Trade Disputes Act, Cap 234
(Repealed by Labour Relations Act, No 4 of 2007)
LAWS OF KENYA
THE TRADE DISPUTES ACT
CAP. 234
Published by the National Council for Law Reporting
With the Authority of the Attorney-General
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Trade Disputes Act, Cap 234
TRADE DISPUTES ACT
CHAPTER 234
ARRANGEMENT OF SECTIONS
PART I – PRELIMINARY
Section
1-Short title
2-Interpretation
3-Persons to whom Act does not apply
PART II-REPORTING, CONCILIATION AND INVESTIGATION OF DISPUTES
4-Reporting of trade disputes
5-Consideration and action by the Minister
6-Methods of conciliation
7-Investigation of matters related to trade disputes
8-Reference of trade dispute by Minister to Industrial Court
9-Agreements to be lodged with Minister
PART III-REGISTRATION OF COLLECTIVE AGREEMENTS
10-Interpretation of Part
11-Collective agreements to be registered
12-Powers of Industrial Court
13-Penalties and liabilities
14-Industrial Court
15-Reinstatement of employees
16-Application and interpretation of awards
17-Awards, etc., of Industrial Court final
18-Cap 49 not to apply
19-Boards of inquiry
20-Regulation of proceedings
21-Powers to obtain evidence
22-Restriction on publication of evidence
23-Representation of parties
24-Proceedings either private or public
PART V-ADHERENCE TO AGREEMENTS AND AWARDS
25-Interpretation of Part
26-Unlawful strikes and lock-outs
27-The public sector
28-Adherence to agreed procedures
29-Adherence to terms of agreements and awards
30-Prohibition of sympathetic strikes and lock-outs
31-Effect, publication and proof of orders
32-Appeals to Industrial Court from orders of Minister
33-Settlement of claims as to recognized terms or conditions of employment
34-Offences connected with unlawful strikes and lock-outs
35-Protection of persons refusing to take part in unlawful strikes or lock-outs
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PART VI-PROTECTION OF ESSENTIAL SERVICES, LIFE AND PROPERTY
36-Interpretation of Part
37-Breach and procurement of breach of contract by employee an offence
38-Breach of employee’s contract not unlawful in certain circumstances
39-Reference of disputes to Industrial Court, and awards to be binding on parties
40-Minister may declare subsequent notice void
41-Printed copy of sections 28 and 29 to be displayed by employer
42-Protection of life and property
43-Minister may amend First Schedule
PART VII-COLLECTION OF TRADE UNION DUES, ETC.
44-Interpretation of Part
45-Application of check-off system
46-Union to serve notice on employer
47-Employers to comply with orders
48-Unions and Federations to acknowledge payments
49-Non compliance by employers
50-Effect of deductions
51-Collection of levies other than trade union dues
52-Prohibition of other deductions and payments
53-Validity of agreements contrary to Part
PART VIII-MISCELLANEOUS PROVISIONS
54-Prevention of intimidation, etc.
55-Certain offences to be cognizable
56-Consent of Attorney-General
57-Liability of persons appointed under Act
58-Rules of Industrial Court
59-Remuneration and expenses
SCHEDULES
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Trade Disputes Act, Cap 234
CHAPTER 234
THE TRADE DISPUTES ACT
Commencement: 8th June, 1965
An Act of Parliament to provide for the settlement of trade disputes
generally and for the settlement of trade disputes in essential services; to
provide for the establishment of Boards of Inquiry and a standing Industrial
Court; to control and regulate strikes and lock-outs; to make provision
regarding the collection of union dues; and for matters incidental thereto
Short title.
1. This Act may be cited as the Trade Deputes Act.
Interpretation.
2. In this Act, unless the context otherwise requires "Board of Inquiry" means a Board of Inquiry appointed by the Minister under section
19;
"collective agreement" means an agreement made between a trade union and an
employer or organization of employers which relates to terms and conditions of
employment, whether or not enforceable in law and whether or not concluded under
machinery for negotiation;
"domestic servant" means an employee employed at a private dwelling in cooking,
running or cleaning of domestic premises, the care of the children of a family,
gardening (other than of produce for sale or profit) or driving a private family car;
"employee" means, subject to section 3 (a) any person who has entered into or works under a contract with an employer,
whether the contract is for manual labour, clerical work or otherwise, is expressed or
implied, is entered into orally or in writing, and whether it 's a contract of service or
apprenticeship or learnership, or a contract personally to execute any work or
labour; and
(b) any person who has entered the employment of or is employed by the
Government or any public or local government authority;
"employer" includes the Government and any public or local government authority;
"federation" means a trade union which is itself an association or combination of
trade unions;
"Industrial Court" means the court established under section 14, and includes a
division thereof;
"Judge" means the Judge of the Industrial Court appointed under section 14;
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"lock-out" means the closing of a place of employment or the suspension of work, or
the refusal by an employer to continue to employ any number of persons employed
by him in consequence of a dispute, done with a view to compelling those persons,
or to aid another employer in compelling persons employed by him, to accept terms
or conditions of or affecting employment;
"organization" includes a trade union and a federation;
"recognition agreement" means an agreement in writing made between a trade
union and an employer or organization of employers which provides (subject to such
terms and conditions as may be contained therein) for the recognition of the trade
union as the body entitled to represent the interests of those of its members who are
specified in the agreement and who are or have been employed by the employer or
any of the employers comprising that organization;
"redundancy" means the loss of employment, occupation, job or career by
involuntary means through no fault of an employee involving termination of
employment at the initiative of the employer where the services of an employee are
superfluous, and the practices commonly known as abolition of office, job or
occupation and loss of employment due to the Kenyanization of a business; but it
does not include any such loss of employment by a domestic servant;
"strike" means the cessation of work by a body of persons employed in any trade or
industry acting in combination, or a concerted refusal, or a refusal under a common
understanding of any number of persons who are, or have been so employed, to
continue to work or to accept employment and includes any interruption or slowing
down of work by any number of persons employed in any trade or industry acting in
concert or under a common understanding (including any action commonly known as
a "sit down strike" or a "go slow");
"trade dispute" means a dispute or difference between employers and employees, or
between employees and employees, or between employers and trade unions, or
between trade union's and trade unions, connected with the employment or nonemployment, or with the terms of employment, or with the conditions of labour, of
any person and includes disputes regarding the dismissal or suspension of
employees, the redundancy of employees, allocation of work or recognition
agreements; and it also includes an apprehended trade dispute;
"trade or industry" includes the carrying on of its activities by the Government or any
public authority or local government authority;
"trade union" means a trade union registered under the Trade Unions Act;
"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 organizations of
employers, and the other from a panel of persons nominated by or on behalf of
organizations of employees.
Persons to whom Act does not apply.
3. This Act shall not apply to any person in respect of his employment or
service -
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(a) in the armed forces, or in any reserve force thereof;
(b) in a police force, administrative police force or prison service, or in the National
Youth Service, or in any reserve force or service thereof.
PART II - REPORTING, CONCILIATION AND INVESTIGATION OF DISPUTES
Reporting of trade disputes.
4. (1) Subject to subsection (4) any trade dispute, whether existing or
apprehended, may be reported to the Minister by or on behalf of any party to the
dispute.
(2) Every report of a trade dispute shall be made in writing and shall sufficiently
specify (a) the employers and employees, or the classes and categories thereof, who are
parties to the dispute:
(b) the party or parties by whom or on whose behalf the report is made:
(c) the nature of the authorization given by the party or parties desiring the dispute
to be reported on their behalf; and
(d) each and every matter over which the dispute has arisen or is apprehended.
(3) Every person reporting a trade dispute shall, without delay, furnish by hand or by
registered post a copy of the report thereof to each party to the dispute:
Provided that in the case of any parties to a dispute who are members of the same
organization of employers or organization of employees the furnishing of a copy of
the report to such organization shall be a sufficient compliance with this subsection.
(4) Any trade dispute involving the dismissal of an employee or the termination of
any contract of employment shall be reported to the Minister within twenty-eight
days of the dismissal or termination of employment:
Provided that the Minister may, if he considers that the circumstances of a particular
case so warrant, accept the report of a trade dispute concerning a case of dismissal
or termination not so reported to him within twenty-eight days.
(5) Termination of employment through redundancy shall, whether or not there is
agreement between the employer and the employee as to the terms of the
redundancy, be deemed to constitute a trade dispute for the purposes of subsection
(4) and termination of employment shall not be effected until the matter has been
reported to the Minister under that subsection; and the Minister may thereupon
confirm the terms of the redundancy where he is satisfied that there is agreement
between the employer and employee or, in any other case, invoke the settlement
procedure set out in the following sections of this Part.
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Consideration and action by the Minister.
5. (1) The Minister shall consider any trade dispute reported to him and shall
consult a Tripartite Committee and, after such consultation, may take any one or
more of the following steps as seem to him expedient for promoting a settlement (a) inform the parties that any of the matters over which the trade dispute has
arisen or is apprehended is not suitable to be dealt with under this section;
(b) refuse to accept the report of the trade dispute where the Minister is of the
opinion that any matter in dispute is barred from negotiation under the terms of a
recognition agreement or collective agreement in force between any of the parties to
the dispute;
(c) inform the parties that he accepts or rejects the report of the trade dispute,
having regard to the sufficiency or otherwise of the particulars set out in the report,
to the nature of the report, or to the endeavours made by any of the parties to
achieve a settlement of the dispute, or having regard to any other matter which he
considers to be relevant in the circumstances;
(d) refer the matter back to the parties and, if he thinks fit, make proposals to the
parties or to any of them upon which a settlement of the trade dispute may be
negotiated;
(e) endeavour to effect conciliation of the parties in accordance with the provisions of
section 6:
(f) cause an investigation of the trade dispute, or any matter connected therewith, to
be made in accordance with section 7; or
(g) recommend to the parties that the trade dispute be referred to the Industrial
Court.
(2) Where a trade dispute involves an issue concerning a recognition agreement or
the recognition of a trade union by an employer or organization of employers, the
Minister, after being satisfied that a trade union has in its membership a simple
majority of employees eligible by virtue of the union's constitution to join that
particular union in a particular undertaking or a group of undertakings and that there
is no rival trade union claiming to represent such employees, may order in writing
the employer or organization of employers, as the case may be, to accord
recognition to that union for negotiating and collective bargaining purposes:
Provided that an appeal against any order of the Minister under this subsection may
be made to the Industrial Court within fourteen days from the date of communication
of the order to the party making the appeal or his representative and the Industrial
Court may revoke or endorse, with or without amendment, any such order.
(3) Any employer who fails to comply with an order under subsection (2) shall be
guilty of an offence and shall be liable to a fine of ten thousand shillings for each
month or part thereof during which such failure continues.
(4) The decision of the Minister under this section shall as soon as practicable be
communicated in writing to the parties to the dispute or their representatives.
