This document discusses alternative dispute resolution (ADR) methods for resolving trade disputes, including their definitions, processes, advantages, and disadvantages. It outlines several ADR methods: 1. Negotiation - Direct communication between disputing parties to jointly resolve the issue. It is voluntary, informal, and flexible but power imbalances can disadvantage weaker parties. 2. Mediation/Conciliation - A neutral third party assists negotiations but does not make binding decisions. It aims to maintain relationships while resolving multiple issues privately and quickly. However, it is not binding and power imbalances may still influence the process. 3. Arbitration - A third party hears evidence and renders a binding decision. Parties have

1. TRADE DISPUTES
Presented by:

2. WHAT IS THE MEANING
OF A TRADE DISPUTE?
• Any dispute between employers and workers which is
connected with the employment or non-employment, or
the terms or conditions of or affecting the employment,
of any person (whether or not they are the employee of
the employer in question.)

3. WHAT IS ALTERNATIVE
DISPUTE RESOLUTION (ADR)?
This is the collective term for a range of processes and
techniques, alternative to the traditional judicial process,
which may be used to resolve conflict in the workplace.

4. 1. NEGOTIATION
• Any form of direct/indirect communication whereby
parties with opposing interests discuss any form of joint
action which they may take to manage and ultimately
resolve the dispute between them.
• Pre-eminent mode of dispute resolution

5. NEGOTIATION IS…
• Voluntary
• Bilateral/Multilateral
• Non-adjudicative
• Informal
• Confidential
• Flexible

6. • Advantages:
Flexible
Voluntary
No need for neutral third party
Win-win approach could guarantee a successful
outcome for both sides.
Only bind parties to the negotiation
May preserve/enhance the parties’ relationship
Less expensive

7. • Disadvantages:
Unequal power may place weaker parties at a
disadvantage
No neutral third party may be a hindrance
No-one is compelled to continue negotiating
Some issues are not suited to negotiation
No guarantee as to good faith/trustworthiness
May be used as a stalling tactic

8. 2&3. CONCILIATION AND
MEDIATION
• Conciliation and mediation are procedures whereby a
third party provides assistance to the parties in the
course of negotiations, or when negotiations have
reached an impasse, with a view to helping them to
reach an agreement. While in many countries these
terms are interchangeable, in some countries a
distinction is made between them according to the
degree of initiative taken by the third party.

9. MEDIATION IS…
• Voluntary
• Non-coercive
• Assisted negotiation
• Informal
• Confidential

10. • Advantages
Where there is a desire to maintain a good ongoing
relationship
No strict procedural rules
Resolution for cases with multiple issues
Private
Faster
Neutral third party keeps things in check
Parties bear costs equally

11. • Disadvantages:
Power imbalance between parties and/or third party
Does not produce legal precedents
Not binding

12. 4. ARBITRATION
• Arbitration is a procedure whereby a third party
(whether an individual arbitrator, a board of arbitrators
or an arbitration court), not acting as a court of law, is
empowered to take a decision which disposes of the
dispute.
• Adversarial process similar to litigation

13. • Advantages:
Parties can choose the arbitrator(s)
Can be selected on the basis of relevant experience
Can be formal/informal depending on the intention of
the parties
Private
Costs can be contained
Arbitral awards are binding
Speed

14. • Disadvantages:
• Inexperienced arbitrators may affect the outcome
• No binding legal precedent
• Recourse against an award is limited
• Parties may cause the process to be a long and costly
one

15. ARBITRATION IS…
• Voluntary
• Controlled
• Private
• Informal
• Adjudicative
• Formal/informal
• Confidential
• Adversarial
• Flexible

16. 5. MEDARB
• This process begins as the mediation of a dispute by a
neutral third party. But, if the mediator does not
successfully, resolve the dispute, an arbitrator, who may
or may not be the person who acted as a mediator in
the dispute, makes a decision. In most cases, the
decision is binding on the parties.
• It offers the promise that the dispute will be resolved,
even if the parties are unable to reach a settlement
themselves.

