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ELRCPartially AllowedCause No. 21 of 2006· [2007] KEELRC 18 (KLR)

TAILORS & TEXTILES WORKERS’ UNION v T.S.S. SPINNING & WEAVING LTD [2007] KEELRC 18 (KLR)

Industrial Court of Kenya
29 March 2007
3,824 words in judgment
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The bottom line

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Kenya's Industrial Court awarded textile workers higher house allowances, sick leave, funeral support and a 7% annual wage rise, but rejected pension and shift allowance demands.

What this practically means

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Executive summary

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This Industrial Court award determines eight issues in dispute arising from the review of the collective agreement between the Tailors & Textiles Workers' Union and T.S.S. Spinning & Weaving Ltd for the period 1st January 2002 to 31st December 2003, referred under a Labour Commissioner's certificate under Section 14 of the Trade Disputes Act, Cap. 234. The Union sought improved house allowance, leave travelling allowance, sick leave, funeral assistance, shift allowance, a general wage increase, protective gear and a pension/provident fund scheme; the Company pleaded inability to pay, citing cumulative losses. An Economic and Planning Division report showed the Company's poor financial performance and a compensatory entitlement of 13.6% based on cost of living indices. The Court awarded a house allowance of 7.5% each year (15% over two years) on basic wages, guided by Section 9 of the Employment Act; leave travelling allowance of Kshs.1,400/= per year; sick leave of 45 days on full pay and 30 days on half pay; funeral assistance enhanced to Kshs.10,000/=; and a general wage increase of 7% each year (14% over two years). It referred the protective gear question to a Factories' Inspector for assessment and a report within three weeks for final decision. The Court rejected the shift allowance increase and the pension/provident fund demand as premature given the Company's finances. No costs order was made.

Key legal issues

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01

House allowance

Holding

Company's offer of 5% and 6% improved to 7.5% each year (15% for two years) on basic monthly wage, in view of Section 9 of the Employment Act and prevailing urban rents

Reasoning

The Court reiterated that decent accommodation is scarce and unaffordable in urban centres and employers must provide reasonable housing or sufficient rent. Guided by Wage Guideline 2(ii) and (iv), Section 9 of the Employment Act and the EPD evidence of actual rent levels in areas where employees live, the Court improved the Company's offer to 7.5% per year for the two-year period.

p. 3
02

Sick leave entitlement

Holding

Improved from 40 days full pay/21 days half pay to 45 days full pay/30 days half pay to maintain uniformity in the industry

Reasoning

The Court held sick leave is intended to cover absence on account of illness and employees should not be discouraged from using it. Considering comparable firms in the sector (averages of about 43 days full pay and 41 days half pay) and the need for industry-wide standards, the Court awarded 45 days full pay and 30 days half pay, improving on the Company's offer of 45/21.

p. 4
03

Death of an employee - funeral expenses

Holding

Company's contribution enhanced from Kshs.7,000/= to Kshs.10,000/= towards funeral expenses

Reasoning

Relying on its earlier observation in Kenya Chemical & Allied Workers v. Eveready Batteries Kenya Ltd that it is human and important for a company to share the cost of bereavement, and considering rising coffin and transport costs and the sector average, the Court enhanced the employer's funeral contribution by Kshs.3,000/= to Kshs.10,000/=.

p. 4
04

General wage increase

Holding

7% each year, or 14% for the two years' period, awarded as a middle course between Union demand of 12% and Company offer of 5%, guided by ability to pay and cost of living

Reasoning

The EPD established a compensatory entitlement of 13.6% (6.8% per year) based on cost of living indices, and that the Company had incurred losses while its accounts were doubted. Applying the ability-to-pay principle, the Court found the Union's demand too high and the Company's offer too low, and awarded 7% per year for the two-year period.

p. 5
05

Protective gear/clothing

Holding

Referral to a Factories' Inspector to assess whether employees in the Two For One twister machine section need industrial boots, report to be filed within three weeks for final decision

Reasoning

The Union invoked Section 53 of the Factories Act requiring protective clothing for workers exposed to injurious substances. The Company conceded it had not supplied industrial boots to that section, regarding them unnecessary. Both parties desired an inspection, and the EPD recommended one, so the Court ordered the Labour Commissioner to dispatch an inspector.

p. 5

Legal principles established

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  • It is incumbent upon every employer to provide reasonable housing accommodation, or pay sufficient rent, to each of his employees
  • Leave travelling allowance is personal to the employee himself or herself
  • The primary objective in deciding wage-increase disputes is the ability of the employer to pay and the restoration of peace, harmony and good will in the industry
  • A pension or provident fund scheme can only be introduced if the employer's financial position justifies it

Court orders

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  1. 1.Award of house allowance at 7.5% each year, or 15% for the two years' period, on the employees' basic monthly wage
  2. 2.Award of leave travelling allowance of Kshs.1,400/= each year when an employee proceeds on annual leave
  3. 3.Award of 45 days sick leave with full pay and 30 days sick leave with half pay
  4. 4.Enhancement of the Company's contribution towards funeral expenses of an employee who dies in employment to Kshs.10,000/=
  5. 5.Rejection of the demand for an increase in shift allowance
  6. 6.Award of a general wage increase of 7% each year, or 14% for the two years' period
  7. 7.Order that the Labour Commissioner dispatch a competent Factories' Inspector to assess the protective gear requirements of the employees, with the report to be filed with the Court within three weeks for final decision
  8. 8.Rejection of the demand for introduction of a pension/provident fund scheme
Jurisdiction invoked
Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) - dispute referred with statutory certificate of the Labour Commissioner

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TAILORS & TEXTILES WORKERS’ UNION v T.S.S. SPINNING & WEAVING LTD [2007] KEELRC 18 (KLR)", Case Analysis (2007). Cause No. 21 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/18/eng@2007-03-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.