THE EMPLOYMENT AND LABOUR RELATIONS COURT BILL, … and Labour Relations Court Bill, 2011 5 PART II — ESTABLISHMENT AND CONSTITUTION OF THE COURT Establishment of the Court. 4. (1)

Employment and Labour Relations Court Bill, 2011

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THE EMPLOYMENT AND LABOUR RELATIONS COURT

BILL, 2011

ARRANGEMENT OF CLAUSES

Clause

PART I — PRELIMINARY

1—Short title.

2—Interpretation.

3—Principal Objective.

PART II — ESTABLISHMENT AND CONSTITUTION OF

THE COURT

4—Establishment of the Court.

5—Composition of the Court.

6—Qualifications for appointment of Judges of the Court.

7—Tenure of office of Judges of the Court.

8—Registrar of the Court.

9—Qualifications for appointment of the Registrar of the

Court.

10—Functions of the Registrar of the Court.

PART III – JURISDICTION OF THE COURT

11—Jurisdiction of Court.

12—Enforcement of court orders.

13—The seal of the Court.

14—Alternative dispute resolution.

15—Review of orders of the Court.

16—Appeals.

17—Appellate jurisdiction.

PART IV – PROCEEDINGS BEFORE THE COURT

18—Proceedings before the Court.

19—General powers of the Court.

20—Quorum of the Court.

21—Representation before the Court.

PART V – THE EMPLOYMENT AND LABOUR RELATIONS

RULES COMMITTEE


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22—Establishment of the Committee.

23—Composition of the Committee.

24—Quorum for the Committee.

25—Secretary to the Committee.

26—Rules.

PART VI – MISCELLANEOUS PROVISIONS

27—Gender equity and equal opportunities.

28—Access to justice.

29—Regulations.

30—Repeal of Part III of No. 12 of 2007.

31—Amendments to No. 14 of 2007.

32—Transitional provisions.

33—Existing laws.

34—Proceedings pending in the Industrial Court.

35—Existing contracts.

36—Regulations relating to employment and labour relations.

SCHEDULE ― PROVISIONS RELATING TO THE

CONDUCT OF BUSINESS AND AFFAIRS OF THE

EMPLOYMENT AND LABOUR RELATIONS RULES

COMMITTEE


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A Bill for

AN ACT of Parliament to establish the Employment and

Labour Relations Court as a superior court of record; to

confer jurisdiction on the Court with respect to

employment and labour relations and for connected

purposes

ENACTED by the Parliament of Kenya, as follows —

PART I – PRELIMINARY

Short title.

1. This Act may be cited as the Employment and

Labour Relations Court Act, 2011.

Interpretation.

2. (1) In this Act, unless the context otherwise

requires —

“Cabinet Secretary” means the Cabinet Secretary for the

time being responsible for matters relating to employment

and labour relations;

“Chief Justice” means the Chief Justice appointed under

Article 166 of the Constitution;

“Chief Registrar” means the person holding the office of Chief

Registrar established under Article 161 of the Constitution;

“collective agreement” means a registered agreement

concerning any terms and conditions of employment made in

writing between a trade union and an employer, group of

employers or employers' organisation;

“Committee” means the Employment and Labour Relations

Rules Committee established under section 22;

“Court” means the Employment and Labour Relations Court

established under section 4;

“employee” means a person employed for wages or a salary

and includes an apprentice and indentured learner;


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“employer” means any person, public body, firm, corporation

or company who or which has entered into a contract of

service to employ any individual and includes the agent,

foreman, manager or factor of such person, public body, firm,

corporation or company;

“federation” means a federation of trade unions or a

federation of employers;

“Judge” means a person appointed in accordance with the

provisions of Article 166(1) (b) of the Constitution;

“Principal Judge” means the Principal Judge of the

Employment and Labour Relations Court;

“Registrar” means the Registrar of the Employment and

Labour Relations Court appointed under section 8;

“Rules” means the rules made under section 26;

“trade union” means an association of employees whose

principal purpose is to regulate relations between employees

and employers and includes an employers’ organisation.

(2) Despite subsection (1), until after the first elections under

the Constitution, reference in this Act to the expression

“Cabinet Secretary” shall be construed to mean Minister.

Principal Objective.

3. (1) The principle objective of this Act is to enable

the Court to facilitate the just, expeditious, proportionate and

affordable resolution of disputes governed by this Act.

(2) The Court shall in the exercise of its powers under this Act

or the interpretation of the rights of individuals and parties,

seek to give effect to the principle objective in subsection (1).

