisions are at per with statutes.

2.3International law- These are laws with respect to labour or by regional bodies such as COMESA and by
UN nation entities. These laws fill the gap where domestic legislation is lacking and will normally be recognized if it
has been ratified by the country. Laws set by these institutions also serve to offer best practices by recommending
ideal laws for the protection of the rights of the workers and to a limited intent the employer. Most corporative
entitles who seek recognition on an international platform will usually apply international standards law s and

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regulations. In their labour relations so as to gain acceptance with the broader community and to try to be a
market leader in whatever area they trade.

2.4 Common law – It’s the law that was in operation I England in 1896 that relates to labour law and for which
there is no local legislation.
2.5 Regulations and codes of practice
These are normally set either by the employer, a profession, a trade group or a regulating body for a particular trade.
Such codes of practices are accepted by the affected group and have a bearing on the labour relations equal in
force to the law.

3.0 Who is an employee?

The employment Act Cap 226 defines an employee as an individual employed for wages or salary and includes an
apprentice and an indentured learner. Though problems arise in differentiating between employees and self
employed workers.
Employees usually work under a contract for services. It is important in law to determine who is an employee because
certain rights and

Privileges accrue only to employees e.g. leave allowance may only accrue to an employee.
In real life the live between the two is occasionally blurred and the courts have had to determine when one is an
employee or an independent contractor.
The courts have over the years developed several tests for determining who is an employee.

These tests are:-

3.1 Control test
It is the when and how tests. The court asks who is in control of what the workers did and who controls when and how
he did it. The more control the employer has over the employee or work the more likely it was the worker was an
employee.

Case law one

Walker verses crystal palace football club (1910)
In this case issue was whether a professional footballer playing for a football club was an employee.
The court held that he was an employee because he was subject to the overall control of his club with regard to
his training schedule, displace and method of play.

Case law two

Hit colic verses Post office (1980)
Hit colic served the post office, exercised some control over his activities regarding the sale of stamps but he
could delegate his work to others and took the risk of profit or loss .
He controlled his hours of work and determined the amount of stamps to keep in stock. The court held that he was an
independent contractor as he had immense control over, the activities of the sub Post Office.

3.2 Integration test

Test examining how far the worker was integrated into the daily running of the business.
It assesses whether the workers work was an integral part of the business if so then the worker was an employee ,
but where the workers work was an accessory to the business if so then the work was an employer, but where the
workers work as an accessory to the success of the business then the worker was an independent contractor. This
test was found to be problematic as it call for a value judgment by the court without explaining the steps
necessary in arriving at the judgment . This test therefore, was not used for long.

3.3 Multiple or economic reality test.

Case law-I t was set in the case of ready missed concrete (south East) limited verses minister of pension and national
insurance (1968).

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In these case, the company ready mixed concrete dismissed its drivers and then contracted the drivers and their
lorries under a contract which stated that the drivers had to:
Wear company uniform.

Allow the company to use the Lorries when required.

Only use the Lorries for company business.
Obey orders from the foreman and it also stated that at some point in the future the drivers had to sell the lorries
back to the company at market value.
The contract also provided that the drivers had to maintain the lorries at their own expenses, pay all running
expenses and had to be able to provide substitutes drivers when they were unable to work.
The drivers paid their own tax and national insurance contributions, they had no set hours of work or set meal rates.
They were responsible for planning routes and schedules of work.

The court held:

That the drivers were independent contractors whereas some parts of the contract such as them having to follow
orders made them appear to be employees , the court was
swayed by the fact that they could use substitute drivers and the fact that they paid their own taxes to make the
funding .
The court found that those were things that are and could only do if they were self employed. The court set the
test against three questions:-

Did the servant agree to provide his work in consideration for a wage or other remuneration?
Did he agree expressly or implied to be under the other persons control to a sufficient degree as to make the
other person his master?
Are all parts of contract consistent with it being of service?
If all these questions are yes – Then he/she is an employee, if the answer is No then the person is an independent
contractor.

3.4 Business /Entrepreneurial test

It looks at where the worker is running his won business rather than working on behalf of the employer. The court will
normally ask the following questions:
Who runs the risk of loosing money if the business is not successful?
Has the worker put any capital into the business?
Is the worker likely to make any profit?
Did the worker provide his own helper?
Was the worker able to profit forming the successful management of the businesses?
If the answer to these questions panted towards the worker being in business for himself, he is classed as being
and independent contractor. The likelihood of a self employed person usually depends on his business making a
profit and this is the basis of the business test.

Case law one

In the case of Lee verses Chung (1990)
In this case Mr. Lee a stonemason was seriously injured when working on Mr. Chung construction. He claimed that
as an employee he was entitled to damages for the injuries suffered and sick pay. Chung stated that he was not an
employee but a casual worker
Chung provided the tools and equipment and directed Lee on which areas of the site he should complete the work. Mr.
Lee was not supervised but was paid according to the work that he did and was expected to be on site everyday
when work was available .

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 He was allowed to work for other people and although he always did this and gave priority to Mr. Chung. The
court balanced the facts and taking into account all the foregoing considerations a picture emerges of a skilled
artisan earning his living by working for more that one employee and not as a small businessman venturing into
business on his own account as an independent contractor with all his attendant risks. The court confirmed that
Mr. Lee was an employee.
Case law two.
Market investigations verses minister of social security (1969)
A group of women were employed as part time market researchers. They wee able to choose their hours of work
but had to work to a set pattern, and were told which questions to ask, and where to ask them.
Held : They were employees as the employer had control over their work, they were not in business on their own
account.

3.5 Mutuality of obligation test

It is used to determine the status of a part time, casual or agency workers. The test is whether the employer is under
obligation to provide work and whether the worker is under obligation to accept work if offered.

Case law
In the case of O’ Kelly verses Trust house Forte PLC (1983)
In this case, a group of workers waited table on a regular casual basis. They claimed they have been unfairly
dismissed. The hotel said they were not employed and so could not make such a claim.
The court noted amongst other things that the workers had tax and national insurance deductions made from their
wages. They also earned leave allowance and his made them appear to be employees. The court was however, swayed
by the fact that the workers did not receive regular wages, sick pay or pension entitlement. The court in findings that
they were not employees stated that there was no single feature to be taken into account but on a balance of facts,
the workers were not employees as their was no mutuality of obligation.

FUNCTIONS OF LABOUR LAW

i. Labour law harmonizes and enhances their audiences of right laws and thus ensuring conformance to
international standards.
ii. Labour law assist in defining the boundaries, duties rights and responsibilities of each party (employer
& employee)
iii. It ensures eliminating of unfair labour practices on the part of the employer e.g. child labour.
iv. It helps fill the gap where domestic legislations are lacking by recommending ID loss.
v. Labour law assist in address of issues like dismissal and misunderstanding between employers and
employees.
vi. I t engage employer and employee on right industrial labour regulations and other relevant issue.
vii. It keep member informed on new development in labour laws by caring out publication.
viii. It promotes collective bargaining or various levels with an industry.

ix. It helps define the judgment and decisions that interprets the ambiguous section of the statutes.
x. It advice employers, employees and the various associations on complex legal provisions.
xi. It governs work relations between employees and employer.

Historical background of colonial labour law in Kenya

It can be cleared back to 1900 during colonial government which needed labour of its economic activities in the
manufacturing and agricultural sector.
They introduced hut tax through the 1901 hut tax ordinance to induce and mobilized man to seek job so as to
pay the tax.
During the second world war Kenya s were recruited to fit in the war which exposed them to other human
rights at war and increase awareness of workers and their economic plight.

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In 1940 workers started forming association during pressure like poor working conditions, low wages ,
discrimination, and long working hours .
In 1945 the Africans begun to form trade unions as the labour party came into force in Britain so as to facilitate
unionism.
1st four unions were:-
The African Union Congress (1949) to organize strike for better terms.
Kenya Federation of registered Trade Unions (K.F.R.T.) 1952
Kenya Work Congress

Kenya Federation of Labour.

In 1949 the trade union regulation was introduced “The ordinance number 35 of 1949” required workers
organization to look foe registration. Ordinance came with a compulsory labour act and recruitment order which
empowered the government to lie liberalization .
In 1952 state of emergence (most Political and trade union leaders were detained leaving the only voice as
F.K.E.
In 1953 Tom Mboya was the secretary general upon independence , Tom Mboya organized the signing of the
workers charter.
I 1963 which had all the English statutes and the basis of labor Law e.g. Trade dispute act cap 234, Trade Union act
Cap 233 and employment act Cap 226.

