TRADE DISPUTES

Presented by:

WHAT IS THE MEANING OF A TRADE DISPUTE?

• Any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person (whether or not they are the employee of the employer in question.)

WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)?

This is the collective term for a range of processes and techniques, alternative to the traditional judicial process, which may be used to resolve conflict in the workplace.

1. NEGOTIATION• Any form of direct/indirect communication whereby

parties with opposing interests discuss any form of joint action which they may take to manage and ultimately resolve the dispute between them.

• Pre-eminent mode of dispute resolution

NEGOTIATION IS…• Voluntary• Bilateral/Multilateral• Non-adjudicative• Informal• Confidential• Flexible

• Advantages:FlexibleVoluntaryNo need for neutral third partyWin-win approach could guarantee a successful

outcome for both sides.Only bind parties to the negotiationMay preserve/enhance the parties’ relationshipLess expensive

• Disadvantages:Unequal power may place weaker parties at a

disadvantageNo neutral third party may be a hindranceNo-one is compelled to continue negotiating Some issues are not suited to negotiationNo guarantee as to good faith/trustworthinessMay be used as a stalling tactic

2&3. CONCILIATION AND MEDIATION

• Conciliation and mediation are procedures whereby a third party provides assistance to the parties in the course of negotiations, or when negotiations have reached an impasse, with a view to helping them to reach an agreement. While in many countries these terms are interchangeable, in some countries a distinction is made between them according to the degree of initiative taken by the third party.

MEDIATION IS…• Voluntary• Non-coercive• Assisted negotiation• Informal• Confidential

• AdvantagesWhere there is a desire to maintain a good ongoing

relationshipNo strict procedural rulesResolution for cases with multiple issuesPrivateFasterNeutral third party keeps things in checkParties bear costs equally

• Disadvantages:Power imbalance between parties and/or third partyDoes not produce legal precedentsNot binding

4. ARBITRATION• Arbitration is a procedure whereby a third party

(whether an individual arbitrator, a board of arbitrators or an arbitration court), not acting as a court of law, is empowered to take a decision which disposes of the dispute.

•  Adversarial process similar to litigation

• Advantages:Parties can choose the arbitrator(s)Can be selected on the basis of relevant experienceCan be formal/informal depending on the intention of

the partiesPrivateCosts can be containedArbitral awards are bindingSpeed

• Disadvantages:• Inexperienced arbitrators may affect the outcome• No binding legal precedent• Recourse against an award is limited• Parties may cause the process to be a long and costly

one

ARBITRATION IS…• Voluntary• Controlled • Private• Informal• Adjudicative• Formal/informal• Confidential • Adversarial• Flexible

5. MEDARB• This process begins as the mediation of a dispute by a

neutral third party. But, if the mediator does not successfully, resolve the dispute, an arbitrator, who may or may not be the person who acted as a mediator in the dispute, makes a decision. In most cases, the decision is binding on the parties.

• It offers the promise that the dispute will be resolved, even if the parties are unable to reach a settlement themselves.

6. ARBMED• Two steps:1. A neutral, third-party Arbitrator, listens to evidence,

testimonies, opening statements, presentations, cross-examination of witnesses, and closing statements from all parties. Upon review of evidence and testimony, the Arbitrator renders a non-binding advisory decision.

2. A neutral, third-party Mediator facilitates communication between the parties to assist reconciliation and settlement. The Mediator may suggest ways of resolving the dispute but may not impose his or her own judgment on the issues for that of the parties.

WHAT IS THE CONSTITUTIONAL FRAMEWORK AND STATUTORY FRAMEWORK FOR DISPUTE RESOLUTION UNDER PART VIII OF THE LABOUR RELATIONS ACT?

CONSTITUTIONAL FRAMEWORK

• Article 159 of the Constitution provides that alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute-resolution mechanisms, shall be promoted.

STEP 1: REPORTING THE TRADE DISPUTE TO THE MINISTER.

Under section 62 (1) LRA 2007, a Trade dispute can be reported to the minister in the prescribed form and manner ;• (a)  by or on behalf of a trade union, employer or

employers' organization that is a party to the dispute; and • (b)  by the authorized representative of an employer,

employers' organization or trade union on whose behalf the trade dispute is reported.

