The Kenyan Legal Regime relating to trade dispute resolution and agenda for reform

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The Kenyan Legal Regime relating to trade dispute resolution and agenda for reform.

A trade dispute is under section 2 of the Labour relations Act is defined as: a dispute or difference or an apprehended dispute or difference between employers and employees, between employers and trade unions or between an employer organization and employees or trade unions, concerning any employment matter and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work or the recognition of a trade union.1 The causes of industrial disputes can be broadly classified into two categories: economic and non-economic causes. The economic causes will include issues relating to compensation like wages, bonus, allowances, and conditions for work, working hours, leave and holidays without pay, unjust layoffs and retrenchments.

The non-economic factors will include victimization of workers, ill treatment by staff members, sympathetic strikes, political factors, indiscipline etc. Among the various methods of highlight trade disputes include engagement in strikes and lockouts and having meetings between employer and employee.

A strike is defined as the cessation of work by employees acting in combination, or a concerted refusal under a common understanding or employees to continue to work for the purpose of compelling their employer or an employer’s organization of which their employer is a member to accede to any demand in respect of a trade dispute.2 This definition throws light on a few aspects of a strike. Firstly, a strike is a referred to as stoppage of work by a group of workers employed in a particular industry. Secondly, it also includes the refusal of a number of employees to continue work under their employer. Strikes can be classified either as wild-cat strikes – these are strikes which are illegal. All the laid down procedures are ignored and the employees withdraw their labour or the Lawful strikes – these are strikes which follow the laid down procedure on how to carry and when to have a strike.

Article 41(2) d provides that that every worker has a right to go on strike.3 The Labour Relations Act, 2007 under Section 76 provides that a person may participate in a lawful strike or lockout if the trade dispute concerns terms and conditions of employment or the recognition of a trade union, the trade dispute has not been resolved after conciliation and seven (7) days’ notice of the strike or lockout has been given to the other parties and to the Minister by the authorized representative of the trade union and the employers’ organization.4

Under section 77 of the act (SUPRA) A party to a dispute that has received notice of the strike or lockout may apply to the Industrial Court under a certificate of urgency if the strike or lockout is prohibited under the Act or if the party that has issued the notice has failed to participate in conciliation in good faith in order to resolve the dispute. A lock out on the other hand is defined under section 2 of the Labour Relations Act as the closing of a place of employment, the suspension of work, or the refusal by an employer to continue to employ any number of employees for the purpose of compelling any employees of the employer to accept any demand in respect of a trade dispute but not for the purpose of finally terminating employment. 5

Prohibited strikes and lockouts are provided under section 78(1) The strikes and lockouts that are not allowed are where: any law, or court award, or collective agreement prohibits the strike or lockout in respect of the dispute at hand; the subject matter of the strike or lockout is regulated by a collective agreement; the parties have agreed to refer the trade dispute to the Industrial Court or to arbitration; if the matter concerns a dispute regarding the recognition of a trade union, the matter has been referred to the Industrial Court; The employer and employees are engaged in an essential service –...
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