Freedom to Join and Form a Union
The Constitution and the Labour Relations Act provide for Freedom of Association. Every worker has a right to form, join or participate in the activities and programs of a trade union (and leave a trade union).
Principal purpose of a trade union is to regulate relations between workers and employers. Basically, a trade union fights for better working conditions and remuneration for its members. It advocates sound relations between employers and workers through the promotion and protection of freedom of association, collective bargaining agreements and dispute resolution. More specifically, trade unions negotiate for wages, work rules, complaint procedures, rules governing hiring, firing and promotion of workers, benefits, workplace safety and policies. The agreements negotiated by the union leaders are binding on the rank and file members and the employer and in some cases on other non-member workers.
Union members are free to elect their representatives and formulate their work program. They may draw up their own statutes and administrative regulations, as long as these are not contrary to laws in effect and public order.
The unions must get registered with the Ministry by filing their statutes and list of names of those responsible for management and administration. Employer may deduct union dues from the wages of the members only after their written consent. Discriminatory behavior is prohibited by employer on the basis of union affiliation or participation in union activities. Moreover workers are allowed to participate in union activities outside working hours.
No person can discriminate against an employee or a candidate for employment for exercising any right related to trade union membership, participation in trade union activities and leaving the trade union.
No person can require a current or prospective worker to become a member of union or give up trade union membership; prevent a current or prospective worker from exercising any right conferred under the Labour Relations Act; and dismiss or in any way prejudice a current or prospective worker because of past, present or anticipated trade union membership; for participation in the formation or the law full activities of a trade union; for exercising any right conferred under the Labour Relations Act or participating in proceedings specified under the Act or for failing or refusing to do something that an employee may not lawfully permit or require an employer to do.
No one can give advantage to a current or prospective worker for not exercising trade union rights however parties can always settle disputes by giving away some of their rights.
The Labour Relations Act 2007 allows for an employee who is above 16 years to join and participate in the activities of a trade union (however cannot become member of trade union executive under the age of 18 years). A voting member of a trade union must be one employed in the sector for which the trade union is registered and his/ her subscriptions must not be more than 13 weeks in arrears.
Source: §41 of the Constitution of Kenya 2010; §4-14 of the Labour Relation Act, 2007
Freedom of Collective Bargaining
In accordance with article 41 of the Constitution, every trade union, employers’ organisation and employer has
the right to engage in collective bargaining. According to the Labour Relations Act, collective agreement is a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers or organisation of employers.
Every trade union, employers' organisation and employer has the right to engage in collective bargaining. Labour Relations Act allows for collective bargaining in all enterprises.
In order to bargain collectively, employer must agree to the reasonable rules for bargaining and respond to proposals made by the union in a reasonable way. Employer must also provide reasonable resources and information to unions involved in collective bargaining. Persons involved in bargaining have to keep confidential the information provided by the employer.
A collective bargaining agreement must be written and signed by the chief executive officer of any employer, the chief executive or national secretary of an employers' organisation that is a party to the agreement or a representative designated by that person; and the general secretary of any trade union that is a party to the agreement or a representative designated by the general secretary. The agreement is registered with the industrial court and become effective from the date agreed upon by the parties. The terms of the collective agreement are incorporated into the contract of employment of every employee covered by the collective agreement. The term (duration) of a collective agreement is usually for a period of two years.
Source: § 41 of the Constitution of Kenya 2010, § 54-61 of the Labour Relation Act 2007
Right to Strike
Right to strike is recognized by constitution and is a fundamental worker right. Compulsory recourse to arbitration, long and complex conciliation and mediation procedures prior to strike actions generally restrict the right to strike. Strike is prohibited to the workers engaged in essential services.
Strike means the cessation of work by employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work for the purpose of compelling their employer or an employers’ organisation of which their employer is a member to accede to any demand in respect of a trade dispute.
Peaceful strike is allowed only after all the methods of dispute resolution fail. Members of union must inform the employer and the Ministry of Labour at least 7 days prior to the proposed date of strike. Strikers are not allowed to force other workers to participate in strike and they have the right to return to work without any punishment once the strike is over.
Workers are allowed to participate in protected/legal strike that complies with the provisions of the Act. An employer may not dismiss or take disciplinary action against a worker nor can civil proceedings be instituted against any person for participating in a protected strike or for any conduct in contemplation or furtherance of a protected strike.
Employer is not obliged to pay salaries to the workers on protected strike. Employers also have the right to lockout workers. This right is subject to the same rules and restrictions as the right to strike.
Source: §41 of the Constitution of Kenya 2010; §76-81 of the Labour Relation Act 2007
Regulations on Trade Unions
The Labour Institutions Act, No.12 of 2007