ACCORDING TO S.62(2) A PERSON REPORTING A TRADE DISPUTE MUST;

1. serve a copy by hand or registered post to each party to the dispute and any other person having a direct interest in the dispute; and

2. Satisfy the Minister that a copy has been served to each party to the dispute by hand or by registered post.

TO BE MORE SPECIFIC….• Section 62 (3) A trade dispute concerning the dismissal or

termination of an employee shall be reported to the Minister within―

a) ninety days of the dismissal; or b) any longer period that the Minister, on good cause,

permits. • Section 62 (4) If the issue in dispute concerns the

redundancy of one or more employees, a trade union may report a trade dispute to the Minister at any stage after the employer has given notice of its intention to terminate the employment of any employee on grounds of redundancy.

• Section 62 (5) The reporting of a trade dispute by a trade union under subsection (4) does not prevent an employer from declaring employees redundant on the expiry of notice of intention to declare the employees redundant.

THEN WHAT?... (SECTION 63 AND 64)

• Every party to a trade dispute shall file a replying statement in the prescribed form and manner (as seen above) with the Minister within fourteen days of receiving a copy of the report of the dispute.

• The failure by a party to file a replying statement does not affect the validity of a referral.

• In addition any party with an interest in any dispute may file a statement with the Minister within fourteen days of receiving a copy of the referral.

STEP 2: MINISTER APPOINTS CONCILIATORS (SECTION 65)

• Within twenty-one days of a trade dispute being reported to the Minister as specified under section 62, the Minister shall appoint a conciliator to attempt to resolve the trade dispute unless;

(a)  the conciliation procedures in an applicable collective agreement binding on the parties to the dispute have not been exhausted; or (b)  a law or collective agreement binding upon the parties prohibits negotiation on the issue in dispute.

IF NOT?...• (2) the minister may require any party to a trade dispute

to supply further information for the purpose of deciding whether to appoint a conciliator.

• (3)If the Minister refuses to appoint a conciliator as specified in subsection (1), the Minister shall supply the parties to the dispute with written reasons for that decision.

• (4)Where a party is aggrieved by a Minister's decision under this section, that party may refer the matter to the Industrial Court under a certificate of urgency.

• (5)The Minister may consult the Board on any trade dispute, which has been reported for conciliation.

CONCILIATOR: (SECTION 66)• A person appointed to conciliate a dispute under this Part

shall be ; (a)  a public officer; (b)  any other person drawn from a panel of conciliators appointed by the Minister after consulting the Board; or (c)  a conciliator from the Conciliation and Mediation Commission. • S.66 (2) If the Minister appoints a conciliation committee to

conciliate a trade dispute, the Minister shall appoint;(a)  a chairperson in accordance with subsection (1); (b)  an even number of persons drawn equally from lists submitted to the Minister by the employer and trade union representatives respectively on the Board; and (c)  the secretary of the conciliation committee.

SECTION 70 • If the Minister is satisfied that it is in the public interest to

prevent a dispute from arising or to resolve a dispute, the Minister may appoint a conciliator or conciliation committee to attempt to present a dispute or resolve the dispute. The Minister may do so:

(a) in respect of a dispute that ; (i) has not been referred to conciliation; or (ii) is unresolved after conciliation. (b) irrespective of whether; (i) a trade union is a party to the dispute or not; or (ii)the dispute is in the public or private sector.

STEP 3: WHAT POWER DOES THE CONCILIATOR HAVE TO RESOLVE

THE DISPUTE? (SECTION 67)• The conciliator or conciliation committee appointed shall

attempt to resolve the trade dispute within;(a)  thirty days of the appointment; or (b)  any extended period agreed to by parties to the trade dispute. • For the purposes of resolving any trade dispute, the conciliator

or conciliation committee may; (a)  mediate between the parties; (b)  conduct a fact-finding exercise; and (c)  make recommendations or proposals to the parties for settling the dispute.

(d) summon any person to attend a conciliation; (e)  summon any person who is in possession or control of any information, book, document or object relevant to resolving the trade dispute to appear at the conciliation; (f) question any person present at a conciliation. • (4) The Minister shall pay the prescribed witness

fee to any person who appears before a conciliator or conciliation committee in response to a summons issued.• (5) No person shall without good cause fail to;(a)  comply with a summons issued; (b)  produce any book, document or item specified in a summons issued; or (c)  answer any relevant question asked by a conciliator or conciliation commission.

STEP 4: DISPUTE RESOLVED?(SECTION 68)

• If a trade dispute is settled in conciliation the terms of the agreement shall be;

(a) recorded in writing; and (b) signed by the parties and the conciliator. • A signed copy of the agreement shall be lodged with the

Minister as soon as it is practicable.

