(Mt) – BHR 3352 Labor Relations Questions

Tel Office: +254 (0)20 – 2020505/10 Mobile: +254 (0)728 – 669000 (0)736 – 424440 I VE R S I TY . S T UN P A U L ’ S Private Bag 00217 LIMURU, KENYA Email: dvcaa@spu.ac.ke Website: www.spu.ac.ke SE R TY VANT S OF GO D AND HUMANI [ANNE WARIBU] ST. PAUL’S UNIVERSITY SPU Distance Learning Course Handbook BMA 402: LABOUR RELATIONS [ERIC SIELE] © 2014 1 LECTURER: ERICK SIELE- 0722582224 BMA 402 LABOUR RELATIONS esiele@spu.ac.ke COURSE OBJECTIVE: This course is designed to make students understand and appreciate the role of labour relation in business organization. This is basically the various aspects of labour relations including methods of promoting good industrial relations for harmonious co-existing of all parties involve. LEARNING OUTCOMES:  At the end of this course , students should be able to:  Understand the meaning and need for good labour relations  Appreciate the importance of industrial relations Charter  Know how to apply various concepts of industrial relations  Appreciate the importance of good labour relations in an organization  Understand the procedures of resolving grievance and dispute settlement  Understand the nature of Trade unions and the role play industrial relations  Appreciate the usefulness of collective bargaining in promoting good labour relations COURSE CONTENT: WEEK 1 TOPIC Introduction to labour relations 2-3 Historical Background of industrial relations SUB TOPICS  Meaning of labour relation  Condition of good industrial relations  Parties to industrial and labour relations  Causes of poor industrial relations  Suggestions for improving industrial relations  Theories of industrial relations  Importance of industrial and labour relations    REMARKS Development of trade unionism in Kenya Trade union organization and structure Functions of trade unions 2   4 Grievance and dispute settlement      5 CAT1 6 Role of the employer in industrial and labour relations   Challenges face by trade union in Kenya Industrial Relations Charter Meaning of grievance and disputes Causes of grievance and disputes in an organization Grievance machinery Features of grievance procedure Dispute settlement machinery  Employer and its role Federation of Kenya employers Composition of the federation Function of the federation  7 Central organization of trade union    Affiliation of trade unions Function of COTU ILO and its role 8-9 Collective Bargaining   Definition and role Parties to collective bargaining Principles of collective bargaining Issues cover in collective bargaining Factors consider in collective bargaining    10 Joint consultations   Definition Need for joint consultation 3   Issues discuss in consultation Principles of joint consultation 11 CAT2 12 Other workers participation methods     Workers committee Quality circles Workers director Suggestion schemes etc. 13 Discipline and disciplinary procedure  Features of disciplinary procedures Disciplinary methods  Instructional materials: blackboard, handouts and whiteboard Assessment:     Assignments Two CATS Final examination Total 10% 20% 70% 100% 4 TOPIC 1: INTRODUCTION Every suggestion must have an objective either to produce goods or provide services. This could be for commercial purposes or charitable. In order to produce goods and services an organization must have the necessary factors of production. The most important factor of production is the human resource. This resource must be handled with a lot of care if the organizations to achieve its intended goals. Employee relations is a course unit which examines various aspects on how people at interrelate. Meaning of Employee Relations An employee is defined as a person engaged to perform an activity leading to production of goods or provision of service for payment. Relation on the other hand is the way in which one individual is connected to others. Employee relations therefore are the interaction between the employees themselves and also with their employer. Such interaction can either be formal or informal. It encompasses all areas of management that include:(i) (ii) (iii) (iv) Labour relations Employee involvement / participation Employee communication Industrial relations Labour Relations This refers to the direct relationship between employer and employees with involvement of trade unions and employers associations. Employee involvement/participation This means getting employees involved in the affairs of organization by participating in policy formulation be being given an opportunity to make suggestions. Employee Communication This is having a two way communication channel between management and employees. Industrial Relations This is interaction between employer associations and employee representatives. (Trade Union). In this relationship there is formal recognition. Industrial relation therefore involved fixation of term and condition of employment and issues arising from employment. Broadly the term industrial relation is used to denote the collective relationship between management and employee sin industrial organizations. individual relationship of workers with the management are thus excluded from the scope of industrial relations and form part of dispute between two parties or existence of understanding, corporation and partnership between them. 5 The significance/Importance of good industrial relations 1. Good industrial relations helps in the economic progress of the country. When there is good industrial relations (IR) there is smooth running of business and this result in increase in production. Therefore the overall economic progress can be realized only in there is a harmonious relationship between management and workers. 2. Good industrial relations help in establishing and maintaining of industrial democracy which is a prerequisite in establishing a social society. 3. Good industrial relations help management both in the formulation of informal labour relation policies and in their hands into action. 4. Good industrial relations encourage collective bargaining as a means of self regulation. They consider the negation process as education opportunity a chance for both to learn and teach. 5. Good industrial relations helps the government in making Laws to check unfair labour practices of union and employers. 6. Good industrial relations reflect itself in several ways for instance when there is good industrial relations there is no inter union rivalry e.g. KUPPET and KM. Employers give unions their right recognition and encourage them to participate in all decisions. And unions direct their activities from fighting to productive. 7. Good industrial relations boosts discipline, workers orderly, effective and morals of workers. Maintenance of discipline ensures orderliness, effectiveness and economic use of resources. On the other hand lack of discipline will waste, accidents and at times in subordination among the staff. Conditions for Good Industrial Relations 1. History of industrial relations in an organization (culture of the unions e.g. consultancy, bread and butter). 2. Economic satisfaction of workers (worker’s basic needs) conductive working environment). 3. Social and psychological satisfaction of workers (Consideration for workers when not at work). 4. Off-the job condition of worker (well informed negotiations) – educate members on responsibilities. 6 5. Enlightened and responsible labour union (be able to read the round-table mood) – be ready to justify arguments. 6. Negotiating skills of and attitude of management and workers. 7. Public policy and legislation (avenue for resolving conflicts). 8. Nature of industry and business cycle. FACTORS CAUSING POOR INDUSTRIAL RELATIONS (i) Uninteresting nature of work. The problem of poor industrial relations is essentially a product of large skill production which has made man subordinate to the machine. This has made him lose his sense of pleasure, pride and satisfaction form work. This dissatisfaction of the worker on the shop floor generally results into big strikes and lock-outs. (ii) Political nature of trade unions (TUS) Another major irritant to good industrial relation is the politicization of the labour union by outside political leaders. This has led to multiple unions on one hand and inter-union rivalry. This depresses union membership and its finances and as such unions are unable to be effective and play their role in collective bargaining. Their status is reduced to a mere strike committee. (iii) Poor Wages Too much right or complicated wages and incentive payment systems are also a source of poor industrial relations. Wage and salary differentials between occupation also create a feeling of inequality and affect industrial relations. (iv) Occupational Instability Occupational stability makes workers feel secured of their jobs. It produces an energizing effect on them. Workers who have held a job for several years show confidence on the job and they do not like any change being made in that job because they fear the following consequences. 7 a) b) c) d) e) (v) The new job will reduce their wages and seniority structure. New jobs will not give them as much satisfaction as the earlier job. The new job will require them to undergo some training. The new job will change existing social relationships. New jobs will reduce opportunities for growth and development. Poor Behavioral Climate. The behavioral climate of an enterprise which is made up of traditions and method of action may be either favorable or unfavorable. Favourable climate is one which helps him meet his economic, social and psychological needs. It produces a good image of the enterprise in his mind. On the other hand unfavourable climate is one which prevents him from meeting the various types of needs and produces a poor image of the enterprise. This eventually drives him to seek membership of a militant labour organization where he can then case his negative feelings against his employer this becomes a course of poor industrial relations. Suggestions to Improve Industrial Relations In the light of the above discussions the following can be the suggestions to improve industrial relations:(i) Both management and union should develop constructive attitude towards each other. (ii) All basic policies and procedures relating to industrial relations should be made clear to everybody in the organization and to the union leaders. (iii) The personnel manager should remove any distrust by convincing the union of the company’s integrity and its own sincerity and honesty. (iv) The manager should not view with the union to gain workers loyalty. (v) Management should encourage right kind of union leadership. (vi) After the settlement is reached the agreement should be properly administered. COMPONENTS OF INDUSTRIAL RELATIONS 1. Industrial relations is to do with philosophies and policies of major players i.e. government, trade unions and management. 8 2. It is involved with the development, negotiation and application of formal system which is composed of rules and procedures that govern the following: Collective bargaining  Handling of disputes  Regulation of employment. 3. It ensures formal processes of interaction between management and workers. 4. It ensures formulation of policies and practices of employee involvement and communication. 5. Industrial relations facilitate contribution of parties with different roles i.e. government, trade unions and management. The System Theory of Industrial Relations. Dunlop 1958 Dunlop proposed that Industrial Relations System comprise the following components:1. Actors – The actors are the managers, workers and government agencies who take part in the rule making process. 2. An Environmental Context – This means technological and economic factors together with locus of power, distribution in the larger society form the environment which infringes upon the actors. 3. Common Ideology – while each actor may have their own ideology and Industrial relation system requires that these ideologies must be sufficiently compatible and consistent so as to permit a common set of ideas which recognizes an acceptable role for each actor. 