A HANDBOOK OF THE KNEC SYLLABUS FOR DIPLOMA IN HUMAN RESOURCE MANAGEMENT
NATURE AND ROLE OF EMPLOYEE RELATIONS.
Definition Of Terms Commonly Used In This Unit
Industrial Relations: is the study of job regulation, the making and administering of the rules which regulate employment relationships regardless of whether these are seen as being formal or informal, structured or unstructured thereby raising the fundamental question of who regulates, what, how etc
- The above definition stresses the political nature of industrial relations phenomenon.
- Industrial relations activities are interested in the creation of wealth, distribution of income and control over decisions i.e. who gets what, how and when
- Industrial relations is an important supervisory and managerial activity requiring knowledge and skills to create the right organizational culture
- Its growth is due to many factors;
- The power of trade unions
- Motivating employees
- Industrial democracy
- Sociological, education and political changes
- Larger corporations
- Industrial relations can be regarded as a system or web of rules regulating employment and the ways in which people behave at work. The systems theory of industrial relations, as propounded by Dunlop (1958) states that the role of the system is to produce the regulations and procedural rules which govern how much is distributed in the bargaining process and how the parties involved, or the actors in the industrial relations scene, relate to one another.
- The system is expressed in many more or less formal or informal guises, in trade union regulations, in collective agreements and arbitration awards, in decisions, and in occupied custom and practice.
- The rules may be defined and coherent or ill-defined and incoherent. Rules are therefore meant to define the status quo of the parties involved
- Hence, in this case industrial relations is a normative system where a norm can be seen as a rule, a standard, or a pattern for action which is generally accepted or agreed as the basis upon which the parties concerned should operate.
- Employee relations : consist of the approaches and methods adopted by employers to deal with employees either through trade unions and/ or directly.
- They will be based on the organization articulated or implied employee relations policies, objectives and strategies, industrial relations processes aspects of employee relations i.e. dealing between employers and trade unions.
- Labour relations : represent the relationship that exists between the employer and employee in an industrial undertaking.
- Employee : means a person who has entered into or works under contract with an employer, whether the contract is for manual labour, clerical work or otherwise, i.e. express on implied, oral or in writing and whether it is a contract of service or apprenticeship or a contract personally to execute any work
- Employees association – means an association or combination whether temporary or permanent of more than six employees, which has as its principal purpose the regulation of relations between such employees and their employer or between such employees amongst themselves
- Employees organization : means an association or combination, whether temporary or permanent, of more than six employees who work for different employers, which has as its principals purposes the regulations of relations between such employees amongst themselves.
- Executive : means the body, by whatever name called, to which the management of affairs of a trade union is entrusted, and includes the chairman, the secretary and the treasurer of any trade union.
- Staff association : means an association or combinations, whether temporary or permanent, of more than six employees employed in a civilian capacity under the government or a local authority or authorities, the principal object of which is the regulation of the relations between such employees and the government or such local authority or local authorities or between such employees amongst themselves.
- Employer : Includes the Government and any public or local government authority.
- Organization : Includes a trade union and federation.
- Federation : Means a trade union which is itself an association or combination of trade unions.
- Industrial court means the court established under section 14 (Trade Disputes Cap 234).
- Redundancy means the loss of employment, occupation, job or career by involuntary means through no fault of an employee involving termination of employment at the initiative of the employer where the services of an employee are superfluous, and the practices commonly known as the abolition of office, job or occupation and loss of employment due to the Kenyanisation of a business; but it does not include any such loss of employment by a domestic servant.
- Strike means the ceasation of work by a body of persons employed in any trade or industry acting in a combination or a concerted refusal, or a refusal under a common understanding of any number of persons who are, or have been so employed, to continue to work or accept employment and includes any interruption or slowing down of work by any number of persons employed in any trade or industry acting in concert or under a common understanding (including any action commonly known as sit down strike or go slow)
- “Lock out means the closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done not with the intention of finally determining employment but with a view to compelling those persons, or to aid another employer in compelling persons employed by him to accept terms or conditions of or affecting employment.
- Industrial court means the court established under session 14 of Trade Disputes Act Cap 234.
- Trade Dispute means a dispute or difference between employers and employees, or between employees and employees, or between employers and trade unions or between trade unions and trade unions, connected with the employment or non-employment or with the terms of employment or with conditions of labour.
Nature and purpose of employee relations
- Employee relations policies express the philosophy of the organization on what sort of relationships between management and employees and their unions are wanted, and how they should be handled.
- The overall aim of the policies should be to develop and maintain a positive, productive, cooperative and trusting climate of employee relations.
- When articulated, policies on employee relations provide guidelines for action on employee relations issues and can help to ensure that these issues are dealt with consistently.
- -They therefore provide the basis for defining managements intentions on key matters such as union recognition and collective bargaining.
Employee Relations Policies
The specific areas covered by employee relations policies are:-
- Trade unions recognition – whether trade unions should be recognized or derecognised, which unions or unions the organization would prefer to deal with, and whether or not it is desirable to recognize only one union for collective bargaining and/or employee representational purposes.
- Collective bargaining : the extent to which it should be centralized or decentralized and the scope of areas to be covered by collective bargaining.
- Employee relations procedures the nature and scope of procedures for redundancy, grievance handling and discipline.
- Employee relationship The extent to which terms and conditions of employment should be governed by collective agreements or based on individual contracts of employment.
- Harmonization of terms and conditions of employment for staff and manual workers.
- Working arrangements the degree to which management has the prerogative to determine working arrangements without reference to trade unions or employees.
Employees Relations Objectives
Employee relations objectives define what the organization means to achieve in the application of its employee relations policies. These are to:
- Improve the employee relations climate
- Decentralize collective bargaining arrangements
- Introduce single table bargaining
- Derecognize trade unions
- Develop HRM type approaches of involvement and communication to increase mutuality.
Employee Relations Strategies
– Employee relations strategies set out how objectives such as those mentioned are to be achieved.
– Employee relations strategies should be distinguished from employee relations policies, strategies are dynamic.
– They provide a sense of direction, and give an answer to the question, how are we going to get from here to there?
– Employee relations policies are more about the here and now. They express the way things are done around here as far as dealing with unions and employees is concerned.
– Revolving around unions is not a solution, but only when a deliberate effort is made to change policies that a strategy for achieving this change has to be formulated.
– Thus, if the policy is to increase commitment the strategy could consider how this might be achieved by involvement and participation processes.
– The intentions expressed by employee relations strategies may direct the organization towards any of, the following:
- Changing forms of recognition, including single union recognition, or derecognition.
- Changes in the form and content of procedural arrangements
- New bargaining structures, including decentralization or single table bargaining.
- The achievement of increased levels of commitment through involvement or participation.
- Generally improving the employee relations climate in order to produce more harmonious and cooperative relationships.
- Increasing the extent to which management controls operations in such areas as flexibility.
- Developing a partnership with trade unions, recognizing that employees are stakeholders and that it is to the advantage of both parties to work together (this could be described as a unitarist strategy aiming at increasing mutual commitment)
Employee Relations Climate
– The employee relations climate of an organization represents the perceptions of management, employees and their representatives about the way in which employee relations are conducted and how the various parties (Managers, employers and trade unions) behave when dealing with one another.
An employee relations climate can be good, bad or indifferent according to perceptions about the extent to which:
- Management and employee trust one another
- Management treats employees fairly and with consideration.
- Management is open about its actions and intentions i.e. employee relations policies and procedures are transparent.
- Harmonious relationships are generally maintained on a day-to-day basis which result in willing cooperation rather than grudging submission.
- Conflict, when it does arise, is resolved without resort to industrial action and resolution is achieved by integrative processes which result in a win-win solution.
- Employees are generally committed to the interests of the organization and equally, management treats them as stakeholders whose interests should be protected.
Improving the Climate
Improvements to the climate can be attained by developing:
- Fair employee relations policies and procedures and implementing them consistently.
- Line managers and team leaders who are largely responsible for the day-to-day conduct of employees need to be educated and trained.
- Transparency should be achieved by communicating policies to employees.
- And commitment increased by involvement and participation processes.
- Problems which need to be resolved can be identified by simply talking to employees, their representatives and trade union officials.
- A quality of working life (QWL) strategy can be developed. There is also need to build trust and an ethnical approach when dealing with employees.
The Institute of Personnel and Development, UK suggests that building trust is the only basis on which commitment can be generated and these tensions contained. For these reasons, attaining or sustaining world class levels of performance will be increasingly unlikely in organizations which do not treat their employees in ways which are consistent with their status as the key business resource with two aims:
- Employees cannot just be treated as a factor of production.
- Organizations must translate these values into specific and practical action.
In too many organizations inconsistency between what is said and what is done undermines trust, generates employees cynicism and provides evidence of contradictions in management thinking.
REVIEW QUESTIONS FOR CHAPTER ONE:
- Briefly define the following terminologies
- Industrial relations
- Employee relations
- Labour relations
- What is the role of employee relations in managing the organization?
- Distinguish industrial relations and employee relations
What follows is brief discussion of the Kenyan industrial relation scene from a historical perspective.
Industrial relations in the 1900’s and 1960’s
Introduction of capitalism in Kenya through British colonialism was the genesis of the present day employer-employee relations in Kenya. As early as the 1900’s trade unionism in Kenya has began making itself felt within the then major employer organisation the Kenya- Uganda Railway.
By 1939, the total number of employees in Nairobi then represented about 1% of the potential labour force in the country. The total labour force was at about 5%. However, this tinny % of wage employees was to constitute a significant force for the employers to reckon with and in 1947, the first major worker employer confrontation took place. The first major trade union-African workers federation formed that same year was responsible for this strike in Mombasa.
This strike was the beginning of militancy that was to continue well into the emergency period starting I n October 1952. The perceived link between Mau Mau and Trade unionism by the colonial government helping slacken Union activity. The defeat of the armed struggle saw the revival of unionism and by 1958, among others, the following unions had been registered; Kenya Shoe and Leather Workers Union, Kenya Engineering Workers Union, Kenya Timber and Furniture Workers Union, Kenya Electrical Trade Workers Union, Tobacco Brewing and Bottling Workers Union, Kenya Motor Engineering and Allied Workers Union and Kenya Quarry and Mine Workers Union.
The issue of recognition of the unions was another matter all together. For instance, the Kenya Engineering Workers Union was only recognized on 10th June 1960. Recognition by the employer organisation was and still is, therefore, an important step in the process of establishing formal union-employer remuneration negotiation channels.
It is significant that in the Agricultural sector, the trade union movement made itself felt fairly late. It is only in 1959 that the first agricultural workers union sisal and coffee plantations Workers Union was formed. This was followed by Tea Plantation Workers Union, General Agricultural Workers Union, Kenya Union of sugar plantation Workers union all coming in 1960. These appeared in the plantations near Nairobi, possibly due to pressure and influence from the urban movements.
Industrial Relations Development, 1960’s 1970’s
By the 1960s the industrial relations scene in Kenya had become dominated by foreign owned commercial and industrial organisations. The employers association (later renamed federation of Kenya employers) the ACIE (Association of Commercial and Industrial Employers) felt the need for closely monitoring the development of amicable industrial relations.
In 1962, the industrial relations charter was signed by the three major actors in Kenyan IR scene; the Kenya Government, Federation of Kenya Employers and the Kenya Federation of Labour. The charter was to stem the tide of strikes that had begun in 1961. It was to avoid such strikes that the charter pointed out that: –
It is in the National interest for the Government, Management and workers to recognize that consultation and cooperation on a basic of mutual understanding render an essential contribution to the efficiency and productivity of an undertaking and that progress can only be made on a foundation of goods terms and conditions of employment which include security of service and income, also the improvement of workers conditions of service
The cause of these strikes were as varied as the various employer organisation, but they all shared the usual grievances; poor supervision, racial connotation in access to higher status positions and remuneration.
Strikes continued to be occasioned even after the charter more often, employers failed to meet some of their promised obligations and the new African government was more sympathetic to the employers cause than to that of the workers, who were being accused of engaging in counter productive practices.
Workers now felt betrayed by their leaders who had become national political figures, and soon, the Kenya Federation of labour found itself facing stiff rivalry from the Kenya African Workers Congress, which claimed to be the real champion of the workers cause.
The government swiftly stepped in to avoid conformations. The end result was the formation of C.O.T.U (Central Organisation of Trade Union), which though an amalgamation of the two warring factions took more of the nature of Kenya Federation of Labour in its policies. The government Employer alliance had now won a major battle against workers.
Through time, the trade union movement in Kenya has continued to be subjected to server restrictions by the government. The industrial court had been seen as an effective instrument for meeting out justice. However government activities like through the issuance of wage guideline has now cast doubts to the courts independence
The Trade Disputes Act, 1965, apart from establishing the Industrial Court introduced into the Kenyan industrial relations system, complicated procedures before a strike can take place. The Act and its rules and procedural regulations have tended to minimize the freedom of the workers in resorting to a strike as a last resort.
The trade union movement though strong in numbers is still weak in terms of influencing key managerial decisions. The weakness of trade unionism is vindicated by the fact that:
Unions do not provide any form of assistance to their members in the event they set victimized due to a strike Except far a few unions, membership recruitment is done by the organizing secretaries and shop-stewards Relatively few unions after any service other than bargaining and grievance handling to the members Most unions are one-man shows with the general secretary doing all the bargaining, handling all major grievances, resolving problems in the branches and so on.
These Union weaknesses are contrasted with the powerful position of the employers. The FKE provides all sorts of assistance to its employer associations, has great financial strength and always counts on government support in the event of a strike. The FKE has its own economics advisers, lawyers and IR experts, who boost the organisations, position vis-à-vis that of the workers on the bargaining table.
NATURE OF EMPLOYMENT RELATIONSHIP
Over the years the employer-employee relationship has changed from master and servant to one of employer and employee. This relationship is contractual, reciprocal and mutual.
Obligations of the employer include; provision of wages, statement and provision of benefits, while the employee is expected to provide an honest, efficient, faithful service, obey instructions and so on. Employees have a right to job security, entitlements to pay and benefits, freedom of association, refusal to work if the workplace is unsafe, right to strike, right of appeal to redress grievances.
Employer rights include; right to formulate rules for recruitment etc, right to discipline (within the allowance of relevant Acts), expect the employee to work and behave within rules as per agreed terms.
The significance of good industrial relations in any country cannot be overemphasized. Good industrial relations are necessary for various reasons.
- Good industrial relation helps in the economic progress of a country. The problem of an increase in productivity is essentially the problem of maintaining good industrial relations
- Good industrial relations help in establishing and maintaining true industrial democracy, which is a prerequisite for the establishment of a socialist society
- Good industrial relations help management both in the formulation of informed labour relations policies and their translation into action
- Good industrial relations encourage collective bargaining as a means of self-regulation. They consider the negotiation process as an educational opportunity, a chance both to lean and to teach
- Good industrial relations help government in making laws for bidding unfair practices of unions and employers
- Good industrial relation reflects themselves in several ways. In workers movement unions gain more strength and vitality. There is no inter-union rivalry. Employers give unions their rightful recognition and encourage them to participate in all decision. Unions divert their activities form fighting and belligerence to increasing the size of the distribution cake and to making their members more informed, no vital issues concerning them.
- Good Industrial relations boosts the discipline and morale of workers. Maintenance of discipline ensures orderliness, effectiveness and economy in the use of resources
Good industrial relations depend on a great variety of factors. Some of the more obvious ones are listed below:
- History of Industrial Relations
- Economic satisfaction of workers
- Social and psychological satisfaction of workers
- Off-the-job conditions of workers
- Enlightened and responsible labour unions
- Negotiating skills and attitudes of management and workers
- Public policy and legislation
- Education of workers
- Nature of industry and business cycle
- History of industrial relations
A good history is marked by harmonious relationship between management and workers. A bad history by contrast is characterized by militant strikes and lockouts. Both types of history have a tendency to perpetuate themselves. But a perpetuating tendency does not mean that a history of conflict cannot be overcome or that a history of harmony cannot explode into violence
- Economic satisfaction of workers
Human needs have a certain priority. Need number one is the basic need for survival. Man works because he wants to survive. Hence the economic satisfaction of workers is another important contributor to good industrial relations.
- Social and psychological satisfaction
Identifying the social and psychological urges of workers is an important step in the direction of building good industrial relations. Man has several other needs besides his physical needs which should also be given due attention by the employer.
The supportive climate of an organisation is essentially built around social and psychological rewards. Workers participation in management, job enrichment, suggestion schemes, redressal of grievances, effective two-way communication are same such social and psychological rewards.
- Off-the-job conditions
Although some employers may occasionally wish that they could employee only a person’s skill or brain, they in fact end up employing a whole person. His home life is not totally separable from hi s work life, and his emotional condition is not different from his physical condition. Hence for good industrial relations, it is not enough that the workers factory life alone should be taken care of. His off-the-job conditions should be improved.
- Enlightened Labour Unions
The most important single condition necessary for good industrial relations is a strong and enlightened labour movement, which may help to promote the status of labour without jeopardizing the interests of management. Investigations show unions though talk much of the employer’s obligations to the workers, say very little about the workers responsibility to the employer. Many enlightened unions usually do focus on employee contribution and responsibility and they have gained both social and economic rewards by this approach. Such unions exhort workers to produce more, persuade management to pay more, mobilize public opinion on vital labour issues and help government to enact progressive labour laws.
- Negotiating Skills and Attitudes of Management and Workers
Well trained and experienced negotiators who are motivated by a desire for industrial peace create a bargaining atmosphere conducive to the writing of a just and equitable collective agreement. On the other hand, ignorant, inexperienced, and ill-trained persons fail because they do not recognize that collective bargaining is a difficult human activity that requires careful preparation.
- Public Policy and Legislation
When government regulates employee relation, it becomes a third major force determining industrial relations the fist two being the employer and the union. Governments intervene in management union relationships by enforcing labour laws and by insisting that the goals of the whole society take precedence over those of either of the parties. Governments intervene in a number of ways:
- It helps in catching and solving problems before they become serious
- It provides a formalized means to the workers and employers to give emotional release to their dissatisfaction
- It acts as a check and balance upon arbitrary management action
- Better Education
Industrial workers in developing countries are generally illiterate and are misled by outside trade union leaders who have their own axe to grind. Better workers education can be a solution to this problem.
- Nature of Industry and Business Cycle
Industrial relations are good when there is boom and prosperity all around. During such periods levels of employment and wages rise, which make workers happy. But during recession, there is a decline in employment levels and wages. This makes workers unhappy and mars good industrial relations.
Poor industrial relations are the result of a number of socio-economic, political and psychological factors, which are as follows:
- Uninteresting Nature of work
- Political Nature of Unions
- Poor Wages
- Occupational Instability
- Poor behavioural climate
- Uninteresting Nature of Work
The problem of poor industrial relations is essentially a product of large scale production which has made man subordinate to the machine. Due to specialization, a worker in a factory performs only a minor operation in the entire production process. This has made him lose his sense of pleasure, pride and satisfaction from work, which he used to get. This dissatisfaction of the worker on the shop floor generally culminates into big strikes and lockouts.
- Political Nature of Unions
Another major irritant to good industrial relations is the politicization of labour unions by outside political leaders. This leads to multiple unions and inter-union rivalry. Inter union rivalry depresses both a unions membership and its finances. As such, unions are unable to be effective.
- Poor Wages
Too much tight or complicated wage and incentive and pay systems are a cause of poor industrial relations. Wage and salary differentials between occupations also create a feeling of inequality and mar good industrial relations.
- Occupational Instability
Occupational stability makes workers feel secure on their jobs, and as such positive industrial relations.
- Poor Behavioural Climate
The behavioural climate of an organisation which is made up of its culture, traditions and methods of action may by either favourable to the worker or unfavourable. Favourable climate helps the worker meet his economic, social and psychological needs. It produces a good image of the organisation in his mind. An unfavourable climate prevents a worker from meeting his various types of needs and produce a negative impression of organisation. This drives the worker to seek membership of a militant labour organisation to vent his negative feelings. This causes poor industrial relations.
Suggestions to Improve Industrial Relations
- Both management and unions should develop constructive attitudes towards each other.
- All basic policies and procedures relating to industrial relations should be clear to everybody in the organisation and to the union leaders
- The personnel manager should remove any distrust by convincing the union of the companys integrity and his own sincerity and honesty.
- The personnel manager should not vie with the union to gain workers loyalty. He should not try to win them away from the union
- Management should encourage the right kind of union leadership
- After a settlement is reached between the employer and employees unions the agreement should be properly enforced
As earlier indicated, the period between 1958 and 1961 saw a lot of agitation, upheavals and strikes in the labour movement in Kenya, although there was confusion between agitation for political independence and labour matters.
The above confusion led the colonial government to formulate a document in 1962 to insulate industrial agitation from political agitation. This document was the Industrial Relation Charter. It became the mother of industrial relations in Kenya. The charter was revised in 1980.
The charter defines the social contract between the three parties involved in Industrial Relations the Government of Kenya, the employees and the employers. The charter made provisions for the RECOGNITION AGREEMENT, which forms the basis of the collective bargaining system. The three parties started TRIPARTITE.
- To affirm the faith of the three parties to democratic principles on labour matters i.e. differences should be solved through mutual negotiations, conditions and arbitrations.
- In case of strikes or lockouts parties agreed to be bound by: – mutual agreements and the law i.e. the Trade Dispute Act
- The three parties agreed to abide by and co-operate in implementing the Collective Bargaining Agreements (CBAs)
- They undertook to observe the grievance procedure contained in the Recognition Agreement
- The government to educate labor officers, Federation of Kenya Employers (FKE) to educate employers, and COTU to educate employees on the importance of good Industrial Relations
- The three parties agreed to form the National Consultative Council to advice the Minister for labour on all general Industrial Relations Matters.
- The NCC was to form a demarcation committee to determine areas of jurisdiction in the event of conflict by Trade Unions
- Each party was to respect one another’s Freedom of Association.
- Pa rities agreed to act expediently in replying to correspondence from another party.
- The charter established a Tripartite Consultative Council to advice the minister on matters affecting the economy in general and employment in particular
- The charter excluded the following groups of workers from participation in Union matters: –
- Staff who formulate, control or administer any aspect of organisation policy
- Staff who perform work that is of confidential nature
These are; the government (Ministry of Labour), COTU (for all employees in unions) and FKE (for employers)
Responsibilities include: –
- Ensure speedy settlement of disputes and a return to work formula
- Have joint consultations with COTU and FKE on matters of employee policy and administration
- Promote Industrial Trade Unionism as opposed to Craft Trade Unionism
- Ensure no overlaps among registered unions through clear definition of each Union
- To display the charter in the offices and ensure that officers comply with it.