17. 6. ARBMED
• Two steps:
1. A neutral, third-party Arbitrator, listens to evidence,
testimonies, opening statements, presentations, cross-
examination of witnesses, and closing statements from
all parties. Upon review of evidence and testimony, the
Arbitrator renders a non-binding advisory decision.
2. A neutral, third-party Mediator facilitates
communication between the parties to assist
reconciliation and settlement. The Mediator may
suggest ways of resolving the dispute but may not
impose his or her own judgment on the issues for that of
the parties.

18. WHAT IS THE CONSTITUTIONAL
FRAMEWORK AND STATUTORY
FRAMEWORK FOR DISPUTE
RESOLUTION UNDER PART VIII
OF THE LABOUR RELATIONS
ACT?

19. CONSTITUTIONAL
FRAMEWORK
• Article 159 of the Constitution provides that alternative
forms of dispute resolution, including reconciliation,
mediation, arbitration and traditional dispute-resolution
mechanisms, shall be promoted.

20. STEP 1: REPORTING THE TRADE
DISPUTE TO THE MINISTER.
Under section 62 (1) LRA 2007, a Trade dispute can be
reported to the minister in the prescribed form and manner ;
• (a) by or on behalf of a trade union, employer or employers'
organization that is a party to the dispute; and
• (b) by the authorized representative of an employer,
employers' organization or trade union on whose behalf the
trade dispute is reported.

21. ACCORDING TO S.62(2) A PERSON
REPORTING A TRADE DISPUTE MUST;
1. serve a copy by hand or registered post to each party to
the dispute and any other person having a direct interest in
the dispute; and
2. Satisfy the Minister that a copy has been served to each
party to the dispute by hand or by registered post.

22. TO BE MORE SPECIFIC….
• Section 62 (3) A trade dispute concerning the dismissal or
termination of an employee shall be reported to the Minister
within―
a) ninety days of the dismissal; or
b) any longer period that the Minister, on good cause,
permits.
• Section 62 (4) If the issue in dispute concerns the redundancy
of one or more employees, a trade union may report a trade
dispute to the Minister at any stage after the employer has
given notice of its intention to terminate the employment of
any employee on grounds of redundancy.
• Section 62 (5) The reporting of a trade dispute by a trade
union under subsection (4) does not prevent an employer
from declaring employees redundant on the expiry of notice
of intention to declare the employees redundant.

23. THEN WHAT?... (SECTION 63 AND 64)
• Every party to a trade dispute shall file a replying statement
in the prescribed form and manner (as seen above) with the
Minister within fourteen days of receiving a copy of the report
of the dispute.
• The failure by a party to file a replying statement does not
affect the validity of a referral.
• In addition any party with an interest in any dispute may file a
statement with the Minister within fourteen days of receiving a
copy of the referral.

24. STEP 2: MINISTER APPOINTS
CONCILIATORS (SECTION 65)
• Within twenty-one days of a trade dispute being reported to
the Minister as specified under section 62, the Minister shall
appoint a conciliator to attempt to resolve the trade dispute
unless;
(a) the conciliation procedures in an applicable collective
agreement binding on the parties to the dispute have not been
exhausted; or
(b) a law or collective agreement binding upon the parties
prohibits negotiation on the issue in dispute.

25. IF NOT?...
• (2) the minister may require any party to a trade dispute to
supply further information for the purpose of deciding
whether to appoint a conciliator.
• (3)If the Minister refuses to appoint a conciliator as specified
in subsection (1), the Minister shall supply the parties to the
dispute with written reasons for that decision.
• (4)Where a party is aggrieved by a Minister's decision under
this section, that party may refer the matter to the Industrial
Court under a certificate of urgency.
• (5)The Minister may consult the Board on any trade dispute,
which has been reported for conciliation.

26. CONCILIATOR: (SECTION 66)
• A person appointed to conciliate a dispute under this Part
shall be ;
(a) a public officer;
(b) any other person drawn from a panel of conciliators
appointed by the Minister after consulting the Board; or
(c) a conciliator from the Conciliation and Mediation
Commission.
• S.66 (2) If the Minister appoints a conciliation committee to
conciliate a trade dispute, the Minister shall appoint;
(a) a chairperson in accordance with subsection (1);
(b) an even number of persons drawn equally from lists
submitted to the Minister by the employer and trade union
representatives respectively on the Board; and
(c) the secretary of the conciliation committee.

