The Industrial Court is probably the most important feature of labour relations in Kenya. The Industrial Court was established under the Trade Disputes Act (Cap 234) of Laws of Kenya. Until January, 1989, the Court had only one judge, assisted by members of the Court, however another position for the second judge was created so as to ease the workload of the court.
The main objective was and still is the settlement of trade disputes which are referred to it by either parties (employer and employees) or the Minister for Labour when all other procedures have failed. The Court is empowered to make award (s) to the aggrieved party of parties. The award is final and there is no provision for appeal; the decisions are binding.
When making decisions, the Court takes into consideration the national economic conditions, the financial position of the employers and the existing collective bargaining agreement.
Presentation of a case to the Court involves the employer represented by the FKE, the employee(s) represented by a union and the Industrial Court Judge presiding and assisted by members of the Court. The procedures are different from those found in the Courts of Law, although order must be maintained. Some of the matters settled through the Court are wrongful dismissal which leads to reinstatement (not all the time), salary/wage disputes, redundancy and any other disputes unresolved by voluntary negotiating machinery so long as they are within the existing CBA. In this respect, the Industrial Court acts as a bridge between the employer and employees in settling disputes and ensuring that industrial peace prevails in the county.
Tripartite Committee – means a committee consisting of a representative of the Minister, who shall be the chairman, and two other members appointed by the Minister, one from a panel of persons nominated by or on behalf of organizations of employers, and the other from a panel of persons nominated by or on behalf of organizations of employees.
Establishment of Industrial Court
The first industrial court was established in June 1964 by virtue of Trade Disputes Act of 1964 was later repeated on June 8th 1965. Section 14 of Trade Disputes Act gives powers to the President to establish an Industrial Court: Today we have two industrial courts in Kenya:
The first court was filled with disputes which was making them to take long. This called for an establishment of a second court.
Functions of I.C.
- The I.C. adjudicates in Trade Disputes which have complex questions and issues of economic social & political nature.
- Trade dispute is a dispute or a difference between employers and employees, employees & employees.
- The dispute must be connected with employment or no employment.
- It may also be concerned with conditions of employment.
The court consists of 2 judges of the High court appointed by the President of the Republic of Kenya for a term of not less than 5 yrs.
The qualifications of the persons appointed are the same as those of High Court Judges and has also been an advocate of a high court for not less than 7 years.
- There are 8 members of IC appointed by the Minister of Labour after consultation with FKE and COTU.
- Appointments is for a term of not less than 3 years.
- One of the members is the Deputy appointed to the Judge by the Minister for Labour
- Where expedient (useful) the Judge may appoint two accessors one representing the employers and the other representing employees.
- Where members are unable to agree as to the award or decision in any matter, the matter is decided by the Judge of the Court acting with full powers of the Umpire.
- The award is final and there is no provision for appeal – the decision is binding.
- When making decisions, the court takes into consideration the national economic conditions, the financial position of the employees and the existing collective bargaining agreements
- Presentation of the case to the court involves the employer represented by the FKE, the employees represented by a union and the industrial court judge presiding and assisted by the other members of a court.
- The judges and other members are eligible to re-appointment.
- The appointments are notified in Kenya Gazette which also states terms for which such appointments are made
- The IC is not part of Kenya Judiciary Court. It is a special court created under the T.D Act and is entirely from the vote of the minister for labour
- The decisions taken by the industrial court are not necessarily based on legal arguments and technicalities alone. They go beyond the legal rights of the parties and stretch deeply into the spheres of economic, social human relations and political necessities which keep changing.
- The success and the ad justification of the courts lies in the fact that it is not too regulastic in awards of decisions.
- Although the court is financed by the Ministry of labour it is very independent hence is under no influence whatsoever either of the Ministers for labour or any other development except to the extent that the court has to take into consideration wages guidelines issued by the Minister for Finance.
- The Judges are of the same status as High Court Judges.
Industrial Court Procedures
- Industrial court procedures are made by Chief of Justice of Kenya for the purposes of regulating the procedures of Industrial Court.
- The court may regulate its own procedures if it thinks fit on other matters which may not be covered by rules.
- One does not have to be a lawyer to be submitted in this court ie you must be accredited by your employer or Trade Unions.
The Industrial court operates more or less like any other court with all the formalities. But it has its own rules which may be stipulated in Legal Notice No. 186 of 1965. However, it should be noted that it has deliberately left out the swearing on oath practice in order to create a relatively relaxed atmosphere in the court room.
The disputes referred to the Industrial court must be either through voluntary signing of Form A by the parties to the dispute or by the Ministers order under section 8 of the Trade Disputes Act.
The court cannot however register any case unless there is a certificate from the labour commissioner under Form `G’ and Form `H’ signed by the Minister to the effect that the dispute had been reported to the Minister and that the voluntary settlement machinery had been exhausted.
The rules also provide for the parties to make written submissions.
The court also has powers to sermon witness to appear before it and give evidence on both or to furnish in writing such particulars as it may require and produce any relevant documents.
At its discretion the court may admit evidence of affidavit (written statement). The rules also allow lay down procedures where is a party wishes to appeal to the IC or against a Minister’s decision.
There are rules also covering the interpretation of applications and the rectification of the clerical mistakes including errors of omissions.
The proceedings to the court are governed by the rules of the court and in conclusion, the court would give its judgement by way of awards to either of the parties.
