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The Committee notes with satisfaction that the Constitution was formally adopted on 27 August 2010 and that it specifically recognizes to everyone the right to form, join or participate in the activities and programmes of trade unions or employers organizations, and for trade unions, employers and employers’ organization to engage in collective bargaining (section 41).

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that under section 10 of the Labour Relations Act (LRA) 2007, claims of infringement of employees’ rights, including claims of anti-union discrimination, must first be referred in writing to the minister to appoint a conciliator and, should conciliation fail to resolve the claim within 30 days (or a longer period, should both parties agree) from the appointment of the conciliator, section 73(1) provides that the claim may then be referred to the Industrial Court. The Committee had requested the Government to indicate the average time period for the adjudication of anti‑union discrimination cases by the Industrial Court. The Committee notes that the Government indicates in its report that the Industrial Court is an independent arm of Government that sets its own activities and programmes and that adjudication of disputes may depend on various dynamics including response of the parties, the number of cases filed and the complexity of the files. The Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 214). The Committee recalls the importance to ensure a short average time period for the adjudication of anti-union discrimination cases by the courts or through administrative proceedings and requests the Government to indicate the average time period of the proceedings in these cases.

Protection against acts of interference. In its previous comments, the Committee had noted that the LRA makes no specific provision for protection against acts of interference, either directly or indirectly. The Committee recalls that Article 2 of the Convention provides that workers’ and employers’ organizations shall enjoy adequate protection against act of interference by each other or each other’s agents or members in their establishment, functioning or administration. In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article. The Committee notes that according to the Government, Part 11 “Miscellaneous provisions” of the LRA confers protection against interference. Nonetheless, noting that the LRA does not contain either express provisions against acts of interference nor provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, the Committee requests the Government to take legislative measures to ensure the application in practice of Article 2 of the Convention.

Article 4. Trade union recognition for purpose of collective bargaining. In its previous comments, the Committee had noted that section 54(1) of the LRA requires an employer to recognize a trade union if the said trade union represents “a simple majority of unionizable employees”. Similarly, section 54(2) provides that employers’ federations shall recognize a trade union for the purposes of collective bargaining “if the trade union represents a simple majority of unionizable employees employed by the group of employers or the employers who are members of the employers’ organization within a sector”. The Committee had recalled, in this respect, that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining (see General Survey, op. cit., paragraph 241). The Committee had therefore requested the Government to ensure that section 54(1) and (2) of the LRA are applied in such a manner that, where no union covers more than 50 per cent of the workers, collective bargaining may still be possible for the unions failing to acquire this percentage. In this regard, the Committee notes with satisfaction that section 41(5) of the Constitution provides that “every trade union, employers’ organization and employer has the right to engage in collective bargaining”.

Article 6. Collective bargaining in the public sector. In its previous comments, the Committee had noted that section 61(1) of the LRA provides that the minister may, after consultations with the National Labour Board, make regulations establishing machinery for determining terms and conditions of employment for any category of employee in the public sector. The Committee had also noted that under section 61(3) of the LRA, the Minister may determine different terms and conditions for different categories of public employees. The Committee had recalled that all public servants, with the sole possible exception of those directly engaged in the administration of the State, should enjoy the right of collective bargaining. In these circumstances, the Committee had requested the Government to: (1) take legislative measures to ensure that employees of the Prison Department and the National Youth Service enjoy the right of collective bargaining; (2) indicate the categories of public employee, if any, for whom the minister has determined terms and conditions of employment under section 61(3) of the LRA; and (3) provide full information on the practical application of section 61(1), which provides for the establishment of collective bargaining machinery in the public sector.

The Committee notes with satisfaction that, as stated by the Government, the Constitution now explicitly recognizes the right to collective bargaining to everyone and therefore employees of the Prison Department and the National Youth Service may organize and collectively bargain accordingly. The Committee further notes that according to the Government, section 248(2)(h) of the Constitution provides for the establishment of the Salaries and Remuneration Commission in order to facilitate the harmonization of the terms and conditions of the employees in the public sector. However, no information was provided by the Government with regards to the application of section 61(3) of the LRA (which provides that the Minister may determine different terms and conditions for different categories of public employees). Considering the foregoing, the Committee requests the Government to : (1) indicate the categories of public employee, if any, for whom the minister has determined terms and conditions of employment under section 61(3) of the LRA; and (2) provide full information on the practical application of section 61(1) of the LRA, which provides for the establishment of collective bargaining machinery in the public sector and to inform of the appointment of the Salaries and Remuneration Commission as well as details about its composition and functioning, and to provide a copy of its Rules of procedures once adopted.

