INSTITUTE OF HUMAN RESOURCE MANAGEMENT · Promote sound labour relations through protection and...

INSTITUTE OF HUMAN

RESOURCE MANAGEMENT

Labour Relations Act, 2007

CONTENT.

Part 1 : - Preliminary

Part 2 : - Freedom of Association

Part 3 : - Establishment and Registration of Trade Unions and Employer’s

Organizations

Part 4 : - Officials and Members of Trade Unions

and Employers’ Organizations

Part 5: - Property, Funds and Accounts of Trade

Unions, Employers’ Organizations and

Federations.

CONTENT.

Part 6: - Trade Unions Dues, Agency Fees and

Employers’ Organization Fees

Part 7: - Recognition of Trade Unions and

Collective Agreements

Part 8: - Dispute Resolution

Part 9: - Adjudication of Disputes

Part 10: - Strikes and Lockouts

Part 11: - Miscellaneous Provisions

OBJECTS

To consolidated Trade union and trade dispute

law.

Provide for registration, management and

democratization, of trade unions and employers’

organization or federation.

Promote sound labour relations through protection

and promotion of freedom of association, effective

collective bargaining.

promote orderly and expeditious settlement of

dispute.

Definitions.

AUTHORIZED REPRESENTATIVE

The General Secretary of a trade union.

An employer or the chief executive officer of an employer.

The secretary of a group of employer

CEO or secretary of employers organization

Any person appointed by an authorized representative.

Definitions.

COMMITTEE OF INQUIRY

Committee of inquiry appointed by the Minister to

inquire into any matter relevant to a trade dispute.

CONCILIATION

The act or process of conciliation.

FUNDS OF TRADE UNION

All funds received for and on behalf a trade union except

provident funds dues

INDUSTRIAL RELATIONS CHARTER

Tripartite agreement between Government ,most representative

employers organization and most representative employees

organization to regulate labour and industrial relation.

Definition

LOCK- OUT

Closing of place of employment, work suspension or

employer refusal to continue to employ any number of

employees for –

purposes of compelling an employee to accept any demand in

respect of trade dispute ;and

Not to finally terminate employment.

PROCEDURAL AGREEMENT.

Any agreement setting out a dispute resolution

procedure

DEFINITION

RECOGNITION AGREEMENT.

Agreement in writing between a trade union and an

employer ,group of employers or employers organization

for purposes of regulating the recognition of trade union

for representing interest of unionisable employees

STRIKE

Cessation of work by employees acting in combination or

a concerted refusal or refusal under common

understanding of employees to continue to work for the

purpose of compelling their employer or employer

organization to accede to any demand in respect of trade

dispute.

Definition

TRADE DISPUTE

A dispute or difference or an apprehended dispute or

difference between employer(s) and employees,

employer(s) and trade union concerning any employment

matter, including dismissals, suspension or redundancy,

allocation of work or recognition of trade union.

UNIONISABLE EMPLOYEE

Employee eligible for membership to a respective union

Other definitions

Award

Board

Collective agreement

Contract of service

Contract of apprenticeship and learner ship.

Employers’ organization

Employment matter

Executive director

Executive board

Federation

General – Secretary

Group of Employer

PART 1.2: APPLICATION

Exclusion form application of the Act (S.3)

Armed forces

Kenya Police

Administrative Police Force

Kenya Prison Service

National Youth Service

Reserve Force or Service thereof

PART 2: FREEDOM OF ASSOCIATION

Every employee has a right to:

• Participate in forming a trade union or federation of trade

unions.

• Join a trade union.

• Participate in a trade union’s lawful activities.

• Participate in the election of any of its office

bearers or officials.

• Stand for election or seek for appointment as an

office bearer or official and hold office.

PART 2.2: PROTECTION OF EMPLOYEES

Employees protected from discrimination as

result of exercising rights conferred in the Act

(S.5) as:-

Becoming a member of the union.

Anticipated trade union membership or

participating in trade union activities.

PART 2.3: EMPLOYER’S RIGHTS

Every employer has a right to:-

Participate in forming an employers’ organization

or a federation of employers’ organization.

Join an employer’s organization or a federation of

employers’ organizations.

Participate in the organisation’s lawful activities.

Participate in the election of any of its office

bearers or officials.

Stand for election or seek for appointment as an

officer bearer or official

Hold office (s.6)

PART 2.4: PROTECTION OF

EMPLOYER’S RIGHTS.