Individuals or groups of employers undertook: –
- Accord recognition to unions as the negotiating bodies, by signing the recognition Agreement
- Not to be involved in the right to registration of a union
- Not to discriminate, malign or coerce any employee because of his union activities
- To recognize the ILO Convention No. 98 the right to bargain collectively and to organize/associate freely.
- To take action to settle grievances that may arise in the organisation
- To implement all decisions in the CBA
- Not to be irrational be able to distinguish between acts that require dismissal and those that require other less severe disciplinary action
- To avail time and opportunity of ordinary workers to reach employer/management on personal maters
- To let managers and workers know about the charter and give the document publicity.
COTU (for employees)
The union under took to: –
- Discourage breach of peace or civil commotion by Union Members
- Ensure the union representatives do not encourage or cause members to engage in union activities during working hours
- Discourage members from neglect of duty, destruction of property, use of abusive language and disturbance of normal work
- Make the charter known to members and give it publicity
- Promote a high degree of union membership so that CBA covers a majority of workers.
This is a document, which defines the relationship between employers and employee, and gives rights and privileges to each party. The signing of this document leads to Collective Bargaining Agreements (CBAs)
The document is in recognition of ILO convention number 111, which provides guidance to social policy on employment. This ILO document calls for: –
- All parties to avoid discrimination based on race, gender etc
- All parties agree to end strikes/ lockouts as a means to settle disputes
- Employees no to intimidate employers
- No press statements to be issued before an issue is settled
- Managers should no be intimidated by union in performance of their work
- No closed shop trade unionism-where workers are forced to become members of a particular union
- Hit lists are prohibited and work council recognized
- Subsidiaries of multi-nationals to be bound by regulations of the local country.
- Recognition Agreement must define confidential staff those handling confidential corporate matters
- After elections unions must notify employers of the elected officials at National and Branch levels and accord these officials proper credentials
- Employers are bound to negotiate only with accredited union officials
- Recognition Agreements must state that no employee will be forced to join a particular union and neither should the employer punish employees for joining a union.
- Employers will reserve the right to manage in certain matters
- Union activities must be conducted outside working hours unless with permission from the employer
Note: Tripartite Approach is used in resolving labour related issues where the government, COTU and FKE sit together and deliberate until an agreement is reached.
FRAMEWORK OF INDUSTRIAL RELATIONS IN KENYA
Labour relations matters in Kenya is regulated by three bodies. These are the Central Organization of Trade Unions of Kenya, which represents the interests of workers through trade unions; the Federation of Kenya Employers, which is the apex bodies of employers and the Industrial Court which assists in settling disputes.
All trade unions in Kenya except Kenya National Union of Teachers (KNUT) are affiliated to COTU.
The objectives of (COTU (K)) are to:
- Improve the economic and social conditions of all workers in all parts of Kenya and to render to them assistance whether or not such workers are employed or have ceased to be employed.
- Assist in the complete organization of all workers in the trade union movement
- Organize the structure and spheres of influence and amalgamation of trade unions affiliated to COTU
- Assist in settling disputes between members of trade unions and their employers or between trade unions and their members or the employees of one union and the employees of another union or between two or more trade unions
- Encourage the principle of the development and maintenance of good relations between employees and employers
- Form area offices of COTU in any specified geographical areas of Kenya where there are braches of registered trade unions
- Secure adequate representation on government boards and committees dealing with labour legislation on matters affecting workers
- Establish and maintain funds by means of membership fees monthly contribution donations subscriptions levis and by borrowing on such securities and terms as may from time to time be arranged by the executive amount as may be determined by the minister for labour
Set up appropriate committee to provide training education and other facilities and enterprise for the advancement of workers and the labour movement
The functions of COTU follow from its objectives. The reader is cautioned not toe confuse objectives and functions though they may appear to be similar. The major functions of COTU are:-
- Maintaining and advancing the terms and conditions of employment as well as improving the physical working conditions of all workers in all parts of Kenya.
- Safeguarding and increasing employment opportunities
- Conducting industrial disputes, raising and disbursing funds, in this connection, it assists in settling disputes between members of trade unions and their members or employees of one union and employees if another union or between two or more trade unions:
- Settling up appropriate committees to provide benefits and welfare activities such as education, training, legal aid and sickness benefits;
- Increasing workers participation in the control of industry
- Organizing the structure and spheres of influence and amalgamation of trade unions affiliated to COTU;
- Maintaining adequate representation on government boards and committees dealing with labour legislation on matters affecting workers;
- Assisting the complete organization of all workers in trade union movement
- Serving as agencies for the purpose of commenting on economic, social and political affairs
To clearly understand the organizational structure of COTU, we will need to look at its organization chart (Fig. 15.1.)
Amalgamated Union of Kenya Metal Workers
|Garages and Motor repair shops, tyre retreadres, electrical and electronic equipment assemblers including radio and television repair shops and motor assemblers.|
|Kenya Building and Construction, Civil Engineering and Allied traders Workers Union||
Building and Construction and Civil Engineering Industries
Kenya Chemical Workers Union
|Manufacturers and converters of basic industrial chemicals, including fertilizers, salts, plastics, rubber, perfumes, insecticides, paints, glasses, cement, pottery, china earth ware, plaster products and asbestos.|
Kenya Engineering Workers Union
General Engineering and allied industries; metal converting, smelting, refining, and rolling mills.
|Kenya Local Government Workers Union||
Kenya Airline Pilots Association
|Kenya Electrical Trade and Allied Workers Union||
Electrical and related industries
|Kenya Bakers and Confectioners Workers Union||
Bakeries and Confectioneries
|Kenya Game Hunting and Safari Workers Union||
Game reserves, Safari parks and national parks
|Kenya Quarry and Mine Workers Union||
Mining and quarrying industries
Kenya National Union of Fishermen
Fishing and related industries
|Kenya Shoes and Leather Workers union||
Shoes and leather manufacturers
Kenya Jockey Workers Union
Horse racing and related activities
|Kenya Plantation and Agricultural Workers Union||Plantations and agricultural except sugar growers and millers|
Kenya Petroleum and Oil Workers Union
|Petroleum refining, petroleum products, distributors, aviation oil filers, petroleum oil exploration, drilling, processing, marketing and oil pipeline|
|Kenya Union of Sugar Plantation Workers||
Sugar growers and millers
|18||Kenya Union of Commercial, Food and Allied Workers||Food processing, commercial and distribution trades|
|19||Kenya Union of Entertainment and Industry Employees||Music Industry, record manufacturers and entertainment|
|20||Kenya Union of Journalists||Newspapers, magazines and periodical publishers|
|21||Kenya Union of Printing, publishing paper manufactures and allied workers||Printing establishments, paper pulp and board makers|
|22||National Seamens Union of Kenya||Ship crews engaged in Kenya|
|23||Railway Workers Union||Kenya Railways|
|24||Tailors and Textiles Workers Union||Textiles, tailoring and garment manufacturing|
|25||Kenya Union of Domestic, Hotels, Educational institutions, Hospitals and Allied Workers||Hotel and Catering establishments bars, and domestic servants, educational institutions and schools, harambee institutes of technology, village polytechnics, night clubs, churches, private hospitals and charitable organizations|
|26||Union of Posts and Telecommunication Employees (K)||Postal, internal and external telecommunication services|
|27||Union of Scientific, Research, Technical and General Employees (K)||Scientific, Research and its total labour force|
|28||Transport and Allied Workers Union||Transport companies, transport equipment operators including aircraft, bus companies and tour operators|
|29||Banking Insurance and Finance Union||Banks, Insurance and other financial institutions|
The above is a list of trade unions affiliated to COTU and the type of industry they represent.
The Federation was formed as a central body of employers in 1959. It is registered under the Trade Unions Act (Cap 233) of the Laws of Kenya. It is the apex body of employers in Kenya.
Its principal objects are to:
- Promote good industrial relations between employers and their employees through their trade unions;
- Encourage fair labour practices among the employers;
- Provide forum for consultation between and among members;
- Collect and circulate information and statistics and advise members on their rights and obligations on employment matters
- Initiate, promote and support legislative measures which are likely to benefit employers or to promote their interests;
- Represent, advocate and defend the interest of employers generally.
Unions mainly depend on membership participation and they must of necessity include service. FKE membership is open to all employers in both public and private sectors upon payment of membership fee, an annual subscription and a building levy. Both the annual subscription and the building levy are based on the number of employees engaged by the employer. FKE is a member of ILO, International Organization of Employees (IOE) and Pan-African Employers Confederation (PAEC). There are four main categories of membership for the purposes of negotiations. There are several rates for trade associations, religious and charitable organizations.
Membership is not constant since new members join, others withdraw while others may be expelled. The four categories of membership are:
Individual Firms and Companies. These are the business organizations which prefer to negotiate or deal with the trade unions directly. They may or may not have common industrial or trade interests with other business organizations.
Groups of Companies or Firms. These are individuals member companies or firms, which are voluntarily grouped together for the purpose of negotiations with their commonly recognized trade union. They are organizations with similar industrial or trade interests.
Employer Associations. These are associations registered under the laws as employer associations but they are affiliated to FKE for purposes of industrial relations. They have their own constitutions and rules. Some of them receive secretarial services from FKE and some provide their own secretarial and administrative services.
Statutory Boards. These include parastatal bodies. They negotiate or deal with trade unions in the same way as any private company and they participate fully in the affairs of FKE.
The Management Board comprises of thirty members, who represent the broad industrial and geographical interests of the membership. The Management Board controls the business and affairs of FKE. The board may delegate its powers as it may see it fit to the Executive Committee which consists of the Chairman, two Deputy Chairmen, three Vice-Chairmen, the immediate Past Chairmen and not more than twenty-four members elected annually by members in addition to co-opted members. The day to day running of FKE business and affairs is the responsibility of the Executive Director who is also the Secretary to both Management Board and Executive Committee
FKE is the only representative of employers recognized by the Government. Its functions are:
- Representation on Tripartite and other Boards. FKE is recognized by the Government as the employers representative outside the civil service. FKE serves and represents the interests of employers on the following tripartite boards:
- The General Wages Advisory Board and other sectoral Wage Councils
- The National Social Security Fund Advisory Board
- The National Industrial Training Council and its various committees
- The Tripartite Committee dealing with Trade Disputes
- Secretarial services. FKE acts as secretariat to a number of trade associations.
- Consultancy Services. FKEs Executive staff assist members in negotiations with their trade unions by providing up-to-date data acting as their spokesman or by agreement as chairman of joint negotiating committee; drafting collective bargaining agreements and following them up for registration by the Industrial Court. They also assist members at conciliation meetings, prepare memoranda in respect of trade disputes and represent them in the Industrial Court.
- FKE offers training to the staff members and the executives of its member’s organizations. This is in line with their belief that training of personnel is necessary for the promotion of productivity and good industrial relations.
- Industrial Stability. FKE is one of the social signatories to the Industrial Relations Charter which is a social contract between the social partners government, employers and workers. It spells out the rights and responsibilities of the signatories in the management of industrial relations in Kenya.
- Creation of Employment. FKE has been associated with the tripartite agreements for temporary relief of unemployment.
- Dissemination of Information. One of FKEs major functions is to keep its members well informed of the developments in matters relating to employment, like changes in labour laws, and the policy decisions which are of interest to them.
The Industrial Court is probably the most important feature of labour relations in Kenya. The Industrial Court was established under the Trade Disputes Act (Cap 234) of Laws of Kenya. Until January, 1989, the Court had only one judge, assisted by members of the Court, however another position for the second judge was created so as to ease the workload of the court.
The main objective was and still is the settlement of trade disputes which are referred to it by either parties (employer and employees) or the Minister for Labour when all other procedures have failed. The Court is empowered to make award (s) to the aggrieved party of parties. The award is final and there is no provision for appeal; the decisions are binding.
When making decisions, the Court takes into consideration the national economic conditions, the financial position of the employers and the existing collective bargaining agreement.
Presentation of a case to the Court involves the employer represented by the FKE, the employee(s) represented by a union and the Industrial Court Judge presiding and assisted by members of the Court. The procedures are different from those found in the Courts of Law, although order must be maintained. Some of the matters settled through the Court are wrongful dismissal which leads to reinstatement (not all the time), salary/wage disputes, redundancy and any other disputes unresolved by voluntary negotiating machinery so long as they are within the existing CBA. In this respect, the Industrial Court acts as a bridge between the employer and employees in settling disputes and ensuring that industrial peace prevails in the county.
Tripartite Committee – means a committee consisting of a representative of the Minister, who shall be the chairman, and two other members appointed by the Minister, one from a panel of persons nominated by or on behalf of organizations of employers, and the other from a panel of persons nominated by or on behalf of organizations of employees.
The first industrial court was established in June 1964 by virtue of Trade Disputes Act of 1964 was later repeated on June 8th 1965. Section 14 of Trade Disputes Act gives powers to the President to establish an Industrial Court: Today we have two industrial courts in Kenya:
The first court was filled with disputes which was making them to take long. This called for an establishment of a second court.
Functions of I.C.
- The I.C. adjudicates in Trade Disputes which have complex questions and issues of economic social & political nature.
- Trade dispute is a dispute or a difference between employers and employees, employees & employees.
- The dispute must be connected with employment or no employment.
- It may also be concerned with conditions of employment.
- i) Judges
– The court consists of 2 judges of the High court appointed by the President of the Republic of Kenya for a term of not less than 5 yrs.
– The qualifications of the persons appointed are the same as those of High Court Judges and has also been an advocate of a high court for not less than 7 years.
- ii) Members
– There are 8 members of IC appointed by the Minister of Labour after consultation with FKE and COTU.
– Appointments is for a term of not less than 3 years.
– One of the members is the Deputy appointed to the Judge by the Minister for Labour
– Where expedient (useful) the Judge may appoint two accessors one representing the employers and the other representing employees.
– Where members are unable to agree as to the award or decision in any matter, the matter is decided by the Judge of the Court acting with full powers of the Umpire.
- The award is final and there is no provision for appeal the decision is binding.
- When making decisions, the court takes into consideration the national economic conditions, the financial position of the employees and the existing collective bargaining agreements
- Presentation of the case to the court involves the employer represented by the FKE, the employees represented by a union and the industrial court judge presiding and assisted by the other members of a court.
- The judges and other members are eligible to re-appointment.
- The appointments are notified in Kenya Gazette which also states terms for which such appointments are made
- The IC is not part of Kenya Judiciary Court. It is a special court created under the T.D Act and is entirely from the vote of the minister for labour
- The decisions taken by the industrial court are not necessarily based on legal arguments and technicalities alone. They go beyond the legal rights of the parties and stretch deeply into the spheres of economic, social human relations and political necessities which keep changing.
- The success and the ad justification of the courts lies in the fact that it is not too regulastic in awards of decisions.
- Although the court is financed by the Ministry of labour it is very independent hence is under no influence whatsoever either of the Ministers for labour or any other development except to the extend that the court has to take into consideration wages guidelines issued by the Minister for Finance.
- The Judges are of the same status as High Court Judges.
- Industrial court procedures are made by Chief of Justice of Kenya for the purposes of regulating the procedures of Industrial Court.
- The court may regulate its own procedures if it thinks fit on other matters which may not be covered by rules.
- One does not have to be a lawyer to be submitted in this court ie you must be accredited by your employer or Trade Unions.
- The Industrial court operates more or less like any other court with all the formalities. But it has its own rules which may be stipulated in Legal Notice No. 186 of 1965. However, it should be noted that it has deliberately left out the swearing on oath practice in order to create a relatively relaxed atmosphere in the court room.
- The disputes referred to the Industrial court must be either through voluntary signing of Form A by the parties to the dispute or by the Ministers order under section 8 of the Trade Disputes Act.
- The court cannot however register any case unless there is a certificate from the labour commissioner under Form `G and Form `H signed by the Minister to the effect that the dispute had been reported to the Minister and that the voluntary settlement machinery had been exhausted.
- The rules also provide for the parties to make written submissions.
- The court also has powers to sermon witness to appear before it and give evidence on both or to furnish in writing such particulars as it may require and produce any relevant documents.
- At its discretion the court may admit evidence of affidavit (written statement). The rules also allow lay down procedures where is a party wishes to appeal to the IC or against a Ministers decision.
- There are rules also covering the interpretation of applications and the rectification of the clerical mistakes including errors of omissions.
- The proceedings to the court are governed by the rules of the court and in conclusion, the court would give its judgement by way of awards to either of the parties.
- In cases of dismissal of an employee, the court can award reinstatement or compensation for wrongful loss of employment to the extent of maximum of 12 months wages. The court awards are final and cannot be challenged inany other court. There is no appeal failing to comply with court order regarding reinstatement is an offence and subject to a fine of 10,000/= for every month one fails to implement the order.
- Finally, the industrial court has the responsibility to consider and register all the collective agreement entered into by the unions and employers and similarly, the objective is to ensure that the wages agreed must be in line with the wage guidelines.
- Any collective agreement which has not been registered with the court is illegal and its implementation is an offence and subject to a fine not exceeding Kshs1,000/=
- Parties are required first to result to their own voluntary laid down machinery for solving disputes.
- In all recognition agreement as in disputes from collective agreement and an elaborate procedure be specified to deal with collective claims and grievance procedures for individual complaints.
- The highest forum at the parties own level is usually the central negotiations council or the Joint Industrial council.
- If a deadlock is recorded at this level, then either party is free to report the existence of a trade dispute to the Minister for labour.
- In order to forestall any industrial action either party may report an existing or apprehended trade disputes to the Minister for Labour. This is more so especially on essential services such as the Docks, Banks, Fire & Ambulance services and teaching.
- These services are too essential and that is why the Minister is too keen to stop strikes in these areas.
Why workers prefer industrial court as opposed to other courts?
- Consideration taken into account by the industrial court are much wicker than mere legal arguments.
- The court puts into consideration aspects of industrial relation practices.
- The court is not too legalistic although legal arguments are also given weight and considerations.
- The court does not allow legal technicalities to defeat end of Justice.
- Parties do not have to pay any court costs or litigation fee.
- The intention of the court is that no impediments should be placed in the way of parties in bringing their cases to the industrial court.
- Costs would be an obstacle if introduced and there being no court fees, hence the issue of paying cost to parties when one has lost does not arise.
- The IC resolve is final and legally binding and any violation against sanctions of the IC is incriminating.
- The IC considers the bounds of fairness and justice by considering the rights of both partners involved in a dispute.
- The award compensation enhances good relations.
Enforcement of awards or court decisions
- In disputes over collective agreement the award of the court becomes effective from the date it is made. If an employer fails to implement (comply with) an industrial court award, workers action will not be declared unlawful by Minister.
- For every time you fail to implement courts decision there is a fine of 10,000/= per month or part of the month.
- Once the disputes has been accepted by court, parties appear before the Judge for the mention of the dispute.
- The first appearance is just a mention, then they are given time to put their submissions in support of a case.
- Claimants who are usually Trade Unions are given the final chance then the respondents usually management provide answers.
- When the court makes awards on salaries it ensures that the rewards do not militate against creation of employment.
- The court therefore has a very difficult task that calls for people of great integrity and high moral standards. Thus magistrates who are likely to be bribed and make the poor suffer are not required.
- The court ensures that workers get a share of their sweat by improving their standard of living, while shareholders expect to earn reasonable return either on their capital. Therefore the court has to balance between employees and the shareholders.
- The IC also puts into consideration depreciation of machinery and even replacement of machines, expansion of enterprise and creation of new jobs. Hence the courts decisions have to be fair and balanced.
- The parties are usually required to comply with the following provisions:
- Each party (within 7 days) sends a memorandum to court (that is after mention)
- In the case of workers or trade unions it sets out: the nature and full particulars of each item of the claim involved; the classes of workers involved in the dispute (s); such submissions as the claimant party may wish to make in support of its claim.
- In the case of respondent usually management they will: send such reply as they may wish to give in the item of the claim raised by the claimants memorandum; an admission of such submission set out in the claimants parties memorandum as the respondents admit and denial of any such submission as the respondent party does not admit; any submissions which the respondent parties may wish to make in support of its reply i.e. quote authorities which make you take your stand.
- Parties are required to submit the names of witnesses they wish to call during the hearing.
- Each party (within 7 days) sends a memorandum to court (that is after mention)
- The hearing date is also fixed at the first mention of the dispute.
- Parties are required to table all documents which they are going to align on with written submission (usually in the appendix)
- The time for parties submission is usually 4 weeks after mention.
- Written submissions are delivered through court officials.
- The parties may apply to the court for permission to extend the time for them to give their submissions.
- On the hearing date of the dispute the claimants start the hearing by making their opening submissions both written and verbal.
- This is followed by the respondents who again present their opening submissions written and verbal
- Parties emphasize on their strong points in their cases and are expected to highlight and attack the weak points in each others submission
- During the opening submissions and final submissions and infact at all times, parties should be prepared to answer fully any questions directed to them by the judge.
- The evidence of the witness is given on oath or affirmation
- The party calling the witness leads the evidence and the other party then cross examines the witness with a view of testing his credibility
- After cross examination, the party calling the witness may re-examine the witness to eliminate any confusion that may have been caused during cross examination
- During re-examination, the party is not allowed to introduce any new point to previously brought up by witness
- The final submissions are made by parties after the evidence has been given by witnesses
- Claimants also sum up their cases then followed by respondents. After the hearing the count reserves its judgment and the award of the court is announced in due course on notice generally within four weeks after the hearing has been concluded
Summary of the role of IC in industrial relations
- It accepts the collective agreements for registration for it to be legally recognized and implemented
- It determines and verifies the desirability and legality of collective agreements before theyre implemented. This is done through amendments and further negotiating between the concerned parties
- It plays a big role in the settlement of trade disputes and matters relating thereto
- Whereupon there an award to be made after the settlements of a trade dispute this is in domain of the industrial court
- When theres need the industrial court can also investigate matters related to trade disputes with the purpose of gathering relevant evidence
- Bargaining A bargain is an agreement and it takes at least two parties to make a bargain
- Collective bargaining – Are those set up agreements between managements, employer’s associations, or joint employer negotiating bodies and trade unions to determine specified term and conditions of employment for groups of employees. The process of collective bargaining occurs only when a trade union is involved. Hence the term only applies to relations between the employees (trade union) and the employers. It is a long lasting process because once it is negotiated it is reviewed from time to time as conditions may necessitate.
