COLLECTIVE LABOUR RELATIONS

Introduction In an era of laissez faire1, employers enjoyed unfettered right to hire and fire.
They had vastly superior bargaining power and were in a position to dominate over workmen in every conceivable way. They naturally preferred to set terms and conditions of employment of workmen and abhorred statutory regulation thereof unless, of course, it was to their advantage. This tendency however, brought to surface the potentialities of collective bargaining. In the interest of labour management legal recognition has been accorded to trade unions, and their capacity to represent workmen, who are members of bodies. The expression collective bargaining was coined by Sydney and Beatrice2. There is no definition of the phrase Collective Bargaining which is unanimously agreed universally. In 1960 the Manual published by the International Labour Office defined collective bargaining as Negotiations about working conditions and terms of employment between an employer, a group of employers or one or more employers organisation on the one hand and or more representative workers organization on the other with a view to reaching agreement3. Golden, however, treats collective bargaining as a measure to distribute equitably the benefits derived from industry among all the participants including the employees, the unions, the management, the customers, the supplier and the public4. In the Labour Relations Act, 2007 Collective Bargaining has been defined under Section 2 to mean a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employees or organization of employers. Thus a recognition agreement is:a) - A written agreement b) - Made between a trade union and an employer or group of employers or organization of employers c) - Recognizing trade union as the representative of unionisable employees employed by the employer or by members of an employers organization

Salient features of Collective Bargaining

a) b) c) d) It is a group process i.e. involves representatives It is a process i.e. it is ongoing Deliberation rather than confrontations i.e. compromise and discussion It is a bipartite i.e. no third party intervention

It can be seen from the foregoing that collective bargaining in simple is a process by which the terms of employment and conditions of service are determined by agreement between management and the trade union.
1 2

Government abstention from interference with individual action, especially in commerce. Sydney and Beatrice, Industrial Democracy, (1897) 3 International Labour Office, Collective Bargaining (a Workers Education Manual), Geneva (1960), p 3 4 C S Golden, Causes of Industrial Peace under Collective Bargaining, USA, the National Planning Association, 1949. Odiwuor Kelly B.Com, LL.B, Dip-Law (KSL) http://www.oakadvocates.co.ke / odiwuork@oakadvocates.co.ke Advocate - 0721 438511 / 0734 438511 / 020 2242206 1 of 7

In effect, it is a business deal (which) determines the price of labour services and the terms and conditions of labours employment5. An analysis of Collective bargaining requires the description of: i. - Parties. ii. - Subject matter of collective bargaining and; iii. - Object of collective bargaining. Parties to Collective Bargaining. Collective bargaining involves two parties, namely, management represented either alone or through Employers Association or Federation of Employers on the one hand and workers represented either through a union or workers federation, on the other hand. The latter one, where provisions exist under law, are known as bargaining agent. It has however been debated time and again that a representative of the public should also be included to represent the interest of public at bargaining table. Recognition of Trade union as representative of employees is provided by section 54 of LRA, however, Section 2 of LRA defines recognition as an agreement in writing made between a trade union and an employer group of employers or employers organization regulating the recognition of the trade union as the representative of the interests of unionisable employees employed by the employer or by members of an employers organization. Items in a recognition agreement Labour Relations Act (LRA),2007 without limiting the matters that can be dealt in a recognition agreement, provides that the following matters may be dealt in a recognition agreement:- A recognition agreement shall provide for trade union members in a work place to elect from themselves trade union representatives in accordance within the constitution of the trade union. - A recognition agreement shall provide for an employer to grant trade union reasonable access to the employers premises for official or authorized representatives of the trade union to pursue lawful activities of the trade union. The lawful activities include:- Receiving members for the trade union - Holding meetings with members of the trade union and other employees outside of working hours. - Representing members of the trade union in dealings with employer and - Conducting ballots in accordance with the construction of trade union Subject matter of Collective Bargaining agreement. The International Labour Organization has divided the subject matter of collective bargaining into two categories:

