The Re-constituted Industrial Court Of Kenya And The Role Of The Social Partners
October 4, 2012
A Discussion Paper on the occasion of the COTU [Kenya] Capacity Building Workshop for Executive Board Members and General-Secretaries
Delivered at The Tom Mboya Labour College, Kisumu, 28th September 2012
By The Hon. Mr. Justice James Rika, Judge of the Industrial Court of Kenya
1. Industrial Court and Social Dialogue
3. Move into the Judiciary
4. Expectations and conclusion
1. INDUSTRIAL COURT OF KENYA AND SOCIAL DIALOGUE
The Industrial Court of Kenya is an Institution of Social Dialogue. Social Dialogue has been described by the International Labour Organization [ILO] to include all types of negotiation, consultation, exchange of information and collective bargaining. The Industrial Court plays an important role in facilitating social dialogue.
The traditional players in social dialogue are the governments, employers and employees. These form the social partnership. They dialogue about issues of common interest, particularly issues that involve socio-economic policies. Dialogue comes from the Greek word ‘dialogos’. ‘Logos’ means the word, while ‘dia’ means through. Professor David Bohm of the University of London explains that dialogue is a stream of meaning, flowing among and through us. It flows to the whole group, out of which will emerge a new understanding. Social dialogue must involve social partners and a facilitator. This facilitation role is principally played by the Industrial Court.
The aim of social dialogue is to reach a new understanding and in doing so, form a totally new basis from which to think and act. A properly functional process and institution of social dialogue should be able not only to solve problems, but to dissolve them. One of the problems we have encountered as participants in social dialogue is the recurrence of the same disputes. We have negotiated and agreed on wage increments, and called off strikes; some years later, agreements have been broken and strikes called again. The Industrial Court is inundated with disputes over the same issues. The demarcation disputes in the hotel Industry are endless. Social dialogue has not resolved and dissolved these differences.
Among the social partners and their facilitative Institutions of Social Dialogue, it is important to appreciate the distinction between social dialogue and social debate. I did not know the difference until I was invited for this occasion, and was compelled to read some material by Daniel Yankelovich  under the title ‘The Magic of Dialogue.’ According to him, social dialogue and social debate are cousins who have important distinctive features.
- In Social Dialogue, the participants assume there are many valid, if partial views and that together, a group can develop a better although still imperfect view than any one alone; in Social Debate, the participants assume there is one true and complete way of looking at things, and that must be discovered through the rational contest of ideas.
- Social Dialogue is collaborative: participants work together toward a common understanding by trying to appreciate new perspectives; Social Debate is combative: participants attempt to find the truth by searching for flows in the argument of others.
- Social Dialogue is about exploring common ground; Social Debate about winning your point.
- Social Dialogue is about listening to understand, find meaning and agreement; Social Debate is about listening to find flaws and develop counter arguments.
- Social Dialogue focuses on revealing assumptions for re-evaluation; Social Debate defends assumptions as the truth.
- In Social Dialogue the parties re-examine all positions; Social Debate is about critiquing other’s positions.
- Social Dialogue encourages participants to admit that others’ thinking can improve one’s own; Social Debate encourages the participants to defend their own views against those of others
- Social Dialogue is characterized by decision through consensus; Social Debate ends in a decision through voting, or by an imposed decision of a Court.
Yankelovich argues that Social Debate has its place such as in an academic journal or an adversarial court system. However, because it is based on conflict, it has little potential for creating new insights. It strains the relationship between the participants. Social Dialogue is a more accepting process that values synthesis over analyses, and assumes that many heads are better than one.
Social Partners are supposed to engage in Social Dialogue, not Social Debate. The Industrial Court was intended, unlike the Mainstream Judiciary, to facilitate Social Dialogue and not Social Debate.
Society is changing. The effects of globalization have been felt everywhere. This has brought about the issues of sustainable development. It has widened the scope of social dialogue. Labour laws and policies have become a concern of a wider constituency than the traditional social partners. The parties to social dialogue have changed, and the Institutions that facilitate this activity have changed.
