EDO 422 L8 Labour relations

LABOUR RELATIONS Education (TSC, KNUT, KUPPET)

Introduction

Labour law refers to a body of legal rules which regulates the relationship between:- the state,
employers, workers, unions and employer organizations. There are a multiple of relations when
one is at work. The key stakeholders in labour relations include: the employer, the employer, the
management, supervisors, supplier, the union, the ILO as well as the three arms of government
(Judiciary, legislature and executive). The labour laws of Kenya of 2007 improved the
environment for employers, employees and trade unions. It ensures employer observes
employee rights, ensures harmony at workplace and protection of either party.

SOURCES OF KENYAN LABOUR LAW

1. Constituiton

2. Legislation (laid down by parliament – written laws = statutes or Acts

3. Individual labour contracts

4. Collective agreements eg from trade unions

5. Judicial precedent = court laws –based on adopted previous procedure or practice

6. Common law = doctrines of equity – views of legal authors – not binding but
persuasive

7. African customary law

8. International laws, treaties and conventions

OBJECTIVES OF LABOUR LAW REVIEW.

To fulfil the country’s obligation as a member of the ILO (was domesticated & ratified).
Ensure that the eight (8) core ILO conventions are adopted within the new labour laws.
Ensure employment legislation are more user friendly.
Harmonize E. Africa Regional Labour Legislation in readiness for the common market.

The 8 ILO Conventions are:-

1. ILO CON. 29 – Forced labour ratified on 13th January 1964

2. ILO CON. 98 – Freedom of Association and Collective Bargaining 13th January 1964
3. ILO CON. 100 – Equal remuneration for work of equal value 7th May 2001
 4. ILO CON. 105 – Abolition of forced labour 13th May 2001
5. ILO CON 111 – Discrimination in employment 7th May 2001
6. ILO CON. 138 – Minimum age of employment 9th April 1979
7. ILO CON. 182 – Worst forms of child labour 7th May 2001
8. ILO standards and conventions relating to human rights.

Factors that influence labour relations:

 International trends (benchmarking best practice of ILO, world organizations etc)
 Prevailing market conditions in terms of supply and demand of skills.
 The strength of unions in collective bargaining process.
 The strength and unity of employers
 Conventions that have informed employers over time.
 Government legislations (eg pay househelps 10K)
 Decisions made by industrial courts.
 Party manifestos and ideology of the ruling party.

Legal documents enacted by parliament in 2007

1. Employment Act, 2007

Provides for freedom of association for both employers and workers,
Provides the basic terms/ general principles on :-
- Prohibition against forced labour,
- Discrimination in employment,
- Sexual harassment,
- Employment relationship (nature and types of employment),
- Rights of employees and obligations of employers
- Employment separation (termination, resignation, dismissal, redundancy, retirement,
death) and benefits upon termination
- Protection of children from worst forms of child labour, minimum age of employment
and prosecution for contravention
- Dispute settlement and adjudication of prohibited strikes and lockouts.
- Formation, regulation and dissolution of trade unions and employers organizations.
- Collection of union dues including agency fees, and subscriptions for employers
organizations,
- Recognition of collective bargaining,
- Ensures provision of essential services (water supply, hospital services, air traffic control
services and civil aviation telecommunication services, fire services of the Government
and public institutions, and local Government authorities, ferry services)
- Powers of industrial court to deal with urgent applications (recognition, redundancy
without notice, essential services)
-
2. Labour Relations Act, 2007

Consolidates the law relating to trade unions and trade disputes, to :-

Provide for the registration, regulation, management and democratization of trade unions and
employers organisations or federations,
promote sound labour relations through the protection and promotion of freedom of association,
the encouragement of effective collective bargaining.
promotion of orderly and expeditious dispute settlement, conducive to social justice and
economic development and for connected purposes.
The key players are the employer, employee and trade union. Exceptions: the armed forces, the
Kenya Police, the Administrative Police Force, the Kenya Prisons Service and the National
Youth Service, or in any reserve force.

3. Work Injury Benefits Act, 2007 (replaced the Workmen’s Compensation Act)

Provides for compensation of all employees for work related injury or occupational diseases

Registration of employers and insurance of all employees against work related injury or
occupational diseases, including medical treatment, appliances and travel

Compensation of employees for occupational accidents or diseases resulting in disablement or

death
Compensation is denied in the case of injury due to deliberate and willful misconduct (unless
injury is serious-more than 40% disability or death)employee willfully fails to disclose a medical
condition that aggravates injury or disease, one fails to present himself for medical treatment

Employee should not to be denied compensation by threats.

