The law provides for the right of workers, including those in export processing zones (EPZs), to form and join unions of their choice. Any seven or more workers in an enterprise have the right to form a union by registering with the trade union registrar. If the registrar denies registration, a union may appeal to the courts. The law does not explicitly prohibit members of the armed forces, police, prisons service, and the administration police from forming or joining unions.
The law permits workers in collective bargaining disputes to strike but requires the exhaustion of formal conciliation procedures and seven days’ notice to both the government and the employer. The law permits the government to deny workers the right to strike under certain conditions. For example, members of the military, police, prison guards, and the National Youth Service are prohibited from striking. Other civil servants are allowed to strike following the seven-day notice period. The Ministry of Labor, Social Security, and Services typically referred disputes to mediation, fact-finding, or binding arbitration at the industrial court, a body of up to 12 judges appointed by the JSC. During mediation any strike is illegal, thus removing legal prohibitions on employer retaliation against strikers. Additionally, a Ministry of Labor, Social Security, and Services referral of a dispute to the conciliation process nullifies the right to strike.
By law those who provide essential services, defined as “a service the interruption of which would probably endanger the life of a person or health of the population,” are not allowed to strike. Any trade dispute in a service that is listed as essential or is declared an essential service may be adjudicated by the industrial court.
The law provides the right of collective bargaining to every trade union, employer’s organization, and employer. Workers in the military, prisons, and National Youth Service, however, do not have this right. The law also provides that collective labor disputes must first undergo conciliation, although conciliation is not compulsory in individual employment matters. Security forces cannot bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, which negotiate wages and conditions that match the government’s minimum wage guidelines as well as advocate for better working conditions and representation in the industrial court. The law allows employers in some industries to dismiss workers regardless of the provisions of their collective bargaining agreements. The bill of rights in the constitution allows trade unions to undertake their activities without government interference, and the government generally respected this right.
The law prohibits antiunion discrimination and provides for reinstatement for workers dismissed for union activity. The industrial court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. All labor laws are intended to apply to all groups of workers. Due to human and material resource constraints, the government did not always effectively protect union rights.
The government continued to encourage a strengthened labor dispute system, but the decisions of the industrial court were not enforced consistently. Many employers did not comply with the court’s reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases employers successfully appealed the industrial court’s decisions to the High Court. The enforcement mechanisms of the industrial court remained weak, and its case backlog raised concerns regarding the efficacy of the court.
The industrial court continued to receive many cases arising from the implementation of new labor laws. The majority of cases were filed directly by the parties without referring them to the Ministry of Labor for conciliation. There were 1,858 cases filed with the industrial court during 2012, down from 2,240 in 2011. In 2012 the 12 judges of the industrial court announced a total of 653 awards and rulings, which included cases from previous years. The industrial court was established to provide for quick resolution of labor disputes, yet cases in the backlog dated to 2007.
The chief justice designated all courts presided over by magistrates, with the rank of senior resident magistrate and above, in the 47 newly established counties as special courts to hear and determine employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers noted that the ability of workers to bring cases to the industrial court throughout the country was a positive step.
The government generally respected freedom of association and the right to collective bargaining. The government expressed its support for union rights as mandated in the constitution. Worker organizations were independent of both the government and political parties. Civil servants were active members of worker organizations and exercised these rights. Workers in the essential services, such as police, often retaliated against employers, usually the government, through a “go slow” period and delayed services to display worker displeasure with salary and working conditions.
In 2012, 285 collective bargaining agreements were negotiated and registered by the industrial court. Employers, including the government, did not always honor the collective agreements.
Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers, commercial sex workers, and others who operated in private spaces were vulnerable to exclusion from legal protections. Domestic workers, although still a vulnerable group, received significant attention during the year. There was an increase in domestic worker rights protection projects by trade unions and civil society organizations advocating for the ratification of International Labor Organization (ILO) Convention 189. Many informal workers formed associations or unions that provide certain levels of worker protection and education, but these associations may not have bargaining power for collective bargaining agreements.