(3) The parties and their representatives, as the case may be,

shall assist the Court to further the principle objective and, to

that effect, to participate in the proceedings of the Court and

to comply with directions and orders of the Court.


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PART II — ESTABLISHMENT AND CONSTITUTION OF

THE COURT

Establishment of the Court.

4. (1) In pursuance of Article 162(2)(a) of the

Constitution, there is established the Employment and Labour

Relations Court for the purpose of settling employment and

industrial relations disputes and the furtherance, securing and

maintenance of good employment and labour relations in

Kenya.

(2) The Court shall be a superior court of record with the

status of the High Court.

(3) The Court shall have and exercise jurisdiction throughout

Kenya.

Composition of the Court

5. (1) The Court shall consist of —

(a) the Principal Judge; and

(b) such number of Judges as may be determined by an Act

of Parliament pursuant to Article 165(1) (a) of the

Constitution.

(2) The Principal Judge shall be elected in accordance with

the procedure prescribed in Article 165(2) of the Constitution.

(3) The Principal Judge shall hold office for a term of not less

than five years and shall be eligible for re-election for one

further term of five years.

(4) The Principal Judge shall have supervisory powers over

the Court and shall be answerable to the Chief Justice.

(5) In the absence of the Principal Judge or in the event of a

vacancy in the office of the Principal Judge, the members of

the Court may elect any other Judge to have and exercise

and perform the powers and functions of the Principal Judge,

and who shall be deemed to be the Principal Judge.


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Qualifications of appointment of judges of the Court.

6. A person shall be qualified for appointment as a

Judge of the Court if the person —

(a) has at least ten years’ experience as a superior court

judge or a professionally qualified magistrate; or

(b) has at least ten years, experience as a distinguished

academic or legal practitioner with considerable knowledge

and experience in the law and practice of employment and

labour relations in Kenya; or

(c) holds the qualifications specified in paragraph (a) and (b)

for a period amounting in the aggregate, to ten years.

Tenure of office of judges of Court.

7. (1) A Judge of the Court shall hold office until

the Judge —

(a) retires from office in accordance with Article 167(1)

of the Constitution;

(b) resigns from office in accordance with Article 167(5)

of the Constitution; or

(c) is removed from office by a tribunal appointed by

the President in accordance with Article 168(5) of the

Constitution.

(2) Subject to provisions of the Constitution, the Principal

Judge may elect either to retire from office or to continue

serving as Judge of the Court upon expiry of the Principal

Judge’s term.

Registrar of the Court.

8. (1) There shall be a Registrar of the Court.

(2) Any administrative function of the Registrar may in

the Registrar’s absence, be performed by any member of

staff of the Court whom the Chief Justice may authorize for

that purpose.


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Qualifications for appointment of Registrar of the

Court.

9. A person shall be qualified for appointment as

Registrar if the person —

(a) is an advocate of the High Court of Kenya and has, since

admission to the Roll of Advocates —

(i) become eligible for appointment as a Judge of the High

Court;

(ii) served for at least ten years as a professionally qualified

magistrate; or

(iii) attained at least ten years’ experience as a distinguished

academic or legal practitioner or such experience in other

relevant legal field; and

(b) demonstrated competence in the performance of

administrative duties for not less than three years.

Functions of the Registrar of the Court.

10. (1) In relation to the proceedings before the

Court, the Registrar shall act in accordance with the

instructions of the Chief Registrar and shall, in particular, be

responsible for —

(a) the establishment and maintenance of the Register;

(b) the acceptance, transmission, service and custody of

documents in accordance with the Rules;

(c) the enforcement of decisions of the Court;

(d) certifying that any order, direction or decision is an order,

direction or decision of the Court, the Chief Justice or a

Judge, as the case may be;

(e) causing to be kept records of the proceedings and

minutes of the meetings of the Court and such other records

as the Court may direct; and

(f) undertaking any other duties assigned by the Court for the


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benefit of the Court.

(2) The Registrar, Deputy Registrars and other officers of the

Court shall exercise such powers and perform such duties as

may be conferred upon them under the directions of the Chief

Justice, the Court and the Rules.

PART III — JURISDICTION OF THE COURT

Jurisdiction of the Court.

11. (1) The Court shall have exclusive original and

appellate jurisdiction to hear and determine all disputes

referred to it in accordance with Article 162(2) of the

Constitution and the provisions of this Act or any other

written law which extends jurisdiction to the Court relating to

employment and labour relations including —

(a) disputes relating to or arising out of employment between

an employer and an employee;

(b) disputes between an employer and a trade union;

(c) disputes between an employers’ organisation and a trade

unions organisation;

(d) disputes between trade unions;

(e) disputes between employer organizations;

(f) disputes between an employers’ organisation and a trade

union;

(g) disputes between a trade union and a member thereof;

(h) disputes between an employer’s organisation or a

federation and a member thereof;

(i) disputes concerning the registration and election of trade

union officials; and

(j) disputes relating to the registration and enforcement of

collective agreements.