ITUC comments. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, indicating that interference in trade union activities and intimidation by employers are frequent, and that trade unionists often have difficulties obtaining meeting with their employers. The Committee requests the Government to provide its observations thereon.

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The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee takes note of the adoption of the Labour Relations Act (LRA) 2007. The Committee notes with interest that section 5 of the LRA prohibits acts of anti-union discrimination on the basis of trade union membership or activities, both during the recruitment period and the entire course of employment.

The Committee further notes that under section 10 claims of infringement of employees’ rights, including claims of anti-union discrimination, must first be referred in writing to the minister to appoint a conciliator and, should conciliation fail to resolve the claim within 30 days (or a longer period, should both parties agree) from the appointment of the conciliator, section 73(1) provides that the claim may then be referred to the Industrial Court. The Committee requests the Government to indicate the average time period for the adjudication of anti-union discrimination cases by the Industrial Court.

Protection against acts of interference. The Committee observes that the LRA makes no provision for protection against acts of interference, either directly or indirectly. Recalling that Governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 concerning acts of interference, the Committee requests the Government to take legislative measures so as to make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention.

Article 4. Trade union recognition for purposes of collective bargaining. The Committee notes that section 54(1) of the LRA requires an employer to recognize a trade union if the said trade union represents “a simple majority of unionizable employees”. Similarly, section 54(2) provides that employers’ federations shall recognize a trade union for the purposes of collective bargaining “if the trade union represents a simple majority of unionizable employees employed by the group of employers or the employers who are members of the employers’ organization within a sector”. The Committee recalls, in this respect, that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee therefore requests the Government to ensure that section 54(1) and (2) of the LRA are applied in such a manner that, where no union covers more than 50 per cent of the workers, collective bargaining may still be possible for the unions failing to acquire this percentage.

Collective bargaining in the public sector. The Committee had previously noted that the 14 May 2004 Memorandum of Understanding between the Government and the Union of Civil Servants concerning recognition, negotiating and grievance procedures for civil servants did not apply to employees of the Prison Department, the National Youth Service and teachers under the Teachers’ Service Commission, and had requested the Government to indicate whether those categories of employee enjoyed the right of collective bargaining under any legislative provisions. In this respect, the Committee notes that, according to the ITUC, those categories of employee were still denied the right of collective bargaining, although civil servants not involved in State administration are allowed to bargain collectively. The Committee also notes, however, the Government’s statement that it had signed a collective agreement with the Union of Civil Servants that entered into force in June 2008, and that negotiations with teachers were ongoing.

As concerns the LRA, the Committee observes that section 61(1) provides that the minister may, after consultations with the National Labour Board, make regulations establishing machinery for determining terms and conditions of employment for any category of employee in the public sector. The Committee also notes that under section 61(3) the minister may determine different terms and conditions for different categories of public employee. Recalling that all public servants, with the sole possible exception of those directly engaged in the administration of the State, should enjoy the right of collective bargaining, the Committee requests the Government to: (1) take legislative measures to ensure that employees of the Prison Department and the National Youth Service enjoy the right of collective bargaining; (2) indicate the categories of public employee, if any, for whom the minister has determined terms and conditions of employment under section 61(3) of the LRA; and (3) to provide full information on the practical application of section 61(1), which provides for the establishment of collective bargaining machinery in the public sector.

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The Committee requests the Government to provide precise details concerning the identity of the categories of workers described in the Memorandum of Understanding concluded on 14 May 2004 between the Government and the Union of Civil Servants as employees in job group “A-N”, job group “O-U”, and “directive and administrative staff”.

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The Committee notes the Government’s report and the Government’s reply to the 2005 and 2006 communications of the International Confederation of Free Trade Unions (ICFTU).