4. A Set of Rules to Regulate Labour Relations. Rule making and application of such rules via agreed procedures is regarded as a central aim of industrial relation system. Unitary and Pluralistic Industrial Relations Unitary Industrial Relations by Fox 1971 Says that Fox proposed that most employers favour the autocratic unitary approach which is based on the following premises:(i) There is no room for opposition groups or functions in the work place. (ii) The boss role is perceived as legitimate and is coupled with the perceive right of management to unilaterally control all decision making. 9 (iii) Commitment to the organization and loyalty to its leaders. (iv) Conflict is perceived as a unnatural. (v) Where conflict does occur it is perceived as the outcome of the breakdown in communication or the results of the work of agitators. (vi) The presence of the union in the work place is seen to be an intrusion to otherwise satisfied employees who are encouraged to make unreasonable demand and to strike when those demands are not accorded. PLURALISTIC VIEW Fox rejected unitary system. He claimed that the organization is a “plural society” containing many related but separated interest and objectives which must be maintained in some kind of equilibrium. Liberal pluralism in broad political terms accept that the society is composed of diverse competing interest groups and extend each of this freedom of association and the right to further their interest the legitimate means. Pluralism is characterized by the following:1. Conflict is accepted as natural and fundamental part of relationship between employer and employees. 2. Trade Unions and employee organizations are seen as legitimate and functional organization through which workers and employers protect and further their interest within the frame work of rules provided by the state. 3. Collective bargaining is regarded as generally decentralized, dynamic and democratic process for processing and controlling conflicts. 4. Existence of contravening powers supported by the employee’s right to strike, employer’s right to lock out is seen as ultimately conducive to maintaining some balance of power between the parties. 5. Pluralism does not imply that equal power must exist or that even conflicts must be settled by compromise. Compromises must not always be possible and they will be test of strength resulting in the emergency of winners and losers. 6. Plurarism does not survive where one of the parties constantly make gains at the expense of the other party. 10 Parties must sometimes have to exercise their potential power with restrain in the sense that they have their vested interest in the overall stability of the relationship. The Role of Employee Relations Employee relations has a great role in the management of an organization. It is concerned with:1. Building staple and co-operative relationship between management and employees. It aims at avoiding or minimizing conflicts. 2. Achievement of commitment through employee involvement and communication. 3. Development of mutuality of common interest in order to achieve organizational goals. 4. Development of suitable organizational culture i.e. the way an organization handles matters of welfare of employees based on shared values between management and employees. 11 TOPIC 2: COLLECTIVE BARGAINING. According to Webbs the classical approach (CB) is an act of exchange involving the adjustment of supply and demand of labour. Therefore Webbs view the union as a cartel involved in bargaining and regulating the labour market. CB is seen as a process of negotiating for terms and conditions of labour. According to Flanders CB is a joint regulation of activities between employers and the union. CB can also be seen as being about rules that are jointly made together and administered together. International Labour Organization ILO Definition ILO defines CB according to ILO recommendation no 91 which looked at CB as negotiation about working conditions and terms of employment between employer and employee’s organization. At international level CB is governed by convention 98 of 1949 which is about the right of workers to collectively organize and collectively bargain. STRUCTURE OF COLLECTIVE BARGAINING. 1. Bargaining extent / unit. This indicates the numbers of categories of workers involved which is usually contained in the ‘preamble’. It is important to do this to avoid conflicts as to who in the organization is covered or not covered. For instance the CBA may indicate as i.e. this agreement does not cover those in management like personal secretaries. 2. The Bargaining Level. This refers to the level at which bargaining takes place and its coverage. These may be 4 levels of bargaining: a) National Bargaining: Here it normally consists multi-employers and covers various agreements at national level. b) Company / enterprise bargaining. This covers one firm or collection of firms within an industry. c) Plant Bargaining. This covers particular workers within one work pale or plant in domestic bargaining. d) Domestic Bargaining. It covers work groups within a particular plant (office bargaining) or workplace. 12 3. Bargaining Depth. This refers to the extent that local union branches, shop stewards are involved in the bargaining process either in making arrangements or administering them. 4. Union Security. This refers to the support given by employers to union to recruit members through “closed shops” or “cheque off” arrangements. Close shop means when you join employment you automatically become a member of existing union. Open shop means you can choose to be a member of existing union or not. According to the employment act, employee salary is deducted only when employee writes to effect deductions. Employees become members of a union by signing to be members. 5. Union Density. This refers to the percentage of the potential membership who have been recruited by the union for instance if 50 out of 100 employees are union members then the union density is 50%. 6. Degree of Control. This means the extent which the agreement sets out obligation standards and influences the bargaining outcome including the machinery for observance of an agreement. This means that there is no room for speculation left and the agreement is clear in examples and procedures. 7. The Scope. The scope is linked to the degree of control and it answers to some of these questions what is the agreement? Does the agreement indicate the number of aspects covered? e.g. unfair labour practices. 13 ISSUES COVERED BY THE COLLECTIVE BARGAINING AGREEMENTS (CBA). These are divided into 3 categories:a) Basic issues This include wages (bread and butter), holidays, hours of work, allowances, sick off, leave, etc. b) Frictional issues These are issues that can bring function and include discipline and disciplinary procedures, manning levels, workload etc. c) Solidarity issues This is where the employees of one firm may come in support of employees of another firm on industrial issues. This may also include the concept of close shop arrangement where workers will become automatically members of a union. Types of Collective Bargaining Agreements. There are 2 types of collective bargaining agreement:a) b) a) Statutory Agreement Common Law Agreement Statutory Agreement For an effective CB to occur it’s important to differentiate between a static and statute law agreement. An agreement that can be enforced by law e.g. all collective bargaining agreements in Kenya are statue law agreement and are static in nature i.e. they run for a specific fixed duration and only matters of interpretation are discussed during its life time. In practice collective bargaining agreements in Kenya run for two years and the breach of the agreement is illegal. b) Common Law Agreement. This is only binding in honour (gentlemen agreement). However, it’s dynamic because matters can be openly agreed on through discussion. The dispute of interpretation of matters can become a demand and results to a collective dispute. Importance of Collective Bargaining Agreement. 1. Collective Bargaining is an important tool in that it provides a regulative frame work for the conduct of industrial relation in the work place. 2. It allows workers to look at issues analytically because it provides a forum for dialogue. (Teaching and learning). 14 3. Its an industrial safety valve that allows disagreement to come to the open. Its not only asking for bread and butter, value for raising up issues that could have been suppressed. 4. It provides a forum for regular meetings which promote working relationships. No master servant relationship. 5. Its an instrument for distribution of rewards in the industry. Sharing of the cake i.e. welfare, facilities, monetary and non momentary = constitute a wage bill (profit sharing). 6. It provides consistency and uniformity. Working within those provisions. Issues to be considered by Human Resource Management in determining collective bargaining. 1. Financial resources of the company (in terms of present and future prospects). 2. Discipline and disciplinary procedure. 3. Cost of living index – this is usually given by the ministry of finance and can be used to determine compensation. The instrument of analyzing i.e. understand issues such as medical bills. 4. Comparative analysis of industry or work place – this is by checking particular industry with a comparative one and finding out the level of sale. 5. The ability of the employer to pay. The ability to pay is usually determined by the industrial court in terms of assets turn over, economic set up etc. 6. Past practices or tradition of the company. 7. Wage guidelines which in most cases are tied to the cost of living index. (minimum wage guile lines). Barriers in Collective Bargaining. 1. None co-operation of either party in the process of bargaining. This happens usually when the union present their proposal and indicate that “that is what they want only.” The management on its part comes up with counter proposal giving indication on what they can offer. This can lead to an impasse between the two parties. 15 2. Non-recognition. Collective bargaining requires recognition and therefore there is need for both parties to recognize each other. But in practice it’s the union that seeks recognition. 3. Unrealistic Demand. In most cases union tend to have unrealistic demand with no basis. Beyond Collective Bargaining Collective bargaining is not an effective instrument for distribution of rewards. It gives workers pay rises because of inflation, cost of living index and not through negotiation. It is also traditional in approach because in some organizations workers get pay rise on the basis of cost of living may eventually get higher pay than some management staff. Thus some union members could be earning more than those in management. This may affect the morale of the management staff. Therefore the management should understand that any increment cushion to the union should also get to the management. 16 TOPIC 3: EMPLOYEE PARTICIPACTION OPTION These are several ranges of options for employee participation:1. Share options. This option often the employees the chance to own shares in their company and this participate in its financing as well as in receiving all the information normally made available to share holders. 2. Consultation. This can be seen as ‘participation’ only in the sense that employees are consulted about decisions affecting their world lives 3. Job environment. It is a participation in the sense that employees are given greater discretion over immediate work decision. It can also add to employee’s motivation by increasing their responsibility for their more outputs and increasing job interests. 4. Empowerment through delegation. A participating management style that encourages real delegation of authority implies that all employees will be encouraged to play a past on the decision making affecting their work. 5. Collective bargaining. Collection bangaining is also an indirect environment of employees through their representatives, management are currently in a strong negotiating position because of. i. The continuing levels of relatively high unemployment ii. The increase competitiveness of the market place. Employees are therefore less indirect to engage on negotiation with their employees since this may increase their flexibility in responding to changes in market. 