Every employer is protected from discrimination

as result of exercising rights conferred in the Act

(s.7) as:-

Participating in activities of employer

organization,

Or forming such organisation

PART 2.5: RIGHTS OF TRADE UNIONS AND

EMPLOYER’S ORGANIZATIONS

Every trade union, employers’ organisation or

federation has a right to:

Determine its own constitutions and rules

Hold elections to elect its officers

Plan and organize its administration and lawful activities

Participate in the forming of a federation of trade unions or

a federation of employers’ organizations

Join a federation of trade unions or a federation of

employers organizations

Participate in the organisation’s lawful activities

PART 2.5: RIGHTS OF TRADE UNIONS

AND EMPLOYERS ORGANISATION

Affiliate with, and participate in the affairs of

any international workers organization or

international employers organization

Contribute and to receive financial assistance

from those organizations (S.8)

No contract of employment of collective

bargaining may vary or limit the provisions

of the act (S.9)

PART 2.6: PROVISION NOT VARIED BY

AGREEMENT.

Any dispute arising from this Part may be

referred (in writing):

To the minister to appoint a conciliator.

And to the Industrial Court for adjudication (s.10)]

- Burden of proof on both the party making

allegation and party accused of breach (s.11)

PART 3: ESTABLISHMENT AND REGISTRATION OF

TRADE UNIONS AND EMPLOYERS’ ORGANIZATIONS

Prohibition of recruitment of members into a

trade union or employers’ organization without a

certificate from the Registrar

Registrar obliged to issue the certificate

within thirty days on receipt of application

signed by two promoters unless application

is defective or name of proposed union is

misleading.

PART 3.1: ESTABLISHMENT OF TRADE

UNION OR EMPLOYER’S ORGANIZATION

Certificate may not be issued if:

The application is defective

The name of the proposed trade union or employers’

organization

Is the same as that of an existing trade union or

employers’ organization or

Is sufficiently similar so as to mislead or cause

confusion

PART 3.2: REGISTRATION OF TRADE UNIONS

AND EMPLOYERS’ ORGANIZATIONS

• Registrar has power to withdraw a certificate

where he has reason to believe that:

– Certificate was obtained by fraud, misrepresentation or as

a result of a mistake

– Any person has undertaken an unlawful activity on behalf

of the proposed trade union or employers’ organizations

(s.12)

Application for registration must be made within 6 months

of the date of issue of certificate.

Registrar’s refusal of the application for registration to be

communicated in Form D set out in the Second Schedule

PART 3.3: REQUIREMENTS FOR

REGISTRATION OF TRADE UNION.

Requirements for registration of a trade union

Application

Adoption of an appropriate constitution

Have an office and postal address in Kenya

If the applicants fail to meet the requirements set out in

the Act the registrar is allowed to refuse the application

for registration and must provide reasons for that refusal.

No other union or association of trade unions is already

registered which is sufficiently representative

Only members in a sector specified in the constitution

qualify

The name of the trade union is not the same or

sufficiently similar to another one

PART 3.3: ESTABLISHMENT AND REGISTRATION OF


The decision to register was made at a meeting attended by

at least 50 members

The trade union is independent from control of employers

The trade union’s sole purpose is to pursue activities of a

trade union and members are from one sector (s.14)

Provided the register shall notify all concerned through a

gazette and one daily national newspaper and invite

objections.

Requirements for registration as an employer’s organization

(s.15), federation of trade unions (S.16) and a federation of

employers. (S.17) are similar, mutatis mutandis



• Registration of branches through application in

form F (S.25).

• Applications for amalgamation after a secret

ballot of at least fifty percent entitled to vote have

voted and those in favour exceed by twenty

percent (s.26) and change of name are in

prescribed forms(S.27).

Application for registration in prescribed form

A (S.19)

Refusal and information to applicant form D

(S.20)



Consequences of registration

• A body corporate

• Perpetual succession

• Common seal

• Capacity to sue and be sued its own name

• Capacity to enter into contracts

• Capacity to hold, purchase, or otherwise acquire and dispose of

movable and immovable property (s.21)

• Objects in restraint of trade not unlawful (s.22)

• Consequences of failure to register (s.23)

• Requirement for a registered office, physical office and postal address (s.24)

• No trade union or employer organisation shall operate without a registered

physical office



• Cancellation or suspension of registration if trade union is :

– Dissolved

– Ceased to exist

– Registration as a result of fraud, misrepresentation or mistake

– Operating in contravention of the Act

– Being used for an unlawful purpose

– Failure to conduct elections

– Is not independent

Dissolution to be notified to the Registrar in Form O in the Second

Schedules within 14 days of resolution to dissolve (s.29)

Application for dissolution to be signed by seven members of trade

union or three members of employer organisation.

Right to appeal to the Industrial Court within 30 days.

