The Manager wants to join a trade union
5 years ago
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: –
- persons who are formulating, administering, co-ordinating and/or controlling any aspects of the organization’s policy;
- staff who perform work of a confidential nature as shall be defined by a tripartite Committee;
- the Executive Chairman, Managing Director, General Manager (and his deputy) and functional Heads – that is, departmental Heads (and their deputies);
- the Branch Manager (and his deputy);
- persons in-charge of operations in an area (and their deputies);
- 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;
- Persons training for the above positions (including Under-studies);
- Personal Secretaries to persons under 1 above;
- Persons whose functional responsibilities are of a confidential nature as shall be agreed upon between the parties;
- 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.
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