Articles 4 and 6 of the Convention. Collective bargaining in the public sector. The Committee had trusted that the Government would take the necessary measures to ensure that public employees (with the possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention, and in particular the right to collective bargaining. The Committee took note of the Memorandum of Understanding concluded on 14 May 2004 between the Government and the Union of Civil Servants concerning recognition, negotiating and grievance procedures for civil servants, and providing for collective bargaining machinery for negotiation of terms and conditions of employment. The Committee notes that, according to the Government’s report, the parties have negotiated and agreed in May 2006 on a salary increment which came into effect on 1 June 2006 and that the coverage of the memorandum was broadened to cover job groups A to N. The Committee had noted in its previous observation, however, that the memorandum does not apply to employees of the Prison Department, the National Youth Service and teachers under the Teachers’ Service Commission. The Committee notes that, according to the Government, these categories of worker are restricted from joining unions or collective bargaining for security reasons as they are disciplined forces; nevertheless, the terms and conditions of service for the National Youth Service are established by the Permanent Public Sector Remuneration Review Board. The Committee notes the comments of the ICFTU concerning the new Teachers’ Service Commission (TSC) regulations, introduced on 1 October 2005, prohibiting senior teaching staff (school principals, deputies, heads of department, senior researchers, advisory centre tutors and education programme officers) from playing an active part in the union, including collective bargaining. Recalling that all these categories, as employers or as employees, should enjoy the right of collective bargaining, the Committee requests again the Government to indicate if they can negotiate under other legislative provisions. The Committee requests the Government to reply to the ICFTU’s comments concerning the new TSC regulations. The Committee requests again the Government to keep it informed of any amendment to the legislation in relation to the right to collective bargaining of public employees covered by the Convention.

Workers in EPZs. The Committee notes the ICFTU’s comment that although workers in EPZs are allowed to join trade unions, they still suffer appalling conditions, and those who complain are threatened with dismissal. The Government, responding to the comments of the ICFTU, stated that there are restrictions for them in the existing legislation, and that its numerous information dissemination and awareness campaigns have helped to normalize the situation and that the labour inspectors continuously monitor the situation and take remedial measures when necessary. Recalling that the Convention must be applied in law and in practice in the EPZs, the Committee requests the Government to send information on the number of union and collective agreements in EPZs indicating the number of workers covered.

Review of labour laws. The Committee notes that the Government acknowledges the need to review its labour laws to ensure conformity with internationally accepted labour standards; a tripartite-based task force in 2001 reviewed all of the Kenyan labour laws, and draft bills have been submitted to the Attorney-General for necessary action; according to the Government, these draft bills take into account the eight core Conventions on fundamental principles and rights at work, but require cabinet and parliamentary approval before they become operational and measures have been taken to hasten the process. The Committee notes however that the ICFTU underlines that the revision of the Labour Code has progressed at a slow pace, as the Government claims that this cannot be finalized until the Constitution is ratified, and, as it has been rejected by Kenyan citizens, it is uncertain when the law will be passed. The Committee notes that the Government acknowledges that there have been delays and that measures have been taken to hasten the process. The Committee requests the Government to keep it informed of the adoption of the draft bills revising the entire Kenyan labour legislation and hopes that the future legislation will be in full conformity with the Convention.

The Committee notes that the ICFTU had raised the case of a trade unionist who was dismissed, after having convened a meeting to discuss overtime, on grounds of having incited the workers and used abusive language. The Committee notes that the Government states that, after the matter was brought to its attention, it launched an investigation which resulted in a reconciliation between the parties, which agreed to settle their dispute by payment of compensation.

The Committee is addressing a request on this matter directly to the Government.

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The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 31 August 2005 concerning the right to collective bargaining of the civil servants not engaged in the administration of the State and requests the Government to send its observations thereon.

The Committee will examine these comments as well as the questions raised in its 2004 direct request (see direct request 2004, 75th Session) under the regular reporting cycle in 2006.

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The Committee requests the Government to provide precise details concerning the identity of the categories of workers described in the Memorandum of Understanding concluded on 14 May 2004 between the Government and the Union of Civil Servants as employees in Job Group "A-L", Job Group "M-U", and "Directive and Administrative Staff".

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Articles 4 and 6 of the Convention. The Committee notes the Government’s report as well as the comments from the International Confederation of Free Trade Unions (ICFTU). The Committee had trusted that the Government would take the necessary measures to ensure that public employees (with the possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention, and in particular the right to collective bargaining. The Committee takes note of the Memorandum of Understanding concluded on 14 May 2004 between the Government and the Union of Civil Servants concerning recognition, negotiating and grievance procedures for civil servants. The Committee notes with interest that the Memorandum provides for collective bargaining machinery for negotiation of terms and conditions of employment. The Committee notes, however, that it does not apply to employees of the Prison Department, the National Youth Service and Teachers under the Teachers Service Commission. While recalling that these categories should enjoy the right of collective bargaining, the Committee requests the Government to indicate if they can negotiate under other legislative provisions. The Committee requests the Government to keep it informed of any amendment to the legislation in relation to the right to collective bargaining of public employees covered by the Convention.

The Committee is addressing a request on this matter directly to the Government.

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The Committee notes the report of the Government.