The Nature of collective Bargaining
- The nature of collective bargaining is that workers do not negotiate individually and on their own but do so collectively through trade union representatives (officials)
- It therefore only takes place where there is a trade union recognized by management
- Once there is a union recognized by management, cannot deal with workers on an individual basis.
- Collective bargaining agreements should aim to provide the basis for maintaining a good employee relations climate and harmonious relationships with trade unions and employees generally.
- Collective bargaining agreements however, can only function where there is:
- Willingness by the workers and their trade union officials to be involved.
- The power to force the employer to accept negotiations
- Willingness by management to accept that decisions affecting workers must be agreed on between the two parties before they are implemented.
- On top of the above, collective bargaining entirely depends on the political climate.
- In Kenya collective bargaining has been trilateral for example wage fixing to satisfy the objectives of management, the union and the government.
- This is contrary to what is in an ideal democracy should be happening where we have bilateral.
- If collective bargaining has to be fully effective, a favourable political climate must exist. The particular government of the day must be convinced of the collective bargaining’s positive contribution to industrial peace.
- If such an attitude of government exists, it will do everything to facilitate the bargaining process like providing machinery for the settlement of grievances and disputes through mediation, conciliation and arbitration.
Collective Bargaining Agreement contents
- A collective bargaining results into a labour contract, which is written agreement between the trade union and management.
- The contract specifies rules and procedures to be followed by both parties during the contract period.
The contract may have some of its contents are:
- Name of the parties (the employer and trade union) duration to be covered by the agreement, provision for its renewal and signatures of the parties officials.
- Wage rates and fringe benefits, job classifications and overtime.
- working conditions like permissible breaks, severance pay, timing and
- Working shifts.
- Union security, like check-off procedures and recruitment of union members.
- Job security, termination, promotion, demotion and transfers.
- Limitation of strikes, lockouts and picketing.
- Grievance and dispute procedures.
- managements rights
Basic of Collective Bargaining Agreement
- Communication can be seen as a way of communicating workers expectation, fears, threats, anxieties, promises, rights, duties and limitations.
- Sanction and legitimization:
- A involves recognition of the power of the employer generally and the power of the same to provide or impose remedial collective or individual punishment.
- Leeway and discretion
- CBA legitimizes alteration of terms according to circumstances.
- Inflexible management such as leeway is crucial in allocating work, adjusting labour supply to demands and products.
- However, leeway may be crucial for management when an agreement gives power without the duty to enforce it for instance rules on punctuality, the right to search workers when leaving the organization.
- Employers may use leeway and discretion to favour certain categories of employees at times of peace to please workers generally.
- In times of tension and conflicts, leeway is used to harass and punish un-cooperative elements and reduce opinion leaders to size.
- Ideological function includes use of contracts to legitimize unequal pay, power relations and also employers domination, differential payments among workers etc.
- B. is a contract about roles and rules.
What do trade unions bargain for?
- What is bargainable?
- Mostly this centers around salaries and allowances. However, there is no delivery division between whats bargainable and what is not.
- What is bairgainable is what trade unions succeed in bargaining and what employers concede to.
- People bargain for:
- Allowances The most impressive benefits in recent times has been paid through allowances i.e house allowances, leave allowance, travel allowance or reimbursement of these expenses.
- Shift allowance was introduced to compensate for working odd hours e.g night shifts.
– Employers who do not avail transport and canteen benefits are beginning to offer such allowances for instance bicycle.
– In some organization newly-employed employees are given graduate allowances.
– Other allowances include lunch allowance, special duty allowance, cash handling allowance, hardship allowance, entertainment allowance.
- Bonuses Allowances
– This is dependent on performance while in some countries it’s dependent on status.
– Besides, many companies pay according to overall efficiency or cordial relations or high safety enrolment.
- Job Security
– A growing area of union concern is job security but the increasing rationalization and automation is causing threat.
- Welfare benefits These include house loans, pay of life group, accident insurance premium of the employer, education of children allowance and facilities, canteen and death benefit schemes, saving schemes which employers make a monthly contribution, gratuity benefits, paid holidays paternal leave for 4 days provided you don,t have more than 2 children.
– Other allowances include lunch allowance, special duty allowance, cash handling allowance, hardship allowance, entertainment allowance.
Basis of Collective Bargaining
– Collective bargaining process is derived from industrial relations customs or rules or the Industrial relations charter.
Major steps of C.B
- Recognition of each other on the legitimate representation of employers or employees (Recognition Agreement must exist first).
- Making of proposals by one party and then counter proposals by the other.
- Joint meetings depending on the number of weight of issues.
- Failure to reach an agreement leads to deadlock registration thus it becomes a trade dispute
- B can’t be compelled, it’s based on the principle of voluntarism.
- If you agree on all issues then you sign an agreement (endorsed and sent to the chief Industrial relations officer who looks at the legal and economic implications before taking it to the industrial court which register it.
Collective Bargaining Agreement Formation
- Agreed issues are put in a memorandum document when duly signed it becomes a CBA. The CBA will contain specific terms and conditions of employment.
- In addition procedures which parties agree to follow in regulating their relationships. This include grievance procedures if one party is aggrieved the procedures for action must be well spelt out.
- To be legally enforceable CBAs, have to be registered by the Industrial court.
- Once registered by the industrial court the CBA binds parties under it.
- Failure to perform by either party gives rise to a trade dispute which is dealt with in accordance with the Trade Disputes Act.
- All CBAs differ in matters of details depending on industry and level of employers concerned.
Issues in most CBAs
The CBA has provisions to deal with specific issues as they arise. These can be dealt with under any of the following:
- substantive agreements
- procedural agreements
- distributive bargaining
- integrative and productivity deals
- a) Substantive Agreements
- These lay down the terms and conditions of employment to be reflected in each worker’s contract of employment.
- They include pay rates, working hours, holidays, pension’s schemes, sick leave and retirement age.
- b) Procedural Agreements
- These lay down procedures which are to be followed in specific situations.
- They cover the way in which any dispute can be regulated, the timing and the approach is making substantive agreements.
- The purpose is to provide a laid down procedures so that any additional conflict arising out of uncertainty can be avoided.
- c) Distributive Bargaining
- This is based on the assumption that one party’s gain is the other’s loss.
- Usually, each party to any bargain tries to minimize its losses and maximize its gains. Whatever the workers (union) win through collective bargaining, in a way of additional pay or better working conditions the employer must pay for it. But this approach can tend to result to a conflict between the two parties.
- d) Integrative Bargaining and Productivity deals
- These arise when both parties negotiate without a loss to one another.
- This happens when the workers agree to make changes in practices, which will lead to more economical operations and in return the employer agrees to increase pay and improve others agreed upon terms.
REVIEW QUESTIONS FOR CHAPTER TWO
- Why do we refer the frame work of industrial relations tripartite?
- What is the role of industrial court in industrial relations?
- Why workers prefer the industrial court than other courts?
- What are the functions of Federation of Kenya Employers (FKE)?
- Why may it no be easy to negotiate for terms and conditions of employment where
there has never been a collective bargaining agreement?
- What do Trade Unions bargain for?
- What are the major steps in collective bargaining agreements?
- CBA has provisions to deal with specific issues as they arise. Discuss how these issues
can be dealt with?
- Explain the contents of collective Bargaining Agreement Contract.
GRIEVANCE AND DISPUTE SETTLING MACHINERY
Labour relations involve more than negotiating a labour agreement. In fact, the real test of effective labour relations begins after agreement is signed. The acid test is found in the day-to-day administration of the agreement. It has been said that management usually gives away more in the administration of an agreement than in the negotiation of the agreement. Similarly, unions may feel that they sometimes lose in application of what they thought they had gained at the bargaining table. Hence, the administration of a collective bargaining agreement is a matter of substantial concern to both management and labour because it is here that a number of grievances arise which need to be resolved every day.
- A grievance is an alleged violation of the rights of workers on the job. It may occur in one of several forms:
- As a violation of the collective bargaining agreement
- As a violation of Central or State laws
- As a violation of past practice
- As a violation of company rules
- As a violation of management’s responsibility.
According to Michael .J. Jucuis, the term grievance means any discontent or
dissatisfaction whether expressed or not and whether valid or not, arising out of anything connected with the company that an employee thinks, believes or even feels, is unfair, unjust or inequitable this definition is very broad and covers dissatisfactions which have the following characteristics:
The discontent must arise out of something connected with the company. Workers may be dissatisfied because of several reasons, e.g., illness in the family, quarrel with a neighbour, disliking for the political party in power, and so on. Such outside sources are beyond the control of the company and, therefore, do not constitute a grievance.
The discontent may be expressed or implied. Expressed grievances are comparatively easy to recognize and are manifested in several ways, e.g., gossiping, jealousy, active criticism, argumentation, increased labour turnover, carelessness in the use of tools and materials, untidy housekeeping, poor workmanship, etc.
Unexpressed grievances are indicated by indifference to work, daydreaming, absenteeism, tardiness, etc. It is not wise to recognize only expressed grievances and overlook the unexpressed ones. In fact, unexpressed or implied grievances are more dangerous than the expressed ones because it is not known when they may explode. Hence, the executive should develop a seventh sense for anticipating grievances. He should be sensitive to eve the weak and implied signals from the employee.
An employee may casually remark that it is too hot in the room or that he has been assigned a job that he does not like. All such casual remarks and grumbling are grievances by implication. Only for a painstaking and observant supervisor is it possible to discover what is bothering employees before they themselves are aware of grievances. The personnel department can be helpful by training supervisors to become proficient in observing employees. The techniques of attitude surveys and statistical interpretations of trends of turnover, complaints, transfers, suggestions, etc are also helpful in this connection.
The discontent may be valid, legitimate and rational or untrue and irrational or completely ludicrous. The point is that when a grievance held by an employee comes to the notice of the management it cannot usually dismiss it as irrational and untrue. Such grievances also have to be attended to by the management in the same way, as rational grievances. We should know that a large part of our behaviour is irrational. This may be largely due to our distorted perception. Emotional grievances which are based upon sentiments (like love, hatred, resentment, anger, envy, fear, etc), misconceptions and lack of thinking are examples of our irrational behaviour. These grievances are the most difficult to handle.
One advantage of giving a widest possible meaning to the term grievance is that the possibility of the manager overlooking any complaints is very much reduced.
Even those discontents, which have not yet assumed great importance for the complainant and have therefore not moved into formal procedural channels- such as casual remarks or grumbling technically called complaints, come within the purview of the grievance handling machinery of the organization and are removed in the course.
The causes of grievances may broadly be classified in the following categories;
- Grievances resulting from working conditions:
- Improper matching of the worker with the job.
- Changes in schedules or procedures.
- Non-availability of proper tools, machines and equipment for doing the job.
- Tight production standards.
- Bad physical conditions of workplace
- Failure to maintain proper discipline (excessive discipline or lack of it, both are equally harmful)
- Poor relationship with the supervisor.
Grievances resulting from management policy:
- Wage payment and job rates.
- Promotion, demotion and discharges
- Lack of career planning and employee development plan
- Lack of role clarity, delegation, etc
- Lack of regard for collective agreement
- Hostility toward labour union
Grievances resulting from personal maladjustment:
- Excessive self-esteem
- Impractical attitude to life, etc.
Machinery for Handling Grievances
Every organization has need for a continuing process of conciliation to facilitate settlement of controversies and to assure an employee with a grievance that his case will be given a hearing. One of the important jobs of front-line supervisors is to handle problems with employees right on the spot to mutual satisfaction of workers and management. Inevitably grievances will arise that cannot be easily settled by the parties immediately concerned at the outset. The supervisor himself may be the course of the grievance in the worker’s mind. For this reason an organization needs a standing procedure or machinery for orderly redressal of grievances. The machinery makes provision for appeal up the ladder to top-level management. In situations where union contracts so provide, grievances not otherwise settled may be sent to arbitration. Morale is boosted by speedy disposition of grievances handled in conformance with set procedures.
A grievance procedure is a graduated series of steps arranged in a hierarchy of increasing complexity and involvement. The number of steps in a grievance procedure vary with the size of organization. A small organization may have only two steps the supervisor and the manager but a big organization may have as many as ten steps. The first and the last steps are almost always the same for all organisations. Though a labour union is not essential to the establishment and operation of a grievance procedure, one is assumed in the schematic diagram of a four-step grievance procedure, which is shown in the diagram below.
As shown in the diagram, the front-line supervisor is always accorded the first opportunity to handle grievances. He is the first rung of the ladder. If the concerned is unionized, a representative of the union may also join him. This step is very necessary to preserve the authority of the supervisor over his workers. But all grievances cannot be handled by the supervisor because many of them involve issues or policies, which are beyond limits of the authority. There may be some grievances, which he may fail to redress and find solution for. Hence provision is made for a second step in handling grievances. The second step may be the personnel officer himself or some middle-level line executive. If the concern is unionized, some higher personnel in the union hierarchy may join him. It should, however, be remembered that by injecting the personnel officer into the procedure at this step and by giving him authority to overrule and reserve the decision of the supervisor the fundamental principle of line and staff relation is violated.
A third step is constituted by the top management to handle grievances involving company wide issues. In this step the top union representatives join. The redressal of grievance becomes complex and difficult because by now they acquire political hues and colours. If the grievance has not been settled by top management and top union leadership then in the fourth and final step it may be referred to an impartial outside person called an arbitrator. The two possibilities are that the issue may be temporarily or permanently dropped or the workers may go on strike.
The Open-door Policy
Some managers do not share the view that there should be a formal grievance procedure and that grievances should go through a graduated series of steps. In their opinion there should be a general invitation to all employees to informally drop in any time and talk over their grievances. At first glance, this policy may appear very attractive but it has the following limitations.
This policy is workable only in small organisations. In big organizations where management by exception is practiced; the top management does not have the time to innumerable routine grievances daily, which is the work of lower-level managers.
Under this policy the front-line supervisor who should be the first man to know about the grievances of his sub-ordinates is bypassed. This provokes him in two ways:
First, he thinks the man who skipped him is disrespectful. Secondly, he fears that he will incur his superior’s displeasure because this will be interpreted by the superior as his failure to handle his sub-ordinates.
By following an open-door policy the top management cannot have adequate clues to assess supervisor’s skill in handling grievances. It does not know what action, if any; the supervisor would have taken to resolve a grievance.
Top management is likely to be too unfamiliar with the work situation in which the grievances developed to be able to correctly evaluate the information that it gets. There may be several levels of management between the operative employee and the top executive of a company. Theoretically, each level affords an equal opportunity for distortion, fading and delay of certain facts on which a complaint may be based.
Though the door of the executives office remains physically open, psychological and social barriers prevent employees from actually entering it. Some employees hesitate to be singled out as having a grievance. Others are afraid they will incur their supervisor’s disfavour.
Sometimes an open-door policy is used to hide the top management’s own hesitation to make contacts with the operatives and the open door is often a sign to conceal closed minds.
The way an open-door can be most effective is for a manager to walk through it and get out among his people. The open door is for managers to walk through, not employees. The true test of such a policy is whether the top man behind the door has an open-door attitude and his employees psychologically free to enter.
A grievance procedure should incorporate the following features:
- Conformity with existing legislation. The procedure should be designed to supplement the existing statutory provisions. Where practicable, the procedure can make use of such machinery as the law might have already provided for.
- Acceptability. The grievance procedure must be accepted by everybody. In order to be generally acceptable it must ensure (a) a sense of fair-play and justice to the worker, (b) reasonable exercise of authority to the manager, and (c) adequate participation of the union.
- Simplicity. The procedure should be simple enough to be understood by every employee. The steps should be as few as possible. Channels for handling grievances should be carefully developed. Employees must know the authorities to be contacted at various levels. Information about the procedure can be thoroughly disseminated among all employees through pictures, charts, diagrams, etc.
- Promptness. Speedy settlement of a grievance is the corner stone of a sound personnel policy. Justice delayed is justice denied. The procedure should aim at rapid disposal of the grievance. This can be achieved by incorporating the following features in the procedure;
As far as possible grievances should be settled at the lowest level.
No matter should ordinarily be taken up at more than two levels, i.e., normally there should be only one appeal. Different types of grievances may be referred to appropriate authorities. It may be useful to classify grievances as those arising from personnel relationship and others arising out of conditions of employment. In the former case, a grievance should be taken up, in the first instance with the authority in the line management immediately above the officer against whom the complaint is made. Thereafter, the matter may go to the grievance committee comprising representatives and management and worker. Other grievances should be taken up, in the first instance, with the authority designated by the management. Thereafter, a reference may be made to the grievance committee and finally to the top management. Time limit should be placed at each step and it should be rigidly followed at each level.
Training. In order to ensure effective working of the grievance procedure it is necessary that supervisors and the union representatives are given training in grievance handling.
Follow-up/Evaluation. The working of the procedure should be reviewed periodically by the personnel department and necessary structural changes introduced to make it more effective.
A good grievance procedure attacks problems as they arise; excellent grievance procedure anticipates them and prevents them from occurring. A manager can know about the simmerings even before they turn into actual grievances through several means such as opinion surveys, open door policy, suggestion schemes and exit interviews.
- It brings human problems into the open so that the management can learn about them and try corrective action.
- It helps in preventing grievances by encouraging management to probe underlying problems before and correct them. The management catches and solves a problem before it becomes a grievance.
- It provides employees a formalized means of emotional release for their dissatisfactions. Even if a worker does not use the grievance system for his own emotional release in a particular situation, he feels better because he knows the system is there to use if he wants to do so. It builds within him a sense of emotional security.
- It helps in establishing and maintaining a work culture or way of life. As problems one interpreted in the grievance procedure, the group learns how it is expected to respond to the policies that have been set up.
- It acts as a check upon arbitrary and capricious management action. When a manager knows that his actions are subject to challenge and review in a grievance he becomes more careful in taking decisions.
- Ensures work progresses on with lesser interruptions.
What is industry?
Industry means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or through any agency, including a contractor) for production, supply, or distribution of goods or services with a view to satisfy human wants or wishes whether or not
- Any capital has been invested for the purpose of carrying on such activity; or
- Such activity is carried on with a motive to make any gain or profit.
An industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
Important points which emerge from this definition are:
- The use of the adjective industrial in the term industrial dispute relates the dispute to an industry.
- Only specific types of disputes, i.e., those which bear upon the relationship of employers and workers and the terms of employment and conditions of labour are included under the term. Thus, disputes between government and an industrial establishment or between workmen and non-workmen are not industrial disputes.
- The use of plural number for the disputant parties in the definition raises doubt on whether there can be an industrial dispute between an employer and an individual workman. An individual dispute is considered an industrial dispute only if it relates to discharge, dismissal, retrenchment or termination of a workers services.
Disputes arise from a variety of causes including wages and allowances, bonuses, redundancies, leave and hours of work, indiscipline and violence etc. The most common cause of all industrial disputes has been wages and allowances followed by personnel matters and retrenchment.
Forms of Disputes
Strikes and lockouts are the most common forms of organized protests followed by the workers and employers against each other. Both these forms produce highly disquieting effects on the economic life of the country. They leave behind a lot of privation for the workers, reduction in output and profits for industries, high prices and inconvenience for the general public and an atmosphere of mutual distrust and suspicion for the workers and the employers. The nation as a whole suffers in as much as the national dividend gets reduced owing to reduced production.
Strike means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment
Thus, the essential ingredients of a strike are:
There should be an industry in which the striking persons should be employed.
There should be stoppage of work in pursuance to a concerted plan in combination. Where the workers absent together from the work-place not to stop work but to participate in a demonstration which may incidentally result in the stoppage of work it is not a strike because it is not in pursuance to a concerted plan.
There should be a contract of employment between the striking workmen and the industry. Thus when the workmen refuse to do additional work which the employer in law has no right to ask them to do it would not amount to strike. It should be remembered that the duration of the cessation of work is absolutely irrelevant for the purpose of determining whether a particular cessation amounts to strike or not.
The cessation of work need not necessarily be connected with an industrial dispute to amount to a strike. For this reason, sympathetic strikes, protest strikes, etc are strikes within the meaning of the term.
Cessation of work may take place in a number of ways as described below:
Stay-in-strike, sit-down strike, pen-down strike or tool-down strike. All these forms of strike are considered by courts as an invasion on the rights of employer and therefore illegal. Sit-down or stay-in strike amounts to trespass upon the property of the employer.
Go-slow. Slowing down the pace of production is one of the most pernicious practices that discontented workmen sometime resort to. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output, the workmen claim to have remained employed and thus to be entitled to full wages. Apart form this also, go-slow is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the go-slow, the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts. For all these reasons go-slow has always been considered a serious type of misconduct. But it is not a strike because at no time is the work stopped in this form.
Hunger strike. Hunger strike is a strike with fasting with some or all strikers or even outsiders for acceptance of the demands.
Lightning or wildcat strike. A wildcat strike is an unofficial strike, i.e., strike not sanctioned by the union. Such strikes occasionally occur in violation of no-strike pledge in collective bargaining agreements. In such a situation the union is obligated to use its best efforts to end the strike. Such strikes are prohibited in public utility services.
Lock out. Lock out is the temporary closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. Lock out, thus, is the counterpart of strike-the corresponding weapon in the hands of the employer to resist the collective demands of workmen or to enforce his terms.
Strikes and lock-outs and the threat of strikes and lock-outs are said to be necessary to make the collective bargaining process work. The pressure of strikes and lock-outs compels both sides toward agreement. Nonetheless, strikes and lock-outs cause inconvenience for those involved and often for the public as well. They also sometimes disrupt public peace. Hence they have often been subject of legal regulation.
Regulation of Strikes and Lockouts.
Employees do not have an unfettered right to go on strike nor do employers have such right to impose lock-out. The Industrial Disputes Act lays down several restrictions on the rights of both the parties. A strike or lock-out commenced or continued in contravention of these restrictions is termed illegal and there is severe punishment provided for the same.
Illegal strikes and lockouts are of two types:
- Those which are illegal from the time of their commencement; and
- Those which are not illegal at the time of commencement but become illegal subsequently.