(2) An application, claim or complaint may be lodged with the


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Court by or against an employee, an employer, a trade union,

an employer’s organisation, a federation, the Registrar of

Trade Unions, the Cabinet Secretary or any office established

under any written law for such purpose.

(3) In exercise of its jurisdiction under this Act, the Court

shall have power to make any of the following

orders —

(i) interim preservation orders including injunctions in cases

of urgency;

(ii) a prohibitory order;

(iii) an order for specific performance;

(iv) a declaratory order;

(v) an award of compensation in any circumstances

contemplated under this Act or any written law;

(vi) an award of damages in any circumstances contemplated

under this Act or any written law;

(vii) an order for reinstatement of any employee within two

years of dismissal, subject to such conditions as the Court

thinks fit to impose under circumstances contemplated under

any written law; or

(viii) any other appropriate relief as the Court may deem fit

to grant.

(4) In proceedings under this Act, the Court may, subject to

the rules, make such orders as to costs as the Court

considers just.

Enforcement of court orders.

12. A judgement, award, order or decree of the Court

shall be enforceable in accordance with the rules made under

this Act.

The seal of the Court.

13. The seal of the Court shall be such device as may


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be determined by the Court and shall be kept in the custody

of the Registrar.

Alternative dispute resolution.

14. (1) Nothing in this Act may be construed as

precluding the Court from adopting and implementing, on its

own motion or at the request of the parties, any other

appropriate means of dispute resolution, including internal

methods, conciliation, mediation and traditional dispute

resolution mechanisms in accordance with Article 159(2)(c) of

the Constitution.

(2) The Court may refuse to determine any dispute,

other than an appeal or review before the Court, if the Court

is satisfied that there has been no attempt to effect a

settlement pursuant to subsection (1).

(3) Subject to any other written law, a certificate issued

by a conciliator accompanied by the record or evidence of

the minutes of the conciliation meetings giving reasons for

the decisions as arrived at by the conciliator, shall be

sufficient proof that an attempt has been made to resolve the

dispute through conciliation, but the dispute remains

unresolved.

(4) If at any stage of the proceedings it becomes

apparent that the dispute ought to have been referred for

conciliation or mediation, the Court may stay the proceedings

and refer the dispute for conciliation, mediation or arbitration.

(5) In the exercise of its powers under this Act, the Court

shall be bound by the national guidelines on minimum wages

and standards of employment, and other terms and

conditions of employment that may be issued, from time to

time, to the Court under any written law.

Review of orders of the Court.

15. The Court shall have power to review its

judgements, awards, orders or decrees in accordance with

the Rules.

Appeals.


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16. Appeals from the Court shall lie to the Court of

Appeal against any judgement, award, order or decree issued

by the Court in accordance with Article 164(3) of the

Constitution.

Appellate jurisdiction.

17. The Court shall have appellate jurisdiction to hear

and determine appeals from —

(a) decisions of the Registrar of Trade Unions; and

(b) any other court, local tribunal or commission as

prescribed under any written law.

PART IV — PROCEEDINGS OF THE COURT

Proceedings before the Court.

18. Except as otherwise provided in Article 50(8) of

the Constitution, the proceedings of the Court shall be in

public.

General powers of the Court.

19. (1) In any proceedings to which this Act applies,

the Court shall act without undue regard to technicalities and

shall not be strictly bound by rules of evidence except in

criminal matters:

Provided that the Court may inform itself on any matter

as it considers just and may take into account opinion

evidence and such facts as it considers relevant and material

to the proceedings.

(2) The Court shall have power to summon witnesses, to

administer oaths and affirmations and to require any person

who appears to it to have special knowledge of any relevant

matter, or of any of the matters to which this Act applies or

any written law to which it relates to furnish, in writing or

otherwise, and to confirm on oath, such expert opinion as

may be relevant to any of the issues in the proceedings.

(3) The experts referred to in subsection (2) shall be paid in


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accordance with the Rules.

Quorum of the Court.

20. (1) The Court shall be properly constituted for the

purposes of its proceedings by a single judge.

(2) Notwithstanding subsection (1), any matter certified by

the Court as raising a substantial question of law under

Article 165(3)(b) or (d) of the Constitution shall be heard by

an uneven number of judges, being not less than three,

assigned by the Chief Justice.

