EMERGING ISSUES IN THE EMPLOYMENT AND LABOUR SPACES
Hon Justice Byram Ongaya, Principal Judge of the Employment and Labour Relations Court, today participated as a Panelist at the Africa Employers Summit held in Nairobi, under the theme: Empowering Business to Advance Social Justice.
The Principal Judge spoke on the topic: Innovations to Adapt to Workplace Changes in Africa. Specifically addressing the question: ‘How can the Employment and Labour courts in Africa develop their jurisprudence through adoption of innovative approaches to dispense justice and apply International Labour Standards (ILS) to support national labour markets to respond to contemporary workplace changes?’
Justice Ongaya’s presentation highlighted the following:
1.Employment and labour courts in Africa, should advocate and ensure that they have sufficient jurisdictional scope for the determination of the wide contemporary disputes in the world of work. The jurisdiction should cover formulation, interpretation, and implementation of terms and conditions of service and all aspects of undertaking human resource functions.
2.The Courts must embrace ILS in resolving disputes. The Judges must be trained in ILS together with stakeholders such as legal counsel, trade union officials, and human resource managers. The ILS can be relied upon as biding especially where the relevant convention has been ratified and domesticated or incorporated in national laws.
3.The employment and labour courts should readily apply the ILO basic principles and rights in the world of work. They include the right of association and collective bargaining; fairness and freedom from discrimination; elimination of all forms of child labour including the worst forms of child labour; elimination of forced work, slavery and servitude; and a clean work environment upholding occupational safety and health should be primary points of reference in resolving disputes by the Courts.
4.There cannot be lasting peace and prosperity without social dialogue as a foundation of social justice. The Courts in resolving disputes must balance justice ensuring equity which respects diversity of individual needs; access to basic resources, opportunities and services by all persons; enabling all to participate in social economic and political life in their communities; respecting diversity; and embracing human dignity and rights or freedoms.
5.The Courts should embrace a multi-door approach to justice through Alternative Dispute Resolution and Alternative Justice Systems. The Awards in ADR and AJS should be recognized by the Court for summary adoption and enforcement under the Court’s rules of procedure.
6.Kenya’s Employment and Labour Relations Court has enhanced access to justice through establishment of court stations and sub-registries across the country. It has also embraced technology and uses e-filing, virtual courts, case tracking system and e-judiciary mobile application.
7.To foster ILS, the ELRC has embraced a constitutional approach to litigating disputes at work. There is emergence of focus on rights and freedoms going beyond “the contract of service” such as considerations of the right of equality and freedom from discrimination and the right to privacy. There is emergence of strategic or public interest litigation where litigants seek to pursue rights and obligations outside the existence of a contract of service between the litigants before court.
8.The Courts must be alert to the impact of technologies, AI and green jobs to the world of work. Working from home, Transboundary jobs, platform workers and gig economy are new emergent considerations that have shifted traditional employment relationships.
9.While the courts are independent they must embrace accountability through robust stakeholder engagement, Court Users Committees and open dialogue days. Further the courts should adopt regular assessment through performance management and measurement tools.
The conference was organized by BUSINESSAfrica Employers’ Confederation, the International Labour Organization and the Federation of Kenya Employers.