6. Work councils. These are essentially joint bodies of mangers and employees established to consider and agree key matters affecting employment within the employees only as one not for unionized employees only as on the case in collecting bangaining groupings of employees regardless of any union membership. Councils is especially concerned with the consultative aspects of participation but at strategic as well at an operational levels. 17 7. Board representatives (worker directors). One of the forms of workers participation within an organization is direct workers participation at board level in major organizational decisions relating to their work situation Work directors are expected to see the implication of proposals for their members and give option on likely reactions. They are also supposed to convey options and value judgment of workers to the board. Directors need not be highly skilled in modern management techniques but they require sufficient knowledge to be able to follow proceedings and sport the implications of policy proposal of their members. Senior management have to be relied upon for detailed admica on the formation of corporate policy and implementation of board decision. The ability of workers directors to have effective influence on management decision can be affected by: a. Infrequency of formal board meeting b. The exclusion from other directors c. The predominant role of the board being the formal endorsement of proposal made on decision taken by the management. JOINT CONSULTATION What is joint consultation?  Refer to an arrangement which recognizes employees demand for more information from management and the involvement or participation of employees in decision making  Regular meeting between management and employees together with trade union official discussing matters of mutual interest at work place The meeting is in the form of joint consultative committees at the company level and joint industrial council at the industry level They meet regularly to discuss problems which are outside the normal area of negotiation Joint consultation supplement collective bargaining OBJECTIVES OF JOINT CONSULTATION i. Promote increase productivity for the benefit of both the organization , workers and the society in general 18 ii. Provide a better understanding to employees about their role and place in the process of attainment of organizational goals iii. To satisfy the workers social and esteem needs iv. To strengthen labour- management cooperation and thus maintaining peace and harmony v. Develop social education for effective solidarity among working community and for tapping the latent human resource vi. As ideological point of view to develop self management in industry vii. As an instrument for improving efficiency of the company and establishing harmonious industrial relations viii. To build the most dynamic human resource This is a process that can be used together with/or be complimentary to the collection bargaining process. It involves joint consultation committees whereby employees seek to deepen their relationship with employees in a non – negotiating environment. Joint consultation can be:i. A means for management to impact efficiency within the organization. It can be used to enlist the co – operation of all the employees in the efficient operation of the organization and in the implementation of management decision. ii. Instrumental in fostering industrial peace between management and employees particularly where management and employees have established common interests. iii. A means towards industrial democracy making process is subject to a form of partnership between management and employees. iv. Grievance form. It can be used in matters of personal concern to employees when their nature is not appropriate for formal grievances. This can happen when employee’s representative draws the management attraction to issues which are of concern to employees. The management response justifies whether the trade union will raise the matter subsequently in formal negotiation. 19 Forms and structure of joint consultation The process of joint consultation may be applied without any formal structure. However, it is advantageous for both portions to establish formal joint consultative machinery because it can help to overcome the organizational complexity; many organizations tend to hinder informal consultation particularly between employees and senior management It can facilitate the processing of issues of general nature which otherwise could have to be handled by each manger individually with time consuming, cumbersome and subject to variation in its treatment. Through regular meeting and record of minutes, it can ensure that joint consultation are accorded proper recognition in the organizational and confirm the management commitment to consultation with employees. Establishment of joint consultation committees does not mean that they will in place collective bargaining process. They are supposed to minimize conflicts which may otherwise lead to grievances on disputes. Since the purpose of industry democracy is to minimize and resolve conflict at the work place. There should be an integration of consultation and negotiating machinery within an organization. In forming, consulting and negotiating should be linked together in handling labour relation matters. At the same times trade union representation feels the need to be fully involved in the consultation process. Formalized joint consultation is an indirect method of employee involvement in decision making. The consultation must make sure that there are adequate links between the representatives who are discussing the issues within the committees and the people they represent. The parties (management and employees representatives) must make sure that their agenda is known in advance to the members they are representing so that their members can discuss with them the issues and give their views before the meeting. After the meeting, representative should report back the outcome of the discussion. Factors considered for successful joint consultation i. There should be mutual trust, faith among all parties concerned ii. Should be progressive management in the enterprise and should reorganize their obligation and responsibilities to towards workers and trade union iii. There should be strong democratic and representative union which should represent their cause of workers without neglecting the management interest 20 iv. Closely and mutually formulated objectives for participation of trade unions and management v. All parties concerned with JC should feel that they should participate at all levels vi. Effective communication between workers and management and effective consultation of workers by management vii. Both parties should develop a favorable attitude towards each other. Factors affecting successful joint consultation i. The apathy and even hostility of the workers and employers ii. Lack of proper understanding between employees and employers of the concept, purpose and benefits of joint consultation iii. Workers indirectly participate in the management through their representatives. Their latent abilities & qualities are therefore largely unutilized iv. delay in implementing the suggestions and recommendation of these committees often leads to the wading of workers interest. 21 Benefits of joint consultation i. Workers develop self esteem. ii. Conflicts are reduced considerably because workers are involved in decision making iii. Improvement of productivity may realized iv. Improved self motivation among employees v. Makes employees understand their role in the organization and therefore making them attain their objectives as well as the organization vi. Reduced staff turnover hence the cost of recruitment and training vii. Organization image is improved and therefore can attract and retain staff viii. Introduction of change may be made easier because employees are involved hence less resistance 22 TOPIC 4: GRIEVANCES AND DISPUTE SETTLEMENT MACHINERY. What is a Grievance A grievance is an aspect of condition of employment thought by an employee to hurt him/her or cause injustice and which he complains about bringing it to the notice of the management. It is important to distinguish among 3 aspects i.e. dissatisfaction, complaint and grievance. Dissatisfaction is any feeling of discontent but unaccompanied by any verbal or written expression against its cause. A dissatisfaction which is orally and known by one employee to another employee without informing the management is called a complaint. A complaint becomes a grievance when this complain which is work related is formerly brought to the attention of the management. A grievance could affect one or more employees and the commonly affected areas are salaries/wages, overtime, leave, transfer, promotion style of supervision in the interpretation of service agreement and termination of service. A grievance can be real or imaginary, valid or invalid, genuine or false. NB: A grievance is different from a trade dispute (i.e. industrial disputed when it’s a state of collective disagreement between an employer (a union of employers) and employees (a union of employees). A trade dispute is often procreated by a poorly handled grievance. Most union – management agreements include procedures of handling employee grievances. Causes of grievances in an organization Grievances usually arise out of misinterpretation or misapplication of organizational policies and practices. Specifically the following may be the following cause of grievance in an organization. 1. Poor working conditions – This can create problems if workers feel that what is being provided for is not adequate. 2. Lack of understanding of labour laws and practices by both management and union officials. 3. Lack of effective communication system. 23 4. Lack of training by managers especially on human relations. 5. Supervisors who play favorites and or ignore workers. 6. Supervisors who engage in excessive controls over workers (commands) application of so many rules. 7. Over application of rules – thus giving rise to too many disciplinary eases. 8. Lack of proper and sound disciplinary procedures which will lead to biasness. 9. Lack of clear promotion procedures which may lead to either keeping an employee at a certain grade for too long or that a young and inexperience employee is being promoted a head of the older and experienced employees. 10. Lack of proper compensation policy which may lead to poor pay structure which can directly affect employees. 11. Failure to implement collective bargaining or misinterpretation of the same or generally neglecting fresh problems or questions of the union. 12. Excessive application of management prerogatives such as transfers unfair evaluation of jobs provision of welfare facilities and benefits which may lead to dissatisfaction among employees. Why have grievance procedure / Dispute Settlement Procedure. 1. Absence of procedure can lead to industrial unrest, dissatisfaction among employees and poor level of morale. 2. They provide for industrial democracy i.e. it gives workers an opportunity to air their grievance. 3. Procedures are importance for they provide management on opportunity to identify trouble spots. 4. It provides an orderly outlet for workers protest. 5. They supplement collective bargaining in the service that they provide an avenue for negotiations. 6. It provides for interpretation of the collective bargaining agreement. 24 Arbitrator Top Management Top Management Middle Level Management Supervisor Decision Decision Non Unionisable Branch Official Union Official (shopsteward) Unionisable Aggrieved Employee 25 PROBLEMS IN OPERATING GRIEVANCE PROCEDURE 1. Fear of Workers This is where the workers fear to submit any grievance in writing perhaps of victimization perceived which may make the workers not to commit themselves. 2. Short-circuiting This is where the workers do not comply with the prescribed machinery or grievance handling procedure. 3. Time span of grievance handling. Most of the grievance handling procedures does not have a time limit within which a grievance reported should be resolved. 4. Lack of clear policy on the link-point. This is a situation whereby workers are not aware who to go to in the event of grievance. 