CMNT_TITLE

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kenya (RATIFICATION: 1964)

Other comments on C098

Observation

Direct Request

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The Committee takes note of the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017, referring to restrictions to collective bargaining processes in the health sector, as well as the observations of Education International and the Kenya National Union of Teachers, also received on 1 September 2017, alleging that the Salaries and Remuneration Commission (SRC) unduly interferes in negotiations in the education sector and that the Government does not comply with the law providing for the issuance of orders requiring the deduction of agency fees from non-unionized workers benefiting from a collective agreement. The Committee requests the Government to provide its comments in this respect.

Articles 1 and 3 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee requested the Government to indicate the average time period of proceedings in anti-union discrimination cases. The Committee notes that the Government states that the timeframe taken as a performance indicator for proceedings for the adjudication of anti-union discrimination cases by the courts is of 360 days, but that such target maximum duration is only met on 33 per cent of the cases. The Government notes that this inability to meet the 360-days target is due to a number of constraints, including the reliance on the action of the parties to move procedures, the absence of a statutory period set by law stipulating the duration within which the matters are to be determined and the fact that there are only 12 judges appointed to resolve the many cases filed in court. While taking note of the information provided by the Government on the duration of court proceedings, as well as the constraints faced, the Committee observes that in most cases the target duration set out by the Government is not met and considers that 360 days can be an excessively long duration for a procedure to ensure access to adequate remedies against acts of anti-union discrimination. Recalling once again the importance of effective and rapid procedures to ensure the application in practice of legal provisions prohibiting acts of anti-union discrimination, the Committee requests the Government to evaluate with the social partners the existing rules and procedures with a view to taking measures, including if necessary of a legislative nature, to improve the efficient handling of anti-union discrimination cases. The Committee requests the Government to provide information on the progress achieved in this respect and recalls that it may avail itself of the technical assistance of the Office.

Article 2. Protection against acts of interference. In its previous observation, the Committee welcomed the Government’s indication that its comments would be considered within the current review of the Labour Relations Act (LRA) 2007. The Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to provide information on progress in the review of the LRA. The Committee expects that the Government will ensure the existence of legislative provisions expressly prohibiting acts of interference contemplated in Article 2 and allowing for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference. The Committee recalls that the Government may avail itself of the technical assistance of the Office in this regard.

Articles 4 and 6. Collective bargaining in the public sector. In its previous observation, the Committee requested the Government to provide information on the establishment of collective bargaining machinery in the public sector pursuant to section 61(1) of the LRA, as well as a copy of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations 2013, indicating if any category of state and public officers does not fall within the mandate of the Commission. The Committee notes that the Government provided a copy of the Regulations and states that all state and public officers are subject to the mandate of the said Commission regarding the determination of remuneration and benefits. The Committee observes that, in accordance with such Regulations, before the commencement of any collective bargaining process the Commission advises the management of a public service on the fiscal sustainability of the proposal of the union – and that when the collective bargaining process is successful the management needs to confirm with the Commission the fiscal sustainability of the negotiated package before the signing of the agreement. Recalling that the obligation to promote collective bargaining set out in the Convention is applicable to public servants who are not engaged in the administration of the State, the Committee requests the Government to provide information on any collective bargaining machinery established for the public sector pursuant to section 61(1) of the LRA, or through any other means.

Right to collective bargaining in practice. The Committee requests the Government to provide statistics on the number of collective agreements concluded, specifying the sectors of activity concerned and the number of workers covered.