Non-Governmental Organizations have for instance, played a major role all over the world in discovering and denouncing child labour abuses. They have been at the forefront of lobbying and advocating policy reforms. They have played a big role in implementation of the ILO programmes on elimination of child labour. The ILO tripartite policy making structure did not guarantee these NGOs formal rights to influence policy; the ILO accommodated them, by widening its social dialogue. NGOs have been accorded regional or general status at the ILO. The UN Global Compact, an initiative of the UN Secretary General and leading Multi- National Enterprises, has adopted holistic approach; labour, human rights, environmental and anti-corruption themes form a ten point agenda for building the social legitimacy of businesses.
Here in Kenya, it has become apparent that social dialogue must involve a wider constituency than the traditional tripartite players- the Government, Employers and Employees. The case pursued by COTU[K] against the N.H.I.F on health insurance contributions; and the case filed by the Law Society of Kenya on the Constitutionality of certain sections of the Work Injury Benefits Act No. 13 of 2007, demonstrate that there is need to involve other relevant actors. By doing so, the social partners gain wider perspective of diverse views and build wider consensus. They also promote and broaden support for Labour Reforms.
Social Dialogue has been bipartite, involving the Employers and Trade Unions. It has also been tripartite, drawing in the Government. This has been the area of the Industrial Court’s facilitation. Changes in the world, and particularly in the world of work, have introduced another angle to social dialogue; there is now a tripartite-plus form of dialogue. Tripartite-plus calls on us the traditional social partners to extend the dialogue to other social actors. This reality has forced the changes on the Industrial Court; it is no longer feasible to isolate ourselves and facilitate social dialogue on the single issue of labour. It has become imperative anchor the Court in the Constitution, and to elevate the subjects of social dialogue to Constitutional rights and freedoms. The Court and the expanded Social Partners, now have the challenge and the opportunity of fully moving from Social Debate to Social Dialogue under the cover of the Constitution, and in doing so, resolve and dissolve disputes that arise in the society.
The Trade Union Ordinance of 1962 provided for settlement of trade disputes through conciliation and if necessary, an arbitration panel or board of inquiry. The Tripartite Agreement concluded by the Government, Employers and Employees on 10th February 1964 established an Industrial Court to which all disputes unresolved by voluntary negotiating machinery would be referred for arbitration. The Industrial Court was founded on tripartism expressed not in the law or the constitution of the country, but by a social document concluded by the social partners.
The Court entered into the law books later on in 1964, with the enactment of the Trade Disputes Act. It was granted recognition under this law. In 1965 the Act was amended further to make the Industrial Court a standing body. More reforms were carried out in 1971. The Court was presided over by one Judge, who was initially referred to as the President, and then Chairman. He was assisted in his work by members who were appointed by the Minister of Labour with the concurrence of COTU [K] and the F.K.E. At some point the Minister of Finance was also to be consulted in the appointment. It was recognized early that there is need for a broad involvement of the social partners in designing the Industrial Court. Judges could appoint two assessors, one from COTU [K] and the other from F.K.E if they deemed them necessary in the proceedings. The panel of assessors was to be created by COTU [K] and the F.K.E. The people were intended to be represented in the Industrial Court not only through the Institution of members, but also that of assessors.
In 2001 the Attorney General appointed the Cockar Task Force to rewrite all the labour laws in Kenya, within a project of the International Labour Organization. The effort resulted in a several new laws, among them the Labour Institutions Act Number 12 of 2007. The Industrial Court was re-established under section 11 and conferred a far-reaching and exclusive jurisdiction in all labour matters. The President was granted the discretion to appoint as many Judges as he thought fit, upon consultation with the Judicial Service Commission. Members were retained, and their numbers left to the discretion of the Minister, acting on the advice of the National Labour Board. A Judge retained the discretion to sit with two assessors, one from the employers and the other from the employees, in a list of assessors submitted by parties to the dispute. The manner of appointing members and assessors has kept changing. In practice the appointment of members has not always been preceded by the necessary participation of the social partners. The provisions on assessors have never been put to use. Proceedings of the Industrial Court will show that we have never used assessors in our dispute resolution. The Court was elevated to the same level with the High Court, but was still hampered by its lack of recognition under the Constitution; the High Court felt the Industrial Court remained a subordinate Court, under its supervisory jurisdiction. The Cockar reforms did not achieve the objective of sheltering the Industrial Court as an Institution that could render final and binding decisions. The Social Partners therefore agitated for constitutional inclusion.