5. Use or misuse of procedure to press for collective bargaining demand. And organization may take long to agree with their demands. FACTORS INFLUENCING GRIEVANCE PROCEDURE 1. The size of the firm or company. The bigger the company the elaborate grievance procedure is. In small organizations the procedure is clearer and can be well understood by employees. 2. The nature of the workforce in terms of literacy level. If the literacy level is high there is high possibility the procedure may be well understood. 3. The presence of a union in the workplace. If there is no union the question posed to who will be the link on for the workers and who is to speak on behalf of others. The presence of a union creates a focal point where there is no union management may choose to have which has representatives from both management and workers. The process would involved management choosing its own representative mostly from the HR section while workers will also choose an equal numbers. Thereafter a Chairman and Secretary will be chosen among the committee members. This work committee is then sued to resolve conflicts between management and workers. There may also be a worker’s committee whereby its constituted from the workers themselves with no representation of management. This worker’s committee will then represent workers in matters of employee relations. THE MAIN FEATURES OF GRIEVANCE PROCEEDING PROCEDURES 26 The main features of grievance proceeding should specify the following. 1. Machinery for managements or supervisor responsible at each stage and it should specify who reports to who and the procedures to be followed. 2. The procedures must take into account industrial democracy i.e. to accept in right of workers to be represented by a group or individual. 3. It is important to establish at what stage trade union representative is to be involved. A clear standard should be set on what matters the trade union is to be involved and the specific issues to be addressed. 4. The grievance procedures should indicate at what stage/time the full time official of the trade union should get involved. This is the time a trade union official who deals with union matters on full time basis should get involved and these officials are not workers like chief shop steward or branch official. 5. The number of stages and levels and time limits should be indicated e.g. these should be a time frame for grievance reported and shop floor level – they should indicate when the grievance should be resolved. 6. There has to be a status quo clause or “stand still” clause. This will assist the parties to break through an “impasse” i.e. parties will always get back to where they started. 7. Its important to have separate procedures for separate issues e.g. procedures for retirement on medical grounds e.g. when and what stage an employee can be retired on medical ground. 8. Indicate provisions for collective dispute i.e. at what stage a grievance may become collective. An individual dispute should not be allowed to become collective. 9. Decide at what state dispute becomes external i.e. allow for external intervention through (a) labour officers, (b) trade union official or (c) tripartite appeal. 10. Its important to have a written recording of a grievance or dispute. 11. The procedures must have “a peace clause” which is normally related to “status quo clause”. And this is used in recognition of the 2 parties meeting together to cultivate ground for mutual understanding and making sure that the individual interest are overruled by the overall interests of the company or organization. THE ECONOMIC IMPACT OF INDUSTRIAL DISPUTES:1. There is lose of man hours and man days – the cost when the strike is on and the time spent resolving any dispute whether for the employees or individuals 27 2. Disputes affect employee relations in the work place directly and indirectly for instance the morale of employees or the pay during the period of strike. 3. It may lead to loss of material or resources of the company. 4. Industrial dispute may also affect the image of the company and this may lead to a reduction in the number of customers. 5. Dispute may also lead to lose in management time in the course of resolving dispute. 6. Dispute may also lead to lose in terms of employment for instance employees may be dismissed after the strike. 7. Industrial dispute may have an economic impact not only to the organization but also for the whole economy – this is because it may create unemployment which leads to less purchasing power. SOURCES OF GRIEVANCE HANDLING PROCEDURES 1. Staff regulations and rules which are usually derived from the policy of the organization. 2. The contract of employment. 3. Collective bargaining agreement which indicates the kind of procedures to be followed as far as staff belonging to union are concerned. 4. The labour laws e.g. labour relation act. 5. Recognition agreement and this provides the basis for recognizing the relationship between the employer and employee representative. This usually comes in after the union has indicated a simple majority of 51% of employees who are unionized and also when there is no other rural union claiming representation. 6. Industrial relations charter. 7. Part practices or traditions of the organization which is to do with cultures, norms and values. 8. Policy statement which may be issued from time to time and they may be internal or external. Considerations when dealings with grievance of the work place: 28 1. Each party must be given a fair hearing and participation when settling grievances i.e. each party must be given an opportunity to be heard and defend him. 2. Grievance procedures and indeed all avenues must be fully exhausted. 3. Its also important for the messenger to consider whether its violation of the agreement law or part practices. 4. Grievance handling requires the management to have counseling techniques. 5. The 7 ways investigation methods should be used i) Who ii) When it happened iii) Whom to report to iv) Where – places where the problem arose v) Why – reasons for the problem vi) Which – which instruments to use e.g. CBA vii) What – what decision to take. Role of human resource management 1. The managers must be counselors and not policemen. 2. They must be human that is use human effort to resolve issues. 3. Must be fair, firm and strict. 4. Use public relations techniques and this will assist in projecting positive corporate image. 5. Job of the HR is to correct not to punish. 6. Consultation is important especially for employees in all areas whether upward, downwards or horizontal. 7. Channeling counseling to the organizational goals – do not counsel for the sake of counseling. 8. Legitimize decision making by following the rules of the organization. 9. Control and regulate the workforce so that the company can meet its economic criteria. 10. Monitor employment legislation and be progressive. Machinery for dispute handling, investigation and conciliation 29 Dispute can be categorized into two:1. Disputes of Rights e.g. disciplinary like termination, dismissal, suspension, compulsory leave, retirement or medical grounds etc. 2. Dispute of Interest i.e. economic interests e.g. bread and butter, wages, allowances, benefits, etc. According to section 62 of the labour relation act 2007. A dispute can be recorded to the minister on behalf of or any party within the dispute e.g. union or agent of the employees. The practice is that the letter reporting the dispute must be signed by the general secretary. The report should be in writing with sufficient copies to the parties involved in the dispute and specific detail includes:a. Parties to the dispute i.e. employers and employees. b. Party concerned or on whose behalf the report is made c. The nature of authorization given to the party to whom the dispute is reported e.g. industrial relation officer. e. Each and every matter over which dispute has risen must be indicated. f. Each party to the dispute is furnished with the report by the claimant. g. Dispute of dismissal or termination should be reported with 90 days however the minister has discretion to accept a late dispute. h. Dispute concerning redundancy of one or more employees, a trade union may report to the minister of any stags after the employer has given notice of its intention to terminate. Consideration of factors that a minister should make before accepting the dispute The minister has to consult the tripe titite committee (trade dispute committee) which comprises government, trade union and employer representative. The committee vets the dispute and advises the minister on issues arising from the dispute. After this consultation, he can take the following steps:1. The minister can decide that the matter is not suitable to be dealt under the act. 2. The minister may refuse to accept the dispute if the matter is not negotiable as per the provision of the act. 30 3. The minister may inform the parties that he has accepted or rejected the trade dispute having regard to any matter relevant to the dispute. In this case he may reject the dispute if the matter is not a trade dispute as defined by the labour relation act. 4. The minister may refer the matter back to the parties for further negotiation. 5. The minister may effect the conciliation of the parties by appointing a conciliator. 6. The minister may cause investigation be trade – a point an investigation to investigate the matter who should make the report of the findings to the minister. Dispute of conciliation include the economic dispute e.g. wage increase, working hours, overtime, allowances etc. while investigation of dispute may include dispute of right e.g. termination, dismissal, compulsory leave, suspension, retirement on medical grounds, etc. 7. The minister may comment to the parties that the trade dispute may be referred to industrial court for final arbitration and this can be done per industrial court regulation. PROCEDURES FOR REGNITION OF TRAE UNION ACCORDING TO THE LABOUR RELATION ACT 1. Union must first show that it has recruited a simple majority of 51%. 2. The union must also satisfy the minister that it is the rightful union to represent the workers. 3. The minister must be satisfied that there is no rival union i.e. no other union claiming representation. After the minister is satisfied with the above, he will give an order in writing that the union be accorded recognition for collective bargaining purposes. The recognition agreement in writing must indicate:a) b) The parties to the agreement. The procedure to be followed if the parties disagree. If there is a dispute as to the right of a trade union to be recognized for the purposes of collective bargaining in accordance with this act or cancellation of the recognition agreement the trade union may refer the dispute to conciliation. If the dispute is not resolved through conciliation then the dispute may be referred to industrial court under certificate of urgency. METHODS OF CONCILIATION AS PROVIDED IN SECTION 65 OF LABOUR RELATION ACT 2007 In conciliation the minister may take the following action:31 1. The minister may appoint a public officer or any other person he considers suitable for that job. In practice conciliations are usually labour officers from the ministry. 2. The minister may appoint a conciliation panel consisting of an independent chairman and one or more to represent employers and employee. 3. The minister may refer any matter with the consent of the parties to a conciliation panel composed in accordance with the wishes of the parties. 4. The minister has power to withdraw or temporarily suspend the operation of the above conciliation measures. The terms of every settlement should be in writing and should be endorsed by conciliations and where appropriate by the chairman of the conciliation party and signed copy given to the minister. Where the minister anticipates any dispute in the order and investigation of the matter through a penal or individual. Any investigation or member of the committee of investigation must appear to the minister as qualified as independent for such an appointment. REGISTRATION OF COLLECTIVE BARGAINING AGREEMENT 1. Industrial courts is mandated to maintain a register of all CBA’s in Kenya. 