27. SECTION 70
• If the Minister is satisfied that it is in the public interest to
prevent a dispute from arising or to resolve a dispute, the
Minister may appoint a conciliator or conciliation committee
to attempt to present a dispute or resolve the dispute. The
Minister may do so:
(a) in respect of a dispute that ;
(i) has not been referred to conciliation; or
(ii) is unresolved after conciliation.
(b) irrespective of whether;
(i) a trade union is a party to the dispute or not; or
(ii)the dispute is in the public or private sector.

28. STEP 3: WHAT POWER DOES THE
CONCILIATOR HAVE TO RESOLVE
THE DISPUTE? (SECTION 67)
• The conciliator or conciliation committee appointed shall
attempt to resolve the trade dispute within;
(a) thirty days of the appointment; or
(b) any extended period agreed to by parties to the trade
dispute.
• For the purposes of resolving any trade dispute, the conciliator or
conciliation committee may;
(a) mediate between the parties;
(b) conduct a fact-finding exercise; and
(c) make recommendations or proposals to the parties for settling
the dispute.

29. (d) summon any person to attend a conciliation;
(e) summon any person who is in possession or
control of any information, book, document or object
relevant to resolving the trade dispute to appear at
the conciliation;
(f) question any person present at a conciliation.
• (4) The Minister shall pay the prescribed witness fee
to any person who appears before a conciliator or
conciliation committee in response to a summons
issued.
• (5) No person shall without good cause fail to;
(a) comply with a summons issued;
(b) produce any book, document or item specified
in a summons issued; or
(c) answer any relevant question asked by a
conciliator or conciliation commission.

30. STEP 4: DISPUTE RESOLVED?(SECTION
68)
• If a trade dispute is settled in conciliation the terms of the
agreement shall be;
(a) recorded in writing; and
(b) signed by the parties and the conciliator.
• A signed copy of the agreement shall be lodged with the
Minister as soon as it is practicable.

31. BUT… (SECTION 69)
• A trade dispute is deemed to be unresolved after conciliation
if the;
• (a) conciliator issues a certificate that the dispute has not
been resolved by conciliation; or
• (b) thirty day period from the appointment of the conciliator,
or any longer period agreed to by the parties, expires.

32. ALTERNATIVELY!
(SECTION 71 &72)
• The minister may appoint a committee of inquiry to
investigate any trade dispute and report to the Minister.
• The Minister may delegate his powers under this Part to
the Commissioner for Labour or the Chief Industrial
Relations Officer.

33. THE ROLE OF THE INDUSTRIAL
COURT IN THE RESOLUTION OF
TRADE DISPUTES.

34. DOES IT HAVE A ROLE?...YES!
• Section 73
1) If a trade dispute is not resolved after conciliation, a
party to the dispute may refer it to the Industrial Court
in accordance with the rules of the Industrial Court.

35. S73 CONTINUED…
• 2) Notwithstanding the provisions of subsection (1), if a
trade dispute―
• (a) is one in respect of which a party may call a
protected strike or lock-out, the dispute may only be
referred to the Industrial Court by an aggrieved party
that has made a demand in respect of an employment
matter or the recognition of a trade union which has not
been acceded to by the other party to the dispute; or
• (b) is in an essential service, the Minister may, in addition,
refer the dispute to the Industrial Court

36. REFFERED BY WHO?..S73
3) A trade dispute may only be referred to the Industrial
Court by the authorised representative of an employer,
group of employers, employers' organisation or trade
unions.

37. URGENT REFERRALS..S74
• S74 A trade union may refer a dispute to the Industrial
Court as a matter of urgency if the dispute concerns―
• (a) the recognition of a trade union in accordance with
section 62; or
• (b) a redundancy where –
• (i) the trade union has already referred the dispute for
conciliation under section 62(4); or
• (ii) the employer has retrenched employees without giving
notice; or
(c) employers and employees engaged in an essential
service.