The country adopted a new Constitution in August 2010. Article 162  [a] provides that Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to employment and labour relations. Under this framework, Parliament enacted the Industrial Court Act Number 20 of 2011 which established the present Court under section 4. The number of the judges to sit in the new Court has again been left to the President and the JSC. Members have been discarded, with the constitution of the Court for purposes of its proceedings restricted to a single Judge. Assessors, like members have been left out of the Court’s makeup.
My own view is that we did not give adequate thought to the phasing out of members and assessors from the Industrial Court. In the developed European Democracies such as Belgium, Germany, Netherlands and England, the Industrial or Labour Courts have lawyers and non-lawyers constituting their Courts. Finland has a total of 16 judges, 4 with legal training, and 12 with labour market background. The non- lawyers are commonly referred to as lay judges, to distinguish them from the professional judges. They have been in use since the early years of the last century and are found suitable to sit with the professional judges because they provide professional knowledge and experience; they strengthen the confidence of the Court; they enable citizens to supervise the functioning of the judicial system; they contribute to the acceptability of the decisions of the Court; and are argued to be cheaper than lawyers. These were the underlying factors why it was necessary to have members and assessors from the inception of the Court. In the present Judicial Reforms, the case has been argued for inclusion of the people in judicial determinations. Hon. Justice Edward Muriithi of the High Court Mombasa has argued strongly, that the involvement of the people in judicial functions is vital, and could lead to Courts without legally trained judges in 100 years. We would like the social partners to be engaged more, and because you have the background in running a true people’s Court, should in fact rid the Industrial Court of lawyers in less than 50 years. The Industrial Court of Ireland functions without a trained lawyer from among its judges.
The Industrial Court Act has encountered several problems, mostly on the subject of transition. The provisions relating to the tenure of serving Judges have resulted in litigation before the High Court and we cannot discuss that here, in deference to the principle of sub-judice. There were conflicting signals on the position of the serving Court members, with the Act expressly stating the Court was properly constituted for the purpose of its proceedings by a single Judge, while preserving the terms of service of all Court employees in other provisions. The Attorney General proposed amendments to the Act under the Statute Law [Miscellaneous Amendments] Bill 2012. The proposals were in the nature of re-writing an entire Act of Parliament under the guise amendments. Among the proposals was to change the name of the Court, from the Industrial Court to Employment and Labour Relations Court. The argument was that this would be in agreement with the wording of Article 162  [a] of the Constitution. The Article however does not compel Parliament to create a Court called Employment and Labour Relations Court; it merely says Parliament shall create Courts to hear and determine disputes in employment and labour relations. Others argued that they needed to break away from the old Industrial Court, but what value addition does that give to the Kenyans, given the rich heritage of the Industrial Court? South Africans have the Labour Court and Nigerians have the Industrial Court. It is not important to rebrand; the important reform is in entrenchment of the Industrial Court under the Constitution. COTU [K] made very erudite and point by point response to the proposed amendments. The new Judges retreated to Mombasa last week and discussed the proposed amendments, and I am glad to note that a majority of us agreed with COTU [K] on most proposals, including on the name of the Court.
Law is not static and changes will always be made to our laws. There is need however to be cautious not to make laws in a hurry and then spend the rest of our lives tinkering with those laws. The Industrial Court Act needs minimal changes. The Social Partners have been through many comprehensive reforms from 2001, and need to settle down and work. We cannot spend all our resources in hotels discussing new law and rules. There must be a period of quiet implementation of the laws. We cannot keep naming and renaming the Industrial Court and changing its constitutive and procedural laws.
3. ENTRY INTO THE JUDICIARY
The Industrial Court has now been integrated with the traditional judiciary. It remains a specialized Court, but removed from the Ministry of Labour to the Judiciary. Industrial Courts that function outside the traditional judiciary are sometimes misunderstood and characterized as bastard judiciaries. No one in a democratic country would wish to see the growth of a runaway judiciary badly in need of restraint. I do not think that the old Industrial Court had attained this status. Reform and entry into the mainstream judiciary was driven not by any complaints that we were not delivering under the old order. The Industrial Court has always exceeded its performance targets in the Ministry of Labour for as long as I can remember.