BUT… (SECTION 69)• A trade dispute is deemed to be unresolved after

conciliation if the;• (a)  conciliator issues a certificate that the dispute has not

been resolved by conciliation; or • (b)  thirty day period from the appointment of the

conciliator, or any longer period agreed to by the parties, expires.

ALTERNATIVELY! (SECTION 71 &72)

• The minister may appoint a committee of inquiry to investigate any trade dispute and report to the Minister.

• The Minister may delegate his powers under this Part to the Commissioner for Labour or the Chief Industrial Relations Officer.

THE ROLE OF THE INDUSTRIAL COURT IN THE RESOLUTION OF

TRADE DISPUTES.

DOES IT HAVE A ROLE?...YES!• Section 73 1) If a trade dispute is not resolved after conciliation, a

party to the dispute may refer it to the Industrial Court in accordance with the rules of the Industrial Court.

S73 CONTINUED…• 2) Notwithstanding the provisions of subsection (1), if

a trade dispute― • (a) is one in respect of which a party may call a

protected strike or lock-out, the dispute may only be referred to the Industrial Court by an aggrieved party that has made a demand in respect of an employment matter or the recognition of a trade union which has not been acceded to by the other party to the dispute; or

• (b) is in an essential service, the Minister may, in addition, refer the dispute to the Industrial Court

REFFERED BY WHO?..S73

3) A trade dispute may only be referred to the Industrial Court by the authorised representative of an employer, group of employers, employers' organisation or trade unions.

URGENT REFERRALS..S74

• S74 A trade union may refer a dispute to the Industrial Court as a matter of urgency if the dispute concerns―

• (a) the recognition of a trade union in accordance with section 62; or

• (b) a redundancy where – • (i) the trade union has already referred the dispute for

conciliation under section 62(4); or• (ii) the employer has retrenched employees without giving

notice; or (c) employers and employees engaged in an essential service.

WHICH ACT DOES NOT APPLY?

• Section 75. ..The Arbitration Act shall not apply to any proceedings before the Industrial Court (No. 4 of 1995 )

POWERS OF THE INDUSTRIAL COURTS

• s77(1) A party to a dispute that has received notice of a strike or lock-out may apply to the Industrial Court to prohibit the strike or lockout as a matter of urgency if –• (a) the strike or lock-out is prohibited under this Part; or• (b) the party that issued the notice has failed to

participate in conciliation in good faith with a view to resolving the dispute.

• (2) A party that failed to attend any conciliation meeting may not seek relief under subsection (1)(b).

GRANTING RELIEF,…S77• (3) The Industrial Court may, in granting relief in

respect of any application made under subsection (1)(b), direct the parties to engage in further conciliation in good faith with a view to resolving the dispute.

Q.3• Discuss the difference between a strike and a lockout.• Can a strike be lawful?

WHAT IS A STRIKE?• A strike is carried out by employees of a company in

the midst of an employment-related disagreement with their employer

• Employees refuse to work• Normally a combined effort by a trade union• To exert pressure on employer to meet certain

demands

• S.2 Labour Relations Act 2007 (LRA) defines ‘strike’ as:• “…the cessation of work by employees acting in

combination…for the purpose of compelling their employer…to accede to any demand in respect of a trade dispute.”

WHAT IS A LOCKOUT?• The converse of a strike• Temporary denial of employment• Move by management to gain better bargaining

position in negotiations• May occur on the expiration of a collective bargaining

agreement

• S.2 LRA defines a ‘lockout’ as:• “…the closing of a place of employment, …or the

refusal by an employer to continue to employ any number of employees…• (a) for the purpose of compelling employees…to accept

any demand…of a trade dispute; and• (b) not for the purpose of finally terminating

employment.”

CAN A STRIKE BE LAWFUL?

