INDUSTRIAL RELATIONS IN THE PUBLIC SECTOR: CHARACTERISTICS, STRUCTURES AND TRENDS Mara Institute of Technology, Shah Alam HAZMAN SHAH B ABDULLAH INTRODUCTION Despite the importance of industrial relations in the public sector to the economy, industrial relations in this sector has not been extensively examined.' Most analyses tend to describe the process without attempting to underline the major forces and factors that might affect and perhaps, shape the future of the relationship. More often than not, the description contrasts the structures, rights and the process with that in the private sector.2 The objective of this paper is to describe the characteristics of the public sector industrial relations and to outline discernible trends emerging in the relationship between the government and the trade unions in the public sector. CHARACTERISTICS OF THE PUBLIC SECTOR INDUSTRIAL RELATIONS All Powerful Sovereign Employer The public sector employer is akin to the government and as such is armed with vast legislative and executive powers that can and is often used in its relation with the employees. The public employer has used the Internal Security Act ( 1967) to detain trade unionists whose activities were perceived to threaten the security of the nation or economy. No private employer has powers even remotely akin to that of the state. The government-employer being a sovereign entity cannot be held ransom for whatever cause. The Government has always adopted a tough stand especially if unions begin to impose terms and act in a confrontational manner. A Large and Diverse Sector Even though there are three levels of governments, the policy decisions regarding terms and conditions of public employment is within the purview of the federal government.3 Therefore, the federal government is the focal point in the conduct of public sector industrial relations. This then creates an huge organisation with some 800,000 employees of all classes and trades representing about 15% of the nation's labour force. The governmental activities unlike private sector is highly diverse comprising of almost all activities in the economy. This creates the need to deal with more issues and generally a greater concern to establish some equity across different occupations and trades. Employee Rights are Restricted Public employees are not accorded the same privileges and rights under the law as are their private sector counterparts. Public employees (or of fixers as referred to in the Trade Union Act (1959) are generally prohibited from joining trade unions. However, the King may exempt any class of public employees except those in the armed forces, prison of officers the police, those whose work relates to confidential and security matters and the professional and managerial group. 4 The present public sector trade unions exist under an exemption granted by the King.5 This clearly underscores the rather unenviable position of trade unions in the public sector. Public employees in the managerial categories however, have assembled themselves into various associations which, among others, promote their vocational and industrial interests. These associations, although not legally trade unions, are still incorporated into the National Joint Councils to represent the interests of their members. Public sector trade unions do not enjoy the provisions of the Industrial Relations Act (1967) which spells out the rights of trade unions and employers, the process of seeking recognition, conducting collective bargaining and seeking help from the Ministry or court to resolve disputes. The relationship between public sector trade unions and the employer is set and regulated through executive and administrative orders. Higher Degree of Unionisation The public sector understandably has higher degree of unionisation of 35% in an economy where the overall unionisation is about 10%. The higher union membership is due to higher educational level of the public employees, greater awareness towards trade unions and greater homogeneity of the employees.

In addition to this, the public sector has a great multiplicity of trade unions as result of the law and perhaps also due the preference for small unions. The public sector has 66% of all in-house trade unions in the country (see Table I). This weakens the trade unions and puts the government in a better position to negotiate . Racial and Political Importance of Public Sector Employment The public sector is part of the constitutional compromise since independence which provides for the predominance of the Malay officers.5 This provision was to counterweigh the non-Malay domination of the economy. The government is still committed to maintaining that arrangement although some flagging of that commitment is discernible given the government's preoccupation with and the significant achievement in creating a highly influential presence of the Bumiputras in the modern economic sector.' The creation of a Bumiputra entrepreneurial community is expected to be intensified under the forthcom ing economic policy for the 1 990's.Notwithstanding this trend, the special position of the public employment in balancing the interracial political and economic power translates into the need for a paternalistic employer (government) vis-a-vis the predominantly Malay employees and trade union membership. This allows the public sector trade unions some inherent leverage when dealing with the political employer. Since public employees represent the government interface with the people, which is important if not crucial in helping to sustain political support for the government (employer), the government has to exercise restraint when confronting the trade unions and their members. Pre-election increases in allowance for public sector employees can be seen in this light. Such dependence implies influence. THE INDUSTRIAL RELATIONS SYSTEM IN THE PUBLIC SECTOR Public sector industrial relations is built around a number of actors that interact through the structure established by the government to make demands, to negotiate, and to consult or interface over matters which affect the well being of public employees. The diagram below outlines the general shape of the system and the various actors. The central focus in public sector industrial relations, that is the determination of the terms and conditions of employment, is intermediated by several other elements. Notable among these are the Royal Commissions, Cabinet Committees and the Public Service Tribunal and potentially, the Industrial and Civil courts. The most salient feature of the relationship is that the government (employer) decides on the role of each of these actors. The employer too has the power to unilaterally change terms and conditions of employment quite unlike other employers. Given the characteristics displayed above, the system is heavily weighted in favour of the employer. In fact, the employer can change the system characteristics or elements, i.e. negotiating structure, definition of negotiable issues and composition of negotiating (staff) teams, if it so desires by invoking its legislative or executive powers. The Public Services Department (PSD) is the central personnel agency of the federal government and, therefore, functions as the chief representative and advisor of the government. THE NATIONAL JOINT COUNCILS Unlike the private sector where unions which represent more than 50% of the workforce in a particular category in an organisation can apply to be recognised as the bargaining agent, the public sector unions are not extended the same privilege. Although the government deals with or consults the trade unions on certain issues as the representative of the public employees in question, no recognition is given to the trade unions as legal bargaining agents. The labour-management relations in the public sector is primarily conducted on sectorial or service-type basis. The labour-management structure that exists today was formed after the Japanese occupation following the practice of the Whitley Councils in the British Civil service and gradually was extended, to the entire Federation by 1953.8 Before 1973 the public service was segmented into three broad divisions. All trade

unions and staff associations within a particular sector were represented in their respective National Joint Councils (NJC). In 1978 the government revamped the NJCs and segmented it into five divisions. The National Joint Council is purely an administrative creation through the 1/79 service circular. It is here that the employer (official) and the employees (staff) discuss new proposals or principles of compensation or matters of general interest to public employees. There are five National Joint Councils namely, NJC General Civil Service, NJC for Educational Service, NJC for Industrial and Manual Groups, NJC for Statutory Authorities and NJC for Local Authorities. The constitution of the National Joint Council allows all trade unions and associations within each sector of the public service to be represented in the council. The union representatives from each sector will then elect a body/committee that will function as the staff side and subsequently make representations to the of official side-the employer. This arrangement somewhat dissolves the identity-of the individual trade unions in their relationship with the government. Therefore, the staff side in the National Joint Council is merely a committee which has no standing in law to engage in collective bargaining (unless of course if the government accepts or allows them to negotiate). There are therefore five separate NJCs through which each of the five sectors may discuss with the relevant official side. To ensure there is coordination in the NJCs' dealings with the official side (employer) the NJCs have established a NJC Coordinating Committee which functions as a forum for the five NJCs to discuss and present a common stand on labour-management issues. Since the late 1960's the public sector unions have not engaged in any formal collective bargaining resulting in a collective agreement of some sort. 9. The terms and conditions of employment in the public sector is determined by the government through or on the advice of the Public Services Department. The Royal Commissions or more recently, Cabinet Committees periodically review public sector compensation and proffer recommendations to the government. However, the government has the final say. The government in 1979 repealed the earlier executive order which permitted the National Joint Council to "negotiate" with the government on matters pertaining to pay and other conditions of employment. However, due to the strained relationship between the government and the public sector trade unions, the government withdrew what it considered as bargaining rights in 1979. In 1984, as result of improved relationship between the unions and the government, the bargaining rights were restored but management prerogatives were enhanced. The intriguing aspect of the public sector labour management relations is the use of the term bargaining. Certainly it is possible to perceive the process negotiation between the two parties. However, cc sultation is probably the correct word to describe the interaction between the two sides in the NJC. T. public sector unions make collective demands either on a sectorial basis, or if it concerns all public serv ants, on a national basis. The latest demand was the call for pay review and salary hike for the pub sector. The National Joint Council has no legal star ing to undertake any form of industrial action to back its demands. The individual trade unions that make the National Joint Council will have to undertake the proposed action."' There is also a federation of public sector trade unions, the Congress Unions of Employees in Pub And Civil Service (CUEPACS) with a memberships of 55 trade unions. This is an umbrella body that functions as a coordinating agent for the civil service trade unions." It does make representations to government and there is a close link between 1 National Joint Council and CUEPACS through inter locking embership and leadership. The current President of CUEPACS and the General Secretary are also the Chairman and Secretary of the N. Coordinating Committee respectively. The Malaysians Trade Union Congress (MTUC) which has 46 pub sector trade unions as its affiliate, also often joins fray to demand changes of general nature affecting public sector employees. There is also a subtle observable rivalry between CUEPACS and the NJCs in providing leadership to public sector trade unions and employees. The proposal to amend the law to allow trade unions in statutory and local authorities to seek affiliation with CUEPACS has created some strain between the umbrella body and especially the NJC for statutory authorities which is demonstrably the most vocal of

the five groups in the NJC. The NJCs are supported by Department Joint Councils at the lower levels of the public sector. The service circular 1/79 calls for a network of department joint councils to discuss issues within the power of the department heads. Unfortunately, most of the joint councils are inactive, rarely meeting to discuss and resolve matters. In fact, many Departments have yet to form Department Joint Councils. The PSD issued a circular (4/75) advising those Department Heads who have not form DJCs to do so immediately. Despite this directive, the enthusiasm and consequent formation of DJCs leaves much to be desired. However, the department heads should not be solely blamed for the distressing state of affairs. They do not have the power to resolve many of the complaints brought before them. The personnel and financial powers are heavily centralised leaving the heads of departments with some discretionary powers only. This diminishes the perception of utility of the DJCs among the parties that have genuine and major grievances to address. In fact, it would not be totally inappropriate to say that DJCs have become a decorative item in labour-management relations in the public sector. Besides the above cited problems, heads of departments are generally more disposed to an authoritarian or autocratic style of management. 12. Discussion, consultation and participative approach to problem solving are not popular nor do they find ardent support within the administrations. The administrative structure is clearly hierarchical, the officials being status or rank conscious, leadership or management generally authoritarian and communication highly formalistic. This does not encourage greater respect for the capacity to work out problems or grievances through regular staff/official gatherings. Although the National Joint Council is the primary platform for the employer-employee relationship, there are other channels too. The large National Trade unions do negotiate directly with the PSD and the Ministry or the government as in the recent case between the National Union of Teaching Profession and the Ministry of Education over the revamping of the teachers' schemes of service. The CUEPACS also holds talks with the government over issues common to all public employees. Therefore, there are some parallel though not formally established platforms, for the conduct of employer-employee relationship on a collective basis. THE TRENDS AND ISSUES IN PUBLIC SECTOR INDUSTRIAL RELATIONS Industrial relations in the public sector has not been marked by any dramatic changes since the 1970's. The industrial relations scene, despite occasional discord, has generally been cordial. However, public policy changes and the discernible realignment of power between the employers and the employees in general, will affect future relationship between the government and the public sector trade unions. Need to Rest/ Restrain Further Increase in Personnel Cost A major cornerstone of the government's fiscalpolicy is to check increase in the recurrentexpenditure of the public sector. In this regard,two items that constitute a lion's share of theexpenditure is the debt service (27% in 1989) andpersonnel cost (43 % in 1989). The trimming of thesize of the public sector employment by acceleratedattrition and non-filling up of vacant positions aresteps in this direction. The table below highlightsthe fact that these measures are still not fullyeffective in restraining growth in personnel cost. Restraining the increase in salaries and allowancesof public sector employees may cause friction orconflict between the government and the trade

unions. Against this backdrop must be considered thepublic sector trade unions' insistence that theperiodic five-year review of salaries be strictlyfollowed. Reviews undoubtedly create expectationsof upward revision in emoluments and allowances.These emerging trends portend possible friction anddiscord in public sector industrial relations. In addition to the fiscal policy, the government hasalways called for wage increase in the economy to bemoderate and contingent upon productivityimprovements. The booming economy approaching doubledigit growth has created tight labour market,therefore encouraging demands for wage increases inthe private sector. Such concessions will furtherfuel and strengthen similar demands in the publicsector to maintain some comparability in income. The privatisation of public services that started1983 is expected to affect some 246 agencies involving about 16.7 billion ringgit and about 200,000public employees. Already several major serviceslike the Telecommunications Department, MalaysiaAirlines, Malaysian International Shipping Corporation, etc., have been privatised while the NationElectricity Board has been corporatised in preparation for privatisation. Whatever the impact on performance and profitability, this has changed the status of thousands of previously public employees |private sector employees. The decline in affiliateand consequent diminution of the unions' powercertainly a matter of grave concern for publicsectors trade unions, particularly CUEPACS .14 Thein pending privatisation of the Postal Department anthe Railway will further weaken CUEPACS. Thisdecline in the power of the public sector tradeunions will understandably strengthen the governmentposition in their dealings with the unions.l5 Underscoring the move towards privatisation i theGovernment's assertion that the productivity cpublic enterprises is low and such change is theonly way to improve efficiency. This, I believe,will have a chilling effect on the demands by thepublic sectors trade unions in the future. Set Example for the Industry by Restraining SalaryRise

The government has urged the trade unions to premisetheir wage claims on productivity while at the sametime drawing attention to the fact that wage ratesin Malaysia is rising and, will, if unattendedaffect flow of foreign investment into the country.The government will be expected to lead by exampleby restraining further increase in public sectorsalaries and allowances.' Adoption of such a stancewill probably increase the strain and, perhaps,conflict in public sector industrial relations. Robust Employer Position Due of Ship i in Balance ofPower The employer-employee balance of power has alwaysbeen in favour of the employers, given the low levelof unionisation and the multiplicity of smallunions. However, in the last decade, there has beena perceptible shift in the balance of power betweenthe employers and employees The growing affinity ofthe government and the producers, investors andbusinessmen has meant policies and changes in thelaw to give employers a freer hand. Concurrently butperhaps coincidentally, the labour movement hasbecome more politically inclined to oppositionparties.~8 The net effect of these twin trends, Ibelieve, will manifest in a more robust position ofthe government in most issues with its own tradeunions. Declining Paternalism and Rising Professionalism The special place that the predominantly Bumiputrapublic sector occupies in the interracial economyequilibrium requires no elaboration. However, theimplementation of the New Economic policy (NEP) overthe last 20 years has produced a small but ratherinfluential group of Bumiputra businessmen.'9 Anynew policy to be formulated after NEP willundoubtedly continue this effort. The importance ofthe domination of the public sector employment as asign of racial pride or ego, will diminish as therise of the Bumiputra business community graduallybecomes central to the affirmation of the racial andpolitical ego of the Malays. Consequently, theaccommodative relationship necessitated by thespecial importance of the public sector will

gradually decline and a more professional approachwill emerge. In the last several years Some signsof this approach has emerged, for example, theincreasingly strict enforcement of the General Orderrules (part of the terms and conditions of publicemployees) that prohibit division A and B employeesfrom active participation in politics. CONCLUSION As is apparent from the foregoing discussion, thereare a multitude of parallel and conflictingdevelopments in the economic and political arena.The possible impact of the these developments on thenature of public sector industrial relations canonly be speculated for there are too many variablesbeyond those that have been discussed here. However,I have attempted to delineate some of these trendsand their possible impact on the public sectorindustrial relations. Whatever shape thesedevelopments assume in the future, they are bound tochange industrial relations in the public sector ina notable manner.Back to MMR Listing by Year Homepage Malaysian Institute of Management Kuala Lumpur, Petaling Jaya, Pulau Pinang, Johor Bahru, Miri

KATHMANDU: The frequent showdown of labour unions and the hindrances to smooth running of industries place a huge question mark on the future of industrial development and economic growth of Nepal — an already politically troubled country with a struggling economy. On March 24, a deal was cut for wage hike of the labourers — a result of agitation jointly organised by General Federation of Nepalese Trade Unions (GEFONT), Nepal Trade Union Congress Independent (NTUCI) and All Nepal Trade Union Federation (ANTUF). However, Tarai-based trade unions disagreed and demanded a 100 per cent hike. As if the recurring strikes by trade unions and disputes among themselves were not enough, the current row between private sector and government regarding minimum wage agreement endorsed by government on April 16 poses another obstacle in which the government only focused on hiking wages from Rs 1,500 to Rs 1,600. Previously discussed important points such as industrial peace for a period of four years were left out. While the agreement to increase wages was made between the Ministry of Labour and Transport Management and trade unions associated with Tarai-based political parties, private sector and leading trade unions were left out of the picture. The role of government was to act as a mediator but the current situation shows it over stepped its role and function. “The gazette only focuses on the welfare of workers, whereas the industrial sector also comprises of industrialists. We are not satisfied with this one sided decision, as it should have been made with the consent of all three parties. Such lopsided decisions will result in further confusion and problems for the industrial sector. Frankly, it has already created a crisis of consent when it comes to government,” says Suraj Vaidya, president of FNCCI.He says, “We cannot trust the government anymore, as we have already asked it to address the issue several times, but to no avail. We cannot afford to pay the increased amount and we feel that the valid deal should also address the issue of industrial peace for four years as it should be implemented to entrust a sense of security for any kind of investment. The four years’ deal of ‘no strikes’ is for the benefit of the entire industrial sector. On a day of closure, the government loses revenue of around Rs 1 million, so what is the point in not emphasising the solution to such unproductive hours?”Stating that they will not compromise on industrial welfare but are open to sorting out further valid issues anytime, he added, “The country already witnesses a work force of around 1,000 people leaving it as foreign labourers each day and such turmoil in the industrial sector will further accelerate this rate. Also, if the government does not cooperate with us, we will be forced to — although unwillingly — close our industries.”Multi-national companies such as Dabur and Nepal Unilever are facing unlimited problems due to strikes organised by Maoist affiliated labour unions demanding a minimum pay of Rs 10,000 (nearly USD 140) per month — up from the current Rs 6,100. The Nepali economy in the last decade grew sluggishly at around 3.5 per cent with unstable political environment and shortage of electricity as major contributors that demoralised industrialists — not to mention, the never ending labour activities,unsecured environment that discourages investment and other problems in smooth operation of an industry.Pashupati Murarka, vice-president of FNCCI and coordinator of Employer Council under FNCCI, says, “The initial deal was done in mutual understanding. We had focused on issues of social security too, since the agreement between the FNCCI and major trade unions declared the next four years as industrial peace years barring strikes in the industrial sector. However, this point is nowhere in implementation, while the wage has been increased. As we are unsure about the security of our investment, we do not agree to increase the wage. He further clarified that they are happy to implement the social security fund regulations but are against any decisions taken by government alone as government’s role is just to mediate. “As the government turns a deaf ear to our objection on the issue, we are preparing to challenge it in the court,” he informed.Currently, the private sector is seriously affected by insecurity, forced donation, strikes and shutdowns, which have dragged down both production and productivity.