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 CHAPTER 2
CONTRACT OF EMPOLYMENT
Specific objectives:

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

a) Explain the meaning of employment
b) Explain the formation of contract of employment
c) Explain the contents of contract of employment
d) Discuss parties to contract of employment
e) Discuss the termination of contract of employment
f) Discuss the content of the Charter

Definition
A contract is an agreement reached between two parties governing the labour relationship. Every contract of service
for a period of three months must be in writing.
The contract may have expressed or implied terms.

Expressed term
They are written terms and the given information on matters pertaining pay, holiday entitlement , hours of work,
job title and description of the task to be performed, the rare of pay the dare when employee started work. Any
notice requirement restraint of trade, confidentially, flexibility and mobility of workers.
Any breach of expressed terms by the employee is ground for dismissal.

The terms the parties specifically agree on

Terms that the parties either assume the time of making the agreement or that they do not bother to function
about or terms that are not usually accepted in that trade.
An employee is safer with a written coz it defines the terms right and conditions of theta employment.
Content of employment contract
Names of the party’s employer and employees
Date on which the employment began.
The scheme or rate of print
Te intervals which prints will be made
Terms and conditions regarding homes of work
Details regarding holidays and holidays pay
Details regarding sickness, injury and sick pay
Pension and pension schemes provisions
Notice periods
The length of the contract

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The place of work
Any collection Agreement that may affect the employment
A note concerning diplomacy procedure
The position to which the is employed.

This must be signed by both parties. It may also contain clauses relating to restraints of trade
Confidentiality
Mobility flexibility
Dismissal of employee
Damages by employer
Housing :- The employment Act provides that every employee has a right to reasonable housing and
accommodation. The having study be near the work place. \the act itself does not define what reasonable
housing amounts to but gives the lob our officer the power to inspect and declare the housing fit for employee.
Where the employer is not providing housing, he has to provide the employee with housing allowance to allow the
employee to provide himself housing.
The employment Act require of specific sums are rent but it does not specify what this means
The regulation of wages and conditions Act provides that minimum allowance should be 11/2 times the amount an
employee is allowed to deduct from the housing allowance of an employee who is housed.
Employees entitled to housing and live in their own housing are paid an amount called owner occupies.
Leave and Rest – The employees have a right to leave and rest. There are several categories provided under the
employment Act and the regulation of wages Act.
i. Annual leave - It’s earned after the first 12 months of continuous service for the same employer. Every
employee is entitled to 21 days of working days per year. A contract of service may however grant a longer
annual leave period.
ii. Sick leave: - An employee who is sick and unable to go to work is entitled to sick leave which is not
deductible from the annual leave days. The maximum period is 30 days on full pay and 15 days on half pay.
The right to sick leave is earned after 2 months of continuous service with the same employer. The employer
must tend a medical certificate as proof of illness.
iii. Maternity leave: every pregnant woman is entitled to 2 months maternity leave and must forfeit her annual
leave in the same year.
iv. Companionate leave – Provided for in the regulation of wages. It s granted to an employee who needs to
attend to personal misfortunes e.g. death, accidents or sickness. Any leave day granted are deducted from the
annual leave.

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 v. Weekly rest and public holidays- Very employee is entitled to at least one day rest with full pay in a week
Every employee is entitled to rest on all gazette public holidays.

Water: - The employee Act requires the employer to provide adequate supply of dean water at the work place
and next to any housing area provided by an employer.
Medical Attention- the employer is under a duty to ensure that medical attention is given when he notices that
an employer is sick its his duty to ensure he establishes ways in which any sickness is brought to his attention
The act provides that a nurse should be on duty to provide treatment even at night at the working place.
An employer should cater unto specific level for the pay of its employees hospital ills.
Most companies ensure that the employees who fall sick are treated unto the unexpected level.
Health and safety – The factories Act prohibits overcrowding at the workplace. The employer should ensure
cleanliness enough air, lighting and sanitary continence and drainage of the factory floors. The employees must
protect the employees against any dangerous machines, equipment or parts and from dangerous substance e.g.
fumes, gases and explosives or fines.
The employees not experienced in working with the machines must be trained properly to avoid injuries to them
and other.
The employee should provide adequate clean drinking water, sassing and facilities. The employer should
have adequate first Aid facilities.
Workmen’s compensations – the workman compensation Act requires that an employer of a person injured or
called in the course of his work compensate the employee or his dependants. This applies only to workmen and
excludes persons who earn over Ksh 24,000 a year, causal workers, independent contraction and members of the
disciplined forces.
The compensating is calculated against the workers wages and the level on incapacity.
 For death 41 months salary or Ksh 2,000 whichever is lower
 Permanent incapacity 34 months salary or Ksh 38,000 whichever is lower.
 Partial permanent incapacity - such a percentage of 54 months salary as per the incapacity assessed
but not >38,000/=
 Temporary incapacity- Half of the month’s loss for the period of loss.
 Occupational diseases- 6000/= for surgery, 4000/= for medicines and supplies and 1000/= for transport.
 The claims are made by filling form by a medical officer assesses due cheques are collected from
the labour officer their claims do not exclude actions in tort for negligence.
Implied terms
These are terms not expressly stared in the contract of service and may be implied into the contract for the basis
of three major consideration.
The parties would have included them as they take time to think about.
They are matters the parties took for granted at the time of making the contract.
They are terms which they practice and customs of trade , business or profession accept and therefore bind
the partner.
The following duties are implied in all contract of employment.
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Implied duties with respect to the employer:

1. To pay wages
The employer must pay the agreed wages or in the absent of expressed agreement a reasonable wage for the
service rendered . No duty to pay where there is any work done due to no fail on the part of the employer.

Case law
Browning vs. Cumin valley collieries 1926
A mine was forces to close down when parts of it became unsafe due to flooding, enhance there were no duty to
pay the workers as the closure was beyond the control of the money owners.

There is general duty on part of

2. To provide work employer to provide work.
Case law
Coller Vs Sunday Referee publishing company limited
The judge was quoted saying “provided I pay my cook all wages regularly she cannot complain if I choose to
take any of my meals out”

i. Where the employee works in commission basis.

ii. Where the employee need to work on regular basis to improve his skill.
iii. Where failure to provide work would lead to loss of reputation or publicity.
3. To treat employee with mutual trust and confidence.
The employer shall not do anything that likely to destroy or seriously damage the relationship of trust and confidence
between employer and employee.
Case law
Lewis vs. Moonwort garage Limited
An employee was demoted without warning he lost his office and was told to accept a cut in wages. He continued to
work for the garage but his employer was threatening him for dismissal more than once.
The behavour amounted to breach of implied duty that the employer should treat his employee with respect.

4. To take reasonable care for the safety of employees employer have a statutory duty to provide the safe system
of work.
5. To reimburse (to pay money back) the employee for all expenses incurred while at work.

6. Right certificate of service.

Implied terms with respect to the employee.
1. be ready and willing to work.
2. Use reasonable care and skills at work and must not be negligent and must be reasonably competent.
Case law
Janata Bank Vs Ahmed 1981

Mr. Ahmed as a bank manager severally gave loans to person who was of great bad debts.
The bank dismissed him for negligence and was sued for unlawful dismissal.
Held
Ahmed had fail to exercise the proper care and skill required under his contract of employment
3. To obey reasonable and lawful orders from the master failure to do so can lead t dismissal without notice.
Case Law
Pepper Vs Webb.
A gardener who had a record of arrogance was asked to put some plants into the garden when he was just
about to go home and he refuse saying “ I could ‘not care less about your blood green house and sodding garden”
he was dismissed.

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Held.
His dismissal was just fine because he did not obey a lawful and reasonable order.
His behavior made him impossible for employer to continue to employ him.
4. To act in good faith, be faithful too your employer. Other than the contract expressed implied terms, work rules
customs and practice and statutes also guide service relationship.

SPECIAL CATEGORIES OF WORKERS

These are workers who may qualify both as employers or employees. They include:-
Directors
Partners
Temporary agency workers

1. Directors
It is possible for executive directors to be employees. While non executive directors are self employed
An executive director is one involved in daily running of the business while non-executive director only has advisable
duties like board of directors.
2. Partners
Partners are self employed workers who receive payment depended on the profit of the firm. Salaried partners may
also be classified as salary employees.
3. Temporary Agency workers
These are works placed with and employer by employment agency and the law requires that an agency declared
whether the worker is self employed or employee.
The worker may or may not have employee stature.
Workers in probation
These are termed a employees even though their term of contract have not been confirmed . An employer
however has a right to dismiss a worker on probation without notice or without benefits.
4. Employment of women and Juveniles Juveniles (children)
No child is to be employed in an industrial undertaking unless it is taken as apprentice or indentured learner.
The terms of such engagement of a minor must be clearly recorded and agreed upon between guardian and the
trainer, the contract must remain verbal.
The child cannot be bound to long term engagement as the child has the capacity to contract.
No child may be employed in industrial undertaking in attendance on machinery. Or open cast working or sub-
surface. Working entered into by means of shaft/shift.
Any employer who employs any juvenile shall maintain a register containing the particularly of that child. i.e. Date
of birth or age of the child.
i) Date of entry into and learning employment.