PART 4: OFFICIALS AND MEMBERS OF TRADE UNIONS AND

EMPLOYERS’ ORGANIZATIONS

Must be persons who are, or have been, engaged or

employed in the relevant sector, except the general secretary,

chief executive or association secretary

No person to be an official of more than one organization

However a person may be an official of more than one

employer organization

Must not be a person convicted of a criminal offence involving

fraud or dishonesty (S.31)

Minors who have not attained eighteen years and appears to

be above the apparent age of sixteen years may be a member

(S.32)

PART 4.1: OFFICIALS AND MEMBERS OF TRADE

UNIONS AND EMPLOYERS’ ORGANIZATIONS

Voting members must:

Be employed in the sector

In case of employers’ organisation, have a

physical address or an office in Kenya

Not have their subscriptions more than thirteen

weeks in arrears (s.233)

Elections of officials

To be in line with registered constitutions

Notified to, and officials registered by, the Registrar

(s.34, 35)

PART 5: PROPERTY, FUNDS AND ACCOUNTS OF

TRADE UNIONS, EMPLOYERS’ ORGANIZATIONS

AND FEDERATIONS

Constitution of trade union or employer

organisation to provide for:

Appointment or election of trustees

At least three trustees at all times

All property vested in trustees

Use of funds

Payment of salaries, allowances and expenses of

officials

Administration

PART 5.2: PROPERTY, FUNDS AND ACCOUNTS OF

TRADE UNIONS, EMPLOYERS’ ORGANIZATIONS AND

FEDERATIONS

Prosecution or defence of any legal

proceedings

Conduct of trade disputes

Payment to members and beneficiaries

As the Minister may allow

Injunction to restrain misuse of funds may

be granted by the Industrial Court on

application by the Registrar or five or more

people having sufficient interest (S.41)

PART 5.3: PROPERTY, FUNDS AND ACCOUNTS OF

TRADE UNIONS, EMPLOYERS’ ORGANIZATIONS AND

FEDERATIONS

Annual statement to Registrar of all receipts and

expenditure during the year

Registrar’s power to require detailed accounts

Industrial Court’s power to order production and

suspend officials who contravene

PART 6: TRADE UNIONS DUES, AGENCY FEES

AND EMPLOYERS’ ORGANIZATION FEES

• Trade union dues means regular subscriptions

paid to union for membership.

• Trade union may request the Minister to issue an

order for deduction and remission of dues to it

by an employer of more than 5 employees

belonging to the union.(s.48).

• Monies deducted must be paid in specified

account of the union and to a federation of trade

union where applicable

6.1 DEDUCTION OF UNION DUES

Employer must deduct the dues as ordered by the minister within 30 days of

service by union in form s.

The minister’s order takes effect the month following month notice is served

on employer.

Employer not to deduct dues from employee who has resigned in writing.

Stop and advise the union.

Trade union may request the Minister to issue an order for deduction agency

fee from wages of unionisable non-members covered by the CBA. S.49)

Request must be made in writing signed by authorized representatives of

trade union and employer.

Have a list prepared by employer of all affected employees to whom

deduction is to be made.

6.2 .DEDUCTION OF AGENCY FEES

Must specify the account and amount not exceeding

applicable trade union dues.

Employer on receipt of the order from the Minister to

commence deduction within 30 days.

A trade union member who resigns from the union is

immediately liable for deduction of agency fees. Agency is

payable retrospectively if CBA is back dated.

Payment into trade union’s account within 10 days of

deduction.

Minister has power to cancel or suspend a notice issued for

purposes of deduction

PART 6.3: GENERAL PROVISIONS

APPLICABLE TO DEDUCTIONS

Employee may not recover from employer money deducted

as dues. s 50(3).

Employer allowed to recover any a mount over paid in to

trade union account.

No any other deduction may be made from an employees

wages other than as provided in the Act.

Union to acknowledge payment in to account within 14

days.

Union members may however make direct payment to the

union of the dues , levies, subscriptions or other payments.

PART 7: RECOGNITION OF TRADE

UNIONS AND COLLECTIVE AGREEMENTS

Employer(s) to recognize a trade union if it represents a

simple majority of his unionisable employees for purpose

of Collective bargaining. 54(1).

employers group or employer organisation to recognise

Trade Union if it has recruited a simple majority of

employees employed by the group or association

members.54(2)

7.1 RECOGNITION OF TRADE

UNION BY EMPLOYER.

Model recognition agreement may be issued by Minister.

Employer , group of employers’ or employers association

may apply to board to terminate recognition agreement.

Recognition disputes to be referred for conciliation and

thereafter to Industrial Court (S.54) Recognition agreement to

provide for election of workplace trade union representatives.

The role of workplace elected union representatives is to

represent members in grievance and disciplinary hearing and

other functions specified by the recognition.

PART 7.3: TRADE UNIONS ACCESS TO EMPLOYER’S

PREMISES.

Recognition agreement to provide for employer to grant

reasonable access to his premises for lawful purposes.

Lawful activities may include recruitment, holding

meeting with members outside working hours , represent

members, balloting

Employer may :

impose restriction on the time and place for such access to

avoid work disruption and in the interest of safety.

