4.1 Meaning of industrial court
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.
4.2 Composition of industrial court
– 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.
– 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.
4.3 Establishment of the Court
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.
4.4 Qualifications of appointment of judges of the Court
A person shall be qualified for appointment as a Judge of the Court if the person ;
(a) has at least ten years’ experience as a superior court judge or a professionally qualified magistrate; or
(b) has at least ten years, experience as a distinguished academic or legal practitioner with considerable knowledge and experience in the law and practice of employment and labour relations in Kenya; or
(c) holds the qualifications specified in paragraph (a) and (b) for a period amounting in the aggregate, to ten years.
4.5 Tenure of office of judges of the Court
(1) A Judge of the Court shall hold office until the Judge;
(a) retires from office in accordance with Article 167(1) of the Constitution;
(b) resigns from office in accordance with Article 167(5) of the Constitution; or
(c) is removed from office by a tribunal appointed by the President in accordance with Article 168(5) of the Constitution.
(2) Subject to provisions of the Constitution, the Principal Judge may elect either to retire from office or to continue serving as Judge of the Court upon expiry of the Principal Judge’s term.
4.6 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.
4.9 Powers of the Industrial Court
(1) The Court shall have exclusive original and jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
(a) disputes relating to or arising out of employment between an employer and an employee;
(b) disputes between an employer and a trade union;
(c) disputes between an employers’ organisation and a trade unions organisation;
(d) disputes between trade unions;
(e) disputes between employer organizations;
(f) disputes between an employers’ organisation and a trade union;
(g) disputes between a trade union and a member thereof;
(h) disputes concerning the registration and election of trade union officials; and
(j)disputes relating to the registration and enforcement of collective agreements.
(2) An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer’s organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.
(3) In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders:
(i) a prohibitory order
(ii) an order for specific performance
(iii) a declaratory order
(iv) an award of compensation in any circumstances contemplated under this Act or any written law
(v) an award of damages in any circumstances contemplated under this Act or any written law;
(vi) an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or
(vii) any other appropriate relief as the Court may deem fit to grant.
(4) In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.
(5) The court shall have power to summon witnesses, to administer oaths and affirmations and to require any person who appears to it to have special knowledge of any relevant matter.