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What is a Trade Union?

Section 2 of the Labour Relations Act (LRA) defines a trade union (TU) as an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organization.

This definition is insufficient; regulation of the relations is just one of the functions of a TU, its main function being to protect the interests of its members.

Freedom of Association & The right to form & join a TU

The right to form and join a trade union is protected in the Constitution; Article 36(1) provides for the freedom of association and Article 41(2)(c) gives every worker the right to form, join or participate in the activities and programmes of a TU.

This right is however not absolute, this means that it can be limited and indeed such limitation is found in Article 24(1) of the Constitution by which the freedom to associate and the right to form and join a TU can be limited by legislation as long as the limitation is “…reasonable and justifiable in an open and democratic society…”.

How about KDF and the Police?KDF

By virtue of Article 24(5), the right of members of the Kenya Defence Forces and the National Police Service of association and to form and join a TU may be limited without any questions as to whether or not such limitation is reasonable and justifiable.

Section 3 of the LRA (which is the primary law on TU matters) provides that the Act shall not apply to any person employed in the armed forces or in any reserve force thereof or in the Kenya Police, the Administrative Police Force, the Kenya Prisons Service and the National Youth Service, or in any reserve force or service thereof. In other words, they cannot form or join a TU.

What do International Labour Standards say about this?

Before you quickly conclude that Kenyans are being too harsh on members of KDF and the police, please note that the position taken by Kenya is very much in line with international labour standards.

Kenya is a signatory to ILO Convention 98 – The Right to Organise & Collective Bargaining Convention – which gives member countries the right to determine the extent to which members of the armed forces and police shall enjoy the freedom of association and the right to form and join a TU.

As you have probably guessed, the police have challenged this. The Labour Court granted them this right in 2013 on an appeal from the decision of the Registrar of Trade Unions (Registrar) in which the Registrar declined to register their proposed TU. The decision of the Labour Court was appealed and in 2018 the Court of Appeal overturned the Labour Court’s decision and reiterated that the police are not permitted to form or join a TU.

THE REGISTRATION PROCESS 

Obtaining a provisional Certificate

The promoters of a TU are required to apply to the Registrar for the issuance of a provisional certificate.

Upon receiving the application, the Registrar is required to issue the certificate within thirty (30) days unless:-

  1. The application is defective; or
  2. The name of the proposed TU is the same as that of an existing one or is sufficiently similar, so as to mislead or cause confusion (in practice, the name search has to be approved before the application for the provisional certificate is made).

It is indicated on the certificate that:-h120andyvine3

  1. The promoters may undertake lawful activities in order to establish the TU (ie recruit members); and
  2. The application for the registration should be made within six (6) months of the issuance of the certificate.

Application for registration

The promoters are required to:-

  1. Apply using the prescribed forms;
  2. Adopt a Constitution which complies with the provisions of the LRA;
  3. Have an office and postal address within Kenya;
  4. Submit a resolution signed by at least 50 members confirming their desire to set up the union and the names of the people who have been elected as officials;
  5. Ensure that there is no other registered TU that is sufficiently representing the whole or a substantial proportion of the interests in respect of which the applicants seek registration;

Sufficient representation

Upon receiving the application, the Registrar is required to place a notice in the Gazette and in one national daily newspaper of wide circulation (at the cost of the promoters), to notify any registered TU which appears to represent the same interests as that of the applicants, of the receipt of the application and to invite them to submit, in writing, within a specified period, any objections to the registration.

The aim of this process is to avoid duplicity, that is, having several TUs representing workers in the same sector.

Denial of the right to form a TU on the basis that there is another TU which is sufficiently representing the interests of the workers that the applicants seek to register is against freedom of association and the right to form and join a TU. It is also, in my view, not a reasonable limitation to those two rights.

In my view, and I stand to be corrected, it’s like saying you cannot set up a sports club because there are already enough clubs out there or you cannot set up a religious association because there are enough of them out there.

According to many decisions of the supervisory bodies of the International Labour Organization (ILO), there should be no such impediments to setting up a TU.

The question of sufficient representation has come before our Labour Courts a number of times. From my research, most judges have declined registration in order to prevent a multiplicity of TUs.

Sectoral lines

TUs in Kenya are registered along sectoral lines, that is, they are set up to represent workers in a specific sector, for example, teaching, the medical profession, transport etc.Farm_in_Hainan_01

The Registrar may, however, register a TU consisting of persons working in more than one sector if the Registrar is satisfied that the TU’s Constitution contains suitable provisions to protect and promote the respective sectoral interests of the workers.

Issuance of a certificate of registration

After confirming that the promoters have met the requirements and consulting the National  Labour Board, the Registrar is required to register the TU.

Powers of the Registrar to decline registration 

The Registrar may refuse to register a TU if it fails to meet the requirements. Unfortunately, the applicants are not invited to make representations before the decline which is contrary to Article 47 of the Constitution and the Fair Administrative Actions Act (the right to be heard before adverse action is taken against you by a public body).

Right of Appeal

Any party who is dissatisfied with the Registrar’s decision may appeal to the Employment & Labour Relations Court within thirty (30) days of the decision.

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. She is a repository junkie and a lover of editing.

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Comments

  1. It’s nearly impossible to find well-informed people
    on this topic, however, you seem like you know what you’re talking
    about! Thanks

    1. Anne Babu says:

      Thanks. I represent unions and employers as well so I have first hand knowledge. More articles on the topic are coming.

  2. SUSAN MUTHONI MUNAI says:

    Good Afternoon

    Kindly help me join the union

    Regards
    Susan Muthoni Munai

    1. Anne Babu says:

      You need to establish whether there is a union that covers your sector of employment then join. Check the website for COTU.

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