Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee takes note of the adoption of the Labour Relations Act (LRA) 2007. The Committee notes with interest that section 5 of the LRA prohibits acts of anti-union discrimination on the basis of trade union membership or activities, both during the recruitment period and the entire course of employment.

The Committee further notes that under section 10 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 requests the Government to indicate the average time period for the adjudication of anti-union discrimination cases by the Industrial Court.

Protection against acts of interference. The Committee observes that the LRA makes no provision for protection against acts of interference, either directly or indirectly. Recalling that Governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 concerning acts of interference, the Committee requests the Government to take legislative measures so as to make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention.

Article 4. Trade union recognition for purposes of collective bargaining. The Committee notes 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 recalls, 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 of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee therefore requests 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.

Collective bargaining in the public sector. The Committee had previously noted that the 14 May 2004 Memorandum of Understanding between the Government and the Union of Civil Servants concerning recognition, negotiating and grievance procedures for civil servants did not apply to employees of the Prison Department, the National Youth Service and teachers under the Teachers’ Service Commission, and had requested the Government to indicate whether those categories of employee enjoyed the right of collective bargaining under any legislative provisions. In this respect, the Committee notes that, according to the ITUC, those categories of employee were still denied the right of collective bargaining, although civil servants not involved in State administration are allowed to bargain collectively. The Committee also notes, however, the Government’s statement that it had signed a collective agreement with the Union of Civil Servants that entered into force in June 2008, and that negotiations with teachers were ongoing.

As concerns the LRA, the Committee observes that section 61(1) 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 also notes that under section 61(3) the minister may determine different terms and conditions for different categories of public employee. Recalling 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, the Committee requests 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) to provide full information on the practical application of section 61(1), which provides for the establishment of collective bargaining machinery in the public sector.