38. WHICH ACT DOES NOT
APPLY?
• Section 75. ..The Arbitration Act shall not apply to any
proceedings before the Industrial Court (No. 4 of 1995 )

39. POWERS OF THE
INDUSTRIAL COURTS
• s77(1) A party to a dispute that has received notice of a
strike or lock-out may apply to the Industrial Court to
prohibit the strike or lockout as a matter of urgency if –
• (a) the strike or lock-out is prohibited under this Part; or
• (b) the party that issued the notice has failed to
participate in conciliation in good faith with a view to
resolving the dispute.
• (2) A party that failed to attend any conciliation
meeting may not seek relief under subsection (1)(b).

40. GRANTING RELIEF,…S77
• (3) The Industrial Court may, in granting relief in respect
of any application made under subsection (1)(b), direct
the parties to engage in further conciliation in good faith
with a view to resolving the dispute.

41. Q.3
• Discuss the difference between a strike and a lockout.
• Can a strike be lawful?

42. WHAT IS A STRIKE?
• A strike is carried out by employees of a company in the
midst of an employment-related disagreement with their
employer
• Employees refuse to work
• Normally a combined effort by a trade union
• To exert pressure on employer to meet certain demands

43. • S.2 Labour Relations Act 2007 (LRA) defines ‘strike’ as:
• “…the cessation of work by employees acting in
combination…for the purpose of compelling their
employer…to accede to any demand in respect of a
trade dispute.”

44. WHAT IS A LOCKOUT?
• The converse of a strike
• Temporary denial of employment
• Move by management to gain better bargaining
position in negotiations
• May occur on the expiration of a collective bargaining
agreement

45. • S.2 LRA defines a ‘lockout’ as:
• “…the closing of a place of employment, …or the
refusal by an employer to continue to employ any
number of employees…
• (a) for the purpose of compelling employees…to accept
any demand…of a trade dispute; and
• (b) not for the purpose of finally terminating employment.”

46. CAN A STRIKE BE
LAWFUL?
• Strikes have a negative stigma attached to them,
especially in this country
• But they can be both lawful or prohibited, as set out in
the Constitution and the LRA

47. LAWFUL STRIKES
• Art 37 of Constitution allows for peaceful and unarmed
assembly, demonstration and picketing
• Art 41(1) and (2) provides that every person has the right
to;
• Fair labour practices
• Fair remuneration
• Reasonable working conditions
• Join a trade union
• Go on strike

48. LAWFUL STRIKES
• Two types:
• Protected strikes and lockouts
• Strikes and lockouts in compliance with the LRA

49. LAWFUL STRIKES
• Strikes are lawful as long as they meet the requirements
in s.76 and s.79(1) LRA
• S.76 sets out conditions for protected strikes
• It provides that a person may participate if
• (a) the trade dispute concerns t&c’s of employment
• (b) the dispute remains unresolved after conciliation
• (c) and, a seven day notice has been given
• S.79(1) – “a ‘protected strike’ means a strike that
complies with the provisions of this Part and ‘protected
lock-out’ means a lock-out that complies with the
provisions of this Part

50. PROTECTED STRIKES
• Ss.79(2) and (4) further provide protection for employees
taking part in a lawful strike
• S.79(2) - “A person does not commit a breach of
contract or a tort by taking part in…a protected strike…”
• Thus, it would amount to unfair dismissal if the employer
dismissed the employee for participation in a protected
strike – s.79(3)
• No civil proceedings instituted against any person
participating in a protected strike or lock-out – s.79(4)
• However, employer not obliged to remunerate for days
services were not rendered – s.79(6)

51. UNLAWFUL STRIKES
• A strike will be unlawful if it falls under the prohibitions set
out in the LRA – s.78
• ..Or if they are not in compliance with the LRA, as set out
in s.80

52. • S.78(1) No person shall take part in a strike or lock-out…if-
• (a)any law, court award or a collective agreement or
recognition agreement binding on that person prohibits a
strike or lock-out in respect of the issue in dispute;
• (b) the subject matter of the strike or lock-out is regulated
by a collective agreement or recognition agreement
binding on the parties to the dispute;
• (c) the parties have agreed to refer the trade dispute to
the Industrial Court or to arbitration;
• (d) in the case of a dispute concerning the recognition of
a trade union, the trade union has referred the matter to
the Industrial Court