2. Collective agreements cannot be effective until they have been registered by the industrial court. 3. Every employer or organizational employers that have entered into a collective agreement shall lodge within 14 days of its execution i.e. employer have an obligation to lodge to the court collective agreement for registration. 4. The minister has an obligation to provide the industrial court with a copy of every CBA that has been lodged with him and may provide the court with such information with comments as he considers necessary. 5. Where a minister objects or rejects registration of the CBA a copy given to the court should be accompanied by reason of the same. 6. The minister may make rules to require the employers to provide him with information necessary for registration. 7. Failure to lodge a CBA within the specified period, the trade union may submit it for registration. 32 THE POWERS OF INDUSTRIAL COURT ON CBA 1. The industrial court may accept CBA for registration if its satisfied that the agreement is in compliance with the rules and regulations. 2. The court has been mandated to accept CBA with modification but with the consent of the parties. 3. The court has power to refuse or accept and refer the CBA back to the parties for further negotiations. 4. The industrial court ahs power to interpret labour contrats incase of disputes. The industrial court shall not register a CBA if: a) Conflicts with the act or any other law. b) Does not comply with any directive or guidelines concerning wages or salary levels and other conditions of employment issued by the minister. 33 TOPIC5: THE ORIGIN OF TRADE UNIONS IN KENYA PRE-INDEPENDENCE PERIOD. Before independence, labour policies and laws were oppressive towards the employment of African Workers Industrial relations was based on master movement relation club. Employment was in four tiered structure which European were at the top followed by Indians, Arabs and Africans at the bottom. Employers determined the working conditions unilaterally. The introduction of the “Kipande” system was used to discriminate African workers and to control labour movement. Africans worked in order to pay discriminatory tax such as poll tax or hut tax. This official discrimination made the problem of African Workers worse. The workers were not only discriminated in working places but also on the basis of racial colour. African workers therefore used every opportunity to protest against poor working conditions and official discrimination on racial grounds. The fight against colonial rule can not be differentiated from the fight for workers rights. And this could explain why the current labour movement is politicized in a way. As earlier as 1920s strikes were reported in some areas but were more of political than industrial in nature. The 1st strike recorded was a strike by tribal constable (APS) in 1920. Officially trade unionism was registered in Kenya 1934. The Indian collies played on important role in the early trade unionism in Kenya. After 1943 going into 1945 the trend of industrial relation changed with the advent of international trade unionism (the global movement dealing with trade unions) and the British trade union congress in particular played on important role in the Kenya trade unionism. After 1945 the government took trade union seriously and set up an office for the registration of trade union to regulate and control unionism. In 1946 and protective labour code was introduced which improved the situation of labour. In 1952 after the declaration of the state of emergency the direction taken by trade union changed. The political leaders were detained and trade unions started playing the role of agitation for independence. In reaction to this the government took up the development of staff association, workers committees (e.g. statutory wage determination council). The committees formed can be seen as the basis for the current tripartite bodies e.g. abour advisory board, currently known as National Labour Board, the tripartite wages council etc. POST INDEPENDENT PERIOD. 34 Before independence Tom Joseph Mboya was the general secretary of Kenya Federation of Labour till 1857 and this was when (KNUT) was formed. Later after independent Tom Mboya became the Minister of Labour and his rationale of accepting to be the minister was for the “Development purpose”. As a result other aspects of trade union were forgotten. In 1962 Tom Mboya called the trade unions and employees associations and formulated the Industrial relations charter. And this document became social agreement between the 3 social partners that is Government Trade Union and employers. This document also determined who can be unionized and who cannot. In 1965 there was a split in the Kenya Federation of Labour which led into 2 unions. Because of this split the two unions were disbanded and an umbrella body was formed in 1965 through OBJECTIVES AND PURPOSE OF TRADE UNION 1. To improve the terms and conditions of employment i.e. the workers’ working condition which means that unions are supposed to continually review the working conditions and provide for alternative positive working condition of service through suggestion. 2. To fight for improved physical environment of work place – this is through ensuring that the working environment is safe for work. 3. To enhance security of employment and income – that is unions are interested in making sure that their members do not loose employment and income. 4. Union has a purpose for improving social security and services. This is through making sure that systems are kept in place to meet the social obligation e.g. provident fund, gratuity, pension fund and social services like health facilities. 5. Unions are interested in getting a fair share of national income diverse methods for fighting the workers and wealth i.e. they are interested in wealth distribution among citizens ensure that the output of labour is equally distributed to those who participated. 6. Industrial democracy – that is union are interested in industrial democracy where they become the voice of the workers. 7. Union are interested in having a voice in the government but awareness of the distinct role of government and trade union should be paramount. 8. Unions are interested in public control and planning of industry. Planning of industry is crucial for trade union for it affects employment and environment. METHODS TRADE UNIONS USE IN FURTHERANCE OF THEIR INTERESTS 35 The union can use various methods to achieve their objectives. These methods can be categorized into three:a) b) c) Industrial action Political International. a) Industrial Action. Through industrial action trade union can use the following: (i) Collective bargaining and negotiation to achieve their objectives. (ii) Through joint consultation in which they have regular meeting to discuss on issues arising out of employment. (iii) Through autonomous job regulations and this is where union impose a close shop strategy. (iv) They can also use industrial action such as strikes, go slow, etc. b) Political action. Union can use the following political action: i) Union can secure legislative change by lobbying for the enactment of various labour laws. ii) They can use political action by electing members to parliament who are their core members. c) International Action. Trade unions can affiliate itself to international bodies such as international labour organization, confederation of free trade union and world confederation of labour and other regional trade unions. All these will assist in terms of research and training of their leaders on issues of labour. IMPACT OF TRADE UNION IN DEVELOPMENT 1. Trade union have provided a fair work of legal restrain that has ensured some measure of protection the weaker party in labour and industrial relations. 2. They have balance power relation structure through collective bargaining (lecture defense of workers’ rights) 36 3. They have encouraged negotiation in the spirit of good faith and mutual understanding through collective bargaining. 4. They have promoted industrial peace in most cases. 5. In collaboration with other social partners they have increased employment opportunities including those of their members. 6. Unions have protected fully employment by being aware of the dynamics operating in the labour market. 7. Unions have participated in matters of national interest that affect their members e.g. compacting inflation through wage restrain or wage freeze. 8. They have promoted a more equitable distribution of national income through collective and productivity bargaining. 9. Unions have also provided a forum for lobbying and influencing government policy through alliance with other social movement. 10. They have also represented their members in grievance and dispute settling by promoting the spirit of industrial relation charter. 11. They have been involved in workers’ education or welfare including workers cooperativeness. CURRENT PROBLEMS AND CHALLENGES FACING TRADE UNIONS IN KENYA 1. Changes in the structure of industry through business process like re-energizing. 2. New technology and production system which necessitate multi-skilling and rich skill through re-training. 3. Economic crisis as a result of liberalization and globalization whereby trade barriers being removed. 4. Changes in labour markets and the characteristic in the work force e.g. peripheral workers being the majority (part timers, home workers, commission workers, subcontractors, etc.) 5. The use of traditional strategies and orientation attitude towards trade union, the public and other partners. 6. Trade unions have tended to be conservative in nature and they have always had one thing that is fixation of wages. Therefore there is need for redefining and refocusing so as to make ti more effective tools of development. 37 7. The labour laws and trade union control that is the extent to which they are controlled. 8. New management practices, strategies and initiative in response to current changes in dealing with employees through involvement and participation. FUTURE OF TRADE UNIONS IN KENYA 1. They have to build alliance and capacity which should be in terms of: a) Human resources – professional people who can deal with matters professionally. b) Institutional capacity – this is in terms of organization structure. c) Individual leadership capacity – to have outward looking leaders. d) They can build alliance with other general movement – that is trade union needs support of other social movement as well as the public. 2. They have to invest in research and development. They should do this by having their own research centres which should not only be limited to union matters but also to matters of social justice. 3. They should have visions and mission to guide members on management expectation so as to avoid issues like redundancies and retrenchment. 4. Unions have to guide their members on how to help management cope with manage crisis e.g. financial problems of the organization 5. Union should also promote multi-skilling of their members. 6. Union have to be pro-active rather than being reactive by being trouble shooter and not trouble maker of the organization. They should strive to maintain industrial team spirit in areas that need discussion. 7. Unions have to start being innovative by updating themselves with new legislation and negotiation skills. 8. Union should assist their members in promoting income generating activities such as co-operative organizations. 9. Union have to diversify their recruitment constituent – they should identify what kind of people to be recruited into the union. 38 10. Union have to tailor workers education to address the issues of co-existence with management. 11. Unions have a responsibility to train and retrain officials especially in areas of counseling which should not be left to management alone. 39 TOPIC 6: THE FEDERATION OF KENYA EMPLOYERS (FKE The Federation of Kenya Employers (FKE), which was first established in 1956 under the name of Association of Commercial and Industrial Employers, was registered in January 1959 under the Trade Unions Act, Cap 233, as an Association representing the collective interests of Kenya employers. The Federation of Kenya Employers (FKE) is Kenya’s leading employers’ organization in advocacy, industrial relations, employment laws and related value-add services through management, consultancy and training. FKE has been representing employers’ interest both locally and internationally since 1959. 