Industrial disputes affect all the stockholders in different ways: –
- Riots can lead to destruction of the plant and buildings
- Machinery can also get damaged due to work stoppage lasting long
- Production is reduced leading to low sales and therefore low profits
- Financial obligations may not be met especially when using credit facilities.
- Loss of income arising from days on strike or termination of service
- Failure to meet financial obligations for self, family and other dependants.
- On a positive note, may lead to better remuneration where Trade Union succeeds.
- Loss of revenue in taxes from both employers and employees
- Lower Gross National Product
- Economic instability, which can lead to political and social instability/investor confidence.
- Scarcities of the product leading to high prices
- Importation of substitutes leading to eating up into the scarce
- Foreign reserves.
The following figures show the number of strikes that took place in Kenya between the years 1962 1979
Year No. of strikes Employees Man days
1962 285 – –
1963 230 – –
1964 244 – –
1965 200 – –
1966 155 39,123 114,125
1967 138 29,985 109,128
1968 93 20,508 47,979
1969 124 37,641 87,516
1970 84 18,945 60,761
1971 72 17,300 162,108
1972 110 26,000 141,000
1973 83 15,834 49,053
1975 25 4,148 9,725
1976 44 13,421 26,248
1977 45 7,288 9,277
1978 46 10,380 20,309.58
1979 54 13,487 33,082.97
There is no doubt that strike action has drastically dropped in Kenya. This can be attributed mainly to the fact that the parties to industrial disputes have access to a forum, which over the years proved that it is truly and genuinely impartial.
GRIEVANCE AND DISPUTE SETTLEMENT MACHINERY
The areas to be covered include
- Meaning of industrial grievance and dispute
- Sources of industrial disputes
- Types of industrial action
- Economic impact of industrial disputes
- Grievance handling procedure
- Role of industrial court n settlement of industrial disputes
Meaning of industrial grievance and dispute
1) Industrial grievance is any discontent or dissatisfaction expressed openly or otherwise by a worker or a group of workers.
- It can be valid or not valid, it can arise out of anything concerned with management hat a worker or workers think, believe, feel or imagine to be unfair.
- It can grow out of bad relationships between workers and their supervisors especially workers and their supervisors feel that they are not being treated fairly.
- Grievance emanate from problems associated with human nature and the personal acharacteristics of the workers, shop stewardess and supervisors
- Complaints are usually made by workers, management grievances are very rare.
- Workers grievances are commonly based on alleged violation of existing right or alleged unfair treatment of workers by management.
2) A dispute can arise out of unsettled grievances. A trade dispute means any dispute between an employer and workers (trade union) which is connected with employment o r non-employment of the terms of employment and conditions of labour of any person.
- A dispute will arise if a trade unions claim within the negotiation procedure is not given consideration by management
- In any country where there exists trade unions (officially recognized and registered) it is important for the management to have knowledge of the laws governing grievances/disputes
3) Strike trade disputes CAP 234 define strike as withdrawal of labour or work stoppage.
- A strike occurs when a group of workers refuse to work. Union officials can issue a strike order if there is an impasse in negotiations or if management violates the labour contract.
- A strike is a trade unions strongest negotiation weapon. It forces management to sit at the negotiating table and listen to workers demands
- As far as trade unions are concerned, are not evil, they are part of collective bargaining
- Strikes are serious interruptions of an organizations operations. The threat of a strike and the actual strike are major weapons for trade unions against managements refusal to meet their demands.
- Stopping work is a demonstration to management of the importance of the issue in dispute
- Issues leading to strikes and other labour unrest are normally those contained in the collective bargaining agreement, although there can be other issues outside the agreement which can lead to labour unrest
- Such issues are solidarity, that is sympathy strike which can occur when a member has been dismissed or when workers in another organization are on strike
- Union members may stage a strike or a go slow to show solidarity with or sympathy for their colleagues
- These actions are regulated under the Trade Dispute Act CAP 234, which requires that all the negotiation machinery must be exhausted before a strike, otherwise the strike is illegal
- There are different types of strikes as follows: –
- Primary strike Involves withdrawal of labour from the employer who is directly party to the dispute/grievance
- Secondary level strike involves the employer directly. They are party to the dispute but may have some indirect connection to the employer
- Shop floor level strike also referred to as wild cat strike. They are normally called without higher level authority
- Direct action– it is uncommon and stress the use of physical force
- Sabotage a classic form of direct action.
- In summary strikes are meant to disadvantage the other side (employer)
- They aim to: –
- Standardize costs
- Address common interests
- Improvement of market and product position
- Are a positive sanction to induce an agreement
4) pickets- A picket occurs when a strike is in progress, union members stand outside the gate of an organizations premises to draw the attention of other workers and the general public.
- can also be used to publicize a dispute even when there is no strike in progress
- The striking workers block the entrance of the premises, thus preventing workers from entering.
- This also prevents materials, supplies or finished goods from entering or leaving the premises
- Sometimes, striking workers publicize their strike by carrying placards and distributing literature
- They can also draw a picket line which could not be crossed by any workers
- The picket line is meant to stop workers from making contact with management or non-union workers who are not on strike
- Picketing can turn into violence between the striking workers and those who continue to work, but this is outright illegal because in the first place, picketing is supposed to be peaceful.
- Secondary, violence according to law is a criminal offence. Furthermore, before any group of workers decide to go o strike or engage in any labour unrest, they are supposed to exhaust all the established and available machinery.
5) Boycotts The approach in boycott is similar to that of picketing. The difference is that, it involves workers and the general public.
- It is powerful economic weapon in drawing the attention of an organization to necessary changes
- During a boycott, a union will direct workers and the general public not to buy the goods and services of the employer
- The union and it s members will also tell the public not to transact any business with the organization
- Sometimes violence erupts, especially when a group of workers or public decide to go on transacting business with the organization
- During a boycott, just as in picketing there are demonstrations with placards and distribution of literature
- Boycotts can result into an organization is business actions coming to a standards especially when the public join the workers.
6) Lock- outs A lockout occurs when an employer refuse to allow workers to enter the working premises
- A lockout is the management counter weapon against trade unions strike, go-slow or pickets
- They are used for defensive purposes
- This is done n order to protect the organizations property from being damaged especially in cases where and when striking workers turn to vandalism
- Lockouts can also be used when and where management anticipates a strike
7) Go-slow and sickout
- Go slow happens when workers report to work but perform at a very slow speed
- Sick-out happens when workers report that they are sick and cannot come out
- Such a move can paralyze operation especially if a large number of workers in key positions call in sick
8) Riots Refer to wild or violent disturbance by a crowd of people. This is an extreme outcome of boycott and picketing and can be destructive to life and organizations property
Types of industrial action
Workers can achieve their aims through: –
- Industrial action
- International action
- Political action
Here workers can achieve their objective through: –
- Collective bargaining and negotiation
- Joint consultations
- Withdrawals of labour
Sources of industrial disputes
- Economic matters
- Disciplinary matters
- Recognition of Trade Union by Employer
- Disputes between unions on representation of group workers
Some major causes of employees grievances
– The root of major employees grievances can be traced to the following factors: –
- Poor interpretation and implementation of contract of employment by management
- Inconsistent personnel policies, practice and procedure
- Poor definition of roles and overlapping authority and responsibilities
- Differential perception of group goals, company’s rules and regulations
- Introduce changes in the organization without considering the impact of such changes on employees or without prior consultations
- Prejudice and discrimination resulting in charges of tribalism and nepotism
- Illicit use of authority and power over subordinates
- Violation of group norms and values by other members of the group
- Poor management/ union relations
- Wage differential between grades of workers
- Procedure for promotions
- Disputes over disciplinary actions
- Disputes over work demarcation
- Disputes over the negotiating procedures
- The role of government and wage policy
- External forces, like rapid changes in technology or economic conditions affecting the standard of living.
Signs of potential grievances
- In order to prevent grievances from turning into open confrontation and dissatisfaction management should be alert to potential problems which workers may have
- Any or a combination of the following situations can be sign of potential grievances: –
- Decreased interest in work
- Negative statements about the job, colleagues, supervisors and the organization
- Unwillingness to cooperate
- Poor job performance
- Slowing down on the job
- Being away form assigned place of work with no apparent reasons.
Economic impact of industrial disputes
- Loss of profits by the organization or management
- Inconvenience to the public (in case the strikes turn violent)
- It scare away investors
- It leads to wastages
- Government loses revenue
- Loss of wages for the workers
- Trade unions dont get subscriptions
Reasons for grievance procedures
- Absence leads to unrest, dissatisfaction, chaos
- Management can detect trouble spots or friction areas in the enterprise
- It is an orderly outlet of protect
- Important supplement to collective bargaining agreement.
Basically, grievances can be handled in two forms:
- Individual grievance
- Collective grievance
- Industrial grievance an individual employee of the company wishing to raise grievance with which he is directly and personally concerned, shall first approach his immediate supervisor. In case settlement is not reached, he/she shall have the right to appeal to the higher levels of management as soon possible in accordance with the established procedures. The employee shall be represented by an accredited union at all stages.
- Collective grievances In FKE/COTU model agreement on recognition and negotiating procedure, a collective grievance is defined as any dispute arising from a breach of real or alleged or existing terms of service in the matters specified in clause 2(a) of this agreement which may affect all employees or any of the employees clause 2 or the agreement specified negotiable items under the collective agreement.
The grievance machinery and its desirable features
– The machinery or procedure for the treat merit of grievance should be thought of in the consent of a company dealing with organized labour.
- Even, so with or without existence of trade unions, in the undertaking, every company should endeavor to establish such a procedure, perhaps, primarily for the processing of individual complaints and grievances
- A good grievance machinery should possess the following features
- Be fair all supervisors should accept the employees, right of appeal or to be represented. In other words they should be rights of representation of the workers
- Be clear cut no procedure can work satisfactorily unless there are definite provisions, always adhered to determining what is to be done, when and by whom.
- With whom complaints should be lodged
- In what form (oral or written)
- What restrictions if any as to when complaints can be presented
- How long a worker should expect to wait for final decision on his complaints
- Simplicity this procedure should be sufficiently simple, easy and quickly explainable to each new employee
- Speed in operation Prompt action is desirable not only for the complaint but also by management. Undue delay can be costly in the growth and spread of discontents
- Stage at which full time official is involved
- Stages involved and time limits
- Officers involved at each stage
The main components of grievance procedure
These are many types of grievance machinery or procedure. It is an error to thinks that there is one just or best type. Types vary from one company to the other and the stages vary from steps one to ten, more or less, depending on the size of the organization. Nevertheless, the first and last steps appear to be the same always no matter the number of intervening steps.
- In order to expedite action on grievance settlement, it is also common practice to attach a time tag to each step. For example, it could be that at each step in the machinery, every effort must be made within a period of two or three days to resolve the grievance, so that in all within 7 days, more or less, a final decision must have been arrived at.
- The essence of grievance settlement is on the time factor. The longer it takes to settle a grievance, the slimmer the chance of successful settlement.
- The employee should raise the matter with his immediate supervisor or manger, and may be accompanied by a follow employee
- The supervisor or manager will endeavor to resolve the grievance without delay.
- This is intermediate step. There can be a number of steps between the first and the last step in machinery. At this step, the grievance is submitted to middle management for settlement. In many companies, the personnel Department is injected into the procedure as a decision-making power with authority to reverse or overrule a supervisor who had featured prominently at the first steps.
- Similarly, the labour Relations specialist should study the grievance although it is appropriate that the power to decide should rest with line management.
- The line manager often consider grievance procedure incidental and distasteful duty.
- Hence this lack of specialization has given rise to situation in which staff personnel department is given authority to make decisions about grievance.
- On the union side, the intermediate levels are represented by higher personnel in the union hierarchy (i.e. committee of shop stewards or National Officials of the Union)
- Being in the last step, this involves a discussion of the grievance between representatives of top management and top union officials. For the union, the local or national officials would be involved
- It is often difficult to secure an integration of interests of this high level. The grievance has now become an issue which has both political and social implications. A lot of time, energy and common sense is now brought into play for the final resolution of the grievance and or both parties to come to agreement, knowing that in the event of failure the issue may be referred to arbitration for final adjudication. If settlement at this final level fails, the union has a number of options: –
- To drop the matter temporarily or permanently
- To call a strike action if the contract permits
- To leave the matter with the National office or pursue any appropriate action.
A typical codification of a grievance settlement procedure where an agreement with union exists
- a) Individual – grievance
- In this situation an individual raises his/her grievance to the immediate supervisor.
- In case no agreement has been reached the employee forwards the case t the higher levels of management. In case the employee is unionisable, he shall be represented by an accredited union at all stages.
- b) Collective claims
There shall be any claims for alteration to terms of service regarding matters negotiable as per the recognition. Agreement which may affect all employee or any group of employees
- Such claims shall be raised in writing with the management by the Unions General Secretary or his authorized representative normally three months before the expiration of the current agreement within which period the parties will endeavor to reach a settlement. All agreements jointly reached shall be committed in writing and signed by both parties.
- Consideration presupposes the reconciliation of the parties in a dispute by an appointee of the minister having consulted the Tripartite committee, which in turn is made up of a representatives of the government, the employers and the workers
- Investigations presupposes the appointment of an appointment of an independent party to ponder and establish the truth on or otherwise of the issue in dispute and to come up with a finding and recommendations on how the issue can be settled
- Both conciliation and investigation results would only be binding on the parties to a dispute if they voluntarily chose to honor them as a formula for the settlement of their dispute. Where the parties fail to accept the efforts of the conciliator or the recommendation of an investigator either party would be free to refer the matter to the industrial court as a dispute
Benefits of a grievance system
- It helps to establish and maintain a satisfactory working culture or way of life
- It helps to arrest and solve the problems before they become serous and to prevent them from spreading to other workers
- Grievances signal to management that part of its human relations is not functioning properly and need readjustment
- It encourages human problems to be brought into the open so that management can learn about them and take corrective action
- It has provided a system of checks and balances in employer/employee relations
- Awareness of grievance in work situation, makes the manager or supervisor to give more care to the human aspect of his job when he knows that some of his actions are subject to challenge and review in a grievance system
Problems of operating grievance procedure
- Workers fear repercussions
- There is no clarity on who makes certain decisions for example line manager? Personnel manager? On Director?
- Grievances take too long to deal with
- Shot-circuiting occurs thereby by passing certain procedures to get things done quickly
Trade disputes at formal level
- Trade disputes become formal when the secretary of a Trade Union reports the matter to the ministry of labour. The minister then consults the tripartite committee (representative of workers plus the manager. The committee therefore vetts (examines) disputes reported.
- The minister can:
- Can accept the dispute
- Can refuse to accept it
- Refer back the matter to the parties if he feels that they can be resolved
- Can endeavor to effect conciliation
- Refer the matter for arbitration to the industrial court
- Any dispute whether existing or new can be reported to the minister for labour. The dispute must be collected and reported by a trade union for it to be accepted
- Disputes of dismissal must be reported within 28days. Why? So that the vacancy is not replaced for unlawful dismissal
- This report must be in writing specifying the employee classes involved. The party union must indicate the union and respondents involved and group of employees and the matter in dispute. Furthermore, sufficient copies of the report must be sent to the interested bodies
- Another example of a dispute is in redundancy. Redundancy can be defined as super abundance of factors of production (laobour) existing without employment
- There is need to explain reasons why there has to be redundancy; redundancy cost to the union; severance pay (5day per year worked); notice of termination of contract and gibing a certificate of service
Methods of conciliation, investigation and arbitration
Investigation This occurs when the minister is satisfied that a dispute exist.
- A public officer (labour officer) is appointed and will call upon management and union to make submissions on the dispute
- Alternatively a committee/panel of investigators might be appointed by the minister for labour and make recommendation
- The committee must consist of members qualified in industrial relations and an impartial member
- The investigator(s) is to make a report to the minister i.e. the report must have proposals of how the dispute is to be sorted out. This therefore, must be considered desirable by both parties
- The minister then processes the report; vary it or take it the way it was or change it completely. If parties accept the report, the matter is finalized. And if rejected, it goes to the industrial court for arbitration.
N/B it is worth noting that both parties are brought together on the discussion of the dispute at hand.
TRADE UNION AND TRADE UNIONISM
A trade union is an association of workers formed to protect their interests in employment situations such as in matters of pay and working conditions and promoters of people at work. It protects and promotes workers interests mainly by means of collective bargaining and consultation with employers.
Trade unions provide workers with a collective voice to mark their wishes known to management and thus bring actual and desired conditions closer together.
Trade unions exist to let management know that there will be, from time to time, an alternative view on key issues affecting employee. Unions see their role as that of participating with management on decision-making on maters affecting their interests.
Unions therefore work to secure through collective bargaining improved terms and conditions for their members and also provide protection, support and advice to their members as individual employees. Trade union success depends on members participation both as individuals and as groups.
Over the years, trade union objectives have widened and have been influenced by economic, political and social systems. The following have been found to also be part of the union objectives.
- Secure for the workers fairer wages in the light of the cost of living and prevailing standards
- Improve the workers working conditions by securing shorter working hours, better working facilities and other welfare benefits.
- Assure the workers of a share of increased profitable of the organisation by providing adequate payments for the job done
- Protect the workers interests and safeguard them against exploitation
- Ensure the workers job security by resisting retrenchment and any other victimization likely to harm them
- Protect the larger interest of society by aiding in the improvement of trade and industry
- Provide a medium through which workers interest and grievance can be expressed
Employees join a union for the following reasons: –
- To try to improve their working conditions
- To gain some control over working environments
- Due to pressure from colleagues who are already in a union
- Dissatisfaction with management
- Need for social outlet
- Need for avenues of leadership
When a substantial number of employees are members of trade unions the effects on the management of a company are that: –
- Decisions and policies are subject to challenge and negotiation
- Management powers are limited, and they may be used cautiously
- Decision making may become centralized so that a unified company industrial relations policy can be formulated and practiced
- The management may be required to give certain information about the company to union representatives
The reasons why individual workers refuse or avoid joining trade unions may include: –
- It costs money to be a union member
- The thought/idea that trade unions are unnecessary
- The belief that some benefits will be gotten since the CBA covers all workers in the same grades
- Individual beliefs/convictions.
Organisation and Structure
The internal structure of individual trade unions varies greatly. However, they all depend on membership participation and they endeavour to practice internal democracy.
Although some trade union leaders are dedicated to the movement, others may seek the satisfaction of leadership or the opportunity to gain status, recognition and freedom from tight supervisory control.
The affairs of a trade union are run by elected union officials. The chief Executive is the secretary General who is elected by all the union members. The secretary general supervisors the full-time officials, controls service facilities and pursues the policies derived upon by union members.
Broadly speaking, trade unions officer are of three types: –
- The full time paid official, employed by the union
- The part time voluntary official who is elected to be a branch officer of his union
- The workplace representative the shop steward or staff representative
At their place of work, workers are represented by a shop steward. This s an employee of the firm, but who acts on behalf of a group of his fellow employees. The shop steward is expected to perform a full day’s work as the other company workers and gets his orders and instructions from the supervisors in-charge of the members he represents.
The shop steward is the daily contact between union members and management and is expected to represent both the member’s interest and the union policy to management.
A steward is charged with the responsibility of recruiting new members. In the earlier days, stewards used to collect union dues for the union, but this is no more. A check-off system now allows the employer to remit union dues directly. The stewards also pursue grievances with management and union officials. Large organisations with many stewards have a chief steward elected from among the shop stewards to be their overall representative to both management and union.
Shop stewards powers are constrained by various company and trade unions rules. The degree of power they hold depends on several factors including: –
- The extent to which collective bargaining is centralized at company / industry level
- The state of the local labour market
- The nature of the companys wage structure
- The degree of support for the union amongst employees
- Statutory provisions
Shop stewards are less powerful if the labour market is plentiful, but have greater influence in conditions of skills shortage.
Where wages depend heavily on incentive payments, worked out locally, the stewards will be involved in negotiating pay-putting him in a strong bargaining position. However, if people are paid annually on an incremental scale, then the stewards have no influence on pay. The stewards also depend on their constituents for support if available their position is strong, but if missing, their position is weakened considerably.
There are basically four types of trade unions
- Occupational of non-manual
They consist of skilled workers who pursue the same craft. Originally, such unions were exclusively for those skilled workers who had acquired their skills through traditional apprenticeship e.g. carpenters, masons etc. they are the typical closed-shop trade unions
These are organized in a particular industry, irrespective of craft, trade, occupational skill or grade of the members.
These bring together all categories of workers across a range of industries regardless of craft, industry or occupation. They are mostly for those occupations, which cannot be easily defined as either craft or industrial.
OCCUPATIONAL OR NON-MANUAL UNIONS
These are basically concerned with organisation, technical, clerical, professional, supervisory and managerial staff separately from other workers.
For the attainment of the above unions perform two types of functions militant and ministrant. Militant functions are the strikes and go slows. Ministrant functions are those services given to union members during strikes and lockout and to provide other benefits to them. Ministrant functions can again be either intramural or extramural.
The former include those welfare efforts of unions, which are made within the factory premises (e.g., improvement in working conditions, regulation of hours of work, provision of rest pauses, adequate wages, sanitation, safety, etc). The latter include those welfare efforts of unions, which are made outside the factory premises (e.g., provision of educational, recreational and housing facilities to workers).
We list below the various functions of a trade union under these four heads:
- Functions relating to the union members
- Functions relating to the union
- Functions relating to the organisation
- Functions relating to society.
Functions Relating To The Union Members
- To’ safeguard workers against all sorts of exploitation by, political parties by the employer and by the union leaders.
- To protect workers from the atrocities and unfair labour practices of the management.
- To ensure healthy, safe and conducive working conditions, and adequate conditions of work.
- To exert pressure for enhancement of rewards associated with the work only after making a realistic assessment of its practical implications.
- To ensure a desirable standard of living by providing various types of social services-health, housing, educational, recreational, co-operative, etc.” and by widening and consolidating the social security measures.
- To guarantee a fair and square deal and social justice to workers.
- To remove the dissatisfaction and redress the day-to-day grievances and complaints of workers.
- To encourage workers’ participation in the management of industrial organisation and trade union, and to foster labour-management and leader-follower co- operation.
- To make the workers conscious of their rights and duties.
- To impress upon workers the need to exercise restraint in the use of rights and to enforce them after realistically ascertaining their practical implications.
- To stress the significance of settling disputes through negotiation, joint consultation and voluntary arbitration, and not through adjudication.
- To raise the status of trade union members in the industrial organisation and in the society at large.
