Collective Bargaining Agreements

All about Collective Bargaining Agreements in Kenya, Collective Bargaining Agreements and Trade Unions, Collective Bargaining Agreements and Employers and more on AfricaPay Kenya.

What is collective bargaining and agreements?

A collective agreement is defined in the Labour Relations Act as “a written agreement concerning any term and conditions of employment made between a trade union and an employer, group of employers or organisation of employers” A collective bargaining process precedes this. 

The process of collective bargaining is not specifically provided for in law, but there are prerequisite conditions, which must be fulfilled before parties may proceed with bargaining process. Such conditions are contained in the Labour Relations Act, No. 14 of 2007. In section 54 of the Labour Relations Act, there is a requirement that the trade union must have legal recognition in law that is duly registered by having a constitutional jurisdiction.

Must agreements be in writing?

Yes, all agreements must be reduced to writing and signed by CEO of any employer, national secretary or any representative of employers’ organisation that is party to the agreement (section 59(4)).  The agreements become enforceable after registration. 

How long does a collective agreement last?

In general, collective agreements have a duration span of up to two years before renewal by parties. Collective agreements modify individual contracts. 

Collective bargaining in Kenya is commonly conducted either on a single establishment or single plant basis or in a multi-employer approach. 

How is a collective agreement registered? 

Section 60 requires that collective agreements be registered with the Industrial Court. Submission of the agreement to the industrial court for registration is done by the employer or employers’ organisation, though submission can be done by a trade union due to failure by the employer. The Industrial Court may object to the registration if the agreement either conflicts with the Act that forms it or any other law, or it does not comply with any guidelines concerning wages, salary and other conditions of employment issued by the minister.

The Industrial Court may register a collective agreement within fourteen days of receiving it, unless there is an objection which has been given.

Can an employer and a trade union negotiate a Collective Bargaining Agreement without a Recognition Agreement? 

The process of recognising a trade union is provided for in sections 2 and 54 (1) of the Labour Relations Act, 2007, Laws of Kenya. A recognition agreement means an agreement in writing made between a trade union and an employer, a group of employers or employers’ organisation regulating the recognition of the trade union as the representative of the interests of unionisable employees employed by the employer or by members of the employers’ organisation.   

It is not proper for an employer to engage any trade union in the process of collective bargaining agreement negotiations without a signed recognition agreement. These negotiations are usually aimed at improving fundamental terms and conditions of employment for unionisable employees. 

To enter into a recognition agreement with the employer, the trade union must have recruited a simple majority of the total number of unionisable employees of that employer. Without a recognition agreement, the employer cannot take cognisance of the union for the purposes of representation of employees of such employer in any capacity on issues of or relating to terms and conditions of employment.

Can one implement a collective agreement before the Industrial Court registers it?

No. It is an offence to implement a collective agreement before the Industrial Court registers it. Once so registered, the collective agreement binds parties to comply with the commitments made under it. Failure to perform by either party can give rise to a trade dispute which will be dealt with in accordance with the provisions of the Act. 

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