KLAW 314

LABOUR LAW
COURSE INSTRUCTOR
SR. TERESIAH MUTHONI (DR. JUR)
INTRODUCTION

• Define Labour
• Define labour law
• The nature of labour law
• Function of labour law
WHAT IS LABOUR LAW

Definition of labour
1. LABOUR – ( Black’s law Dictionary) –
Work of any type including mental exertion;
Workers - considered as an economic unit- A factor of production
MEANING OF WORK
Gaabriel Tavits:
• Work may be defined as a purposeful mental and physical human
activity the objective of which is the satisfaction of generally
recognised needs rather than a human effort or activity.
• Any activity which may be regarded as work need not be immediately
subject to regulation by law.
Labour
• Labour in the legal context is the effort exerted to produce any goods
or services. It includes all types of human efforts – physical exertion,
mental exercise, use of intellect, etc. done in exchange for
an economic reward.
• Work in the legal sense needs additional characteristics i.e the Work
and the persons who perform the work. These characteristics include;
• Inseparable from the labourer.
• Perishable in nature ( cannot be stored).
• Directly related to human effort- the human person is a key factor.
• Relatively inelastic- particularly skilled labour.
Labour law
• Through work, a specific human relationship is expressed. As soon as
a worker is connected with another party, that is, the person for
whose benefit the work is done, a relationship is created which is
subject to regulation by law
• One party do the work agreed on and the other party pay for the
work done.
• Simply stated the labour laws regulate the relationship between
employers and employees.
Nature of labour law
• labour law regulates both work as such and the legal status of working
persons or workers.
• labour law also regulates the legal status of the employer, the other
party to an employment relationship.
• i.e the rights and obligations of employers upon the termination of
employment contracts on the initiative of the employer, the conditions
and procedure for the imposition of disciplinary sanctions and the rights
and obligations of employers in lock-outs are all subject to regulation by
law.
• Thus, labour law regulates the relationships between an employer and
employees if work is performed in subordination to the employer.
• labour law regulatory mechanism begins only if there are employees
under the direction and control of employers, or in other words, only
if employees enter into employment contracts with employers.
• All other employment relationships such as collective employment
relationships, are only possible if individual employment relationships
exist.
• The basic component of labour law is an Employer and an Employee
relationship.
• labour law is the totality of rules in an objective sense that regulate
legal relationships between employers and employees, (Van Jaarsveld,
Fourie and Olivier Principles and Practice of Labour Law (2004) par 51.
)
Is it civil(private) or
administrative( public)?
• Civil private - ( the law of contracts – critical elements such as offer
and acceptance) employment relationships are created on the basis
of an agreement between parties concerning the conditions under
which the employees will work and which must be guaranteed by the
employer.
• Public( administrative) relationship regulated by the law.
relationships between employees and employers fall under public law
since employees work in subordination to employers and are required
to obey the employers' orders and the Employers are expected to
maintain specific standards.
• Which then bring us to the functions of labour law.
Functions of labour law
• In general
i) Protect Employees from discriminatory processes and harassment
ii) Ensure a safe work place
iii) Establish minimum /basic standards
iv) Provide a framework for labour disputes resolutions
v) Provide a framework for collective bargaining
vi) Give effect to Article 41 of the Constitution
vii) Provide a normative framework for the existence and operations of all
institutions of the labour market i.e the state, the trade unions and
employers
viii) Ensures the state compliance with the ILO standards as set under the ILO
declaration of 1998
Philosophical views of the functions
of labour law
1. PROTECTIVE VIEW
• Labour law is there to protect employees by creating a system which
is conducive to meaningful bargaining
• It seeks to Balance the bargaining power which is tilted in favour of
the Employer- This is because the employee is disadvantaged in
terms of the bargaining skills and power.
• The Employer dictates the terms and condition of work (makes the
offer) while the employee accepts the said offer for lack of a better
option.
ILO DECLARATION OF 1998
• The principles concerning the fundamental rights which are the sub-
ject of those Conventions, namely:
• (a) freedom of association and the effective recognition of the right
• to collective bargaining;
• (b) the elimination of all forms of forced or compulsory labour;
• (c) the effective abolition of child labour;
• (d) the elimination of discrimination in respect of employment and
• occupation; and
• (e) a safe and healthy working environment
The law serves to facilitate this balancing of power by providing for:
(i) Minimum conditions of work under the Employment Act
(ii) Freedom of association and organization.
(ii) Substantial powers for trade unions and organizational rights
(iii) The right to strike.
(iv) Commitment by all concerned to the rules, processes and outcomes
of collective bargaining.
Market view
• According to the market approach state intervention, for example in
the form of protection for the employee, results in an artificial
distortion of the market forces which in turn inevitably results in
economic inefficiencies and loss of prosperity (Creighton and Stewart)
• Excessive state intervention in the form of, inter alia, legislation,
results in inefficiencies and consequent economic decline.
• The function of the labour law should be to ensure that both the
employer and employee rights are exercisable in fair manner.
History and Development of Labour Law

