ABA 436: INDUSTRIAL AND LABOUR LAWS

The legal organization or relationships between and among employees and employers (both individually and in combination) at the place of work, and in society at large; The foundation of labor law, individual employment law, collective labor law, the law of industrial conflict and the trade unions, Industrial Court, ILO; Occupational Health and safety and the work injury and Benefits acts.

The labour laws of 2007 improved the environment for employers, employees and trade unions. Parliament enacted five labour laws — the Employment Act, Labour Institutions Act, Labour Relations Act, Occupational Safety and Health Act and Work Injury Benefits Act.

The aim of the laws was to repeal and replace six core labour laws and bring them into conformity with the current challenges and demands of national development and international labour standards.

Employment Act

The law replaced the Employment Act and Regulation of  Wages and Conditions of Employment Act. lt establishes minimum terms and conditions of employment. Unlike the repealed Act, the new one defines a number of common terms – probationary contract, migrant workers, worst forms of child labour, dependant, forced or compulsory labour and HIV.

lt also provides for prohibition against forced labour, discrimination in employment on the basis of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, mental or HIV status and sexual harassment.

lt deals with payment, disposal and recovery of wages, allowances and deductions of an employee. The major changes are that the employer cannot deduct employees’ wages exceeding two thirds. The previous law provided for deductions up to 50 per cent. Further, all employees are entitled to itemised payslips or salary statements. The law also provides for basic conditions of a contract of service  – hours of work and annual, maternity and sick leave, housing, water, food andmedical attention. In the new provision, an employee is entitled to three months’ maternity leave. However, the employee shall not forfeit annual leave. The law introduces a 14-day paternity leave.

The legislation deals with termination and dismissal. For the first time, the law provides for payment of service pay for every year worked to an employee whose contract has been terminated. Further, the legislation provides that the Labour minister may require an employer to insure his employees against redundancy through an employment insurance scheme.

The employers are also required to justify termination of employment. The law introduces the concept of unfair dismissals. lt also regulates the engagement of children in employment. lt prohibits employment of children in any activity that constitutes child labour. It also sets the minimum age and conditions of employment of a child.

Employers are required to keep records and make them available for inspection. They are also required to notily the Director of Employment of vacancies, termination and abolition of offices. The law also outlines requirements for a foreign contract and sets out complaint procedures and jurisdiction in cases of disputes between the employee andemployer.

Labour Institutions Act

The law establishes institutions and organisations for the administration and management of labour relations the national Labour Board, the industrial Court, Committee of Inquiry, Labour Administration and Inspection, the Wages Council and Employment Agencies.

The law, however, does not apply to the Armed Forces, Kenya Police, Prisons Service, Administration Police and the National Youth Service.

National Labour Board

The members are appointed by the Minister for Labour and drawn from the most representative federation of trade unions and employers, independent members and Government officials. The boards role is to advise the minister on employment and labour, legislation, trade unionism and codes ofgood conduct.

It also advises on ILO issues, international or regional associations, systems of labour inspection and the administration of labour Acts, public employment service, productivity, appointment of wages councils and members of the Industrialcourt.

Other issues include setting compensation benelits, manpower development, registration, suspension and cancellation of registration of trade unions and employers’ organizations.

INDUSTRIAL COURT

It isa pillar ofindustrial peace andwas established to hear and deter-mine industrial disputes referredby the Minister for Labour, register( Zollective Bargaining Agreements((]BAs) between employers andworkers and promote the spirit oftri-partism between Government,employers and employees.The Industrial Court was estab-lished in 1964 under the Trade Dis-pute Act (Cap 234). It got its currentshape in 1971, when the ‘I`rade Dis-pute Act was amended. The Indus-trial Coun tnay award compensationor order reinstatement. Its decisionsare final. For the first time, the courthas powers to grant injunctive reliefprohibition, declaratory orders, mance apart from re—engagement and reinstatement ofemployees.()nce appointed, the judge of the Industrial Court holds office until

