2011 Annual Survey of violations of trade union rights - Kenya

Population: 39,800,000
Capital: Nairobi
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182

The right to strike is still being undermined in practice in Kenya, where 40 strikers were dismissed by fruit multinational Del Monte and striking tea workers faced threats and intimidation. The Postal Corporation, after obstructing collective bargaining negotiations, obtained an injunction blocking its workers from going on strike. A Chinese company was ordered by the Industrial Court to reach an agreement with its workers' union after negotiating in bad faith. Privatisation and the prevalence of casual, short-term contracts are making union organising all the more difficult.

TRADE UNION RIGHTS IN LAW

While the new Constitution, which took effect on 27 August 2010, recognises fundamental trade union rights, union activity is hampered by excessive legal restrictions. The procedures for forming a trade union are long and cumbersome, and the law requires that a certificate is obtained before members can be recruited to form a union. Furthermore, the Registrar of Trade Unions may refuse to register a union if another trade union already exists which is sufficiently representative. The law imposes strict conditions and limitations on the use and management of unions' funds, and the Registrar has extensive powers to audit these funds. The Labour Relations Act excludes members of the prison service and the National Youth Service from its scope.

The new Constitution also guarantees the right to bargain collectively, but it is not clear whether this right can be enjoyed by all employees in the public sector. With regard to the right to strike, a long dispute resolution procedure must be exhausted before a lawful strike can be called. A strike must also concern the terms and conditions of employment or the recognition of a trade union, and sympathy strikes are prohibited.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

Background: In August, Kenyan citizens voted by a two thirds majority for a new Constitution that is designed to limit the powers of the president and devolve power to the regions. It also paves the way for the establishment of a land commission and sweeping changes to the police and judiciary. The year also saw the prosecutor of the International Criminal Court (ICC) open an investigation into the post-election violence.

Trade unions under attack: The Central Organisation of Trade Unions (COTU) has warned that the labour movement is under attack from multinational corporations that engage in cutthroat competition. As a result of privatisation many workers have had to re-apply for their jobs under new contracts, often with multinational corporations which usually require them not to join labour unions. The unions have lost members as a result. Furthermore, an increasing number of employees are on part-time, temporary and contractual basis, making union organising more difficult. At the Kenya Power and Lighting Company 5,000 of its 8,000 employees were employed on casual contracts. After a dispute erupted in September the company agreed to hire more workers on full time contracts.

Obstructing the right to strike: In practice, the right to strike is frequently violated in Kenya. During the notice period, the Minister of Labour generally intervenes and proposes a mediator for the dispute. If the negotiations break down, the government usually refers the matter to an industrial court, pre-empting any decision to take strike action. In cases where workers have become frustrated with the lengthy process and have decided to go ahead with a strike, their action has usually been declared illegal. Employers won a court order declaring the tea pickers strike illegal in October.

EPZ employers refuse to recognise unions: Although labour laws apply in the export processing zones (EPZ) most firms based in EPZs have refused to recognise trade unions and obstructed their efforts to organise workers. The Kenya Textile Workers' Federation adds that getting workers to join a union is difficult because the managers at EPZ companies use nonregistered organisations to recruit casuals on their behalf.

Chinese construction company negotiating in bad faith: Construction on the Thika Road Highway was disrupted on 23 August when 400 workers went on strike demanding better pay, working conditions and medical cover, an end to exploitation, long working hours and the illegal withholding of drivers licenses. The Kenya Building, Construction, Timber Furniture and Allied Industry Employees Union (KBCTFAIE) sought in vain to reach an amicable negotiated solution with the SINHYDRO corporation. According to the union, tri-partite negotiations failed because of the lack of good will on the part of the employer. Company management called in the police to disperse the workers who went on strike.

On 28 September the Industrial Court of Kenya ordered the SINHYDRO corporation to commence negotiation of a collective bargaining agreement with KBCTFAIE to be concluded within 45 days.

Del Monte Kenya targets union activists for dismissal: Forty workers were dismissed in retaliation for a week-long strike at Fresh Del Monte's fruit processing factory. Some 1,700 workers walked out on 12 October to protest unpaid allowances, increasing insecurity due to the widespread use of temporary work contracts and a deteriorating working environment which resulted, in what the Kenya Union of Commercial, Food and Allied Workers (KUCFAW) believe, was a work-related death.

The company obtained a court injunction on 13 October calling for an end to the strike and a resumption of work. Workers returned to the factory to find a notice instructing them to reapply for their positions. They refused to do so under these circumstances, returning only on 19 October after the union and company reached an agreement under the auspices of the Industrial Court. This provided for a return to work under existing terms and conditions.

However, the agreement stipulated that disciplinary procedures would be applied to a group of workers alleged to have committed illegal acts during the strike. Del Monte Kenya management proceeded to dismiss 40 workers, including nearly every shop steward. KUCFAW began procedures to contest the dismissals in the Industrial Court.

Striking tea workers face threats and intimidation: On 18 October tea plantation employees went on strike over the increased use of machines for picking tea. Employers did not consult with workers prior to the increase, breaching an agreement with the Kenya Plantation and Agricultural Workers' Union (KPAWU). The union feared machines would cost the jobs of 80,000 workers directly employed by the tea industry in Kenya and thousands indirectly employed. A new agreement was sought to specify the portion of tea that would be plucked by the machines and how much would be picked by workers.

At least two of the companies affected by the strike, the Williamson Tea Company and Tindirect Tea Company, hired new staff to replace those on strike. The Central Organisation of Trade Unions (COTU) reported that tea workers belonging to KPAWU were being subjected to arbitrary arrests, torture in police cells, and the harassment of trade unionists and their families. Companies sought to dissuade workers from striking by using various intimidatory tactics such as evicting striking staff from company houses and disconnecting water and electricity. By 26 October some KPAWU leaders had been held by the police for two weeks without charge.

The Federation of Kenya Employers (FKE) initially obtained a court order barring tea plantation employees from striking, but this was later overruled by the Industrial Court further to an application by COTU and KPAWU. Employers still insisted the strike was illegal. The union called off the strike after two weeks to allow for negotiations with the tea multinationals over the use of machines.

Collective bargaining obstructed and strike blocked at post office: On 30 November the Postal Corporation of Kenya won a temporary injunction preventing members of the Communication Workers Union (COWU) from continuing a strike begun that day. COWU members were prohibited from taking industrial action for a period of 14 days and restrained from interfering with the operations of the postal corporation.

COWU had called its 4,000 members out on strike in face of the refusal by the corporation to start collective contract negotiations after several attempts by the union to get negotiations underway. The union was demanding a 48% pay rise. The Postal Corporation of Kenya had offered them a 2% increase. Other issues included the refusal to pay overtime, changes in the staff pension scheme and the union's demand for the resignation of the head of the Human Resources department, whom they felt had frustrated their bargaining efforts.

The two sides agreed to resume negotiations in early 2011.