Require union officials to proof their identity and

credentials.

Any dispute on access to be reported to industrial court.

7.4 COLLECTIVE AGREEMENTS

Employer, group of employers or employer organization to

conclude CBA with recognized trade union.

An employer to disclose relevant information for purposes of

negotiations.

Information disclosed to be treated as confidential.

• Employer not to disclose:

legally privileged information.

information prohibited by the law.

Information that may cause substantial harm.

Information that is private personal unless he consents

7.4 COLLECTIVE AGREEMENTS. CONT

Dispute on discloser to be reported for conciliation and may

be determine by the industrial court.

The right to access to information may be withdrew by the

court on breach of confidentiality.

CBA to bind –

Parties to the agreement.

Unionisable employees employed by employer, group of

employers or association.

Employer who become member of an employer

organization

7.6 EFFECT OF COLLECTIVE BARGAINING

CBA to bind both employees.

and employer who were party to the agreement at

its commencement including those who have

resigned from the union or employer

group/association

Terms of the CBA to be incorporated in contracts of

employment.

Must be signed by CEO .

Effective up on registration

PART 7.7: REGISTRATION OF

COLLECTIVE AGREEMENTS

Registration of collective agreements by the

Industrial Court (within 14 days).

To be submitted for registration by employer or

trade union if the employer fails.

Industrial court to register only if CBA comply

with the law guidelines and after parties make

submission.

PART 8: DISPUTE RESOLUTION

Reporting of trade dispute by or on behalf of a

trade union or employers’ organization to

Minister on prescribed form.

Party reporting must serve a copy to the other

and any person having direct interest by

registered mail or hand delivery. (s.62).

Trade dispute concerning a dismissal or

termination to be reported within 90 days.

Reporting dispute does not prevent employer

declaring redundancy at the end of notice.

Minister to appoint a conciliator within 21 days.

PART 8.1: REPORTING OF TRADE

DISPUTE TO MINISTER.

Every party to a dispute to file replying statement

in a prescribed form within 14 days to the

Minister.

Failure to file shall not affect validity of the

referral.

If minister refuses to appoint a conciliator he

shall give reasons to the parties.

Aggrieved may appeal .

PART 8.2: CONCILIATOR’S POWERS TO

RESOLVE DISPUTE.

Conciliator shall be a public officer

Person appointed from a panel of conciliator after

consultation with the NLB.

Person from conciliation and mediation commission.

The conciliation must be concluded within 30 days.

Conciliator to mediate between the parties, conduct fact-

finding missions and make recommendations or proposals

to parties for settlement.

May summon anyone to appear in person, present

documents or items and minister to pay prescribed witness

fees.

PART 8.3: DISPUTE RESOLVED OR

UNRESOLVED AFTER CONCILIATION

If dispute is resolved at conciliation it shall be

signed by the parties and conciliator and lodged

with Minister

Conciliator shall issue a certificate to parties if

the dispute is unresolved after 30 days of his

appointment.

Parties may extend the period by agreement.

PART 8.4: APPOINTING OF

CONCILIATOR IN PUBLIC INTEREST.

Minister may appoint a conciliator or a conciliation

committee if he is satisfied that it is in the Public Interest to

do so.

Or committee of inquiry.

Powers of the Minister under part. 8 may be delegated to

the commissioner for labour or chief Industrial relation

office

Disputes may be referred to the Industrial Court in

accordance with the rules of the court.(s.73).

Dispute may be referred to court by aggrieved party who

has made a demand in respect of employment matter.

PART 9.1: ADJUDICATION OF

DISPUTES

Referral of disputes as a matter of urgency by

trade union include cases of recognition and

redundancy.

Exclusion of the Arbitration Act in proceedings

before the Industrial Court.

PART 10: STRIKES AND

LOCKOUTS A person may participation in a strike or lockout if:

The trade dispute concerns terms and conditions of employment

Recognition of a trade union

The trade dispute is unresolved after conciliation under the Act or in

a registered collective agreement that provide for private conciliation

and,

7 days written notice has been given to the other parties and the

Minister by authorised representative

No strike in essential service.

Power of party to apply to the Industrial Court to prohibit strike or

lockout (s.77)

Prohibition of sympathetic strike/lockout

Non-payment of employees who take part in an illegal strike (s.80

PART 11: MISCELLANEOUS

PROVISIONS

• Penalty for offences by trade union, employers’

organization or federation: fines not exceeding

40,000/-.

• Penalty for offences by a person: fine not

exceeding 10,000/-.

• Repeal of the Trade Union’s Act and the Trade

Disputes Act.

THANK YOU.

- END -

INSTITUTE OF HUMAN RESOURCE MANAGEMENT · Promote sound labour relations through protection and...

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