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(5) An appeal against a refusal by the Minister to accept the report of a trade dispute
under paragraph (b) of subsection (1) shall lie to the Industrial Court at the instance
of any party to that dispute, and section 32 shall apply to any such appeal as if the
Minister's refusal were an order made by the Minister under Part V.
Methods of conciliation.
6. (1) In endeavouring to secure, by means of conciliation of the parties, the
settlement of a trade dispute reported to him under section 4, the Minister shall, if
and in so far as he considers it appropriate to do so, make use of any machinery or
arrangements for the settlement of disputes which exist by virtue of any agreement
between the parties to the dispute, or between organizations representative
respectively of a substantial proportion of the employers and employees engaged in
or in any branch of the particular trade, industry, service or occupation in which the
dispute arose.
(2) Subject to subsection (1), the Minister may, in relation to a trade dispute so
reported, or in relation to any issue in such dispute, from time to time and as he
deems expedient,
take any one or more of the following steps (a) appoint any person (who may be a public officer or any other person considered
by the Minister to be suitable) to act as a conciliator;
(b) appoint a conciliation panel consisting of an independent chairman (who may be
a public officer or any other person considered by the Minister to be suitable), and of
one or more persons selected by the Minister as being representative of employers
and an equal number of persons selected by him as being representative of
employees;
(c) refer any matter, with the consent of the parties, to a conciliation panel
composed in accordance with the wishes of the parties; or
(d) withdraw or temporarily suspend the operation of any of the aforesaid
conciliation measures.
(3) The terms of every settlement of a trade dispute effected under this section shall
be set out in writing, shall be endorsed by or on behalf of the parties and, where
appropriate, by the conciliator or the chairman of the conciliation panel, and a signed
copy of the text shall be lodged with the Minister.
Investigation of matters related to trade disputes.
7. (1) Where the Minister is satisfied that any trade dispute exists or is
apprehended he may, whether or not the dispute has been reported to him under
this Act, investigate any matter appearing to him to be relevant to the dispute, or
refer any such matter for investigation by an investigator, or by a committee of
investigation, appointed by him for the purpose.
(2) Any investigator and any member of a committee of investigation appointed
under this section shall be a person who appears to the Minister to be independent
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and otherwise qualified for such appointment, and subject as aforesaid may be a
public officer:
Provided that, if the parties to the dispute so agree and request, a committee of
investigation shall include an additional member appointed by the Minister from
among persons nominated by or on behalf of one of the parties concerned, and an
additional member so appointed from among persons nominated by or on behalf of
the other party concerned.
(3) Any investigator or committee to whom any matter is so referred by the Minister
under this section shall investigate the matter without delay and report thereon to
the Minister.
(4) Any investigator or committee of investigation acting under this section may
formulate proposals upon which a settlement of the trade dispute may be negotiated
by the parties, and may make such recommendations as are considered desirable or
necessary:
Provided that the Minister shall not be precluded by any such recommendations from
making any recommendations of his own to all or any of the parties to the dispute as
he may think fit.
Reference of trade dispute by Minister to Industrial Court.
8. Where a trade dispute has not been settled under sections 5, 6 and 7 the
Minister may, in a case where an appeal to the Industrial Court does not already lie,
on the representation of any trade union, employer or group of employers, refer the
dispute to the Industrial Court and the provisions of Part IV shall apply to any such
reference.
Agreements to be lodged with Minister.
9. Every party to an agreement or arrangement made between an employer
or organization of employers and an organization of employees shall secure that a
copy of the terms of such agreement or arrangement is lodged with the Minister as
soon as practicable after it is made.
PART III - - REGISTRATION OF COLLECTIVE AGREEMENTS
Interpretation of Part.
10. In this Part "collective agreement" means a collective agreement entered
into on or after 1st September, 1973.
Collective agreements to be registered.
11. (1) The Industrial Court shall maintain a register of collective agreements
that have been accepted by the Court for registration.
(2) A collective agreement shall not take effect until it has been accepted for
registration by the Industrial Court.
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(3) Every employer or organization of employers that has entered into a collective
agreement shall secure that a copy thereof is lodged with the Minister within
fourteen days of its execution.
(4) The Minister shall furnish the Industrial Court with a copy of every collective
agreement that has been lodged with him pursuant to this section, and he may also
furnish the Court with such information and comments as he considers necessary.
(5) Where the Minister objects to the registration of a collective agreement, the copy
of the agreement furnished to the Court shall be accompanied by a statement of the
objection giving reasons therefor.
(6) The Minister may make regulations requiring employers and organizations of
employers to furnish such information, as may be specified in the regulations for the
purpose of enabling the Minister and the Industrial Court to consider the desirability
of registering any collective agreement.
(7) Any employer who, or organization of employers which, fails to secure that a
copy of a collective agreement is lodged with the Minister within twenty-eight days of
its execution in accordance with subsection (3) or who or which fails to comply with
any of the requirements of any regulation made under subsection (6), shall be guilty
of an offence and shall be liable to a fine not exceeding one thousand shillings in
respect of a first offence and to a fine not exceeding two thousand shillings or to
imprisonment for a period not exceeding six months or to both in respect of a second
or subsequent offence.
Powers of Industrial Court.
12. (1) The Industrial Court shall not accept a collective agreement for
registration unless the Court is satisfied that the agreement complies with all
relevant directives and guidelines Issued pursuant to section 14 (10).
(2) Subject to subsection (1), the Industrial Court may (a) accept a collective agreement for registration; or
(b) with the consent of all the parties thereto, accept a collective agreement for
registration with such amendments or modifications as the Court may consider
necessary or desirable; or
(c) refuse to accept a collective agreement for registration and refer the agreement
back to the parties thereto for further negotiation.
(3) In every case where the Minister objects to the registration of a collective
agreement the Industrial Court shall, and in any other case the Court may, summon
all the parties to the agreement to appear before the Court and hear every party so
summoned or his representative.
Penalties and liabilities.
13. (1) Any employer who implements any provision of a collective
agreement that has not been accepted for registration by the Industrial Court shall
be guilty of an offence and shall be liable to a fine of ten thousand shillings, and if
such implementation continues after a conviction he shall be guilty of a further
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offence and liable to a fine of ten thousand shillings for every month or part thereof
during which such implementation is continued.
(2) No employer shall be liable to any employee in respect of any breach of contract
resulting from the fact that a collective agreement which has been duly lodged with
the Minister has not been accepted for registration by the Industrial Court.
PART IV - REFERENCE OF DISPUTES FOR SETTLEMENT OR INQUIRY
Industrial Court.
14. (1) For the purpose of the settlement of trade disputes and of matters
relating thereto the President may, by order, establish an Industrial Court consisting
of (a) such number of Judges, not being less than two, as may be determined by the
President;
(b) eight other members, who shall be appointed for terms of not less than three
years by the Minister after consultation with the Central Organization of Trade Unions
and the Federation of Kenya Employers:
Provided that whenever it appears to be expedient a judge may appoint two
assessors, one to represent employees, from a panel of assessors appointed by the
Minister, to assist in the determination of any trade dispute before the Court.
(1A) A person shall not be qualified to be appointed as a judge under subsection (1)
unless he is an advocate of the High Court of Kenya of not less than seven years'
standing.
(1B) A person appointed as a Judge under subsection (1) shall hold office for a term
of not less than five years.
(2) Every appointment made under this section shall be notified in the Gazette and
the notice thereof shall state the term for which such appointment is made.
(3) A judge of the Court and the other members shall be eligible for re-appointment.
(4) A member of the Industrial Court may be removed from office only for inability to
perform the functions of his office or for misbehaviour, and the power to remove
such member from office shall vest in the Public Service Commission.
(5) The jurisdiction of the Court shall be exercised by a judge and two of the other
members of the Court selected by him for that purpose; and the Court shall sit in
divisions.
(6) The judges of the Court shall rank among themselves according to the priority of
their respective appointments as Judges of the Court.
(7) The Court shall, upon application being made to it in writing jointly by the parties
to a trade dispute, or upon a dispute being referred to it by the Minister under Part V
or Part VI, take cognizance of such dispute and proceed as soon as practicable to
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inquire into the dispute and make an award thereon, and every award so made shall
be notified by the Court to the parries to the dispute and to the Minister.
(8) Where the members of the Court are unable to agree as to their award or
decision in any matter, the matter shall be decided by the Judge acting with the full
powers of an umpire.
(9) The Court shall not take cognizance of any trade dispute or deal with any matter
connected therewith (a) where the trade dispute arises in any part of the public sector (as defined in
section 27) and there is in the opinion of the Court adequate machinery for the
determination of terms and conditions of employment in that part of the public sector
(whether that machinery was established by regulations made under this Act or by
any other written law);
(b) unless the trade dispute has been reported to the Minister and twenty-one days
have elapsed since the date on which the dispute was so reported;
(c) while such dispute or matter is in the process of being settled, investigated or
otherwise determined by means of any other proceedings under the provisions of
this Act or of any written law;
(d) while use is being made of any of the machinery or arrangements for the
settlement of disputes referred to in section 6 (1);
(e) unless the Court has received a certificate signed by the Labour Commissioner
stating that the Minister has accepted the report of the trade dispute and that all
available machinery (including statutory machinery) for the voluntary settlement of
disputes prior to reference to the Court has been exhausted;
(f) where the trade dispute solely concerns the dismissal or reinstatement of any
employee, unless the Court has received, in addition to the certificate required by
paragraph (e) the written authority of the Minister for that purpose:
Provided that this subsection shall not apply to any reference or appeal to the Court
under Part III, Part V or Part VI.
(10) In the exercise of its powers under this Act the Industrial Court shall be bound
by any guidelines or other directives relating to wage and salary levels and other
terms and conditions of employment that may be issued from time to time to the
Court by the Minister for the time being responsible for finance.
Reinstatement of employees.
15. (1) In any case where the Industrial Court determines that an employee
has been wrongfully dismissed by his employer, the Court may order that employer
to reinstate that employee in his former employment, and the Court may in addition
to or instead of making an order for reinstatement, award compensation to the
employee:
Provided that such compensation shall not exceed -
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(i) in a case where reinstatement is ordered, the actual pecuniary loss suffered by
the employee as the result of the wrongful dismissal;
(ii) in any other case, twelve months monetary wages.
(2) Without prejudice to any other remedy, any compensation awarded under this
section may be recovered summarily as a civil debt.
(3) Any person who without lawful excuse fails to comply with an order for
reinstatement shall be guilty of an offence, and shall be liable to a fine of two
thousand shillings for every month or part thereof during which the commission of
the offence is continued.
(4) Any court imposing a fine under subsection (3) may award compensation to the
employee who is the subject of the order for reinstatement for the loss suffered by
him as the result of the failure of his employer to comply with the order, and for that
purpose the court may pay to the employee the fine or such part of it as the court
may think fit.
(5) An award of compensation to a person under subsection (1) shall be a bar to
proceedings at the suit of that person in any other court in respect of the same
wrongful dismissal.