- To formulate policies and plans consistent with those of the industrial organisation and society at large
- To improve the network of communication between trade union and its members.
- To eradicate various types of ‘isms’ like tribalism, regionalism and linguism within the trade union movement.
- To keep away from advocating the adoption of unfair labour practices.
- To save the union organisation from the exploitation by vested interests-personal and political interests.
- To continuously review the relevance of union objectives in the context of social change, and to change them accordingly.
- To prepare and maintain the necessary records.
- To manage the trade union organisation on scientific lines.
- To keep away from advocating the adoption of unfair labour practices.
- To continuously review the relevance of union objectives in the context of social change, and to change them accordingly.
- To Publicise the trade union objectives and functions, to know people’s reaction towards them, and to make necessary modifications
Functions Relating To the Organisation.
- To increase production: quantitatively as well as qualitatively by laying down the norms of production and ensuring their adequate observance.
- To help in the maintenance of discipline.
- To create opportunities for workers’ to participate in management and strengthen labour-management co-operation.
- To help in the removal of dissatisfaction and redressal of day-to-day grievances and complaints.
- To promote dialogue and amicable relationships between the workers and the management by settling disputes through negotiation, joint consultation and voluntary arbitration, and by avoiding litigation.
- To create favourable attitude the management towards trade unions and improve their status in industrial organisation.
- To put pressure on the employer to enforce legislative provisions beneficial to the workers, to share the profits equitably, and to keep away from various types of unfair labour practices.
- To facilitate communication between the management and the workers
- To impress upon the management on the need to adopt reformative, and not punitive, approach towards workers’ faults.
Functions Relating To Society:
- To render all sorts of constructive co-operation in the formulation and implementation of plans and policies relating to national development.
- To actively participate in the development of programmes of national development, e.g. family planning, afforestation, national integration, etc.
- To launch special campaigns against the social evils of corruption, nepotism, communalism, tribalism, regionalism, price-rise hoarding, black marketing, smuggling, sex inequality, illiteracy, dirt and disease
- To create public opinion favourable to government’s policies and plans, and to mobilize people’s participation for their effective implementation
- To enable unorganized sector to organize itself.
- To create public opinion favourable to trade unions and thereby to raise their status
HISTORICAL BACKGROUND OF TRADE UNIONS IN KENYA
There are many reasons which lead to the formation of the trade unions in Kenya. The main causes were:
- Imposition of colonialism
- Land alienation
- Introduction of Indian labour
- Introduction of cash rupees in the economy
- Passing of repressive ordinances
In 1895, the British Government decided to build the Uganda Railway from Mombasa to Kasese in Uganda based mainly in commercial and political reasons.
- During the same period, the British government was advised to encourage white settlement in Kenya based on its climate, fertile land and abundant labour. Africans were removed from their original land to give way for white settlement.
- The construction of the Railway and white settlement required abundant labour, which was in short supply because African were reluctant to provide it. In order to resolve this labour problems, the British government introduced in Kenya in 1896 the Indian Labour . In 1901, hut tax ordinance and nature registration ordinance were passed.
- Hut ordinance was deliberately introduced and enforced to make an adult African pay his hut taxing rupees while the nature ordinance was used to control and count the number of African adult labour available.
- Between 1919 1922, Africans organized colonial government ordinances, Kipande, forced labour etc and various organizations were formed namely:- Kikuyu Central Association, young Kikuyu Association and the Kavirondo welfare Association.
- In 1992, agitation against the colonial government was so tense that the government decided to arrest and detain Harry Thuku who was the leader of the young Kikuyu Association and his detention was followed by a strike in Nairobi.
- Between 1922 & 1930 there were consultations sent to probe land and labour problems. It encouraged colonial Government to pass for the first time the colony trade union and trade dispute ordinances of 1937.
- Despite the passing of the ordinance organizing and recruitment was difficult because of colonial government, employers and white settlers, hostilities against trade unionism.
- Trade union leaders were harassed victimized and threatened with deportation by criminal authorities.
- In 1938, the labour Trade Union of Kenya (LTUK) organized a big conference on workmens
compensation in order to suggest clauses in favour of workers.
- In 1939 the Labour Trade Union of Kenya was renamed Labour Trade Union of East Africa (LTUEA) so as to represent those from Tanganyika and Uganda. The LTUEA also organized trade union courses in Kiswahili and English.
- (1939 1952): Trade union activities continued during the war period including:
- The establishment of the Labour Advisory Board in 1942.
- The first African Eliud Mathuu entered the legislature council in 1944
- The formation of Kenyas Study Union (KSU) in 1946 later renamed as Kenya African Union (KAU).
- In 1947, the British Government brought in a colonial labour officer who was charged with the responsibility to advice the local trade unions in organizing, bargaining and grievance handling.
- During the same period there was a general strike of 15000 members in Mombasa. It was organized by African Workers Federation (AWF).
- In 1895 at a place called Ribe in Mazeras at the Coast Province, African workers who were employed by the church mission of East Africa formed as workers organization .
- It recruited workers from the mission in Ribe. Some of its demand were to improve the conditions of the workers and assist in individual grievances.
- Other trade unions formed in 1947 were African Taxi Drivers Union (ATDU) later renamed as Kenya African Road Transport and Mechanic Union. (KARTMU).
- Others include Kenya Houseboys Association Tailors and Garments Workers Union, Night Watchman Association and African Press Workers Association..
- In 1949, Makhan Singh and other Africa trade unionists formed the East African Trade Union congress.
- By the end of 1949, the East African trade union congress had brought together the wings of the labour movement in Kenya.
Various trade unions and political agitation took place in 1950-1952, the government declared a state of emergency banning all political activities including Kenya African Union. It arrested and detained most political leaders.
1952-1965: In 1952, six trade unions formed the first African dominated National centre of trade unions namely: The Kenya Federation of Registered Trade Unions (KFRTU). These were:
- Transport and allied workers union.
- Tailoring, Tent makers and Government workers Union
- Domestic and Hotel workers union
- Night watchman, clerk and shop workers union
- Typographical union of Kenya
- East Africa Federation of Building and construction workers union.
The Kenya Federation of Registered Trade Union wads affiliated to Brussels based International Confederation of Free Trade Union. In 1955 the KFRTU was renamed as Kenya Federation of Labour (KFL)
In 1960, a constitutional conference took place in London. In 1962 Kenya was granted internal self-government and Tom Mboya became the Labour Minister.
In 1963, Kenya became independent and the role of trade union had to be redefined in an independent Kenya.
Internal disagreement led to a split in the organization leading to the formation of another Revival National center of Trade Unions which was called Kenya African Workers Congress (KAWC). The four National Trade unions which formed the KAWC were:
- Quarry and mine workers union
- Dock workers union
- Petrol and oil worker union
- Custom workers union
The two National Centers Rivalism led to a scuffle, which left three persons dead in Mombassa in 1965. The government intervened by appointing presidential Ministerial Committee of trade unions. The committee made their recommendations in line with the government sessional paper on African socialism and its application No. 10 of 1965. The recommendations were as follows: –
- The deregistration of both KFRTU and KAWC
- The creation of new Central Organization of Trade union (COTU)
The committees recommendations were implemented. From 1965 to 1981 the Central Organization of Trade Unions held five elections.
The second person who became the secretary general of COTU was James Dennis Akumu who later became the secretary general in 1975 of the Pan African Trade Union Center. (The Organization of African Trade Union Unity OATUU)
At the organizations forth coming meeting in 1975, Juma Boy who had taken over as the secretary General form Denis Akumu faced a strong opposition from James Karebe who was the secretary General of Kenya Local Government Union. Karebe finally lost to Juma Boy.
At one time, Karebe formed rival National center of trade unions called Federation of United Trade Unions (FUTU) but it was not registered by the government. The disagreement between FUTU and COTU was based on the representation of National Unions at COTU governing council meeting. In 1980 the COTUs constitution was amended with those amendments registered by the government, Karebe fought to take over from Juma Boy but he lost again. The current COTU Secretary general Francis Atwoli.
- Explain reasons that lead to the formation of trade unions in Kenya
- Outline briefly the historical background of trade unions
The ILO came into existence on the 19th of April 1919 as a result of the peace conference convened at the end of World War 1.
The ILO is a tripartite body constituting of representatives from governments, employers and workers of the member state. It is based in Geneva. Its primary duty is to set international labour standards on labour laws and practice. Each year, the ILO looks at the various issues affecting labour relations in the world, discuss and come up with a labour standard in that particular area to be achieved by the countries of the world. These are called CONVENTIONS. The ILO standards are designed to protect the interests of employers, workers and the governments in matters concerning labour relations. The ILO also passes other supplementary instruments called RECOMMENDATIONS that support but do not have the same force as the Conventions.
National governments are expected to ratify and adopt international Labour standards to rectify and translate them into labour legislation as they find relevant to their situations. To that extent, the ILO Conventions and recommendations are standard setters and are often referred to, to justify a case for legislation or amendment of an existing legislation or to influence the industrial court on a given issue.
Kenya became a member of the ILO in 1964 and indicated it was now bound by 24 of the ILO Conventions that had been ratified by the colonial government. This meant it was going to continue discharging all its obligations in respect of all these ratified Conventions. Since 1964, Kenya has ratified a further 22 Conventions thus bringing a total 46 ratified Conventions to date.
Objectives of the ILO.
- To achieve full employment and to raise the standards of living.
- To provide employment to workers in the occupation in which they can have the satisfaction of giving the fullest measure of their skill and make contribution to their common well being.
- To provide facilities for the training and transfer of labour.
- To formulate policies in regard to wages and earnings, bonuses and other conditions of labour calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of protection.
- To get effective recognition of the right of collective bargaining, co-operation of management and labour in continuous improvement of productive efficiency and collaboration of workers and employers in social and economic measures.
- To extend social security measures to provide a basic income to all in need of such protection and comprehensive medical care.
- To adequately protect the life and health of workers in all occupations.
- To provide child welfare and maternity protection.
- To provide adequate nutrition, housing and facilities for recreation and culture.
- To assure equality of educational and vocational opportunity.
Structure of the ILO
The total number of members to the ILO is 181. The ILO consists of 3 principal organs as described below.
- The International Labour Office.
This is the head office of the organization and is situated in Geneva. The main functions of this office are: –
- To prepare documents on the items of the agenda of the International Labour Conference.
- To assist governments in framing legislation on the basis of the decisions of the International Labour Conference.
- To carry out its functions in connection with the observance of the conventions.
- To bring out publications dealing with industrial labour problems of international interest.
- To collect and distribute information on international labour and social problems.
- The Governing Body.
It is a tripartite body consisting of 56 members of which; 28 are drawn from governments, 14 from the employers organizations and another 14 from employee organizations. The functions of this body are as follows: –
- To co-ordinate the work of the organization.
- To draw up the agenda of the ILC
- To appoint the Director-General of the Office
- To scrutinize the budget.
- To follow-up implementation by member states of the conventions and recommendations adopted by the ILC.
- To fix dates, duration and agenda of the regional conference.
- To seek opinion from the International Court of Justice on the direction of the ILC.
- The International Labour Conference (ILC)
This is a tripartite body in composition and meets at least once every year. Its functions are: –
- To formulate international labour standards.
- To fix the amount of contribution by each member state.
- To select once every 3 years members of the Governing Body.
- To elect its president.
- To ask the Governing Body to seek opinion from the International Court of Justice.
- To decide the budget expenditures prepared by the Governing Body.
- To appoint committees to deal with different matters during each session.
- To regulate its own procedures.
- To make amendments to the constitution.
- To confirm the powers, functions and procedures of the regional conference.
Functions of the ILO.
- It passes Conventions and makes recommendations on labour matters every year, which are then considered by the governments of member-states for adoption. This has helped build up an International Labour Code.
- It gives expert advice to member-countries in making plans for improving their labour conditions.
- It carries out research studies on labour problems throughout the world and publishes its findings in the form of books and magazines. This is done through the International Institute for Labour Studies.
- It trains people in solving labour problems in their countries.
- It organizes regional conferences every year.
Types of Standards.
There are two main types of International Labour Standards, which are enforced via a 2/3 majority of the International Labour Conference.
The International Labour Conventions. A convention is an instrument, which is designed to be ratified, and a member state that ratifies it hereby undertakes to apply the standards it contains.
The International Labour Recommendations. This is an instrument which is exclusively designed to set standards as a guide for action, but is not subject to ratification.
Both conventions and recommendations are adopted by the Conference and are officially communicated to every member state of the organization, which is expected to bring them before authorities the national parliament.
Ratification of ILO
The following should be noted in the case of all ILO conventions.
- Conventions are designed to be ratified by the member states and hence creating binding obligations.
- Formal ratifications of all conventions must be communicated to the ILO Director General for registration.
- A convention is binding only to the members whose ratifications have been registered.
- A convention comes into force 12 months after the date on which the ratification of 2 members has been registered with the ILO Director General.
- Thereafter, a convention shall come into force for any member 12 months after the date on which its ratification was registered.
Decision to ratify any convention
The final decision whether or not to ratify a convention or recommendation is reached by the elected representatives of the people in parliament that is, after recommendation by the various competent authorities e.g. National Tripartite Labour Advisory Board.
It should also be pointed out that there is a basic distinction between submission of these instruments to the competent authorities and ratification. The obligation to submit is general in character and does not imply that the convention must be ratified. Moreover, this obligation arises even with recommendations, which are not open to ratification.
The ratification of International Labour Conventions is a matter for free decision of each country. Recommendations, which often complement conventions on the other hand, are guidelines for national legislation and practice. They are subject to ratification and do not give rise to substantive obligations.
What really matters is not the number of conventions ratified, but rather the extent to which a country puts into effect the few international labour standards it has ratified.
Once a Convention has been ratified, the government is required (under Article 22 of the ILO Constitution) to submit an annual report on its implementations in law and practice. Under article 23 of the ILO Constitution, the government is required to send a copy of its reports to the most representative organization of employers and workers in the country, and they may make any comments they feel necessary, either through the government or directly to the ILO.
Constraints with Regard to Ratification of ILO Standards.
- Pre-mature ratification of ILO standards i.e., ratification before ensuring harmony between the Countrys laws with the relevant provisions of the Convention to be ratified.
- Problems of acute shortage of staff in the Ministry with the requisite knowledge on standards.
- Recent introduction of the social clause in international trade agreements with the possibility of the application of sanctions for alleged violation of ratified ILO standards.
- Difficulties in application of ratified ILO standards in the face of the implementation of the SAPs (structural Adjustment Programmes)
ILO was founded in 1919 and has its roots in the social conscience movement of the 19th century. It became recognized at the end of the first world war (1918). As a result of this ILO was created by the Versailes Peace treaty to do the following. To
- set international standards for protection of workers
- Provide a body of knowledge on the world’s labour problems
The ILO was the first specialized agency of the UN (1926). Today hundred of ILO experts are at work in all parts of the world assisting government in the following fields:
- Vocational training
- Management development
- Employment promotion
- Development of small scale
- Social security
ILO is an intergovernmental agency but employers and workers as well as government take part in its work (Tripartite).
Functions of ILO
- One of the primary functions of ILO has always been to raise standards by building up code of international law and practice (practice which relate to employment are observed worldwide).
- The International Labour standards (ILS) are set by the International Labour Congress (ILC) in the form of conventions and recommendations.
- These are instruments which not only set standards of achievement, but which when rectified create binding international obligation for the country concerned.
- It is conceived as a model for national legislation. A convention is binding only on member countries that have ratified it.
- This creates normal such obligations but are essential guides to natural actions.
- Recommendations when rectified only act as guides they are not binding.
- Research and Publishing are important aspects of the work of ILO.
- The ILO provides technical co operations under three programmes through:
- UNDP United Nations Development Programme.
- Regular Budget Programme.
- Funds in trust.
International Institute of Labour Studies (ILLO)
It is based at Geneva Switzerland and was established in 1960.
International Centre for advance Technical & Vocational Training (I.C.A.T.V.T)
- Established in 1965 by the ILO. Its based in Turin in Italy. It provides advanced technical and vocational training for members from the member states of ILO.
International Labour Conference (ILC)
- Takes place every year at Geneva.
- Delegates in this conference speak and vote independently.
The ILO governing body
- Its elected by the conference and is also tripartite. The body functions as the organs executive council.
The International Labour Office (I.L.O)
Each member government sends four delegates. 2 government, 1 employees
1 employer to the annual meeting
National Labour Conference (ILC)
The supervises the international
International Institution International Centre for Advanced
For Labour Studies Technical and Vocational Training
- The governing body is usually guided by the wishes expressed by inside and outside the ILO.
- These wishes are usually from governments, employers and workers organization.
Examples of conventions that are significant to Kenyan situation convention No. 87
- Its called the freedom of association and protection of the right to organize.
Aims of the Standard (Conv. No. 87)
- The right, freely exercised by workers and employers without distinction, to organize for furthering and depending their interests.
CONVENTION No. 87 (1948)
Summary of the Provision
- Workers and employers without distinction whatsoever have the right to establish and join organizations of their own choice with a view to furthering and defending their respective interest.
- And such organizations have the right to draw up their constitutions and laws.
- They have a right to elect their representative in full freedom
- Have a right to organize their administration and activities and be able to formulate their own programmes.
- Public authorities shall refrain from any interference which would restrict the rights or impaired the lawful exercise of this right.
CONVENTION No. 98 (1949)
Aim of this standard
- Protection of workers who exercise the right to organize
- Non-interference between workers and employers organization
- Promotion of voluntary collective bargaining.
Summary of he Provisions
- Workers shall enjoy adequate protection against acts of antiunionism discrimination
- Workers should be protected more particularly against dismissal or any other prejudice by reason of union membership on participating in union activities
CONVENTION No. 135 (197)
Aims of this standard
- Protection of workers representatives in their undertaking against arbitrary dismissals, dissemination
Summary of this provision: Workers representatives should be protected against prejudicial acts based on their status; They should be afforded facilities in their undertaking to enable them carry out their promptly and efficiently
CONVENTION No. 158
Termination of Employment
- Termination of employment is cessation of employment at the initiative of the employer
- This convention provides that the employment of a worker shall not be terminated unless there is a valid reason. This may have to do with the capacity or conduct of the worker.
Resource which are not valid grounds for termination are:
- Union membership.
- Participation in union activities at appropriate hours.
- Seeking office or acting as workers representative.
- Filing a complaint against the employer.
Summary of this provision
- This convention provides for procedures to be followed for the termination of employment and also appeals.
- The burden of proving the existence of valid reason rests on the employer.
- Completed bodies shall be empowered to reach a conclusion with regard to the evidence provided by parties according to procedures provided by National Law and Practices
- However, termination of employment may be valid if reasonable notice or compensation in lieu of notice is given in time.
- If the termination is unlawful (wrongful, unjustified) then the decision can be reversed to reinstatement or payment of compensation.
LABOUR LEGISLATIONS IN KENYA (LABOUR LAWS)
- This refers to general principle that govern relationships that exist between one who sells personal labour and one who buys such labour.
- They can also be referred as laws which govern relationship between employers and employees.
Sources of Labour Laws:
- Laws governing labour matters are derived from a number of sources. This is the same sources from which laws governing other areas are derived.
- Customs of society or areas.
- Common law for example proceedings of industrial court.
- Islamic Law.
CONSTITUTION OF KENYA
- This is the most basic law in Kenya and provides the legal bases for the structure of the sate, the relationship between the state and the citizens and the relationship amongst the citizens themselves.
- The constitution does not govern labour matters directly but forms a background against which the labour laws and operations operate. It therefore provides for:
- Power to create ministries and appoint Ministers hence the Minister and other personnel dealing with labour matters.
- Power to make laws hence passing of labour laws by Parliament either directly or indirectly.
RELEVANT LABOUR LEGISLATION IN KENYA
This Act was first established in 1921. It is an Act of parliament established to safeguard on pubic health. It makes provisions for securing and maintaining health.
Its divided into two:
- Principal legislation
- Subsidiary legislation
- i) Principal legislation
- a) Notification of infections diseases (Part III)
This provision in the Act requires that all patients of infectious diseases be reported to the nearest medical officer. Examples of infectious diseases include cholera, typhoid, small pox, tuberculosis, whooping cough, plague and sleeping sickness.
- b) Prevention and suppression of infectious diseases (Part IV)
This part of the Act empowers the medical officer to inspect infected premises and examine persons suspected from suffering an infectious disease.
- c) Venereal diseases
Employers who continue to employ employees/persons suffering from any venereal diseases in a communicable form are guilty of an offense especially if these persons take care of children or handle any food utensils.
- d) Sanitation and Housing
– It prohibits the use existence of nuisance in the premises. It also provides for health authorities to maintain cleanliness and nuisance.
– It also provides for health authorities to prevent any danger to health from unsuitable dwellings.
- e) Protection of foodstuffs
– It provides for construction and regulation of buildings used for storage of foodstuffs to be approved by the medical officer of health.
- f) Public water supplies, meat, milk and other articles of food
– Provides for protection of water supplies against any pollution dangerous to health.
– It sets rules for protection of food and provides powers o municipalities to inspect milk.
- ii) Subsidiary Legislation
- These are laws which came later after 1921 through orders, reviews.
- Section 36 of the Act provides for public health rules for sleeping sickness, tsetsefly areas, rats and mice destruction rules and rats viruses.
- Section 73 provides rules for ports, airports and shipping health.
- Section 126 provides rules for drainage of latrines. This section provides for the following:
- Construction of drains
- Construction of soil pipes
- Construction of water closets and urinals
- Licensing of plumbers
- Section 134 provides for rules in manufacturing, preparation, packing and re-packing of food stuffs.
In addition, it provides for meat inspection and importation of meat.
The employment Act cap 226 is divided into 6 parts:
- Preliminary part 1
- Conditions of employment part 2
- Foreign contracts of services part 3
- Employment of women and juveniles – part 4
- General part 5
- Supplementary part 6
PART 1 PRELIMINARY
This Act may be acted as the Employment Act. The provisions of this Act shall not apply to
- The armed forces or the reserve as respectively defined in the Armed Forces Act.
- The Kenya Police, The Kenya Prisons Service or the Administration Police Force.
- The National Youth Service
- Such persons or class of persons, such trade to industry, or such public body, as the minister may, by order, exempt from all or any of those provisions of this Act. But subject to the foregoing shall be binding to the Government.
