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Hhhmmm…

The CBA negotiations have been concluded and there is word all over the office about how union members are getting better terms of employment as compared to those is management;

  • Union members are entitled to 29 days of annual leave whereas those in management are entitled to the statutory minimum of 21 days;
  • union members are entitled to 30 days of sick leave with full pay whereas those in management are entitled to 14 days on full pay.

It is quite clear that union members are benefitting from collective bargaining and Wanjira, the Head of Public Relations at the company, would like to join a union.

Mishka, The Head of Human Resources, informs Wanjira that those in management are not permitted to join the union. According to Mishka, the union serves the junior cadre staff who actually need collective bargaining to protect their interests. Wanjira is not satisfied with this response and she remains unrelenting in her desire to join the union.

What does the law say?

Article 41 of the Constitution protects the right of every worker to form, join or participate in activities and programmes of a trade union.

The Labour Relations Act, 2007 was passed to consolidate the law relating to trade unions. Section 4 of the Act provides that every employee has the right to form and join a trade union. Section 5 of the Act prohibits discrimination against any employee seeking to exercise any right conferred under the Act.

The Industrial Relations Charter is the baseline document for industrial relations in Kenya. It has even been referred to as ‘the cornerstone of industrial jurisprudence’.

The charter is defined in the Labour Relations Act, 2007 as a tripartite agreement between the Government, the most representative employers’ organization and the most representative employees’ organization for the regulation of labour and industrial relations in Kenya.

It is not mentioned anywhere else in the Act or in any of the other labour laws. It was first signed in 1962 by the Government of Kenya (represented by the Ministry of Labour), the Federation of Kenya Employers and the Central Organization of Trade Unions (then knowns as the Kenya Federation of Labour) and it was revised in 1984.

Under the Charter, the parties agreed that the following categories of staff would be excluded from union representation: –

  1. persons who are formulating, administering, co-ordinating and/or controlling any aspects of the organization’s policy;
  2. staff who perform work of a confidential nature as shall be defined by a tripartite Committee; 
  3. the Executive Chairman, Managing Director, General Manager (and his deputy) and functional Heads – that is, departmental Heads (and their deputies);
  4. the Branch Manager (and his deputy);
  5. persons in-charge of operations in an area (and their deputies);
  6. Persons having authority in their organisations to hire, transfer, appraise, suspend, promote, reward, discipline and handle grievances provided that such persons fall within the Industrial Charter Clause No. 11-1;
  7. Persons training for the above positions (including Under-studies);
  8. Personal Secretaries to persons under 1 above;
  9. Persons whose functional responsibilities are of a confidential nature as shall be agreed upon between the parties;
  10. Any other category of staff who may, in the case of any particular undertaking, be excluded from union representation by mutual agreement.

It is this provision that forms the basis for denying management staff the right to join the union that represents the rest of the employees in an organization.

Is this denial proper?

Trade unions represent the interests of workers whereas those in management are seen as the representatives of the Company. If someone in management joins the union that represents the rest of the employees in an organization, then there is a conflict of interest.

It is because of this perceived conflict that it has been held by the Employment and Labour Relations Court, that, …It would not be possible to negotiate collective agreements for example, if management staff sat on the same side with trade union leaders at the collective bargaining forum. The exercise of the right to belong to trade unions by management staff would stunt the right of collective bargaining. Restriction is therefore reasonable in a democratic society’.

The Court has been persuaded that such a limitation is permitted under Article 24 of the Constitution which permits the limitation of rights and fundamental freedoms to the extent that the limitation is reasonable and justifiable.

Article 24 is however clear that limitations should be expressly stated in legislation and, presently, there is no such limitation in the Labour Relations Act, 2007.

Anyhow, I agree that there is a conflict but I do not see that there is anything to stop those in management from setting up trade unions that cater purely for those in management.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. kennedy says:

    Can an employer be obligated to pay a management employee unionisable terms if he has previously done so?

    I was in the management and had previously enjoyed all the benefits in the cba like pay rise bargained for by the union, but on termination, the employer resorted to use the statutory mininum which is way less. I am also aware of other management staff who left before me and were paid using the cba terms.

    1. Anne Babu says:

      Thank you for your question. If an employer has by his conduct shown that the terms in the CBA apply to you, it would be in breach of contract not to apply the CBA on termination. The burden is however on you to produce evidence to prove that the terms in the CBA applied to your contract.

  2. Anne, thank you for the great work you do.
    I have a very difficult task dealing with CBA negotiation in our organization. The negotiation is on going and the management has been on this process. The current employment terms are also obsolete but the management doesn’t want to move on to new terms eg, no new employee has ever been paid passage and baggage allowance, no material is available for reference on the same. This is a constituent University College of a well established university whose CBA should be used in all the other constituent Colleges.
    As a union what is it that we need to do to ensure presence of all the documents is made? Kindly, shed light.

  3. Anne Babu says:

    Maurice, thank you for your question. Please clarify what you mean by ‘to ensure presence of all the documents is made’.

  4. Hi. Do you have a copy of the judgment you make reference to?

  5. Judy says:

    Hi Anne, I work as an office administrator but without a contract or any evidence of my employment therefore no job security. I would like to know whether it’s possible for me to join a union to protect my rights as a worker and if so which one? I hope it’s not too late to ask. Thank you in advance.

    1. Anne Babu says:

      I would advise you to go to any labour office (Nyayo House or NSSF), the labour officers can advise you on which union to join. The union will not have much clout if you are the only member in your work place. It would be best to recruit other workers to join as well. The risk is being victimized for joining the union and recruiting others and being seen as a trouble maker.