Application and interpretation of awards.
16. (1) This section shall apply to every award made by the Industrial Court
under this Act.
(2) An award shall be published in the Gazette, and shall take effect on the date of
such publication:
Provided that where an award is expressed to have retrospective effect it shall on the
date of its publication in the Gazette have effect as from the date specified in the
award,
(3) An award shall state to which parties, and to which employers and employees
comprised in the parties, each of the provisions of the award relates.
(4) An award shall not contain any provision, which is inconsistent with the
provisions of any written law relating to the terms or conditions of, or affecting
employment or labour, and any award containing any such inconsistent provision
shall have effect as if such inconsistent provision had not been included therein.
(5) If any question arises as to the interpretation of an award or as to an award
being inconsistent with any written law, the Minister or any party to the award may
apply to the Industrial Court which made the award for a determination of the
question and the Court shall determine the matter after hearing the parties
concerned, or without such hearing if the parties consent, and any such
determination shall be deemed to be an award made under this Act:
Provided that where the question arises out of any clerical mistake, incidental error
or omission the Court may rectify such mistake, error or omission without hearing
the parties concerned.
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(6) Subject to this section, an award shall, as from the date that the award has
effect, be an implied term of every contract of employment between the employers
and employees to whom the award relates, so that the rate of wages to be paid and
the terms and conditions of employment to be observed under the contract shall be
in accordance with the award until it is varied by a subsequent award, or by
agreement.
Awards, etc., of Industrial Court final.
17. (1) The award or decision of the Industrial Court shall be final.
(2) The award, decision or proceedings of the Industrial Court shall not be
questioned or reviewed, and shall not be restrained or removed by prohibition,
injunction, certiorari or otherwise, either at the instance of the Government or
otherwise.
Cap. 49 not to apply.
18. The Arbitration Act shall not apply to any proceedings or award under this
Act.
Boards of Inquiry.
19. (1) The Minister may refer to a Board of Inquiry appointed by him for the
purpose any matter which appears to him to be connected with or relevant to any
trade dispute, or to trade disputes in general, or to trade disputes of any type or
class, whether or not any such dispute has been reported under this Act, and where
the Minister has referred any such matter to a Board of Inquiry, he may refer to the
Board any other matter which in his opinion ought to be so referred.
(2) A Board of Inquiry shall consist of one person, or of two or more persons
including a chairman, as the Minister sees fit to appoint, and the Minister may
appoint a public officer to be the secretary of the Board.
(3) A Board of Inquiry consisting or two or more persons may act notwithstanding
any vacancy in their number.
(4) Every appointment of a Board of Inquiry, and its terms of reference, shall be
notified in the Gazette.
(5) A Board of Inquiry shall inquire into and report on any matter referred to it under
this section, and may make interim reports, and any report of a Board and any
minority report, shall be submitted to the Minister.
(6) Subject to section 22 the Minister may order the publication of any report made
by a Board of Inquiry, in whole or in part and in such manner and at such time as he
thinks fit.
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Regulation of proceedings.
20. Except as expressly provided in this Act or in rules made under this Act,
the Industrial Court and a Board of Inquiry may regulate its own procedure and
proceedings as it thinks fit.
Powers to obtain evidence.
21. (1) The Industrial Court and a Board of Inquiry shall not be bound by the
rules of evidence in civil or criminal proceedings:
Provided that, if any witness objects to answering any question or to producing any
relevant document on the ground that it will tend to incriminate him or on any other
ground on which he could lawfully object if the objection had been made in civil or
criminal proceedings in the High Court, he shall not be required to answer such
question or to produce such document, nor shall he be liable to any penalties for
refusing so to do,
(2) For the purpose of dealing with any matter before it, the Industrial Court or
Board of Inquiry may by order in writing signed by or on behalf of the Court or Board
require any person (a) to furnish, in writing or otherwise, such particulars in relation to such matter as it
may require:
(b) to attend before it;
(c) to give evidence on oath or otherwise; and
(d) to produce any relevant documents.
(3) Any order made under subsection (2) may include a requirement as to the date
on which or the time within which the order is to be complied with.
(4) Any order purporting to be signed by or under the authority of the Judge,
chairman or other person conducting the proceedings of the Industrial Court or
Board of Inquiry shall be presumed, until the contrary is proved to have been given
by the Court or Board, as the case may be.
(5) Any person who without reasonable cause (the burden of proof of which shall be
upon him) fails to comply with an order duly given under subsection (2) shall be
guilty of an offence and liable to a fine not exceeding five hundred shillings.
(6) Any person who, being required by an order made under subsection (2) to
furnish information, makes any statement or furnishes any information which he
knows, or has reasonable cause to believe, to be false or misleading in a material
particular shall be guilty of an offence and liable to a fine not exceeding five hundred
shillings or to imprisonment for a term not exceeding three months or to both.
(7) Where an order made under subsection (2) is directed to a firm or to a body
corporate or to an organization representing employers or employees, every partner
of the firm, and every director and officer of the body corporate and every officer of
the organization shall comply with the order as if it had been directed to him, and
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where an offence is committed in respect of that order every partner, director or
officer shall be guilty of the offence unless he proves that the offence was committed
without his consent or connivance and that he exercised all due diligence to prevent
the commission of the offence.
Restriction on publication of evidence.
22. (1) There shall not be included in any publication relating to any award,
determination, finding, report or other statement made or authorized by the
Industrial Court or a Board of Inquiry or by the Minister any information as to itself
disclosed during the course of proceedings under this Act by any organization
representing employers or employees or by any individual business (whether carried
on by an individual person, a firm or a company), which was made known to the
Court or Board only by such disclosure, and in respect of which such organization,
person, firm or company has made a request during the proceedings that such
information be withheld from publication, nor shall any member of the Industrial
Court or of a Board of Inquiry, or any person concerned in or present at any
proceedings thereof, disclose any such information to any person except with the
consent of such organization, person, firm or company.
(2) Any person concerned in or present at the proceedings of the Industrial Court or
of a Board of Inquiry who, without such consent, discloses any such information shall
be guilty of an offence and liable to a fine not exceeding five hundred shillings.
Representation of parties.
23. Subject to any rules made under section 49, the Industrial Court or any
Board of Inquiry may permit any interested party in any proceedings under this Act
to appear by advocate or to be represented by any person.
Proceedings either private or public.
24. (1) In any proceedings before the Industrial Court or under section 19,
the Judge, chairman or other person conducting the proceedings may admit or
exclude the public or any representative of the press to or from the proceedings or
any part thereof.
(2) Where representatives of the press are permitted to be present at any of the
proceedings referred to in subsection (1), and not otherwise, a fair and accurate
report or summary of the proceedings may be published;
Provided that, until the award, report or other result of such proceedings has been
published in accordance with this Act, no comment shall be published in respect of
the proceedings or the evidence.
(3) Any person who contravenes subsection (2) shall be guilty of an offence and
liable to a fine not exceeding five hundred shillings.
PART V - ADHERENCE TO AGREEMENTS AND AWARDS
Interpretation of Part.
25. In this Part, unless the context otherwise requires -
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"award" means an award made by the Industrial Court under this Act;
"section of industry" means any trade or industry or section of any trade or industry
or, except in section 24, any undertaking;
"society" means any association of persons, corporate or unincorporate, which is
established in accordance with the law;
"wages regulation order" means a wages regulation order made under the Regulation
of Wages and Conditions of Employment Act.
Unlawful strikes and lock-outs.
22 of 1971, s.7.
26. A strike or lock-out shall be unlawful (a) unless a report in writing of a trade dispute has been made to the Minister and
twenty-one days have elapsed since the date on which the dispute was so reported,
and the period of notice specified in any recognition or registered collective
agreement relevant to that trade dispute has expired; or
(b) if the Minister has within the period of twenty-one days refused to accept the
report under section 5 (1) (b), unless the Minister or the Industrial Court has
revoked that refusal.
The public sector.
22 of 1971, s.7
27. (1) The Minister may by regulations made under this Act establish
machinery for the determination of terms and conditions of employment for any class
of persons employed in the public sector, and the Minister may make different
provisions for different classes of such persons.
(2) Where it appears to the Minister that there is an actual or threatened strike in
any part of the public sector for which machinery under subsection (1) has been
established (whether by regulations made under this Act or by any other written law)
the Minister may by order(a) where he is of the opinion that any of the matters giving rise to the actual or
threatened strike have been settled for the time being by a collective agreement or
by a determination in accordance with that machinery, require the persons employed
in that part of the public sector to comply with that agreement or determination;
(b) where he is of the opinion that any of the matters giving rise to the actual or
threatened strike should be the subject of a determination in accordance with that
machinery, refer those matters for determination; and
(c) in any case, declare any actual or threatened strike in that part of the public
sector to be unlawful.
(3) Where the Minister has referred a matter under subsection (2) for determination
in accordance with any machinery, that matter shall be determined as soon as
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practicable by the persons empowered to do so in accordance with that machinery,
and for that purpose those persons may exercise any of the powers conferred upon
them by the law establishing that machinery as if they were making determinations
or recommendations in pursuance of that law.
(4) For the purposes of this section "the public sector" includes the Government,
local government authorities, any body incorporated or established for public
purposes by Act of Parliament or by regulations made thereunder, and any body
declared by the Minister by order published in the Gazette to be within the public
sector for the purposes of this section.
Adherence to agreed procedures.
28. Where it appears to the Minister that there is an actual or a threatened
strike or lock-out arising out of a trade dispute in any section of industry, and the
Minister is of the opinion (a) that there is machinery for negotiation or arbitration for the voluntary settlement
of disputes in that section of industry; and
(b) that a substantial proportion of the employers and a substantial proportion of the
employees in that section of industry are, either directly or through their respective
organizations of employers or employees, parties to any agreement or arrangement
for the use of that machinery; and
(c) that that machinery is suitable for the settlement of that dispute; and
(d) that all practicable means of reaching a settlement of that dispute through that
machinery have not been exhausted, the Minister may by order (i) require the parties to that dispute to make use of that machinery; and
(ii) declare any strike or lock-out (whether actual or threatened) in that section of
industry to be unlawful.
Adherence to terms of agreements and awards.
29. Where it appears to the Minister that there is an actual or a threatened
strike or lock-out arising out of a trade dispute in any section of industry, and the
Minister is of the opinion (a) that the matters to which that trade dispute relates have been settled by an
agreement or award; and
(b) that a substantial proportion of the employers and a substantial proportion of the
employees in that section of industry are, either directly or through their respective
organizations of employers or employees, parties to that agreement or award; and
(c) that that agreement or award is expressed to have effect until a date which has
not been reached,
the Minister may by order -
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(i) require the parties to that dispute to comply with that agreement or award; and
(ii) declare any strike or lock-out (whether actual or threatened) in that section of
industry to be unlawful until a date specified in the order, being a date on which, in
the opinion of the Minister, the agreement or award ceases to have effect.