Compensation is based on 96 months’ earnings while temporary disability up to 12 months

Payment of compensation to be within 90days from date of assessment and to injured employee
or dependants within 30 days.

4. Occupational Safety and Health Act, 2007

Applies in any place where a person is at work. Purpose of the Act is to:
Secure the safety, health and welfare of persons at work;
Protect persons other than persons at work from risks arising out of the activities of
persons at work;
Provides for duties of occupiers (who include employers) workers, self-employed people,
suppliers, designers, importers, manufacturers;
Special provisions for health and welfare of workers, machinery, chemical and safety.

5. Labour Institutions Act, 2007

 Provides for the creation and management of all institutions dealing with labour including
The National Labour Board; Industrial Court; Committee of Inquiry
Appointment of Commissioner for Labour, Director of Employment, Registrar and
Deputy Registrars of Industrial Court and Registrar of Trade Unions, Wages Councils
and wages Employment Agencies

6. National Social Security Fund Act, Chapter 258

Establishes the NSSF a compulsory contributory social security scheme;

Provides:Age- benefits,Withdrawal- benefits, Invalidity – benefits,Survivors’- benefits,
Emigration grants

7. National Hospital Insurance Fund Act, Chapter 255

Establishes the NHIF, an insurance fund which:
Caters for medical insurance
Pays for expenses incurred by a contributor, and his or her spouse and dependant children

8. Industrial Training Act, Chapter 237 (Revised 2011)

9. Retirement Benefits Act

Rights of employees
Right to one months’ notice where employer terminates on solid ground.
Right to reasonable working conditions eg have water, food, medicine
Right to regulated hours of work -52 hrs spread over 6 days of the week.
Right to leave days as well as maternity & paternity leave with full pay.
Right to sick leave a maximum of 30 days full pay then half pay in 12 months.
Right to due process on termination on account of redundancy – get written notice

Reasons for employee separation (formal disengagement)

 Voluntary early retirement at age 50- get benefits, gratuity & pension.
 Resignation
 Incapacitation
 Premature death
 Desertion/absconding duty
 Mandatory retirement age as per regulations of organization 55,60,70
 Lay-off (due to merger of companies or service no longer needed)
 Retrenchment – due to economic recess, change in technology, or competition.
 Termination of service due to theft, fraud, poor performance, misconduct..
 End of contract unless new one is signed.
 Summary dismissal – termination without or with less notice. Circumstances for
dismissal include:
- Chronic documented absenteeism without cause or leave.
- One gets intoxicated and fails to perform/willful neglects duty.
 - Neglect to perform own duties as in job prescription
- Use of abusive/insulting language to the employer
- Refusal to obey instructions
- Committing criminal offences against employer or employers’ property
- Arrested for cognizable offence and failure to be released within 14 days.

UNFAIR GROUNDS OF TERMINATION

- Pregnancy or reasons connected thereto.
- Going on an entitled leave.
-Membership or proposed membership to union.
-Participation in union activities outside working hours or with the permission of employer
within working hours.
-Seeking office or becoming an official of a union.

Employment contract for a period of three months must be in writing. Employer is responsible
for drawing the contract and ensuring that the employee signify consent by signing in the
presence of a witness and explain the terms in a language employee gets.

Other Terms which may be in the form of statement: Entitlement to annual leave, public holiday
, sick leave , notice period , if fixed term the date of termination of contract. Pension or provident
fund where applicable and collective agreement where applicable

Indication if an employee is expected to work outside Kenya for a period of more than one
month and currency of payment, additional payment and terms and conditions on return and
while outside the country. The record of the terms must be kept for a minimum of 5 years after
termination of employment

Fixed term contract

The fixed term contracts are for specified period of employment or defined work or task.
Normally used for seasonal employment, project type of work. May be terminated on account of
misconduct, end of period, by notice or any other lawful reason.

Casual Employment

Means a person the terms of whose engagement provide for his payment at the end of each day
and who is not engaged for longer period than twenty four hours at a time. Where casual
employee is engaged for continuous period of 1 month or work which cannot reasonably be
completed in a period amounting to 3 months or more he must be deemed to be on monthly
terms. Is entitled to 1 paid rest day after 6 days continuous work. Casual employee converted to
monthly terms shall enjoy terms and condition of service after 2 months of engagement.
The Teachers Service Commission Act 2012:
The TSC is established under article 237 of the constitution. It outlines TSC composition,
functions and powers, qualifications and procedure for appointment of members.