40 Looking into the future, FKE is repositioning itself to continue championing employers’ interests and strengthening partnerships with other stakeholders. OBJECTIVE OF FKE 1) promote good relations between employers and employees through their trade unions 2) encourage fair labour practices among employers 3) provide a forum for consultation between and among members on matters affecting them 4) collect, collate information statistics and advice members on their rights and obligations on employment matters 5) initiates, promotes and support legislative measures which are likely to benefit employers interests 6) presents advocate and defend their interest of employers generally 1. Scope of activities Social, labour and economic affairs, training and management consultancy 2. Founding and registration of the organisation The Federation of Kenya Employers (FKE), which was first established in 1956 under the name of Association of Commercial and Industrial Employers, was registered in January 1959 under the Trade Unions Act, Cap 233, as an Association representing the collective interests of Kenya employers. 3. Historical overview Since its foundation, the FKE has developed as the industrial relations system in Kenya has progressed. Now, the Federation has become an essential partner in the country’s tripartite labour relations machinery, which includes the Central Organisation of Trade Unions, the Industrial Court and the Ministry of Labour. The FKE bargains directly on behalf of its members and, if necessary, appears for them at the Industrial Court. 4. Present structure Subject to the overall control of the Annual General Meeting of the Federation, the formulation and control of its policy is in the hands of a broadly-based 41 Management Board which consists of the Chairman, two Deputy Chairmen, three Vice-Chairmen, the Immediate Past Chairman and not more than twenty four members elected annually by members in addition to co-opted members. The Management Board is aided by an Executive Committee in the general administration of the Federation. Other Committees include the Rural Employers’ Standing Committee, a Standing Advisory Committee and various Branch Committees, all of which have distinct roles and functions. The day-to-day management of the Federation’s affairs is in the hands of the Executive Director, assisted by the Deputy Executive Director and a multidisciplinary team of professional and administrative staff comprising management analysts, manpower specialists, industrial relations specialists, personnel management experts, organizational behaviourists, economists, legal experts and accountants. 5. Functions At present, the overall objective of the Federation is to defend the employers’ interests, harmonize the interests and to raise the social and economic consciousness of the employers in order to enable them to realize the full potential of their enterprises by promoting increased labour productivity, sound management techniques, better industrial relations, fair labour practices, effective work organization and staff motivation. The bulk of the Federation’s activities are in the field of employment, general representation of employers’ interests and industrial relations. These activities, which are free of charge to members, involve in particular: Representation of employers’ interests to relevant authorities on any policy matter. 1. Promotion of the spirit of tripartism, involving the Government, employers and workers in formulating and implementing social and employment policies as enunciated in the Tripartite Industrial Relations Charter, or generally. 2. Provision of a forum for exchange of views by employers. 42 3. Conducting of collective agreement negotiations between employers and trade unions. 4. Representation of employers before both the Ministry of Labour and Manpower Development and the Industrial Court. 5. Secretarial services: FKE Executive officers assist members in negotiating with their trade union by providing up to date data, acting as employers spokesperson in negotiations, drafting of CBA proposals or counter proposals on behalf of employers and presenting CBA for registration in industrial court 6. Dissemination of information. They keep its members well informed of development in matters relating to employment e.g. changes in labour laws and practice. The Federation also undertakes, on payment of competitive fees, general manpower consultancy services consisting of: organizational analysis, identification of manpower problems, preparation of staff manuals, installation of staff appraisal systems, undertaking comprehensive job evaluation exercises, preparation of manpower plans, career paths, succession plans and schemes of service, general personnel audits, and salary surveys. General advice on labour, employment and economic matters. Representation of employers in tripartite boards or other bodies. The Federation handles executive selection assignments including advertising, short listing, interviewing, taking up references and, if requested, medical examination of candidates. The courses cover a wide range of fields. The Federation also prepares specialized studies on labour market issues and disseminates such information to the general membership. The Federation is the sole representative of employers on the following tripartite meetings: General Wages Advisory Board, Agricultural Industry Wages Council, National Social Security Board of Trustees, Labour Advisory Board, National Industrial Training Council and 15 Industrial Committees. 43 6. Membership Membership of the Federation is open to trade associations and to individual enterprises, large or small, engaging any number of employees both in the private and public sectors, including local authorities in the form of the following categories: Individual Firms, Group of Companies and Firms, Association of Employers and Statutory Bodies but excluding the civil service and Teachers Service Commission. The total membership, including members of the 18 affiliated associations is about 3,000, with an aggregate workforce of approximately 500,000. 7. Affiliations The Federation is affiliated to the International Organization of Employers (IOE) and the Pan-African Employers’ Confederation, and as the most representative employers’ body in Kenya, is accredited by the Government to represent employers at the ILO Conferences. 8. Publications FKE publishes a monthly Newsletter. 44 BEFORE COTU (K) – HISTORICAL BACKGROUND OF THE TRADE UNION MOVEMENT IN KENYA The trade union movement in Kenya, which became an important feature of our country’s life, is a child of economic, social and political strives. It has evolved through difficult situations created mainly by the colonial government during that time which persistently defended Employers in order to avoid seeing a strongly organized Trade Union of the workers. However, with the change of attitude in the British Labour Policy in her colonies resulted in the enactment of 1937 Trade Unions’ Ordinance which stipulated conditions under which Africans could organize themselves into trade unions. After the publication of the above Ordinance, three unions were registered in Kenya by the Registrar of Trade Unions: 1. East African Standard Union. 2. Ease African Standard Staff Union. 3. Labour Trade Union of East Africa. In 1940, the 1937 Ordinance was amended, consequently the number of trade unions in Kenya rose from three to six. With the rising of political tempo immediately after the end of the Second World War, the situation began to change rapidly when Kenya African Study Group was formed which was later replaced by Kenya African Union (KAU) which started agitation for the return of African land, better wages and conditions and terms of service in Industry. As the situation continued to grow tense, Makhan Singh organized an Asian Railway Trade Union in which he openly associated himself with Africans despite the existence of colour bar and racial discrimination. He associated with Fred Kubai and Chege Kebachia. More trade unions came into being such as Nairobi Taxmen Union and General Maskini (Poor People’s) Union. 45 Pre-Independence Period. The Pre-independence saw the emergence of a number of unions registered among them were. Transport and Allied Workers’ Union, Domestic and Hotel Workers’ Union, Quarry Workers’ Union, Night watchmen Workers’ Union, East African Federation of Building Construction Workers’ Union and Tailors’ Union. This was followed by the formation of a National Trade Union called the KENYA FEDERATION OF REGISTERED TRADE UNIONS in 1952 with Aggrey Minya as the Secretary General. It was not registered because it was a Federation of already registered unions. It was affiliated to the International Confederation of Free Trade Unions (ICFTU) in 1952 and was receiving advisory service from ICFTU. After the break of Emergency in October 1952, the Trade Union movement suffered great setbacks because all leaders of several unions were arrested and detained for allegedly being associated with MAU MAU. Tom Mboya became the General Secretary of Kenya Local Government Workers Union and was later elected the General Secretary of the Kenya Federation of Registered Trade Unions which gave way to the formation of KENYA FEDERATION OF LABOUR (KFL). It is this period of KFL when trade union movement was very exciting and militant and was in the fore front in the fight for freedom in Kenya. More trade unions were registered. However, it is also at this time that when rivalry for leadership almost ruined the movement. Nevertheless, the industrial relations machineries were bad and the employer/employee relations grew worse. This time also saw emergence of splinter groups, which was brought under control. One most striking event was the erection of the workers Headquarters – SOLIDARITY BUILDING. The greater part of the money, which was used for building the Headquarters, was raised by Tom Mboya when he visited United States of America after his study at Ruskin College, Oxford. The building cost was over Kshs. 700,000/= part of which was raised locally by the workers. 46 TOPIC7: CENTRAL ORGANIZATION OF TRADE UNIONCOTU (K) FORMATION, ESTABLISHMENT AND REGISTRATION IN 1965 1. FORMATION OF COTU (K) PERIOD – 1965 Prior to the formation of the Central Organisation of Trade Unions COTU (K) in 1965 a negative occurred when confusion ensued in the labour movement being created by splinter groups, which unsuccessfully tried to form the Kenya Trade Union Congress. These splits continued until after Kenya had become Independent when the government was forced to internee into the conflict by appointing a Presidential Ministerial Committee to look into the matter with a view to 1. Review the trade union situation, 2. To make recommendations on the policy contained in page 56 of Sessional Paper No. 10. African Socialism and its Application to Planning in Kenya, which calls for “one central organisation for trade unions in the country”. 3. To protect the workers and advance the interests of the Nation as a whole. Ministerial Recommendations: The important recommendations were that:  The Kenya Federation of Labour and the Kenya African Congress be de-registered with immediate effect.  A new workers organisation be formed to be known as the “Central Organisation of Trade Unions (Kenya)” COTU (K).  The check-off system be compulsory for all trade unions. These recommendations and other which are not listed here were approved by the then President of Kenya. Since then, the membership of COTU (K) grew to about 400,000 workers in the late 1980s. The number then declined with implementation of the 47 Structural Adjustment Programmes and the effect of Globalization. However with further organization COTU (K) membership has since shot-up to thirty-one (31) affiliates with a membership of over 1.5 million. 