Prohibition of sympathetic strikes and lock-outs.
30. (1) Where it appears to the Minister that there is an actual or a
threatened strike or lock-out in any trade or industry, and the Minister is of the
opinion (a) that the strike or lock-out has any object other than or in addition to the
furtherance of a trade dispute within that trade or industry; and
(b) that the strike or lock-out is designed or calculated to coerce any employer or
employee in any other trade or industry in respect of his conduct in or in connection
with that other trade or industry, either directly or by inflicting hardship on the
community, the Minister may by order declare any strike or lock-out (whether actual
or threatened) in that trade or industry to be unlawful.
(2) For the purpose of this section (a) a trade dispute shall not be deemed to be within a trade or industry unless it is a
dispute between employers and employees, or between employees and employees,
in that trade or industry, which is connected with the employment or nonemployment or the terms of the employment, or with the conditions of labour, of
persons in that trade or industry;
(b) employees shall be deemed to be within the same trade or industry if, and shall
be deemed not to be within the same trade or industry unless, either (i) they are members of or their interests are lawfully represented by, the same
trade union; or
(ii) their wages or conditions of employment are determined in whole or in part in
accordance with the conclusions of the same joint industrial council or other similar
body, or in accordance with the same agreement made with one employer or a group
of employers; or
(iii) their wages or conditions of employment are governed in whole or in part by the
same wages regulation order; and
(c) a strike or lock-out shall not be deemed to be calculated to coerce any person
unless such coercion ought reasonably to be expected as a consequence thereof.
Effect, publication and proof of orders.
31. (1) An order made by the Minister under this Part shall come into force on
the day following the day on which it is made and shall continue in force until it is
revoked by the Minister, or by the Industrial Court under section 32:
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Provided that where an order is varied by the Industrial Court under that section, it
shall continue in force as so varied until it is revoked or further varied.
(2) The Minister shall, for the purpose of bringing any order made by him under this
section to the attention of the persons affected thereby, as soon as practicable after
the order has been made, publish such order in such manner as he sees fit.
(3) A copy of an order purporting to be signed by or under the authority of the
Minister and to be made for any of the purposes of this Part shall be prima facie
evidence of its contents in any court.
Appeals to Industrial Court from orders of Minister.
32. (1) An employer or employee or organization of employers or employees
to which an order made by the Minister under this Part applies may appeal against
such order to the Industrial Court, and on any such appeal the Industrial Court may
confirm, vary or revoke the order and give such directions as to the costs of the
appeal as the Court thinks proper.
(2) Rules of the Industrial Court may require an appellant to apply for leave to
appeal under this section, and may empower the Court to use any of its powers to
obtain evidence for the purpose of considering such application, and may empower
the Court to refuse leave to appeal if it is not satisfied that there are substantial
grounds for such an appeal.
(3) The Industrial Court shall not (a) entertain an appeal by an employee or organization of employees while any
employee to whom the order applies is taking part in a strike;
(b) entertain an appeal by an employer or organization of employers while any
employer to whom the order applies is taking part in a lock-out.
(4) Where the Industrial Court has determined an appeal or refused leave to appeal
in respect of any order made by the Minister under this Part, the Court shall not
entertain any further appeal from that order unless it is satisfied that such further
appeal raises fresh facts or matters, or other facts or matters which could not with
reasonable diligence have been raised on the first appeal.
(5) In any appeal to the Industrial Court under this section the Minister and such
other parties as the Court may direct shall be parties to the appeal and shall be
entitled to be heard.
(6) Every determination of the Industrial Court in any proceedings under this section
shall be published in the Gazette in such form as the Judge may decide.
Settlement of claims as to recognized terms, or conditions of employment.
33. (1) Where a claim is reported to the Minister under this section (a) that terms or conditions of employment are established in any section of
industry, either generally or in any particular area, which have been settled by an
agreement or award; and
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(b) that the parties to the agreement, or to the proceedings in which the award was
made, are or represent (generally or in the area in question, as the case may be) a
substantial proportion of the employers and of the employees in the section of
industry, being employees of the description (hereinafter referred to as the relevant
description) to which the agreement or award relates; and
(c) that as respects any employee of the relevant description an employer engaged
in the section of industry (or where the operation of the agreement or award is
limited to a particular area, an employer so engaged in that area), whether
represented or not, is not observing the terms or conditions (hereinafter referred to
as the recognized terms or conditions), the Minister may take any steps which seem
to him expedient to settle, or to secure the use of appropriate machinery to settle,
the claim and may if the claim is not otherwise settled, refer it to the Industrial
Court:
Provided that no claim shall be reported under this section as respects employees
whose remuneration or minimum remuneration, or terms or conditions of
employment, is or are regulated (in whole or in part) by a wages regulation order.
(2) For the purposes of this section, a claim shall be reported to the Minister in
writing by an organization of employers or employees being, or represented by one
of the parties mentioned in paragraph (b) of subsection (1); and if in the opinion of
the Minister the report of a claim does not contain sufficient particulars he may
require further particulars to be given, and if he does so the claim shall not be
treated as having been reported until the Minister is satisfied that the particulars
required have been given,
(3) If on a reference under this section the Industrial Court is satisfied that the claim
is well founded, then, unless the Court is satisfied that the terms or conditions which
the employer is observing are not less favourable than the recognized terms or
conditions, the Court shall make an award requiring the employer to observe the
recognized terms or conditions as respects all employees of the relevant description
from time to time employed by him.
(4) An award under this section shall have effect as an implied term of the contract
of employment, and shall have effect from such date as the Industrial Court may
determine, being a date not earlier than the date on which, in the opinion of the
Court, the employer was first informed of the claim giving rise to the award by the
party which reported the claim to the Minister; and an award under this section shall
cease to have effect on the coming into operation of an agreement or award varying
or abrogating the recognized terms or conditions.
Offences connected with unlawful strikes and lock-outs.
34. (1) Any person who in connection with any strike or lock-out declared by
or under this Act to be unlawful (a) declares or instigates, or incites others to take part in any such strike or lockout; or
(b) takes part in any such strike or lock-out, shall be guilty of an offence, and -
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(i) in the case of an offence under paragraph (a), shall be liable to a fine not
exceeding five thousand shillings or to imprisonment for a term not exceeding twelve
months or to both; and
(ii) in the case of an offence under paragraph (b) shall be liable to a fine not
exceeding five hundred shillings or to imprisonment for a term not exceeding three
months or to both.
(2) Any person who ceases work or refuses to continue work, being work which
under his terms of employment he is bound to do, in circumstances which give rise
to a reasonable suspicion that he is taking part in or acting in furtherance of a strike
declared by or under this Act to be unlawful, and fails to satisfy the court that he
ceased work, or refused to continue work, as the case may be, for causes wholly
unconnected with that strike, shall be deemed to have taken part in a strike declared
by or under this Act to be unlawful.
(3) Where a person guilty of an offence under this section was at the time of the
offence an officer of an organization of employers or employees, or was purporting to
act as such an officer, it shall be presumed, until the contrary is proved that such
person committed the offence with the authority of that organization.
(4) Where any officer, or person purporting to act as an officer, of an organization of
employers or employees commits an offence under this section with the authority of
that organization, every person who at the time of the offence was an officer of that
organization shall likewise be guilty of that offence unless he proves that the offence
was committed without his consent or connivance and that he exercised all
reasonable diligence to prevent the commission of the offence.
Protection of persons refusing to take part in unlawful strikes or lock-outs.
35. (1) No person refusing to take part or to continue to take part in any
strike or lock-out which is by or under this Act declared to be unlawful shall be, by
reason of such refusal or by reason of any action taken by him under this section,
subject to expulsion from any organization or society or to any fine or penalty, or to
deprivation of any right or benefit to which he or his legal personal representatives
would otherwise be entitled, or liable to be placed in any respect either directly or
indirectly under any disability or to any disadvantage as compared with other
members of the organization or society, anything to the contrary in the rules of an
organization or society notwithstanding.
(2) No provisions of any law limiting the proceedings which may be entertained by
any court, and nothing in the rules of any organization or society requiring the
settlement of disputes in any manner, shall apply to any proceeding for enforcing
any right or exemption secured by this section, and in any such proceeding the Court
may, in lieu of ordering a person who has been expelled from membership of an
organization or society to be restored to membership, order that he be paid out of
the funds of the organization or society such sum by way of compensation or
damages as the Court thinks just.
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PART VI - PROTECTION OF ESSENTIAL SERVICES LIFE AND PROPERTY
Interpretation of Part.
36. In this Part "break" means, in relation to an employee's contract of service, commit any act or
make any omission which amounts to a breach of the contract of service under which
he is employed;
"contract of service" means any contract whether entered into orally or in writing,
whether expressed or implied, to employ or to serve as an employee for any period
of time, and whether it is a contract of service or apprenticeship or learnership, or a
contract personally to execute any work or labour;
"essential service" means any of the services specified in the First Schedule.
Breach and procurement of breach of contract by employee an offence. 37. (1)
Subject to section 38(a) any employee who, being an employee in an essential service, willfully breaks his
contract of service, knowing or having reasonable cause to believe that the probable
consequences of his so doing, either alone or in combination with others, will be to
deprive the public or any section of the public of that essential service or
substantially to diminish the enjoyment of that essential service by the public or by
any section of the public; or
(b) any person who causes or procures or counsels any employee to break his
contract of service knowing or having reasonable cause to believe that the probable
consequences of that employee's breach of contract of service, either alone or in
combination with others, will be to deprive the public or any section of the public of
an essential service or substantially to diminish the enjoyment of an essential service
by the public or by any section of the public,
shall be guilty of an offence, and
(i) in the case of an offence under paragraph (a), shall be liable to a fine not
exceeding five hundred shillings or to imprisonment for a term not exceeding three
months or to both; and
(ii) in the case of an offence under paragraph (b), shall be liable to a fine not
exceeding five thousand shillings or to imprisonment for a term not exceeding twelve
months or to both.
(2) In any proceedings in respect of an offence under this section, the Court shall
presume the existence of a contract of service of the nature and in the particular
service alleged in the charge relating to the proceedings, until the contrary is proved.
Breach of employee's contract not unlawful in certain circumstances.
38. An employee in an essential service shall not be guilty of an offence
under section 37 (1) (a), and no person shall be guilty of an offence under section 37
(1) (b), if –
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(a) a trade dispute in that essential service has been reported in writing to the
Minister, and twenty-one days have elapsed since the date on which the dispute was
reported and the dispute has not within that time been settled or referred by the
Minister to the Industrial Court; and
(b) after the expiration of the period of twenty-one days referred to in paragraph (a),
notice in writing of the employee's intention to break his contract is given by him, or
on his behalf by a trade union of which he is a member, to his employer, and seven
days have elapsed since the delivery of that notice and the dispute has not within
that time been settled or referred by the Minister to the industrial Court; and
(c) the employee breaks his contract of service after the expiration of the period of
twenty-one days referred to in paragraph (a) and after the expiration of the period of
seven days referred to in paragraph (b) but before the expiration of sixty days after
the date on which the dispute was reported and before the expiration of twenty-one
days after the date on which the notice was delivered.