Specialization in labour dispute resolution is premised on the theme of enabling the impoverished working class, to access industrial justice. It was recognized long ago that this class would have difficulties in accessing industrial justice. The traditional judiciary, into which we have been pushed, was viewed as being systematically opposed to workers’ interests in unionization and collective action. Traditional judiciaries, and this is not restricted to Kenya, were deemed to be biased in favour of the employers, or at the very least being unaware of the plight of workers.
Although we have moved into the domain of the traditional judiciary, the Constitution has retained our specialization. Access to justice is guaranteed. Article 48 makes it the duty of the State to ensure access to justice for all including employees and employers, and if any fee is required to be paid, it shall be reasonable and not impede access to justice. Article 22 grants every person the right to institute court proceedings in enforcement of a bill of rights, and provides for individual as well as representative proceedings. Article 258 extends similar access to similar persons with regard to enforcement of the constitution. Under Article 22, the Chief Justice is required to make rules to govern proceedings brought under Article 22 and in doing so, shall be guided by the following principle: formalities relating to proceedings are kept at a minimum; if necessary, proceedings to be on the basis of informal documentation; court not to be unreasonably restricted by procedural technicalities; and the Court to allow the participation of friends of the Court. These guidelines reflect the type of rules that have governed the Industrial Court Procedures from the very beginning. They in a special way are the product of our social dialogue. It is important to know that the Industrial Court can now deal with the interpretation of the Constitution in so far as such interpretation, relates to matters within the jurisdiction of the Industrial Court. This mandate has been confirmed recently by the High Court Constitutional Bench in a case involving COTU [K] and the U.S.I.U before Hon. Justice Majanja. We can already see the benefits of our re-establishment under the Constitution.
These gains suggest that the apprehension that employees will no longer have easy access to industrial justice may be more apparent than real. We as a Court have a clear mandate. The new judicial architecture, creating a specialized Court for employment and labour relations, favours unity of labour law. This will avoid fragmentation of labour law, and avoid the wasteful debate about which Court is competent about which question. It has been pointed out that the jurisprudence of the traditional judiciary on employment matters has not always been in agreement with that of our system. Until the passing of the Employment Act 2007, the mainstream judiciary did not recognize the law of unfair termination. There are many other areas such our interpretation on legal personality; contractual capacity; privity of contract; casual labour; representation of employees by trade unions; the position of the industrial relations charter; and the agency fees. The Industrial Court in its current composition is more attuned to developing consistent doctrines of social law. In applying a provision of the bill of rights, Article 20 [a] binds the Court to develop the law to extent that it does not give effect to a right or fundamental freedom. The social partners are way ahead in this area, and the decisions of the Industrial Court have always defied conventional contractual positions and rigid legal posturing, in determining labour disputes. We have not been unduly tied down to conservative legal principles, and this departure has greatly influenced the characterization of the Industrial Court of Kenya as a bastard judiciary.
4. EXPECTATIONS AND CONCLUSION
As I mentioned earlier, we face challenges as well as opportunities. In the short term, we are not likely to achieve a consistent regime of social law. We are many Judges with different legal backgrounds. Early decisions may be affected by the influences from our areas of legal practice. There is a general Court of Appeal which may not always appreciate the justification in the Industrial Court’s departure from certain legal principles. It would have been a good idea if the specialization given to the Industrial Court, had been carried up the hierarchy of Courts, through the creation of an Industrial Court of Appeal. Fragmentation labour law may be perpetuated by a generalist Court of Appeal, particularly given that the majority of the Judges in those Courts have not looked favourably upon the jurisprudence developed by the Industrial Court over the past 40 years. In my view, the authors of the Constitution should have provided for an appellate Court to deal with employment and labour relations appeals.