WOMAN
No woman shall be employed between 6.3- pm and 6.30 am in an industrial undertaking unless:-
i. It is a case of emergency which could not foretold or foreseen.
ii. Unless the woman role involves work with raw materials and does not involve in industrial processing.
iii. Unless the woman is in a position of a manager or is employed in a senior position.
iv. If the woman is employed in health and welfare service and not normally engage in manual work.
v. Unless a woman is employed in discipline department e.g. Armed forces, rescue (team) service.
Any employer may get authority from minister to employ woman up to midnight or from 5.00am on such conditions
as a minister may set.
In case of serious emergency when the public interest demand. The minister may give a notice in government gazette
to suspend these restrictions.
The law further provide that no woman may work in a mine except
i. She is engage in health or welfare.
ii. Carrying out research for studies.
iii. Attend there for non- manual work

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 Foreign contract of service
It is a contract of service made within Kenya to be performed either wholly or partially or partially outside
Kenya.
Such contracts are to be in prescribed form signed by both parties attested to by a labour officer.
Before attesting the labour officer has to ensure that:-
i. The employees consent to the contract has been obtained – did he agree, not forced by any one to join the
organization.
ii. There has bee no fraud, coercion or undue influence.
iii. The contract is in the right /prescribed form.
iv. The terms and condition of service must comply with the requirement of the employment act cap 226.
v. The employee is medically fit for the performance of his duty.
vi. The employee is not bound by any other contract of service.

The employer must give a security bond of the due performance on his part of the contract and the act to make
it a criminal offence to induce a person to proceed to a foreign country under an informal contract.
If only persons who abide by this provision who may seek government protection where their contract turn out
to be unfair or unjust.

Termination of the contract of service

Means of bringing of the contract to an end
There are various ways of doing this
 Notice
 Dismissal
 Resignation
 Redundancy
 Other non-dismissal forms
Most contract of service will stipulate how it may be terminating and in the cause of trade union member’s termination
clause will be found in the collective bargaining agreement.
 Where there is no contract or provision for notice in the contract the law provides that
 Where the employer is to pay wages daily, the contract can be terminated at the end of any day without
notice.
 Where the k is to pay wages periodically, at interval of less than one month, the notice period is equal to
the interval at which the wage is payable.
 Where the K is to pay wages monthly, the notice period shall be a month.
 Termination by notice takes place when either the employer for employee decides that he no longer wants to
remain in the relation. When the notice is tendered by the employee, it is referred to as registration. The
employee is not bound to give any reason for him intended resignation. The law only requires that
appropriate notice be given

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  Where the employee does not tender notice, he must pay to the employer wages equivalent to the notice
period he fails to do so he will be deemed to be in breach of the contract and the employer has the right
to sue him in the court for that breach.
 Where the notice is tendered by the employer, it’s referred to as termination and against the employer is not
bound to give any reason for the termination. The only requisite in-law is that the appropriate notice period
be given and or wages equivalent to that notice period.
 The Act also provides for dismissal of employees. Dismissal is process where the employer sacks the
employee in condition with the job. The wrong may relate to disciple or the employees work in particular.
There are 2 kinds of dismissal.
1. Dismissal after warning- Takes place when an employee has committed certain wrongs and has been
warned several times but has filed to heed the warning. Dismissal agent warning is applied only where the
wrongs are not serious enough to justify immediate dismissal. The warnings must all be in writing and must
be noted on the employee’s records and copied to the union.
Where after 2 warnings an employees keeps good behavior for a period of one year, the previous
warnings noted on his records are removed. However, if he commits another wrong within a year or the 2 nd
warning, he is subjected to dismissal.
Most agreements however provide for three warnings before dismissal. This kind of dismissal is designed to allow
the employee a chance to improve himself. The employee must be accorded the opportunity to defend himself against
claims made before any noting of the warning.
Where the defense is not satisfactory, the warning is noted.
2. Summary Dismissal
Provided for on section 17 of the employment Act and it allows for the immediate sacking of an employer
after a wrong has been made. It does not provide for and warning at all. An employee can be dismissed in
this way only if he commits gross misconduct. The Instances of gross misconduct noted in the act are:
i) If, without leave or other lawful cause, employee absents himself from the place of work
appointed for.
Non dismissal forms of termination.
Contract may terminate without dismissal in the following instance
i. On the death of the employer or employee, the K of service is deemed to have expired.
ii. On the insolvency of a company the business ceases to operate and all employees are by law
terminated.
iii. Dissolution of partnership: When a partnership dissolves either the business is shut down or new
partner take over the business there by creating new employer-employee relationships.
iv. Expiry of a fixed term contract: - If a contract is for a specific period, it terminates without dismissal
as the expiry of such period.

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 v. Frustration: Employment relationship may be frustrated on grounds of illness or imprisonment. In
such cases, the relationship may end without any dismissal.
vi. Retirement- Occurs when an employee reaches an agreed age for ceasing of the employment
relationship and terminates the same without dismissal.

Redundancy
Service also is terminated by way of redundancy. It involves the reducing of excess workforce by an
employer where it s determined that such excess employees are no longer viable for the business. The
unless regarding redundancy are found on section 16a of the employment Act for they provide that
1. The labor officer and the union official must be notified of the reasons for and the extend of the
raunchy. The labour officer must refer this to the I.C for approval.
2. Redundancy must not be used as a cover for disciplinary action.
3. Collapse or closure of a business is not redundancy.
4. No employee should be placed at a disadvantaged for being not a member for of a trade union.
5. The employer shall have due regard to seriously time and to the skill, ability and reliability of
each employee of the particular class of employees affects by the redundancy. This promotes
the last in first out principle.
6. Any leave due to any employee must be paid out cash.
7. An employee declared redundant is entitled to one month notice or one month wages in lied of
such notice.
8. An employee declared redundant is entitled to severe pay of not less that 15 days wages for
each complete year of service.
9. If the employees position improves priority most be given former employees declared
redundant.

Termination in Breach of contract

Where termination does no abide by the K terms, deemed to be a breach of contract and the agreed party , usually
the employee, may institute claim in the high court for wrongful or unfair dismissal. In certain instances, the
employee may claim reinstatement to employment but in others, he may claim damages wages for unlawful or unfair
dismissal or termination.

Employment act in Kenya

This law determines the basic requirement of master and servant relationship.
Main provision of this law is:-
i. The entire amount of the wages earned by employees must be paid by the employer must be Kenya
currency.
ii. Wages can be paid to the employee daily or monthly.

16
 iii. If an employee is dismissed due to any genuine reason then the employer must pay all the wages of
the employee including allowance and other benefits.
iv. The employer can deduct from the wages of employer the contribution like statutory deduction and
voluntary deductions.
v. Employees are entitled for annual leave if not less than twenty one days with full pay.
vi. There must be at least one rest day every week for each worker.
vii. Employer should keep proper records.
viii. The employer is required by law to give a certificate of service if an employee leave his job after
working for a period more than four weeks.
Particulars contained in a certificate of service given to an employee by his employers upon
completion of his employment contract.
 Name of the employer and his postal address
 Name of the employee.
 Date when employment commenced.
 Nature and usual place of employment
 Date when employment ceased.
 Any other particular applicable.

INDUSTRIAL RELATIONS CHARTER

KENYA

A. PREAMBLE
The Government of republic of Kenya the Federation of Kenya employers and the central Organization of
Trade Unions (K)
1) Considering that at their tripartite meeting held in Nairobi on 4 th May 1979 convened by and under the
chairmanship of the Minister for labour, they agreed to endeavor to prepare a revised industrial Relations
charter, based on the spirit of the Original charter of 1962.

2) Realizing that it is in the national interest for the Government Employers and worker to recognize the
importance of consultation and co-operation to the efficiency and productivity of an undertaking and that
process can only be made on foundation of good terms and conditions of employment, which include security
of employment and income, and the improvement of workers conditions of service.
3) Desiring to make the greatest possible contribution to the success and prosperity of Kenya agreed upon the
following revised industrial relations charter.