Reference of disputes to Industrial Court, and awards to be binding on
parties.
39. (1) The Minister may refer a trade dispute in an essential service, if not
otherwise settled, to the Industrial Court within either of the periods referred to in
paragraphs (a) and (b) of section 38.
(2) Notwithstanding section 16, an award made by the Industrial Court on a
reference by the Minister under this section shall bind the parties to the dispute for
such period not exceeding twelve months as the Industrial Court may determine, and
the award shall not be varied by the Industrial Court during any such period :
Provided that any award made by the Industrial Court under this section may be
varied to the extent provided in section 16 (5).
Minister may declare subsequent notice void.
40. (1) Where any notice is given by or on behalf of any employee in an
essential service in terms of section 38 and it appears to the Minister (a) that an award has been made by the Industrial Court on a reference by the
Minister of a trade dispute in that essential service and that award is still binding on
the parties to the dispute; and
(b) that there is no trade dispute in that essential service which did not exist or was
not apprehended at the time of that reference, or which could not with reasonable
diligence have been reported to the Minister before that reference,
the Minister may, within seven days of the delivery of the notice, by order declare
the notice to be void, and upon such declaration the notice shall be deemed to be of
no effect for any of the purposes of this Act.
(2) Any person by or on whose behalf a notice has been given under section 38 may,
within seven days of the making of an order by the Minister under subsection (1) of
this section declaring that notice to be void, appeal to the Industrial Court against
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that order, and the provisions of section 32 shall apply mutatis mutandis to any such
appeal.
(3) Where under this section the Industrial Court revokes an order of the Minister,
then, for the purposes of section 38, the notice in respect of which the Minister's
order was made shall be valid and shall have effect as if it had been delivered on the
date of such revocation, and the requirement of section 38 (c) that an employee
shall not break his contract of service after the expiration of sixty days after the date
on which the trade dispute was reported shall not apply.
(4) Where the Industrial Court revokes an order of the Minister made under this
section, the Minister may, within seven days after the date of such revocation, refer
the trade dispute in respect of which the notice was given to the Industrial Court,
and any such reference shall be a reference for the purposes of section 38 (b).
Printed copy of sections 28 and 29 to be displayed by employer.
41. (1) Every employer in an essential service shall cause to be posted up,
upon the principal premises used for the purpose of discharging that essential
service, a printed copy of sections 37 and 38 in some conspicuous place where the
same may conveniently be read by his employees, and as often as such copy
becomes defaced, obliterated, destroyed or removed shall cause it to be replaced
with all reasonable dispatch.
(2) Any employer who fails to comply with subsection (1) shall be guilty of an
offence and liable to a fine not exceeding one hundred shillings for every day during
which the default continues.
(3) Any person who wilfully, without reasonable cause or excuse, defaces,
obliterates, destroys, removes or covers up any printed copy posted up under
subsection (1) shall be guilty of an offence and liable to a fine not exceeding five
hundred shillings.
Protection of life and property.
42. (1) Any employee who, whether an employee in an essential service or
not, wilfully breaks his contract of service knowing of having reasonable cause to
believe that the probable consequences of his so doing, either alone or in
combination with others, will be to endanger human life or public health, or to cause
serious bodily injury to any person, or to expose valuable property to the risk of
destruction, loss or serious injury, shall be guilty of an offence and liable to a fine not
exceeding five hundred shillings or to imprisonment for a term not exceeding three
months or to both.
(2) Any person who causes or procures or counsels any employee, whether an
employee in an essential service or not to break his contract of service knowing or
having seasonable cause to believe that the probable consequences of that
employee's breach of contract of service, either alone or in combination with others,
will be to endanger human life or public health, or to cause serious bodily injury to
any person, or to expose valuable property to the risk of destruction, loss or serious
injury, shall be guilty of an offence and liable to a fine not exceeding five thousand
shillings or to imprisonment for a term not exceeding three months or to both.
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(3) In any proceedings in respect of an offence under this section, the Court shall
presume the existence of a contract of service of the nature and in the particular
service alleged in the charge relating to the proceedings, until the contrary is proved.
Minister may amend First Schedule.
43. (1) The Minister may, by notice in the Gazette, add any service to, or
delete any service from, the First Schedule, and without prejudice to the generality
of the description of any service specified therein, the Minister may by such notice
specify any particular undertaking, activity or business or any class of undertaking,
activity or business as being or as being included in an essential service.
(2) Any notice made under this section shall be laid before the National Assembly as
soon as practicable after publication, and, if a resolution that such notice be annulled
is passed by the National Assembly on any of the twenty days on which it sits next
following the day on which the notice is laid before it, that notice shall thenceforth be
void, but without prejudice to the validity of anything previously clone thereunder, or
to the making of a new notice.
PART VII - COLLECTION OF TRADE UNION DUES, ETC.
Interpretation of Part.
44. In this Part
"the Registrar" has the meaning assigned to that expression in the Trade Unions Act;
"trade union dues" means any regular or periodic subscription required to be paid to
a trade union by a member thereof as a condition of his membership, but does not
include any other subscription or levy;
"wages" includes all emoluments payable in cash to an employee under the terms of
his employment.
Application of check-off system.
45. (1) The Minister may make an order in writing with respect to any trade
union of employees requiring any employer who employs not less than five members
of that trade union (a) to deduct every month a specified sum in respect of trade union dues from the
wages of his employees who are members of that trade union;
(b) to pay within the time specified a specified proportion of the sums so deducted to
that trade union by crossed cheque into an account in the name of the trade union in
a specified bank;
(c) to pay within the time specified the remainder of the sums so deducted (if any)
to a specified federation by crossed cheque into an account in the name of that
federation in a specified bank;
(d) to notify that trade union and that federation of all payments so made within the
time and in the manner specified in the order; and
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(e) to make returns to the Registrar of all payments so made within the time and in
the manner specified in the order.
(2) The Minister may at any time by order in writing revoke, vary or suspend any
order made under this section.
(3) An order made under this section shall, unless otherwise provided therein, take
effect on the date on which it is made.
(4) An order made under this section suspending another order shall have effect for
the period specified in the order, and where no period is so specified shall have effect
until revoked by an order made under this section.
(5) As soon as practicable after making an order under this section, the Minister shall
cause that order to be published in the Gazette.
Union to serve notice on employer.
46. (1) The general-secretary of a trade union in respect of which the
Minister has made an order under section 45 may at any time serve on an employer
who employs not less than ten members of that trade union a notice or notices in the
form in the Second Schedule, requiring the employer to comply with the Minister's
order in respect of the employees who are named in any such notice and who have
acknowledged by their signatures therein that they are members of that trade union.
(2) The general-secretary of any trade union which has served a notice on an
employer under this section shall before the tenth day in each month inform that
employer in writing of the names of any members of that trade union who are
employed by him and who have in the preceding month ceased to be members of
that trade union.
Employers to comply with orders.
47. (1) Every employer, on whom a notice is served under section 46 shall
comply with the Minister's order referred to therein, subject as follows (a) a deduction or payment shall only be made in respect of employees who have
acknowledged in the notice that they are members of the trade union concerned:
(b) where an employee notifies the employer in writing that he is not a member of
the trade union concerned, no deduction or payment shall be made in respect of the
wages earned by that employee in any month following the month in which such
notice was given, unless or until such notification is withdrawn;
(c) a deduction or payment shall only be made from the wages due to any employee
where those wages, after all deductions required or permitted to be made by or
under any other law have been made, exceed the sum which is required by the order
to be deducted;
(d) the first deductions and payments made in pursuance of the notice shall be made
in respect of the wages earned in the month following the month in which the notice
is served;
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(e) no deduction or payment shall be made in respect of any wages earned in any
month if before the twentieth day of that month the Minister's order has been
revoked or suspended and that revocation or suspension has been published in the
Gazette or communicated by the Minister directly to the employer:
(f) where any order made by the Minister is varied before the twentieth day in any
month and the order making the variation has been published in the Gazette or
communicated by the Minister directly to the employer, any deduction or payment
made in respect of wages earned in that month shall be made in accordance with the
order as so varied;
(g) no deduction or payment shall be made by an employer in respect of or during
any month in which any of his employees who is a member of the trade union
concerned takes part in any strike, unless and to such extent as the Minister
otherwise directs by notice in writing to the employer.
(2) Every employer on whom a notice has been served under section 46 shall before
the tenth day in each month inform in writing the trade union on behalf of which that
notice was served of the names of any persons named in that notice who have
ceased to be employed by him or who have notified him in writing that they have
ceased to be members of that trade union.
Unions and Federations to acknowledge payments.
48. Every trade union and every federation that receives any payment from
an employer in pursuance of an order made by the Minister under section 45 shall
acknowledge such payment by notice in writing delivered to the employer within
fourteen days of receipt of notice from the employer that such payment has been
made, and failure by any trade union or federation so to do shall be a ground
(without prejudice to any other ground) for the suspension, variation or revocation
by the Minister of any order made by him under section 45 with respect to that trade
union or that federation.
Non-compliance by employers.
49. (1) Where any employer fails to comply with a notice (in this section
referred to as the union's notice) served on him on behalf of a trade union under
section 46, the general-secretary of that trade union may report such noncompliance to the Registrar, and the Registrar may by notice in writing require the
employer to comply with such of the provisions of the union's notice, and within such
period (being not less than seven days), as the Registrar may specify.
(2) Any employer who fails to comply with the requirements of a notice given by the
Registrar under this section within the period specified in the notice shall, unless he
satisfies the Court that he was not bound to comply with the provisions of the
union's notice specified in the Registrar's notice, or that his failure to comply with the
Registrar's notice was due to causes beyond his control, be guilty of an offence and
liable to a fine not exceeding two thousand shillings.
(3) In any proceedings under this section, a certificate purporting to be signed by the
Registrar stating that he has issued a notice to an employer under this section and
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specifying the contents of such notice shall be prima facie evidence of the facts
stated therein.
Effect of deductions.
50. (1) No sum deducted from the wages of an employee by his employer in
accordance with this Part shall be recoverable from that employer by that employee.
(2) Any sum deducted from the wages of a trade union member by his employer in
accordance with this Part shall discharge the liability of that member to pay the trade
union dues represented by such sum.
(3) Any sum deducted from the wages of a trade union member by his employer in
accordance with this Part shall, in the event of that employer becoming bankrupt or,
being a company, going into liquidation, be accorded the same priority in payment to
the trade union or federation to which that sum is payable as is accorded by section
38 (1) of the Bankruptcy Act or section 311 of the Companies Act, as the case may
be.
(4) Notwithstanding any other provision of this Act, an employer may set off against
any sum payable by him to a trade union or federation in pursuance of this Part the
amount of any overpayment previously made by him to such trade union or
federation, as the case may be.