The number and intensity of trade disputes will go up. Employment and Labour Rights have been enshrined in the Constitution. Many employers and employees will converge at the Industrial Court fighting for space under the Constitution. The Registrar of trade unions will continue to face increased loads of registration disputes. These are what I see as the immediate challenges, as Kenyans rush for a piece of the constitutional dividend. Strikes are already on the rise. In the immediate future these social upheavals are likely to intensify as we learn that not all that is promised by the Constitution can be enjoyed immediately. The Industrial Court will be a busy litigation destination. The truth is that the Court will not have all the answers to all these chaos. Judges will issue orders restraining the chaos, but there will be no means to enforce such decisions. The Court may then be compelled to become a multi-door Court-house, sorting out which disputes it can handle; give executable decisions on; and, which disputes should be referred to the Alternative Disputes Resolution Mechanisms [ADR]. Parties will have realized that not all problems can suitably be resolved and dissolved at the Industrial Court.
The social partners are again ahead in the adoption of the ADR mechanisms. We have a good infrastructure that has been developed by the social partners over the years. We started with the comment that the Trade Union Ordinance of 1962, recognized conciliation and arbitration. The Trade Disputes Act developed ADR further, with trade disputes taken through informal consultations; report to the Minister; investigations; negotiations; conciliation; and consultations before Court intervention. Employers and employees have developed grievance procedures where disputes are resolved at the shop floor level. You have joint consultative councils. There are collective bargaining agreements that provide for conciliation and arbitration. The social partners have not fully engaged these mechanisms. Outside the statutory mechanisms administered by the Ministry of Labour, we have not seen the private institution of arbitration, as created in arbitration agreements contained in the CBAs, invoked in the resolution of labour disputes. The Labour Relations Act needs to be amended to reflect the shift into the constitutional era. Section 66  [c] for instance refers to the Conciliation and Mediation Commission. We do not have such a Commission in Kenya. The Social Partners may find it useful to establish such a Commission.
The ADR mechanisms are now enshrined under the Constitution under Article 159. There is no reason why the social partners should inundate the Industrial Court with all manner of trade disputes. Invoke the voluntary dispute resolution mechanisms more. COTU [K] and the F.K.E should take advantage of Article 159 and develop the institution of ADR. We should not be having so many disputes between trade unions and among trade union leaders, if COTU [K] exerted its considerable influence and intervened through facilitation of ADR mechanisms, to deal with these disputes. You may even consider creating a private COTU [K] Court of Arbitration. There is a mistaken notion in this country that creation of Courts, private and public, is a reserve of Parliament. You can create a COTU [K] or F.K.E private Court of Arbitration and source your Judges privately. The Industrial Court would assist in the enforcement of your private Court decisions. What the Constitution is asking us, is to liberalize the administration of justice. Dispute resolution must be spread out to the private sector. We need to see more lay judges in different sectors. What the Industrial Court and other public Courts should do is assist the proceedings of such mechanisms.
Not all disputes call for a legal solution. Matters that lead into strikes have proven in most jurisdictions, not to lend themselves to judicial settlement. Frequently Judges are asked to give injunctions, to provide some parties with more ammunition in pursuit of their positions at the collective bargaining forum. When the strike goes ahead, Courts feel their authority has been trampled under. It is difficult to see how strike action can be stopped by a judicial edict. There is no major strike which has ever been broken by judicial edict. Recent strike actions have not been resolved at the Courts. Many social and economic rights under Article 43 have been made actionable, but it is doubtful that a judicial pronouncement on such rights will become executable. Ultimately, the social partners and the Courts may come to view the Court Judgments in a broader perspective within the ADR Mechanisms. The International Court of Justice frequently makes reasoned Judgments which are expressed to be final and binding; the parties however go on to negotiate after the Judgment and frequently arrive at a better outcome. Court determinations do not always resolve and dissolve disputes. Administratively, the Industrial Court should have divisions: the ADR Unit; Employment Unit; Trade Union Unit; and the Social and Economic Unit. This is of course the prerogative of the Chief Justice, but our leader listens to all opinions. The ADR Unit would serve as the multi-door Court house where sifting, sorting out and forwarding of disputes to the most appropriate ADR Mechanisms would be done.