Representation before the Court.

21. (1) A party to the proceedings may elect to act in

person, through an intermediary or be represented by a legal

practitioner, an office bearer or official of that party’s trade

union or employers’ organization, any officer established

under law for that purpose and, if the party is a juristic

person, by a director or an employee.

(2) Subject to subsection (1), the Chief Justice shall prescribe

in the Rules simple forms to guide and facilitate self-

representation.

PART V — THE EMPLOYMENT AND LABOUR RELATIONS

RULES COMMITTEE

Establishment of the Committee.

22. There is established the Employment and Labour

Relations Rules Committee.

Composition of the Committee.

23. The Committee shall consist of —

(a) the Principal Judge who shall be the chairperson;

(b) the following persons who shall be appointed by the Chief

Justice for a term of five years —

(i) one Judge of the Court;


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(ii) one practising advocate appointed from two nominees,

one woman and one man, with knowledge, experience and

expertise in labour law nominated by a statutory body

responsible for the professional regulation of advocates;

(iii) one person, not being a lawyer, appointed from two

nominees, one woman and one man, with experience in

employment and labour relations in Kenya;

(iv) one person appointed from two nominees, one woman

and one man, representing the interest of employers,

nominated by the most representative employers’

organisation with a national character;

(v) one person appointed from two nominees, one woman

and one man, representing the workers, nominated by the

most representative workers’ organisation with a national

character;

(vi) one person appointed from two nominees, one woman

and one man, representing the office of the Attorney General;

(vii) two persons, one woman and one man, appointed by the

Chief Justice one of whom shall be a member of the Rules

Committee of the Judiciary.

Quorum for the Committee.

24. (1) Five members of the Committee shall form a

quorum at any meeting of the Committee.

(2) The conduct and regulation of the business and affairs of

the Committee shall be as provided in the Schedule.

Secretary to the Committee.

25. The Registrar shall be the Secretary to the

Committee.

Rules.

26. The Chief Justice, shall in consultation with the

Committee make rules for regulating the practice and

procedure of the Court.

PART VI — MISCELLANEOUS PROVISIONS


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Gender equity and equal opportunities.

27. All appointments under this Act shall be in

accordance with Article 232(1) (i) of the Constitution and the

appointees shall be required to meet the requirements of

Chapter Six of the Constitution.

Access to justice.

28. (1) The Court shall ensure reasonable, equitable

and progressive access to the judicial services in all counties.

(2) For purposes of subsection (1), the Chief Justice may

designate a Judge in a county as a Judge for the purposes of

this Act.

Regulations.

29. The Cabinet Secretary may make regulations for the

better carrying out of the provisions of this Act.

Repeal of Part III of No.12 of 2007

30. Part III of the Labour Institutions Act, 2007 is

repealed.

Amendments to No. 14 f 2007.

31. The Labour Relations Act is amended ―

(a) in section 2, by deleting the words “the Industrial

Court” appearing in the interpretation of “award” and

substituting therefor the words “the Employment and Labour

Relations Court”;

(b) in section 2, by deleting the words “the Industrial Court”

appearing in the interpretation of “judge” and substituting

therefor the words “the Employment and Labour Relations

Court”;

(c) in section 73(1), by deleting the words “the Industrial

Court” and substituting therefor the words “the Employment

and Labour Relations Court”;


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(d) in section 73(3), by deleting the words “the Industrial

Court” and substituting therefor the words “the Employment

and Labour Relations Court”;

(e) in section 74, by deleting the words “Industrial Court” and


Relations Court”;

(f) in section 75, by deleting the words “Industrial Court” and


Relations Court”;

(g) in section 77(1), by deleting the words “Industrial Court”

and substituting therefor the words “the Employment and

Labour Relations Court”;

(h) in section 77(3), by deleting the words “Industrial Court”

and substituting therefor the words “the Employment and

Labour Relations Court”.

Transitional provisions.

32. Any regulation or other instrument made or

issued under the Labour Institutions Act, 2007, shall continue

to have effect as if such regulation or other instrument were

made or issued under this Act.

Existing laws.

33. The Employment and Labour Relations Court is

the legal successor of the Industrial Court established under

section 11 of the Labour Institutions Act, 2007.

Proceedings pending in the Industrial Court.

34. All proceedings pending before the Industrial

Court shall continue to be heard and shall be determined by

that court until the Employment and Labour Relations Court

established under this Act comes into operation or as may be

directed by the Chief Justice or the Chief Registrar of the

Judiciary.