B. AGREED RESPONSIBILITIES OF GOVERNMENT,EMPLOYERS AND WORKERS:

I) ALL PARTIES AGREED.

That affirming their faith in democratic principles, they agreed to settle all future differences dispute and
grievance by mutual negotiation, conciliation and voluntary arbitration in accordance with the laid down
machinery;
2. The parties’ agreement and those of the trade Dispute act shall be strictly adhered to:
3. That they undertake to promote maximum co-operation to abide by the agreement mutually entered
into:

17
4. That they undertake to observe strictly the grievance procedure outlined in the Recognition
Agreement which will ensure a speedy and full investigation leading to settlement.
5.That they will educate the labour Officers, the management personnel and Employees regarding their
obligations to one another for the purpose of good industrial relations;

6. That there shall be constituted the National Joint consultative council consisting of representatives of
the Federation of Kenya Employers and central Organization of trade Unions (K) to advise the minister
of labour on general industrial relations matters. Such council shall have the power to set up a
demarcation committee to adjudicate on demarcation dispute. Appeals of the council’s demarcation
decision shall lie with the industrial court through the established machinery;

7. That they respect one another’s right of freedom of association;

8.That they deal promptly with all correspondence between them co-operate fully with conciliators and
investigators; facilitate the signing of Form A as a mean of speeding up the final settlement of dispute;
and avoid the use of abusive and derogatory language.

9. That they will not engage in any activities which are contrary to the spirit of this Charter;

10.That there shall also be constituted a Tripartite Consultative Council under the Chairmanship of the
Minister for the being responsible for labour on matters affecting the economy in general and
employment matters in particular. The council shall determine its own rules and procedures;
11. The following will be excluded from Union representation.
i) Persons who are formulating administering co-coordinating and or controlling any aspect s of the
organization policy
ii) Staffs who perform work of a confidential nature as shall be defined by a Tripartite committee.
iii) Any other category of staff who may in the case of any particular undertaking be excluded from Union
representation by mutual agreement.

2) GOVERNMENT RESPONSIBILITIES:
i) That the government shall ensure speedy settlement of dispute at all stages;
That the Government undertakes to enter into joint consultation with both the Federation of Kenya
Employers and the central Organization of trade union (K) on tripartite basis on all matters affecting
employment policy ,and labour administration through the established statutory boards or other
established organs,
That the Government will as a matter of policy promote industrial trade unionism; that is trade organized
on the basis of a broadly defined industry irrespective of the craft, occupation or trade in which the
workers are engaged. In this connection, it will in co-operation with the Federation of Kenya employers
and the central
Organization of trade Union (K) encourages conditions which would progressively achieve industrial
trade.
That the Registrar of trade unions shall ensure that the definition of membership coverage provided for
each union constitution shall ensure that the definition of membership coverage provided for each
union’s constitution shall be defined as clearly as possible to avoid overlapping of such trade is
registered the following procedure shall be adopted;

a) The recommendation from permanent secretary to the registrar of trade unions must state that the Minister of
labour has been personally consulted and has approved the recommendation.

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 b) The recommendation from the central Organization of Trade union (K) must be accompanied by a resolution
of a properly constituted Executive Board of C.O.T.U (K) supporting that recommendation,
c) The recommendation from the F.K.E must be accompanied by a resolution of FKE management Board.
The Government shall display in conspicuous places in Government offices the provisions of this Charter
and small impress upon its officers the contents of the Charter and shall take appropriate action where
enquiries reveal that the spirit or the contents of this charter have contravened.

3) EMPLOYER’S RESPONSIBILITIES:
That each employer’s organization group of employers or individual undertakings shall accord recognition
to trade unions appropriate to their industries as negotiating bodies for the employees of such organization.
groups of undertakings in respect of terms and condition of employment

2 That employers shall not engage in such practices as:

a) Interference with the rights of employees to enroll or continue as union members;
b) Discrimination restraint or coercion against any employee because of recognized activity of trade unions.
c) Victimization any employee and abuse of authority in any form;
d) Abusive or intemperate language;
e) Shall generally respect the provisions of I.L.O convention No.98 concerning application of the principles of
the right to organize and to Bargain Collectively
3. That employers shall take action for
a) Settlement of grievances and
Implementation of settlements awards agreements decisions and orders as speedly as possible.
4. That in case of misconduct employers shall distinguish between misconduct employers shall distinguish
between misconduct justifying immediate dismissal and those where discharge must be preceded by a
warning reprimand suspension or some other form of disciplinary action and shall arrange that all such
disciplinary action shall be subject to appeals in accordance with the parties Agreement or the law
5. That every employee has the right to approach the management on personal problems and employers
shall agree always to make accredited repetitive available to listen to the day to day problems of employees.

4) UNION’S RESPONSIBILITIES:

1. That the union shall discourage any breach of the peace or civil commotion by Union members.
2. That the Union’s representative shall not engage or cause employees to engage in any Union activity during
working hours unless as provided for by law or by agreement.
3. That the Unions shall discourage such practices as:
a) Negligence of Duty (b) careless operation (c) Damage of property.
d) Interference with or disturbance to normal work;
e) Insubordination (f) Abusive or intemperate language and generally shall respect the provisions of the
I.L.O convention NO.98 (that is the right to Organize and collective Bargaining)
That the Unions shall display in conspicuous places in the Union’s offices the provisions of the charter and
shall impress upon their officer and members the contents of the charter and shall take appropriate action
where Unions inquires reveal that the spirit or contents of this Charter have been contravened.
That the Unions shall maintain at all time a high a degree of unions Membership in enterprises.

EMPLOYMENT POLICY
The provisions of the ILO convention No 111 concerning Basic Aims and standards of social policy adopted
in June 1962 Article 14affiliation including discrimination n respect of :
i. Admission to public or private employment

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 ii. Labour legislation and agreements which shall afford equitable economic treatment to all those lawfully
resident or working in the country;
iii. Conditions of engagement and promotions:
iv. Conditions of work.
v. Health safety and welfare measures
vi. Discipline.
vii. Participation in the negotiation of collective agreements
viii. Wages rates which shall be fixed according to the principle of equal pay for work of equal value in the same
operation and undertaking.
5. STRIKES AND LOCKOUTS:
It is hereby agreed that the Government the Federation of Kenya Employers and the central Organization of
Trade Union (k) shall seek to bring to end such strikes or lockouts which may arise from or be caused by
any questions differences or dispute contention grievance or complaint with respect to work wages or any
other matter. Machinery established in accordance with provisions of the parties’ recognition Agreements
and or of he Trade Dispute Act. Should be strictly adhered to

6) INTIMIDATION:
It is hereby agreed that employees and management shall enjoy adequate protection against any acts of
interference by each other or each other’s agents or members. Such protection shall apply more particularly
in respect of such acts as:
a) Would make the employment of an individual employee subject to the conditions that he shall or shall apply
more particularly in respect of such acts as-
b) Would make the employment of an individual employee subject to the conditions that he shall or shall not
join a union;
c) Would cause the dismissal of an employee by reason of Union activities outside working hours or with the
consent of the employer, within working hours;
d) The drawing up issuing or publication of discriminatory lists or any action which will prevent supervisor or
shop-stewards from carrying out his normal function

7) JOINT CONSULTATION.
The parties recognize that consultation and co-operation on the basis of mutual confidence are essential
contributions to the efficiency and productivity of an undertaking and also contribute to the social economic
well being of all.

It is therefore agreed that:

i. Full support will be given by the parties to the constitution and the regulations of the National Joint
Consultative council works councils and to all other Joint machinery or boards set up under the law or
Recognition Agreements in the various industries throughout Kenya;
ii. Encouragement shall be given to voluntary agreements between the parties;
iii. Management shall take appropriate measures to facilitate proper functioning of joint machinery by
making available facilities for meeting and in appropriate cases, the staff essential there to including
allowing representatives of employees the necessary time, within reason to attend such meetings
without loss of pay.
iv. It is clearly understood,however,that the employees representative not being full time paid officials of
the union are first and foremost employees of the industry and such their first and prime responsibility
is to carry out the duties assigned to them by the employer;

20
 v. Means should be readily available whereby any questions which may arise affecting all employee
covertered by the agreement can be fully and promptly considered with a view to satisfactory
settlement.
vi. The recognized procedure covering negotiations and discussion between the parties should be so far
as is practicable fully known and understood by the employees and by all members of management as
well as by the ministry of labour conciliators and investigators;
vii. All parties shall conduct their negotiations in good faith and at a representative level.
The Federation of Kenya Employers and the Central Organization of Trade Union (K) agreed to recommend
to their affiliates that during negotiations on trade dispute statements to the New Media should be avoided
as far as possible. Such statements may be made after the conclusion of the negotiations. The parties also
agree that letters on trade disputes should not normally be copied to Ministries or parties not concerned with
such dispute other than the Minister of labour.

