Articles

The Role of Trade Unions in Employment Disputes

Trade unions play a pivotal role in shaping Kenya’s labor landscape, advocating for workers’ rights, and resolving employment disputes. Governed primarily by the Labour Relations Act, 2007, trade unions in Kenya serve as critical intermediaries between employers and employees, ensuring fair treatment, equitable wages, and safe working conditions. This article explores the operations of trade unions under the Labour Relations Act, their role in collective bargaining, and their contributions to dispute resolution, highlighting their significance in fostering industrial harmony.

The Labour Relations Act, 2007 (LRA) is the cornerstone legislation regulating trade unions, collective bargaining, and industrial relations in Kenya. Enacted to align with the Constitution of Kenya, 2010, and international labor standards, the LRA provides a framework for the formation, registration, and operation of trade unions. It also safeguards workers’ rights to freedom of association and collective bargaining, as enshrined in Article 41 of the Constitution.

Formation and Registration of Trade Unions

Under the LRA, a trade union is defined as an association of employees whose principal purpose is to represent the interests of its members in employment matters. The Act outlines the process for forming and registering a trade union:

  • Section 12 requires a minimum of seven employees to form a trade union, ensuring grassroots representation.

  • Section 18 mandates registration with the Registrar of Trade Unions, who evaluates the union’s constitution, objectives, and compliance with the law.

  • Section 19 prohibits unregistered trade unions from operating, reinforcing regulatory oversight.

Once registered, trade unions gain legal recognition, enabling them to negotiate collective agreements, represent members in disputes, and engage in lawful industrial actions. The LRA also protects union members from victimization or discrimination for participating in union activities (Section 46).

Rights and Responsibilities

The LRA grants trade unions significant rights, including:

  • Recruiting members and representing them in employment matters (Section 4).

  • Negotiating collective bargaining agreements (CBAs) with employers (Section 57).

  • Organizing strikes or other industrial actions, subject to legal procedures (Sections 76–80).

However, these rights come with responsibilities. Trade unions must adhere to democratic principles, maintain transparent financial records, and comply with dispute resolution procedures outlined in the Act. Failure to comply may result in deregistration or legal sanctions.

Role of Trade Unions in Collective Bargaining

Collective bargaining is a cornerstone of trade union activity in Kenya, enabling workers to negotiate terms and conditions of employment collectively rather than individually. The LRA provides a structured framework for collective bargaining, ensuring that agreements are legally binding and mutually beneficial.

The Collective Bargaining Process

Under Section 57 of the LRA, trade unions with recognition agreements from employers can negotiate CBAs covering wages, working hours, leave entitlements, health and safety, and other employment terms. The process typically involves:

  1. Recognition Agreement: A trade union must secure a recognition agreement from an employer, confirming its authority to represent employees (Section 54). This requires the union to represent a simple majority of unionizable employees.

  2. Negotiation: The union and employer engage in good-faith negotiations, often guided by industry standards and economic conditions.

  3. Drafting the CBA: Successful negotiations result in a CBA, which must be submitted to the Employment and Labour Relations Court for registration (Section 60). Registration ensures the agreement is enforceable.

  4. Implementation and Monitoring: Both parties are bound by the CBA’s terms, and the union monitors compliance.

Impact of Collective Bargaining

CBAs negotiated by trade unions have significantly improved working conditions in Kenya. For example, unions like the Kenya National Union of Teachers (KNUT) and the Central Organization of Trade Unions (COTU) have secured better salaries, medical benefits, and job security for their members. Collective bargaining also promotes workplace equity by addressing gender disparities and advocating for marginalized groups.

However, challenges persist. Some employers resist recognition agreements, leading to prolonged disputes. Additionally, economic constraints, such as inflation and unemployment, can limit the scope of wage increases, straining negotiations. Despite these hurdles, collective bargaining remains a vital tool for advancing workers’ rights.