Functions of the TSC

They are set out in article 237 of the constitution
a. recruitment, promotion, dispute resolution, and discipline of registered teachers…
b. Formulate policies to achieve its mandate
c. Provide strategic direction, leadership and today secretariat
d. Ensure that teachers comply with the teaching standards prescribed by TSC under this act
e. Manage the payroll of teachers in its employment
f. Facilitate career progression for teachers as well as appointment of head teacher/ principals.
g. Monitor the contact and performance of teachers in the teaching service.

Composition
1. Chairperson- an experienced educationist appointed by the commission
2. A member of the commission
3. Secretary to the commission
4. A representative of the PS in the Ministry responsible for Education
5. Representative of the PS in the ministry responsible for finance
6. A representative of the PS in the ministry responsible for public service
7. Five persons nominated by trade unions representing the interests of registered teachers
8. A certified public secretary appointed by the commission the Secretary and an ex- officio
member of the committee.
Secretary TSC
- is a citizen of Kenya
- a degree in education from a university recognized in Kenya- at least 10 years’ experience in
education, administration and management, public administration, human resource or financial
Management
- meets the requirements of chapter six of the constitution
- hold office for a term of five years and is eligible for re-appointment for one further term.
Duties
- head of the secretariat,
- accounting officer of the commission, - custodian all records of the commission
- responsible for: Decision making; assigning duties to the staff; supervising the staff; ensuring
staff compliance with public ethics and values; and facilitating, coordinating during the
execution of the commissions mandate

removal of the secretary

- the functions of the office arising out of physical or mental infirmity

- gross misconduct or behaviour
- incompetence or neglect of Duty
- violation of the constitution
- any other ground that justify removal from office under the terms and conditions of service.

Grounds for refusal to register a person as a teacher

1. Does not possess the prescribed qualifications
2. Is not of good moral character
3. Convicted of sexual offence against a learner.
4. Convicted of criminal offence
5. Engaged in any activities that are prejudicial to peace, good order or good government
6. Suffers mental infirmity that renders the person incapable of performing duties of a teacher.

Removal of name from the register:

1. Death
2. Obtained registration through fraud
3. Convicted of sexual offence against a student
4. Convicted of criminal offence
5. Disciplinary action under the act
6. Suffers physically or mentally, hence incapable of performing duties of a teacher.
The name and particulars of the teacher is removed from the register is published in the Gazette
within one month from the date of such removal.
One ceases to be a teacher from the date of such removal.

Disciplinary offences: Prescribed in the third schedule:

1. Immoral behaviour
- sexual intercourse, sodomy, lesbianism, sexual harassment or flirting.
2. Professional misconduct
- negligence of Duty, lateness to Duty, chronic absenteeism, desertion, incitement,
insubordination.
3. Infamous contact
- drunkenness, fighting, behaviour that contradicts chapter 6.
4. Forgery
5. Mismanagement element of public funds

The commission after interdicting a teacher take the following disciplinary actions:-

- issue a warning letter

- surcharge
- suspend for 6 months
- cancel registration certificate & remove the name from register
- retire in the public interest
- dismiss
- terminate services
- any other lawful action considered appropriate

The KNEC Act of 2012

Cap 225A of the law.
Composition:
1. Chairman appointed by the president
2. PS higher education
3. PS basic education
4. Director of education- higher education.
5. Director of education- basic
6. The chief inspector of schools (higher and basic education)
7. Ten members appointed by minister from various educational institutions n levels.

KNEC Functions:
1. Contact academic, technical and other examinations within Kenya
2. Award certificates two successful candidates in exams
3. Invite any body/ bodies outside Kenya to conduct academic, technical and other exams within
Kenya or conduct jointly with the council and award certificates of diplomas full candidates in
this examinations
4. advice the body/bodies of the requirements of Kenya exams.
5. Make rules regulating the conduct of examinations eg timetable, registration of candidates,
exam centres, braille & large print for special candidates etc
6. Make prescribing
- terms and conditions of service, pension and retirement benefits of staff
- measures of the discipline of staff
- financial procedures of the council
- exam fees and other charges payable to the council