Tulsi Siwakoti, chairman of GEFONT (Bagmati), says, “As the government has already passed the gazette regarding the increased wage and majority of industries have already regulated it, there is no point in defying it now.”However, he adds that their concern regarding the issue related to declaration of industrial peace for four years is valid, as strikes and any other hindrances result in decrease of overall productivity. “All we need is a secure future; moreover, we also need to prove now that our voices get heard without any demonstration. We are ready to ensure 100 per cent productivity if our rational demands are addressed.”Amidst all this chaos, Maoist’s wing ANTUF also laid bare its internal dispute by splitting itself into three factions, indicating politicisation of the trade unions. However, the organisation now claims to be unified and also objects to the five-point deal between government and minor trade unions in unison.Baburam Gautam of ANTUF says, “Any deal carried out and agreed upon without involvement of official representatives of major trade unions and private sector is incomplete. The five points are not even a deal; they have been put forward as recommendation. Such activities can invite greater unfortunate incidents in the future as it does not fulfil even the basic formalities.”He adds, “There were conflicts within our trade union in the previous deal, but it was resolved through understanding. Now, it is a big and unfortunate step taken foolishly by the government alone.”The government, however, claims to have played fair. Nabin Pokhrel, the senior factory inspector at Ministry of Labour and Tranport Management says, “FNCCI and major trade unions have yet to reach an agreement and FNCCI has asked us to bring a unified conclusion and its officials have also signed a document on May 12 stating that Ministry can give a conclusive shape to the problem. The gazette of government is based on that and does address all the issues.”Despite labour acts, labour court, enough labour force, 47 per cent of population still seeking employment, and an unfavourable balance of trade, industries are closing or shut down on a regular basis. Something is terribly wrong with our labour policies yet nothing is done to rectify it. Highly politicised and increasingly assertive trade union activities are sending out a negative message to investors and over-politicisation of labour will result in the economy and the nation paying the price.

National Labour Law Profile: Kenya

Historical background

The United Kingdom established its influence in Kenya in the 19th century. In 1885, the European powers gathered at the Berlin Conference and partitioned East Africa into spheres of influence. In 1895, Kenya became a British protectorate, and the highlands were opened to white settlers.

When Kenya formally became a British colony in 1920, organized African political activity developed, but its direct political participation was prohibited until 1944. By then, the Kenya African National Union (KANU) had been established, and Jomo Kenyatta, a member of the predominant Kikuyu tribe became its president. From 1952 to 1956, a movement founded by members of the Kikuyu, Embu, Meru and Kamba tribes raised the “Mau Mau” rebellion against the British colonial rule.

The first Legislative Council elections with the participation of Africans was organized in 1957. Kenya’s independence was proclaimed and the Constitution adopted on 12 December 1963. In 1964, it was amended, and Kenya became a republic with a constitution in which the powers of the governor-general and those of the prime minister were rolled into one: the presidency. Jomo Kenyatta, the head of the KANU, became the first president to enjoy those powers. In 1965, one of his first acts as president was to seek an amendment that would lower the majority needed to amend the constitution from 75% in the House of Representatives and 90% in the Senate to 65% in both Houses.

The KANU became de facto the sole political party. After Kenyatta’s death in 1978, his successor Daniel Arap Moi followed the same political and economic policies.

In June 1982, the National Assembly amended the Constitution, making Kenya officially a one-party state. This system was repealed in December 1991, and several new parties were formed. Multiparty elections were held in December 1992 and 1997. President Moi was re-elected both times.

Following the presidential elections in December 2002, Mr. Mwai Kibaki was elected for a term of five years, which brought to an end the supremacy of the KANU, after being in power for 40 years without any interruption. His party, the National Rainbow Coalition won 59 per cent of the parliamentary seats.

^ top of the pageConstitutional frameworkThe current constitutional organization of the country

The current Constitution differs fundamentally from the Constitution adopted on 12 December 1963. The original Constitution provided for the office of an Executive Prime Minister, and for a bicameral, federal and multiparty system. It has, since then, been amended various times. A constitutional amendment from 1991 limited the term of office of a president to two five-year terms which eventually led to the peacefully achieved shift in power in 2002. The latest amendments stem from 1997.

Local administration is divided among 63 rural districts, each headed by a presidentially appointed commissioner. The districts are joined to form seven rural provinces. The Nairobi area has special status and is not included in any district or province. The government supervises the administration of districts and provinces.

The president is the Head of the State and the Commander in chief of the armed forces.

The Republic of Kenya has a unicameral assembly consisting of 210 members elected for a term of up to five years, plus 12 members appointed by the president. The president appoints the vice president and cabinet members from among those elected to the assembly, in accordance with the strength of the parties they represent. The attorney general and the speaker are ex-officio members of the National Assembly.Draft Constitution of the National Constitutional Conference

In September 2002 the “Constitution of Kenya Review Commission”, appointed by the Parliament and the President, submitted a Draft Bill of the Constitution of the Republic of Kenya to the National Constitutional Conference (NCC). The Conference consisted of all the MPs, 3 representatives from each district and others from the civil society religious and professional bodies. Major subjects of the debate were among others: The presidential system, namely a new position of a prime minister with considerable executive powers, the electoral system to Parliament (proportional or majority representation), and the development from an individually defined European Human Rights’ tradition towards the recognition of collective and solidarity Rights. The Draft Constitution was adopted by the National Constitutional Conference on 15 March 2004, by majority vote. Following this adoption, the country was still divided on the constitutional review process. The question of the legality of the document was raised. As of 4 June 2004, there are still discussions around the text to be submitted to the people for referendum. While some support the opinion laid down in a ruling given by Justice Aaron Ringera on the constitutionality of the Conference (Miscellaneous Civil Application No. 82 of 2004), and suggesting to submit the actual draft to the people by referendum, others consider that the Parliament should be given a chance to debate on the draft and amend it before taking it to a referendum. Justice Ringera did not pass a definite verdict on the validity of the draft. He asserted the right to a referendum as a fundamental constitutional entitlement of every Kenyan citizen, without ruling on “which draft” the referendum was to be conducted upon. This issue is important, as there are controversies on the text itself, in particular on the system of checks and balances introduced by this draft Constitution, and the role of the Prime Minister, whose post was created by this text.

Pursuant to the Draft Constitution, many of the powers of the presidency would be transmitted to this Executive Prime Minister, who would become the head of government (Section 172 of the Draft) and preside the Cabinet meetings. When President Kibaki opened the National Constitutional Conference last year, he set the date of 30 June 2004 as a deadline for the Constitution to be adopted. But it has now been admitted that the Constitution will not be ready before this date. Meanwhile, the current Constitution remains in force.

The JudiciaryThe Ordinary Court SystemThe current Kenyan Constitution provides for an independent judiciary. However, the President has extensive powers over appointments, including those of the Attorney General, the Chief Justice, and Appeal and High Court judges. The President can also dismiss judges and the Attorney General upon the recommendation of a special presidentially appointed tribunal. Although judges have life tenure (except for the very few foreign judges who are hired by contract), the President has extensive authority over transfers.

The court system consists of a Court of Appeals, a High Court, and two levels of magistrate courts, where most criminal and civil cases originate. The Chief Justice is a member of both the Court of Appeals and

the High Court, which undercuts the principle of judicial review. Military personnel are tried by military courts-martial, and verdicts may be appealed through military court channels. The Chief Justice appoints attorneys for military personnel on a case-by-case basis.

There are no customary or traditional courts in the country. However, the national courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law. This is done most often in cases that involve marriage, death, and inheritance issues and in which there is an original contract founded in customary law. Recently concerns have been voiced towards the prevalence of customary law as it is often felt to be biased in favour of men. In addition, Kadhi-Courts apply Islamic law for the Moslem population of the country.The Industrial Court

Unlike the ordinary courts, the Industrial Court of Kenya is not mentioned in the Constitution, but was established in 1964 under the Trade Dispute Act (Cap. 234). The Industrial Court has found its current shape in 1971, when the Trade Dispute Act was amended in the light of the experience gained from 6 years of practical application. The purpose of the Court is the settlement of trade disputes. Vide the provisions of section 14, Trade Dispute Act (Cap. 234), the President of the Republic may establish the court, and determine the number of judges (not less than two). Eight members are appointed by the Minister after consultation with the Central Organisation of Trade Unions (CETU) and the Federation of Kenyan Employers (FKE). Whenever it appears to be expedient, each judge appoints two assessors, one to represent employees, from a panel of assessors appointed by the Minister, to assist in the determination of any trade dispute before the Court. The jurisdiction of the Court is exercised by the judge and the two other members. Only in the case that they are not able to agree, the matter will be decided by the judge “with the full powers of an umpire” (section 14 (8) Trade Dispute Act (Cap. 234)).

A person shall not be qualified to be appointed as a judge unless he or she is an advocate of the High Court of Kenya of not less then seven years’ standing.

The industrial court may award compensation or make an order for reinstatement (Trade Dispute Act (Cap. 234), section 15). The award becomes part of every contract of employment between the employers and employees to whom the award relates under the Trade Dispute Act (Cap. 234), section 33(4). The award and decision of the Industrial Court are final (Trade Dispute Act (Cap. 234), section 17).

The status of the Industrial Court has led to a number of controversially discussed problems in the past:Applications for judicial review can be brought to challenge the procedural and substantive validity of the awards and decisions of the Industrial Court. In effect this transfers the jurisdiction over labour law cases to the High Court. The Trade Disputes Act does not exclude the right of litigants suing in open court. On the contrary, section 14 (9) excludes trade disputes arising in the public sector from the jurisdiction of the Industrial court. In addition access to the Court is limited by the rule of practice that only unions and employers and their organizations have standing before the Industrial Court; and as management staff is excluded from membership in trade unions, the Industrial Court does not deal with white-collar workers’ concerns.

Thus, a significant number of labour cases in the broader sense is being handled by ordinary courts, i.e. the High Court, either from the first instance onwards, or – in a few cases - in appeal. Within the ongoing general Labour Law Reform, a taskforce to review the Labour Laws has adopted a draft act on Labour

Institutions, introducing a National Labour Court, having the same prerogatives as the High Court, on labour law issues. (For more details, see the paragraph on the Labour Law Reform).

Labour Rights in the ConstitutionArticles 70 to 86 of the current Constitution deal with fundamental rights. Basically the Constitution guarantees fundamental rights and freedoms of the individual. Among these fundamental rights, a range of general principles underpinning labour rights are anchored in the Constitution itself. The Constitution provides for principles, such as the prohibition of inhuman treatment (Art. 74) and the protection from slavery and forced labour (Art. 73).

Freedom of Association is guaranteed in the Constitution under Art. 80. This constitutional provision under Article 80 (2)(d) already regulates in detail procedures for the registration of trade unions and associations of trade unions. Under this provision reasonable conditions relating to the requirements for entry on a register of trade unions include conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or members necessary to constitute an association of trade unions qualified for registration. Moreover, the Constitution already names conditions whereby registration may be refused by the registrar: “on the grounds that another trade union already registered or association of trade unions already registered, as the case may be, is sufficiently representative of the whole of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought”.

The right to strike is not mentioned explicitly, but Art. 80 (1) protects not only the right to organize, but explicitly activities serving the purpose of the union, such as all activities designed to protect the individuals’ interests.

Related to an employee’s freedom are also the protection of right to personal liberty (Art. 72), his or her freedom of movement (Art. 81), and the protection from discrimination (Art. 82). Art. 82 (3) specifies the anti-discriminatory provision prohibiting different treatment on the enumerative grounds of race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex. Labour rights in the draft Constitution

The Draft Constitution contains a Bill of Rights in its Chapter Six. This Bill lays down the principle of equality (Section 35, 37), the freedom from discrimination (Section 36), the freedom from slavery and forced labour (Section 46) and the freedom of association (Section 52). Section 59 on Labour relations determines the rights of workers, employers and trade unions, in particular the right to fair remuneration, the right to reasonable working conditions, the right to join a trade union or employer’s organization, the right to strike and the right to engage in collective bargaining.

Labour regulation:The Evolution of Labour Law in KenyaThe genesis of labour law and practice can be traced to the 19th century when need arose for the colonial government to pass legislation to ensure adequate supply of cheap labour to service the emerging enterprises in agriculture, industry and in the service sector. Terms and conditions of employment were regulated by statutes and the common law. The law of contract in Kenya was originally based on the Contract Act, 1872, of India, which applied on contracts made or entered into before 1st of January 1961. The Indian Contract Act applied to the three countries Kenya, Tanzania and Uganda . Since then the Kenyan law of contract has been based on the English common law of contract, under the Kenyan Law of Contract Act (Cap. 23), section 2 (1).

With industrialization, towards the middle of the 20th century, an organized trade union movement was well established.

The first wage earners' associations in Kenya can be traced back to the early 1940s and soon after the Second World War.

The first trade union regulation was made in the introduction of Ordinance No. 35 of 1939 that required all crafts organizations to apply for registration which they could be granted or denied depending on whether they had legitimate dealings consistent with government policy. The Ordinance also permitted any group of seven people to form a trade union and operate as one upon registration. Cancellation of registration under the Ordinance was not subject to appeal or open to question in a court of law (Aluchio 1998, 3).

In 1948, in order to gain complete hold on the wage earners organizations the government brought in a Trade Union Labour Officer, to be attached to the Labour Department with the duty to foster "responsible" unionism (Ananaba 1979, 3). In 1952 a more detailed piece of legislation was enacted for Trade Unions but again with significant omissions. It lacked necessary provisions for effective operation of trade unions. It did not legalize peaceful picketing or provide immunity against damages as a result of strikes. On the other hand, the government encouraged creation of staff associations and works committees since they fitted in its interests to confining workers’ organization to economic imperative alone and also lacked strike powers.

This rigid control of trade unions was maintained by the colonial government until the end. This notwithstanding, the movement was able to grow both in numerical strength and power. At independence the total number of following was about 155,000, 52 trade unions, with four centres formed and registered, namely, East African Trade Union Congress (EATUC), Kenya Federation of Registered Trade Unions (KFRTU), Kenya Federation of Labour (KFL) and Kenya Africa Workers Congress (KAWC).

Industrial confrontation arose not merely from traditional trade union activities, but also from the movement’s political role in the struggle for freedom from colonial domination, particularly after individual political leaders had been arrested and placed in detention.

On the threshold of independence however, both employers and trade unions, felt that it was vital for the infant nation to make economic process, that capital and labour should work together in harmony: the incidence of strikes and lockouts had to be drastically reduced.

As a result, in October 1962, a landmark was established with the signing of the Industrial Relations Charter by the government of Kenya, the Federation of Kenya Employers and the Kenya Federation of Labour, the forerunner of COTU (K), the Central Organisation Of Trade Unions (Kenya).

The Industrial Relations Charter spelt out the agreed responsibilities of management and unions and their respective obligations in the field of industrial relations, it defined a model recognition agreement as a guide to parties involved, and it set up a joint Dispute Commission.

The Industrial Relations Charter has been revised twice since then, but remained the basis for social dialogue and labour relations in Kenya throughout the years. Currently the “Charter” is under review

again; the parties have already produced a draft Charter in 2001 that might be signed in the context of the overall Labour Law review.

With the set up of an Industrial Court in 1964, one additional basic cornerstone was laid for the development of amicable conflict resolution in Kenya. The Labour Law Reform Agenda

In May 2001 a Taskforce to review the Labour Laws was appointed by the Attorney General (Gazette Notice No. 3204), within an International Labour Organisation project. The terms of reference for the Taskforce were:

To examine and review all the labour laws including the Employment Act (Cap.226); the Regulation of Wages and Conditions of Employment Act (Cap. 229); the Trade Unions Act (Cap. 233), the Trade Disputes Act (Cap. 234), the Workmen’s Compensation Act (Cap. 236), the Factories Act (Cap. 514) and make recommendations for appropriate legislation to replace or amend any of the labour law statutes; To make recommendations on proposals for reform or amendment of labour laws to ensure that they are consistent with the Conventions and Recommendations of the International Labour Organisation to which Kenya is a party; and To make recommendations on such other matters related to or incidental to the foregoing.