Existing contracts.


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35. The Court shall be bound in all contracts, including

contracts of service, if any, subsisting at the commencement

of this Act and to which the Industrial Court was party.

Regulations relating to employment and labour

relations.

36. Any other written law relating to the regulation of

employment and labour relations shall have effect subject to

such modification as may be necessary to give effect to this

Act, and where the provisions of any law conflict with the

provisions of this Act, the provisions of this Act shall prevail.

SCHEDULE (s.24)

PROVISIONS RELATING TO THE CONDUCT OF

BUSINESS AND AFFAIRS OF THE EMPLOYMENT AND

LABOUR RELATIONS RULES COMMITTEE

Tenure of office and conduct of business of the

Committee.

1. (1) Other than the chairperson, a member of the

Committee shall, subject to the provisions of this Act hold

office for a period not exceeding five years on such terms and

conditions as may be specified in the instrument of

appointment, and shall not be eligible for re-appointment.

(2) A member other than the chairperson may―

(a) at any time resign from office by notice, in writing, to the

Chief Justice;

(b) be removed from office by the Chief Justice if the member

—

(i) has been absent from three consecutive meetings of the

Committee without the leave of the Chairperson;

(ii) is adjudged bankrupt or enters into a composition

agreement or scheme of arrangement with creditors;

(iii) is convicted of criminal offence; or


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(iv) is otherwise unable or unfit to discharge their functions

as a member of the Committee.

(3) The Chief Justice may remove, for sufficient

reason, any member of the respective nominating

organisations.

(4) If a member of the Committee is removed under

subsection (3), the Chief Justice shall fill the vacancy from

nominations submitted by the organisation that made the

initial nominations

Meetings of the Committee.

2. (1) The Committee shall meet not less than four

times in every financial year, and not more than three

months shall elapse between the date of one meeting and the

date of the next meeting:

Provided that the chairperson may call a special

meeting of the Committee at any time where the chairperson

deems it expedient for the transaction of the business of the

Committee.

(2) Other than a special meeting, or unless three

quarters of members agree, at least fourteen days’ written

notice of every meeting of Committee shall be given to

members of the Committee by the Secretary.

(3) The quorum for the conduct of business of the

Committee shall be five members present and voting and

unless a unanimous decision is reached, decisions shall be by

a majority vote of the members present, and in the case of

equality of votes, the chairperson or in his absence, the vice-

chairperson shall have a casting vote.

(4) The chairperson shall preside over all meetings of

the Committee.

(5) In the absence of the chairperson, the vice-chairperson

shall preside.

(6) The chairperson and vice-chairperson shall not be of the

same gender.


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(7) In the absence of both the chairperson and vice-

chairperson, absence, the members present shall elect one of

their number who shall, with respect to that meeting and the

business transacted thereat, have all the powers of the

Chairperson.

(8) At the first meeting of the Committee, the members shall

elect a vice- chairperson, not being a public servant, from

among its members.

Committee to regulate own procedure.

3. Save as provided in this Schedule, the Committee

may regulate its own procedure.

MEMORANDUM OF OBJECTS AND REASONS

The principal object of this Bill is to establish the

Employment and Labour Relations Court as a Court with the

status of the High Court The Employment and Labour

Relations Court is established pursuant to Article 162(2) (a)

of the Constitution, to hear and determine disputes relating to

employment and labour relations.

Part I of the Bill contains preliminary matters.

Part II provides for the establishment and the constitution of

the Employment and Labour Relations Court. The Court shall

be a Superior Court of record and shall exercise jurisdiction

throughout Kenya. Clause 5 of the Bill provides that the Court

shall consist of a Principal Judge and such number of judges

as may be determined by an Act of Parliament pursuant to

Article 165(1) (a) of the Constitution. This Part also provides

for the qualifications and appointment of Judges and of the

Registrar of the Court and the terms of the Judges.

Part III of the Bill provides for the jurisdiction of the Court;

the enforcement of Court Orders and alternative disputes

resolution.

Part IV of the Bill provides for the proceedings of the Court,

the powers of the Court, the quorum of the Court and

representation before the Court.

Part V of the Bill establishes the Employment and Labour


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Relations Rules Committee and provides for the composition

and the quorum of the Committee.

Part VI contains miscellaneous provisions. The Part ensures

that gender, equity and equal opportunities are taken into

account in all appointments under the Act, provides for

access to justice and gives the Cabinet Secretary power to

make regulations. This Part also repeals Part III of the Labour

Institutions Act, 2007 which establishes the National Labour

Courts and contains transitional provisions in relations to the

Industrial Court.