Conclusions
The government the Federation of Kenya Employers and the Central Organization of Trade Unions (Kenya)
agree to observe and abide by the Industrial Relations Charter. The Principles of this charter shall be
brought also to the notice of parties who are not afflicted to the Federation of Kenya Employers or the
central Organization of Trade Unions by the Government.

Level of Union Representative

At a meeting chaired by the Ministered for Labour and attended by representative of Federation of Kenya
Employers and central organization of trade union (K) it was agreed that the following persons shall be
excluded from Union representation.
i) Executive Chairman ,Managing Director, General Manager and his deputy and functional Heads-that is
Departmental Heads (and their Deputies)
ii) Branch Manager (and his Deputy)
iii) Persons in-charge of operation in area (and their deputies)
iv) Person having authority in their organizations to hire, transfer appraise,suspend,promote,reward,discipline
and handled grievances provided that such persons fall within the industrial Relations charter clause
No.11.1
v) Person training for above positions (including understudies
vi) Person’s secretaries to person under 1 above.
vii) Persons whose functional responsibilities are of a confidential nature as shall be agreed upon between the
parties.
viii) Any other category of staff who may in case of any particular undertaking be excluded from union
representation by mutual agreement on dues.
Junks prudence from the courts in Kenya indicates that the courts will rarely grant reinstatement nor will they
award damages for a fair or unlawful dismissal . The court rites freedom of contract the basis for their reluctance.
The court will usually only award such sums as the employment was entitled to had he been properly or fairly.
This is usually limited towages equivalent to notice period severe pay, pension funds, leave days due and any other
allowance or entitlements due to the employee.

21
 CHAPTER 3
INDUSTRIAL COURT
SPECIFIC OBJECTIVES
By the end of this topic, the trainee should be able to:
a) Explain Historical development of industrial court
b) Describe the structure of industrial court
c) Describe the procedures of industrial court
d) Explain the powers of industrial court

Historical development of Industrial court

This important institution in the independent Kenya was established in 1964 under Trade Dispute Act cap
234 of the law of Kenya. Besides this Acts, it made Provision for the settlement of trade’s dispute, the
establishment of arbitration 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 people representing the workers.
In 1965 the trade dispute Act was amended to widen the Courts scope & powers. It provide for the
establishments of Boards of Inquiry & a standing (permanent) Industrial court the control & regulations of
strike and lockouts and it made provision \s regarding the collection of union due and over related matters.
The major objectives of the Act were therefore
i) To ensure parties to trade dispute adhere to agreed procedures for settling disputes.
ii) To limit sympathy strikes and sympathy lockouts
iii) To establish mandatory binding arbitration by the court in the trade disputes in essential services
iv) In 191 Trade Dispute Act was further amended to incorporate the following information.
The president of Kenya may by order establish a court consisting of:
a) Judge of the court who shall be advocate of high court of not that 7 years standing and appoint for terms less
than 5 yeas
b) Four other members who shall be appointed for terms of not less than 3yrs by the Minister.
Other objectives include the following:
i. To give the judgment in the trade dispute between employer and employee.
ii. To handle dismissal cases.
iii. To handle non payment of employees dispute.
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 iv. It has the final decision.

COMPOSITION OF INDUSTRIAL COURT

1) Judged not more that two appointed by the president.
2) Eight (8) other members appointed for three (3) years by labour minister.
3) Two assessors appointed by minister when necessary.
4) State government through official gazette notice section 4 (i)
5) Magistrate.
6) President – section 10 (2)
7) Every member not connected with the complaint referred to that court or with any industry.
8) Judge of the high court (person who has been or eligible to be appointed and who possess expert
knowledge of labour or industrial court.

Circumstances under which an industrial court may decline to take cognizance of a trade dispute.
1. Where a trade dispute arise in any part of the public sector and there is in the opinion of the
court adequate machinery for the determination of terms and condition of employment in that part of
the public sector whether that machine was established by regulations made under this act or by
other written laws.

2. Unless the trade dispute has been reported to the minister and 212 days have elapsed since the date
when dispute was reported.
3. When the dispute is in the process of being settled , investigated or determined by means of any other
proceeding under the provision act or any written law.
4. Unless the court has received certificate sign by labour commissioner stating that the minister as
accepted the report having all machineries has been exhausted .
5. Where the trade dispute solely concern the dismissal or reinstatement of any employee.
Roles of industrial court
a) It accepts the collective agreement for registration for it to be legally recognized and implemented.
b) It determines and verifies the desirability of collective agreement before they ‘re implemented .
This is done through amendments and further negotiating between he concerned parties.
c) It plays a big role in the settlement of trade dispute and matters relating to.
d) Where upon there is an award to be made after the settlement of a trade dispute this is in domain of the
industrial court.
e) When there’s need the industrial court can also investigate matter related to trade disputes with the
purpose of gathering relevant evidence.

Powers of the court

The court also has power to decide whether members of the public or the press may be allowed to attend the
proceedings.
Advantages of the industrial Courts
1. The informal nature of proceedings of proceedings making it more accessible to more persons.
2. Representation may be by the parties themselves a trade union representatives or a lawyer.
3. Strict rules of evidence do not apply.
4. The cost of initiating a claim is minimal and can be affordable by all the parties.
5. Cost is rarely awarded to the winning party. There is no fear over financial threat tan applicant bringing a
claim.
6. The procedure for instituting a claim is very simple
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 CHAPTER 4
LAW RELATING TO TRADE UNIONS
SPECIFIC OBJECTIVE
By the end of this topic, the trainee should be able to:
a) Explain the meaning of trade union
b) Explain the legal requirement governing the formation of trade union.
c) Explain the legal provision regarding trade unions fund
d) Describe the legal provision in the dissolution of trade union.

The emergence and development of trade unions

The trade Union Act of Kenya (Cap 233) define trade union as:
a) An association or combination of trade unions provided that nothing in this Act shall.
b) I) affect any agreement between parties as to their own business.
c) Any agreement between and employer and those employed by him as to such employment
“A continuous association of wage earners for the purpose of maintaining or improving the conditions of
their employment”
In Kenya trade union started prior to the industrialization process. This was because the unions came into
being as a vehicle of protest against working conditions. Most trade unions therefore came into being either
out of a direct confrontation of workers and employers or out of collusion between workers and politicians.
The trade union movement in Kenya began in the early 1900’s though it took almost 50 years before the
first real trade union became permanent. The reasons for this are as follows
a) The strong opposition of the elite settle employers
b) The high rate of illiteracy among wag earners

24
 c) The restrictive labour laws
d) The authoritarian nature of the colonial political system.
e) The authoritarian nature of the colonial political system.
f) The small number of wages earners and their lack of technical know how in the trade union organization.

Association
Employees are allowed to form associations to enable them deal with the employer as a collective group. \the most
usual is the trade unions
Trade unions
Trade unions must be registered under the trade union Act to be recognized. Six or more people working for the
same employer can form an employer’s organization with the aim of regulating their relationship with employee or
the relations between their union and employers.
Association may also be formed by people who do not work for the same employer but who belong to a common
trade or profession, e.g. Kenya National Union of Teachers (KNUT), where the have the commonality of being
teachers.

To register a trade union, the application must fill a prescribed from in which he indicates the name and
address of the union, provides a list of its membership, indicates the names of its officials with a sufficient
summary of the object of that union.
If the registrar is satisfied with the information he must register the trade union and issue a certificate of registrar.
Writers of a trade union must also be registered.
Trade unions may, on application, become members of the central organization of trade union (COTU). COTU is a
coordinating body tasked with fighting for the rights of all workers in Kenya. In Kenya, his Trade unions are not
organized on the basis of a closed shop. A close shop trade union is one in which thebe fits achieved by the trade
union is one in which the benefits achieved by the trade union accrue only to the members of the trade union. In
Kenya, however, trade unions are an open shop and benefits obtained accrue to all persons in that profession or
category.