2. ESTABLISHMENT AND REGISTRATION Central Organisation of Trade Unions was established in 1965. Prior to its registration, the Kenya Federation of Labour was the Apex Body of Trade Unions in Kenya. It is a registered organisation under the Trade Unions’ Act – Cap 233 of the laws of Kenya. COTU (K) – Current Organizational Structure 48 NDUSTRIAL RELATIONS DEPARTMENT The core functions of any trade unions has been recruitment of members and handling their grievances which is the mantle of the Industrial Relations department. The operations of this department are guided by the Trade Disputes Act Cap 234, the Industrial Relations Charter, existing labour laws and type International Labour organisation corrections. This department has handled trade disputes of employees and affiliates. There are four main types of trades disputes that are handled by this department namely:49  An individual dispute – This is dispute between an individual employee and his/her employer.  A collective dispute – This involves a group of workers or their representatives and one or more employers. Each and every claimant in this dispute must have the same kind of complaint.  A rights disputer – This involves the interpretation or application of an existing right as laid down in labour legislation, collective bargaining agreement, an individual labour contract or an existing practice.   An interests dispute – Involves a claim for future rights and this normally result from a deadlock in collective barging negotiations The department performs the following functions: Handles workers grievances of both the members of our affiliates and nonmembers. Most of their kind of disputes emanate from unfair termination of employment.  Handling on behalf of our affiliates disputes with employers as regards the collective bargaining agreement and its negotiation and implementation.  Assist affiliates in the preparation of their submission to the Industrial court.  Liaising with the other social partners namely the Federation of Kenya Employers (FKE) and the Ministry of Labour and Human Resource Development on issues related to trade disputes.  Offering advisory services to our afflicts 50 TOPIC8: THE MINISTRY OF LABOUR AND HUMAN RESOURCE DEVELOPMENT FUNCTIONS MINISTRY OF LABOUR (AS PER PRESIDENTIAL CIRCULAR NO.1/2005)  National Manpower Policy and Development.  Employment Policy.       Factory Inspection and Workers Health. Safety at Work. Industrial Relations. Vocational Training Youth Polytechnics. Promotion of self-employment in micro and small enterprises.  Directorate of Industrial Training.  Directorate of Applied Technology.  National Social Security Fund (NSSF). Core Functions and Structure The following are the core functions of the Ministry of Labour and Human Resource Development. 1. Promoting harmonious industrial relations in the country. 2. Ensuring compliance with national and international labour standards,laws, and codes of practice as well as review of labour standards and domestication of international standards. 3. Promotion of Occupational Safety and Health Services. 4. Human Resource Planning, Development and Employment. 5. Judicial Determination of Industrial Disputes and Registration of Collective Bargaining Agreements. 6. Development of the Micro and Small Enterprises. 7. Provision of Labour market information . Provision of Industrial training 51 Other key functions:  National Social Security  Promotion of Productivity Improvement In addition to the above core functions the Ministry is also responsible for the promotion of Productivity Improvement in all sectors of the economy. The newly established Productivity Improvement Center that is managed jointly with the FKE and COTU performs the activities under this function. Background The Ministry of Labour and Human Resource Development is one of the oldest government ministries having existed, as a department of the Ministry of Education, before independence. After independence it was made a full Ministry of Labour with mandates of labour administration issues and industrial skills development. In subsequent changes in the organization of Government a number of other functions have either been added or transferred to other ministries. The current organizational structure of Ministry of Labour and Human Resource Development was created in 1999 by merging the then Ministry of Labour and the Ministry of Manpower Development and Employment and the transfer of a number of functions from other Ministries to the enlarged Ministry. Between 1999 and 2000 a Ministerial Rationalization and Staff Rightsizing exercise for the Ministry was undertaken as part of the Government-wide Civil Service Reform Programme. In line with the Government thrust of reducing the size of government, the rationalization report recommended that the Ministry’s technical departments be grouped into two Directorates and all the support Divisions be under one department of Finance and Administration. These recommendations were based on the need to “re-align organizational processes and procedures so as to minimize areas of unnecessary overlapping, duplication of efforts, ambiguities and redundancies in operations.” In our view the grouping of the technical departments into the two directorates reflected the correct focus on the core issues that concern the Ministry of Labour and Human Resource Development, namely Labour Administration and Human Resource Development. However some of the recommendations that arose from the rationalization exercise have not yet been implemented fully. The last reorganization of Government (prior to the preparation of this 52 Plan) was undertaken in July 2003 and the details thereof were specified in the Presidential Circular No.3/2003. According to that Circular the Ministry of Labour and Human Resource Development is responsible for:  National Manpower Policy and Development  Employment policy  Factory Inspection and Workers Health Safety at Work  Industrial Relations, Vocational Training, Youth Polytechnics  Informal, Micro and Small Scale Enterprise Development  Directorate of Industrial Training  Directorate of Applied Technology  National Social Security Fund. Specific Mandates The following are Ministry’s specific mandates:  Promotion of sustainable industrial harmony between employers and employees.  Providing mechanisms for speedy and fair resolution of industrial disputes in both the public and private sectors.  Ensuring that all work places provide a healthy and safe working environment that encourages high levels of productivity.  Provision of facilities for skills development to match the requirements of the labour market.  Developing policies, guidelines, programmes and strategies for the planning, development and employment of the country’s labour force.  Facilitating the creation of employment opportunities.Ensuring the implementation of the relevant provisions in other international agreements such as the WTO General Agreement on Trade in Services (GATS), COMESA and EAC protocols that relate to labour issues.  Provision of labour market information  Trade testing and certification to meet specific industry requirements. 53 The mandates of the Ministry are intended to ensure that Kenya’s human resources are fully developed, utilized and fairly compensated in order to ensure higher productivity that will underpin our economy’s competitiveness. Goals and Objectives The following are the Ministry’s goals: 1. Efficient Administrative Services for Efficient Service Delivery 2. Timely provision of policy and planning services for effective decision making 3. Prudent Financial Management 4. Provision of quality accounting services 5. Prudent Procurement and Management of Stores 6. Prudent Management Human Resources in the Ministry 7. Safe workplace 8. Optimum utilization of labour force 9. Adequate skilled manpower for the economy 10. Development MSE sector in the country 11. Ensure adequate facilities for vocational skills development,trade testing and certification 12. Decent Work for All 13. Industrial peace and harmony Objectives The Ministry’s key objectives include: 1. To provide comprehensive up to date labour market information annually. To have well informed working population and support from stakeholders on occupational health and safety by end of the plan period 2. To establish an up-to date information system on occupational health and safety by 2006 54 3. Finalize review of laws and codes of practice relating occupational health and safety to address the current challenges 4. Establish skills development policy by 2006 5. Promote employment of Kenyans within the country and in other countries. Modernize and upgrade DIVT centers training facilities by 2005 6. Continuously improve competitiveness of MSE sector products to both local and external markets 7. To increase coverage of workplace inspections by 90% in 5 years 8. Clear the number of abandoned industrial court cases by the end of the Plan period. TOPIC 9: INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION. 55 The ILO came into existence on 19th April 1919 after the World War I. In 1946 when the United Nation Organization came into being ILO became the 1st specialised agency of the organization. The ILO is a tripartite body constituting of representative from government, employers and workers of member states. It is based in Geneva. Its primary duty is to set international labour standards on laws and practice. Each year they look at various issues affecting labour relation. They discuss and come up with labour standards in that particular area to be achieved by the member countries. The international labour standards are designed to protect the interests of employers, workers and governments in matters concerning labour relations. The ILO passes other supplementary instruments collect that support the implementation of the conventions. These recommendations only act as a guide for nation and not for ratification. Kenya became a member of ILO in 1964 immediately after attaining independence. By then Kenya indicated that it was going to be bound by ILO convention that had been previously ratified on its behalf by the British government. OBJECTIVES OF ILO 1. To achieve full employment and to raise standard of living. 2. To provide employment to workers in the occupation in which they have the satisfaction of giving the fullest measure of their skill and make their contribution to their common well being. 3. To provide facilities for the training and transfer of labour. 4. To formulate policies in regard to wages and earnings and other condition of work calculated to ensure a just share of fruit of progress to all and a minimum living wage to all employed. 5. To get effective recognition of the right of collective bargaining, co-operation of management and labour in continuous improvement of productivity and collaboration of workers and employers in social and economic measures. 6. To extend social security measures and to provide a basic income to all in need of such protection and comprehensive medical care. 7. To adequately protect the life and health of workers in all occupation. 56 8. To provide child welfare and maternity protection. 9. To provide adequate housing and recreational facilities. 10. To assure equality of education and vocational opportunity. The Structure of ILO The members of the ILO are all independent states who are members of the United Nation Organisation. The ILO consist of 3 principle organizations namely:(a) International Labour Office. The International Labour office is located in Geneva. The Director General is the Chief Executive appointed by the governing body for 10 years. He is assisted by 2 Deputy Directors and 6 Assistant Directors. One Director for internal institute for labour studies and one director for international centre of advanced technology and vocational training. (b) The Governing Body. This is a tripartite body consisting of 56 members of which 28 represents government, 14 employers, and 14 workers. The period of this body is 3 years. The main functions of the body include:(i) To coordinate the work of the organization. (ii) Draw up the Agenda of the International Labour Conference. (iii) Appoint Director General. (iv) To scrutinize the budget. (v) To follow-up the implementation of member states of the conventions and recommendation. (vii) To fix the dates, duration and agenda of the regional conferences. (viii) To seek opinion from the international board of justice on the direction of the ILO conference. 