Summary of the Provisions of the Labour Relations Act, 2007 (Kenya)

In this article, I highlight Kenya’s Labour Relations Act provisions that stood out when I read it. This is mainly on labour relations, trade unions and employer federations, industrial action, and dispute resolution.

Introduction

It is cited as an Act of the Parliament of Kenya for the following purposes:

• Consolidating the law relating to trade unions,
• Providing for the registration, regulation, management and democratisation of trade unions, employer organisations and federations,
• Promoting sound labour relations through the protection and promotion of the freedom of association,
• The encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to sound justice and economic development.

Salient Provisions of the Act

S.4 – on employee’s right to freedom of association – to participate in the formation of trade unions, join and leave a union, participate in lawful activities and an appointment as an office bearer of a union.

S.5 protects employees or any person seeking employment from discrimination as a result of exercising their right to association.

S.6 on employer’s right to freedom of association; participate in joining a federation, joining an employers’ organisation. The employer shares the same rights to freedom of association as the employee.

S.7 of the Act protects the employer’s right to freedom of association from being violated. An employer must not be discriminated for exercising their rights as provided for by the Act.

S.8 spells out the rights of trade unions, employer’s organisations, and federations – they are free to determine their constitution that will govern their operations, and hold elections of its members and officials. They are free to participate in forming a federation of trade unions, join, affiliate with and participate in the affairs of any international workers organisation, including making financial contributions to such international organisations.

S.11 is about the “burden of proof” – It argues that if a party alleges that their right or protection conferred by the Act has been infringed, it is the duty of this party to prove these facts. Also, a party who is alleged to have engaged in that conduct (i.e. the conduct of infringing the rights of the other) shall be required by the law to prove that their conduct did not infringe any provisions of this Act.

Sections 12, 13, and 14 – provide for the establishment of a trade union and employer organisations through an application for registration to the registrar of such bodies.

The requirements for registering employer organisations are in S.15. These types of organisations are required to adopt a suitable constitution to run the organisation.

S. 16 and 17 – are specific requirements for registration of trade unions.

S. 18, 19 – procedures for the application for registration of trade unions.

S.20 is about the circumstances that can make an application for registration of a trade union or an employer federation to be refused by the registrar.

S.31; Officials of the trade unions shall be persons engaged in the sector for which the trade union or the employer organisation is registered. They will not be people who don’t work in that sector. Minors who are aged 16+ years can become members if they are employed (S.32), and officials of these trade unions and employer organisations will be selected through a recognised election process (S.34).

The trade unions are to be financed by their members through deductions of trade union dues from their compensations (salaries). Regular subscriptions are required to be paid to a trade union by a member of a trade union as a condition of membership.

S.57 explains the collective bargaining process and agreements. The Act also requires that a collective bargaining agreement be submitted in the industrial court for registration within 14 days of its conclusion. This is to be done by the employer, failure to which then the trade union can submit it (S.57).

S.62 to S.72 is about the dispute resolution process for employers, trade unions and employees. The dispute resolution procedures/process should be referred to the Cabinet Secretary in charge of labour matters in the country. This section of the act explains the procedures that are supposed to be followed.

Adjudication of disputes is discussed in S.73. This says that the disputes should be referred to the industrial court if a trade dispute has not been resolved through conciliation.

Strikes and lockouts are discussed in S.76. A protected strike or lockout is the one that follows the provisions of the act. A person can participate in a strike or a lockout if the dispute that forms the subject matter of the strike or lockout concerns terms and conditions of employment or the recognition of the trade union. However, they are required to issue a 7 (seven) days’ notice before its commencement.

Prohibited strikes and lockouts are discussed in S.78.

S.79 (3) provides that an employer may not dismiss or take disciplinary action against an employee for participating in a protected strike or for any conduct in contemplation of the furtherance of the protected strike (a strike that is compliant with the procedures of this Act).

However, an employer is not obligated to remunerate (pay) an employee for services that the employee does not render during the period of the protected strike or lockout. It is left for the employer to decide whether to remunerate or not.