2) 3)

i)

ii)

a) b) c) d)

James J. Healy (Ed.), Creative Collective Bargaining, Prentice Hall, 1965, p. 9 2 of 7

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i. ii.

i. Those which set out standards of employment which are directly applicable to relations between an individual employer and worker, ii. Those which regulates the relations between the parties to the agreement themselves and have no bearing on individual relations between employees and workers6. The first category includes subjects like wages, working hours (including overtime), holidays with pay and period of notice for termination of contracts. The second category includes items such as provisions for enforcement of collective bargaining, methods of settling individual dispute, collective disputes including grievance procedure and reference to conciliation and arbitration, recognition of a union as bargaining agents for workers, giving of preference in recruitments to union members seeking employment, duration of the agreement, undertaking not to resort to strike or lockout during the period and procedure for negotiation of new agreements. General contents of a Collective Bargaining Agreement A collective barging may deal with the following issue:Union Security a) Check off system b) Access to members or potential members c) Right and duties of shop stewards d) Leave for union activities ii) e) f) g) iii) a) b) c) d) e) f) iv) a) b) c) d) e) f) Hours of work Overtime and rates of pay Shift work Rest period Wages scales Basic pay and wages increase Housing allowance Piece rates Other incentive method Acting allowance Bonuses Types of leave Annual leave Compassionate leave Maternity leave Public holidays Sick leave Leave traveling allowance

4)

Bartram F. Willcox, A Sketch of the Federal Law of Labour in the United States Aligarh Law Journal, (1965) p.46 3 of 7

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v) a) b) c) d) e) f) g) h) i) j) k) l) m) n) o) p) q) r)

Others Redundancy principles and lay off procedures Uniform and protective clothing Medical treatment Training Warning system Safari allowance Letters of appoint Certificate of service Gratuity and retirement benefits Promotion procedures Night shifts Transfer allowance Casual employment Mileage allowance Provident fund Funeral/burial expenses Termination of employment Effective date and duration of employment including:Procedure for terminating and amendment of agreement Implementation and interpretation procedures

Objects of Collective Bargaining Collective Bargaining is at times referred to as A Workers Bill of Rights The International Confederation of Free Trade Union enumerates the following objects of the union in collective bargaining: 1. To establish and build up union recognition as an authority in the work place; 2. To raise workers standard of living and win a better share in company profits; 3. To express in practical terms the workers desire to be treated with due respect and to achieve democratic participation in decision affecting their working conditions; 4. To establish orderly practices for sharing in these decisions and to settle disputes which may arise in day-to-day life of the company; 5. To achieve broad general objectives such as defending and promoting the workers interests throughout the country7. The ILO also states that: In Collective Bargaining, the object is to reach agreement on wages and other conditions of employment about which the parties begin with divergent viewpoints but try to reach a compromise. When a bargain is reached, the terms of the agreement are put into effect8.

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Reffered in Mary Sur, Collective Bargaining (1965), p.4 International Labour office, Collective Bargaining (A Workers Education Manual), Geneva (1960), p.5 4 of 7

Odiwuor Kelly B.Com, LL.B, Dip-Law (KSL) http://www.oakadvocates.co.ke / odiwuork@oakadvocates.co.ke Advocate - 0721 438511 / 0734 438511 / 020 2242206