Collection of levies other than trade union dues.
51. (1) The Minister may by regulations make provision whereby he may by
order authorize the collection from trade union members and the payment to trade
unions by employers of sums in respect of levies or subscriptions (other than trade
union dues) for particular purposes or objects approved by the Minister.
(2) Without prejudice to the generality of the foregoing subsection, regulations made
under this section may provide, with respect to the collections and payments to
which this section applies, for any of the matters provided for in this Part with
respect to the collection and payment of trade union dues, including offences and
penalties, and for such other matters as the Minister thinks fit.
Prohibition of other deductions and payments.
52. (1) No employer shall make any deduction from the wages of any
employee for the purpose of making any payment to any trade union of employees
or federation of such trade unions, or to make any payment to any trade union of
employees or federation of such trade unions, unless that deduction and that
payment is authorized by an order made under section 45 or under regulations made
under section 51, and is made in accordance with the provisions of that order and of
this Part or, as the case may be, of those regulations.
(2) Any employer who contravenes this section shall be guilty of an offence and
liable to a fine not exceeding two thousand shillings; and the Court convicting any
employer of an offence under this section may, in addition to any fine imposed, order
the repayment to the employee of any deduction of wages made in contravention of
this section, and any sum so ordered shall be recoverable as a fine.
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(3) It shall be a defence in any proceedings under this section for an employer to
satisfy the Court that he was purporting to act in pursuance of an order made by the
Minister under section 45 or under regulations made under section 51 and that the
commission of the offence was due (a) to the employer's ignorance of any facts which he could not with reasonable
diligence have ascertained; or
(b) to a bona fide mistake in the keeping of the employer's records, the
consequences of which have been or will be rectified.
Validity of agreements contrary to Part.
53. Any agreement or arrangement between an employer or organization of
employers and a trade union of employees or federation of such trade unions which
provides for the collection of trade union dues by any employer or which is otherwise
inconsistent with this Part shall, to the extent of such inconsistency, be void and of
no effect.
PART VIII- MISCELLANEOUS PROVISIONS
Prevention of intimidation, etc.
54. (1) It shall be unlawful for one or more persons (whether acting on their
own behalf or on behalf of a trade union or of an employer or group of employers,
and notwithstanding that they may be acting in contemplation or furtherance of a
trade dispute) to attend at or near a house or place where a person resides or works,
or carries on business or happens to be, if they so attend in such numbers or
otherwise in such manner as to be calculated to intimidate any person in that house
or place, or to obstruct the approach thereto or egress therefrom, or to lead to a
breach of the peace; and any person attending at or near any house or place in such
numbers or in such manner as is by this subsection declared to be unlawful shall be
guilty of an offence and liable to a fine not exceeding five hundred shillings or to
imprisonment for a term not exceeding three months or to both.
(2) In this section, "intimidate" means cause in the mind of a person a reasonable
apprehension of injury to him or to any member of his family or to any of his
dependants or of violence or damage to any person or property; and "injury"
includes injury to a person in respect of his business, occupation, employment or
other source of income, and includes any actionable wrong.
(3) It shall be unlawful for one or more persons, for the purpose of inducing any
person to work or to abstain from working, to watch or beset a house or place where
a person resides or the approach to such house or place, and any person who
contravenes this subsection shall be guilty of an offence and liable to a fine not
exceeding five hundred shillings or to imprisonment not exceeding three months or
to both.
Certain offences to be cognizable.
55. Any offence under Part V or Part VI (except section 41) shall be
cognizable to the police.
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Consent of Attorney-General.
56. A prosecution for an offence under this Act shall not be instituted except
by, or with the written consent of, the Attorney-General:
Provided that a person may be arrested for and charged with an offence under this
Act, and may be remanded in custody or on bail, notwithstanding that the consent of
the Attorney-General to the institution of a prosecution for the offence has not been
obtained; but no further or other proceedings shall be taken until that consent has
been obtained.
Liability of persons appointed under Act.
57. No person shall be personally liable for any act or default done or
omitted to be done in good faith and without negligence by him in the performance
of any functions conferred upon him by this Act or any rules or regulations made
thereunder.
Rules of Industrial Court.
58. (1) The Chief Justice may make rules for the purpose of regulating the
procedure of the Industrial Court, and, without prejudice to the generality of the
foregoing, such rules may make provision (a) for the Court to sit in two or more divisions, with the same or different chairmen;
(b) for reference of matters in certain cases to be made to a single member of the
Court; and
(c) for cases where the Court as constituted to deal with any matter consists of two
or more members and a vacancy occurs.
(2) The Minister may make rules for the purpose of regulating the procedure of
Boards of Inquiry.
Remuneration and expenses.
59. The Minister, with the approval of the Minister for the time being
responsible for finance, shall determine the remuneration (including allowances)
payable to the Judge and other members of the Industrial Court and to any other
person appointed by him for the purposes of this Act, and the expenses so incurred
shall be defrayed out of moneys provided by Parliament.
FIRST SCHEDULE
(ss. 36, 43)
ESSENTIAL SERVICE
Water services.
Electricity services.
Health services.
Hospital services.
Sanitary services.
Air traffic control services.
Civil aviation telecommunications services.
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Meteorological services.
Fire services of the Government, of Kenya Railways and the Kenya Ports Authority and of local
government authorities.
Air transport
Supply and distribution of fuel, petrol, oil, power and light
Telecommunications, posts and telegraphs.
Public transport services provided by Kenya Railways and the Kenya Ports Authority
Port and dock services including stevedoring and lightering, loading and unloading of cargo
from or on to any ship and dispatch of any cargo to destination.
Teaching services.
SECOND SCHEDULE
(r. 46)
NOTICE TO EMPLOYER AUTHORISING DEDUCTIONS
To ………………………………..
……………………………………
1. In pursuance of an order made with effect from ………….. by the Minister for Labour under
section 45 of the Trade Disputes Act, I, on behalf of the ………………. [trade union], hereby
request you to deduct from the wages of the employees listed on the reverse side of this
Notice, being employees who have acknowledged membership of the ………. [trade union], the
sum of shillings …………….. monthly as their current trade union dues.
2. The total amount of deduction so made is required to be proportioned and transmitted as
follows –
(a) ……….. per cent thereof to the ………….. [trade union] by crossed cheque made payable into
the ………….. account of that trade union at the …………… Bank;
(b) ………. per cent thereof to the ………….. [federation] by crossed cheque made payable into
the ………….. account of that federation at the ……… Bank.
3. (1) The remittances should be made, and notices thereof should be delivered, not later
than the …….. day of the month next after the month in respect of which the deduction are
made.
(2) Notices of remittances should be delivered to the ………. [trade union] at …… [address], and
to the …………. [federation] at ……………. [address].
(3) The above-named trade union and federation are required by section 48 of the Trade
Disputes Act to deliver a receipt for every remittance within fourteen days of receipt of notice
of such remittance.
(4) The employer to whom this notice is addressed is required to make returns to the
Registrar of Trade Unions of all payments made hereunder, in accordance with the abovementioned order of the Minister.
4. This notice applies to employees’ wages payable by you at the end of the month next
following the month shown in the date hereof.
Date …………………, 19 ……
……………………………..
Secretary-General
………………….. Trade Union
COPY TO
Registrar of Trade Unions
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P. O. Box 30031,
Nairobi
[Reverse]
Employees in respect of whom deductions from wages are required to be made
We, the undersigned, hereby acknowledge that we are members of the ….. [trade union]:
Union Membership
Name of Members
Signatures
Date
Number
SUBSIDIARY LEGISLATION
Order under section 14 (1)
[L.N. 163/1971, 4 of 1973, Sch. L.N. 8/1989]
THE TRADE DISPUTES (ESTABLISHMENT OF INDUSTRIAL COURT) ORDER
1. This Order may be cited as the Trade Disputes (Establishment of Industrial Court) Order.
2. There is established an Industrial Court which shall consist of (a) two judges of the Court, appointed by the President; and
(b) eight other members, appointed by the Minister for Labour after consultation with the
Central Organization of Trade Unions and the Federation of Kenya Employers.
Regulations under section 27
THE GOVERNMENT SERVANTS (NEGOTIATING PROCEDURE) REGULATIONS
L.N. 210/1971
Citation.
1. These Regulations may be cited as the Government Servants (Negotiating
Procedure) Regulations.
Interpretation.
Cap 233
2. (1) In these Regulations
"Central Council" means the Central Whitley Council established by regulation 3;
"Industrial Council" means the Civil Service Joint Industrial Council established by regulation
7;
"official side" means the representatives nominated by the Government;
"senior staff" means all members of the Civil Service who are not subordinate staff;
"side" means the official side and the staff side;
"staff association" means a staff association as defined in section 2 of the Trade Unions Act,
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which is for the time being recognized by the Government as representing senior staff;
"staff side" means the representatives nominated by staff associations or by the Kenya Civil
Servants' Union;
"subordinate staff" means those members of the Civil Service who are manual and industrial
employees, including drivers, artisans and foremen.
(2) For the purposes of these Regulations, "the Civil Service" shall not include teachers or any
of the persons mentioned in section 3 of the Act.
Central Whitley Council.
Cap 233
3. (1) There shall be a Council, to be known as the Central Whitley Council, which
shall carry out the functions set forth in regulation 4 in relation to senior staff.
(2) The Central Council shall consist of eighteen representatives nominated to the Council by
the Government and eighteen representatives nominated to the Council by the staff
associations.
(3) Where there are two or more staff associations, the staff representatives on the Central
Council shall be nominated by the associations in such proportion as the Minister may direct
having regard to the number of senior staff represented by each such association.
(4) No person shall be nominated as a representative to the Central Council unless he is a
serving member of the senior staff, or, if not such a member, is an officer of a staff
association by virtue of the proviso to subsection (1) of section 29 of the Trade. Unions Act.
(5) Each side of the Central Council shall appoint a secretary for that side and such secretary
may be appointed from within or without the membership of the side concerned.
(6) Each side of the Central Council shall appoint one of its representatives to be the chairman
of that side, and the chairman of the official side shall be chairman of the Council and the
chairman of the staff side shall be the vice-chairman of the Council.
(7) Either side may at any time replace a representative on the Central Council and may fill
any temporary vacancy arising in its representation from any cause.
Functions of the Central Council.
4. The functions of the Central Council shall include
(a) the securing by means of regular discussion the greatest measure of co-operation between
the Government, in its capacity as an employer, and the senior staff in all matters affecting
the Civil Service;
(b) the negotiation of the general terms and conditions of service of senior staff, including
salaries, allowances, pensions and other benefits, travel privileges, leave, medical benefits,
hours of work, career prospects and promotion procedures;
(c) the encouragement of educational, in-service and other training, facilities both for serving
officers and new entrants to the Civil Service;
(d) the consideration of matters emanating from a Whitley Committee established under
regulation 12;
(e) negotiation on proposed legislation in so far as it has a bearing upon the position of senior
staff as such;
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(f) the determination of the general principles underlying disciplinary action.
