The recent surge in strikes by various Kenyan worker cadres – teachers, doctors, nurses, and lecturers – highlights a central demand: the implementation of Collective Bargaining Agreements (CBAs). This has understandably increased public interest in Kenya regarding what a CBA is, its implications, and its significance for both employees and employers.
What is a Collective Bargaining Agreement (CBA)?
The right to collective bargaining is firmly rooted in Article 41 of the Constitution of Kenya, which guarantees fair labor practices, reasonable working conditions, the right to join trade unions, and the right to strike. Specifically, Article 41(4)(d) explicitly grants every trade union, employers’ organization, and employer the right to engage in collective bargaining.
The Labour Relations Act, 2007 (the Act) further clarifies this. Section 2 defines a “collective agreement” as a written agreement concerning employment terms and conditions made between a trade union and an employer, a group of employers, or an employers’ organization. A “recognition agreement,” on the other hand, is a written agreement between a trade union and an employer (or their organization) that formally recognizes the trade union as the representative of the unionizable employees’ interests.
Typically, the process begins with the employer and the trade union entering into a recognition agreement, as mandated by Section 54(3) of the Act. This written agreement outlines the terms under which the employer acknowledges the trade union as the legitimate representative of the workers. Following this, the employer and the trade union can negotiate and finalize a CBA, which details the specific terms and conditions of employment for the represented employees.
In simple terms, the recognition agreement sets the stage for collective bargaining, while the CBA is the resulting agreement that covers crucial aspects of employment, such as working hours, salary scales and increments, promotion procedures, and termination processes, including redundancy.
Legal Effect and Enforceability of a CBA:
Section 59(5) of the Act clearly states that a CBA becomes legally binding and must be implemented upon registration by the Employment and Labour Relations Court (ELRC). The effective date of the CBA is determined by the agreement between the negotiating parties. This requirement of registration was a central point of contention during the 2016/2017 doctors’ strike, where the government argued that an unregistered CBA was unenforceable.
Once signed and registered, a CBA becomes binding on all parties involved for the duration of the agreement. Furthermore, Section 59(3) of the Act stipulates that the terms of the CBA are automatically incorporated into the individual employment contracts of the covered employees.
The significance of this was evident in the recent doctors’ and nurses’ strikes, where unions argued for the implementation of promotions and allowances based on existing CBAs, asserting that these were integral parts of the employees’ contractual terms.
Applicability and Relevance in the Kenyan Context:
In today’s dynamic economic landscape, many Kenyan companies, both public and private, are undergoing restructuring and facing financial constraints, leading to increased instances of redundancy.
A significant challenge for these organizations during redundancy processes is ensuring compliance with the procedures outlined in the relevant CBAs. Often, employers overlook crucial aspects such as providing the union with adequate notice (typically at least one month) before implementing redundancies and the obligation to compensate employees based on their years of service, as stipulated in the CBA.
Consequently, affected employees frequently resort to legal action, either individually or through their unions, and the ELRC has consistently upheld the binding nature of CBA terms, compelling employers to implement them.
Key Court Decisions Highlighting CBA Enforceability:
Several ELRC decisions underscore the legal weight of CBAs in Kenya:
- Kenya Plantation & Agriculture Workers Union v Coffee Research Foundation (2014) eKLR: The court ruled in favor of the union, ordering the Coffee Research Foundation to implement a CBA that included wage increments and redundancy benefits for its security guards, who had been unfairly terminated without these benefits. The court found the employer had discriminated against the employees by ignoring the CBA.
- Kenya Union of Commercial Food and Allied Workers v Kenya National Library Service (2016) eKLR: Despite the Kenya National Library Service claiming a lack of funds from the National Treasury to fully implement a registered CBA (which included new salaries, allowances, and arrears), the ELRC ruled in favor of the union. The court stated that once a CBA is registered, it is binding and enforceable, and the employer’s inability to pay due to a third party’s actions did not absolve them of their obligation. The court ordered specific performance of the CBA terms.
These cases firmly establish the precedent that there are no shortcuts when it comes to implementing registered CBAs in Kenya.
The Way Forward for Effective Collective Bargaining:
It is crucial for all entities in Kenya, both public and private, to recognize that collective bargaining is a constitutionally protected right that cannot be disregarded. All parties must approach CBA negotiations with diligence and a clear understanding of the commitments they are making. Seeking legal counsel to interpret complex or unclear terms before agreeing to them is highly advisable.
Employers must carefully consider the long-term financial implications of CBAs before negotiation and execution, as blaming a third party for non-compliance is not a valid defense. Similarly, unions must ensure they follow all necessary legal procedures to guarantee that a CBA is legally sound and enforceable, preventing setbacks during implementation efforts.
Ultimately, a proactive and informed approach to collective bargaining, respecting the legal framework and the rights of all parties, is the most effective way to foster fair labor practices and avoid costly disputes in Kenya.