Basic Objectives of Trade Unions

A trade union for employees is supposed to:
1. Organize workers in the particular industry so that they can exercise collective strength
2. Fight for the improvement of terms and conditions of employment so that the employees can get more
benefits from the employers.
3. Protect the rights which the employees have fought for and achieved.
4. Engaged in educating the members so that they can have better knowledge of their social rights and
obligations and their employment situation in particular.
5. Carry out research so that more information is available to the members.
6. Generally take care of the welfare of members.
25
 7. Invest so that the income can benefit the members.
At a practical level, trade unions engages in
1. Recruitment of members
2. Grievances handling at the shop level
3. Representing members in discussions with the ministry of labor
4. Representing members at the industrial court
5. Collective bargaining
6. Organization of strikes and boycotts
7. Informing and education members
 Collective bargaining the process by which a union negotiates with an employers, on behalf of its
members on matters concerning terms and conditions of employment.
 Matters unusually negotiated upon include – Terms and conditions of employment.
 Allocation of works or the duties of employment between workers or groups of workers.
 Matters of discipline
 Workers membership or non- membership of the union
 Collective bargaining can take place on a national level or at a accompany level. The terms of the
CBA are binding and will usually be incorporated in the contract of service.
Registration of a Trade Union
Registration is not given unless the executive is constituted according to the provision of this Act and the
rules of the union provide for the following matters
 The name of the trade union.
 Purpose for which the trade union has been established
 Purpose for which the general funds of the trade union shall applicable.
 The maintenances of a list of members and adequate facilities for the inspection therefore by the office
bearers and members of the trade union.
 The admission of ordinary members
 The payment of subscription by members
 The condition under which any member shall be entitled to any benefits assumed by the rules and under
which any fine or for feature may be imposed on the members.
 Manner in which the trade union may be dissolved.
Circumstances under which register may decline to register a trade union
i) The union has not complied with the provision of trade union act or of any regulations made thereunder.
ii) Any of the objects of the constitution of the union is unlawful or conflict with any such provision.
iii) The union is used for unlawful purposes.
iv) The principle purposes of the trade union seeking registration are not in accordance with those set out in
definition of trade union.
v) The trade union seeking registration is an organization consisting of persons engaged in or working at
more than one trade or callings and its constitution does not contain suitable provision for protection and
promotion of their respective sectional industrial interest.
vi) The account of the union is not being properly kept.

Dissolution of Trade Union Organization & their board of Directors

26
Article 17-It shall be dissolved in accordance with the provision of their constitution or by a court judgment.
Article 18-The Board of directors of the federation will temporally take over the power of the trade union
whose Board of Directors has been dissolved unit a new Board of Directors is formed according to the
Unions constitution.

Dissolution on account of insufficient Membership

It is obliged to dissolve if it membership falls below 20 or 40 depending on well it is in itself constitute an
infringement of the exercise or trade union right, provided that such winding up is attended by all necessary
legal guarantees to avoid any possibility of an abusive interpretation of the provision in other words the
right to appeal to a court of law.

Immunity/Privileges/Rights of a Registered trade Union

i) It can acquire and hold property and can enter into contracts in its own name. It can also sue and be sued
in its own name.
ii) Right to maintain general funds and spend then for certain specified purposes.
iii) It can constitute a separate find for political purposes.
iv) The act provides immunity to office bearers and members of from liability to punishment in respect of
any agreement made between members
v) It can represent workmen to the works committee
vi) It enjoys immunity from civil action.

Liabilities of a trade union

i) To appoint only those persons as office bearers who do not suffer from the disqualification prescribe
under the Act.
ii) To maintain books of accounts and the list of members
iii) To keep books and the list open for inspection by members.
iv) To submit annually to the Registrar of Trade Unions duly audited statements of receipts and expenditure
and assets and liabilities.
v) To furnish correct information to persons intending to become members.

Rights of a recognized union

Annexure B of the code of Discipline mentions the following rights of a recognized union:
i) It can collect membership fees from the member within the premises of the undertaking.
ii) It can raise issue and enter into collective agreements with employers on general questions concerning the
terms of employment & condition of service of workers establishment.
iii) It can put up a notice board on the premise of the undertaking and use it for announcements relating to
meetings etc.
iv) For the purpose of prevention or settlement of an industrial dispute;
a) It can hold discussions on the premises of the undertaking with the employees who are union members.
b) It can discuss with employer of other appointed person the grievance of employees in the undertaking
where any member of the union is employed.
v) It can appoint its nominees on
(a) Joint management council,
(b) Grievance committee and
(c) Any other non-statutory bipartite committee set up by management e.g. production welfare,
canteen or house allotment committee etc.

Problems and shortcoming of trade unions

27
 i) Uneven growth.
ii) Small size –low membership
iii) Weak financial position
iv) Political leadership
v) Multiplicity of unions
vi) Inter –Union rivalry
vii) Problem or recognition
viii) Opposition from employers

Measures for strengthening trade union

i) Financial stability by raising subscription per month
ii) Recognition of unions –obligatory for employers to recognize
iii) One union is one industry –to avoid inter-union rivalry
iv) Internal leadership-should be developed from within the rank and file of the worker.
v) Paid official-Fun time paid officials should be appointed to manage the affairs of trade union.

Uses of general funds of a registered trade union

 For the payment of salaries, allowance and expenses of office barterers of the trade union.
 For the payment of the expense for the administration of trade union including auditing books of accounts.
 For the protection of proceeding to which trade union undertake to protect its members in court.
 For conduction any trade disputes.
 For compensation of members for loss arising on trade dispute
 To pay allowance to members on account of death, old age and sickness.

Self-Test Question
i) Explain the procedure for registration of trade union what are the rights and liabilities of a registered
union?
ii) What is the weakness of trade movement in the country?
iii) Why do trade unions suffer from multiplicity inter-union rivalry and politicization? What remedial
measures can be taken?

28
 CHAPTER 5
LAW RELATING TO TRADE DISPUTE
Specific objectives
By the end of this topic, trainee should be able to:
a) Explain the meaning of trade dispute
b) Describe the procedure for reporting trade dispute
c) Discuss the legal provisions governing trade dispute
d) Explain the legal provision for settling trade disputes in Kenya
e) Describe the procedures for settling a trade dispute

TRADE DISPUTE
Def. Any dispute or difference between employers and employers or between employees and employees or between
employees which are
Connected with employment or non-employment or terms of employment
Causes of industrial dispute
A) Non- industrial factors- These factors include historical, economic, political and other non- industrial ones.
 An industrial matter relating to employment, wok wages hours of work, rights and obligation of employees
and employers.
 Disputes often arise since workers demand higher wages.
 Dispute often arises due to education of workers are not aware of their rights, privileges and responsibilities.
b) Management attitude toward labour- Management are not willing to talk openly and settle issues directly with
its workers.
c) Government machinery – Industrial dispute may often be due to the inadequate government machinery regarding
the settlement of industrial dispute.

Disputes are governed by the trade disputes Act .Under the act, any dispute must be reported to the minister by
any party to the dispute. Such reports must be made in writing and shall specify the following;
Employers and employees who are party to the dispute
The party on whose behalf the claim is brought
The authorization given by the party in the dispute to the party lodging the claim

29
 Each and every matter surrounding the dispute
Every report of a trade dispute must be served either by hand or registered post when the party against who
the dispute is made. Any trade dispute involving the dismissal or termination of a contract of employment must be
lodged with the minister within 28 days of the dismissal or termination.
A minister have power, however t extend if he deems it necessary. Termination of employment on the back of reduce
is deemed to constitute a trade dispute whether or not there is an agreement between the arties.
On receipt of a report on a trade dispute, the minister must constitute a tripartite committee to look into the
dispute. The tripartite committee consists of a representative of the minister who shall be its chairman and 2
other persons appointed by the minister one from a panel, nominated by the employees and the other from a panel
nominated by the employer.
The tripartite committee may recommend that the dispute be
i) Reject the dispute
ii) Refer the matter back to the parties with proposal upon which a settlement may be reached.
iii) Endeavour to effect conciliation of the parties.
iv) Cause an investigation into the dispute
v) Recommend that the dispute be referred to the industrial government
vi) Where the dispute involves the recognition of a trade union, the minister may after being satisfied
that the trade union has its membership a sample majority of employees eligible and that there is no
rival trade union claiming to represent the workers) order the employer in writing , to recognize such a
trade union.
vii) An employee who fails to comply is guilty of an offence, punishable by a fine of Kshs 10,000 for each
month during the period in which such failure occurred. Appeal against the minister lies to the industrial
court.
The minister may also cause investigation into matter of a trade dispute where the suspect that one exists, even
where no report has been lodged by him.
Any trade dispute not resolved by the minister it to be lodged by the industrial court.

