Riara Law Students discuss the law on Collective bargaining Agreements,Trade relations

1. COLLECTIVE BARGAINING
AGREEMENTS AND
COLLECTIVE BARGAINING

2. WHAT ARE RECOGNITION AGREEMENTS
 A recognition agreement is defined twice in the
Labour Relation Act firstly in Part I of the
Interpretation Section of the Act as:
 An agreement in writing made between a trade
union and an employer, group of employers or
employers’ organization regulating the
recognition of the trade union as the
representative of the interests of unionizable
employees employed by the employer or by
members of an employers’ organization

3. ALSO………….
 A recognition Agreement according to
Section 54 (1)of the Labour Relations Act
may also be defined as an agreement that an
employer, including an employer in the public
sector, shall recognize a trade union for
purposes of collective bargaining if that trade
union represents the simple majority of
unionisable employees.

4. WHAT THEN IS IN COMMON WITH THE TWO
DEFINITIONS ?
 trade union and an employer or employers
organisation or employees
 recognize a trade union for purposes of
collective bargaining
 if that trade union represents the simple
majority of unionisable employees.
 However we can add in emphasis that such
an agreement has to be in WRITING!!

5. THEREFORE WHAT PROVISIONS CAN BE FOUND
IN SUCH AGREEMENTS ?
 Like any other agreements there are those
express terms of an agreement that binds both
party interests and such expressly stated terms
gain recognition in Section
 Section 54 (3) states that an employer , a group
of employers or an employer’s organization
referred to in subsection (2) and a trade union
shall conclude a written recognition agreement
recording the terms upon which the
employer or employers’ organization
recognises a trade union

6. SO THEN WHAT ARE THESE TERMS?
◦ Terms pertaining to the conditions under which the
employer recognizes a trade union. Section 54(3) (2)
 Terms that the employer recognizes the TU as the
representative
 Terms that specify how negotiations shall be
conducted, including the requirement that they be
conducted by both parties in good faith.
 Provisions that allow employees to take part in union
activities after working hours
 Provisions setting up a joint committee made up
employer and union representatives to negotiate
agreements.

7.  Procedure for addressing grievances and
discipline matters.
 Provisions granting a right of access to trade
unions: Under the section trade union
representatives are granted reasonable access
to the employer’s premises for the purpose of
recruiting members, holding meetings,
representing members of the trade unions in
dealings with the employer; and conducting
ballots in accordance with the constitution of the
trade union.

8. POINTERS TO NOTE
 Prior to the collective agreements a
recognition agreement must be provided for
that illustrates and provides for the previously
stated that , Recognition agreements form
the basis of collective bargaining; in that a
collective agreement cannot proceed without
the employer, group of employers or
organisation of employers recognizing a
trade union as the legitimate representative
of unionisable employees. Section 57(1)

9. What is meant by the term collective agreement? What
is the effect of such an agreement and how is it
registered? How is collective bargaining related to a
recognition agreement?

10. DEFINITION
 LRA defines a CA as a written agreement
concerning any terms and conditions of
employment made between a trade union and
an employer, group of employers or
organization of employers
 The Employment act defines a CA as
a registered agreement concerning any terms
and conditions of employment made in writing
between a trade union and an employer, group
of employers or employer’s organisation.

11. EFFECTS OF A COLLECTIVE AGREEMENT(SEC 59)
1. A C.A binds:
a) The parties
b) Unionizable employees
c) Employers party to the agreement
2. The CA shall be binding to the employers and
employees from the date of its commencement
even during resignation
3. Terms of the CA should be incorporated in the
employment contracts of all employees

12. 4. A CA should be in writing and signed by the
Chief executive office or national secretary
of the employers org. or a rep and the
general secretary of the trade union or a rep
5. A CA will then become enforceable and
implemented upon registration by the
Industrial court and will then become
effective from the agreed date