• Strikes have a negative stigma attached to them, especially in this country

• But they can be both lawful or prohibited, as set out in the Constitution and the LRA

LAWFUL STRIKES• Art 37 of Constitution allows for peaceful and unarmed

assembly, demonstration and picketing• Art 41(1) and (2) provides that every person has the

right to;• Fair labour practices• Fair remuneration• Reasonable working conditions• Join a trade union• Go on strike

LAWFUL STRIKES• Two types:

• Protected strikes and lockouts• Strikes and lockouts in compliance with the LRA

LAWFUL STRIKES• Strikes are lawful as long as they meet the

requirements in s.76 and s.79(1) LRA• S.76 sets out conditions for protected strikes• It provides that a person may participate if

• (a) the trade dispute concerns t&c’s of employment• (b) the dispute remains unresolved after conciliation• (c) and, a seven day notice has been given

• S.79(1) – “a ‘protected strike’ means a strike that complies with the provisions of this Part and ‘protected lock-out’ means a lock-out that complies with the provisions of this Part

PROTECTED STRIKES• Ss.79(2) and (4) further provide protection for

employees taking part in a lawful strike• S.79(2) - “A person does not commit a breach of

contract or a tort by taking part in…a protected strike…”• Thus, it would amount to unfair dismissal if the employer

dismissed the employee for participation in a protected strike – s.79(3)

• No civil proceedings instituted against any person participating in a protected strike or lock-out – s.79(4)

• However, employer not obliged to remunerate for days services were not rendered – s.79(6)

UNLAWFUL STRIKES• A strike will be unlawful if it falls under the prohibitions

set out in the LRA – s.78• ..Or if they are not in compliance with the LRA, as set

out in s.80

• S.78(1) No person shall take part in a strike or lock-out…if-• (a)any law, court award or a collective agreement or

recognition agreement binding on that person prohibits a strike or lock-out in respect of the issue in dispute;

• (b) the subject matter of the strike or lock-out is regulated by a collective agreement or recognition agreement binding on the parties to the dispute;

• (c) the parties have agreed to refer the trade dispute to the Industrial Court or to arbitration;

• (d) in the case of a dispute concerning the recognition of a trade union, the trade union has referred the matter to the Industrial Court

• (e) trade dispute was not referred for conciliation in terms of – (i) this Act; or (ii) a collective agreement providing for conciliation

• (f) the employer and employees are engaged in an essential service;

• (g) the strike or lock-out is not in furtherance of a trade dispute; or

• (h) the strike or lock-out constitutes a sympathetic strike or lock-out.

• S.78(2)(a) identifies a sympathetic strike as where an employee participates in a strike in support of a trade dispute to which his employer is neither party, nor represented by an employer’s organisation party to the dispute

• S.78(2)(b) identifies a sympathetic lock-out as where an employer locks-out an employee in support of a trade dispute to which he is neither party, nor represented by an employer’s organisation party to the dispute

• S.80(1) An employee who takes part in, calls, instigates or incites others to take part in a strike that is not in compliance with this Act is deemed to have breached the employee’s contract and -• (a) is liable to disciplinary action; and• (b) is not entitled to any payment or any other benefit

under the Employment Act during the period the employee participated in the strike

• (2) A person who refuses to take part or to continue to take part in any strike or lock-out that is not in compliance with this Act may not be -• (a) expelled from any trade union, employers

organisation or other body or deprived of any right or benefit as a result of that refusal; or

• (b) placed under any disability or disadvantaged, compared to other members or the trade union, employers’ organisation or other body as a result of that refusal.

• (3) Any issue concerning whether any strike or lock-out or threatened strike or lock-out complies with the provisions of this Act may be referred to the Industrial Court

• S.81(1) gives meaning to ‘essential services’ as “a service the interruption of which would probably endanger the life of a person or health of the population….”

ARE THE TEACHERS, NURSES AND ALL PARTIES WHO WE HAVE SEEN GOING ON STRIKE IN KENYA'S RECENT PAST, WITHIN THEIR RIGHTS TO GO ON STRIKE?

Definition of strike

LABOUR RELATIONS ACT (LRA) s.2

“strike” means the cessation of work by employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work for the purpose of compelling their employer or an employers’ organisation of which their employer is a member to accede to any demand in respect of a trade dispute;

CONSTITUTION• Article 159 of the Constitution provides that

alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute-resolution mechanisms, shall be promoted.

• ADR before strike…

YES… CONSTITUTION• Article 41 (2): Every worker has the right:(d): to go strike• Art 33 (1): Freedom of expressionEvery person has the right to freedom of expression, which includes—(a) freedom to seek, receive or impart information or ideas;(b) freedom of artistic creativity; and(c) academic freedom and freedom of scientific research.