Labour Advisory Board
- There shall be a Labour Advisory Board whose duty it shall be to advise the Minister upon such matters connected with employment and labour, and answer any question referred to it by the minister.
- The members of the Board shall be appointed by the Minister. Out of the members, the Minister shall appoint a chairman and an officer of the labour department to be the Secretary.
- The following provisions shall have effect with respect to the constitution and proceedings of the Board:
- The Minister may at any time cancel the appointment of a member of the Board. Unless his appointment is so cancelled, each member of the Board shall hold office for three years.
- If the chairman of the Board ceases to be a member of the Board, he shall also cease to be the Chairman of the Board.
- There shall be paid out of moneys provided by Parliament to the members of the Board, including the chairman, in respect of their office as such, and other reasonable allowances in respect of expenses properly incurred in the performance of their duties as may be determined by the Minister with the consent of Minister for the time being responsible for finance.
- ii) PART II CONDITIONS OF EMPLOYMENT
1) Protection of Wages
Subject to this Act, the entire amount of the wages earned by or payable to an employee in respect of work done by him in pursuance of a contract of service shall be paid to him directly in the currency of Kenya.
- If an employee requests in writing incase of an agreement made between a trade union and an employer, payment may be made:
- Into an account at a bank to building society, in his name whether alone or jointly with any other individual.
- By cheques, postal order or money order
- In the absence of an employee, to a person other than the employee, if the person is duly authorized by him writing to receive the wages on his behalf.
- Payment of wages shall be made on a working day and during working hours, at or near to the place of employment or at such other place as may be agreed to between the employer and the employee.
- Payment of wages shall not be made in any place wherein intoxicating liquor is sold or readily available for supply, except in the case of employees employment to work therein.
- When wages are due an employee shall be entitled:
- When a task has not been completed, at the option of his employer to be paid by his employer at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day.
- In the case of casual employee, at the end of the day.
- In the case of an employee employed for a period of more than a day but not exceeding month, at the end of that period.
- In the case of an employee employed for a period exceeding one month, at the end of each month.
- In the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of such period, whichever date is the earlier, and on the completion of the journey respectively.
- Where an employee is summarily dismissed for lawful cause, he shall be paid on dismissal all moneys, allowances and benefits due to him up to the date of his dismissal.
- Deductions from Wages
– An employer may deduct from the wages of his employee:
- a) Any amount due from the employee as a contribution to any provident or superannuation scheme or any other scheme approved by the labour commissioner to which an employee has agreed to contribute.
- b) A reasonable amount for any damage done to or loss of, any property lawfully in the possession or custody of the employer occasioned by the willful default of the employee.
- c) Any amount paid to the employee in error as wages in excess amount of wages due to him.
- d) Any amount the deduction of which is authorized by any written law for the time being in force
- e) Any amount in which the employer has no beneficial interest, whether direct or indirect.
- Leave, Housing, Health and Welfare
Every employee shall be entitled:
- After every 12 consecutive months of service with his employer to not less than twenty-one working days of leave with full pay.
- Where employment is terminated after the completion of two or more consecutive months of service during any twelve months, leave earning period, to not less than one and three
quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.
- A woman employee shall be entitled to two months maternity leave with full pay. Provided that a woman has taken two months maternity leave shall forfeit her annual leave in that year.
- The leave referred to in subsection 1 shall be additional to all public holidays, weekly rest days and any sick leave, whether fixed by law or agreement, in respect of which as employee is not required to work.
- Every employee shall be entitled to at lest one rest day in every period of 7 days.
- Every employer shall at all times, at his own expense provide reasonable housing accommodation for each of his employees either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, in addition to his wages or salary, as reasonable accommodation.
- Every employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment.
- Every employer shall, where provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that every employee is properly fed and supplied with sufficient proper cooking utensils and means of cooking at the employer’s expense.
- Summary Dismissal
– Any of the following constitute justifiable or lawful grounds for the dismissal:
- a) If, without leave or other lawful cause, an employee absents himself from the place of proper and appointed for the performance of his work.
- b) If an employee becomes intoxicated during working hours and renders himself unwilling to perform his work.
- c) If an employee uses abusive or uses insulting language or behaves in a manner insulting to his employer or to a person placed in authority over him by his employer.
- d) If an employee knowingly fails or refuses to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.
- Certificate of Service
Every employee shall be given a certificate of service by his employer upon the termination of his employment, unless the employment has continued for a period less than four consecutive weeks.
iii) PART III FOREIGN CONTRACTS
- This part shall apply in respect of every foreign contract of service, that is to say, a contract of service made within Kenya and to be performed in all or part outside Kenya.
- Every contract of service with a foreign state, except a contract for service entered into with or by behalf of the Government.
- A foreign contract of service shall not be attested unless the labour officer is satisfied:
- that the employees consent on the contract has been obtained
- that the contract is in a prescribed form
- that the employee is medically fit for the performance of his duties under the contract
- iv) PART IV EMPLOYMENT OF WOMEN AND JUVENILES
- No person shall employ a child whether gainfully or otherwise, in an industrial undertaking. The provisions of this section shall not apply to the employment of a child in an industrial undertaking under a deed of apprenticeship or indentured learnership lawfully entered into under the provisions of the industrial training Act.
- Subject to sect 29, no woman or juvenile shall be employed between the hours of 6.30 pm and 6.30 am in an industrial undertaking.
- Expect in the following situations:
- Women may be so employed in cases where their work is concerned with raw materials, or materials in the course of treatment.
- Women holding responsible positions of a managerial or engaged in health and welfare services
- No female shall be employed on underground work in a mine except in the following circumstances:
- A woman holding a position of management who does not perform manual works.
- A woman engaged in health or welfare services
- A woman who in the course for her studies spends a period of training in the underground parts of a mine
- Every employer who employs any Juvenile shall keep and maintain a register containing the following particulars of every Juvenile employed:
- Age or date of birth
- Date of entry into and of learning the employment
- Such other particulars a may be prescribed
- v) PART V – GENERAL
– Every employer shall keep a written record of all employees employed by him with whom he has entered into contracts under this Act.
– This shall contain such particulars as may be prescribed and the employer shall permit the record to be examined by an authorized officer who may require an employer to produce for inspection that record for any period relating to the preceding twelve months.
– Subject to section 77 of the Constitution, whenever a complaint is made under subsection (1) of this section:
- a) To a Labour Officer, he shall use his best endeavours, by the taking of such lawful steps as may seen to him to be expedient, to affect a settlement between the parties.
- b) To a Magistrate, he shall have the jurisdiction in all cases arising in his area of jurisdiction to exercise any of the following powers:
- He may adjust and set off one against the other all the claims on the part of either of the employer or of the employee arising out of or incidental to, the relation between them as the magistrate may find to be subsisting, whether claims are liquidated or unliquidated, and are for wages, damages or otherwise, and he may direct the payment of such sum as he find due by one party to the other party.
- He may assess the amount of compensation due to an employer for the loss or damage to his property occasioned by the wrongful act or neglect of his employee.
- He may decide the relative rights of the employer and employee, and may make such directions as in his opinion meets the justice of the case.
- vi) PART VI – SUPPLEMENTARY
- Every authorized officer shall be furnished by the Labour Commissioner with a certificate of his appointment.
- With the issuance and production of the certificate to the employer the Labour Officer has the following duties:
- Enter, inspect and examine all reasonable times by day and night any land or building or other structure whether permanent or temporary on or in which he has reasonable ground for believing that an employee is living, residing or employed and may make such inquiries and inspection or examination as may be necessary to enable him to determine whether the provisions of this Act are being compiled with.
- At all reasonable times require an employer to produce an employee employed by him and a document relating to the employment of any employee and may require an employee to produce any document elating to his employment.
- Examine and take copies of a register, record, book or other document relating or appearing to relate to employment, whether produced to him or not, and take possession of that register, record, book or other ground for believing to be or to contain evidence of an offence under this Act.
- Enter, inspect and examine all latrines and other sanitary arrangements or water supply.
- Order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition.
- A medical offer may for the purposes of this Act exercise the powers conferred upon an authorized offer by paragraphs (a) to (f) inclusive of section 50, and may in addition do all or any of the following:
- Order an employee ho, in his opinion, is sick and for whom the conditions prevailing at the place of employment are not conduciveness to the rapid recovery of his health or strength to return to the place of his engagement, or to proceed to a hospital, an din that case the employer shall at the earliest opportunity and at his own place of his engagement.
- Condemn any food provided for employee which, in his opinion, is unfit for human consumption, and all food so condemned shall be destroyed forthwith in the presence of a medical officer.
- Order at the expense of the employer such variety of food for an employee as he may deem necessary
- Any person who willfully obstructs or hinder an authorized offer or medical officer in the exercise of any power conferred by this Act or any rules made thereunder shall be guilty of an offence and liable to a fine not exceeding 4,000/= or imprisonment for a term not exceeding 6 months or both.
- The Minister, after consultation with the Board, may make rule providing for all or any of the purposes, whether general may in additional perform the following:
- Prescribing anything which under this Act is to be or may be prescribed.
- Regulating the case of sick and injured employee
- Controlling the conditions under which employees may be housed to employed, including sanitary arrangements and water supply.
- Controlling the feeding of employees in cases where food is to be supplied by the employer under the contract of service, including the quantity, variety and kind of food to be supplied.
- Appointing labour supervisors where employees exceed the maximum prescribed.
- The registration and employment of casual employees.
- Prescribing particulars to be included in a certificate of services
- Prescribing the age below which children are not to be employed
- Requiring employers of children to furnish information and returns to any specified officer in respect of such children or their employment or the conditions of their employment.
- This Act is an act of Parliament which provides for establishment of:
- Wages advisory boards
- Wages councils
- These two are put in place to regulate remunerations and other conditions of employment.
Definition of terms:
Statutory minimum remuneration these are fixed by the wages regulation order.
A wages council order is an order made under sub-section 1 of section 7 which establishes a wages council
Wages regulations order applies to: Employers by or under the government except for: armed forces, policies, youth service, persons in the employment of UK.
How to appoint a wages advisory boards?
- Advises Minister on matters related to employment.
- The Minister may appoint a general wages advisory board and agricultural wages council.
Functions of General Wages Advisory Board?
- Makes inquiry and recommendation specifying the basic minimum wage which should be paid to employees coming within the terms of reference.
- Recommendations for the regulation of wages and other conditions of employment of all or any such employees in the industry
- A recommendation or proposal made by the board is deemed to be a wages regulation proposal
Functions of Agriculture Wages Advisory Board and Area Agriculture Wages Committees:
– The board inquires and submits a report containing the following: –
- A recommendation specifying the basic minimum wage which should be paid to employee who fall under the terms of reference
- The report must contain proposals for the regulation of wages and other conditions of employment of all or any of such employees
- A recommendation that a wages council be established in respect of such employees
- The minister may also appoint such area agricultural wages committee as he considers necessary to assist the board to inquire into any matters referred to it. Establishment of wages council
- The minister in pursuance of a recommendation by the General Wages Advisory Board made under section 6 (2) if he is of the opinion that no adequate machinery exists for the affective regulation of the remuneration or other conditions of employment of the employees in any trade industry or occupation, may by order establish a wages council.
Establishment of wages council
- According to sect 8 of this Act, before mailing a wages council. Order, the minister has to publish in the gazette twice within an interval of at least 7 days but more than 14 days between each publication in newspaper published and circulated in Kenya.
- A notice of his intention to make such order, specifying the place where copies of draft thereof may be inspired and a time which shall not be less than 30 days from the 1st date of such publication within which any objection of such draft order shall be sent to the minister.
- The minister might amend such objections. Its then published in the
Abolition of wages council or variation
- The minister can decide to abolish the wages council or he may also vary the limits of its jurisdiction
Constitution, offers and proceedings of wages council
- A wages council shall consist of such number of members representing employers and such number of members representing employees as the minister directs
- The number of independent members representing employers and such number of members representing employees as the minister directs
- The number of independent members shall be an odd number
- The number of members representing employers shall be the same as the number of members representing employees
- The minister shall appoint the peruses to be members of a wage council, and shall appoint one of the independent members to be chairman of the wages council and another of the independent members to be deputy chairman to act in the absence of the chairman from any meeting
- Before making any appointment of persons representing employers or employee to be members of a wages council, the minister shall consult any organization appearing to him adequately to represent employers or as the case may be employees concerned
- The minister may appoint a secretary and such other officers as he thinks fit of a wages council
- A wages council may delegate any of its powers under this Act (except the power to submit wages regulation proposals) to a committee or as the case may be subcommittee consisting of such number of persons being members of the council as the council thinks fit
- The term for which a member of a wages council shall hold office shall be three years.
Contents of the wages regulation proposal or order
- Minimum wage
- Minimum house allowance payable in addition to basic wage 15% of the basic
- A provision for the amendment of the same order/proposals
- of hours
Meaning of remuneration
- Refers to the amount paid or to be paid to the employee by the employer in cash clear of any deductions expect authorized deductions (lawful deductions)for example
- For the purpose of contribution to any provident fund or superannuating scheme
- In respect of actions supplied to an employee which an employer is charged to provide
- Under any provision where law provides that the employer deducts NSSF, NHIF, PAY, cooperatives
- At the request in writing by the employee for any purpose for which the employer has no benefit
- Ina situation where there’s no council order, the general wages order is assumed to be in effect. Failure to comply is an offence. If an employer fails to pay an employee to whom a wages regulation order remuneration less than the statutory minimum or fails to provide the employment prescribed in that order, he shall be guilty of an offence and liable to a fine not exceeding 400 shillings.
- In case of underpayment the employer can pay the arrears.
Powers of officers to institute proceedings
- A labour officer / inspector may on behalf of an employee sue the employer and recover the arrears.
- Employers are not supposed to receive any premiums f
- tworkers kept by an employer or other persons giving out work to outworkers
- To examine, either alone, or in presence of any other person the wages of employee and there after sign a declaration of the truth of the matters n respect of which he is so examined
LEGISLATION GOVERNING HEALTH AND SAFETY ISSUES
It has been in force in Kenya since 1949.
Objectives of Workmans compensation Act:
- to provide for compensation for loss of caring capacity suffered by workmen injured or who meet death in accident arising out of an in he course of employment.
- Provides for payment by the employer of medical expenses of the employee.
- Any employee who contracts or dies as a result of contracting any of certain occupational diseases is also entitled to compensation.
- Refers to any person who has entered into or works under a contract of service, apprenticeship or learnership with employer.
- Classes of employees examined from the definition of workman non-manual labour workers whose
- Denotes an unlooked for mishap or an unexpected event which not designed or desired by the injured workman.
Entitlement to compensation
- He must have been doing what he’s employed to do.
- The accident must have taken place when the person was in actual discharge of his duties not before start of or after cessation of employment
- The injury caused permanent disability or death to the workman or temporarily disable him for at lest three consecutive days form earning full wages from the work at which he was employed.
- Negligence on the part of the employee doesn’t disentitle him to compensation but serious and willful misconduct may, depending on the nature of the injury to preclude payment.
- The onus of proof of serious and willful misconduct rests with the employer.
Action to be taken after an accident
- Immediately an accident occurs the law requires that a report if the accident is made to the labour officer of the area or to the District Commissioner (where there’s no labour officer)
- Any workmen who suspects that the employer hasn’t made such a report should immediately report the matter directly to the appropriate authority.
- Compensation takes the form of monetary payment for which the employer is liable and is paid in respect of one or more of the following heads:
- Temporary incapacity
- Permanent incapacity
- Injury to health
- Assessed by the Labour Officer to whom the accident was reported.
- The amount is normally the periodical payment of not less than half of the workmen’s basic wage at the time of the accident covering the period of temporary disablement as certified by the doctor treating the injured workmen subject to a maximum of 96 months
- These periodical payments cease to be payable as soon as final award of permanent disability (if any) has been made.
Compensation for permanent incapacity
Compensation for permanent incapacity falls under two headings:
- Partial incapacity and total incapacity
- The workman must have suffered partial loss of his earnings capacity as a result of the loss of a part of the use of a part of the body thus decreasing his ability to earn full wages.
- Permanent partial incapacity is expressed by the doctor treating the workman in percentage and may at least range from 1% to 99%
- Compensation in respect of permanent partial incapacity is assessed as percentage of 60 months earnings being percentage specified by the medical practitioner as the disability suffered by the workman subject to a minimum of Kshs 35,000 and a maximum of Kshs 240,000
Compensation for Permanent total incapacity
- In fatal cases, a lump sum of 60 months earnings subject to a maximum of Kshs 240,000 payable where the deceased leaves a person o persons wholly, or partially dependent upon his earnings at the time of his death.
- The amount payable is distributed , between the surviving dependants in accordance with the respective degree to which they were dependent upon the deceased
- A widow who remarries before payment of compensation is still entitled to her share
- Where the dead man leaves behind no dependants reasonable expenses of the burial of the deceased workman subject to a maximum of Kshs 500 is payable by the employer.
Compensation for injury or health
- If a workmen is certified by a doctor to be suffering from a scheduled occupational disease occasioning his disablement or death and if such disease is proved to have been caused by the nature of the workman having contracted the disease within 24 months previous to the date of which disablement or death. Compensation shall be payable in the same manner as if the disablement or death were caused by an accident.
Medical Aid Employer is liable to pay reasonable expenses incurred by a workman as a result of an accident which would entitle the workman to compensation.
- Expenses in respect of medical surgical and hospital treatment, nursing services and supply of medicines subject to a maximum of Kshs6,000/=
- Expenses in respect of transportation of the injured workman to and from the place where treatment is available subject to a maximum of Kshs1,000/=
NB: Workman compensation cannot be assigned or attached and no claim shall be made upon such payment.
Trade Union defined as per Cap 233 of the Laws of Kenya, it means an combination whether temporary or permanent of more than six persons and must be registered by the registrar of trade unions.
Employees Association means an association or combination, whether temporary or permanent, of more than six employees who work for the same employer, which has as its principal purpose the regulation of relations between such employees and their employer or between such employees amongst employees.
Employees organization means an association or combination, whether temporary or permanent of more than six employees who work for different employers, which has as its principal purpose the regulation of relations between such employees and their employers or between such employees and their employers or between such employees amongst themselves.
Staff Association means an association or combination of more than 6 employees employed in a civilian capacity under the government or local authority and the principal object of which is regulations of relations of employees or government or local authority.
NB: It is worth noting that only requested trade unions can bargain/negotiate for wages.
Appointment of Registrar and other officers
- The Minister shall appoint a Registrar of Trade Unions, who shall be responsible for the due performance of the duties and functions assigned to him as Register under this Act.
- The Minister may also appoint a Deputy Registrar of Trade Unions and one or more Assistant Registrars of Trade Unions and such other officers as may from time to time be required for the purposes of this Act. Section 7 of Cap 233 says that no suit shall be brought against any of the officers for anything done to omitted to be done by him in good faith and without negligence.
- The trade union registration is to be done within 28 days. Any trade union which fails to register within 28 days can be fined 5000 or jailed.
- Every application for registration shall be made to the Registrar in the prescribed form, and shall be signed by at least seven members of the union.
- In case of association of trade unions, the prescribed form shall be signed by the chairman and general secretary of each of the member trade unions.
- Every application for registration shall be accompanied by the prescribed fee and a copy of the rules of the unions and statement of the following particulars namely:
- The names, occupations and addresses of members making the application (or in case of an association of trade unions)
- The names and addresses of the registered office of each members trade union
- The name of the union and the address of its registered office
- Titles, names, ages, addresses and occupations of the officers of the union.
- When it was cancelled/suspended
- Date of registration or dissolution
Reasons for Registration of a Trade Union:
- The Registrar may refuse to register a trade union and defer its registration and notify it accordingly.
- Upon that deferment the trade union shall become a probationary trade union
- After the expiration of 3 months and before the expiration of 12 months from the date of deferment of registration of a trade union under section 11, the registrar, either in the application of the probationary trade union of his own motion, shall if satisfied that none of the grounds on which, under section 16, registration may be refused exists, register the probationary trade union as a trade union in the manner prescribed.
- The Registrar, on registering a trade union under section 11 or section 12, shall issue to the union a certificate of registration in the prescribed form, and that certificate, unless proved to have been cancelled or withdrawn, shall be conclusive evidence for all purposes that this trade union has been duly registered under this Act.
- The Registrar may call for further information for the purpose of satisfying himself that any application complies with the provisions of section 10 or that the trade union is entitled to registration under this Act.
- The Registrar has the power to alter the name of a trade union if the name proposed to be registered is identical with that by which any other existing trade union has been registered.
- Or if in the opinion of the Registrar the name proposed resembles or may mislead the members of the Public the Registrar may alter the name proposed for the trade union.
The Registrar may refuse to register any trade union or probationary trade union if he is satisfied that:
- The union has not complied with the provisions of this Act or any regulations made thereunder or
- Any of the objects of the constitution of the union is unlawful or conflicts with any such provision or
- The union is used for unlawful purposes
- Any other trade union already registered is;
- in the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration
- In the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof.