Duration of Collective Bargaining The duration of collective bargaining agreement vary from agreement to agreement. There is a general tendency on the part of union to have the contract of short duration, but management on the other hand prefers agreement of long duration. 5) The importance (relevance) of collective bargaining a) Inflation has made the workers to feel the need to push for more wages b) The growth unions of employees and employers has led to the growth of collective bargaining c) With the growth of the number of employees it is not possible for one employer to negotiate with each employee owing to pressure of time, variance in rewards for the services rendered etc. Effect of collective agreements (Sec 59) 1) A collective agreement becomes enforceable and shall be implemented upon registration by the industrial court. 2) A collective agreement binds;a) The parties to the agreement b) All unionisable employees employed by the employer, group of employers or members of the employers organization party to the agreement c) The employers who are or become members of an employers organization party to the agreement 3) A collective agreement shall continue to be binding on an employer or employees who were parties in the agreement at the time of its commencement and includes members who have resigned from the trade union or employer association 4) The terms of a collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement Registration of collective agreement (Sec. 60) Every collective agreement shall be submitted to the Industrial Court for registration within fourteen days of its conclusion It is the responsibility of the employer or employers organization which is party to the agreement to submit the agreement to the industrial court for registration If the employer or employers organization fails to submit the collective agreement to the industrial court within fourteen (14) days the trade union submit it The Industrial Court may request the parties to a collective agreement to supply further information or make oral or written representation The industrial court may refuse to register an agreement if:- It is in conflicts with this Act or any other law ;or
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6)

i.

ii.

iii. iv. -

- It does not comply with any directives or guidelines concerning wages, salary levels and other conditions of employment issued by the employer v. The Industrial Court:a) - May register a collective agreement within fourteen (14) days of receiving it, b) - May refuse to register a collective agreement unless all parties of the agreement have made oral representation c) - Shall give reasons for refusing to register any collective agreement. Advantages of Collective Bargaining Collective Bargaining has been preferred over compulsory adjudication system for some reasons few of them are outlined below; a. - It is a system based on bipartite agreement and as such superior to any arrangement involving third party intervention in matters which essentially concern employers and workers b. - It is quick and efficient method of settlement of industrial disputes and avoids delay and unnecessary litigation; c. - It is a democratic method of settlement of industrial disputes. Disadvantages of Collective Bargaining Two defects are notable; one of those defects is that there are situations in which a serious strike and a prolonged strike simply cannot be tolerated. The second great flaw in collective bargaining as a solvent for labour disputes is the lack of representation of the public interest at the bargaining table. Whether prices can be raised without straggling and ability to sell goods or services, unions and companies are in a position to agree on wage increase that will cause higher prices; then the consumer must shoulder the full burden of their agreement. 7) i) Employers duty to disclose information (Sec. 57) An employer shall disclose to a trade union (which it is entering into a collective agreement) all relevant information that shall allow the trade union to effectively negotiate on behalf of employers. All the information disclosed by an employer shall be treated as confidential and shall not be disclosed by any person to a person who is not engaged in the negotiations. The employer is not bound to disclose information that: - Is legally privileged or; - The employers cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court or; - If disclosed may cause substantial harm to the employer or employee - Is private personal information relating to an employee, unless an employee, consents to in disclosures of information Any party may, in writing, refer a dispute, about what information is required to be disclosed, to the minister for conciliation.

ii)

iii)

a. b. c. d.

iv) v) vi)

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vii)

8) i) ii)

If the dispute is unsolved, after it has been referred to the minister, any party to the dispute may refer the dispute to the Industrial Court under certificate of urgency. Process of entering into a recognition agreement (Sec. 54) An employer shall recognize a trade union purpose of a collective bargaining if most trade unions represent the simple majority of unions able employees. A group of employers or an employers organization shall recognize a trade union for the purpose of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers organization within a sector. An employer group of employers or an employers organization and a union shall conclude a written recognition agreement recording the terms upon which the employer or employers organization recognized a trade union. REFFERENCES:
1. The Labour Relations Act No. 14 of 2007, Kenya Gazette Supplement No. 110 2. Arum Monappa(1985). Industrial Relations; Tata Mc Graw-Hill Publishing Company 3. S C Srivastava(2007) Industrial Relations and Labour Laws; Fifth Edition; Vikas Publishing House PVT LTD; New Delhi.

Limited, New Delhi

Odiwuor Kelly B.Com, LL.B, Dip-Law (KSL) http://www.oakadvocates.co.ke / odiwuork@oakadvocates.co.ke Advocate - 0721 438511 / 0734 438511 / 020 2242206

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