The Schedule contains provisions relating to the conduct of

business and affairs of the Employment and Labour Relations

Rules Committee.

The enactment of this Bill will not occasion additional

expenditure of public funds.

Dated the 16th August, 2011.

JOHN MUNYES,

Minister for Labour.

Part III of No. 12 of 2007 which it is proposed to repeal- Establishment of Industrial Court.

11. (1) There is established an Industrial Court with all the powers and rights set out in this Act or any other law, for the furtherance, securing and maintenance of good industrial or labour relations and employment conditions in Kenya. (2) The Industrial Court shall consist of -

(a) a Principal Judge; (b) as many judges as the President, acting on the advice of the

Judicial Service Commission, may consider necessary; and (c) members of the Industrial Court appointed in accordance with section 17.

(3) The Industrial Court shall be constituted by a Judge sitting with two members of the Industrial Court. (4) A person shall not be eligible to hold office as the Principal Judge


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of the Industrial Court unless the person - (a) is an advocate of the High Court of Kenya of not less than ten years standing; and

(b) has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Kenya. (5) A person shall not be eligible to hold the office of a judge of the Industrial Court unless the person -

(a) is an advocate of the High Court of Kenya of not less than seven years standing; and

(b) has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Kenya.

Jurisdiction. 12. (1) The Industrial Court shall have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any of the provisions of this Act or any other legislation which extends jurisdiction to the Industrial Court, or in respect of any matter which

may arise at common law between an employer and employee in the course of employment, between an employee or employer's organisation and a trade union or between a trade union, an employer's organisation, a federation and a member thereof.

(2) An application, claim or complaint may be lodged with the Industrial Court by or against an employee, an employer, a

trade union, an employer's organisation, a federation, the Commissioner for Labour or the Minister. (3) The Industrial Court may consolidate claims for the purpose of hearing witnesses as appropriate.

(4) In the discharge of its functions under this Act, the Industrial Court shall have the powers to grant injunctive relief, prohibition, declaratory order, award of damages, specific performance or reinstatement of an employee.

(5) In deciding on a matter, the Industrial Court may make any other order it deems necessary which will promote the purpose

and objects of this Act. (6) Any decision or order by the Industrial Court shall have the same force and effect as a judgment of the High Court and a certificate signed by the Registrar of the Industrial Court shall be conclusive evidence of the existence of such decision or order.


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(7) Any matter of law arising from a decision at a sitting of the Industrial Court and any question as to whether a matter for decision is a matter of law or a matter of fact shall be decided by the

presiding judge of the Industrial Court provided that on all other issues, the decision of the majority of the members shall be the decision of the Industrial Court. (8) The Industrial Court may make an order for payment of costs, according to the requirements of the law and fairness and in so doing, the Industrial Court may take into account the fact that a

party acted frivolously, vexatiously or with deliberate delay during conciliation proceedings and in bringing or defending a proceeding.

(9) The Industrial Court may refuse to determine any dispute before it, other than an appeal or review, if the Industrial Court is not satisfied that an attempt has been made to resolve the

dispute through conciliation. Tenure of Office of Judge of Industrial Court. 13. (1) A judge of the Industrial Court shall be appointed by the President on the advice of the Judicial Service Commission.

(2) A judge of the Industrial Court shall hold office until the judge - (a) retires;

(b) resigns from office; (c) is removed from office by operation of the law; or

(d) dies. Enforcement of Court Orders. 14. An order of the Industrial Court made under this Act -

(a) directing the payment of money or the delivery of any property shall be enforceable by execution as provided by rules made under this Act; or

(b) directing the performance or non-performance of any act shall be enforceable by contempt proceedings in the Industrial Court.

Remedial powers of the Court in cases of wrongful dismissal.


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15. If the Industrial Court finds that a dismissal is unfair, the Industrial Court may order the employer to -

(a) reinstate the employee from any date not earlier than the date of dismissal; or (b) re-engage the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or

(c) pay compensation to the employee to a maximum of twelve months wages

Divisions of the Industrial Court.

16. (1) The Industrial Court shall have and exercise jurisdiction throughout Kenya and for that purpose the Principal Judge shall establish and gazette divisions of the Industrial Court as he deems necessary. (2) The Chief Justice may, after consultation with the Minister and the Principal Judge by order in the gazette designate any

Magistrate's court to hear matters relating to labour laws. Members of the Industrial Court.