Major points of concern were: Extension of the application of protective labour regulation into the informal sector; Harmonisation of the Kenyan labour legislation within the East African Community;Merging and redrafting the different Acts in order to produce a user-friendly and comprehensive labour legislation for benefit the people;The elimination of remaining colonial heritage in employment relations and contracts;The introduction of an Industrial Court of Appeal to overcome contradicting jurisdiction between the High Court and the Industrial Court;Review registration procedures and trade union monopoly based on the Trade Unions Act (Cap. 233) in view of the ratification of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);Review regulations on casual employees;Setting up of an administration system which promotes involvement and democratic participation of the social partners (role of the Labour Advisory Board, possible involvement of civil society concerned in specific fields, etc.);Review possible limitations of excessive powers and influence of the Minister for Labour in industrial relations;Creation of an efficient labour administration system (inspection pp.) which is capable of effectively enforcing the laws;Review the election procedures for trade union officials, and implement a system of directly elected workers’ representatives;The establishment of an affordable, not contribution based, workers social insurance scheme, complementing the National Social Security Fund;Promote equity and equality in employment by incorporating anti-discriminatory (gender, HIV/AIDS) provisions into the Employment Act (Cap. 226), and as well as provisions against discriminating sexual harassment.

The tripartite Taskforce, comprising of members from the government, the trade unions (COTU) and the employers organization (FKE), officially handed over five new texts to the Attorney General in April 2004. The five drafts, when they reach their final version, will replace the existing legislation on Labour Law. These drafts relate to the following matters: Draft on the Labour Relations Act: an act to deal with the registration, regulation, management and democratisation of trade unions and employers organizations or federations, to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and related matters. Draft on the Labour Institutions Act: an act for the establishment of Labour Institutions, to provide for their functions, powers and duties. This text introduces a system of labour courts with exclusive jurisdiction on labour matters. The act establishes Subordinate Labour Courts, as well as a National Labour Court. The latter is a superior court having the same authority, inherent powers and standing in relation to matters under its jurisdiction, as the High Court. Appeals on decisions from Subordinate Labour Courts lie in the National Labour Court. Second appeals lie in the Court of Appeal. This text also creates a National Labour Board, whose main duty is to advise the Minister on labour legislation and matters. Draft on the Employment Act: an act to declare and define the fundamental rights of employees, to provide basic conditions of employment of employees and to regulate employment of children. This act contains provisions on freedom from discrimination and from sexual harassment. Provisions on freedom from forced labour expressly domesticate ILO Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), both ratified by Kenya in 1964. Draft on the Occupational Health and Safety Act: an act to provide for the safety, health and welfare of persons employed, and all persons lawfully present at workplaces and related matters. Draft on the Work Injury Benefits Act: an act to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment, for insurance of employees and related matters. These texts do now have to follow the path towards adoption, which will hopefully be completed by the end of 2004.Other sources of labour regulation

Employment relations in Kenya are regulated by a number of sources: constitutional rights, as mentioned above; statutory rights, as set out in statutes and regulations; rights set by collective agreements and extension orders of collective agreements; and individual labour contracts.

These legal sources are interpreted by the Industrial Court, and in some cases by the ordinary courts (see above). A particularly important role to play has the tripartite Industrial Relations Charter that laid the foundation for an industrial relations system already prior to Kenya’s independence in 1963. International standards, especially ILO Conventions ratified by Kenya are used by the government and courts as guidelines, even though they are not binding.

In individual labour cases British common law is applicable up to now. The Judiciary Act (Cap. 16) of 1967, section 3(1) states: “The jurisdiction of the High Court and of all subordinate courts shall be exercised in conformity with: a) the Constitution;b) subject thereto, all other written laws; including the Acts of the Parliament of the United Kingdom (…);

c) subject thereto and so far as the same do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the12th August 1897, and the procedure and practice observed in courts of justice in England at that date:

Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”

Contract of EmploymentIn Kenya, employment is governed by the general law of contract, as much as by the principles of common law. Thus, employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. Parliament has passed laws specifically dealing with different aspects of the employer-employee relationship. These laws define the terms and conditions of employment, and consist mainly of four Acts of Parliament:

The Employment Act (Cap. 226), and the regulation of Wages and Conditions of Employment Act (Cap. 229) make rules governing wages, housing, leave and rest, health and safety, the special position of juveniles and women and termination of employment. The latter Act, in addition, sets up a process through which wages and conditions of employment can be regulated by the Minister.

The Factories Act (Cap. 514) deals with the health, safety and welfare of an employee who works in a factory.

The Workmen’s Compensation Act (Cap. 236) provides for ways through which an employee who is injured when on duty may be compensated by the employer.

The Employment Act does not make any provisions for wages in general. The minimum wage is dealt with by the Regulations of Wages and Conditions of Employment Act. Unlimited and fixed-term contracts of employment

Employment contracts may be for fixed or unlimited periods of time. If an employment contract specifies a fixed period of employment, the contractual relationship is automatically terminated at the end of this period, without being considered a resignation or a dismissal. Under section 15 of the Employment Act, such a contract may be prolonged for a period of service up to 1 month, if the employee is engaged in any journey. Until the very recent past most female civil servants and parastatals staff were employed on fixed term contract.

In general, temporarily and fixed term employed workers enjoy all the rights of an employee working on permanent terms, except those that are excluded explicitly (such as entitlement to pensions) or by the nature of a short term assignment (such as annual leave).

An employment contract, which does not specify a fixed period of duration, is considered to be for an unlimited period of time, but can be terminated by notice of either party. However, in the organized sector collective agreements which give workers tenure limit the employers’ ability to discharge and end the employment contract.

Other limitations on terminating an individual labour contract are the principle of good faith and the requirement of non-discriminatory reasons.

Under section 14 (1) of the Employment Act it is a legal requirement that certain contracts of service be made in writing. These are contracts: For a continuous period of 6 months; Which are not continuous, but for which the periods still add up to six months; and In which the task to be performed may last for six months.

Where a contract is in writing, it must carry a signature or a fingerprint of the employee showing that she or he has agreed to its terms. There must also be a witness who is not the employer. It is the duty of the employer to make sure that the contract is written when this is required by the law.

Special contracts of employment Casual Employment and Piecework employmentBoth types of employment are defined under section 2 of the Employment Act. The “casual employee” is “an individual the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time”, and Piece-rate “means any work the pay for which is estimated by the amount of work irrespective of the time occupied in its performance”. Basically these categories of workers enjoy to a large extent the same rights as other employees, but may be excluded from many benefits, such as leave, medical cover or housing.

The draft Employment Act, handed over in April 2004 to the Attorney General by the Taskforce on the review of labour law, introduces significant changes concerning casual employment. Employers who offer work that should last for at least one month should, if they cannot employ a worker on a permanent basis, engage him on a term contract. Pursuant to this draft, a casual employee who is engaged for more than a month in a job which otherwise would not reasonably be completed in a period less than three months, shall now be treated as an employee on a fortnightly contract, and on termination should be paid a fortnight salary in lieu of notice. Furthermore, where casual employees are employed for more than one month, they should, if the draft was adopted, be entitles to one paid rest day in a period of seven days.Apprenticeship Contracts

Apprenticeship contracts that primarily intend to train young people in a profession are considered contracts of employment. The apprentice therefore enjoys all the rights and suffers all the obligations of an employee, subject to the terms of the contract. The only distinction between an apprentice and an employee is that the ‘full’ employment of an apprentice depends on his or her successful completion of the training. Apprenticeships in the industrial sector are governed by the Industrial Training Act, which provides that the rules and principles governing the must be applied, unless the Act expressly states an exception, or when the application of labour law would not be compatible with the nature and aim of the vocational training being undertaken. The minimum period of an apprenticeship contract under the Industrial Training Act, section 2, is four years of service.Probation

Kenyan statutes do not relate to trial periods for individual labour contracts. However, collective agreements generally establish a trial period, after which the worker receives tenure.

Trial periods range between 3 weeks (under the Regulation of Wages (Tailoring Garment Making and Associated Trades) Order) and 3 years (the latter in the civil service). Government workers receive

tenure according to the requirements set out in the Civil Servants Law (Appointments) and the Civil Service Rules, which are determined by the Civil Service Department of the Government.

An employer may dismiss the worker during the trial period or at its conclusion, depending on the contract terms. Nevertheless, this termination of contract must be done in good faith. When the dismissal is unfair or causes the worker unusual injury, the court may award him damages.Suspension of the contract of employment

Under the Trade Disputes Act the labour contract is suspended if a worker participates in a lawful strike or is affected by a lawful locked out. Therefore, the employee does not violate his or her contractual obligations to his or her employer when he or she participates in a strike. Likewise, lockouts do not terminate the employment relationship. When the labour contract is suspended by worker participation in a strike, the employer is not required to pay wages, since no work has been performed. Industrial Court judgements have held that an employer is not required to pay wages when the labour contract is suspended because of a strike.

Termination of the contract of employmentTermination by Notice(i) Statutory regulationsUnder the Employment Act, section 14 (5) “ every contract of service not being a contract to perform some specific work, (…), be deemed to be

(i) where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice; (iii) where the contract is to pay wages or salaries periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the given of notice in writing.”

This sub-section does not apply in cases when the contract itself, or a given collective agreement, requires a longer period of notice. If an employer does not give notice, he or she should pay to the employee an amount equal to his or her wages for that period.

(ii) Rules of the Industrial CourtPractice in the Industrial Court has produced some rules, thereby modifying the strict regulations of the Act. The period of advance notice for employees who have worked for five years or less has generally been adjusted to a minimum of one month. When the employee has worked for more than five years, however, it is at least two months. And the notice must be in writing.

Collective agreements normally contain these rules too.Summary Dismissal i. Statutory regulations Under section 17 of the Employment Act, a summary dismissal is justified after “gross misconduct”, when a very serious wrong has been proved. The employee is guilty of such misconduct if he or she (section 17 (a)-(g)): (a) Is absent from work without permission or good excuse;(b) Is so intoxicated that cannot do their work properly; (c) Deliberately neglects or ignores the work, or carries it out improperly; (d) Uses abusive or insulting language;

(e) Disobeys orders from persons with authority; (f) Is lawfully arrested for an offence punishable by imprisonment, and is not within 10 days either released on bail or otherwise lawfully set at liberty;(g) Commits a criminal offence against the employer or his or her property. ii. Rules of the Industrial Court

Certain procedures have to be followed when such dismissal is being contemplated. First, the employee has to be informed of the claims of gross misconduct. Secondly, the employee has to be called upon and given the opportunity to defend himself or herself against them. Finally, he or she must be informed in reasonable detail of the decision once it is made, and the grounds upon which this is done. The decision should be made honestly and in good faith. There should be no victimisation or any unfair labour practices. General rules concerning termination

i. Statutory regulations

Under section 18 (1) every employer is bound to give to an employee a certificate of service upon any termination, but no reference or certificate relating to the character or performance (Sub-section 2).ii. Rules of the Industrial Court: Unfair Dismissals

It has now been accepted that adherence to all the requirements of the law in giving notice is not enough. Serious conflicts have been generated when an employee’s services have been terminated by the employer, on the grounds which appear to the general body of the work force to be spurious in order to get rid of the person.

The Court will intervene where there is a lack of good faith. At times, an employer may give notice to an employee when in fact she or he is dismissing him or her for some reason that may not constitute adequate grounds for summary dismissal. Under these circumstances the Court may investigate whether there is any victimisation, bias or unfair labour practice. Disregard of principles of natural justice may also cause the Court to intervene. It is considered to be unfair to base termination on the race, tribe or belief of an employee. The sex of an employee should be considered only to the extent permitted by the law, and in favour of the employee.

Applying these principles, dismissal may be based on other grounds apart from those mentioned in the Employment Act. An employee may be dismissed on medical grounds. But in cases where the ill health affects only a particular type of work, the employee may be given another type of work which is appropriate in the circumstances. (See among others: Industrial Court, Cause No. 11 of 1996 –Kenya Union of Journalists and Nation Newspapers; Cause No. 23of 1972- Kenya Union of Commercial Food & Allied Workers and Kenya Co-operative Creameries Ltd.)iii. Restrictions imposed by collective agreements

Collective agreements regulate and limit the employers’ ability to discharge workers. Grievance procedures and special dismissal procedures enable the union to represent the workers’ interest and negotiate the employers’ intent to make an individual or collective dismissal. When agreement is not reached the dispute is often settled in arbitration. Some collective agreements grant the employer the prerogative to dismiss a worker after the consultation and negotiation requirements have been met.iv. Other contractual rights

There are many rights that an employee may have by virtue of the contract, such as leave (annual, maternity, sick or study), allowances (leave, travelling, acting, duty or any other), medical and overtime payments, bonuses and many others. They become relevant when the employment ceases. Their equivalent in money will be calculated and paid to the employee as part of the termination rights.Redundancy and severance pay

In the understanding of the Industrial Court the basic principles that would apply in the event of redundancy were already laid down in the first version of the tripartite Industrial Relations Charter. In addition, “redundancy” is defined under the Trade Disputes Act, section 2, as “loss of employment, occupation, job or career by involuntary means through no fault of an employee involving termination of employment (…)”. Moreover, redundancy and severance pay on redundancy are common features in collective agreements, defining the length of notice to be given to the union, and the notice period in respect of the employees to be declared redundant.

The individual employee is entitled to two basic rights, severance pay and payment in lieu of notice. The rates of payment may depend on the agreement, but many range from fifteen to thirty days basic wage or salary for every completed year of service. Following the jurisprudence of the Industrial Court it has been accepted that an employer whose position improves, and wishes to employ after a financial crisis, must give priority to the employees formerly declared redundant.

Remedies in case of unjustified dismissal Under Kenyan legislation there are two basic rights of a dismissed employee where the dismissal is wrongful: the right to reinstatement and the right to compensation. These rights can be granted separately or together. Reinstatement can only be ordered by the Industrial Court under section 15 (1) of the Trade Disputes Act. In rectifying the jurisdiction of the Industrial Court, the power of reinstatement had been given to the Court in the amendment of the Act in 1971. The Court normally considers all the relevant circumstances applying the principles of good faith, to decide whether reinstatement is justified, such as the length of time since dismissal, whether an employee has been employed elsewhere since dismissal, and the willingness of both the employer and the employee to reinstate and to be reinstated.

Under the law of contract, the general remedy for breach of contract is compensation, but the Court may also grant specific performance or rescission. The amount paid will depend on the circumstances of the case, but is generally based on the monthly or annual earnings of the dismissed person. Under the Trade Disputes Act, section 15 (2), the amount awarded must not exceed the actual financial loss suffered by the employee as a result of the wrongful dismissal, or an amount equal to his or her wages for twelve months. In computing the amount of compensation any earning which the employee has received since the dismissal is being taken into account.

The above-mentioned draft Employment Act contains a whole part on unfair termination, compiling these already existing rules. Resignation

Under the Employment Act, sections 14 (5) and 16, the conditions for termination by notice by the employer apply here. Employees who receive monthly payments must inform the employer one month before they intend to stop working. The contract may provide for a shorter or longer period. If employees do not give notice, they should pay to the employer the equivalent of the wages for the period of notice.

If, in addition, the workers’ resignation violates a contractual obligation to work for a specified period they may be liable for damages that the resignation caused the employer. Such cases are few though, and difficult to prove. Courts will not grant the specific performance remedy to an employer, i.e., they will not compel an employee to work, the employers’ only remedy being damages. In general, when an employee resigns he or she is not entitled to severance pay.

Working time and rest timeHours of work Under the Regulation of Wages (General) Order, subsidiary to the Regulations of Wages and Conditions of Employment Act, the general working hours are 52 per week, but the normal working hours usually consist of 45 hours of work per week, Monday to Friday 8 hours each, 5 hours on Saturday under the special Orders for different sectors subsidiary to the Regulations of Wages and Conditions of Employment Act. Collective agreements may modify the working hours, but generally provide for weekly working hours of 40 up to 52 hours per week.

Under the Employment Act, section 8, every employee is entitled to at least one rest day in every period of seven days. In many sectors the regular rest-day may not be the Sunday, but another day of the week.Overtime

Under these statutory regulations overtime shall be payable at the rates of one and one-half time hourly rate on weekdays, and at the rate of twice the basic hourly rate on Sundays and public holidays. There are different Regulations of Wages Orders in force, covering different sectors of the economy. Annual paid leave

Under section 7 of the Employment Act, every employee shall be entitled to no less than twenty-one working days of annual leave with full pay. Where the employee works for less than a year, the number of days will be reduced accordingly. This is a minimum and many contracts and collective agreements provide for annual leave of between thirty to forty-five days. In average Kenyan employees enjoy annual leave of 24 days.

For a woman who has taken maternity leave (2 months) in a given year, the maternity leave forfeits her annual leave under section 7 (2) of the Employment Act. Public Holidays

Kenya has currently 11 public holidays – New Year’s Day, Good Friday, Easter Monday, Labour Day, Madaraka Day, Moi Day, Kenyatta Day, Eid-ul-Fitr-Day, Christmas Day and Boxing Day - described by the Public Holidays Act. Where any of these holidays fall on a Sunday, the next working day will be a holiday.