53. • (e) trade dispute was not referred for conciliation in terms
of – (i) this Act; or (ii) a collective agreement providing for
conciliation
• (f) the employer and employees are engaged in an
essential service;
• (g) the strike or lock-out is not in furtherance of a trade
dispute; or
• (h) the strike or lock-out constitutes a sympathetic strike or
lock-out.

54. • S.78(2)(a) identifies a sympathetic strike as where an
employee participates in a strike in support of a trade
dispute to which his employer is neither party, nor
represented by an employer’s organisation party to the
dispute
• S.78(2)(b) identifies a sympathetic lock-out as where an
employer locks-out an employee in support of a trade
dispute to which he is neither party, nor represented by
an employer’s organisation party to the dispute

55. • S.80(1) An employee who takes part in, calls, instigates or
incites others to take part in a strike that is not in
compliance with this Act is deemed to have breached
the employee’s contract and -
• (a) is liable to disciplinary action; and
• (b) is not entitled to any payment or any other benefit
under the Employment Act during the period the
employee participated in the strike

56. • (2) A person who refuses to take part or to continue to
take part in any strike or lock-out that is not in
compliance with this Act may not be -
• (a) expelled from any trade union, employers organisation
or other body or deprived of any right or benefit as a result
of that refusal; or
• (b) placed under any disability or disadvantaged,
compared to other members or the trade union,
employers’ organisation or other body as a result of that
refusal.

57. • (3) Any issue concerning whether any strike or lock-out or
threatened strike or lock-out complies with the provisions
of this Act may be referred to the Industrial Court
• S.81(1) gives meaning to ‘essential services’ as “a service
the interruption of which would probably endanger the
life of a person or health of the population….”

58. ARE THE TEACHERS, NURSES AND ALL PARTIES
WHO WE HAVE SEEN GOING ON STRIKE IN
KENYA'S RECENT PAST, WITHIN THEIR RIGHTS TO
GO ON STRIKE?

59. Definition of strike
LABOUR RELATIONS ACT (LRA) s.2
“strike” means the cessation of work by employees acting
in combination, or a concerted refusal or a refusal under a
common understanding of employees to continue to work
for the purpose of compelling their employer or an
employers’ organisation of which their employer is a
member to accede to any demand in respect of a trade
dispute;

60. CONSTITUTION
• Article 159 of the Constitution provides that alternative
forms of dispute resolution, including reconciliation,
mediation, arbitration and traditional dispute-resolution
mechanisms, shall be promoted.
• ADR before strike…

61. YES…
CONSTITUTION
• Article 41 (2): Every worker has the right:
(d): to go strike
• Art 33 (1): Freedom of expression
Every person has the right to freedom of expression, which
includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.

62. YES…
CONSTITUTION
• Article 36(1) also applies. It states, “Every person has the right
to freedom of association, which includes the right to form,
join or participate in the activities of an association of any
kind”

63. BUT…REQUIREMENTS OF
A LAWFUL STRIKE
LABOUR RELATIONS ACT gives the right to strike with
conditions.
S.76 -Protected strikes and lock-outs
• A person may participate in a strike or lock-out if—
• (a) the trade dispute that forms the subject of the strike
or lock-out concerns terms and conditions of
employment or the recognition of a trade union;
• (b) the trade dispute is unresolved after conciliation—
• (i) under this Act; or
• (ii) as specified in a registered collective agreement that
provides for the private conciliation of disputes; and

64. LAWFUL STRIKES…
• (c) seven days written notice of the strike or lock-out has
been given to the other parties and to the Minister by
the authorised representative of—
• (i) the trade union, in the case of a strike;
• (ii) the employer, group of employers of employers’
organisation, in the case of a lock-out.