YES… CONSTITUTION

• Article 36(1) also applies. It states, “Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind”

BUT…REQUIREMENTS OF A LAWFUL STRIKE

LABOUR RELATIONS ACT gives the right to strike with conditions. S.76 -Protected strikes and lock-outs• A person may participate in a strike or lock-out if—• (a) the trade dispute that forms the subject of the strike

or lock-out concerns terms and conditions of employment or the recognition of a trade union;

• (b) the trade dispute is unresolved after conciliation—• (i) under this Act; or• (ii) as specified in a registered collective agreement that

provides for the private conciliation of disputes; and

LAWFUL STRIKES…• (c) seven days written notice of the strike or lock-out

has been given to the other parties and to the Minister by the authorised representative of—

• (i) the trade union, in the case of a strike;• (ii) the employer, group of employers of employers’

organisation, in the case of a lock-out.

EXAMPLE• TSC v KNUT & ANOTHER [2012] eKLR  • It is clear from the text of the notices that they do not

comply with the provisions of section 76 (b) and (c) and section 78 (1) (e) of the Labour Relations Act. The parties did not go for conciliation either as provided in section 62 of the Labour Relations Act or in their own internal machinery under the recognition agreements. Both notices are therefore not in compliance with the law as there were no conciliations that had failed to warrant the issuance of the strike notices. The strikes are therefore not protected under section 79 of the Labour Relations Act.

BRIEF SUMMARY OF WHEN A STRIKE IS WITHIN YOUR RIGHTS

• A strike is lawful when it is in accordance with s.76 LRA: • (a) the trade dispute concerns t&c’s of employment • (b) the dispute remains unresolved after conciliation • (c) and, a seven day notice has been given •   • Benefits… • Protection under s.79 LRA which include: • Protection from liability of breach of contract or tort s.79 (2) • Protection from unfair dismissal s. 79 (3) • Protection from civil proceedings s.79 (4)

RIGHT TO STRIKEA fundamental right?

RIGHT TO STRIKE?• S. 2 of the Labour Relations Act 2007 defines the right

to strike, and this right has been enshrined and protected herein as well as within the Constitution, among other sources of this right.

• This right has also been recognized as fundamental in nature by Kenyan courts:• Kenya Ferry Services Limited v Dock Workers Union

[Ferry Branch] [2015] eKLR

THE CONSTITUTION OF KENYA 2010

• Articles 36(1) & 37 protect the right to freedom of association and freedom of assembly.

• The right to freedom of association has long been understood as a collective right, and is a bundle of rights that includes the right to strike, among others.

• The rationale to this is that, without the attendant derivative rights, the right to association in the industrial relations context would be wholly meaningless.

CONSTITUTION CONT’D• The right to strike has also been enshrined by the

constitution under the Bill of Rights, Chapter 4.• Article 41(1)states that every person has the right to

fair labour practices, and further provides that (2) (d) every worker has the right to go on strike.

• Article 20 on the application of the Bill of Rights emphasizes that they shall apply to all laws (art. 20(1)) and that every person shall enjoy these rights to the greatest extent (art. 20 (2))

LABOUR RELATIONS ACT 2007

• The freedom of association is protected under s. 4 of the LRA 2007.

• Similarly, this qualifies a collective labour right, comprising the right to engage in collective bargaining as well as the right to strike.

LRA 2007 CONT’D• S. 4(3) • “Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation to:

• (a) Participate in its lawful activities”

LRA 2007 CONT’D• The Act further expressly provides for procedures and

protection of strikes from s.76 – 81 • S. 76 provides for protected strikes, and what amounts

to them• S. 78 sets out what kind of strikes are prohibited by law• S.79 & 80 provides protections for employees

participating in a strike as well as consequences of non-compliance.

• S.81 explains the rights to strike in regard to “essential services”

INTERNATIONAL INSTRUMENTS

• ICESCR Art 8(1)(d) provides that State parties shall undertake to ensure the right to strike, among other rights, provided that it is exercised in conformity with the laws of the particular country.

• ILO convention 98 on the Right to Organize and Collective Bargaining Convention does not explicitly mention the right to strike, though this right has been recognized internationally as a fundamental right of workers and as an intrinsic corollary to the right to organize.

INT’L INSTRUMENTS CONT’D

• Adopted in 1998, the ILO Declaration on Fundamental Principles and Rights at Work is an expression of commitment by governments, employers' and workers' organizations to uphold basic human values - values that are vital to our social and economic lives – and includes Convention 98 & 87, which Kenya has not yet ratified.

LIMITATIONS TO THIS RIGHT?

• However Art 24(1) allows for these rights to be limited to an extent that is reasonable and justifiable.

• Similarly, Article 24(5) allows for limitation of certain rights with regard to KDF and NPS.