Maternity leave and maternity protectionUnder section 7 (2) of the Employment Act, maternity leave is two months with full pay, provided that a women who has taken two months maternity leave forfeits her annual leave in that year.

The Regulation of Wages (General) Order, subsidiary to the Regulations of Wages and Conditions of Employment Act, specifies the provision under paragraph 13 (ii) and (iii) which read:

(ii) child birth (…) shall not be deemed to be sickness as provided for under paragraph 12, and the employer shall not be inquired to meet medical costs incurred thereon;

(iii) a female employee who takes maternity leave shall not incur any loss of privileges during such period.

The draft Employment Act submitted by the Taskforce to the Attorney General in April 2004, within the labour law reform process, contains a provision stipulating that a woman shall no longer forfeit her annual leave entitlements. If this provision is adopted, a woman may be entitled to two months and three weeks of leave, in a year she delivers a baby. The same text allows the employer to be reimbursed from the funds held by the National Social Security Fund (NSSF). In the case of adoption of this provision, the NSSF Act would have to be amended accordingly.

Further protective legislation of women workers during pregnancy and after childbirth does not exist. The Factories Act that deals with issues of occupational safety and health does not provide any additional protection for pregnant employees in respect to pollution, and hazardous working environments.

Cash benefits and other entitlements during pregnancy, and breaks for breastfeeding are provided in selective collective agreements, without representing a general trend.

Parental leave is unknown. Other leave entitlementsSick Leave Under the Employment Act, section 7 (3), an employee is entitled to paid sick leave after a period of two consecutive months of service. Thus, the Employment Act, provides the minimum period of entitlement while the Regulation of Wages Order, subsidiary to the Regulations of Wages and Conditions of Employment Act, section 12, provides the longest period granted by law.

The minimum period of entitlement is seven days with full pay and seven days with half-pay for every twelve months. The longest period of entitlement is thirty days with full pay and fifteen days with half-pay. The employee is however expected to produce a certificate of incapacity to work signed by a duly qualified medical practitioner.

The above-mentioned draft Employment Act would, if adopted, increase sick leave from seven to thirty days with full pay and fifteen days with half pay. Compassionate Leave

Under the Regulation of Wages (General) Order, subsidiary to the Regulations of Wages and Conditions of Employment Act, compassionate leave is granted to allow an employee to attend to personal misfortunes such as death, accidents or sickness concerning relatives and friends. The number of days he or she gets are deducted from the annual leave entitlement for the year. Study Leave

Under the Civil Service Code of Regulations public employees are entitled to study leave. Neither the Employment Act, nor the Regulations of Wages and Conditions of Employment Act provide for an equivalent. But in practice, many companies and employers grant employees time off to go for courses, or to prepare for examinations. Leave for trade union purposes or because of the holding of public office

Legally binding entitlements for employees to leave the working place for the period the attendance to a public office requires, or even for trade union purposes do not exist. But the tripartite Industrial Relation Charter, in the amended version of 30th April 1980, provides under A, section III, Employers’ Responsibilities: “That employers shall not engage in such practices as

(a) Interference with the rights of employees to enrol or continue as Union Members; (b) Discrimination, restraint or coercion against any employee because of recognised activity for trade unions; (…)”. And even clearer under G, Joint Consultation: “Management shall take appropriate measures to facilitate the proper functioning of joint machinery by making available facilities for meetings and in appropriate cases, the staff essential thereto including allowing representatives of the employees the necessary time, within reason, to attend meetings without loss of pay; (…)”.

The Industrial Charter imposes at least some moral obligations on the parties who are signatories to the agreement, and toothier membership.

Minimum age and protection of young workers The Employment Act, in part IV, accords special protection to juveniles. Under section 2 “juveniles” is defined as a “child or young person”; and “ ’child’ means an individual who has not attained the age of sixteen years”, whereas “young person” means a person who has not attained the age of 18 years.

With the adoption of the Children Act, 2001, a new and conflicting definition has been established of which defines "child" as any human being under the age of 18 years.

The regulations for juveniles, minors under 18, under the Employment Act, are as follows: Children under 16 should not be employed in any industrial undertaking or to attend machinery, unless they are apprentices or learners. “Industrial undertaking” means any of the following: any activity which relates to surface or underground extraction (like mines and quarries), any factory and any form of construction and installation (like buildings, railways, roads, tunnels, bridges, canals, sewers, drains, gas work, telegraphic, telephonic or electrical installations, or water works), and to transportation and handling of passengers or goods by road, rail or inland waterway. Section 24 (2) (a)-(d) thereby covers most of the potentially hazardous working conditions.

Young persons under 18 must not be employed in any industrial undertaking at night except in cases of emergencies. “Night” means the time from six-thirty p.m. to six-thirty a.m. (section 28). Employers engaging juveniles (under the age of 18) are required to keep a register (section 31): the labour officer may cancel or prohibit the employment (section 34), or order the medical examination of the juvenile (section 32).

Section 3(1) of the Employment (Children) Rules, 1977, allows the employment of children with the prior written permission of an authorized officer, and that the only restrictions are that such employment should not cause the children to reside away from parents without their approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner and that such permit should be renewed annually.

The ILO-Committee of Experts has noted that the provisions of section 3(1) of the above Rules undermine the prohibition set out in Convention 182 – ratified by Kenya - and the provisions of the national legislation establishing the minimum age for admission to employment at 16 years. No permit should be issued by any person, whether they are parents, guardians or the Labour Commissioner,

which have the effect of allowing employment or work, apart from light work for persons of between 16 and 18 years of age.

With the ratification by Kenya on 7 May 2001 of the Worst Forms of Child Labour Convention, 1999 (No. 182), and the adoption of the Children Act, 2001, a major step towards improving the protection of children against exploitation and inhuman working conditions has been done, though the system needs to be aligned now. This will be done if the above-mentioned draft Employment Act is adopted. This text defines the “worst forms of child labour” and prohibits it. The Minister is given the power to identify jobs which would constitute worst form of child labour. As noted above, section 2 of the Children Act defines "child" as any human being under the age of 18 years. The second part of the Act, entitled "Safeguards for the rights and welfare of the child", addresses the protection of the child against economic exploitation and any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development (section 10(1)); the protection of the child against recruitment and participation in armed conflicts is addressed in section 10(2), the protection of the child against any other form of exploitation including sale, trafficking or abduction by any person in section 13(1), and the protection of the child against sexual exploitation and use in prostitution in section 15. Under the terms of section 20 of the Act, any person who wilfully or as a consequence of culpable negligence infringes any of the provisions of sections 5 to 19 shall be liable to imprisonment not exceeding 12 months or to a fine of 50,000 shillings, or both. No protection is provided for children working in family agricultural activities or enterprises, and who are not paid. Section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment. As according to the 1998/1999 Kenyan Child Labour Report, most of the children who work, or 78.7 per cent, work exactly under these circumstances. The majority of children who work are therefore excluded from the definition of child labour contained in section 10(5) of the Children Act, 2001.

EqualityGender EqualityThe Constitution guarantees the right to equality in Art 82(3): “the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”.

The Constitution specifies this commitment for the public sector in sub-section 5 which reads: “Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, tribe, place of origin or residence or other local connection, political opinion, colour or creed) to be required of a person who is appointed to an office in the public service, in a disciplined force, in the service of a local government authority or in a body corporate established by any law for public purposes.”

However, this anti-discriminatory right is directly pointed towards the public authority only, and does not provide any legal entitlement among private subjects. Even though the Constitution recognises historical disparities between men and women, there is no obligation on employers neither to realise equality in the workplace, nor to implement affirmative action measures to advance women’s participation more rapidly.

By contrast, the Draft Constitution adopted by the National Constitutional Conference in March 2004, in its chapter named the Bill of Rights, contains general provisions concerning equality, freedom from discrimination and gender. It stipulates that “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” The following paragraph indicates that this provision is not restricted to the State, but also applies to private persons. Another section on gender states that “Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities.”

In the tripartite Industrial Relations Charter (1980) the parties agree on abolishing all discrimination among workers on the grounds of race, colour, sex, belief, tribal association or trade union affiliation including discrimination in respect of: (a) Admission to Public or private employment; (b) Labour legislation and agreements which shall afford equitable economic treatment to all those lawfully resident or working in the country; (c) Conditions of engagement and promotions; (d) Opportunities for vocational training; (e) Conditions of work; (f) Health, safety and welfare measures; (g) Discipline: (h) Participation in the negotiation of collective agreements; (i) Wage rates; which shall be fixed according to the principle of equal pay for work of equal value in the same operation and undertaking.

Yet, the Employment Act, Part IV imposes similar restrictions to the employment of women and the employment of juveniles. Under section 28 women must not be employed in any industrial undertaking at night (the time from six-thirty p.m. to six-thirty a.m.) except in cases of emergencies, and in cases where their work is connected with raw materials which are subject to rapid deterioration, and their work is necessary to preserve the material. Another exception exists for women in responsible positions of managerial and technical nature, or employed in health and welfare services, and not normally employed in manual work. The latter categories of women employees can even be employed on underground work, like women in course of their studies and women who have to enter the underground parts of a mine for any other reason than manual work.

The Industrial Charter imposes at least some moral obligations on the parties who are signatories to the agreement and their membership. In reality though, the world of work in Kenya remains far from substantively equal in gender terms.

The above-mentioned draft Employment Act stipulates that “Every employer shall pay men and women equal remuneration for work of equal value”. The section on discrimination of employment contained in this act domesticates ILO Equal Remuneration Convention, 1951 (No. 100), ratified by Kenya in May 2001. Moreover, a draft Equality Bill is pending at the Cabinet level. The Bill introduces the implementation of an Equality Board and Tribunal, and recognises equality rights in employment, education, health services, profession, and many other areas of private and social life. Sexual harassment

The above-mentioned draft Employment Act contains provisions on sexual harassment, but does not define sexual harassment as an offence, as existing provisions of the penal code were deemed sufficient. This is a new phenomenon in Kenya’s employment scene and the country’s cultural diversities and beliefs have to be taken into consideration. Workers with disabilities and persons living with HIV/AIDS

Workers with disabilities are mentioned only in the Regulations of Wages and Conditions of Employment Act, section 18 (1), which allows employment below the minimum wage for persons with disabilities.

Further regulations to prevent these groups from suffering discrimination do not exist. As the Anti-discriminatory clauses in the current Constitution are enumerative (see above 10.1), unlike many other constitutions, not prohibiting discrimination on “any other ground” in Art 82 (3) of the Constitution, these groups are not legally protected against discrimination. However, the above-mentioned Draft Constitution prohibits discrimination on the grounds of health status and disability (See above). Furthermore, the above-mentioned draft Employment Act defines discrimination in the following terms: “discrimination includes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, or HIV status (whether such HIV status is actual, perceived or suspected) or disability or any other arbitrary ground which has a detrimental effect on ones treatment in employment or occupation, or preventing an employee from obtaining any benefit under any contract of service.”

Pay issues Minimum wage The Employment Act does not make any provisions for wages in general. The Minimum Wage is dealt with by the Regulations of Wages and Conditions of Employment Act and in the Regulation of Wages Order subsidiary to Chapter 229. A tradition has been established according to which the Minister of Labour and Human Resource Development, in exercise of his or her powers conferred to by section 11 of the Regulation of Wages and Conditions of Employment Act, would order the increment of minimum wages to come into effect May 1st of every year. In this order he or she follows the recommendations of two tripartite bodies, the General Wages Council, and Agricultural Wages Council (Regulation of Wages and Conditions of Employment Act, section 11). On 1st May 2004, Labour Minister Chirau Ali Mwakwere announced that the current lowest paid worker's salary would rise by 11% from the current minimum starting salary of 3 500 Kenyan shillings a month. How wages are usually fixed? Wage and Income Guidelines

As discussed before, employment is governed by the general law of contract, as much as by the principles of common law. Thus, employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. This includes of course the agreement on the wage to be paid in exchange to the service.

However, for unionised employees wages are fixed by collective agreement, in some bigger companies even company agreements exist.

Section 14 (10) of the Trade Disputes Act allows the Minister of Finance to set guidelines or other directives relating to wage and salary levels. A collective agreement that does not comply with these guidelines cannot be registered by the Industrial Court.

These guidelines are seen to be justifiable for the sake of economic stabilisation in the national economic interest. The institution of the Income Guidelines goes back to the year 1973, when in a difficult period following the Oil Crisis, the Government felt that it had to step in and give guidance to the social partners, and to the Industrial Court in resolving the economic disputes. However, mandatory guidelines of this type may undermine the autonomy of the parties in collective bargaining, which would not be compatible with international labour standards, specifically ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Protection of wages

Under the Employment Act, section 4, wages should be paid in Kenyan currency to the employee or to an authorized person. The wages may be paid in kind but this must not be in the form of alcohol or drugs. Also, the Act requires that wages be paid in full, except authorized deductions, permitted by the law (under section 6 of the Employment Act). Housing

Under the Employment Act, section 9, specified under the Regulation of Wages (General) Order, subsidiary to the Regulations of Wages and Conditions of Employment Act, section 4, an employee is either entitled to reasonable housing accommodation, or to housing allowances that enable the employee to obtain reasonable accommodation. The Employment Act does not say what reasonable housing accommodation is, but gives power to the labour officer to enter into any house in which an employee is living and inspect it.

Trade Union RegulationThe formation, structure and organization of trade unions in independent Kenya is clearly provided for in various national instruments, namely, Trade Unions Act, Trade Disputes Act and the Industrial Relations Charter. The Taskforce on the review of labour law has recently submitted a draft Labour Relations Act, which repeals the two former acts when it is adopted. Formation and Registration

The Trade Unions Act provides for the formation of staff associations, employees associations and employees’ organizations for the registration and control of trade unions.

Under the Act, section 2 (1)(a) a trade union is defined as an association or combination, whether temporary or permanent of more than six persons, whose principle objects are to regulate the relations between employees and employers. Under this arrangement it is presumed that all employees in both the public and private sector have the freedom to join and form associations of their choice. However, in the Industrial Relations Charter, the parties agreed that the following will be excluded from union representation:

persons who are formulating, administering, co-ordinating, and/or controlling any aspects of the organization’s policy; staff who perform work of a confidential nature as shall be defined by a tripartite Committee;any other category of staff who may in the case of any particular undertaking,

In addition, the parties agreed, in a meeting chaired by the Minister for Labour and attended by representatives of the FKE and COTU (K), that the following persons shall be excluded from Union representation (Appendix B to the draft of the revised Charter, 2001):

1. (i) Executive Chairman, managing Director, General Manager (and his deputy) and functional Heads – that is, departmental Heads (and their deputies).

(ii) Branch Manager (and his deputy).

(iii) Persons in-charge of operation in an area (and their deputies).

(iv) Persons having authority in their organisations to hire, transfer, appraise, suspend, promote, reward, discipline and handle grievances provided that such persons fall within the Industrial Charter Clause No. 11-1.

(v) Persons training for the above positions (including Under-studies). 2. (i) Personal Secretaries to persons under 1 above. (ii) Persons whose functional responsibilities are of a confidential nature as shall be agreed upon between the parties. 3. Any other category of staff who may, in the case of any particular undertaking, be excluded from union representation by mutual agreement.

The civil service was banned from unionisation by Presidential Decree for years. The ILO Committee of Experts on the Application of Standards has repeatedly made requests to the Government to look into the question of the need for allowing establishment of a trade union to cater to the civil service on issues related to collective bargaining, wages, terms and conditions of service. Similarly the Committee of Freedom of Association has persistently urged that the Government should take necessary steps to insure the right of civil servants, not engaged into the administration of the state, to establish or join organizations of their own choosing. As a result, only recently a Civil Service Union was registered. Membership of trade unions is open to minors above the age of 16. They enjoy all rights of membership but are barred from holding executive posts of the trade unions until the age of 23. Recognition and Registration of Unions

Restrictions on the formation of a union do not only exist at levels of individual representation but in the substance and orientations of unions as well.(i) Trade union monopolies

A key provision of the Trade Union Act is the competence of the registrar under section 16(1)(d)(i) of the Act - which traces back to Article 80 (2) of the Constitution, as shown above (2.4.1). This provision allows the registrar to refuse registration of an application if there already exists a registered trade union whom he or she deems “sufficiently representative of the whole or of a substantial proportion of the interest in respect of which the applicants seek registration.” Hence the government decides, whether the representation by one trade union in any given industrial sector is “sufficient” and does in effect bar registration of would be splinter groups or even new trade unions in sectors. The Registrar’s actions have been in breach of this rule from time to time, sometimes arising out of High Court Orders to register splinter unions or out of his or her own decision . The registration provisions – which historically go back to the Industrial Relation Charter, and which are still backed by this tripartite agreement –affect the freedom of association of employees, who should be free to join unions of their own choice.(ii) Industrial Sectors

It is the Government’s policy, under the Industrial Relations Charter, to pursue industrial trade unionism and to work in co-operation with the Federation of Kenyan Employers and the Central Organization of Trade Unions to encourage conditions, which would progressively achieve this. Section 16(1)(d)(f) of the Trade Unions Act reinforces this position in providing that application for registration may be refused by the Registrar if persons seeking registration for an organization are engaged or work in different trades or calling and if its constitution does not contain suitable provision for protection and promotion of their respective sectional industrial interests. To this extent, crafts and general trade unions are barred. Strict adherence to this rule has however not been achieved as there exist trade unions which have generalist orientation, that is catering for more than one industry, such as the Kenya Union of Commercial Food

and Allied Workers. Moreover, there is the tendency of most trade unions including in their name, the term “Allied” thereby giving them way to organize workers engaged in areas which are not strictly in their principal jurisdictions. The Registrar nonetheless has powers to require alteration of name and also call for additional information when making consideration for registration. (iii) Other grounds for refusal

Other restrictions imposed by law are that, an organization may also be refused registration if the objects of its constitution are unlawful, its principal purpose is not in accord with what is set out in the Act, if the secretary or treasurer are deemed not sufficiently literate in English and Swahili language and are unable to carry out their duties adequately. Additional grounds for refusal and cancellations are unlawful application of trade union funds, improper keeping of funds of the organization and if the trade union is being used for unlawful purpose. There are also requirements for registration of trade union branches giving details of name, postal address of the office, titles and names of officials, their age, addresses and occupations.