17. (1) The Minister, shall on the advice of the Board, appoint members of the Industrial Court or such other additional members as may be advised by the Board for a term of not more

than three years. (2) A member of the Industrial Court is eligible for re-appointment for a further term of three years. (3) The Minister may, after consultation with the Board, and for

good cause, revoke the appointment of a member. (4) The Minister shall in consultation with the Minister for Finance, determine the remuneration of members of the Industrial Court.

Appointment of assessors to assist Industrial Court.

18. (1) Whenever it appears to be expedient to do so because of the nature of a trade dispute, a judge may, after consulting the parties to a dispute, appoint two assessors to assist in the determination of any trade dispute before that judge. (2) An assessor appointed under subsection (1) shall have expertise


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in the subject matter of the dispute. (3) Of the two assessors appointed under this section, one assessor shall be appointed from a list submitted by the trade union parties to

the dispute and the other shall be appointed from a list submitted by the employer parties to the dispute. Officers of the Industrial Court. 19. (1) Subject to the laws governing appointments to the public service, the Minister shall appoint the following officers of the

Industrial Court― (a) a Registrar of the Industrial Court who shall be a person

with experience and expertise in labour law and administration; and (b) one or more Deputy Registrars of the Industrial Court

and as many other officers of the Industrial Court as the administration of justice requires. (2) The officers of the Industrial Court shall perform the administrative functions of the Industrial Court under the supervision and control of the Registrar of the Industrial Court.

(3) A Deputy Registrar of the Industrial Court may perform any of the functions of the Registrar of the Industrial Court that have been delegated generally or specifically to the Deputy Registrar of the Industrial Court.

(4) The Deputy Registrar of the Industrial Court or, if there is more than one, the most senior Deputy Registrar shall act as Registrar of

the Industrial Court whenever― (a) the Registrar of the Industrial Court is, for any reason, temporarily unable to perform the functions of Registrar; or (b) the office of Registrar of the Industrial Court is vacant.

Powers of the Industrial Court. 20. (1) If at any stage after a dispute has been referred to the Industrial Court, it becomes apparent that the dispute ought to

have been referred for conciliation, the Industrial Court may -

(a) stay the proceedings and refer the dispute for conciliation; or (b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Industrial Court sitting as a conciliator in which case the Industrial Court may only make any order that a conciliator would have been entitled to make.


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(2) 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 Industrial Court by the Minister responsible for finance. Rules Board of Industrial Court. 21. (1) There is established the Rules Board for the Industrial Court.

(2) The Rules Board shall consist of -

(a) the Principal Judge who shall be the chairperson; (b) the following persons to be appointed for a period of three years

by the Minister acting on the recommendation of the Board - (i) two practicing advocates with knowledge, experience and expertise in labour law; (ii) a person who represents the interests of employees;

(iii) a person who represents the interests of employers; and (iv) a person who represents the interests of the Government.

(3) Five members of the Rules Board shall form a quorum at any meeting of the Rules Board.

(4) Subject to the provisions of this Act, the Rules Board shall, in consultation with the Chief Justice, make rules to regulate the conduct of proceedings in the Industrial Court including, but not limited to― (a) the process by which proceedings are brought before the

Industrial Court and the form and content of that process; (b) the period and process for noting appeals; (c) the taxation of bills of costs;

(d) the fees payable and the costs and expenses allowable in respect

of the service or execution of any process of the Industrial Court and the tariff of costs and expenses that may be allowed in respect of that service or execution; and (e) all other matters incidental to performing the functions of the Industrial Court.


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(5) The Rules Board may review any rules it makes. (6) The Minister shall publish rules made by the Rules Board in the

Gazette. Proceedings of Industrial Court. 22. (1) Proceedings of the Industrial Court shall be carried on in open court.

(2) Notwithstanding subsection (1), the Industrial Court may exclude the members of the general public or specific persons or categories of persons from the proceedings in any case where the

High Court could have done so. (3) A judge of the Industrial Court may admit members of

the press to any proceedings before the court. (4) Where a member of the press is admitted to any proceedings referred to in sub-section (3), the member of the press shall publish a fair and accurate report or summary of the proceedings.

(5) Where a judge and the members of the Industrial Court are unable to agree on a decision, award or judgment in any matter, the matter shall be decided by the judge.

Representation before Industrial Court. 23. In any proceedings before the Industrial Court, a party

to the proceedings may act in person or be represented by a legal practitioner, an office bearer or official of that party's trade union or employers organisation and, if the party is a juristic person, by a director or an employee. Power to obtain evidence.

24. (1) The Industrial Court and a Committee of Inquiry shall not be bound by the rules of evidence in civil or criminal proceedings.