1. Registration of the Kenya Civil Servants’ Union. In its previous comments, the Committee requested the Government to register this trade union. In a communication of 7 May 2003, the Government indicates that it has, in fact, registered the Kenya Civil Servants’ Union on 10 December 2001. The Committee takes note of this information.

2. Right to collective bargaining of public employees. The Committee notes that the Government does not address this issue. It trusts that the Government will take the necessary measures to ensure that public employees (with the possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention, and in particular the right to collective bargaining. The Committee requests the Government to keep it informed of any developments in this respect.

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The Committee recalls that its previous comments concerned the following points.

1. Refusal of the right to bargain collectively to public servants not engaged in the administration of the State. The Committee once again requests the Government to take measures to amend its legislation in the near future and to grant the right of collective bargaining to the above category of public servants.

2. Registration of the Kenya Civil Servants’ Union. The Committee once again requests the Government to register this trade union.

The Committee requests the Government to keep it informed of any developments relating to the matters raised.

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The Committee notes the Government’s report.

1. Refusal of the right to bargain collectively to public employees not engaged in the administration of the State. The Committee notes that the Government indicates in its report that the legal framework necessary, as regards comments made by the Committee of Experts, is being reviewed with the task force appointed by the Government to review labour laws in May 2001, which is expected to complete its work by August 2002. The Committee urges the Government to ensure that the revised legislation is in full conformity with Articles 4 and 6 of the Convention and to ensure that public employees, with the sole exception of those engaged in the administration of the State, benefit from the guarantees laid down in the Convention, in particular the right to negotiate collectively their terms and conditions of employment. It requests the Government to keep it informed of any progress in this regard.

2. Registration of the Kenya Civil Servants’ Union. The Committee notes the Government’s indication that the ban imposed on the Kenya Civil Servants’ Union was lifted by the President, and that the Parliament has also voted for the reinstatement and operation of the union. The Government also indicates that the reinstatement of the union is now awaiting a decision by the cabinet, following the conclusion of discussions and consultations by the National Tripartite Labour Advisory Board. The Committee requests the Government to keep it informed of any progress in this regard and hopes that this question will be dealt with without delay.

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The Committee notes the Government's report.

Articles 4 and 6 of the Convention. Right to bargain collectively of public employees not engaged in the administration of the State and registration of the Kenya Civil Servants' Union. The Committee notes with regret the Government's statement that to date the Civil Servants' Union has not been registered and that therefore it finds it impossible to state who is entitled to membership in the union and in what activities they are permitted to participate. Given that the Convention was ratified 35 years ago, the Committee urges the Government to take measures to bring its legislation into full conformity with Articles 4 and 6 of the Convention to ensure that public employees, with the sole possible exception of those engaged in the administration of the State, benefit from the guarantees laid down in the Convention, in particular the right to negotiate collectively their terms and conditions of employment. The Committee requests the Government to indicate in its next report the specific measures it has taken in this regard.

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The Committee notes the information supplied in the Government's report.

Articles 4 and 6 of the Convention. In previous observations, the Committee had expressed the firm hope that, aside from the inquiry carried out by a tripartite committee established in 1992 to make recommendations regarding collective bargaining in the civil service, the Government would take the necessary measures to ensure that public employees (with the possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention, thereby being able to negotiate collectively their terms and conditions of employment, which presupposes the recognition of their right to establish and join organizations of their own choosing. The Committee notes the Government's indication in its most recent report that, on 8 July 1995, a motion was raised in Parliament urging the Government to register the Civil Servants' Union, pursuant to which the Government directed the Registrar of Trade Unions to register the Kenya Civil Servants' Union. The Committee requests the Government to indicate in its next report the representative nature of the Civil Servant's Union, who is entitled to membership in the union and in what activities the union and its members are permitted to participate.

Given that the Convention was ratified more than 30 years ago, the Committee also urges the Government to take measures to bring its legislation into full conformity with Articles 4 and 6 of the Convention to ensure that public employees, with the possible exception of those engaged in the administration of the State, benefit from the guarantees laid down in the Convention. The Committee requests the Government to indicate in its next report the measures it has taken or envisages in this regard.

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The Committee notes the information supplied by the Government in its report.

Articles 4 and 6 of the Convention. With regard to the question of the need to allow the establishment of a trade union to cater for the civil service on all issues relating to collective bargaining on terms and conditions of employment of this category of public employees, the Committee notes the Government's indication in its report that it is still examining the report submitted by a tripartite committee appointed to inquire into the question of the opportuneness to allow the establishment of a trade union for public officials to negotiate wages and terms and conditions of employment.