Procedure of Central Council.
5. (1) No business shall be transacted by the Central Council unless there are at least
six representatives of each side present.
(2) Not less than fourteen days before a meeting of the Central Council an agenda, agreed to
and signed by the secretary for each side, shall be circulated to all members of the Council by
the secretary for the official side, and at a meeting of the Council no matter which is not on
such agenda shall be dealt with without the permission of both the chairman and the vicechairman of the Council.
(3) Where either side wishes to submit any memorandum or other document for the
consideration of the Central Council, that side shall supply to the secretary for the official side
a sufficient number of copies of the memorandum for circulation to all members of the Council
and for record purposes.
(4) Proper minutes of all proceedings of the Central Council shall be kept unless the terms of
any reference to the Council require an agreed report to be submitted in lieu of such minutes.
Sub-committees.
6. (1) The Central Council may establish such standing or special sub-committees as
may be required, with appropriate terms of reference, and may delegate to any such subcommittee any of the functions of the Council.
(2) With the agreement of both sides, persons who are not members of the Central Council
may be appointed to any sub-committee established under this regulation.
(3) A sub-committee established under this regulation may be empowered to co-opt any
person whose knowledge or experience of a particular matter may be of assistance to the subcommittee, but such person shall only take part in the deliberations of the subcommittee to
such extent as may be agreed between the leaders of the representatives of each side on the
sub-committee.
Joint Industrial Council.
7. (1) There shall be a Council, to be known as the Civil Service Joint Industrial
Council, which shall carry out the functions set forth in regulation 8 in relation to subordinate
staff.
(2) The Industrial Council shall consist of twelve representatives nominated to the Council by
the Government and twelve representatives nominated to the Council by the Kenya Civil
Servants' Union.
(3) No person shall be nominated as a representative to the Industrial Council unless he is a
serving civil servant:
Provided that where the general secretary of the Kenya Civil Servants' Union is not a serving
civil servant he may, with the agreement of the chairman of the Council, be nominated by the
Union as a representative on the staff side.
(4) Each side of the Industrial Council shall appoint one of its representatives on the Council to
be the secretary for that side.
(5) Each side of the Industrial Council shall appoint one of its representatives to be the
chairman of that side, and the chairman of the official side shall be the chairman of the
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Council and the chairman of the staff side shall be the vice-chairman of the Council.
(6) Either side may at any time replace a representative on the Industrial Council and may fill
any temporary vacancy arising in its representation from any cause.
Functions of the Industrial Council.
8. The functions of the Industrial Council shall include
(a) the securing by means of regular discussions the greatest measure of co-operation
between the Government, in its capacity as employer, and the subordinate staff in all matters
affecting the Civil Service;
(b) the negotiation of the general terms and conditions of service of subordinate staff,
including remuneration, superannuation, leave, housing and medical benefits, and the general
aspects of promotion and the principles upon which promotion should rest;
(c) the determination of the general principles underlying disciplinary action;
(d) the promotion and encouragement of educational, in-service and other training, facilities in
relation to duties performed by subordinate staff.
Procedure of Industrial Council.
9. (1) No business shall be transacted by the Industrial Council unless there are at
least five representatives of each side present.
(2) Not less than fourteen days before a meeting of the Industrial Council an agenda, agreed
to and signed by the secretary for each side, shall be circulated to all members of the Council
by the secretary for the official side, and at a meeting of the Council no matter which is not on
such agenda shall be dealt with without the permission of both the chairman and the vicechairman of the Council.
(3) Where either side wishes to submit any memorandum or other document for the
consideration of the Industrial Council, that side shall supply to the secretary for the official
side a sufficient number of copies of the memorandum or other document for circulation to all
members of the Council and for record purposes. (4) Proper minutes of all proceedings of the
Industrial Council shall be kept and circulated to all members of the Council.
Sub-committees.
10. (1) The Industrial Council may establish such standing or special sub-committees
of its members as may be required, with appropriate terms of reference, and may delegate to
any such subcommittee any of the functions of the Council.
(2) A sub-committee established under this regulation may be empowered to co-opt any
person whose knowledge or experience of a particular matter may be of assistance to the subcommittee, but any such person shall serve only in an advisory or consultative capacity.
Arbitration.
11. Where any trade dispute comes before the Central Council or the Industrial
Council, and the Council cannot come to an agreement thereon, either side of the Council may
report the trade dispute to the Minister in accordance with section 4 of the Act.
Ministry Committees.
12. (1) There shall be established in each Ministry of the Government and, with the
approval of the Minister, in each major Department of the Government, a Whitley Committee
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and a Civil Service Joint Industrial Committee.
(2) A Committee shall perform, in relation only to the senior staff or the subordinate staff, as
the case may be, of the Ministry or Department concerned, the functions conferred upon the
Central Council or the Industrial Council by these Regulations.
(3) The chairman of a Committee shall be the Permanent Secretary of the Ministry concerned
or his representative, or, in the case of a Departmental Committee, the Head of the
Department concerned, or his representative.
(4) Where any trade dispute comes before a Committee and the Committee cannot come to
an agreement thereon, the Committee shall forthwith refer the matter to the Central Council
or to the Industrial Council, as the case may be.
(5) Except as otherwise provided in this regulation, the provisions of these Regulations
relating to the Central Council or to the Industrial Council shall apply to a Whitley Committee
or a Civil Service Joint Industrial Committee, as the case may be.
Regulations under section 51
L.N. 280/1974
THE TRADE DISPUTES (LEVIES AND SUBSCRIPTIONS OTHER THAN TRADE UNION
DUES) REGULATIONS
1. These Regulations may be cited as the Trade Disputes (Levies and Subscriptions other than
Trade Union Dues) Regulations.
2. (1) The Minister may, in accordance with these Regulations, by order, authorize the
collection from trade union members of
(a) levies (other than trade union dues); or
(b) subscriptions (other than trade union dues), for purposes or objects approved by him and
specified in such order.
(2) An employer who employs not less than ten members of a particular trade union or a
branch thereof may be required by an order under this regulation to deduct a specified sum
from the wages of members of that union or branch thereof, employed by him, and to make
payment of the total sum so collected to that trade union.
3. Subject to the provisions of its registered constitution or rules, any trade union may make
written application to the Minister for an order under regulation 2, and every such application
shall be signed by the general-secretary of the trade union so applying and contain the
following particulars
(a) the purposes and objects of the collection for which the approval of the Minister is desired;
(b) the number or category of members, or branch of the trade union, to be affected by the
proposed collection;
(c) the total sum sought to be collected;
(d) the exact sum sought to be deducted from the wages of the members concerned;
(e) the date on which, or the period during. which and the intervals at the end of which, the
deductions are sought to be made;
(f) the name and address (and account number, if any) of the bank of the trade union
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concerned to which payment is to be required to be made;
(g) the authority pursuant to which and the manner in which the proposed collection purports
to have been authorized by the membership of the trade union or branch to be affected by
such collection.
4. (1) Subject to the provisions of paragraph (2) of, this regulation, the Minister may approve
or reject an application under regulation 3 for an order.
(2) The Minister shall refuse any such application in respect of a collection which has, or
appears to him to have or to be likely to have, as any of its purposes or. objects
(a) the payment of expenses of or in connection with the administration of any trade union or
branch;
(b) the payment of salaries, allowances or expenses of any of the officers of any trade union
or branch;
(c) the prosecution or defence of any legal proceedings to which a trade union or any member
thereof is a party, whether such Legal proceeding concerns the rights of a member arising
from his relationship with his employer or with another member or otherwise;
(d) the conduct or furtherance of any trade dispute on behalf of a trade union or any member
thereof;
(e) the payment of compensation for loss arising from a trade dispute to any member of a
trade union;
(f) the payment of allowances to members of a trade union or their dependants on account of
any unemployment, accident, sickness, old age or death;
(g) the payment of any subscription or fee to any federation to which the union making the
application may be affiliated;
(h) the payment of any fine or penalty imposed on any person by a court;
(i) any other purpose or object which the Minister may by notice in the Gazette, declare to be
a purpose or object in respect of which a collection shall' not be made pursuant to these
Regulations.
5. The Minister may at any time in writing revoke, vary or suspend any order made under
these Regulations in which event written notice thereof shall be given forthwith to the generalsecretary of the trade union concerned.
6. The general-secretary of a trade union in respect of which the Minister has made an order
under these Regulations may at any time serve on an. employer who employs not less than
ten members of that trade union a notice in writing requiring the employer to comply with the
Minister's order in respect of the employees who are named in any such notice and who have
acknowledged by their signatures therein that they are members of that trade union and, as
the case may be, of a branch thereof specified in the order.
7. Every employer on whom a notice is served under regulation 6 shall comply with the
Minister's order referred to therein subject as follows
(a) where an employee notifies the employer in writing that he is not a member of the trade
union or, as the case may be, of the branch concerned, no deduction or payment shall be
made in respect of the wages earned by that employee in any month following the month in
which such notice was given, unless or until such notification is withdrawn;
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(b) a deduction or payment shall only be made from the wages due to any employee where
those wages, after all deductions required or permitted to be made by or under any other law
have been made, exceed the sum which is required by the order to be deducted;
(c) the first deductions and payments made in pursuance of the notice shall be made in
respect of the wages earned in the month following the month in which the notice is served;
(d) no deduction or payment shall be made in respect of any wages earned in any month if
before the twentieth day of that month the Minister's order has been revoked or suspended
and that revocation or suspension has been published in the Gazette or communicated by the
Minister directly to the employer;
(e) where any order made by the Minister is varied before the twentieth day in any month and
the order making the variation has been published in the Gazette or communicated by the
Minister directly to the employer, any deduction or payment made in respect of wages earned
in that month shall be made in accordance with the terms of the order as so varied;
(f) no deduction or payment shall be made by an employer in respect of or during any month
in which any of his employees, who is a member of trade union or branch concerned, takes
part in any strike, unless and to such extent as the Minister otherwise directs by notice in
writing to the employer.
8. No sum deducted from the wages of any employee by the employer under these
Regulations shall in any event be recoverable from that employer by his employee.
9. Every trade union authorized to collect levies under these Regulations shall keep written
records of income and expenditure accounts in respect of the total sums collected and shall
submit its return to the Registrar within sixty days after the 31st December in every year or
after the expiry date of the Minister's order as the case may be.
10. (1) The sums collected by a trade union in respect of levies or subscriptions under these
Regulations shall not be used for purposes or objects other than those approved by the
Minister's order.
(2) Any person who contravenes this regulation shall be guilty of an offence and liable to the
penalty prescribed under subsection (2)
11. (1) No employer shall make deductions from the wages of any employee who is not a
member of a trade union authorized to collect levies or subscriptions by an order under these
Regulations.