65. EXAMPLE
• TSC v KNUT & ANOTHER [2012] eKLR
• It is clear from the text of the notices that they do not
comply with the provisions of section 76 (b) and (c) and
section 78 (1) (e) of the Labour Relations Act. The parties
did not go for conciliation either as provided in section
62 of the Labour Relations Act or in their own internal
machinery under the recognition agreements. Both
notices are therefore not in compliance with the law as
there were no conciliations that had failed to warrant
the issuance of the strike notices. The strikes are therefore
not protected under section 79 of the Labour Relations
Act.

66. BRIEF SUMMARY OF WHEN A
STRIKE IS WITHIN YOUR
RIGHTS
• A strike is lawful when it is in accordance with s.76 LRA:
• (a) the trade dispute concerns t&c’s of employment
• (b) the dispute remains unresolved after conciliation
• (c) and, a seven day notice has been given
•
• Benefits…
• Protection under s.79 LRA which include:
• Protection from liability of breach of contract or tort s.79 (2)
• Protection from unfair dismissal s. 79 (3)
• Protection from civil proceedings s.79 (4)

67. RIGHT TO STRIKE
A fundamental right?

68. RIGHT TO STRIKE?
• S. 2 of the Labour Relations Act 2007 defines the right to
strike, and this right has been enshrined and protected
herein as well as within the Constitution, among other
sources of this right.
• This right has also been recognized as fundamental in
nature by Kenyan courts:
• Kenya Ferry Services Limited v Dock Workers Union [Ferry
Branch] [2015] eKLR

69. THE CONSTITUTION OF
KENYA 2010
• Articles 36(1) & 37 protect the right to freedom of
association and freedom of assembly.
• The right to freedom of association has long been
understood as a collective right, and is a bundle of rights
that includes the right to strike, among others.
• The rationale to this is that, without the attendant
derivative rights, the right to association in the industrial
relations context would be wholly meaningless.

70. CONSTITUTION CONT’D
• The right to strike has also been enshrined by the
constitution under the Bill of Rights, Chapter 4.
• Article 41(1)states that every person has the right to fair
labour practices, and further provides that (2) (d) every
worker has the right to go on strike.
• Article 20 on the application of the Bill of Rights
emphasizes that they shall apply to all laws (art. 20(1))
and that every person shall enjoy these rights to the
greatest extent (art. 20 (2))

71. LABOUR RELATIONS ACT
2007
• The freedom of association is protected under s. 4 of the
LRA 2007.
• Similarly, this qualifies a collective labour right,
comprising the right to engage in collective bargaining
as well as the right to strike.

72. LRA 2007 CONT’D
• S. 4(3)
• “Every member of a trade union that is
a member of a federation of trade
unions has the right, subject to the
constitution of that federation to:
• (a) Participate in its lawful activities”

73. LRA 2007 CONT’D
• The Act further expressly provides for procedures and
protection of strikes from s.76 – 81
• S. 76 provides for protected strikes, and what amounts to
them
• S. 78 sets out what kind of strikes are prohibited by law
• S.79 & 80 provides protections for employees participating
in a strike as well as consequences of non-compliance.
• S.81 explains the rights to strike in regard to “essential
services”

74. INTERNATIONAL
INSTRUMENTS
• ICESCR Art 8(1)(d) provides that State parties shall undertake to
ensure the right to strike, among other rights, provided that it is
exercised in conformity with the laws of the particular country.
• ILO convention 98 on the Right to Organize and
Collective Bargaining Convention does not explicitly
mention the right to strike, though this right has been
recognized internationally as a fundamental right of
workers and as an intrinsic corollary to the right to
organize.

75. INT’L INSTRUMENTS
CONT’D
• Adopted in 1998, the ILO Declaration on Fundamental
Principles and Rights at Work is an expression of
commitment by governments, employers' and workers'
organizations to uphold basic human values - values that
are vital to our social and economic lives – and includes
Convention 98 & 87, which Kenya has not yet ratified.

76. LIMITATIONS TO THIS
RIGHT?
• However Art 24(1) allows for these rights to be limited to an extent
that is reasonable and justifiable.
• Similarly, Article 24(5) allows for limitation of certain rights with
regard to KDF and NPS.