TAILORS & TEXTILES WORKERS’ UNION v T.S.S. SPINNING & WEAVING LTD [2007] KEELRC 18 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the employees are entitled to an improved house allowance
- 2.Whether leave travelling allowance should be increased
- 3.Whether sick leave entitlement (full pay and half pay) should be increased
- 4.Whether the Company's contribution towards funeral expenses of a deceased employee should be enhanced
- 5.Whether the shift allowance should be raised
- 6.Whether a general wage increase should be awarded and at what rate
- 7.Whether employees in the Two For One twister machine section should be supplied with industrial boots as protective gear
- 8.Whether a pension/provident fund scheme should be introduced for the employees
Key legal issues
#House allowance
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
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.
Sick leave entitlement
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
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.
Death of an employee - funeral expenses
Company's contribution enhanced from Kshs.7,000/= to Kshs.10,000/= towards funeral expenses
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/=.
General wage increase
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
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.
Protective gear/clothing
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
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.
Legal principles established
#- 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
#- 1.Award of house allowance at 7.5% each year, or 15% for the two years' period, on the employees' basic monthly wage
- 2.Award of leave travelling allowance of Kshs.1,400/= each year when an employee proceeds on annual leave
- 3.Award of 45 days sick leave with full pay and 30 days sick leave with half pay
- 4.Enhancement of the Company's contribution towards funeral expenses of an employee who dies in employment to Kshs.10,000/=
- 5.Rejection of the demand for an increase in shift allowance
- 6.Award of a general wage increase of 7% each year, or 14% for the two years' period
- 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.Rejection of the demand for introduction of a pension/provident fund scheme
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) - dispute referred with statutory certificate of the Labour Commissioner
Relief refused
#Shift allowance increase from Kshs.3/= to Kshs.5/= per hour
The current rate compares favourably with rates in other comparable concerns in the sector, and regulating shifts is a management function
Introduction of a pension/provident fund scheme
The Company's financial position does not justify the scheme; it would be an unbearable burden and the demand is premature
Costs
No costs order was made in the award.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we order that the Labour Commissioner do dispatch a competent Factories’ Inspector to the premises or factory of the Company to assess the requirements of the employees. The Factories’ Inspector is directed to file his report with the Court within three (3) weeks from the date of this award for final decision on this issue.
it is our considered judgement that a wage increase of 7% each year, or 14% for the two years’ period, will meet the ends of justice, and we so award and order accordingly.
we are inclined to improve the offer on this issue of 5% and 6% for the two years respectively by 2.5% and 1.5%, to make it 7.5% each year, or 15% for the two years’ period, on the employees’ basic monthly wage, and we award accordingly.
We have observed in several awards before that leave travelling allowance is personal to the employee himself or herself.
In the circumstances, prudence demands that we should wait a little longer till the financial position of the Company stabilized. We consider this demand a little premature and reject it for now.
It is purely the function of the management to regulate the number of shifts according to the requirement of the business.
Issues in the judgment
#Internal inconsistency in the financial analysis: the report states 2001 showed a profit of Kshs.9.4 million but earlier describes the 2003 gross profit figure of Kshs.9.4 million, and elsewhere refers to 'except in 2001 when the accounts showed a profit of Kshs. 9.4 million' while also attributing Kshs.9.4 million to 2003
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.