Sources of finance
1. Government
2. Donations, grants and loans
3. Fees or other charges paid by candidates for exams.
4.other monies that may be lawfully obtained or received.
Offences: 12 mths imprisonment, fined 5k or both.
1. Access to exam materials and knowingly reveal the contents whether orally or in writing to an
unauthorised party - irregularities, misconduct & dishonesty will lead to cancelling results of
individual (gets Y) or centre; or deny candidate subsequent exams until after 2 years.
2 maliciously damaging exam material
3 impersonation- sit for another candidate.
4 possess or presenting forged certificate or diploma to an institution/ employer

TRADE UNIONS
Features of a good TU
 Clear mission statement
 Statement showing the organization is a labour union
 Must be registered by Min of Labour
 Must be independent from employer
 Should be associated with national, regional and ILO.
 Must focus on maintenance & improvement of conditions of work.
 Must be capable of engaging in industrial action eg strikes, demos, go-slows etc


Every employee has the right to -

(a) participate in forming a trade union of federation of trade unions;
(b) join a trade union; or
(c) leave a trade union.
(d) participate in its lawful activities;
(e) participate in the election of its officials and representatives;
(f) stand for election and be eligible for appointment as an officer or official
(g) seek employment without being discriminated against.
(h) participate in forming an employers’ organization or a federation of employers’ organization;
(i) No person shall discriminate against an employer for exercising any right conferred by this
Act.

Roles and obligations of a trade union

o Train members on labour union management, their rights and responsibilities.
o Enlighten workers on their rights, duties and responsibilities.
o Improve worker’s living standards by raising salaries/wages
o Encourage employees’ freedom of expression and association.
 o Protect workers from any form of discrimination.
o Ensure salaries, wages and benefits are standardized.
o Ensure fair appraisal of workers to eliminate discriminative promotions.
o Ensure employers provide welfare facilities eg recreation facilities.
o Control employee working hours
o Improve international relations through linkages and affiliations.
o Protect jobs from being declared redundant by employers
o Assist in HR recruitment
o Ensure no breach of peace and unrest between employer and employee.
o Contact union activities during working hours
o Discourage negative events eg negligence of duty, theft, damage to property of employer,
insubordination or abusive language
o Not to engage in activities contrary to the charter
o Take immediate action to implement agreements, settlements, decisions and orders.
o Strive to achieve objectives of the union eg better wages, working conditions, security

Trade Unions and collective agreements

 An employer shall recognise a trade union for purposes of collective bargaining if that
trade union represents the simple majority of unionisable employees.
 A group of employers shall recognise a trade union for the purposes of collective
bargaining if the trade union represents a simple majority of unionisable employees
employed by the group of employers or the employers who are members of the
employers’ organisation within a sector.
 An employer shall conclude a written recognition agreement recording the terms upon
which the employer or employers’ organisation recognises a trade union.
 The Minister may, after consultation with the Board, publish a model recognition
agreement.
 An employer, group of employers or employers’ association may apply to the Board to
terminate or revoke a recognition agreement.
 If there is a dispute as to the right of a trade union to be recognised for the purposes of
collective bargaining, the trade union may refer the dispute for conciliation
 If the dispute is not settled during conciliation, the trade union may refer the matter to the
Industrial Court under a certificate of urgency.
 When determining a dispute, the Industrial Court shall take into account the sector in
which the employer operates and the model recognition agreement published by the
Minister.

For the purpose of conducting negotiations

- an employer shall disclose to a trade union all relevant information that will allow the
trade union to effectively negotiate on behalf of employees.
- All the information disclosed by an employer as is confidential and shall not be disclosed
by any person to a person who is not engaged in the negotiations.
- An employer is not required to disclose information –
 (a) that is legally privileged;
(b) without contravening a prohibition imposed on the employer by any law or an order
of any court;
(c) if disclosed, may cause substantial harm to the employer or employee; or
(d) is private personal information relating to an employee, unless an employee consents
to the disclosure of that information.

- If there is a dispute about what information is required, any party to the dispute may, in
writing, refer the dispute to the Minister for conciliation.
- If a dispute remains unresolved, after it has beenreferred to the Minister, the dispute may refer
the dispute to the Industrial Court under a certificate of urgency.
- In any dispute about an alleged breach of confidentiality, the Industrial Court may order that
the right to disclosure of information be withdrawn for a period specified by the court.
- No person shall disclose any confidential information disclosed under this section to a person
who is not a party to those negotiations.