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Legal Provisions for settling trade disputes in Kenya
The following approaches and measures are used for the settlement of dispute in Industry.
i) Conciliation
Is the process by which representatives of workers and employers are brought together before 3rd party with
a view to persuade them to arrive at an agreement through mutual discussion between them.

The Industrial Disputes Act 1947 provides for the appointment of the following conciliation machinery

i) Conciliation officer
Duties-
a) Mediate in and promote settlement of industrial disputes.
b) Hold conciliation proceeding
c) Send report and memorandum of settlement to the appropriate government
d) Send a full report settling forth the steps taken in case no settlement is arrived at.

ii) Board of conciliation

The Board shall consist of a chairman and two or four other Members.
Duties of a board of conciliation
a) Endeavour to bring settlement of dispute required to it
b) If settlement is arrived at the Board shall send a report thereof to the appropriate government together with a
memorandum of the settlement signed by the parties to the dispute.
iii) Arbitration.
Is a process in which a neutral 3rd party listens to the disputing parties gathers, information and takes a
decision which is binding on both the parties.

Advantages of arbitration
i) It is established by the parties themselves therefore, they have a greater faith in it.
ii) The process is expeditious and results in prompt settlement of differences.
iii) Informal and flexible in nature.
iv) Not expensive because parties can directly present their case without a lawyer.
v) It is based on mutual consent of the parties thus build healthy industrial relations.
Disadvantages
i) Judgment can become arbitrary when the arbitrators are incompetent or biased.
ii) Delay often occurs in the settlement of dispute
iii) Too much arbitration is a sign of healthy industrial relation.
Voluntary arbitration.-Means that disputing parties themselves refer the dispute on their own to an arbitrator
and the award is not binding on the parties.

iv) Adjudication
Is the ultimate legal remedy for the settlement of industrial disputes. Adjudication means intervention of
authority appointed by the government to make a settlement which binding on the parties

v) Courts of enquiry

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A Government may by notification in the official gazette, constitute a court of Inquiry into matter appearing
to be connected with or relevant to an industrial dispute. It may consist of one independent person or of such
number of independent persons as the appropriate government may think fit.

Strikes
Types of strikes
These can be broadly grouped into two.
a) Wild-cat strike
b) Lawful strikes

a) Wild-cat strikes
They are the most common type of strikes which is illegal. All the laid down procedures are ignored and
employees withdraw their labour.It may take place instantly for example what a shopsteward or other union
official is dismissed.

b) Lawful strikes
It takes place when all the laid down procedures have been exhausted. Under the trade Dispute Act, a strike
is unlawful,

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 has expired.
ii) Where the minister has refused to accept the disputes in accordance with the act, should strike action take
place it will be considered unlawful if the Minister so declares and the workers do not resume work.

Workers in emergency, essential services and the disciplined forces are not allowed to strike. These essential
services include.
i. People in the water, electricity, health, hospital and sanitation.
ii. Air traffic control and aviation, communication s and material meteorological activity.
iii. Public fire control, public transport, Air transport, sea ports and docks.
iv. Post, telecommunications and telegraphs
v. Teaching
Strikes carried out by people in these areas are unlawful and deemed a criminal offence, punishable by a fine of
Ksh 5000 and imprisonment of not more than 3 months .
Any person who knowingly , advices or makes other people in these sectors to go on strike unlawfully shall be
guilty of an offence, punishable y imprisonment of not more than 12 months, and a fine of Kshs 12000.
For a strike to be lawful , the union must lodge trade dispute through the minister in writing and allowed the
minister 21 days within which to settle the dispute or refer it to the industrial court. If the minister does not
resolve the dispute within 21 days, the employee must give notice to the employer stating the intent to go on
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 strike and must allow the employer 7 days to settle the dispute. For a strike to be lawful, it must occur within
60 days of the date within which the report was made with the ministers and before the expiry of 21 days from
the date of notice to the employer .
When the minister refers the dispute to the industrial court, the court shall hear the matter and makes court, the court
to the industrial court; the court shall hear the matter and make a finding.

The finding of the industrial court is binding court is binding and cannot be appealed against.
A finding of the court is valid within a period of 21 days only and both the employer and the employee are stopped
from bringing a claim on the same matter within a period of 12 months (1year)
The procedure at the industrial court is informal to enable trade only unions or arties to represent themselves.
Advocates will only have audience at the court with the approach or permission of the court.

Procedures for settling a trade dispute

The minister of labour is the agency responsible for the provision, elaboration and implementation of labour laws
and regulation of industrial relation generally, enforcement of labour standards as well as provision of conciliatory
services to employers and workers.
Industrial Relations Division is concern with disputes handling when reported to the ministry of labour for any
action deemed fit.
The ministry of labour intervenes in industrial disputes in the following ways
i) Consultation with Tripartite Committee and thereafter either or both parties.
ii) Arrangements for determining methods of conciliation
iii) Arrangement to enforce recognition orders through fines against employer who fails to comply with
recognition orders.
iv) Arrangement for furnishing industrial court with a copy for every collective agreement that has been
lodged with him by parties.
v) Arranged to declare any strike or lockout (whether actual or threatened) in the section of industry
unlawful.
vi) Arrangement for appointment of board of inquiry to look into matters related to any trade disputes.

The chart below show s the level of third party intervention by the Government through ministry of labour in settling
industrial dispute;

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 Established machinery in Industry
(e.g. Grievance procedure)

Dispute declared by parties

1st Intervention by minister

Compulsory third party intervention

Consultation –Tripartite committee

Back to parties Conciliation Investigator Board

Of inquiry
Set out the awards in Investigates and
If the minister writing dully signed formulates proposal &
Deems fir upon with a by all parties before may make such finds the facts make
settlement of the trade lodging a copy with recommendation to interviews reports
dispute may be the minister the minister
negotiated.

2nd intervention by the Minister

Industrial court
(Final Arbiter)

Register collective Agreements

Awards binding to all parties.

Source; Cap. 234 of the law of Kenya

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 CHAPTER 6

LAW RELATING TO REMUNERATION OF WORKERS

Specific objective
By the end of this topic the trainee should be able to;
a) Explain the meaning of legal terms relating to remuneration
b) Describe legal provision of an employees remuneration package
c) Discuss the legal protection of employees remuneration

Obligation on Employer
He is obliged to pay remuneration not less than the appropriate statutory remuneration, failure to do so
renders the employer liable not only to action in the civil courts for the recovery of the deficit but also a
summary conviction to a fine for each offence.

An employer is required to keep such records as are necessary to show that concern for whom statutory
remuneration is in force are paid accordingly.
Statutory remuneration must be paid in full car of all deduction except those made under statutory authority
of parliament.

Effects of the Act on Voluntary agreements

Under the act, it is illegal for employer to pay less than statutory remuneration even though may exist a
contract of agreement for the payment of less than appropriate statutory remuneration.

Enforcement of rates
Labour officers and inspectors are appointed by the Government for the purpose of investigation complains
and otherwise security the proper observation of the Act.
Their Power
To enter any place of work and question worker and employers or their agents.
Persons obstructing officers, making false entry is records required to be kept under the act or produces or
furnishes a false records or information in liable to prosecution.

Protection of Wages
i) The employer must pay the entire amount of wages earned directly in Kenya shilling or into bank
account.
ii) Such payments must be made on working day during working hours and not done in a drinking place.
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 iii) The employer must not use employees earning for his benefits whether directly or indirectly.
iv) The employer is under obligation to pay remuneration not less than the appropriate statutory
remuneration.
Housing
The employees should provide reasonable housing accommodation to all employees at or near place of
work. Where this is not possible a sum of money equivalent to 15% of basic pay should be paid in addition
to the wages. This will enable the employee to rent a house at a place of his choice.

CHAPTER 7

LAW RELATING TO WORKMEN’S COMPENSATION

Specific objectives
By the end of this topic, the trainee should be able to:
a) Explain the meaning of terms relating to workmen’s compensation Act
b) Highlight different forms of disablement recognized under Workmen’s Compensation Act
c) Explain the rights, obligation and liabilities of the workmen and employer
d) Discuss how compensation is awarded as per workmen’s compensation Act

Meaning of Terms

Workmen: any person who has either before or after the commencement of this act entered into work under
a contract f service or apprenticeship with employer whether by way or manual labour or otherwise
Dependant; Members of the family of a workman who wholly or partially depend upon his earning at the
time of his death
Earning; this include any wages & allowance in respect to increased cost of living paid to workman by
employer.
Partial incapacity; where incapacity is of temporary nature which might reduce the earning capacity of a
workman.
Total incapacity; any incapacity whether temporally or permanent which incapacitates a workman of any
employment which he was capable of under taking at the time of the accident resulting in such incapacity.