Provision for registration of trade union centres has been made at section 16 (1) (d) (ii) of the Trade Unions Act. The Registrar has powers to defer registration on any of the grounds stated in the Act and accordingly notify the parties and thereupon the organization becomes a probationary trade union in line with provisions of section 11. (iv) Consequences of cancellation

The consequences of cancellation of registration of a trade union are that it:ceases to enjoy any rights and privileges; does not take part in any trade dispute or promote, organize or finance any strike or lock out or provide pay or benefits for its members; shall be dissolved and its funds disposed of in accordance with the rules of the union; no person shall take part in its management or organization, or act on behalf of the union as an officer.

Presently, there exist 37 registered trade unions currently with 35 being affiliates to the Central Organization of Trade Unions (K).

All in all, the Registrar has immense powers in matters of registration. He or she may defer, refuse and suspend registration of a trade union. Section 18(1) of the Trade Unions Act grant leave to parties aggrieved by the decisions of the Registrar to appeal to the High Court, whereupon he or she has right to be heard. Registration of Trade Unions under the draft Labour Relations Act

The draft Labour Relations Act finalized by the Taskforce in April 2004, lays down a new registration procedure. It defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employer’s organisation”. Unlike the definition now in force, this new definition does not require a minimum of members to be defined as a trade union.

For a trade union to be registered under this text, this procedure must be followed: First of all, the persons who wish to recruit members for the purpose of establishing a trade union must obtain a certificate from the Registrar. The application for such a certificate must be signed by two persons promoting the establishment of the trade union.

Within six months of receiving the certificate, the trade union must apply to the Registrar for registration. In order to be registered, the trade union must comply with certain requirements laid down in the draft. One of them is that the decision to register was made at a meeting attended by at least 50 members of the trade union. “Immunity”

Part V of the Trade Unions Act expressly grants immunity to trade unions, its officers and members, without any distinction, from any proceedings or civil suits in respect of any acts done in contemplation or in furtherance of a trade dispute. They have liability in tort and in contract. Indeed, probationary trade unions enjoy all rights and privileges accorded registered trade unions, except they have no rights to amalgamation.

^ top of the pageThe Actors of Industrial Relations: Employers’ and Workers’ Organizations in KenyaFederation of Kenyan Employers (FKE)

As in 2000, FKE claimed a membership of 2541 enterprises.

The FKE has three branches – Coast, Rift Valley and Western Regions; the headquarters are in Nairobi.

FKE operates through its industrial associations by addressing issues affecting individual industries or sectors. FKE spearheads the negotiation and signing of collective bargaining agreements (CBAs) on behalf of its member companies at all levels, i.e. company, industrial or sectoral.Workers Organizations

Kenyan trade unions are sector based; nevertheless, some are general unions operating beyond individual industries. An example is the Kenya Union of Commercial, Food and Allied Workers which represents workers in varied sectors like banking, food, retail and financial. The big Teachers’ union (Kenya National Union of Teachers, KNUT) is not affiliated to COTU (K) – the national Confederation of Trade Unions. Presently, there exist 37 registered trade unions, with 35 being affiliated to the Central Organization of Trade Unions (K). According to COTU about 244,000 individual members belong to its affiliated unions today.

There has been remarkable decline in trade union membership since the mid 1990s when retrenchment started. To revamp the decline, COTU has raised the minimum contribution from the previous 10. - Kshs. to 50. - Kshs. per month.

^ top of the pageCollective Bargaining and Agreements

Collective agreement is defined in the Trade Disputes Act as “ an agreement made between a trade union and an employer or organization of employers which relates to terms and conditions of employment, whether or not enforceable in law and whether or not concluded under machinery for negotiation.” A collective bargaining process precedes this.

The process of collective bargaining is not specifically provided for in law, but there are prerequisite conditions, which must be fulfilled before parties may proceed with bargaining process. Such conditions are contained in the Trade Unions Act, the Trade Disputes Act and the Industrial Relations Charter. In

section 5(2) of the Trade Disputes Act, there is a requirement that the trade union must have legal recognition in law that is duly registered by having a constitutional jurisdiction. Secondly, it must have a simple majority of 51% of unionisable employees in the undertaking, which it seeks to negotiate with, and thirdly there should not be any rival union. Appendix A of the Industrial Relations Charter offers a model parties recognition agreement and it marks out collective claims and grievances as part of the negotiation procedure. The model requires that either the General Secretary or his or her authorized representatives of the trade union may raise such claims with the management in writing three months before expiration of existing agreements.

All agreements must be reduced to writing. Part III of the Trade Disputes Act, requires that collective agreements be lodged with the Minister fourteen days of its execution and thereafter furnishes it with the Industrial Court for purposes of registration. The Minister may object to the registration if he or she deems it undesirable for registration. As discussed above the Registrar and the Industrial Court are bound by guidelines and directives issued by the Minister responsible for finance on matters relating to wages and salaries and other terms and conditions of employment. In cases where the Minister has made objection to registration, the Industrial Court may summon parties to hear them out.

It is an offence to implement a collective agreement before the Industrial Court registers it. Once so registered, the collective agreement binds parties to comply with the commitments made under it. Failure to perform by either party gives rise to a trade dispute which is dealt with in accordance of the provisions of the Act. In general, collective agreements have a duration span of up to two years before renewal by parties. Collective agreements modify individual contracts. Benefits are extended to non-union members serving in enterprises where they are in force. This arises from the constitutional provisions which protect freedom of association, and the Industrial Relations Charter which prohibits discrimination, but it is contentious issue vividly discussed among union members. Agreements may be denounced by mutual agreement of the parties with adequate notice being served by the initiating party.

Collective bargaining in Kenya is commonly conducted either on single establishment or single plant basis or in a multi-employer approach.

^ top of the pageCollective labour disputesReporting

A report must be made in writing to the Minister after twenty-eight days have elapsed since the date on which the dispute was reported and the period of notice specified in recognition or registered collective agreement has expired.Decision of the Minister

In Part II of the Act, a disputes settlement machinery is established and under section 5 the Minister has alternative actions that he or she may take upon receipt of a report of trade disputes. He or she may inform the parties that matters on which the dispute has arisen are not suitable to be dealt with under the Act, or refuse to accept the dispute if the reported matter is barred by a parties recognition agreement or collective agreement.

Section 5 (1) of the Trade Disputes Act also states that the Minister should consult a Tripartite Committee before taking the decision. Finally the Minister may endeavour to effect conciliation

between the parties in accordance with section 6 of the Trade Disputes Act, or cause an investigation to be made into the dispute in accordance with section 8 of the Act. He or she also has the power to recommend to the parties that the trade dispute be referred to the Industrial Court.Conciliation

The Minister who has delegated his or her powers to the Permanent Secretary and the Chief Industrial Relations Officer under section 6 (1) of the Trade Disputes Act may appoint a public officer or any person to act as conciliator, or even appoint a conciliation panel. If the conciliation process is successful and the trade dispute is settled, the terms of every settlement are required to be set out in writing and endorsed by and on behalf of the parties and the conciliator. A signed copy of the text ledged with the Minister.Investigation

The Minister has powers of referring certain trade disputes for investigation by an investigator. The investigators are generally labour officers who under section 7 (4) of the Trade Disputes Act may formulate proposals upon which a settlement of a trade dispute may be negotiated by the parties. The Minister, however, is not precluded by the recommendations of the investigator or the committee of investigation.Board of Inquiry

Under section 19 of the Trade Disputes Act (Cap. 234) a Board of Inquiry may be appointed by the Minister “for the purpose of any matter which appears to him to be connected with or relevant to any trade dispute”. A board of inquiry is a very rare feature in Kenya though.The Industrial CourtProcedure

Under section 20 and 58 (1) of the Trade Disputes Act, the Chief Justice is empowered to regulate the procedure and proceedings of the Court. The current Industrial Court (Procedure) Rules were made in 1973 (Legal Notice 186/1965, 4 of 1973). The Industrial Court is not bound by the rules of evidence in civil or criminal proceeding (section 21 of the Act).

The Industrial Court (Procedure) Rules provide that where any trade dispute exists and the parties wish to refer such a dispute to the Court, they file an application to the Court, which contains the basic and necessary information for the Court. Once the dispute has been accepted by the Industrial Court, it is formally registered. After the exchange of memoranda, the parties are allowed a week before the hearing takes place.Application and Interpretation of Industrial Court awards

The Industrial Court awards take effect from the date of publication in the Kenya Gazette unless a different effective date is specified in the award itself. The Minister, or any other party to the award, is at liberty to apply to the Industrial Court for interpretation of an award when the parties do not agree on its interpretation, or if it is alleged that an award is inconsistent with any written law. The Industrial Court award becomes an implied term of every contract of employment between employees and employers to whom it relates by virtue of section 16 (6) of the Trade Disputes Act.

The Industrial Court does not execute its awards like the civil courts. As mentioned above (2.3.2), the award and decision of the Industrial Court are final (Trade Dispute Act, section 17), and the Civil Procedure Code does not apply to the decisions of so called administrative courts.

Trade unions generally have relied on their right to strike in order to secure the enforcement of an award in their favour. As a result of the provision that an award becomes part of any individual contract concerned, the employee may sue an employer for breach of contract if he or she fails to implement the Industrial Courts award.

Under section 56 of the Trade Disputes Act for any offences committed under the Act, the matter of prosecuting the offenders rests entirely in the hands of the Attorney-General.

Strikes and lock-outs Strike regulationBoth employees and employers have the right to industrial action and this is guaranteed in both the Trade Disputes Act and the Industrial Relations Charter. In the interest of employees the Trade Disputes Act confers this right to strike which it interprets as “the cessation of work by a body of persons employed in any trade or industry acting in combination, or a concerted refusal under a common understanding of any number of persons who are, or have been so employed, to continue to work or to accept employment and includes any interruption or slowing down of work by any number of persons employed in any trade or industry acting in concert or under a common understanding including any action commonly known as a sit down strike or a go slow.”Strike practice

A lawful strike takes place only when the procedure laid down in Part V of the Trade Disputes Act is exhausted. This procedure goes through the reporting, the decision of the Minister, conciliation, investigation and the Board of Inquiry, and the Industrial Court procedure described above. In effect, lawful industrial actions are difficult to obtain in Kenya under these regulations. The complex regulations and requirements of the Trade Disputes Act and the jurisdiction of the Industrial Court make it difficult to think of any situation that could justify a legal strike action in Kenya. The system has been voluntarily – based on the early, pre-independence, tripartite Industrial Relation Charter of 1963 – been converted into a complex system of conciliation and arbitration, which basically tries to avoid any industrial conflict in Kenya.Generally Unlawful Strikes

In the case of strikes in the Public Sector, the Minister may take such appropriate action that would effect settlement of disputes in line with the specific set regulations (section 27, Trade Disputes Act). He or she may also order the parties to adhere to their agreements or any Court award. Section 30 of the Trade Disputes Act outlaws sympathetic strikes and lockouts. All Ministerial orders on matters concerning strikes and lock outs can be subject to appeal to the Industrial Court. It may only take cognisance of the matter when the parties have ceased taking part in the strike or lock out.

Persons who declare or instigate or incite others to take part in an unlawful strike or lock out are guilty of offence and are liable to pay a fine. On the other hand persons who refuse to take part in unlawful strikes or lockouts are protected from expulsion, deprivation of any rights or benefits under section 35 of the Trade Disputes Act. There is a further seven days strike notice requirement to be served to the Minister in the case of essential services.Strikes in Essential Services

Not all categories of workers have the right to seek, initiate and conduct a strike action. Firstly there are those who are effectively excluded by the Proclamation from its scope of application. Secondly, there are workers who do not have the right to strike under the provision of the Trade Disputes Act, sections

36, 43, First Schedule, on the ground they are engaged in essential services. These services are defined in the First Schedule and include:

Water services; Electricity services; Health services; Hospital services; Sanitary services; Air traffic control services; Civil aviation telecommunications services; Meteorological services;Fire services of the Government, of Kenya Railways and the Kenya Ports Authority and of local government authorities; Air transport; Supply and distribution of fuel, petrol, oil, power and light;Telecommunications, posts and telegraphs; Public transport services provided by Kenya Railways and the Kenya Ports Authority; Port and docks services including stevedoring and lightering, loading and unloading of cargo from or on to any ship and dispatch of cargo to destination; Teaching services.

Numerically, the workers engaged in the province of what the law calls essential services constitute a sizable ratio of the population of trade union membership in the country. Furthermore, it is in these enterprises that the more qualified (and probably politically conscious) labour force is to be found.

This broad definition of essential services has been criticised several times by the ILO supervisory bodies as violating the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as it deprives a relevant number of Kenyan workers of their basic human rights at work.Lock Outs

Lock out is defined as “ the closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with the aim of compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment.” The procedure applying to lock outs is the same as the one applying to strikes. Alternative dispute resolution

The above-mentioned draft Labour Relations Act provides for alternative means of dispute resolutions, by way of a collective agreement. It stipulates that a collective agreement may provide for the conciliation or arbitration of any category of trade disputes identified in the collective agreement by an independent and impartial conciliator or arbitrator appointed by agreement between the parties. In the case of conciliation, there is no requirement to refer the dispute to the Minister. In the case of arbitration, the award is final and binding. It may not be subject to appeal to any court, but it may be reviewed by the National Labour Court and enforced by it. But this text remains a draft for the time being and must still be adopted to have any legal effect.

^ top of the pageSettlement of individual labour disputes

A fully-fledged system of labour courts does not exist in Kenya. As mentioned earlier, individual labour disputes are dealt with by the ordinary courts.

Under the Constitution of Kenya, the Magistrates’ Courts Act and the Civil Procedure Act such cases may be filed in the High Court, or in any of the Magristrates’ Courts. Nevertheless, there is another alternative open to an individual with a labour dispute under the Employment Act, section 40. The entry to the ordinary court system is simplified and modified according to the special needs of the labour

sector: under section 40, disputes arising from employment can be forwarded to either the labour officer, or a magistrate.

The Labour Officer is expected to try all he or she can do to settle the dispute. Where he or she fails or feels unable to solve it, he or she may refer it to the magistrate. The magistrate then has the power to hear the dispute, even though it may be outside his or her normal powers. In effect, employees who may be unable to act through trade unions are in disadvantage. Indeed, the access to the Industrial Court is limited by the rule of practice and only trade union disputes can be heard by the Industrial Court. Not only do they suffer from stiffer formality and rigidity of procedure in the ordinary courts, but they will not be entitled to reinstatement. However, as mentioned above, the Taskforce on the review of labour law has written a draft Labour Institutions Act, which was submitted to the Attorney General in April 2004 to go through the adoption procedure. This text introduces a system of labour law courts, at two levels (Subordinate Labour Courts and the National Labour Court), which will have exclusive jurisdiction over labour law disputes. The procedure before these courts will be open for individuals.

^ top of the pageILO Conventions ratified by Kenya

Kenya joined the ILO in 1949. As of 4 June 2004, it had ratified 49 ILO Conventions, of which 43 were in force in the country. Useful and relevant web links Ministry of Labour and Human ResourceDevelopment Federation of Kenya EmployersCentral Organisation Of Trade Unions

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Bibliography Saeed R. Cockar, The Kenya Industrial Court, Origin, development and practice, Nairobi 1981. Okech Owiti, The Rights of an Employee in Kenya, Nairobi 1990. Kivutha Kibwana, Fundamental Rights and Freedoms in Kenya, Nairobi 1990. Tudor Jackson, The Law of Kenya, An Introduction, 2nd Edition, Nairobi, 1984. COTU (K), FES and authors, The Industrial Court, A Course Book for Trade Unionists, Nairobi 1993. Tiyambe Zeleza, Labour Unionisation and Women's Participation in Kenya, 1963-1987, Nairobi 1988.L.P.A. Aluchio, Trade Unions in Kenya, Development and the System of Industrial Relations, Nairobi 1998.

Contributed by:

Monika M. Sommer, Senior Specialist on Labour Administration, Legislation and Social Dialogue, SRO-Addis Ababa, September, 2003.

Updated by:

Natacha Wexels-Riser, Maîtrise in International Law, Diplôme d’Etudes Supérieures Spécialisées (Master of Laws) in International Administration (Paris II, Panthéon-Assas). Lectured in International Law, Paññasastra University of Cambodia. June 2004.

