Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kenya (Ratification: 1964)

The Committee notes the Government’s report and the Government’s reply to the 2005 and 2006 communications of the International Confederation of Free Trade Unions (ICFTU).

Articles 4 and 6 of the Convention. Collective bargaining in the public sector. The Committee had trusted that the Government would take the necessary measures to ensure that public employees (with the possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention, and in particular the right to collective bargaining. The Committee took note of the Memorandum of Understanding concluded on 14 May 2004 between the Government and the Union of Civil Servants concerning recognition, negotiating and grievance procedures for civil servants, and providing for collective bargaining machinery for negotiation of terms and conditions of employment. The Committee notes that, according to the Government’s report, the parties have negotiated and agreed in May 2006 on a salary increment which came into effect on 1 June 2006 and that the coverage of the memorandum was broadened to cover job groups A to N. The Committee had noted in its previous observation, however, that the memorandum does not apply to employees of the Prison Department, the National Youth Service and teachers under the Teachers’ Service Commission. The Committee notes that, according to the Government, these categories of worker are restricted from joining unions or collective bargaining for security reasons as they are disciplined forces; nevertheless, the terms and conditions of service for the National Youth Service are established by the Permanent Public Sector Remuneration Review Board. The Committee notes the comments of the ICFTU concerning the new Teachers’ Service Commission (TSC) regulations, introduced on 1 October 2005, prohibiting senior teaching staff (school principals, deputies, heads of department, senior researchers, advisory centre tutors and education programme officers) from playing an active part in the union, including collective bargaining. Recalling that all these categories, as employers or as employees, should enjoy the right of collective bargaining, the Committee requests again the Government to indicate if they can negotiate under other legislative provisions. The Committee requests the Government to reply to the ICFTU’s comments concerning the new TSC regulations. The Committee requests again the Government to keep it informed of any amendment to the legislation in relation to the right to collective bargaining of public employees covered by the Convention.

Workers in EPZs. The Committee notes the ICFTU’s comment that although workers in EPZs are allowed to join trade unions, they still suffer appalling conditions, and those who complain are threatened with dismissal. The Government, responding to the comments of the ICFTU, stated that there are restrictions for them in the existing legislation, and that its numerous information dissemination and awareness campaigns have helped to normalize the situation and that the labour inspectors continuously monitor the situation and take remedial measures when necessary. Recalling that the Convention must be applied in law and in practice in the EPZs, the Committee requests the Government to send information on the number of union and collective agreements in EPZs indicating the number of workers covered.

Review of labour laws. The Committee notes that the Government acknowledges the need to review its labour laws to ensure conformity with internationally accepted labour standards; a tripartite-based task force in 2001 reviewed all of the Kenyan labour laws, and draft bills have been submitted to the Attorney-General for necessary action; according to the Government, these draft bills take into account the eight core Conventions on fundamental principles and rights at work, but require cabinet and parliamentary approval before they become operational and measures have been taken to hasten the process. The Committee notes however that the ICFTU underlines that the revision of the Labour Code has progressed at a slow pace, as the Government claims that this cannot be finalized until the Constitution is ratified, and, as it has been rejected by Kenyan citizens, it is uncertain when the law will be passed. The Committee notes that the Government acknowledges that there have been delays and that measures have been taken to hasten the process. The Committee requests the Government to keep it informed of the adoption of the draft bills revising the entire Kenyan labour legislation and hopes that the future legislation will be in full conformity with the Convention.

The Committee notes that the ICFTU had raised the case of a trade unionist who was dismissed, after having convened a meeting to discuss overtime, on grounds of having incited the workers and used abusive language. The Committee notes that the Government states that, after the matter was brought to its attention, it launched an investigation which resulted in a reconciliation between the parties, which agreed to settle their dispute by payment of compensation.

The Committee is addressing a request on this matter directly to the Government.