- The principal purpose of the trade union registration are not in accord with those set out in the definition of trade union contained in section 2
- The trade union (not being an association of trade union) seeking registration is an organization consisting of persons engaged in or working at more than one trade or calling and that its constitution does not contain suitable provision for the protection and promotion of their respective sectional industrial interests
- The funds of the union are being applied unlawful
- The accounts of the union are not being properly kept
- The secretary or treasurer of the union is in his opinion incapable by reason of not being sufficiently literate in English or Swahili language of carrying out adequately the duties of secretary or treasurer
Cancellation of registration of a trade union
- The registration and the certificate of registration of a registered trade union may be cancelled by the registrar
- At the request of the trade union upon its dissolution, to be verified in such manner as the registrar may require
- If he is satisfied that the trade union has ceased to exist
The registration and the certificate of registration of a registered trade union may be cancelled or suspended by the registrar if he is satisfied
- That the registration was obtained by fraud, misrepresentation or mistake
- That the objects of the trade union is unlawful
- That the constitution of the trade union or of its executive is unlawful
- That the trade union is being used for unlawful purpose
- That the trade union has willfully and after notice from the registrar contravened any provisions of Act or any regulations made there under or any les of the trade union
- That the funds of the trade union are expended in an unlawful manner or on an unlawful object or on an object not authorized by this Act and any regulations made there under
- The accounts of the union are not being properly kept
- The secretary or treasurer of the union is in his opinion incapable by reason of not being sufficiently literate in the English or Swahili language of carrying out adequately the duties of secretary or treasurer as the case may be
- When the registrar refuses to register a trade union he shall notify the applicants in writing of the grounds of that refusal and the following shall appear:
- If a trade union before it became a trade union or applied for registration as trade union was a staff association employees association or employees organization it may within one month notification by the registrar or if an appeal is taken under section 18 within one month from the dismissal of the appeal elect to revert to its former status as such association or organization and in default of such election within the time aforesaid, it shall be dissolved
- If the trade union before it became a trade union or applied for registration as a trade union was not such an association or organization as aforesaid the trade union shall be dissolved within one month of the notification by the registrar if an appeal is taken as aforesaid and dismissed within one month of dismissal of the appeal
It is therefore liable to an offense if officials of trade unions continue to operate even after dismissal or dissolution. They are liable to a fine not exceeding 5000 shillings or an imprisonment of not less than 5 months
Registration of branches of trade unions
- Application for registration of a branch of a trade union shall be made by the secretary of the trade union concerned within 28 days form the date of its formation and shall be signed by the secretary
- It shall be accompanied by the prescribed fee (if any) and shall contain the following particulars:
- The name of the union concerned, the name of the branch, the postal address of the branch office or of the place of meeting for carrying out the business of the branch
- The titles, names, ages, addresses and occupations of all the officers of the branch
- Whenever any branch of a trade union is dissolved, notice of dissolution shall be given by the secretary of the union concerned to the registrar who shall subject to subsection (3) and subsection (4) there upon cancel the registration of that branch
- Before registering a branch of a trade union or canceling the registration of a branch of a trade union, the registrar may require the production of a such evidence relating to the formation or dissolution of the branch as the deems necessary
- If after such inquiry as he deems necessary, the registrar is not satisfied as to the validity or propriety of the purported formation or dissolution of a branch of a trade union, he may refer the matter to a Trade Union Tribunal composed of one or more independent persons appointed by the minister and that Tribunal shall inquire into the matter and make it’s recommendation thereon to the Registrar who shall thereupon register or refuse to register the branch or cancel the registration of the branch as the case may be in accordance with such recommendations
- In case of an appeal the branches should do so within one month of the date of refusal or cancellation
Rights and liabilities
Once a trade union has been registered, it enjoys certain rights, immunities and privileges
- i) Right to inspect the books of Trade Union.
- According to Sect 48 Cap 233 it provides that the accounts books and list of members of registered trade union shall be opened for inspection by an officer or members of the trade union
- ii) Immunity from civil suit in certain cases (Section 23 Cap 233): No suit or legal proceedings is maintainable in any civil court against any registered trade union in respect of any act done in contemplation or in furtherance of trade dispute to which a member of the trade union is a party on the ground only that the act induces some other persons to break a contract of business or the act interferes with the rights of some persons or other persons to dispose of its capital or labour as he will.
- Liability in tort A suit against a registered trade union or against any member or officer thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any court
- Liability in contract Every trade union shall be liable on any contract entered into by it or by an agent acting on its behalf. The Act provides that no office bearer or members of a registered trade union will be liable if the following conditions are fulfilled
- Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such union shall or shall not sell their goods, transact business, employ or be employed
- Any agreement for the payment by any person of any subscription or penalty to a trade union
- Any agreement for the application of the funds of a trade union
- To provide benefits to members
- To furnish contributions to any employer or employee not a member of such trade union, in consideration of such employer or employee acting in conformity with the rules or resolution of such trade union
- Any agreement made between one trade union and another
- Any bond to secure the performance of any of the agreements referred to in paragraphs (a) to (d)
- Objects in restraint of trade not unlawful. The objects of a registered trade union shall not by reason only that they are in restraint of trade
- Be deemed to be unlawful so as to render any member of the trade union liable to criminal prosecution for conspiracy
- Be unlawful so as to render void or voidable any agreement or trust
- Trust to amalgamate
- Right to own property
- Rights of minors to be member
- Immunity from trade union conspiracy
HEALTH AND SAFETY
Health and safety programmes
- This is concerned with programmes for protecting employees and other people by what the company procedures does against hazards arising to of their employment
Types of programmes
- Occupational Health Programme these relate more to working environment than the system of work
- Safety programmes are concerned with prevention of employees against accidents and minimizes the resulting loss and damage to persons and property
Elements of a health and safety programme
- Analysis of health and safety performance
- Health and safety policy
- Health and safety organization
- Health and safety arrangements
- Evaluating safety performance
- i) Health and safety performance
- Health and safety performance programmes must be based on an analysis of the facts about the organization of health and safety as it exists and concerning the procedures and results obtained
- The facts should be analyzed under the following headings:
- Systems and procedures
- ii) Occupational Health and Safety Policies
- Written H and S polices are required to demonstrate that top management is concerned about the protection of the organization employees form hazards at work and to indicate how the protection will be provided
- The policy statement should consist of three parts.
- General policy statement (GPS)
– The GPS should be a declaration of the intention of the employer to safe guard the Health safety of employees
- ii) Description of the organization of Health and Safety
iii) Details of arrangements of implementing policy
Role of management
- To develop Health and Safety procedure / policy with the help of medical and safety advisors
- To advise on policies and see that they are carried out. In large organization there should be a specialized Health and Safety advisor. Smaller companies should allocate responsibility to a suitable line manager who should be given special training in his duties
- Top management must make department mangers accountable for H and S matters in their areas.
Role of team leaders (Supervisors and Line managers)
- Team leaders are n immediate control and therefore should keep a watch on unsafe practices and conditions
- They must also emphasize the accountability for H and S and must take priority over output and cost considerations.
Role of medical advisors
- Medical advisors have two functions:
- The preventive function is concerned with occupational health matters
- The clinical function deals with industrial injuries and diseases and advice on the necessary steps to recover for injury or disease arising from works
Role of the safety committee
- Are concerned with the renewing of safe practices and conditions and making suggestions on improving health and safety performance.
Role of safety advisors (managers)
- To advice on H and S policy and procedures
- Advice on aspects of design and operation
- Advice on the use of safety equipment and protective clothing
- Conduct H and S investigations into causes of accidents
- Maintain H and S records or statistics
Role of employees
- House keeping
- Reporting of accidents
- Getting engaged in better working practice
Health and safety hazards
- A hazard is a risk that is likely to cause danger
- Occupational Health hazards will include risks affecting employees and others who are affected by what the company does (e.g. neighbors, costumers)
- Safety hazards will include risks as a result of work practice in the organization
Identify Health and Safety Hazards
- Fire explosions
Health and Safety Arrangements
- Can be divided into two:
- Occupational Heath Programmes
- Accidents prevention programme
- i) Occupational Health Programmes
- The effective management of health people at work provides a major contribution to improving performance and gaining competition advantage
- The control of occupational health and hygiene problems can be achieved by:
- Eliminating the hazard at source by means of design and process engineering
- Isolate hazardous processes and substances so that others cannot come into contact with them
- Changing the process or substance used to promote better protection
- By training workers to avoid risks
- ii) Accident prevention programmes
- Accidents are mishaps that are unexpected and do happen in the course of our working life.
Types of accidents
- Minor accidents not serious and requires 1-3 days of duty
- Loss time accidents more than 3 days off and requires compensation
- Fatal accidents one becomes incapable of going back to work. It could lead to death or permanent injuries
Underlying causes of accidents
- The immediate cause may be carelessness, fatigue, inexperience, inadequate training or poor supervision. All the above however are caused by system of work factors
- System of work factors are as follows
- Unsafely designed machinery, plant or process
- Congested layouts
- Poor housekeeping
- Overloading of machines
- From the above classes of factors, immediate factors are people created whereas system of work factors are not.
Accident prevention programmes
The prevention of accidents is achieved by:
- Identifying the cause of accidents and conditions under which they are most likely to occur
- Carrying out regular audits, inspections and checks and taking action to eliminate risks
Accident reporting and investigation
- A standard system for reporting accidents should be used which clarifies all accidents under appropriate headings, indicate the likely causes of that accident and suggest any remedial action which should be taken.
- The form is taken H and S Advisors/manager allocated for safety responsibilities for record keeping and analysis
- The form is completed by the immediate supervisor and then it is forwarded to H and S advisors or manager allocated to H and S responsibility
Building safety into the system
- A safety inspection is a systematic approach to identifying and locating safety hazards. Safety inspections are normally carried out by the immediate supervisors/managers or team leaders.
Aims of Safety Inspections
- To help to identify and locate health and safety hazards.
- To provide a basis fro developing accident prevention measures or strategies.
The Systematic Approach to carrying out safety inspection:
- Safety Inspections need to be carried out in a systematic manner for them to be effective. The systematic approach to safety inspection follows the following steps:
- Prepare checklists for safety points to be covered by the safety inspection.
- Divide the safety areas to be covered by the inspection
- Develop a safety inspection form including all areas identified in the checklist above.
Areas to be covered by a safety check
- Check supervisory levels
- Check job descriptions to identify dangerous jobs
- Check health and safety requirements
- Check the accident register
- The factories and other places of Work Act Cap 514 requires, employees to provide adequate safety equipment to employees who work in hazards work environments.
- Some examples of safety equipment that may be required in a manufacturing environment may include the following:
- Firefighting equipment
- First Aid boxes
- Protective clothing
- Safety belts
Fire and Explosions:
Causes of fires:
- Faulty cables
- Poor maintenance of equipments, plants and machinery
- Equipment outlines its life
- Ga leaks/explosions
- Fire drills
- Fire emergency evacuation procedures
- Regular maintenance of equipment, plant & machinery
- Carrying out regular safety/audit and checks inspections
- Creating awareness among employees
- Provision of fire fighting equipments
V Measuring Safety Performance
Types of measuring safety performance
- Incidence rate which is the numbers of reportable injuries per 1000 employees
- Severity rate which is the days lost through accidents per/million hours worked
- Total loss control approach which covers the cost of accidents to the company under such headings as pay to the people, damage cost to plant or equipment and loss of production.
Health and Safety Training
- Health and safety training needs should be identified by an analysis of hazards generally present at work and any particular hazard associated with organizations and individual jobs.
- Managers, team leaders, health and safety representatives should be trainee in the techniques of identifying potential hazards, conducting inspections and investigations, analysis of health and safety performance data.
- Employees should be provided with:
- Induction training should be given to new employees a general understanding of what they should do to avoid risks. The induction training should cover:
- Health and safety policies
- Duties of employees work safety
- Main hazards they may face and what to do with them
- Methods of working to minimize health and safety issues
- The unsafe practices to avoid.
- Induction training should be given to new employees a general understanding of what they should do to avoid risks. The induction training should cover:
- Job Safety Training should be based on analysis of the special hazards presented by the job.
- Health and Safety Training Programme
Objectives of H & S Training Programmes
- To enhance ability of employee to recognize and analyse and safety hazards.
- To induce awareness and improve ability to implement legal recommendations in respect of factory inspection.
- The context of Health and Safety Training Programmes will vary depending on the type of programme, employees to be covered & nature of the operations.
However they will generally cover the following areas:
- Role of supervisor and employees in the promotion of Health and Safety
- Safety and Health legislation
- Health and Safety policies
- Health and safety hazards for example machinery, electrical
- Fire prevention and control
Types of Health and Safety Training Programme
- Fire drills and fire fighting
- First Aid training
- Safety induction training
- Health and safety seminars and workshops
- Identify and analyse Health and safety hazards and problems in a manufacturing environment
- Highlight the roles of various parties in a Health and Safety organizations?
- What is the need for investing in adequate occupational Health and Safety programmes?
- Health and Safety in sometimes regarded as a luxury by senior management (a) what action should be taken on the initiative of the HR department to change these view?
- This Trade Disputes Act may be divided into eight parts:
- Part I Preliminary
- Part II Reporting, conciliation and investigation of Disputes
- Part III Registration of collection agreements
- Part IV Reference of Disputes for settlement or inquiry
- Part V Adherence to agreement and awards
- Part VI Protection of Essentials services, life and Property
- Part VII Collection of Trade Union Dues
- Part VIII Miscellaneous Provisions
Part I – PRELIMINARY
- Board of inquiry means a Board of inquiry appointed by the Minister under section 19.
- Collective agreement means an agreement made between a trade union and an employer or organization of employers which relates to terms and conditions of employment, whether or not enforceable in law and whether or not concluded under machinery for negotiation.
- Recognition agreement means an agreement in writing made between a trade union and an employer or organization of employers which provides for the recognition of the trade union as the body entitled to represent the interests of those of its members who are specified in the agreement and who are or have been employed by the employer or any of the employers compromising that organization.
Persons to whom Act does not apply:
- the armed forces or any reserve force
- police force, administrative police force to prison service or in the National Youth Service.
PART II REPORTING, CONCILIATION AND INVESTIGATION OF DISPUTES
Subject to subsection any trade dispute, whether existing or apprehended, may be reported to the Minister by or on behalf of any party to the dispute.
Every report of a trade dispute shall be made in writing and shall sufficiently specify:
- the employers and employees or the classes and categories of the parties to the dispute.
- The party or parties by whom or on whose behalf the report is made.
- The nature of the authorization given by the party or parties desiring the dispute to be reported on their behalf
- Each and every matter over which the dispute has arisen or is apprehended (arrested)
- Every person reporting a trade dispute shall, without delay, furnish by hand or by registered post a copy of the report thereof to each part to the dispute.
- However, in situations where parties to the dispute belong to he same organization of employers or organization of employee the furnishing of a copy of the report to such organization shall be a sufficient compliance to subsection 4.
Consideration and action by the Minister:
- Inform the parties that any of the matters over which the trade dispute has arisen or is apprehended is not suitable to be dealt with under this section.
- Refuse to accept the report of the trade dispute where the Minister is of the opinion that any matter in dispute is barred from negotiation under the terms of a recognition or collective agreement in force between any of the parties to the dispute.
- Inform the parties that he accepts or rejects the report of the trade dispute
- Refer the matter back to the parties and if he thinks fit, make proposals to the parties or any of them upon which a settlement of the trade dispute may be negotiated.
- Recommend to the parties that the trade dispute be referred to the industrial court.
Methods of Conciliation
The Minister may, in relation to a trade dispute so reported take any one of the following steps:
- Appoint any person (who may be a public officer or any other person considered by the Minister to suitable) to act as a conciliator.
- Appoint a conciliation panel consisting of an independent chairman and of one or more persons selected by the Minister as being representatives of employers and an equal number of persons selected by him as being representative of employees.
- Refer any matter, with the consent of the parties, to a conciliation of panel composed in accordance with the wishes of the parties.
- Withdraw or temporarily suspend the operation of any of the already said conciliation measures.
Investigation of matters related to trade disputes:
- Where the Minister is satisfied that any trade dispute exists, whether or not the dispute has been reported to him, he may appoint an investigator or a committee of investigation.
- The investigation shall be a person who appears to be an independent and qualified person.
PART III REGISTRATION OF COLLECTIVE AGREEMENTS
- The industrial court shall maintain a register of collective agreements that have been accepted by the court for registration.
- A collective agreement shall not take effect until it has been accepted for registration by the industrial court.
Powers of Industrial Court:
- The Industrial court shall not accept a collective agreement fro registration unless the court is satisfied that the agreement compiles with all relevant directives and guidelines issued pursuant to section 14 (10).
PART IV REFERENCE OF DISPUTE FOR SETTLEMENT
- For the purpose of the settlement of trade disputes and of matters relating thereto the president may by order establish an Industrial court consisting of:
- 2 Judges as may be determined by the President
- 8 other members, who shall be appointed for terms not less than 3 yeas by the Minister after consultation with the Central Organization Trade Unions and the Federation of Kenya Employers.
Qualifications of the Judge:
- Should be an advocate of the High Court of Kenya.
- Not less than seven years standing every appointment made under the section shall be notified in the Gazettee and the notice thereof shall state the term for which shall such appointment is made.
PART V ADHERENCE TO AGREEMENTS AND AWARDS
- This part deals with the following:
- Unlawful strikes and lock-outs
- The public sector
- Adherence to agreed procedures
- Prohibition of sympathetic strikes and lock-outs
PART VI PROTECTION OF ESSENTIAL SERVICES LIFE AND PROPERTY
It deals with:
- Breach and procurement of breach of contract by employee an offence.
- Breach of employer’s contract not unlawful in certain circumstances.
- Reference of disputes to industrial court
- Minister may declare subsequent notice void.
PART VII COLLECTION OF TRADE UNION DUES
- Application of check-off system
- Union to serve notice on employer
- Employers to comply with order
- Unions and Federations to acknowledge payments
PART VIII MISCELLANEOUS PROVISION
- Prevention of intimidation
- Certain offences to be cognizable
- Consent of Attorney General
- Rules of Industrial court.
PARTICIPATION AND JOINT CONSULTATION
- Define the term joint consultation.
- Explain the need for joint consultation.
- Explain the principles of joint consultation.
- Explain the steps necessary for successful joint consultation.
The terms involvement and participation are sometimes used synonymously to cover all forms of individual and representative information, consultation and participation. Collective bargaining does not form part of participation or involvement. The terms refer to any processes in organizations, which are introduced by management to convey information to employees on business initiatives, decisions and results.
Employee involvement consists of those practices, which are initiated by management and are designed to increase employee information about and commitment to the organization.
Participation is any process through which a person or group of persons determines what other person or group of persons will do. Participation is about employees playing a greater part in the decision making process.
Consultation is the most familiar method of participation. It is a means for management and employees to get together in consultative committees to discuss and determine matters affecting their joint or respective interests. Participation of non-managerial employees in the decision-making processes of an organization is what constitutes employee participation. The current options for employee participation in organizations may include among others share ownership and job enrichment.
Involvement and participation differ in the sense that involvement seeks to increase information given to employees and thus enhance their commitments. It treats employees as individuals, addressing them directly rather than through their representatives.
Participation on the other hand refers to collective rather than individual processes that enable employees through their representatives to influence decision-making.
- Generate commitment of all employees to the success of the organization.
- Enable the organization to meet the needs of its customers.
- Help the organization to improve performance and productivity and adopt new methods of working drawing on the resources of knowledge and practical skills of all workers.
- Improve the satisfaction of employees get from their work.
- Provide all employees with the opportunity to influence and be involved in decisions that are likely to affect their interests.
Joint consultation seeks to provide a means of jointly examining and discussing problems, which concern both management and employees. This seeks to generate acceptable solutions via the exchange of views and information. Joint consultation allows management to inform workers of proposals, which affect them, and lets the workers express their views about the changes. It allows the workers to contribute their own views on such matters as: –
- How work is organized
- Working conditions
- Operation of personnel policies and procedures
- Health and safety
Joint consultation acts as a safety valve, relieving the pressure from grievances, which, if not settled by some process of discussion, may escalate to a dispute.
- Mode of Representation deciding the means by which worker representatives should be nominated to the forums. This is contentious when union strength is considered.
- Scope of Forums what issues should be covered via joint consultations. Most forums exclude interest related issues but cover most work related issues.
- Level of Participation board-level participation is supported by few companies. Most companies advocate shop floor participation.
- Voluntarism since the issues of joint consultation are not part of employment legislation, most of them are founded on the spirit of voluntarism.
The success of employee management joint consultation depends on: –
- Building trust.
- Eliminating status differentials.
- Committing the organization to vigorous training and development.
- Breaking down barriers to change the organizations culture.
The Most Basic Requirements For Success Are: –
- Having well defined objectives in participation that have been discussed and agreed by all concerned.
- The objectives must relate to aspects of the job, management or policies that affect the interests of the employees.
- The need to begin with areas where it is relatively easier to have successful experience.
- Management must believe in and must be seen to believe in involving employees.
- Unions must believe in participation as a means of advancing their interests of their members and not simply as a way of getting more power.
- Joint consultation should be in line with existing systems of negotiation and representation. It should be seen as a form of integrative bargaining.
- Consultative committees should always relate to a defined working unit.
- Employee and management representatives should be properly briefed and trained and have all the information they need.
- Consultation should take place before decisions are made. Communicate after this.
- Since participation takes place through councils, develop guidelines for decision-making by the councils and fix responsibility and time frame for implementation of the decisions.
- Need to identify the centre of responsibility for decision implementation in the existing organizational structure so as to avoid situations where management may give priority to their own tasks over the councils decisions.
- Define roles, status, authority and facilities for members and office bearers of the council in relation to the trade unions.
- The need to keep employees informed of the decisions arrived at, their implementation and the outcome so that the workers are able to develop confidence and faith in the forums.
- Continuous evaluation of the functioning of these councils through employee opinion polls, meetings, suggestion boxes, etc.
- Managers and team leaders should be kept in the picture, and as appropriate, involved in the consultation process.
Employee participation can be ensured through representative system or through direct participation and involvement of all employees. A representative system, usually the elected or nominated representatives of one or more employee groups sit on committees that discuss work related issues.
To date, no legislation on employee participation has been put forward in Kenya.
There are several employee participation options for companies.
- Downward Communications takes place from managers to employees in order to inform and educate staff so that they accept management plans.
- Upward Problem Solving designed to tap into employee knowledge and opinion, either at an individual level or in small groups. It seeks to increase the stock of ideas in an organization, to encourage co-operative relationships at work, to legitimate change.
- Task Participation and job redesign processes engage employees in extending the range and type of tasks they undertake.
- Consultation and Representation Participation enables employees to take part through their representatives in management decision-making. Joint consultation has been introduced by management in some businesses to hinder trade union recognition, or even to undermine their activities. Employee consultation may take several forms:
- Consulted before a decision is made, but management is not bound by their views, though it usually tries to take them into account.
- Employees are informed of decisions and are consulted about their effects. The decisions may be modified in detail.
- Employees are informed of decisions and negotiations take place between them and the management about implementation.
- Financial Involvement/Participation takes the form of such schemes as profit sharing and employee share ownership. The employees thus become part owners of the company and receive all information normally made available to shareholders.
- Job Enrichment employees are given greater discretion over immediate work decisions. It increases their responsibility for their work outputs and increasing job interest.
- Empowerment through Delegation all employees are encouraged to play a part in the decisions affecting their work.
- Works Councils these are joint bodies of managers and employees established to consider and agree on key matters effecting employment within the organization. They are not for union-only employees as would be the case in collective bargaining.