HistoryMain article: Labor history of the United States

Unions began forming in the mid-19th century. The 1870s and 1880s saw large-scale consolidation, with the Knights of Labor mushrooming overnight into a major force in the late 1880s; it then collapsed because of poor organization. The American Federation of Labor, led until his death in 1924 by Samuel Gompers, proved much more durable. It was a coalition of many national unions, and helped resolve jurisdictional disputes, created citywide coalitions that helped coordinate strikes, and after 1907 became a player in national politics, usually on the side of the Democrats. The Railroad Brotherhoods, while separate from the AFL, formed national networks in the late 19th century. Rapid growth came in 1900-1919, but was followed by a long decline until the Wagner Act of 1935 led to an invigoration of the labor movement, which finally became a permanent factor in heavy industry. The CIO under John L. Lewis split off and competed aggressively for membership. The AFL was always larger and both federations grew enormously during World War II. After the Communists in the CIO were purged in 1946-1948, a merger into the AFL-CIO became possible in 1955. The Taft-Hartley Act of 1947 was a conservative measure that weakened the unions, and highly publicized reports of corruption in the Teamsters and other unions hurt the image of the labor movement during the 1950s. Unions formed a backbone element of the New Deal Coalition and of Modern liberalism in the United States. Membership and power crested around 1970. Private sector union membership then began a steady decline that continues into the 2010s, but the membership of public sector unions grew steadily.[1][edit]Labor unions todaySee also: US labor law.Labor unions in the United StatesNational trade union organization(s)AFL-CIO, CtW, IWWNational government agency(ies)United States Department of LaborNational Labor Relations BoardPrimary trade union legislationNational Labor Relations ActTaft-Hartley Act

Trade union membership

16.1 million[2]Percentage of workforce

▪ Total: 12.4% ▪ Public sector: 36.8% ▪ Private sector: 7.6%Demographics ▪ Age 16–24: 5.0% ▪ 25–34: 10.7% ▪ 35–44: 13.4% ▪ 45–54: 16.0% ▪ 55–64: 16.6% ▪ 65 and over: 9.0%

▪ Women: 11.4% ▪ Men: 13.4%Standard Occupational Classification

▪ Management, professional: 13.4% ▪ Service: 11.9% ▪ Sales and office: 7.4% ▪ Natural resources, construction, and maintenance: 17.7% ▪ Production, transportation, and material moving: 16.4%International Labour Organization

United States is a member of the ILOConvention ratification

Freedom of Association not ratifiedRight to Organise not ratified

Today most labor unions in the United States are members of one of two larger umbrella organizations: the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO) or the Change to Win Federation, which split from the AFL-CIO in 2005. Both organizations advocate policies and legislation favorable to workers in the United States and Canada, and take an active role in politics favoring the Democratic party but not exclusively so. The AFL-CIO is especially concerned with global trade issues.

Recently unions have become a larger issue within the 2008 "Economic Crisis" with the three largest automakers seeking $50 billion in loans in order to stay viable. According to some Senators 'costly labor agreements' including pension and health plans put the U.S. automakers at a disadvantage to foreign companies resulting in their collapse.[3] Others point out that the United Auto Workers has made extensive concessions to the car companies over the last twenty years in order to help the companies remain competitive, and allege that the automakers' recent troubles are better ascribed to other factors.[4][5]

Private sector union members are tightly regulated by the National Labor Relations Act (NLRA), passed in 1935. The law is overseen by the National Labor Relations Board (NLRB), an independent federal agency. Public sector unions are regulated partly by federal and partly by state laws. In general they have shown robust growth rates, for wages and working conditions are set through negotiations with elected local and state officials. The unions' political power thus comes into play, and of course the local government cannot threaten to move elsewhere, nor is there any threat from foreign competition.

To join a traditional labor union, workers must either be given voluntary recognition from their employer or have a majority of workers in a bargaining unit vote for union representation. In either case, the government must then certify the newly formed union. Other forms of unionism include minority unionism, Solidarity unionism, and the practices of organizations such as the Industrial Workers of the World, which do not always follow traditional organizational models.

Public sector worker unions are governed by labor laws and labor boards in each of the 50 states. Northern states typically model their laws and boards after the NLRA and the NLRB. In other states, public workers have no right to establish a union as a legal entity. (About 40% of public employees in the USA do not have the right to organize a legally established union.)

Once the union has won the support of a majority of the bargaining unit and is certified in a workplace, it has the sole authority to negotiate the conditions of employment. However, under the NLRA, if a minority of employees voted for a union, those employees can then form a union which represents the rights of only those members who voted for the union. This minority model was once widely used, but was discarded when unions began to consistently win majority support. Unions are beginning to revisit the "members only" model of unionism because of new changes to labor law which unions view as curbing workers' ability to organize.

The employer and the union write the terms and conditions of employment in a legally binding contract. When disputes arise over the contract, most contracts call for the parties to resolve their differences through a grievance process to see if the dispute can be mutually resolved. If the union and the employer still cannot settle the matter, either party can choose to send the dispute to arbitration, where the case is argued before a neutral third party.

In the 1940s and 1950s, links to organized crime were discovered in U.S. unions, hurting their image. Since the 1970s, union membership has been steadily declining in the private sector while growing in the public sector. Right-to-work statutes forbid unions from negotiating agency shops. Thus, while unions do exist in "right-to-work" states, they are typically weaker.

Members of labor unions enjoy "Weingarten Rights." If management questions the union member on a matter that may lead to discipline or other changes in working conditions, union members can request representation by a union representative. Weingarten Rights are named for the first Supreme Court decision to recognize those rights.[6]

The NLRA goes farther in protecting the right of workers to organize unions. It protects the right of workers to engage in any "concerted activity" for mutual aid or protection. Thus, no union connection is needed. Concerted activity "in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization."[7][edit]Membership

Union membership had been steadily declining in the US since 1983. In 2007, the labor department reported the first increase in union memberships in 25 years and the largest increase since 1979. Most of the recent gains in union membership have been in the service sector while the number of unionized employees in the manufacturing sector has declined. Most of the gains in the service sector have come in West Coast states like California where union membership is now at 16.7% compared with a national average of about 12.1%.[8]

Union density (the percentage of workers belonging to unions) has been declining since the late 1940s, however. Almost 36% of American workers were represented by unions in 1945. Historically, the rapid growth of public employee unions since the 1960s has served to mask an even more dramatic decline in private-sector union membership.

At the apex of union density in the 1940s, only about 9.8% of public employees were represented by unions, while 33.9% of private, non-agricultural workers had such representation. In this decade, those proportions have essentially reversed, with 36% of public workers being represented by unions while private sector union density had plummeted to around 7%. The US Bureau of Labor Statistics most recent survey indicates that union membership in the US has risen to 12.4% of all workers, from 12.1% in 2007. For a short period, private sector union membership rebounded, increasing from 7.5% in 2007 to 7.6% in 2008.[9] However, that trend has since reversed. In 2009, the union density for private sector stood at 7.2%.[10][edit]Labor education programs

In the US, labor education programs such as the Harvard Trade Union Program [11] created in 1942 by Harvard University professor John Thomas Dunlop sought to educate union members to deal with important contemporary workplace and labor law issues of the day. The Harvard Trade Union Program is currently part of a broader initiative at Harvard Law School called the Labor and Worklife Program[12] that deals with a wide variety of labor and employment issues from union pension investment funds to the effects of nanotechnology on labor markets and the workplace.[edit]Jurisdiction

Labor unions use the term jurisdiction to refer to their claims to represent workers who perform a certain type of work and the right of their members to perform such work. For example, the work of unloading containerized cargo at United States ports, which the International Longshoremen's Association the International Longshore and Warehouse Union and the International Brotherhood of Teamsters have claimed rightfully should be assigned to workers they represent. A jurisdictional strike is a concerted refusal to work undertaken by a union to assert its members' right to such job assignments and to protest the assignment of disputed work to members of another union or to unorganized workers. Jurisdictional strikes occur most frequently in the United States in the construction industry.[13]

Unions also use jurisdiction to refer to the geographical boundaries of their operations, as in those cases in which a national or international union allocates the right to represent workers among different local unions based on the place of those workers' employment, either along geographical lines or by adopting the boundaries between political jurisdictions.[13][edit]Possible causes of drop in union density Illegal union firing increased during the Reagan administration and has continued since.[14] A historical comparison of union membership as a percentage of all workers and union support in the United States.

Although most industrialized countries have seen a drop in unionization rates, the drop in union density (the unionized proportion of the working population) has been more significant in the United States than elsewhere. Popular explanations that pin this decline to a reduced popularity of unionization among workers and the general public appear to be misguided. Public approval of unions climbed between 1981 and 1988, with 61% of Americans approving of unions in 1988. The rate of public confidence in the United States during this same time differed little from the analogous rate in other

industrialized nations.[15] Dropping unionization rates cannot be attributed entirely to changing market structures. In fact, scholars have shown the tremendous complexity inherent in explaining the decline of union density.

A broad range of forces have been identified as potential contributors to the drop in union density across countries. Sano and Williamson outline quantitative studies that assess the relevance of these factors across countries.[16] The first relevant set of factors relate to the receptiveness of unions’ institutional environments. For example, the presence of a Ghent system (where unions are responsible for the distribution of unemployment insurance) and of centralized collective bargaining (organized at a national or industry level as opposed to local or firm level) have both been shown to give unions more bargaining power and to correlate positively to higher rates of union density. Unions have enjoyed higher rates of success in locations where they have greater access to the workplace as an organizing space (as determined both by law and by employer acceptance), and where they benefit from a corporatist relationship to the state and are thus allowed to participate more directly in the official governance structure. Moreover, the fluctuations of business cycles, particularly the rise and fall of unemployment rates and inflation, are also closely linked to changes in union density.[16]

Labor lawyer Thomas Geoghegan attributes the drop to the 1947 Taft-Hartley Act, which greatly reduced the power of unions, to support each other in strikes, made it harder to form new unions, and eventually encouraged employers to attack existing unions.[17]

The relatively coherent scholarly perspective on the role of institutional openness to organized labor in determining union strength is not mirrored in the analysis of political and economic factors. Brady writes that political parties play an expected role in determining union strength, with left-wing governments generally promoting greater union density, other scholars contest this finding by pointing out important counterexamples and explaining the reverse causality inherent in this relationship.[18]

More recently, as unions have become increasingly concerned with the impacts of market integration on their well-being, scholars have begun to assess whether popular concerns about a global “race to the bottom” are reflected in cross-country comparisons of union strength. These scholars use foreign direct investment (FDI) and the size of a country’s international trade as a percentage of its GDP to assess a country’s relative degree of market integration. These researchers typically find that globalization does affect union density, but is dependent on other factors, such as unions’ access to the workplace and the centralization of bargaining.[19] Sano and Williamson argue that globalization’s impact is conditional upon a country’s labor history.[20] In the United States in particular, which has traditionally had relatively low levels of union density, globalization did not appear to significantly affect union density.

Studies focusing more narrowly on the U.S. labor movement corroborate the comparative findings about the importance of structural factors, but tend to emphasize the effects of changing labor markets due to globalization to a greater extent. Bronfenbrenner notes that changes in the economy, such as increased global competition, capital flight, and the transitions from a manufacturing to a service economy and to a greater reliance on transitory and contingent workers, accounts for only a third of the decline in union density.[21] She claims that the federal government in the 1980s was largely responsible for giving employers the perception that they could engage in aggressive strategies to repress the formation of unions. Richard Freeman also points to the role of repressive employer strategies in reducing unionization, and highlights the way in which a state ideology of anti-unionism tacitly accepted these strategies [15] Goldfield notes that the overall effects of globalization on unionization in the particular case of the United States may be understated in econometric studies on

the subject.[22] He writes that the threat of production shifts reduces unions’ bargaining power even if it does not eliminate them, and also claims that most of the effects of globalization on labor’s strength are indirect. They are most present in change towards a neoliberal political context that has promoted the deregulation and privatization of some industries and accepted increased employer flexibility in labor markets.[edit]Union responses to globalization Studies done by Kate Bronfenbrenner at Cornell University show the adverse effects of globalization towards unions due to illegal threats of firing.[23]

Regardless of the actual impact of market integration on union density or on workers themselves, organized labor has been engaged in a variety of strategies to limit the agenda of globalization and to promote labor regulations in an international context. The most prominent example of this has been the opposition of labor groups to free trade initiatives such as the North American Free Trade Agreement (NAFTA) and the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA). In both cases, unions expressed strong opposition to the agreements, but to some extent pushed for the incorporation of basic labor standards in the agreement if one were to pass.[24]

However, Mayer has written that it was precisely unions’ opposition to NAFTA overall that jeopardized organized labor’s ability to influence the debate on labor standards in a significant way.[25] During Clinton’s presidential campaign, labor unions wanted NAFTA to include a side deal to provide for a kind of international social charter, a set of standards that would be enforceable both in domestic courts and through international institutions. Kantor, then U.S. trade representative, had strong ties to organized labor and believed that he could get unions to come along with the agreement, particularly if they were given a strong voice in the negotiation process. However, when it became clear that Mexico would not stand for this kind of an agreement, some critics from the labor movement would not settle for any viable alternatives. In response, part of the labor movement wanted to declare their open opposition to the agreement, and to push for NAFTA’s rejection in Congress.[25] Ultimately, the ambivalence of labor groups led those within the Administration who supported NAFTA to believe that strengthening NAFTA’s labor side agreement too much would cost more votes among Republicans than it would garner among Democrats, and would make it harder for the United States to elicit support from Mexico.[26]

Graubart writes that, despite unions’ open disappointment with the outcome of this labor-side negotiation, labor activists, including the AFL-CIO have used the side agreement’s citizen petition process to highlight ongoing political campaigns and struggles in their home countries.[27] He claims that despite the relative weakness of the legal provisions themselves, the side-agreement has served a legitimizing functioning, giving certain social struggles a new kind of standing.

Unions have recently been engaged in a developing field of transnational labor regulation embodied in corporate codes of conduct. However, O’Brien notes that unions have been only peripherally involved in this process, and remain ambivalent about its potential effects.[28] They worry that these codes could have legitimizing effects on companies that don’t actually live up to good practices, and that companies could use codes to excuse or distract attention from the repression of unions. Braun and Gearhart note that although unions do participate in the structure of a number of these agreements, their original interest in codes of conduct differed from the interests of human rights and other non-governmental activists. They believed that codes of conduct would be important first steps in creating written principles that a company would be compelled to comply with in later organizing contracts, but did not

foresee the establishment of monitoring systems such as the Fair Labor Association. These authors point out that are motivated by power, want to gain insider status politically and are accountable to a constituency that requires them to provide them with direct benefits. In contrast, activists from the non-governmental sector are motivated by ideals, are free of accountability and gain legitimacy from being political outsiders. Therefore, the interests of unions are not likely to align well with the interests of those who draft and monitor corporate codes of conduct.

Unions have made some attempts to organize across borders. Eder notes that transnational organizing is not a new phenomenon but has been facilitated by technological change.[29] Nevertheless, he claims that while unions pay lip service to global solidarity, they still act largely in their national self-interest. He argues that unions in the global North are becoming increasingly depoliticized while those in the South grow politically, and that global differentiation of production processes leads to divergent strategies and interests in different regions of the world. These structural differences tend to hinder effective global solidarity. However, in light of the weakness of international labor, Herod notes that globalization of production need not be met by a globalization of union strategies in order to be contained.[30] He points out that local strategies, such as the United Auto Workers’ strike against General Motors in 1998, can sometimes effectively interrupt global production processes in ways that they could not before the advent of widespread market integration. Thus, workers need not be connected organizationally to others around the world to effectively influence the behavior of a transnational corporation.

History The examples and perspective in this article or section might have an extensive bias or disproportional coverage towards USA. Please improve this article or discuss the issue on the talk page.

The origins of unions' existence can be traced from the 18th century, where the rapid expansion of industrial society drew women, children, rural workers, and immigrants to the work force in numbers and in new roles. This pool of unskilled and semi-skilled labour spontaneously organised in fits and starts throughout its beginnings,[1] and would later be an important arena for the development of trade unions. Trade unions as such were endorsed by the Catholic Church towards the end of the 19th Century. Pope Leo XIII in his "Magna Carta"—Rerum Novarum—spoke against the atrocities workers faced and demanded that workers should be granted certain rights and safety regulations.[2]Origins and early history

Trade unions have sometimes been seen as successors to the guilds of medieval Europe, though the relationship between the two is disputed.[3] Medieval guilds existed to protect and enhance their members' livelihoods through controlling the instructional capital of artisanship and the progression of members from apprentice to craftsman, journeyman, and eventually to master and grandmaster of their craft. A trade union might include workers from only one trade or craft, or might combine several or all the workers in one company or industry.

Trade unions and/or collective bargaining were outlawed from no later than the middle of the 14th century when the Ordinance of Labourers was enacted in the Kingdom of England. Union organizing would eventually be outlawed everywhere and remain so until the middle of the 19th century.

Since the publication of the History of Trade Unionism (1894) by Sidney and Beatrice Webb, the predominant historical view is that a trade union "is a continuous association of wage earners for the purpose of maintaining or improving the conditions of their employment."[1] A modern definition by the Australian Bureau of Statistics states that a trade union is "an organization consisting predominantly of employees, the principal activities of which include the negotiation of rates of pay and conditions of employment for its members."[4]

Yet historian R.A. Leeson, in United we Stand (1971), said:Two conflicting views of the trade-union movement strove for ascendancy in the nineteenth century: one the defensive-restrictive guild-craft tradition passed down through journeymen's clubs and friendly societies, ... the other the aggressive-expansionist drive to unite all 'labouring men and women' for a 'different order of things'.