13. REGISTRATION OF COLLECTIVE AGREEMENT
SECTION 35 INDUSTRIAL COURT RULESAND
SECTION 60
 Carried out in the Industrial Court
 Copy of agreement submitted to the Court by
employer within 14 days after registration.
Trade union can also submit
 The court amends or registers it in its orignial
form. It may also be rejected in cases where
it does not comply with the Parent act (LRA)
or other conditions stated by the Minister in
charge of labour matter

14.  It is then registered within 14 days after
receiving
 If rejected, the court has to issue the reasons
to the parties affected

15. RELATIONSHIP BETWEEN A CA AND RA
 A recognition agreement is a document,
which defines the relationship between
employers and employee, and gives rights
and privileges to each party. The signing of
this document leads to Collective Bargaining
Agreements.

16.  What is the constitutional basis for collective
bargaining
 what does Section 61 of the Labour Relations Act
state as per the constitution.
 Can employees in the public sector be denied their
right to join a trade union and hence to, collective
bargaining by the Minister ? Is this constitutional

17.  Section 61 of the Labour Relations Act
discusses the position of the public
sector. Can employees in the public
sector be denied their right to join a
trade union and hence to, collective
bargaining by the Minister? Is this
constitutional?

18. CONSTITUTIONAL BASIS FOR COLLECTIVE
BARGAINING.
 The constitution of Kenya is the supreme law of the land,
therefore it provides extensive rights and privileges entitled to
employees, trade unions, organizations in terms of employers on
matters that are concerned with industrial relations.
 Under the Bill of Rights, article 41 on labour relations, provides
for the workers right to fair practices, fair remuneration;
reasonable working conditions and participation in the programs
of trade unions.
 It also provides for trade unions and employers to form and join
organizations, further to determine own administration programs
and activities and further to engage in collective bargaining.
 Thus article 41 (5) clearly states that- every trade union,
employers etc, has the right to engage in Collective bargaining.

19. CONTINUATION…
 Article 36 provides for right of freedom of
association such as right to form or join or
participate in the activities of an association
of any kind.
 Further more, article 37 provides for the right
to assemble, demonstrate, to picket and
present petitions to public authorities.

20. LABOUR RELATIONS ACT.
61.(1) The Minister may, after consultations with the
Board, make regulations establishing machinery for
determining terms and conditions of employment for any
category of employees in the public sector.
(2) The terms and conditions of employment determined
under subsection (1) shall have the same effect as a
collective agreement registered under this Part and may
be enforced as if it were a collective agreement.
(3) The Minister may –(a) determine different terms and
conditions for different categories of employees;
or(b) not exercise the powers under this section in
respect of a category of employees who are
represented by a trade union that is entitled to be
recognised in terms of this Part.

21. CONTINUED…
 According to the section stated above, it gives
the minister all the power to carry out certain
acts, however, the said section of the L.R.A
does go against the constitution.
 Article 41 (2) states that every worker has the
right to form, join or participate in the activities
and programmed of a trade union, and further
article 41 (5) states that every trade union,
employers organization and employer has the
right to engage in Collective bargaining.

22. ….
 As per the article stated in the constitution,
employees in the public sector cannot be denied to
join trade unions or to engage in collective bargaining.
 The Labour Relations Act, section 61, goes against
the constitution thus being unconstitutional.
 The constitution being the supreme law of the land,
must be followed and obeyed and anything that
contradicts it is null and void.

23. Are collective bargaining agreements
respected in Kenya? A case in public service
strikes
history of teachers strikes in Kenya

24. REVIEW OF PUBLIC SERVICE STRIKES THAT
HAVE OCCURRED LATELY IN KENYA
Teachers Strike: Teachers in Kenya have now
gone on strike more than 12 times since
independence.
Nurses strikes: Government has failed to
honor several Collective Bargaining
Agreements with the nurses which has
prompted the nurses to go on strike. For
example: the 2009 CBA which nurses went
on strike this year to push for its
implementation.