(2) Any employer who contravenes this regulation shall be guilty of an offence and liable to
the penalty prescribed under subsection (2) of section 52 of the Act.
Orders under regulation 2 of the above Regulations are not reproduced as they are transitory
in effect
Rules under section 58 (1)
L.N. 186/1965, 4 of 1973, Sch
THE INDUSTRIAL COURT (PROCEDURE) RULES
1. These Rules may be cited as the Industrial Court (Procedure) Rules.
2. In these Rules, unless the context otherwise requires "Court" means the Industrial Court,
and includes, unless the contrary intention appears, the Judge, any division thereof and any
deputy to the Judge to whom a matter may be referred for determination;
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“division” means a Court, constituted as the Judge may direct, sitting under a deputy to the
Judge to hear and determine any matter referred to the Court;
"Judge" means a Judge of the Industrial Court.
3. The Court may sit in one or more divisions.
4. Any matter referred to the Court for settlement may, with the consent of both parities, he
heard and determined by a single Judge.
5. The Court may, with the consent of both parties, in any, matter in which it appears
expedient to do so, call in the aid of one or more assessors, and may settle the matter wholly
or partially with the assistance of such assessor or assessors.
6. Persons may, with the permission of the Court, be represented by counsel in proceedings
before the Court.
7. (1) Where any trade dispute exists and the parties are desirous of referring such dispute to
the Court, the parties shall make application to the Court in Form A in the Schedule, and the
Court shall thereupon take cognizance of the dispute and register the dispute in the Court
Register.
(2) Any party subject to any order made upon it under the provisions of Part V of the Act, and
desiring to appeal against such order, shall apply to the Court for leave to appeal in Form B in
the Schedule.
(3) Any party subject to an order made upon it under Part V of the Act and who has been
refused leave to appeal against such order, or who has been a party to an appeal against such
order which has been determined by the Court, and who desires the Court to entertain a
further appeal against such order or determination, may apply to the Court in Form C in the
Schedule.
(4) Any reference made to the Court by the Minister under section 33 (1) of the Act shall be
made in Form D in the Schedule.
(5) Any reference made to the Court by the Minister under section 39 of the Act shall be made
in Form E in the Schedule.
8. The Judge shall notify the parties to a dispute referred to the Court of the registration
number of the dispute and shall fix the date and place of hearing of the dispute.
9. The Judge shall determine the deputy to hear a dispute and shall determine whether the
deputy shall sit alone or with other members.
10. The Court shall be deemed to be in continuous session, there being no vacations or
periods during which the Court is closed.
11. (1) Each party to a dispute referred to the Court shall, within such period as the Court
may direct, being not less than seven days after the date of such direction, present to the
Court. a memorandum setting out
(a) in the case of the claimant
(i) the nature and full particulars of each item of the claim involved in the dispute and as
stated in the terms of reference to the Court;
(ii) the class or classes of workers to whom the dispute relates; and
(iii) such submission as the claimant party may wish to make in support of its claims; and
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(b) in the case of the respondent
(i) such reply as it may wish to give in the items of the claim raised in the claimant's
memorandum;
(ii) an admission of such submissions set out in the claimant party's memorandum as the
respondent admits, and a denial of any such submissions as the respondent party does not
admit; and
(iii) any submissions which the respondent party may wish to make in support of its reply.
(2) Each party to the dispute shall submit six copies of his memorandum to the Court and six
copies of such matters as in the opinion of the Court require clarification or amplification under
rule 13.
12. The time specified in rule 11 for the delivery of memoranda referred to in subparagraphs
(u) and (b) of paragraph (1) of that rule may be extended by the Court on the joint application
of the parties:
Provided that the Court may grant such extension of either of the dimes specified on
application in writing of either of the parties.
13. Where the Court considers that either the memorandum of the claimant or the reply of the
respondent does not set forth adequately the particulars required by the Court, or for any
other reason the Court requires clarification or amplification of any submission by a party, the
Court may require the party to provide such further detail as it may consider necessary within
such period as it may determine, and the party so required shall provide to the other party to
the dispute such clarification or amplification as is required.
14. The parties shall notify the Court when submitting their memoranda under rule 11 of any
witnesses they propose calling in support of their submissions and shall at the same time
notify the other party to the dispute, but the parties shall be at liberty to call further witnesses
with the permission of the Judge or deputy to the Judge.
15. (1) Evidence of witnesses shall be given on oath or affirmation and shall be subject to
cross-examination.
(2) Evidence by affidavit shall be admissible before the Court at the discretion of the Court.
16. In the event of documents being submitted by either party in support of a submission,
they shall be in original or, where these are not available, by certified copy of the original.
17. The Judge shall determine whether or not the hearing of a dispute shall be open to the
public.
18. (1) The Court shall notify the parties to a dispute, as soon as practicable after the hearing
of the parties and their witnesses, of the date on which the parties shall be present to hear the
award of the Court, and thereafter a copy of the award shall be available to the parties.
(2) The Court shall, after hearing or not hearing the parties and their witnesses ad it may
decide, notify the parties to any appeal under section 32 or 40 of the Act of the date upon
which the parties shall be present to hear the determination of the Court, and thereafter a
copy of the determination shall be available to the parties.
19. (1) The Judge shall cause the award to be published in accordance with section 16 (2) of
the Act, and shall forward a copy of the award to the Minister.
(2) The Judge shall cause every determination made under section 32 of the Act to be
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published in the Gazette, and shall forward a copy of the determination to the Minister.
(3) The Judge shall cause every determination made under section 40 of the Act to be
published in the Gazette, and shall forward a copy of the determination to the Minister.
20. The Court shall cause any clerical mistake, incidental error or omission to be rectified
without further reference to the parties and shall notify the parties of such mistake, incidental
error or omission.
21. In the event of either or both of the parties to any dispute which has been settled by
award of the Court requiring interpretation of all or any part of the award. the party or parties
shall notify the Court in Form F in the Schedule, and the Court shall thereupon take
cognizance of such further reference and proceed to give interpretation in accordance with
section 16 (5) of the Act.
22. (1) The Court may, when considering an application made under rule 7 (2) or leave to
appeal, use any of its powers to obtain evidence with a view to deciding whether there are
substantial grounds for an appeal.
(2) If the Court is not satisfied that there are substantial grounds for an appeal, the Court may
refuse leave to appeal.
(3) The Court, when considering an application made under rule 7 (3), shall dismiss the
application unless it is satisfied that the further appeal sought raises, fresh facts or matters, or
other facts or matters which could not with reasonable diligence have been raised on the first
appeal or upon the application for leave to appeal. 23. Subject to these Rules, the Court may
regulate its own procedure.
SCHEDULE
(rr. 7 and 21)
FORM A
The Judge,
The Industrial Court.
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . .
NOTIFICATION OF DISPUTE
In accordance with the provisions laid down in section 14 (7) of the Trade Disputes Act,
notification is hereby given of the existence of a trade dispute between:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the employer, and . . . . . . . . . . . . . . . . . . .
. . . . . . . . representing the following class or classes of worker, . . . . . . . . . . . . . . . . . . . . .
...................................................................
...................................................................
. . . . . . . . . . . . . The issues in dispute between the parties are:
........................................................
(each item to be detailed)
and in accordance with the procedure laid down in our Agreement on recognition and
negotiating procedure we have discussed these issues and have failed to reach a settlement.
We, therefore, notify the Court that, in accordance with the provisions of section 14 (9), this
matter is not subject to any other sections of the Trade Disputes Act, and request the Court to
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take cognizance of the existence of a trade dispute.
.....................
Employer
.....................
Employees
Note -This letter of notification must be signed by a General Manager or Director on behalf of
the employer and by the General Secretary of a trade union representing the employees.
_________________________
FORM B
The Judge,
The Industrial Court,
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . . . . . .
LEAVE TO APPEAL
1. I/We . . . . . . . . . . . . . . . . . . .being subject to an order made by the Minister under
section 32 of the Trade Disputes Act, do hereby apply for leave to appeal to the Court against
such order.
2. I/We do lodge with this Court a statement of my/our grounds of appeal and of all material
particulars in respect to my/our application, and this is attached hereto as Appendix - A - .
3. I/We do wish to support my/our application for leave to appeal by calling/submitting the
evidence/affidavit of my/our witness/es.
4. 1/We wish/do not wish to appear before the Court and wish/do not wish to call the
witness/es named hereunder in support thereof:
...................................................................
...........................................................
.....................
Applicant
___________________
FORM C
The Judge,
The Industrial Court.
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . . . . . .
1. I/We, having made representation to the Court against the effect of an order made by the
Minister under section 32 of the Trade Disputes Act, and being subject to a determination of
the Court in support of the order by the Minister, I/we do hereby make further application to
submit to the Court additional facts and or material particulars.
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2. I/We certify that this submission could not have been made on . . . . . . . . . . . . . . . . . . . .
. . . when my/our application for leave to appeal was made on the grounds that
...................................................................
...................................................................
..............................................
3. I/We do hereby submit that my/our application to offer supplementary evidence/affidavit be
admitted and considered by the Court in support of my/our application against the order of the
Minister.
.....................
Applicant
_________________________
FORM D
The Judge,
The Industrial Court,
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . . . .
I have received notice of a trade dispute between the parties:
...................................................................
...........................................................
2. In accordance with section 33 (1) of the Trade Disputes Act, settlement of the claim has not
been effected under paragraphs (a), (b) or (c) of that subsection.
3. I report to you the existence of a trade dispute between these parties and refer the dispute
to you. Details of the issues in dispute are as stated in Form A attached hereto.
............................
Minister for Labour
___________________________
FORM E
The Judge,
The Industrial Court,
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . . . . . . . .
ESSENTIAL SERVICES
In accordance with the provision of section 39 of the Trade Disputes Act, I refer to your Court
the existence of a trade dispute between the parties: ...................................................................
...................................................................
..................................
being subject to the First Schedule to the Act.
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2. The issues in dispute are as detailed in Form A.
...........................
Minister for Labour
__________________________
FORM F
The Judge,
The Industrial Court,
P.O. Box 47606,
NAIROBI.
Date . . . . . . . . . . . . . . . . .
INTERPRETATION OF AWARD
In accordance with section 16 (5) of the Trade Disputes Act, the subscribing party hereby
makes application to the court for interpretation of clause . . . . . . . . . . . . . . . . . . . . of the
award, in Cause No. . . . . . . . . . . . . . . . dated . . . . . . . . . . . . . . . .
2. The . . . . . . . . . . . . . . . . . . . . . . . party submits that the award requires interpretation in
respect of this clause and encloses herewith the requisite memoranda in support of its appeal
for interpretation. The . . . . . . . . . . . . . . . . . . . . . party wishes/does not wish to be heard in
respect of interpretation and intends/does not intend to call witnesses in support of its claim.
.......................
Applicant.
Note. - Any claim for interpretation must be signed by the signatory to the original notification
of dispute to the Court.
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