The Committee expresses the firm hope that, aside from the inquiry carried out by the above tripartite committee, the Government will take the necessary measures to ensure that public employees (with the sole possible exception of those engaged in the administration of the State) benefit from the guarantees laid down in the Convention and are therefore able to negotiate collectively their terms and conditions of employment, which presupposes the recognition of their right to establish and join organizations of their own choosing.

The Committee urges the Government to take measures in this respect without delay in order to bring its legislation into full conformity with Articles 4 and 6 of the Convention, and to provide information in this regard in its next report.

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The Committee notes the information supplied by the Government in its report as well as the conclusions of the Committee on Freedom of Association in Case No. 1792 (295th Report of the Committee, approved by the Governing Body at its 261st Session (November 1994)).

In its previous direct request, the Committee noted that the Government had appointed a tripartite committee to fully inquire into the question of the need for allowing the establishment of a trade union to cater to the civil service on all issues relating to collective bargaining on wages, terms and conditions of service, etc. The Government had indicated that that committee had drawn up an interim report with specific recommendations which would be sent to the ILO once the Government had taken a final decision.

The Government states that consultations are still taking place and that it has still not taken a final decision on the matter. The Committee requests the Government to keep it informed of any developments regarding this matter.

Furthermore, the Committee, like the Committee on Freedom of Association, would urge the Government to take the necessary steps to ensure the right of civil servants, not engaged in the administration of the State, to establish and join organizations of their own choosing for the promotion and defence of their occupational interests through voluntary collective bargaining.

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Following its previous comments on the right to organize and bargain collectively of the teachers, the Committee notes the Government's statement that all unionizable teachers have fairly elaborate machinery for fixing their terms and conditions of service (i.e. between their union and the Teachers Service Commission). Where the parties do not agree, an elaborate machinery exists for them to go to the Industrial Court for final arbitration. The Committee also notes the Industrial Court Award of January 1993, a copy of which has been communicated by the Government, between the Kenya National Union of Teachers and the State through the Teachers Service Commission, which calls on both parties and the Government to adopt a pragmatic approach which will be of benefit to the teachers and the nation as a whole.

The Committee further notes with interest that the Government has appointed a tripartite committee, by Notice 1654 of 8 May 1992, to fully inquire into the question of the need for allowing the establishment of a trade union to cater to the civil service on all issues relating to collective bargaining on wages, terms and conditions of service, etc. That committee has submitted an interim report with specific recommendations, which will be submitted to the ILO once the Government has taken a final decision.

The Committee asks the Government to keep it informed in its next report on any new developments in these matters.

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Referring to its previous direct request, whereby it asked the Government to indicate the measures that had been taken to give Kenyan teachers the right to organise and bargain collectively their terms and conditions of employment, the Committee notes that, while maintaining for the time being its previous position with regard to collective bargaining in the civil service and education, the Government will consult the relevant authorities and thereafter report again to the ILO. The Committee further notes that the Government appointed a new Civil Service Salaries Review Committee (in charge of regulating the terms and conditions of employment of public servants, including teachers) on which sits, inter alia, a representative of the teachers.

The Committee recalls that under Articles 4 and 6 of the Convention, Kenya should take measures to promote voluntary negotiation between the State as employer and the teachers, since this category of workers which, according to the Government's own figures, constitute the largest single group of unionised workers, should not be excluded from the scope of the Convention since they cannot be considered as public servants engaged in the administration of the State.

Accordingly, the Committee requests once more the Government to indicate in its next report the measures taken, after consultation with the authorities concerned, to give Kenyan teachers the right to organise and bargain collectively their terms and conditions of employment.

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With reference to its previous direct request, the Committee notes from the Government's report, that there are no collective agreements in the "public sector" since the Kenyan civil service is not unionised. It notes, however, that the terms and conditions of employment (wages and other terms and conditions of employment) of public servants, including teachers, are regulated by Civil Service Review Commissions or Committees).

The Committee takes due note of the fact that, according to available information, the representatives of the employees concerned sit on the Civil Service Review Committees.

The Committee points out, however, that although Article 6 of the Convention does not deal with the situation of public servants engaged in the administration of the State, this exclusion only concerns public servants in the strict sense of the term (in this connection, see paragraph 255 of the 1983 General Survey of the Committee of Experts on Freedom of Association and Collective Bargaining). As a consequence, teachers cannot be considered to be similar to public servants engaged in the administration of the State and must, therefore, enjoy the principle of free collective bargaining set out in Article 4 of the Convention.

The Committee therefore requests the Government to indicate in its next report the measures that have been taken to give Kenyan teachers the right to organise and bargain collectively their terms and conditions of employment.