Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Other comments on C098

Observation

Direct Request

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The Committee had previously requested the Government to provide its comments on the observations of Education International (EI) and the Kenya National Union of Teachers (KNUT) which alleged that it does not comply with the law providing for the issuance of orders requiring the deduction of agency fees from non-unionized workers benefiting from a collective agreement. The Committee notes the Government’s indication that it has complied with section 49(1) of the Labour Relations Act (LRA) 2007, which mandates the Ministry of Labour to issue such orders, and that delays are normally occasioned by failure to fully comply with the conditions enumerated by this provision (have a registered collective agreement, provide a certificate of registration, and indicate the employees in respect of whom a deduction shall be made, the amount to be deducted and the account into which it shall be paid). Noting the diverging views expressed by the Government and the trade union organizations, the Committee trusts that the Government will ensure that the orders for the deduction of agency fees are issued whenever the conditions provided by section 49 (1) of the LRA are fully met by trade unions.

Articles 1 and 3 of the Convention. Protection against anti-union discrimination.In its previous comment, the Committee considered that the timeframe of 360 days taken as a performance indicator for the adjudication of anti-union discrimination cases by the courts, which was not met in most cases, was excessively long, and requested the Government to improve the efficient handling of anti-union discrimination cases. The Committee notes with interest the Government’s indication that the judiciary has put in place several measures to ensure that all cases are heard and decided expeditiously, including: (i) strategies to clear the backlog, such as service weeks, priority dates for cases that are five years old and above, an alternative dispute settlement mechanism and the sharing of reports with court users on reasons for adjournment; and (ii) the appointment of 10 new judges to the Employment and Labour Relations Court. Welcoming the adoption of the above-mentioned measures, the Committee requests the Government to provide information, in its next report, on their impact on the handling of anti-union discrimination cases in practice.

Article 2. Protection against acts of interference. The Committee previously welcomed the Government’s indication that its comments would be considered within the review of the LRA 2007. The Committee notes with regret that the Government, in its report, limits itself to stating that it does not interfere with workers’ and employers’ organizations or their agents or members in their establishment, functioning or administration, in accordance with Article 2 of the Convention. The Committee once again requests the Government to provide information on any progress made in the review of the LRA. It reiterates its expectation that the Government will ensure the existence of legislative provisions expressly prohibiting acts of interference contemplated in Article 2 and allowing for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference. The Committee reminds the Government that may avail itself of the technical assistance of the Office in this regard.

Articles 4 and 6. Collective bargaining in the public sector.In its previous comment, the Committee observed from the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations 2013 that before any collective bargaining process, public service entities receive advice from the Salaries and Remuneration Commission (SRC), which also needs to confirm the fiscal sustainability of the negotiated package before the signing of an agreement. The Committee takes note of the Government’s indication that the Kenya Union of Civil Servants (UKCS) negotiates on behalf of the civil servants with the Public Service Commission, while the SRC provides advisory services. The Committee requests the Government to inform on the composition and functioning of the Public Service Commission, as well as on the negotiations undertaken and any collective agreements concluded with the UKCS.

The Committee also requested the Government to provide its comments on the observations of EI and the KNUT alleging that the SRC unduly interferes in negotiations in the education sector. The Committee notes that the Government states that: (i) the SRC is an independent commission created under article 230 of the Constitution, whose mandate is to set and regularly review the remuneration and benefits of all public officers and advise the national and county governments in this regard; (ii) teachers are public officers whose remunerations and benefits are payable directly from public funds; (iii) trade unions in the education sector are free to negotiate for their members in consultation with the SRC for guidance; and (iv) the SRC does not interfere beyond the mandate provided by the Constitution. The Committee recalls that, according to the Convention, public servants not engaged in the administration of the State should be able to negotiate collectively their wage conditions (General Survey on the fundamental Conventions, 2012, paragraph 219). Noting that the Government indicates that, on the one hand, the mandate of the SRC allows it to set the remuneration of public officers and, on the other hand, trade unions are free to negotiate, the Committee requests the Government to provide further details on the role played by the SRC in practice with respect to the collective bargaining process and the determination of wage conditions in the education sector.

Other matters. Restrictions on collective bargaining in the health sector. The Committee previously requested the Government to provide its comments on observations of the International Trade Union Confederation (ITUC) referring to restrictions to collective bargaining processes in the health sector. The Committee notes that the Government denies the alleged restrictions and informs that several unions operate in the health sector, including the Kenya Medical Practitioners, Pharmacist and Dentist Union, the Kenya National Union of Nurses and the Kenya Union of Clinical Officers. It further notes the Government’s indication that the above-mentioned unions have signed recognition agreements at both national and county levels and have negotiated and registered collective bargaining agreements. The Committee requests the Government to provide further information on the manner in which the above-mentioned trade unions can bargain collectively, as well as copies of the collective agreements that were concluded by them.

Right to collective bargaining in practice.The Committee notes that the Government informs that in 2020 a total of 149 collective bargaining agreements were concluded in the agricultural, educational, commercial, industrial and hospitality sectors, among others, and registered by the industrial court. It further notes the Government’s indication that the data does not specify the number of workers covered but will include more parameters in the future. The Committee requests the Government to continue providing information on the number of collective agreements concluded in the country, including the sectors concerned and the number of workers covered by these agreements.