Recent historical research by Bob James in Craft, Trade or Mystery (2001) puts forward the view that trade unions are part of a broader movement of benefit societies, which includes medieval guilds, Freemasons, Oddfellows, friendly societies, and other fraternal organisations.

The 18th century economist Adam Smith noted the imbalance in the rights of workers in regards to owners (or "masters"). In The Wealth of Nations, Book I, chapter 8, Smith wrote:We rarely hear, it has been said, of the combination of masters, though frequently of those of workmen. But whoever imagines, upon this account, that masters rarely combine, is as ignorant of the world as of the subject. Masters are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labor above their actual rate[.]

When workers combine, masters ... never cease to call aloud for the assistance of the civil magistrate, and the rigorous execution of those laws which have been enacted with so much severity against the combination of servants, labourers, and journeymen.

As Smith noted, unions were illegal for many years in most countries, although Smith argued that it should remain illegal to fix wages or prices by employees or employers. There were severe penalties for attempting to organize unions, up to and including execution. Despite this, unions were formed and began to acquire political power, eventually resulting in a body of labour law that not only legalized organizing efforts, but codified the relationship between employers and those employees organized into unions. Even after the legitimization of trade unions there was opposition, as the case of the Tolpuddle Martyrs shows.

The right to join a trade union is mentioned in article 23, subsection 4 of the Universal Declaration of Human Rights (UDHR), which also states in article 20, subsection 2 that "No one may be compelled to belong to an association". Prohibiting a person from joining or forming a union, as well as forcing a person to do the same (e.g. "closed shops" or "union shops", see below), whether by a government or by a business, is generally considered a human rights abuse. Similar allegations can be levelled if an employer discriminates based on trade union membership. Attempts by an employer, often with the help of outside agencies, to prevent union membership amongst their staff is known as union busting.Europe

In France, Germany, and other European countries, socialist parties and democrats played a prominent role in forming and building up trade unions, especially from the 1870s onwards. This stood in contrast to the British experience, where moderate New Model Unions dominated the union movement from the mid-19th century and where trade unionism was stronger than the political labour movement until the formation and growth of the Labour Party in the early years of the 20th century.

Government opposition to Trade unionism in the United Kingdom was a major factor in economic crises during the 1960s and in particular the 1970s, culminating some would argue in the Winter of Discontent of late 1978 and early 1979, when a significant percentage of the nation's public sector workers went on strike. By this stage, some 12,000,000 workers in the United Kingdom were trade union members. However, the election of the Conservative Party led by Margaret Thatcher at the general election in May 1979, at the expense of Labour's James Callaghan, saw substantial trade union reform which saw the level of strikes fall, but also the level of trade union membership fall. By the end of the 1980s, membership had fallen to just over 6,000,000—little more than half the level of a decade earlier—and it also counted against the Labour Party's hopes of regaining power, as its relationship with the trade unions had traditionally been seen as a strength but after the Winter of Discontent it was seen as a liability. Manufacturing, the main source of union strength in the United Kingdom, had shrunk by half during the early 1980s recession as a result of Thatcher's economic policies, pushing unemployment from 1,500,000 to more than 3,000,000.[5]Unions in the United StatesMain article: Labour unions in the United States19th Century American Unionism This section may require cleanup to meet Wikipedia's quality standards. (Consider using more specific clean up instructions.) Please improve this section if you can. The talk page may contain suggestions. (March 2011)

In the early 19th century, many men from large cities put together the organization which we now call the Trade Union Movement. Individuals who were members of unions at this time were skilled, experienced, and knew how to get the job done. Their main reasoning for starting this movement was to put on strikes. However, they did not have enough men to fulfill their needs and the unions which began this trendy movement collapsed quickly. The Mechanics’ Union Trade Association was the next approach to bring workers together. In 1827, this union was the first U.S. labor organization which brought together workers of divergent occupations. This was "the first city-wide federation of American workers, which recognized that all labor, regardless of trades, had common problems that could be solved only by united efforts as a class."[6] This organization took off when carpentry workers from Philadelphia went on strike to protest their pay wages and working hours. This union strike was only a premonition of what was to come in the future.

According to history.com:[7]“ Besides acting to raise wages and improve working conditions, the federations espoused certain social reforms, such as the institution of free public education, the abolition of imprisonment for debt, and the adoption of universal manhood suffrage. Perhaps the most important effect of these early unions was their introduction of political action. ”

Workers realized what unionism was all about through the configuration of mechanics association and many people followed in their footsteps. The strike gave others hope that they could get their concerns out by word of mouth. Before this time many people did not speak about their concerns because of the lack of bodies. However, with more people comes more confidence. Strikes were a new way of speaking your mind and getting things accomplished.

The next established union which made an impact on the trade movement was the Grand National Consolidated Trade Union. This union was founded in 1834 as the first domestic association. However, this union was short lived due to the panic of 1837. "[Andrew] Jackson thought the Bank of the United States hurt ordinary citizens by exercising too much control over credit and economic opportunity, and he succeeded in shutting it down. But the state banks' reckless credit policies led to massive speculation in Western lands. By 1837, after Van Buren had become president, banks were clearly in trouble. Some began to close, businesses began to fail, and thousands of people lost their land." [8] This collapse of financial support and businesses left workers unemployed. Many of these workers, who became affected by the 1837 disaster, were members of a union. It was very hard for them to stay together in an economic hardship and the trade union movement came to a bump in the road. But the economy was restored by the early 1840s and trade unions started doing better. National labor unions were forming, different than ones in the past, consisting now of members of the same occupation.

"Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration."— U.S. President Abraham Lincoln, December 3, 1861[9]

The work force was drastically impacted by the Civil War and the economy was thriving. Many workers gained employment because of this economic boom and unions increased greatly. "More than 30 national craft unions were established during the 1860s and early '70s."[7] One of the significant national craft unions to be formed during this time was the National Labour Union (NLU). It was created in 1866 and included many types of workers.[10] Although relatively short-lived, the NLU paved the way for future American unions. Following the decline of the NLU, the Knights of Labour became the leading

countrywide union in the 1860s. This union did not include Chinese, and partially included black people and women.[11]Knights of LabourMain article: Knights of Labour

The Noble and Holy Order of the Knights of Labour (KOL) was founded in Philadelphia in 1869 by Uriah Stephens and six other men. The union was formed for the purpose of organising, educating and directing the power of the industrial masses, according to their Constitution of 1878.[12] The Knights gathered people to join the Order who believed in creating "the greatest good to the greatest amount of people". The Knights took their set goals very seriously. Some of which consisted of "productive work, civic responsibility, education, a wholesome family life, temperance, and self-improvement."[13]

The Knights of Labour worked as a secret fraternal society until 1881. The union grew slowly until the economic depression of the 1870s, when large numbers of workers joined the organisation.[14] The Knights only permitted certain groups of individuals into their Order which promoted social division amongst the people around them. Bankers, speculators, lawyers, liquor dealers, gamblers, and teachers were all excluded from the union. These workers were known as the "non-producers" because their jobs did not entail physical labour. Factory workers and business men were known as the "producers" because their job constructed a physical product. The working force producers were welcomed into the Order. Women were also welcome to join the Knights, as well as black workers by the year 1883.[15] However, Asians were excluded. In November 1885, the Knights of a Washington city pushed to get rid of their Asian population. The knights were strongly for the Chinese Exclusion Act of 1882 because it greatly helped them deteriorate the Asian community. "The Act required the few non-labourers who sought entry to obtain certification from the Chinese government that they were qualified to immigrate. But this group found it increasingly difficult to prove that they were not labourers because the 1882 act defined excludables as ‘skilled and unskilled labourers and Chinese employed in mining.’ Thus very few Chinese could enter the country under the 1882 law." [16]

The act also stated that if an Asian left the country, they needed a certificate to re-enter.

Although Asians were not welcomed in the union, black workers who joined the union brought a large number of blacks into the white labour movement. In 1886, the Union exceeded 700,000 members, 60,000 of them black. The Knights were told that they "broke the walls of prejudice"; the "colour line had been broken and black and white were found working in the same cause.American Federation of LaborMain article: American Federation of Labor

The American Federation of Labour (AFL),founded by Samuel Gompers, was established due to the vexation of many Knights who parted from the KOL. Many Knights joined the AFL because they set themselves apart from the KOL. The KOL "tried to teach the American wage-earner that he was a wage-earner first and a bricklayer, carpenter, miner [...] after. This meant that the Order was teaching something that was not so in the hope that sometime it would be.’ But the AFL affiliates organised carpenters as carpenters, bricklayers as bricklayers, and so forth, teaching them all to place their own craft interests before those of other workers."[17]

The AFL also differed from the KOL because it only allowed associations to be formed from workers and workers were the only people permitted to join them. Unlike the AFL, the knights also allowed small businesses to join. A small business is "An independently owned and operated business that is not

dominant in its field of operation and conforms to standards set by the Small Business Administration or by state law regarding number of employees and yearly income called also small business concern."[18]

Since the knights allowed an array of members into their association, they ended up getting rid of many because they did not fit the title. However, the AFL was right behind them picking up their pieces. This was another way in which the AFL helped to destroy the Knights. Once an associate was no longer a knight, and they fit the description of an AFL member, they hunted them down and offered them a spot. Many times spots were offered to men who were still Knights. This allowed the AFL to grow very strong with a diverse set of members.

The diversity in the AFL faltered when many of the black members were excluded. Gompers only wanted skilled workers representing his union and many black people were not considered skilled. The AFL claimed to not exclude the black members because of their race but because they were not qualified for the part. "So as long as wages rose, and they did, hours fell, and they did, security increased, and it appeared to, the AFL could grow fat while neglecting millions of labourers doomed to lives of misery and want."[17] Even black workers considered skilled enough to fit the part were generally excluded from the Union. The AFL conducted literacy tests which had the effect of excluding immigrants and blacks. Regardless of black members being excluded, the AFL was the most prevalent union federation in America before the mid 1940s. The union was composed of over 10 million members before it combined with the Congress of Industrial Organisation (CIO).Congress of Industrial OrganisationsMain article: Congress of Industrial Organisations

The CIO was put forth by John L. Lewis when troubles with the AFL persisted, after the death of Gompers in 1924. Many members of the union requested that they switch the rules which were laid out by Gompers. They wanted to support inexperienced workmen rather than only focusing on experienced workers of one occupation. John L. Lewis was the first member of the AFL to act upon this issue in 1935. He was the founder of the Committee for the Industrial Organisation which was an original union branched from the AFL. The Committee for the Industrial Organisation transformed into the Congress of Industrial Organisation. "The Congress of Industrial Organisations (CIO) encompassed the largest sustained surge of worker organisation in American history."[19] In the 1930s, the CIO grabbed many of their member’s attention through victorious strikes. In the 1935, employees of Goodyear Tire and Rubber Company formed their own union called the United Rubber Workers. The Rubber Workers went on strike in 1936 to protest an increase in product with lower pay wages. "There were forty-eight strikes in 1936 in which the strikers remained at their jobs for at least one day; in twenty-two of these work stoppages, involving 34,565 workers, the strikers stayed inside the plants for more than twenty-four hours."[20] This tactic was called a "sit-down" strike which entailed workers to stop doing their job and sit in their place of employment. During these strikes, business owners were unable to bring in new workers to replace the ones who were on strike because they were still in their seats at the factory. This was unlike any strikes in the past. Before this time, workers showed their fury by leaving their factory and standing in picket lines. Walter Reuther was in control of the union at this time and moved forward to higher roles during 1955.AFL-CIO

On May 5, 1955, union delegates gathered in NY on behalf of 16 million workers, to witness and support the merger of The American Federation of Labor and The Congress of Industrial Organization. The merger is a result of 20 years of effort put forth by both the AFL and CIO presidents, George Meany and Walter Reuther. The gathered delegates applauded loudly when the time came to nominate officers for

the new AFL-CIO. Reuther who was named one of the 37 vice presidents of the union, nominated Meany for President. After Meany’s retirement in 1979, Lane Kirkland took over his position. President Dwight D. Eisenhower, who was elected in 1952, was the first to publicly address and congratulate the new union, which was now the largest in the world.

In Eisenhower’s telephone broadcast to the United States he acknowledged the impact union members had made to better the nation and one of these impacts was "the development of the American philosophy of labour."[21] Eisenhower states three principles which he feels apply to the philosophy of labour. The first principles states that: "the ultimate values of mankind are spiritual; these values include liberty, human dignity, opportunity and equal rights and justice."[21] Eisenhower was stating that every individual deserves a job with decent compensation, practical hours, and good working conditions that leave them feeling fulfilled. His second principle speaks of the economic interest of the employer and employee being a mutual prosperity.[21] The employers and employees must work together in order for there to be the greatest amount of wealth for all. Workers have a right to strike when they feel their boundaries are being crossed and the best way for the employer to fix the employees unhappiness is to come to a mutual agreement. His last principle which he preached stated: "labour relations will be managed best when worked out in honest negotiation between employers and unions, without Government’s unwarranted interference."[21] Eisenhower was saying that when both parties cooperate and act in mature fashion, it will be easier to work out situations and a better outcome will result because of it. Once he was done delivering the speech, everyone across the U.S. knew of the new AFL-CIO whose "mission [was] to bring social and economic justice to our nation by enabling working people to have a voice on the job, in government, in a changing global economy and in their communities."[22]

This new alliance is made up of 56 nationwide and intercontinental labour unions. The unions which are a part of this alliance are composed of 2.5 million working Americans and 8.5 million other affiliated members. These members do not fall under one job title but they are very diversely spread out among the working area. Their jobs go from doctors to truck drivers and painters to bankers. The mission of these workers and the AFL-CIO "is to improve the lives of working families—to bring economic justice to the workplace and social justice to our nation. To accomplish this mission we will build and change the American labour movement."[23] The AFL-CIO also has many goals which coincide with their mission:

"We will build a broad movement of American workers by organizing workers into unions. We will build a strong political voice for workers in our nation. We will change our unions to provide a new voice to workers in a changing economy. We will change our labour movement by creating a new voice for workers in our communities."[23]

The association was willing to go to any extent to help out their employers which is why the membership was so high. Members started to slowly disappear after 25 successful years of a steady membership. Starting out with 16 million members in 1955 and dropping down to 13 million by 1984 is a significant loss. This loss of members is in large part due to the 1957 removal of the Teamsters’ Union who were long time members of the AFL. The Teamsters’ were involved in organized crime and manipulating employers with strong force. The Teamsters’ philosophy was to

"Let each member do his duty as he sees fit. Let each put his shoulder to the wheel and work together to bring about better results. Let no member sow seeds of discord within our ranks, and let our enemies see that the Teamsters of this country are determined to get their just rewards and to make their organization as it should be—one of the largest and strongest trade unions in the country now and beyond."[24]

This philosophy did not work well for Teamster presidents Beck, Hoffa, and Williams who were all accused of criminal acts and sent to prison. In 1987 the AFL-CIO membership grew to 14 million members when the Teamsters Union was restored to the association.

The AFL-CIO also lost many members due to financial struggles in the United States. During the late 20th century the U.S. dollar began to oscillate due to rivalry with foreign countries and their currencies. This affects global trafficking and results in job loss for American citizens. The issues between the United States and foreign countries cannot be resolved by Eisenhower’s third principle, which entailed honest negotiations. Consequently, the association has been dynamically supportive in administration policies which deal with global trafficking, the production of goods, and many other issues, which are optimistic policies that will add to an established financial system.

The AFL-CIO is now governed by a gathering of delegates who are present on behalf of association members who meet every four years. The delegates who are the spokespeople of the federation members are chosen by union members. While the delegates vote for new representatives every four years, they also lay down the goals and policies for the union. The most recent representatives for the organization along with 45 vice presidents are President John J. Sweeny, Secretary-treasurer Richard Trumka, and executive vice president Arlene Holt Baker

In the United States there are a total of 15.4 million union members, "11 million of whom belong to unions affiliated with the AFL-CIO."[25] This number has grown rapidly since the beginning of the union movement because today, all individuals with different occupations are welcomed to join unions. "Today's unions include manufacturing and construction workers, teachers, technicians and doctors—and every type of worker in between. No matter what you do for a living, there's a union that has members who do the same thing."[25] Educating union members about issues that shape lives of functioning families on a daily basis is one of the AFL-CIO’s policies. They give them confidence to have their voices heard for political purposes. They also prioritize in

"creating family-supporting jobs by investing tax dollars in schools, roads, bridges and airports; improving the lives of workers through education, job training and raising the minimum wage; keeping good jobs at home by reforming trade rules, reindustrializing the U.S. economy and redoubling efforts at worker protections in the global economy; strengthening Social Security and private pensions; making high-quality, affordable health care available to everyone; and holding corporations more accountable for their actions."[25]

The AFL-CIO is very supportive of political issues and they show their concern[editorializing] by giving out information about existing political issues to families. This information is spread by volunteers and activists and includes where all the candidates stand on the issues.Mexico

Before the 1990s, unions in Mexico had been historically part of a state institutional system. Between the end of the Mexican revolution in 1940, till the 1980s worldwide spread of neo-liberalism through the Washington Consensus, the Mexican unions did not operate independently, but instead as part of a state institutional system, largely controlled by the ruling party.[26]

During these 40 years, the primary aim of the labour unions was not to benefit the workers, but to carry out the state's economic policy under their cosy relationship with the ruling party. This economic policy,

which peaked in the 1950-60s with the so called Mexican Miracle, saw rising incomes and rising standards of living. Only a minor part went to the workers, while the primary beneficiaries had been the wealthy.[26]

In the 1980s, Mexico began to follow the Washington Consensus, and sell off state industries (railroad, telecommunication) to private industries. The new owners had an antagonist attitude towards unions, and the unions, accustomed to the comfortable relationship with the state, were not prepared to fight back. A movement of new unions began to emerge with a more independent model, while the old institutionalised unions had become very corrupt, violent and gangster led. From the 1990s, the new model of independent unions prevailed, and a number of them were represented by the National Union of Workers.[26]Australia A 1919 strike leader addressing a crowd in Gary, Indiana.

