Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes with satisfaction that the Constitution was formally adopted on 27 August 2010 and that it specifically recognizes to everyone the right to form, join or participate in the activities and programmes of trade unions or employers organizations, and for trade unions, employers and employers’ organization to engage in collective bargaining (section 41).

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that under section 10 of the Labour Relations Act (LRA) 2007, claims of infringement of employees’ rights, including claims of anti-union discrimination, must first be referred in writing to the minister to appoint a conciliator and, should conciliation fail to resolve the claim within 30 days (or a longer period, should both parties agree) from the appointment of the conciliator, section 73(1) provides that the claim may then be referred to the Industrial Court. The Committee had requested the Government to indicate the average time period for the adjudication of anti‑union discrimination cases by the Industrial Court. The Committee notes that the Government indicates in its report that the Industrial Court is an independent arm of Government that sets its own activities and programmes and that adjudication of disputes may depend on various dynamics including response of the parties, the number of cases filed and the complexity of the files. The Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 214). The Committee recalls the importance to ensure a short average time period for the adjudication of anti-union discrimination cases by the courts or through administrative proceedings and requests the Government to indicate the average time period of the proceedings in these cases.

Protection against acts of interference. In its previous comments, the Committee had noted that the LRA makes no specific provision for protection against acts of interference, either directly or indirectly. The Committee recalls that Article 2 of the Convention provides that workers’ and employers’ organizations shall enjoy adequate protection against act of interference by each other or each other’s agents or members in their establishment, functioning or administration. In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article. The Committee notes that according to the Government, Part 11 “Miscellaneous provisions” of the LRA confers protection against interference. Nonetheless, noting that the LRA does not contain either express provisions against acts of interference nor provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, the Committee requests the Government to take legislative measures to ensure the application in practice of Article 2 of the Convention.

Article 4. Trade union recognition for purpose of collective bargaining. In its previous comments, the Committee had noted that section 54(1) of the LRA requires an employer to recognize a trade union if the said trade union represents “a simple majority of unionizable employees”. Similarly, section 54(2) provides that employers’ federations shall recognize a trade union for the purposes of collective bargaining “if the trade union represents a simple majority of unionizable employees employed by the group of employers or the employers who are members of the employers’ organization within a sector”. The Committee had recalled, in this respect, that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining (see General Survey, op. cit., paragraph 241). The Committee had therefore requested the Government to ensure that section 54(1) and (2) of the LRA are applied in such a manner that, where no union covers more than 50 per cent of the workers, collective bargaining may still be possible for the unions failing to acquire this percentage. In this regard, the Committee notes with satisfaction that section 41(5) of the Constitution provides that “every trade union, employers’ organization and employer has the right to engage in collective bargaining”.

Article 6. Collective bargaining in the public sector. In its previous comments, the Committee had noted that section 61(1) of the LRA provides that the minister may, after consultations with the National Labour Board, make regulations establishing machinery for determining terms and conditions of employment for any category of employee in the public sector. The Committee had also noted that under section 61(3) of the LRA, the Minister may determine different terms and conditions for different categories of public employees. The Committee had recalled that all public servants, with the sole possible exception of those directly engaged in the administration of the State, should enjoy the right of collective bargaining. In these circumstances, the Committee had requested the Government to: (1) take legislative measures to ensure that employees of the Prison Department and the National Youth Service enjoy the right of collective bargaining; (2) indicate the categories of public employee, if any, for whom the minister has determined terms and conditions of employment under section 61(3) of the LRA; and (3) provide full information on the practical application of section 61(1), which provides for the establishment of collective bargaining machinery in the public sector.

The Committee notes with satisfaction that, as stated by the Government, the Constitution now explicitly recognizes the right to collective bargaining to everyone and therefore employees of the Prison Department and the National Youth Service may organize and collectively bargain accordingly. The Committee further notes that according to the Government, section 248(2)(h) of the Constitution provides for the establishment of the Salaries and Remuneration Commission in order to facilitate the harmonization of the terms and conditions of the employees in the public sector. However, no information was provided by the Government with regards to the application of section 61(3) of the LRA (which provides that the Minister may determine different terms and conditions for different categories of public employees). Considering the foregoing, the Committee requests the Government to : (1) indicate the categories of public employee, if any, for whom the minister has determined terms and conditions of employment under section 61(3) of the LRA; and (2) provide full information on the practical application of section 61(1) of the LRA, which provides for the establishment of collective bargaining machinery in the public sector and to inform of the appointment of the Salaries and Remuneration Commission as well as details about its composition and functioning, and to provide a copy of its Rules of procedures once adopted.

ITUC comments. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, indicating that interference in trade union activities and intimidation by employers are frequent, and that trade unionists often have difficulties obtaining meeting with their employers. The Committee requests the Government to provide its observations thereon.