During the year NGOs and trade unionists continued to report a growing trend toward the elimination of permanent positions in favor of casual or contract labor, especially in EPZs, the Port of Mombasa, as well as in the agricultural and manufacturing sectors. In many cases the job was permanent, but an employer staffed it with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in this position for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, they were replaced by new trainees.
Some antiunion discrimination occurred in September 2012 when more than 100 nurses were dismissed at the Moi Teaching and Referral Hospital for participating in a strike.
In April the industrial court made a landmark ruling in favor of Robai Musinzi, a domestic worker, who sued for wrongful dismissal by her employer, Safdar Mohamed Khan. Musinzi, who had worked for Khan for more than four years under a verbal agreement, won KSh 174,397 ($2,015) after Khan summarily dismissed her. The industrial court judge justified this ruling by saying that under the Employment Act, “a verbal contract is a contract that can confer rights and can be enforced.” The judge ruled that the national minimum wage and other provisions of the employment law cover, thus effectively placing domestic workers under the protection of the law.
In late 2012 and during the year, parliamentarians proposed various increases to their severance packages and salaries that sparked protest from the public and civil society organizations. In February the Salaries and Remuneration Commission (SRC), the constitutionally mandated entity tasked to set public-sector salaries, announced a reduction in pay for parliamentarians, arguing that the public-sector wage bill of KSh 457 billion ($5.28 billion) was unsustainable as it consumed 30.2 percent of the country’s budget. The parliament sworn in after the March 4 elections, however, continued to push for a salary increase and threatened to “shut down the government” if they did not receive it. The government ultimately negotiated a settlement with parliamentarians. Immediately following this negotiated settlement, parliamentarians renewed a call for an amendment to allow them to set their own salaries. Many public-sector workers responded by embarking on a series of strikes.
On June 25, the Kenya National Union of Teachers (KNUT, with approximately 200,000 members) and the Kenya Union of Post-Primary Education Teachers (approximately 50,000 members) went on strike demanding payment of allowances the unions claimed were agreed in 1997. The strike followed inconclusive attempts by the government to negotiate with the unions, which complained that the budget presented to parliament by the National Treasury did not fund benefits, salary increases for newly promoted teachers, or hiring of up to 64,000 new teachers the unions claimed were needed to meet the government’s promise to provide free secondary education. The strike was peaceful, and police did not employ force to break up protests organized by the unions and the striking teachers. The government’s stance toward the primary school teachers resulted in school closures, firing of teachers, and threats that striking teachers would not be paid for time on strike. The prospect of striking teachers going without pay for three months after the government closed primary schools indefinitely prompted the end of the 23-day strike. Striking teachers and the government reached an agreement that the government would pay the teachers a commuter (transport) allowance and hire 10,000 new teachers.
At the height of the strike, union officials representing striking teachers defied a court order that termed their industrial action illegal. They risked being fined or jailed and asked the government to drop the case against them. It was the first time in the union’s history and in seven strikes since 1997 that it faced court action for refusing to call off a strike as part of a case filed by the Teachers’ Service Commission. KNUT’s top two officials were each fined KSh 500,000 ($5,780) and the union KSh five million ($57,800) for contempt of court over the strike. KNUT threatened to strike again in August if teachers were not paid their July salaries. President Kenyatta intervened and averted yet another teachers’ strike by agreeing to pay the teachers for the time they were on strike.
In July nurses at the Kenyatta National Hospital also abandoned work after accusing the management of reneging on a salary increment agreement reached in April. They vowed to stay away from the wards unless the government paid them their 46 per cent salary increase and 23 percent housing allowance. The government agreed to pay all outstanding allowances, thus averting a strike.
On September 2, the industrial court suspended a strike planned by more than 11,000 employees of the Nairobi county government to demand that the government implement a collective bargaining agreement signed in 2012.
The Ministry of Labor reported that in 2012 there were 17 strikes in the private sector, involving 4,694 employees and the loss of 51,588 man-hours. The majority of the strikes were on plantations, (relating to a delay in the conclusion and implementation of collective bargaining agreements), horticulture (due to poor terms and conditions of employment), and agriculture (due to a call for higher salaries).