We must expect close interaction between the Judiciary and the Ministry of Labour. There have been problems at the beginning, but eventually we shall come to realize that the Constitution has an important role for all of us. Labour Officers shall continue to be involved in the voluntary resolution of labour disputes. There should be recruited more labour officers, and adequate training in ADR mechanisms be availed to them. The Economic Planning Division will continue to play a leading role in the settlement of economic disputes. Perhaps now more than ever, we need to have these economists closer to the Industrial Court. The Productivity Centre needs to make its work better known to the social partners and give its input in our overall understanding of labour productivity and wage increment. The Registrar of trade unions will have greater responsibilities under the Constitution. More trade union registration and electoral disputes will be brought before the Industrial Court.
I must conclude by paying homage to the social partners for their achievements over the years. You have set the standards in plenty of the reforms that are going on today. You greatly influenced labour laws through your active participation in legislation; filing and arguing of labour disputes; and the institution of social dialogue. Many good laws in labour have flowed from the principles you authored in the CBAs and in the Industrial Relations Charter. President Barack Obama said of the American Labour Movement,
‘’it was the labour movement that helped secure so much of what we take for granted today. The 40 hour week, the minimum wage, family leave, health insurance, social security, medicare, and retirement plans. The cornerstones of middle class security all bear the union label,’’
Another good American President John F. Kennedy said way back in 1963 that,
‘’ our labour unions are not narrow, self-seeking groups. They have raised wages, shortened hours and provided supplemental benefits. Through collective bargaining and grievance procedures, they have brought justice and democracy to the shop floor’
It cannot be doubted that the Kenyan Social Partners have made similar strides. Yours are more remarkable strides, considering the political culture under which you have influenced the history of this country.
We must continue to engage in social dialogue. As Justice Michael Kirby of the High Court of Australia, and a longtime Judge of the Industrial Court in that Country once said, ‘’The resort to ordinary courts by or against workers or trade unions has rarely proved useful in the urgent dynamics of industrial relations. A firefighter is sometimes needed. The ordinary Courts are not equipped to fulfill that role. The challenges ahead will be different and global. The workplace has changed forever.’’
Ultimately, we are now a Court that must prepare to meet the challenges of a changed workplace and a changed globe. The firefighting role will remain, but we must spread out the firefighting equipment to our social partners. That ladies and gentlemen, is my understanding on the legal dimensions of the new Court; the role of the social partners; and the expectations of everyone. Thank you for listening to me.
James Rika [LL.B University of Nairobi] [LL.M specializing in International Dispute Resolution, University of London], acting Principal Judge Industrial Court of Kenya.
1. The Constitution of Kenya;
2. The Trade Unions Ordinance of 1962;
3. The Trade Disputes Act Cap 234 the Laws of Kenya;
4. The Labour Institutions Act No. 12 of 2007;
5. The Labour Relations Act No. 14 of 2007;
6. Founding of the Kenyan Industrial Court’
John L. Brown and J. Douglas Muir, Cambridge
University Press, Journal of Modern African Studies,
Volume 14, No. 4 [December 1976] pp 700-705;
7.’ Kenya Industrial Court: Origin, Development and Practice’
Justice Saeed Cockar, Longman Publishers, 1981;
8. ‘Social Learning: Towards a Sustainable World’
Professor David Bohm
Wagenigen Academic Publishers,
The Netherlands 1999;
9. ‘Lay Judges in Labour Courts’
Isabelle Van Hiel, University of Ghent,
Social Law Department, 2010;
10. ‘The Magic of Dialogue: Transforming Conflict
Into Cooperation’ Daniel Yankelovich, New York, Touchstone 1999;
11. ‘The United Nations Global Compact: Achievements, Trends and Challenges’
Andreas Rasche and George Kell,
Cambridge University Press, 2010;
12. ‘Social Dialogue in the Process of Structural Adjustment and Private Sector’
ILO series 2005;
13. ‘Industrial Relations Law-Call off the Funeral’
Hon. Justice Michael Kirby,
Judge of the High Court of Australia[Deputy President Australia Conciliation and
Arbitration Commission 1975- 1983]; and,
14. High Court [Nairobi]
Petition Number 170 of 2012
United States International University [USIU] vs. the Attorney-General,
Eric Rading Outa & COTU [K], – Hon. Justice Majanja.