Supporters of Unions, such as the ACTU or Australian Labor Party, often credit trade unions with leading the labour movement in the early 20th century, which generally sought to end child labour practices, improve worker safety, increase wages for both union workers and non union workers, raise the entire society's standard of living, reduce the hours in a work week, provide public education for children, and bring other benefits to working class families.[27]Structure and politicsUnion structures, politics, and legal status vary greatly from country to country. For specific country details see List of trade unions. A rally of the trade union UNISON in Oxford during a strike on 2006-03-28.

Unions may organize a particular section of skilled workers (craft unionism), a cross-section of workers from various trades (general unionism), or attempt to organize all workers within a particular industry (industrial unionism). These unions are often divided into "locals", and united in national federations. These federations themselves will affiliate with Internationals, such as the International Trade Union Confederation.

A union may acquire the status of a "juristic person" (an artificial legal entity), with a mandate to negotiate with employers for the workers it represents. In such cases, unions have certain legal rights, most importantly the right to engage in collective bargaining with the employer (or employers) over wages, working hours, and other terms and conditions of employment. The inability of the parties to reach an agreement may lead to industrial action, culminating in either strike action or management lockout, or binding arbitration. In extreme cases, violent or illegal activities may develop around these events.

In other circumstances, unions may not have the legal right to represent workers, or the right may be in question. This lack of status can range from non-recognition of a union to political or criminal prosecution of union activists and members, with many cases of violence and deaths having been recorded both historically and contemporarily.[28][29]

Unions may also engage in broader political or social struggle. Social Unionism encompasses many unions that use their organizational strength to advocate for social policies and legislation favourable to

their members or to workers in general. As well, unions in some countries are closely aligned with political parties.

Unions are also delineated by the service model and the organizing model. The service model union focuses more on maintaining worker rights, providing services, and resolving disputes. Alternately, the organizing model typically involves full-time union organizers, who work by building up confidence, strong networks, and leaders within the workforce; and confrontational campaigns involving large numbers of union members. Many unions are a blend of these two philosophies, and the definitions of the models themselves are still debated.

Although their political structure and autonomy varies widely, union leaderships are usually formed through democratic elections.

Some research, such as that conducted by the ACIRRT,[30] argues that unionized workers enjoy better conditions and wages than those who are not unionized.

In Britain, the perceived left-leaning nature of trade unions has resulted in the formation of a reactionary right-wing trade union called Solidarity which is supported by the far-right BNP.Shop types

Companies that employ workers with a union generally operate on one of several models:A closed shop (US) or a "pre-entry closed shop" (UK) employs only people who are already union members. The compulsory hiring hall is an example of a closed shop—in this case the employer must recruit directly from the union, as well as the employee working strictly for unionized employers.A union shop (US) or a "post-entry closed shop" (UK) employs non-union workers as well, but sets a time limit within which new employees must join a union.An agency shop requires non-union workers to pay a fee to the union for its services in negotiating their contract. This is sometimes called the Rand formula. In certain situations involving state public employees in the United States, such as California, "fair share laws" make it easy to require these sorts of payments.An open shop does not require union membership in employing or keeping workers. Where a union is active, workers who do not contribute to a union still benefit from the collective bargaining process. In the United States, state level right-to-work laws mandate the open shop in some states.Diversity of international unions

Union law varies from country to country, as does the function of unions. For example, in Germany only open shops are legal; that is, all discrimination based on union membership is forbidden. This affects the function and services of the union. In addition, German unions have played a greater role in management decisions through participation in corporate boards and co-determination than have unions in the United States.[31]

In Britain, a series of laws introduced during the 1980s by Margaret Thatcher's government restricted closed and union shops. All agreements requiring a worker to join a union are now illegal. In the United States, the Taft-Hartley Act of 1947 outlawed the closed shop, but permitted the union shop unless the state government chose to prohibit it.

In addition, unions' relations with political parties vary. In many countries unions are tightly bonded, or even share leadership, with a political party intended to represent the interests of working people.

Typically this is a left-wing, socialist, or social democratic party, but many exceptions exist. In the United States, by contrast, although it is historically aligned with the Democratic Party, the union movement is by no means monolithic on that point; this is especially true among the individual "rank and file" members. For example, the International Brotherhood of Teamsters has supported Republican Party candidates on a number of occasions and the Professional Air Traffic Controllers Organization (PATCO) endorsed Ronald Reagan in 1980. In Britain the union movement's relationship with the Labour Party frayed as party leadership embarked on privatisation plans at odds with what unions see as the worker's interests. However, it has strengthened once more after the Labour party's election of Ed Milliband who beat his brother David Milliband, to become leader of the party after Ed secured the trade unions votes. On top of this in the past there as been a group known as the Conservative Trade Unionists or CTU. A group formed of people who sympathized with right wing Tory policy but were Trade Unionists.

In Western Europe, professional associations often carry out the functions of a trade union. In these cases, they may be negotiating for white-collar workers, such as physicians, engineers, or teachers. Typically such trade unions refrain from politics or pursue a more ordoliberal politics than their blue-collar counterparts[citation needed].

In Germany the relation between individual employees and employers is considered to be asymmetrical. In consequence, many working conditions are not negotiable due to a strong legal protection of individuals. However, the German flavour or works legislation has as its main objective to create a balance of power between employees organized in unions and employers organized in employers associations. This allows much wider legal boundaries for collective bargaining, compared to the narrow boundaries for individual negotiations. As a condition to obtain the legal status of a trade union, employee associations need to prove that their leverage is strong enough to serve as a counterforce in negotiations with employers. If such an employees association is competing against another union, its leverage may be questioned by unions and then evaluated in a court trial. In Germany only very few professional associations obtained the right to negotiate salaries and working conditions for their members, notably the medical doctors association Marburger Bund and the pilots association Vereinigung Cockpit. The engineers association Verein Deutscher Ingenieure does not strive to act as a union, as it also represents the interests of engineering businesses.

Finally, the structure of employment laws affects unions' roles and how they carry out their business. In many western European countries wages and benefits are largely set by governmental action. The United States takes a more laissez-faire approach, setting some minimum standards but leaving most workers' wages and benefits to collective bargaining and market forces. Historically, the Republic of Korea has regulated collective bargaining by requiring employers to participate but collective bargaining has been legal only if held in sessions before the lunar new year.Criticism Many union members were illegally fired during the 1980s in the United States due to government opposition to unions.[32]Main article: Opposition to trade unions

Trade unions have been accused of benefiting insider workers, those having secure jobs, at the cost of outsider workers, consumers of the goods or services produced, and the shareholders of the unionized business.[33]

In the United States, the outsourcing of labour to Asia, Latin America, and Africa has been partially driven by increasing costs of union partnership, which gives other countries a comparative advantage in labour, making it more efficient to perform labour-intensive work there.[34] Milton Friedman, Nobel economist and advocate of laissez-faire capitalism, sought to show that unionization produces higher wages (for the union members) at the expense of fewer jobs, and that, if some industries are unionized while others are not, wages will tend to decline in non-unionized industries.[35]

Trade unions have been said to have ineffective policies on racism and sexism, such that a union is justified in not supporting a member taking action against another member. This was demonstrated by the 1987 judgment in the Weaver v NATFHE case in the UK, in which a black Muslim woman brought a complaint of workplace racist harassment against a co-trade unionist. The court found that the union, had it offered assistance to the plaintiff, would be in violation of its duty to protect the tenure of the accused member, and this judgment remains the precedent for cases in which union members who make complaints to the employer of racist or sexist harassment against member(s) of the same union cannot obtain union advice or assistance; this applies irrespective of the merit of the complaint.[36]International unionization

The largest trade union in the world is the Brussels-based International Trade Union Confederation, which today has approximately 309 affiliated organizations in 156 countries and territories, with a combined membership of 166 million. Other global trade union organizations include the World Federation of Trade Unions.

National and regional trade unions organizing in specific industry sectors or occupational groups also form global union federations, such as Union Network International, the International Federation of Journalists or the International Arts and Entertainment Alliance.Union publications

Several sources of current news exist about the trade union movement in the world. These include LabourStart and the official website of the international trade union movement Global Unions.

Another source of union news is the Workers Independent News, a news organization providing radio articles to independent and syndicated radio shows.

Labor Notes is the largest circulation cross-union publication remaining in the United States. It reports news and analysis about union activity or problems facing the labour movement.In filmThe 2000 film Bread and Roses by British director Ken Loach depicted the struggle of cleaners in Los Angeles to fight for better pay, and working conditions, and the right to join a union.Hoffa—A Danny DeVito film (1992): The man who was willing to pay the price for power. "Jack Nicholson gives a gigantic powerhouse performance"—The New York TimesThe 1985 documentary film Final Offer by Sturla Gunnarsson and Robert Collision shows the 1984 union contract negotiations with General Motors.The 1979 film Norma Rae, directed by Martin Ritt, is based on the true story of Crystal Lee Jordan's successful attempt to unionize her textile factory.Other documentaries: Made in L.A. (2007); American Standoff (2002); The Fight in the Fields (1997); With Babies and Banners: Story of the Women's Emergency Brigade (1979); Harlan County USA (1976); The Inheritance (1964)

Other dramatizations: 10,000 Black Men Named George (2002); Matewan (1987); American Playhouse—"The Killing Floor" (1985); Salt of the Earth (1954); The Grapes of Wrath (1940); Black Fury (1935)See alsoSocial democracyPrecursorsHumanismAge of EnlightenmentFrench RevolutionUtopian socialismTrade unionismRevolutions of 1848Orthodox MarxismDevelopmentRevisionismReformismGradualismFrankfurt DeclarationPoliciesRepresentative democracyCivil libertiesEconomic democracyLabor rightsMixed economyNationalizationWelfare stateFair tradeEnvironmental protectionRhine CapitalismSecularismSocial corporatismSocial Market EconomyOrganizationsSocial democratic partiesSocialist InternationalInternational Union of Socialist YouthParty of European SocialistsYoung European SocialistsInternational TradeUnion ConfederationSAMAKLeadersSocial Democrats · Clement Attlee · Eduard Bernstein · Léon Blum · Hjalmar Branting · Ignacy Daszyński · Tommy Douglas · Friedrich Ebert · David Lewis · Michael Joseph Savage · Bülent Ecevit · Jean Jaurès · Karl Kautsky · Ferdinand Lassalle · Georgi Plekhanov · John Curtin ·v · d · e

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Eight-hour dayAnarcho-syndicalismPolitical CatholicismLabour aristocracyNew UnionismSolidarityStrike actionSalt (union organizing)Labor Management Reporting and Disclosure ActSyndicalismWorkers' Memorial DayLabour DayLabour movementHazards CampaignOpposition to trade unionsUnion bustingEmployers' organizationTypes of unionsCraft unionismDirectly Affiliated Local UnionGeneral unionIndustrial unionismLabour councilTrades HallNational trade union centerAnarcho-syndicalismUnion federationAFL-CIOChange to Win FederationLabor federation competition in the United StatesInternational Trade Union ConfederationInternational Labor Rights ForumInternational Workers AssociationReferences^ a b c Webb, Sidney; Webb, Beatrice (1920). History of Trade Unionism. Longmans and Co. London. ch. I^ "Rerum Novarum: Encyclical of Pope Leo XIII on Capital and Labor". Libreria Editrice Vaticana. Retrieved July 27, 2011.^ Kautsky, Karl (April 1901). "Trades Unions and Socialism". International Socialist Review 1 (10). Retrieved July 27, 2011.^ "Trade Union Census". Australian Bureau of Statistics. Retrieved July 27, 2011.^ Wilenius, Paul (5 March 2004). "Enemies within: Thatcher and the unions". BBC News. Retrieved July 27, 2011.^ Foner, Philip S. (1972). History of the Labor Movement in the United States Vol 1: From the Colonial Times to the Founding of the American Federation of Labor. New York: Intl Publishers Co. ISBN 9780717800919.^ a b Trade Unions in the United States. 2008. Retrieved April 1, 2009.^ Panic of 1837. America's Story from America's Library. Retrieved April 6, 2009.

^ Lincoln, Abraham (1911). Ida Minerva Tarbell. ed. Selections from the Letters, Speeches, and State Papers of Abraham Lincoln. Ginn. p. 77.^ Ayers, Edward L. et al.. American Passages: A History of the United States. Vol. 1. Harcourt. p. 288. ISBN 978-0-4950-5015-5.^ Kennedy, David; Lizabeth Cohen, Thomas Bailey (2006). The American Pageant (Thirteenth Edition ed.). New York: Houghton Mifflin Company.^ 1997. "Knights of Labour constitution of 1878." Knights of Labour Constitution of 1878 1, no. 1: 1. Academic Search Premier, EBSCOhost . Retrieved February 24, 2009.^ Fink, Leon. Workingmen's Democracy: The Knights of Labour and America Politics. United States of America: the Board of Trustees of the University of Illinois, 1983.^ "Knights of Labour." The History Channel website (accessed Feb 24, 2009).^ "Knights of Labor." Columbia Encyclopedia . Academic Search Premier, EBSCOhost . Retrieved February 24, 2009.^ Chinese Exclusion Act (1882). 1989. Retrieved March 31, 2009.^ a b Dubofsky, Melvyn (2000). We Shall Be All: A History of the Industrial Workers of the World (Abridged ed. ed.). Urbana [u.a.]: Univ. of Illinois Press. ISBN 9780252069055.^ Definition of "small business" Dictionary.com (2009). Retrieved April 6, 2009.^ Zieger, Robert H. (1995). The CIO: 1935-1955 ([Nachdr.]. ed.). Chapel Hill: University of North Carolina press. ISBN 9780807846308.^ Fine, Sidney (1979). Sit-Down: The General Motors Strike of 1936-1937 (4. [Dr.] ed.). Ann Arbor: University of Michigan Press. ISBN 9780472329489.^ a b c d Eisenhower, Dwight D. (December 5, 1955) 245 - Telephone Broadcast to the AFL-CIO Merger Meeting in New York City. The American Presidency Project. Retrieved April 16, 2009.^ Union Facts. 2009. Retrieved April 7, 2009.^ a b What We Stand for: Mission and Goals of the AFL-CIO. 2009. Retrieved April 20, 2009.^ The Teamster History. International Brotherhood of Teamsters. Retrieved April 20, 2009.^ a b c Union Facts. 2009. Retrieved April 20, 2009.^ a b c Dan La Botz US supported economics spurred Mexican emigration, pt.1, interview at The Real News, May 1, 2010^ History of the ACTU. Australian Council of Trade Unions.^ ICFTU press release—regarding Cambodia.^ Amnesty International report 23 September 2005—fear for safety of SINALTRAINAL member José Onofre Esquivel Luna^ "Australian Centre for Industrial Relations Research and Training report.". Acirrt.com. Retrieved 2011-07-27.^ Bamberg, Ulrich (June 2004). "The role of German trade unions in the national and European standardization process". TUTB Newsletter 24-25. Retrieved July 27, 2011.^ Bernstein, Aaron (May 23, 1994). "Why America Needs Unions But Not the Kind It Has Now". BusinessWeek.^ Card David, Krueger Alan. (1995). Myth and measurement: The new economics of the minimum wage. Princeton, NJ. Princeton University Press.^ Kramarz, Francis (2006-10-19). "Outsourcing, Unions, and Wages: Evidence from data matching imports, firms, and workers". Retrieved 2007-01-22.^ Friedman, Milton (2007). Price theory ([New ed.], 3rd printing ed.). New Brunswick, NJ: Transaction Publishers. ISBN 9780202309699.^ "The Legal Ferret.net" Retrieved on 22 December 2008.Further readingBooks

The Government of British Trade Unions: A study of Apathy and the Democratic Process in the Transport and General Worker Union by Joseph Goldstein[1]The Early English Trade Unions: Documents from Home Office Papers in the Public Record Office by A. Aspinall[2]Magnificent Journey: The Rise of the Trade Unions, by Francis Williams[3]Trade Unions by Allan Flanders[4]Trade Union Government and Administration in Great Britain by B C Roberts[5]Union Power: The Growth and Challenge in Perspective by Claud Cockburn[6]Directory of Employer's Associations, Trade Unions, Joint Organisations—No author and produced in paperback[7]The History of the TUC (Trades Union Congress) 1868–1968: A pictorial Survey of a Social Revolution—Illustrated with Contemporary Prints, Documents and Photographs, edited by Lionel Birch[8]Clarke, T.; Clements, L. (1978). Trade Unions under Capitalism. Atlantic Highlands, NJ: Humanities Press. ISBN 0-391-00728-9.Panitch, Leo & Swartz, Donald (2003). From consent to coercion: The assault on trade union freedoms, third edition. Ontario: Garamound Press.Phil Dine (2007). State of the Unions: How Labor Can Strengthen the Middle Class, Improve Our Economy, and Regain Political Influence, McGraw-Hill Professional. ISBN 978-0-07-148844-0