TOPIC 4 LAWS RELATING TO TRADE DISPUTES

TOPIC 4

LAWS RELATING TO TRADE DISPUTES

4.1 Trade disputes concept

An industrial dispute/trade 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.

4.2 Trade dispute Act

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: a) the armed forces or any reserve force b) police force, administrative police force to prison service or in the National Youth Service.

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 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 a copy of the report thereof to each party to the dispute.

Consideration and action by the Minister: 

  1. 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.
  2. 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.
  3. Inform the parties that he accepts or rejects the report of the trade dispute
  4. 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.
  5. 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:

  1. Appoint any person (who may be a public officer or any other person considered by the Minister to suitable) to act as a conciliator.
  2. 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.
  3. Refer any matter, with the consent of the parties, to a conciliation of panel composed in accordance with the wishes of the parties.
  4. 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.

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 for registration unless the court is satisfied that the agreement complies with all relevant guidelines.

 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: a) 2 Judges as may be determined by the President b) 8 other members, who shall be appointed for terms not less than 3 years by the Minister after consultation with the Central Organization Trade Unions and the Federation of Kenya Employers.

4.3 Legal provisions governing industrial Action

  1. A strike or lockout shall be unlawful:

Unless a report in writing of a trade dispute has been made on which the dispute and 21days have elapsed since the date on which the dispute was reported and the period of notice specified in any registered collective agreement relevant to that trade dispute.

If the minister has writhin the period of 21days refused to accept the report of the trade dispute because the minister is of the opinion that any matter in dispute is barred from negotiation under the terms of a recognition agreement or collective agreement in force between any of the parties to the dispute.

Offences connected with unlawful strikes and lockout.

  1. Any person who is connected with any strike or lock-out declared by this Act in any unlawful if he/she:
  2. Incites others to take part in any strike or lockout.
  3. Takes part in any such strike or lockout shall be guilty of an offence and in case of an offense under section(a) shall be liable to a fine not exceeding ksh 5000 or to imprisonment for a term not exceeding 12 months or both. In case of an offense under paragraph (b) shall be liable to a fine not exceeding ksh 5000 or to imprisonment for a term not exceeding 3 months or both.
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