25. CONT..
 Lecturers strike: Lecturers of public
universities went on strike after the
government failed to honor a Collective
Bargaining Agreement of 2012.
 City Council Workers strike: they went on
strike demanding the implementation of a
collective bargaining agreement signed
between them and the Association of Local
Government Employers of 2012 which raised
their pay

26. CONT…
Doctors Strike: Doctors in Kenya this year
2015 embarked on an indefinite strike to
demand that the government spend more
money on health services.

27. HISTORY OF THE TEACHERS STRIKES
 First strike was in 1962, the issue was that the
teachers Union wanted one employer for all the
teachers in the country. The issue here remained
unresolved. This strike was also declared illegal.
 1966 was another strike which resulted in the
formation of the TSC as the one employer that
served teachers.
 1969 there was need for an escrow between the TSC
and KNUT and the Teachers Service Commission
Remuneration Committee was formed to cater for
both parties. The TSCRC drafted recommendations
which were rejected by the Ministry. This led to a
teachers strike and the Ministry accepted the
recommendations

28. CONT…
 1997: Here the teachers were demanding a
300% pay rise which was not granted.
 1998: they went on another strike due to the
above pay rise which was not granted.
 2002: they went on another strike demanding
the 300% payrise of 1997
 In January 2009 teachers wanted a sum of
19billion but went back to school after a promise
that only 17.3 billion was to be paid in phases
due to economic issues in the country.

29.  In 2011 the teachers went on strike on claims that they were
understaffed due to the introduction of free primary education.
 In 2013, the teachers once again went on strike demanding the
300% payrise. This strike was declared illegal by the Industrial
Court and teachers were ordered to go back to work and adopt a
conciliation process, the negotiations were to be convened by the
Cabinate Secretary for labour.
- Case on the strike called by Kenya Union Of Post Primary
Education Teachers (kuppet) on June 12 2013.
Teachers Service Commission v Kenya Union Of Post
Primary Education Teachers (Kuppet) & another [2013] eKLR

30.  Teachers strike in 2015:
Chronology of event of the 2015 Teachers Strike.
In November 2014:
 KNUT and the Government arrive at an agreement that
will see the teachers basic salary being increased by
60%
 Salaries and Remuneration Commission(SRC) declines
to approve the agreement between the Government and
KNUT.
 A call for industrial action is triggered due to SRC's move.
 KNUT is persuaded to go slow on the strike because a
teachers strike in November will interfere with KCPE and
KCSE exams.

31.  December 29, 2014: KNUT strike notice is
issued to TSC.
 In December 2014: Following the KNUT strike
notice, KUPPET(Kenya Union of Post Primary
Education) also issues a strike notice on this
day.
 January 2, 2015: The Teachers Service
Commission (TSC) being the overall employer
of teachers, invites KNUT and KUPPET for talks
over the looming teachers strike.

32. CONT…
 January 17-KUPPET announced suspension
of the two-week teachers strike to allow the
Industrial court to arbitrate the negotiations
with the Teachers Service Commission
(TSC).

33.  Industrial Court asked all parties involved in the
dispute – the Kenya National Union of Teachers
(KNUT), the Kenya Union of Post Primary
Teachers (KUPPET), the Salaries and
Remuneration Commission (SRC) and the
Teachers Service Commission (TSC) – to
submit proposals on the 300 per cent pay
increase that teachers are seeking.
 The two teachers’ unions, made at least 38
demands to the TSC, chief amongst them was a
basic pay increase.

34. CONT…
 The government said it cannot afford to
introduce a pay rise but offered to increase
allowances for housing, leave and local
travel.
 The unions refused, accusing the
government of hypocrisy.
 There was the introduction of a Job
evaluation where basic salaries for the
teachers would only be reviewed once a job
evaluation for all public sector employees
has been completed.

35. IN CONCLUSION
We see that it is evident that the Government
does not take seriously the Collective
Bargaining Agreements by the public sector
employees. Where they fulfill none or a few
of what the agreements state. This has led to
numerous and unending strikes by the
workers.