Workmen’s compensation
It s a statute fixing the compensation that a workman may recover from employer in case of accident.

The workers compensation Act (cap 236 of the law of Kenya) requires that an employer of a person injured
or killed in the course of his work compensate his or her dependants. This compensation applies only to
workmen. It excludes.
i) Any people who is not a manual labourer and who’s earning exceed sh.2400 in a month.
ii) A casual employee not employed for the purpose of employers trade or business.
iii) A person given materials to work on his own home or any other place not controlled by employer.
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 iv) A member of employer’s family dwelling on the employers premises.
v) Member of armed forces
vi) Any class of person excluded from the definition by the ministry in change of labour matters.

Right, Obligations and liabilities of the Workmen the employer

The employer is liable to pay compensation to workman for all personal injuries caused to him by accident
arising out or and in the cause of employment which disable him for more than 3 days. If a workman
contracts any occupational disease specified, it shall ordinarily be deemed as an employment injury. The
amount of compensation to be paid depends upon the wages age and the type of injury of the workman.

The employer is under obligation to pay compensation within one month from the date on which it falls due.
In case an employer makes default in payment the commissioner may direct for recovery of the amount
arrears together with interest

Employers Liability
The employer is not liable to pay compensation in the following cases.
i) Where the injury does not result in total or partial disablement for a period exceeding 3 days;
ii) Where an injury not resulting in death caused by an accident, is directly attributable to:
a) The workmen having been at the time of accident under the influence of drinks or drugs.
b) The willful disobedience of the workman to an order expressly given or to a rule expressly framed for
the purpose of security the safety of workman.
c) The willful removal or disregard by the workman of any safety guard or other devices which he knew
to have been provided for the purpose of security the safety of workman. Where the injury has caused
the death of the workman, no defense is available and employer is liable to pay compensation to the
dependent of the deceased workman.

N.B
No compensation shall be payable in respect of an incapacity or death resulting from a deliberate self injury
.If the workman has t anytime represented in writing to his employer that he was not safe and has not
previously suffered from similar injury knowing the representation to be false.

Distribution of Compensation
a) Compensation payable where the death of a workman has resulted from an injury shall be paid into court and
the court may order the sum so paid to be approved among the dependants of the deceased workman or any
among the dependants of the deceased workman or any of them in such proportion as the court thinks fit.
b) The court may take variation of any order it has given considering any circumstance that may arise.
c) Compensation payable can be in lump sums or it may be paid at intervals and must be paid in court.

Agreement as to Compensation
The employer and workman may with the approval of the labour commissioner or a person appointed by
him after the injury in respect of which the claim for compensation to paid by the employer provided that.

i) The compensation agreed upon shall not be less than the amount payable in this act.

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 ii) Where the workman is unable to read and understand the agreement shall not be binding on him unless-It
is endorsed with certificate of a district commissioner
Payment of compensation to non-resident workman
Compensation awarded to a workman or his depended ants residents outside Kenya .Shall be paid by the
employer to the labour commissioner who shall be paid by the employer to the labour commissioner who
shall make such arrangement as he consider necessary to pay compensation to the workman entitled to
receive or to any persons considered as dependants in the case where the workman is deceased.

Awarding of Compensation
Compensation given to the workman or his dependants is based on
i) The earning of the workman
ii) The level of incapacity caused by injury

1. Compensation in Fatal Cases (Death)

Where death result and dependants left who wholly dependant his earning ,the amount of compensation
shall be a sum equal to 60 months earnings or Ksh. 35,000 which ever is greater .
Where there are only partial injuries the court will then decide the amount payable but it will not be more
than the amount paid in above
If the workman leaves no dependant the reasonable expenses of burial of the deceased workman not
exceeding Ksh.2000 shall be paid by the employer.
2. Compensation in cases of permanent total incapacity.
When this results from the injury, the amount of compensation shall be a sum equal to 60 months earnings.

3. Compensation in cases permanent partial incapacity.

This is the incapacity which reduces the earning of a person compared to what he has earning at the time of
the accident. The compensation paid is a % of 60 month earning depending on part of the body injured e.g.
loss of both hands is 100% incapacitated whereas loss of hearing in both ears is 50% incapacitated.

4. Compensation for Temporary incapacity.

It’s the kind of incapacity which lasts for some time. Where it occurs, the compensation may be awarded in
lump sum or by periodic payment.

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 CHAPTER 8

LAW RELATING TO HEALTH AND SAFETY AT WORK

SPECIFIC OBJECTIVE
By the end of this topic, the trainee should be able to:
a) Describe legal provisions regarding health at work
b) Explain the legal provision regarding safety at work
c) Explain powers of authorized officers in ensuring the provision of Factory Act

1. Introduction
The law relating to safety, healthy and welfare of workers is derived from two sources:

a) The common law principles developed by the courts with certain statutory intervention.
b) The statutory provisions
In this chapter the common law is examined in Chapter XII the statutory provisions are discussed.
2. Duty to provide a safe system of work. As state in chapter VI an employer owes a duty to his employees to provide
a safe system of work. If an employee is killed or injured as a result of a failure by the employer to fulfill this
duty, the employee (or his executors or dependants if he is dead) may recover damagers from the employer
providing that the employer is shown to have been negligent and there is no defense available to the employer.
Note that since an employer s vicariously liable for his employees if an employee is injured as a result of the actions
of a fellow- employee, the employer may be liable on that basis.
The modern authority for the proposition that an employer has a duty to provide a safe system of work is:
Wilson and Clyde Coal Co. Ltd V. English (1937) an employee brought an action against his employer in respect of
personal injuries suffered as a result of an alleged unsafe system of work. Held damages could be recovered. Lord
Wright: “The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its
fulfillment to employees, even though selected with due care and skill. The obligation is three-fold “the provision of
a competent staff of men, adequate materials a proper system and affective supervision. ‘ I think the whole course of
authority constantly recognizes a duty which rests on the employer, to take reasonable care for the safety of his
workmen, whether the employer be an individual, a firm , or a company and whether or not the employer takes any
step in the conduct of the operations”
The employer’s obligation may be divided into several aspects:
a) Provision of a competent staff of men
b) Provision of a proper system of working
c) Provision of safe work premises

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 d) Provision of safe working equipment
e) Provision of adequate safety and protective equipment

Legal provision regarding health

The factories Act, health provision states that
1. Every factory shall be kept in a clean state and free from effluria arising from any drain or sanitary
convieneince.This includes:
a) Any dirt or refuse being removed daily by a suitable method
b) The floor of every workroom shall be cleaned at least once every week by washing or sweeping.
c) All inside walls including partition sealing shall
i) Where surface is smooth be washed by hot water every 12 months
ii) Where painted by all paint at least once in every 5years
2. A factory shall not during working hours be kept over crowded as to risk causing injuring
3. Effective and suitable provision shall be made for circulation of fresh air in each workroom.
4. There should be sufficient and suitable lighting whether natural or artificial in every part of the factory.
5. Where a process is carried out that may make the floor wet effective measures shall be made to provide
and maintain draining off of water
6. Sufficient and suitable sanitary convenience shall be provided.

Legal Provisions regarding safety

a) Every flywheel connected to any prime mover shall be security fenced
b) The head tail of every water wheel every water turbine shall be securely fenced.
c) Every part of the transmission machinery shall be secure fenced.
d) Every dangerous part of any machinery shall be securely fenced
e) All fencing or other safeguards provided shall be of substantial construction constantly maintained and kept
in a workable condition
f) All machine effectively guarded
g) Every hoist or list or lift should be well maintained
h) All cranes and other lifting machines shall be of good construction and well maintained
i) Every steam boiler and at it fitting shall be kept in good working order.
j) Every factory shall be provided with adequate means of escape incase of fire.

Welfare Provisions
a) There shall be provided and maintained a first acid box
b) An adequate surplus of wholesome drinking water should be provided & maintained at
suitable points conveniently accessible to all employees.
c) They shall be provided and maintained adequate and suitable facilities for washing which
shall be conveniently accessible and kept in clean and ordinary condition.
d) There shall be provided for the use of female workers who work long hours while standing
suitable facilities for sitting to enable them to take advantage of any opportunities for rest.
e) There shall be provided for employee’s adequate and suitable accommodation for clothing
not work during working hours.

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