Trade Unions in Dispute Resolution

Employment disputes in Kenya, ranging from unfair dismissals to wage disagreements, are common in both unionized and non-unionized workplaces. Trade unions play a critical role in resolving these disputes, leveraging mechanisms outlined in the LRA and other labor laws.

Types of Disputes

The LRA distinguishes between two main types of disputes:

  • Disputes of Right: These involve violations of existing legal or contractual obligations, such as unpaid wages or wrongful termination. They are typically resolved through adjudication.

  • Disputes of Interest: These arise during negotiations over new terms, such as wage increases or improved benefits. They often require conciliation or industrial action.

Dispute Resolution Mechanisms

The LRA establishes a multi-tiered approach to dispute resolution, with trade unions actively participating at each stage:

  1. Internal Mechanisms:

    • Trade unions encourage members to resolve disputes internally through workplace grievance procedures, often stipulated in CBAs.

    • Union representatives mediate discussions between employees and management to reach amicable solutions.

  2. Conciliation:

    • If internal resolution fails, disputes are referred to a conciliator appointed by the Cabinet Secretary for Labour (Section 62).

    • Trade unions represent their members during conciliation, advocating for fair outcomes. Conciliation is non-binding but aims to facilitate agreement within 30 days.

  3. Adjudication:

    • Unresolved disputes are escalated to the Employment and Labour Relations Court (ELRC), established under Section 4 of the Employment and Labour Relations Court Act, 2011.

    • Trade unions provide legal representation or support to members, ensuring their rights are upheld. The ELRC has jurisdiction over disputes involving unfair dismissals, discrimination, and CBA violations.

  4. Industrial Action:

    • As a last resort, trade unions may organize strikes or lockouts to pressure employers (Section 76). However, the LRA imposes strict conditions, including:

      • A 7-day strike notice for non-essential services or 21 days for essential services.

      • Exhaustion of conciliation processes.

      • Approval by a majority of union members through a secret ballot.

    • Strikes must be peaceful and comply with the law to avoid penalties.

Case Studies

Trade unions have been instrumental in resolving high-profile disputes in Kenya:

  • 2017 Doctors’ Strike: The Kenya Medical Practitioners, Pharmacists, and Dentists Union (KMPDU) led a 100-day strike to demand the implementation of a 2013 CBA. Through conciliation and court intervention, the government agreed to improve doctors’ salaries and working conditions.

  • Teachers’ Strikes (2010s): KNUT has repeatedly mobilized teachers to demand better pay and staffing. These actions, often resolved through negotiation and government commitments, highlight unions’ ability to influence policy.

Challenges in Dispute Resolution

Despite their successes, trade unions face obstacles in dispute resolution:

  • Employer Resistance: Some employers delay or obstruct conciliation processes, prolonging disputes.

  • Limited Resources: Smaller unions may lack the financial or legal capacity to support members in court.

  • Government Interference: In essential services, government restrictions on strikes can limit unions’ leverage.

  • Internal Divisions: Leadership disputes within unions, such as those occasionally seen in COTU, can weaken their effectiveness.

Broader Impact of Trade Unions

Beyond collective bargaining and dispute resolution, trade unions contribute to Kenya’s socio-economic development by:

  • Advocating for Policy Reforms: Unions lobby for labor-friendly policies, such as minimum wage increases and occupational safety regulations.

  • Empowering Workers: Through education and training, unions equip members with knowledge of their rights and negotiation skills.

  • Promoting Social Dialogue: By fostering collaboration between employers, workers, and the government, unions contribute to industrial peace.

Conclusion

Trade unions in Kenya, operating under the Labour Relations Act, 2007, are indispensable in protecting workers’ rights and resolving employment disputes. Through collective bargaining, they secure better terms of employment, while their involvement in dispute resolution ensures fair outcomes. Despite challenges like employer resistance and resource constraints, unions remain a powerful force for workplace equity and industrial harmony. Strengthening their capacity through legal reforms, member education, and government support will further enhance their role in Kenya’s labor market, ensuring a just and productive workforce for the future.