• Colonial – 1895 to 1963

• Post colonial 1963- 2007
• 2010 – New Constitution
• 2022 – Amendments to the Employment Act
• Colonial period
1906- Master and servant : Breach by employer civil suit, breach by employee – Criminal
1919: International Labour Organization Establishment was established part of the Paris
Peace Treaty after the end of world war one.
1935: 1st trade union in Kenya called Labour Trade Union of Kenya- Makhan Singh
• 1937: Trade Union Ordinance 1937: required the registration of trade unions or other
organisationspurporting to undertake activities of a trade union or cease functioning
• Ordinance No. 35 of 1939- by the colonial government required all crafts organisations
to apply for registration. The registration could be granted or denied depending on
whether they had legitimate dealings consistent with government policy of the time.
Cancellation of registration under the Ordinance was not subject to appeal or open to
question in a court of law
• 1944: ILO held a conference in Philadelphia: concerns on social issues in colonies were
raised. Colonial masters were to conform to the labour laws
• 1946: The colonial government in Kenya Protective Labour code.-aimed at reforming
how the settlers treated African workers and the relationship between employer and
employee.
• 1948 – Universal declaration of Human Rights (UDHR) – Article 4 No one shall be
held in slavery or servitude; slavery and the slave trade shall be prohibited in all
their forms.

Article 22: Everyone, as a member of society, has the right to social security

• Article 23
• 1. Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
• 2. Everyone, without any discrimination, has the right to equal pay for equal
work.
• 3. Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social protection.
• 4. Everyone has the right to form and to join trade unions for the protection of
his interests.
• The Trade Unions Act was enacted in 1952. It sought to rigidly control
the activities of Unions
• 1962: Industrial Relations Charter : between the Kenya government
and the Federation of Kenya Employers and the Kenya Federation of
Labour now known as Central Organization of Trade Union.
• The charter
• laid down the duties of management and unions in relation to
industrial concerns
• provided a platform of dialogue in case of conflict.
• Has regulated labour relations in Kenya with respect to the legislation
until 2007
independence / post independence
At independence in 1963, four registered Unions served the needs of
the workers and these were the East African Trade Union Congress
(EATUC), Kenya Federation of Registered Trade Unions (KFRTU), Kenya
Federation of Labour (KFL) later COTU and Kenya Africa Workers
Congress (KAWC).

1964: establishment of the Industrial Court: provide an avenue for

dispute resolution.
1964-2007: The trade unions properly asserted themselves, the role
they had played in getting Kenya independent saw many of the trade
unionists join politics such as Tom Mboya
Several Acts of parliament were passed between 1964 and 2007. The main
ones being:
1. The Industrial Court Act.
2. Employment Act (Cap.226)
3. The Regulation of Wages and Conditions of Employment Act (Cap. 229)
4. The Trade Unions Act(Cap. 233)
5. The Trade Disputes Act (Cap. 234)
6. The Workmen’s Compensation Act (Cap. 236)
7. The Factories Act (Cap. 514). hngichanga
• 2001 : A task force is formed to review the labour laws in Kenya
The review was aimed at ensuring the laws were responsive to
contemporary economic and social changes as well as achieve a new
set of reformed updated labour legislation through a coordinated
consultative process….
The initial laws had a colonial heritage and were thus more employer
friendly than Employee. This was overhauled under the new labour
laws which albeit seeking to balance the rights of the employer to
those of the employee, have given more protection to the Employee as
compared to the Employer as we shall establish throughout the course
2007
• Employment Act,
• Labour Institutions Act
• Labour Relations Act-
• Occupational Safety and Health Act
• Work Injury Benefits Act.

These laws are going to form the basis of our course,