In cases of dismissal of an employee, the court can award reinstatement or compensation for wrongful loss of employment to the extent of maximum of 12 months wages. The court awards are final and cannot be challenged in any other court. There is no appeal failing to comply with court order regarding reinstatement is an offence and subject to a fine of 10,000/= for every month one fails to implement the order.
Finally, the industrial court has the responsibility to consider and register all the collective agreement entered into by the unions and employers and similarly, the objective is to ensure that the wages agreed must be in line with the wage guidelines.
Any collective agreement which has not been registered with the court is illegal and its implementation is an offence and subject to a fine not exceeding Kshs1,000/=
Pre-Industrial Court Procedures
- Parties are required first to result to their own voluntary laid down machinery for solving disputes.
- In all recognition agreement as in disputes from collective agreement and an elaborate procedure be specified to deal with collective claims and grievance procedures for individual complaints.
- The highest forum at the parties own level is usually the central negotiations council or the Joint Industrial council.
- If a deadlock is recorded at this level, then either party is free to report the existence of a trade dispute to the Minister for labour.
- In order to forestall any industrial action either party may report an existing or apprehended trade disputes to the Minister for Labour. This is more so especially on essential services such as the Docks, Banks, Fire & Ambulance services and teaching.
- These services are too essential and that is why the Minister is too keen to stop strikes in these areas.
Why workers prefer industrial court as opposed to other courts?
- Consideration taken into account by the industrial court are much wicker than mere legal arguments.
- The court puts into consideration aspects of industrial relation practices.
- The court is not too legalistic although legal arguments are also given weight and considerations.
- The court does not allow legal technicalities to defeat end of Justice.
- Parties do not have to pay any court costs or litigation fee.
- The intention of the court is that no impediments should be placed in the way of parties in bringing their cases to the industrial court.
- Costs would be an obstacle if introduced and there being no court fees, hence the issue of paying cost to parties when one has lost does not arise.
- The IC resolve is final and legally binding and any violation against sanctions of the IC is incriminating.
- The IC considers the bounds of fairness and justice by considering the rights of both partners involved in a dispute.
- The award compensation enhances good relations.
Enforcement of awards or court decisions
- In disputes over collective agreement the award of the court becomes effective from the date it is made. If an employer fails to implement (comply with) an industrial court award, workers action will not be declared unlawful by Minister.
- For every time you fail to implement courts decision there is a fine of 10,000/= per month or part of the month.
- Once the disputes has been accepted by court, parties appear before the Judge for the mention of the dispute.
- The first appearance is just a mention, then they are given time to put their submissions in support of a case.
- Claimants who are usually Trade Unions are given the final chance then the respondents usually management provide answers.
- When the court makes awards on salaries it ensures that the rewards do not militate against creation of employment.
- The court therefore has a very difficult task that calls for people of great integrity and high moral standards. Thus magistrates who are likely to be bribed and make the poor suffer are not required.
- The court ensures that workers get a share of their sweat by improving their standard of living, while shareholders expect to earn reasonable return either on their capital. Therefore the court has to balance between employees and the shareholders.
- The IC also puts into consideration depreciation of machinery and even replacement of machines, expansion of enterprise and creation of new jobs. Hence the court’s decisions have to be fair and balanced.
The parties are usually required to comply with the following provisions:
- Each party (within 7 days) sends a memorandum to court (that is after mention)
- In the case of workers or trade unions it sets out: the nature and full particulars of each item of the claim involved; the classes of workers involved in the dispute (s); such submissions as the claimant party may wish to make in support of its claim.
- In the case of respondent usually management they will: send such reply as they may wish to give in the item of the claim raised by the claimants memorandum; an admission of such submission set out in the claimants parties memorandum as the respondents admit and denial of any such submission as the respondent party does not admit; any submissions which the respondent parties may wish to make in support of its reply i.e. quote authorities which make you take your stand.
- Parties are required to submit the names of witnesses they wish to call during the hearing.
The hearing date is also fixed at the first mention of the dispute.
- Parties are required to table all documents which they are going to align on with written submission (usually in the appendix)
- The time for parties’ submission is usually 4 weeks after mention.
- Written submissions are delivered through court officials.
The parties may apply to the court for permission to extend the time for them to give their submissions.
- On the hearing date of the dispute the claimants start the hearing by making their opening submissions both written and verbal.
- This is followed by the respondents who again present their opening submissions written and verbal
- Parties emphasize on their strong points in their cases and are expected to highlight and attack the weak points in each others submission
- During the opening submissions and final submissions and infact at all times, parties should be prepared to answer fully any questions directed to them by the judge.
- The evidence of the witness is given on oath or affirmation
- The party calling the witness leads the evidence and the other party then cross examines the witness with a view of testing his credibility
- After cross examination, the party calling the witness may re-examine the witness to eliminate any confusion that may have been caused during cross examination
- During re-examination, the party is not allowed to introduce any new point to previously brought up by witness
- The final submissions are made by parties after the evidence has been given by witnesses
- Claimants also sum up their cases then followed by respondents. After the hearing the count reserves its judgment and the award of the court is announced in due course on notice generally within four weeks after the hearing has been concluded.
Summary of the role of IC in industrial relations
- It accepts the collective agreements for registration for it to be legally recognized and implemented
- It determines and verifies the desirability and legality of collective agreements before they’re implemented. This is done through amendments and further negotiating between the concerned parties
- It plays a big role in the settlement of trade disputes and matters relating thereto
- Whereupon there an award to be made after the settlements of a trade dispute this is in domain of the industrial court
- When there’s need the industrial court can also investigate matters related to trade disputes with the purpose of gathering relevant evidence.