(2) If a witness objects to answering any question or to producing any relevant document on the ground that it will

incriminate him, or on any ground on which the witness could lawfully object if the objection was made in civil or criminal proceedings in the High Court, the witness shall not- (a) be required to answer the question or to produce the document; and


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(b) be liable to any penalties for refusing to do so. (3) For the purpose of dealing with any matter before it, the

Industrial Court or Committee of Inquiry may by order in writing signed by or on behalf of the Industrial Court or Committee of inquiry require any person to - (a) furnish, in writing or otherwise, such particulars in relation to such matter as it may require;

(b) attend before it; (c) give evidence on oath or otherwise; and

(d) produce any relevant documents.

(4) An order made under subsection (3) may include a requirement as to the date on which or the time within which the order is to be complied with. (5) An 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 Committee of Inquiry shall be

presumed, until the contrary is proved, to have been given by the Industrial Court or Committee of Inquiry, as the case may be. (6) A person who -

(a) without reasonable cause fails to comply with an order duly given under subsection (3); or

(b) is required by an order made under subsection (3) to furnish information, to make any statement or furnish any information which the person knows, or has reasonable cause to believe, to be false or misleading in a material particular,

commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months or to both. (7) If an order made under subsection (3) is directed

to a - (a) firm or to a body corporate, every partner of the firm,

and every director and officer of the body corporate shall comply with the order; (b) trade union, employers organisation or federation, every official or officer of the trade union, employers organisation or federation shall comply with the order.


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(8) Where an offence is committed in respect of any order made under subsection (3), every partner, director, officer or official concerned shall be guilty of the offence unless they prove that -

(a) the offence was committed without their consent or connivance; and (b) they exercised all due diligence to prevent the commission of the offence.

Restriction on publication of evidence. 25. (1) The Industrial Court or a Committee of Inquiry may

not include in any publication relating to any award, judgment determination, finding, report or other statement, any information disclosed during the course of proceedings under this Act by any

employer, employee, trade union, employers’ organisation or federation if - (a) the information was made known to the Industrial Court or Committee of Inquiry only by the disclosure; and (b) the person who made the disclosure requested, during

the proceedings that the information be withheld from publication. (2) Any person concerned in or present at the proceedings of the Industrial Court or of a Committee of Inquiry, who without such

consent, discloses any such information commits an offence. Review of Orders of Industrial Court.

26. The Industrial Court shall have powers to review its orders, awards or judgements. Appeals against decision of the Industrial Court .

27. (1) Any party to any proceeding before the Industrial Court may appeal to the Court of Appeal against any final judgment, award or order of the Industrial Court. (2) Appeals from a judgement, award, or decision of the

Industrial Court shall only lie on matters of law.

The definition of “award” in No. 14 of 2007 which it is proposed to amend- "award" means an award made by the Industrial Court; The definition of “Judge” in No.14 of 2007 which it is proposed to


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amend- "Judge" means a Judge of the Industrial Court;

Section 73(1) and (3) of No.14 of 2007 which it is proposed to amend- Referral of dispute to Industrial Court. 73. (1) If a trade dispute is not resolved after conciliation, a party to the dispute may refer it to the Industrial Court in

accordance with the rules of the Industrial Court. (2) Notwithstanding the provisions of subsection (1), if a

trade dispute- (a) is one in respect of which a party may call a protected

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

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

Section 74 of No. 14 of 2007 which it is proposed to amend- Urgent referrals to Industries Court.

74. A trade union may refer a dispute to the Industrial Court as a matter of urgency if the dispute concerns -

(a) the recognition of a trade union in accordance with section 62; or (b) a redundancy where - (i) the trade union has already referred the dispute for conciliation

under section 62(4); or (ii) the employer has retrenched employees without giving notice; or (c) employers and employees engaged in an essential service

Section 75 of No. 14 of 2007 which it is proposed to amend-

Arbitration Act not to apply. 75. The Arbitration Act shall not apply to any proceedings before the Industrial Court.


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Section 77 (1) and (3) of No. 14 of 2007 which it is proposed to amend- Powers of the Industrial Court.

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

(b) the party that issued the notice has failed to participate in conciliation in good faith with a view to resolving the dispute.

(3) The Industrial Court may, in granting relief in respect of any application made under subsection (1) (b), direct the parties to engage in further conciliation in good faith with a view to resolving

the dispute.

Documents

THE EMPLOYMENT AND LABOUR RELATIONS COURT BILL, … and Labour Relations Court Bill, 2011 5 PART II — ESTABLISHMENT AND CONSTITUTION OF THE COURT Establishment of the Court. 4. (1)