- Work councils are bodies comprising representatives of management and employees who meet regularly to discuss matters of mutual interest. Work councils have the authority to take decisions on particular topics effectively giving employee representatives the right to veto on managements proposals in specific fields. Decision-making powers vary from internal works rules operation of grievance procedures to recruitment methods.
- Works councils have a statutory right to receive and discuss large amounts of important management information regarding the work of the firm; including financial structures and plans, new investment, acquisitions, mergers and divestments, working practices, introduction of new technology etc.
Advantages and drawbacks of works councils.
- Management is compelled to seek a consensus with unions on fundamental issues, hence avoiding many sources of conflict.
- Works councils come to execute certain management functions (allocation of overtime, decisions on working methods, determination of promotion criteria etc) that otherwise would have to be undertaken by alternative (or even costly) management committees.
- Discussion between management and labour encourage the employees to propose new ideas, offer alternative solutions to problems and generally adopt constructive and useful perspectives.
- Change can be introduced more easily.
- Management benefits as it is quickly made aware of any problems related to intended developments that are likely to provoke hostile opposition from the workforce and hence alter its plans in order to remove/minimize employee resistance.
- Improves management labour relations: fewer costly stoppages and delivery dates are met.
- Contributes to a countrys competitive advantage.
- It makes use of the knowledge and experience of employees
- Employees are motivated in their work if they can take part in decisions affecting their work. If they think that decisions are unfair to them, they will be less motivated.
- The greater the number of people involved in a decision the less the possibility of important factors being overlooked.
- Unworkable impractical decisions are avoided.
- Many decisions impinge directly on employees lives; it is only right they should help to make them.
- Modern educational methods and policies encourage independent informed thinking. Employees should be encouraged to apply this to their work.
- Takes time, adding working days to the time taken to communicate and makes management more demanding than usual.
- Efficiency improvements that involve shedding labour might be resisted by the committees composed of workers.
- They are financially expensive to operate (time, costs, rooms, secretarial support etc)
- Decision taking can be slow and many employee representatives may not have the technical knowledge upon which they can base decisions.
- Employees may adopt short-term perspectives and might oppose decisions that would benefit the company in the long term, but do not offer many rewards to employees in the immediate future. Innovation and enterprise may be discouraged.
- Councils can easily degenerate into vehicles for plant level collective bargaining, undermining normal management union negotiation machinery.
- Some employees argue that it is the responsibility of the management to make decisions, not the workers.
- Participation at policy level may be cumbersome and only possible in small companies.
- There is a fundamental conflict of interest between employers and employees; negotiation is more realistic than participation.
- Board Representation the appointment of rank-and-file employees to non-executive directorships on the companys board. Where there is s two-tier board system, the employee-directors sit on the supervisory Board, but not on the smaller Executive Board.
Involvement and participation takes various forms at different levels in an organization.
- The Job Level Involves team leaders and their teams, and the processes include the communication of information about work and interchange of ideas about how work should be done. These processes are essentially informal.
- The Management Level Involves sharing information and decision making about issues, which affect the way in which work is planned and carried out, and working arrangements and conditions.
- Policy Making Level Where the direction in which the business is going is determined. This is limited to communication of information about proposed plans, and discussing the implications of the plans.
- Ownership Level A share in the equity of the company y enabling workers to have ability to control the organization through voting rights to determine for example, the composition of the Board.
- Scanlon Plan a group-incentive plan rewarding all employees with bonuses derived from their cost-saving suggestions. Such are derived from production committees at departmental level. Suggestions accepted and under the control of the department are immediately implemented.
- Quality Circles A small group of workers constitute a quality circle on voluntary basis. The circle groups can meet both during and after the working hours and discuss issues & problems relating to their work unit and their own jobs. Quality circles are also known as improvement groups and are associated with a total quality /continuous improvement programme. They aim to improve productivity and quality, improve employee relations and win commitment to the organization.
- Suggestion Schemes they enable employees to channel their ideas to management. They succeed where there is an established procedure for submitting and evaluating ideas, with recognition for those, which have merit and an effective system of explaining to the employee without discouraging them that their ideas cannot be accepted. Most common arrangement is the Suggestion Box
Membership of Joint Consultative Committees.
- May include union officials where the organization is unionized.
- They often exclude managers and team leaders.
- Small companies have one large committee or work council governing the whole organization but larger companies often separate committees for each major division or unit.
PARTICIPATION & JOINT CONSULTATION
Aims of participation in decision-making at work place:
- Workers and working community should have a greater scope for creativity and initiative.
- It gives independence in carrying out duties
Types of workers participation
There are many types of participation depending on the political, social, economic contexts and variation based on:
- Moral, ethical, ideological considerations.
- Social, political objectives.
General Economic Objectives
- This is based on the assumption that whenever people are allowed to participate in the preparation of measures and policies which they are called upon to implement, such participation may prove suitable especially when linked with economic advantage.
- In some cases, this reduces conflict and enhances the cooperation spirit of all concerned. And in some cases, ease in introduction of technological changes.
- Movement in favour of workers participation in decision-making undertaking faces numerous opposition.
- It faces many practical problems and these are encountered at both the principle and practical implementation level.
- if workers accepted involvement with the management Trade Unions are worried about possible weakening of workers organization or solidarity
- workers do not have the aptitude to competently dodge and perceive issues involved in participation
- workers representative at times are just merely militant and oppositionist not adequately competent
How prepared are workers and their representative to effectively participate in decision making?
- For workers participation in decision making to occur there must be a variety of means and those include:
- Constitutional means
- Legislature provisions
- National and industry wide collective
- This would require:
- The objective: – these must be shared between management and worker. The objective must be known
- Institutional framework must be in place for example constitution, labour laws, industrial court
- People must be able to understand the subject matter. It must be clear to the participants. This must be defined clearly by statutory or other instruments.
- The types of machinery for participation vary according to:
- Their particular objectives
- The opposition encountered
- Political systems
- Industrial relations machinery
Workers participate in decision making:
This varies from one palace to another. They therefore include:
- workers management.
- participation through membership of management.
- participation through statutory boards.
- voluntary consultation.
- participation through Trade Unions Activities.
Critics of participation
- There’s a break on efficiency.
- Leads to other costs of redesigning jobs, retaining the supervisors.
- Workers capacity to contribute usefully to managerial decisions maybe questioned particularly on technical and financial matters.
- There are doubts as to workers interest in such matters.
- Others see a desire to participate but fear that its aims or objective is solely to advance the interests of the management.
Factors determining participation potential
The principal ones are: –
- the autonomy of the enterprise.
- the technical factors.
- the size of the enterprise.
- the structure of the enterprise.
Benefits of participation
- Co-operation and reduction of conflict. The expectation being that therere are going to be fewer strikes in the organization.
- If workers are involved, then you reduce alienation in the sense that theres greater worker participation.
- Participation of workers will lead to industrial democracy.
- Theres utilization of human resources which increases efficiency and development of this talent and initiative.
- Counseling is a process that involves listening to people talk about their problems and helping them to work out what to do about the problems.
- In the process, the counselor guides the counselor in making alternative choices to either cope or overcome the problem.
- It refers to not only what’s going wrong but also what’s going better.
Why counseling at work?
- In developed countries counseling is given high premium. Its recognized that there’s need for organization to take an integral approach to the employees well being and to develop an integrated well-ness policies and procedures
Advantages of counseling
These can be measured financially or in tangible ways: –
- Reduction of absenteeism.
- Making a positive in road to working days lost every year due to stress and mental illness.
- Creating new working relationships based on counseling skills and approaches based on trust, respect and mutual understanding.
What will organizations gain from counseling?
- It improves communication between individual and the management.
- It creates feed back loops back up into higher management levels so that management can benefit form the sights gained.
- Leads to realizing knowledge and increase business success.
- It provides a feedback or sensitive issues on individual basis.
- Counseling breaks barriers between managers and employees and creates mutual trust and respect
What draws an organization towards counseling?
- Uncertainty about litigations, industrial tribunals, industrial disputes and stress claims at work.
- Poor performance counseling systems can lead an organization towards counseling
- Individual and group performance
- With counseling you avoid litigation and disputes
Problems in counseling are concerned with the following issues
- Counseling is about creating better interpretation relationships
- Counseling is about other types of advice i.e. legal, financial, medical problems. For this to succeed effective communication skills are called for
When life interferes with work/home?
Organization consist of people and there times when sad or disturbing life events cannot be left at home.
It can take extreme forms as assault to it may be illustrated in the following ways: –
- Lack of concentration
How to uncover the problems
1) Human problems
Some times an HRM practitioner can do the work (in house) or an external expert might unearth these problems. Counseling is important because many people dont expose their problems but may release tension to trusted and specialized experts
2) Signs of problems in the work place
– Eating disorders
– Drug abuses
– Marital relationship problems.
With bereavement or loss the most useful realization with this is that the employee should note its a process and not a state. Counselors dealing with bereaved people should make people
- Accept the reality of the loss
- Experience the pain of grief
- To adjust to the new situation
Many people experience a period of fantasy e.g. redundancy leads to unimaginable scenario to many workers
Hows this likely to manifest itself in work place
Losses could be as diverse as having your house burnt or losing a precious object or breaking a relationship/loss of job/ change of career. All these can affect work.
Signs of such people:
Workers who are affected can be identified through:
- Lack of concentration
- Increase in errors
- Physical symptoms
- Over reaction
Experts think that what a worker thinks is to retaliate (talk to others) and let out feelings. This can only be offered through counseling services.
Illness and eating disorders
The out wide sign of illness can mean that someone needs medical attention. The physical appearance may show sudden weight loss or gaining of the same.
Such workers must obtain medical attention at the earliest. In case of terminal illness like cancer and
AIDS specialist agencies providing such services must be approached because you might not understand reasons underlying the behaviour.
Further more people with such problems are reluctant to seek medical attention.
Signs of sickness and eating disorders
- weight loss/gain
- forced vomiting
- muscle weaknesses
- persistent stomach pains
Alcohol and drug abuse
- These affect productivity of workers. Research has shown that alcohol and drug abuse can lead to absenteeism and presenteeism which can affect productivity
- Drug abuse and alcohol can be very costly to companies. To combat the above two it is very difficult
- Alcoholism when it gets into the brain system it affect
- Skills e.g. driving, operating machines
- Self control
Questions for review:
- What are the benefits of participation in an organization?
- Outline the different ways workers participate.
- What will organizations gain from counseling?
- Its derived from the Latin word `communis which means common. Therefore communication is the transmission of a message from a source through a channel to a receiver.
- Communication is effective if the receiver is able to interpret the symbols in which the message has been coded.
- The purpose of communication:
- To motivate people to act
- To change and achieve desired results
- In communication, the intention of the sender must be understood otherwise there would be leakage in communication systems. Leakage occurs when information reaches unintentioned destination.
Communication Process (variables)
- Source There must be at least two actors:
- Message sender (communicator)
- Message receiver
The message initially exists in the mind of the sender in form of idea. For the message to be perceived by others, its given physical representation in forms of:- verbal speech, written/graphic signs, manual gestures.
- Selection of channel to use The medium or channel must be effectively chosen. The means of using the mental idea into the symbol as to form a message is called a medium.
What is transmit/carries the message from source to the receiver is called a channel/transmitter i.e. means by which the information moves from one end to the other.
- Communication cannot take place unless there’s feedback. No communication takes place unless a message is sent to received thus need for feedback.
- When the information is sent to the receiver then communication is said to be complete.
- Feedback assessment is important for the source because it is the only way by which the source can judge the effectiveness of communication.
- This involves passing of messages by use of spoken words/speech apparatus.
- Its the most effective channel if exploited to the maximum. To be effective it requires ability to develop a pleasant voice with a flexible range possible qualities.
- The voice should be varied to avoid monotony and sustain interest e voice modulation. In addition there should be ability to choose appropriate linguistic expressions (depending on the audience)
- Verbal channel is usually the most persuasive as you’re seeing the receiver and feedback is immediate.
- Messages expressed through verbal channels are prone to distortion.
- Its persuasive
- Lack of permanence
- There is need to use of other channels to reinforce this channel
It includes anything that does not undue the spoken word. It includes:
- Body language
- Behaviour expression
- Behaviour of eyes
- Posture and body movement
- Personal appearance
- Listeners trust body language as a way of repeating information communicated verbally.
- The print and mechanized channel
- They convey their messages in graphic symbols (alphabet, hieroglyphics)
- Its valued for its relative performance as opposed to verbal channels
- It leaves evidence of communication having taken place
- It includes radio, video tape, television telephone. Other types of communication channels include; in organization structures
- They are social, plan level communication
- People who are on the same level communicate horizontally. Those on different (above or below) communicate vertically. Language used vertically is different from that used horizontally.
- For horizontal communication there must be good understanding and psychological factors.
- Social channels find their places in organization depending on psychological and other factors operating in a group.
This refers to any factor that prevents passage of a message or anything that distorts a message. A barrier may come between the source and the receiver and therefore affecting the transmission of the message.
- Internal noise those barriers within the source on within the receiver are called internal noise. Its also called a personal barrier.
Personal barriers are within the source or the receiver. They may be as follows:
- Physical eg pronunciation
- Misunderstanding or understanding
- Inability to read and write
- Difference in perception
- Lack of interest
- Lack of fundamental knowledge on the part of the sender
- Difference of personality
- Poor listening
- Threat and fear
- Those are between the receiver and sender. They include;
- Bad telephone lines
- Loud noise near the communicator
- Lack of visibility where the Communicator requires sight.
Consequences of poor communication:
- Lead to poor employee relation
- Loss of life
- Los of a job
- Loss of a business deal
How do you overcome the above barriers? Communication is done through meetings, reports, written texts, telephones, memorandum, letter. Its important that we:
- Communicate carefully and honestly
- Be specific
- Clear and avoid ambiguity
DISCIPLINE AND DISCIPLINARY PROCEDURES
Discipline refers to a condition in the organization when employers conduct themselves in accordance with the organization’s rules and standards of acceptable behaviour. However, not all employees will accept the responsibility of self-discipline. Such employees therefore will require some degree of extrinsic disciplinary action.
- Attendance Absenteeism, tiredness, abuse of sick leave etc.
Why attendance such as serious problem?
- Many organizations have failed to align workers goals with those of the organization.
- A changing attitude towards employment. For many work isn’t their central life interest and hence the desire to conscientiously be in their jobs regularly is not of primary importance.
- Increased difficulty in firing an employee especially those union members protected by collective bargaining agreement.
- On the Job-Behaviours
For example insubordination, fighting, carelessness, abuse of alcohol and drugs etc. The above represent clear violations of an organization acceptable standards of behaviour. Thus corrective action should be taken immediately.
For example theft, falsified information (lies).
- These are activities that employees engage outside of their work but which either affect their on-the job performance. For example, unauthorized strike activity, having ones wages garnished, outside criminal activities.
Before disciplinary action: Put the problem in perspective:
The following nine contingency factors have been proposed to help analyse a disciplinary problem:
- Seriousness of the problem
- Duration of the problem
- Frequency and nature of problem
- Employees work history
- Extenuating factors
- Degree of socialisation
- History of the organizations discipline practices
- Implications for other employees.
- Management backing.
General guidelines in administering discipline:
- Make disciplinary action corrective than punitive.
- Make disciplinary action progressive
Disciplinary generally follows a typical sequence of four steps:
- Oral warning this is the mildest form of discipline. This reprimand is best achieved if completed in a private and informal environment. The manager should begin by clearly informing the employee of the rule that has been violated and the problem the infraction has caused.
- i) After the problem and the implications arising thereof have been made clear by the Manager, the employee should be given a change to respond giving emphasis to; is she aware of the problem? Are there extenuating circumstances that justify her behaviour? What does she plan to do to correct her behaviour?
- ii) The Manager must determine if the employee has proposed an adequate solution
to the problem.
iii) If this hasn’t been done, then the Manager will need to consider direct the discussion toward helping the subordinate figure out ways to prevent the trouble from recurring.
- iv) Once a solution has been agreed upon the Manager should ensure that the employee understands what if any follow-up action will be taken if the problem recurs.
- v) If the oral warning is effective, further official disciplinary action can be avoided.
- vi) If the employee fails to improve, the manager will need to consider more severe action. A final point on the oral warning: its good idea to make a temporary record of this reprimand and place it in the employee file.
vii) It should state the purpose, date and outcome of the interview with the employee. Once the employee has demonstrated that she has corrected the problem the record of the oral reprimand can be removed from the file.
- Written Warning
- The second step in progressive discipline.
- In effect, its first formal stage of discipline procedure since written warning becomes part of the employees official file. This is relieved by not only giving the warning to the employee, but sending a copy to the personnel department to be inserted in the employees permanent record.
- The employee is advised of the violation, its effect and potential consequences of future violations. The only difference with the oral warning procedure is that the discussion concludes with the employee being told that written warning will be issued.
- Then the manager writes up the warning stating the problem the rule that has been violated, any acknowledgement by employee to correct her behaviour and the consequence from a recurrence of the deviant behaviour.
- This is the next step taken only if the prior steps have been implemented without the desired outcome.
- Exceptions where suspension is given without any prior written warning. Occasionally occur if the problem is of a serious nature.
- A suspension may be for one day or several weeks. Disciplinary layoffs in excess of a month are rare.
- Some organizations skip this step completely because it can have negative consequences for both the company and employee.
- For example if a suitable replacement isn’t located, the organization performance is severely impacted.
- The suspended employee may return in a more unpleasant and negative frame of mind than layoff.
- However, a short lay off, without pay has the potential to be a rude awakening to problem employees.
- It may convince them that management is serious and shock them back to accepting responsibility for following the organization’s rules.
- If suspension hasn’t been effective and management wants to strongly avoid dismissing the problematic employees demotion may be an alternative demotion.
- Its not commonly used because it tends to demoralize the employee but her co-worker as well.
- If the demotion has a place as a disciplinary action, it probably is where:
- the employee clearly has the ability to perform her job
- management perceived itself legally or ethically constrained from firing the employee (for example one with 30 years of tenure in the organization)
- its believed that a blatant demotion will awaken the employee
- In such instances, emotion is a loud message that the employee will have to shape up radically if she wants her old job back and that management has no intention of letting her get away with chronic abuses of the organization’s rules.
- This approach usually has a demoralizing effect on the employee, but it has been suggested as a rational action by management if only other alternative is dismissed.
- From the management’s perspective dismissal means losing the individuals experience and background.
- A replacement will be hired in at a lower salary, but has to be trained to do the job.
- If the problem employee alters her behaviour, then pay cut can always be reinstated.
- Management’s ultimate disciplinary punishment is dismissing the problem employee.
- Dismissal should be used only for the most serious offences. Yet, it may be the only feasible alternative when an employees behaviour is so bad as to seriously interfere with a department or the organisation operation.
- A dismissal decision should be given long and hard consideration.
- Being fired from a job is an emotional trauma. Thus, the management should consider the possibility that a dismissed employee will take legal action to fight the decision.
- a) Unionised employees
- Where employee belong to a union, there will be a collective bargaining agreement. This agreement among other things, will outline rules governing the behaviour of union members.
- It also identify disciplinary procedures and clarify the steps members are to follow if they believe that they are receiving arbitrary or unfair treatment.
- Most collective bargaining agreements stipulate that employees can only be disciplined for `just cause and provide a grievance procedure and opportunities for third party arbitration if employees believe they’re wronged.
- Disciplining a unionized employee thus tends to be a more formal than the disciplinary of non-union employees.
- b) Professional Employees
- Engineers, computer specialists, accountant, medics also present unique disciplinary problem. Because they hold high skills and frequently possess important and valuable information about the organization.
- They are more difficult to replace if dismissed and can discredit the organization with competitors, suppliers, customers, government agencies or other constituencies.
- Thus, management must take greater care in disciplining professional employees than it might take with non-unionised operative employees.
- They may explain the replacement of traditional dismissal actions with the practice of declining and offering outplacement services.
- Declining seeks to get the employee to voluntarily quit. If the employee isn’t performing adequately and corrective, attempts have proved unsuccessful, management can begin sending out clues that the professional services are no longer needed.
- Excluding the employee from important meetings, by passing her on key memos and reassigning her to boring and unchallenging tasks are examples of actions that should convey the message.
- If they’re successful, the employee finds another job and gives her notice.
- This saves the employees and organization face.
- Outplacement counseling is usually provided to the professional by her employers for the purposes of assisting him in marketing his services (designing & updating one’s resume, making lists of contacts, coaching on how to go on interviews an advise on how to follow up on leads and how to evaluate any job offers that are received.
- In contract to declining outplacement requires management to become a partner in helping the professional find new employment. Its expensive for the organization but a definite step forward in humanistic treatment of employees.
TERMINATION OF EMPLOYMENT
- Contracts of employment like any other contract come to an end, how?
- Through resignation, retirement, dismissal (may miss benefits), redundancy, death, normal termination (get benefits) by notice ( one month salary or notice of one month)
Dismissal refers discharge or termination from employment at the initiative of the employee (due to gross misconduct)
Reasons to warrant dismissal
- There must be valid reasons
- There should be justifiable cause
Things to consider
- Capacity on qualification are these alternative penalties (demotions, transfers)
- Consider the conduct of worker
- Overall policy of the organization
- Operational requirements (Is it ore costly? Can you do without him?)
Summary dismissal only done:
- For wrongs (proven).
- Stealing company property.
- Gross misconduct.
- Concealing proper information about oneself.
Legal criteria employers should follow before termination:
- There must be reasonable grounds for the same.
- Reasonable notice or compensation in lieu.
- Specify the offence.
- Notify union or labour office.
- Pay legal entitlements i.e. leave days, certificate of service
Invalid termination of a contract:
- Union membership/ activities.
- Absence during maternity.
- Discrimination on grounds of race, colour, sex, marital status, family responsibility
- Illness or injury.
Entitlement of terminated worker:
- Right of defence.
- Right of appeal.
- Consider factors as CBA and the law.
Consequences of wrongful dismissal:
- Payment of accrued rights/benefits.
- Compensation (if dismissal unlawful i.e. 12 months salary compensation and special and general damages).
Categories not expected to enjoy terminal benefits:
- Workers under contract for specific periods or tasks.
- Those on probation or qualifying period.
- Small firms (family firms).
Termination on account of redundancy:
- Give reasonable grounds.
- Inform the ministry of labour and /or union
- Principle of last in first out
Questions for Review
- What are factors to consider before dismissed/
- What legal criteria employers should follow before termination?
- Which categories of workers are not
- expected to enjoy terminal benefits?