57 (c) The International Labour Conference. This is also a tripartite body consisting of two representatives of government of the member states and one representative for employers and one representative of workers from the member states, Their main functions include:(i) To formulate international labour standards (conventions). (ii) To fix the amount of contribution by each member state. (iii) To select once in three years members of the governing body. (iv) To elect its president (v) To ask the governing body to seek opinion from the international court of justice. (vii) To decide the budget prepared by the governing body. (viii) To appoint committees to deal with different matters during each session. (ix) To regulate its procedures. (x) To make amendment of the constitution (xi) To confirm the powers, functions and procedures of regional conference. ISSUES DISCUSSED IN THE ILO CONFERENCE. The annual general meeting discuss the following:(i) (ii) (iii) (iv) (v) Hours of work. Issues of unemployment. Maternity protection of women. Right work for women. Minimum age of admission into employment mainly because of issues of child labour. (vi) Right work for young person. (vii) Right of association e.g. through employers organization or workers organization (Trade Unions). (viii) Social security e.g. pension schemes, workmen’s’ compensation, etc. (ix) Occupational health and safety including other welfare of workers. (x) Weekly rest days.] (xi) Medical examination. 58 From the above we can see that conventions are instruments which guide employers, workers and government, the best practices of labour in order to increase productivity. Core Conventions Significant to the Kenyan Situation. ILO have many conventions when a state ratified the convention is bound to follow the rules set up by the convention which will influence labour laws and practice. Many countries may not ratify the convention due to:a) Lack of finance to implement. b) Some clauses may not be applicable in the country situation because e.g. cultures and traditions. c) Many conventions do not hold much significance because they relate to industries which are not important to the member state. d) Trade Union Movement in some countries are too weak to exert pressure to their government to accept the convention. The core convention which are of significance include:(i) Convention Number 87 of 1948. This convention is for freedom of association and protection of right to organizations it establish the right of all workers and employers to organize, form and join association of their choice without prior authorization and lay down a series of guarantees for the free functioning of organization without interference by the public authority. (ii) Convention Number 98 of 1949. This convention is on the right to organize and bargain collectively. It provides for the protection against anti-union, discrimination and for protection of workers. It also protest against employers act of interference and for measures to protect collective bargaining. (iii) Convention Number 100 of 1951. This convention is on equal remuneration for work of equal value. This convention calls for equal pay for men and women for work of equal value. (iv) Convention Number 111 of 1958. This convention is for discrimination of employment and occupation. 59 This convention calls for a national policy to eliminate discrimination in access to employment, training and working conditions on grounds of race, religion, political opinion, social origin and to promote equality of opportunity. Article 14 of the convention states that all parties shall aim at abolishing any discrimination on grounds of race, colour, sex, beliefs, tribal association or trade union affiliation including discrimination in respect of the following:(i) Admission to employment (ii) (iii) Condition of work, health and safety. Participation in collective bargaining and any negotiations. (iv) Wage or salary i.e equal pay for equal work. (v) Engagement / promotion Further the government is expected to safeguard the health and safety as well as welfare of working women and children. (v) Convention Number 29 of 1930 on Forced Labour. This convention requires the suppression of force or compulsory labour in all its form. Certain exemptions are permitted such as convicts in prison, labour which is properly supervised. Military service, emergencies such as fires, earthquake, etc. (vi) Convention Number 105 of 1957 on Abolition of Force Labour. This convention prohibit the use of any form of force or compulsory labour as a means of political coercions. It is against punishment of political or ideological views or participation in strike. (vii) Convention Number 138 of 1973 Minimum Age for Admission to Employment. This convention aims at abolishing child labour by stipulating the minimum age for admission for employment which shall not be less than the age of completion of compulsory schooling or basic education. (viii) Convention Number 180 on Worst form of Child Labour (1999). This is the latest convention as addition to fundamental convention which is calling for immediate and effective measures to secure the prohibition and elimination of the worst form of child labour as a matter or urgency. 60 RATIFICATION OF ILO CONVENTIONS. The following should be noted in the case of all ILO conventions:Conventions are designed to be ratified by the member state and hence creating binding obligations. Formal ratification of all convention must be communicated to the ILO Director General for registration. A convention is binding only to the members whose ratification has been registered. A convention comes into fore 12 months after the date on which the ratification of 2 members have been registered with the ILO Director General. A convention shall come into force for any member 12 months after the date on whci hits ratification was registered. When a convention is ratified and registered by the Director General it must be communicated to all member state who have ratified the conventions. Decision to Ratify any Convention. The final decision whether or not to ratify the convention or recommendation is reached by the elected representatives of the people in parliament i.e. after recommendation by the various competent authorities e.g. National Tripetite Labour Advisory Board which is the composition of representative of employers, trade unions and government. Normally the instrument will be submitted to competent authorities for evaluation and eventually for ratification. Ratification is voluntary i.e. it is a free decision of each country. It carries with it the legal obligation to apply the ratified convention through domestic law and to submit to supervision by the appropriate ILO bodies e.g. committee of experts on the application of standards or conference committee. Recommendations which are often the compliments to conventions are guidelines for national legislations and practice and they are not subject to ratifications. How Applicable are the ILO Conventions to Kenya. Kenya joined ILO in 1964 and she has since ratified. Some of the convention relating to work and has continued to apply the convention in all or in part. The conventions are included in the labour administration. 61 Other than the eight conventions there are other various conventions and recommendations that Kenya as a national has ratified and these have impacted in Kenya’s labour laws and industrial relation system. To what extent do the conventions and recommendations affect Kenya’s labour administration system. 1. The conventions set the standard and guidelines for international world of work national labour relations are developed from these therefore the convention act as watchdog. The ILO cannot sanction states for not implementation these conventions but it has instruments that can be used to enforce sanction such as:- 2. (i) probing with other member state any member country that violates the conventions. (ii) asking for yearly report to find out to what extent the convention has not been implemented. (iii) making adverse report against the violating member state. Conventions influence national labour standard by impacting on employee relations, Human Resource Development system including training and development has also impacted on labour practices, labour organizations, enforcement of labour and industrial laws, contracts of employment especially on issues like dismissal and termination, collective bargaining including grievance and dispute settlement, social security in terms of workmen compensation, workers welfare, health and safety provisions, provident pension schemes, gratuity arrangements, employability of old age, issues of employment such as under employment, full employment and generally labour market the convention has also influenced issues such as overtime, productivity, flexibility of labour, mobility of labour, sexual division of labour especially accessibility of labour. It has also impacted on issues such as maternity leave, annual leave, compulsory leave, sick lead and all issues to do with terms and conditions of work. Constraints with regard to ratification of ILO Standards. 1. Premature ratification of ILO standard i.e. ratification before ensuring harmony between the countries labour laws with relevant provisions of the convention to be ratified. 2. Problem of acute shortage of staff in the ministry with the requisite knowledge on the standards. 62 3. Recent introduction of “social clause” in international trade agreement in which the trading partners are expected to comply with ILO standard and any alleged violation may result to sanctions. 4. Difficulties caused by economic conditions which may lead to failure to implement such convention. 5. Several conventions are based on different cultures and traditions of difference countries hence may be difficult to implement in other countries. 63 TOPIC10: THE LABOUR LEGISLATION IN KENYA. 1. The Labour Institution Act 207. 2. The Labour Relation Act 207. Issues of Termination Issues of Wage Deductions. The Labour Institution Act 2007 The Act was enacted to provide for the establishment of labour institutions and to provide for their functions, powers and duties and other connected matters. The following institutions are established under the Act:1. 2. 3. 4. 5. The National Labour Board. The Industrial Court Committee of Inquiry. Labour Administration and Inspection Wages Councils. The National Labour Board This board composed of the following:a) b) c) d) e) f) g) h) i) j) k) l) A Chair Person General Secretary of the Federation of Employers. Chief Executive of Federation of Employers 2 Representatives of Federation of Employers. 2 Representatives of Federation of TU Not more than 2 other independent members Director of Employment Director of Micro & Small-enterprises development Director of Occupational Safety and Health Services Director of Industrial Training Registrar of Industrial Court Registrar of Trade Unions. The functions of the board is to advice the minister on the following:a) b) c) d) e) f) All matters concerning employment and labour. Legislation affecting employment and labour. Any matter relating to labour relations and trade unions. Any issues arising from the ILO and the ILO Conventions. Codes of good practice. Any issues raised by an international or regional association of state of which Kenya is a members. 64 g) h) i) j) k) l) m) n) o) Systems of labour inspection and the administration of labour laws. Any aspect of public employment services, vocational training and employment of persons with disabilities. The general state of employment training and man power development in the country. productivity measurement and improvement. The appointment of wage councils. The appointment of members of Industrial Court. The setting of compensation benefits in accordance with the provisions of the laws relating to work injury benefits. The registration, suspension and deregistration of trade unions and employers organizations. Any other matter related to any of the boards functions. The board shall in consultation with the minister from the following committees:a) b) c) d) e) Work Permits Committee….

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