retirement, resignation or removal or death. In the old law, Industrial Court judges served on renewable five—year contracts. Committees The law empowers the Minister for Labour to appoint a committee of inquiry to look into trade disputes. The legislation provides for the offices of ( ommissioner for Labour, Director of` Employment, Registrar of”I`rade Unions and other officials.lt advises the minister on fixing minimum wages and terms of`con— ditions ofservice for various sectors ofthe economy. The law requires that employment agencies — also called placement agencies — be reg— istered with the Director of`Employ— ment. Work Injury Act The law replaced the Workman’s Compensation Act. It introduces a legal framework compliant with ILO conventions related to co1npensa— tion of` employees injured at work or who contract diseases and to extend insurance cover. Employers are obligated to obtain an insur- ance policy to cover the employer’sliability, register with the Director of Work Injuries Benefits and to keep records and make annual returns. The law also provides tor the pro- cedure of reporting accidents during employment. The limitation period for reporting is 12 months alter which the claim lapses. Compensa- tion for disablement and death is also provided. The law provides for employers to provide medical aid to employees. ‘i`his includes first arid faicilities, ta1k· mg employees to amd from ai medi- cail faicility amd paiyment of medical expenses. Labour Relations Act it provides an legail framiework to promote freedom of aissociaitiou, thc right to collective bairgaiining, streamtlines the registraition of trade unions, employers orgamisaitious amd federations of traide unions amd employers orgamiaitions. The laiw ailso provides for effective mam- aigement of propeity, funds amdaiccotmts of trade imious, employer i organisations and their respective federa- 5 tions. lt also promotes expeditious dispute y settlement y The Act merged the repealed Trade l Unions Act and Trade Disputes Act. It sets l Out the procedure for application ofregis- f tration and suspension and cancellation of registration oftrade rrnions and e1nployers’ organisations. lt stipulates who may become a member or official of a trade union or employers’ organisation. lt introduces alternative dispute resolution through independent conciliators agreed upon by the parties. it empowers the minister to appoint conciliators and a Committee of Inquiry. The Act introdrrces urgent referralofcases to the lndrrstrial Corrrt concerning recognition oftrade rrnions, redundancy, strikes and lockorrts, and disputes in essential services. The period ofnotice for strikes and lock- orrts has been redrrced to seven days. There is also provision fer an aggrieved party to obtain a prohibition order to avert a strike or lockout. Occupational Safety and Health Act lt repealed the Factories and Other Places of`Work Act. The new law provides for the safety and health ofworkers at workplaces,including offices, schools, academic institu- tions and plantations. The law establishes codes ofpractices for use at workplaces. The law establishes the National ( Zouncil for ()ccrrpational Safety and Health to replace the National Advisory Committee for ()ccu- pational Safety and Health. The Council will advise the minister on occupational death, injury and diseases. lt provides for safetyadvisors who carry out audits. But it empow- ers the minister to exempt some workplaces from registration if he is satisfied that adequate arrangements protect employees. The law proxddes forsafety requirements, including how to use dangerous liquids, storage, ladders and evacuation procedures at the workplace. Safe handling, storage and use of chemicals and hazardous sub-stances are also provided for in the legislation. It also provides for basic welfare facilities at workplaces — supply of drinking water, washing facilities, accommodation for cloth- ing not used during working hours, sitting facilities and first aid. ‘l`he law establishes the Occupa- tional Safety and Health F und. Lt also provides for the Act, rules and notices to be displayed in a promi- nent position at the workplace. Leave Employees are entitled to sick, maternity and paternity leave. Otherforms oflcave are compassionate, annual, study and leave for trade union purposes.

1. (a) Explain FIVE sources of labour laws in Kenya. (10 marks)(b) Outline FIVE functions of labour laws in Kenya. (10 marks)

2. (a) In relation to the Employment Act Cap. 226 Laws of Kenya, state EIGHT deductions that an employer may make from the wages of his employee. (8 marks)

(b) Outline SIX remedies that are available to an employer where there is misconduct by his employee. (12marks)

3. (a) The members of Tendere Union have had their license cancelled by the minister. They have liabilities and some property. They wish to know the consequences of the cancellation of their trade union.(i) Advise the members of Tendere Union on FOUR consequences of the cancellation having regard to the facts above. (8 marks)(ii) Advise the members on TWO consequences of acting while the union is de-registered. (4 marks)

(b) Outline Eight matters that may be contained in a contract signed after successful collective agreement negotiations. (8 marks)

4. (a) (i) Outline the composition of the industrial court. (2 marks)(ii) Outline FOUR powers that the industrial court may exercise in order to obtain evidence regarding a matter before it. (8 marks)(b) (i) State EIGHT matters that are dealt with by the Trade Disputes Act Cap 234 Laws of Kenya. (8 marks)(ii) Explain the reason that led to the enactment of the 1965 Trade Disputes Act Cap 234 Laws of Kenya. (2 marks)

5. (a) Explain FIVE steps that must be followed in the collective bargaining. (10 marks)(b) (i) Highlight THREE legal effects of a collective bargain agreement that has been registered by the industrial court. (6 marks)(ii) Explain TWO ways in which common bargain agreements may be incorporated in contracts of employment of an employee. (4 marks)

6. (a) Outline FOUR conditions that must be fulfilled before an industrial dispute can be referred for arbitration on grounds that an employer is not observing recognized terms and conditions of employment. (8 marks)(b) Highlight SIX requirements of good industrial relations. (12 marks)

7. (a) Outline SIX steps that the Minister for Labour may take upon receipt of a report of a trade dispute. (12 marks)(b) Outline FOUR advantages of arbitration as a mode of settling industrial disputes. (8 marks).