COLLECTIVE BARGAINING

AGREEMENTS AND COLLECTIVE

BARGAINING

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

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.

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!!

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

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.

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.

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)

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?

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.

EFFECTS OF A COLLECTIVE AGREEMENT(SEC 59)

1. A C.A binds: a) The partiesb) Unionizable employees c) Employers party to the agreement2. 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

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

REGISTRATION OF COLLECTIVE AGREEMENTSECTION 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

It is then registered within 14 days after receiving

If rejected, the court has to issue the reasons to the parties affected

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.

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

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?

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.

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.

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.

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.

….

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.

Are collective bargaining agreements respected in Kenya? A case in public service strikes

history of teachers strikes in Kenya

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.

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

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.

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

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.

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

 

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.

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.

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).

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.

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.

IN CONCLUSIONWe 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.