The law provides for the right of workers, including those in export processing zones (EPZs), to form and join unions of their choice and to bargain collectively. Any two or more workers in an enterprise have the right to form a union by registering with the trade union registrar. If the registrar denies the registration, a union may appeal to the courts. For the union to be recognized as a bargaining agent, it needs to represent a simple majority of the employees in a firm eligible to join the union. This provision extends to public and private sector employees. Members of the armed forces, prisons service, and police are not allowed to form or join trade unions.
The law permits the government to deny workers the right to strike under certain conditions. For example, the government prohibits members of the military, police, prison guards, and the National Youth Service from striking. Civil servants are permitted to strike following a seven-day notice period. In 2016 the Judiciary granted High Court status to the Employment and Labor Relations Court. A bureau of the Ministry of Labor called the Ministry of Labor, Social Security, and Services (MOLSS) typically referred disputes to mediation, fact-finding, or binding arbitration at the Employment and Labor Relations Court, a body of up to 12 judges which has exclusive jurisdiction to handle employment and labor matters and which operates in urban areas, including Nairobi, Mombasa, Nyeri, Nakuru, Kisumu, and Kericho. It is illegal for parties involved in mediation to strike. Additionally, MOLSS referral of a dispute to the conciliation process nullifies the right to strike.
By law workers 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,” may not strike. Any trade dispute in a service listed as essential or declared an essential service may be adjudicated by the Employment and Labor Relations Court.
Strikes must concern terms of employment, and sympathy strikes are prohibited.
The law permits workers in collective bargaining disputes to strike if they have exhausted formal conciliation procedures and have given seven days’ notice to the government and the employer. Conciliation is not compulsory in individual employment matters. Security forces may not bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, to negotiate wages and conditions matching the government’s minimum wage guidelines as well as to advocate for better working conditions and representation in the Employment and Labor Relations Court. 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 of workers dismissed for union activity. The Employment and Labor Relations Court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. Labor laws apply to all groups of workers.
The government supported a strengthened labor dispute system, but enforced the decisions of the Employment and Labor Relations Court inconsistently. Many employers did not comply with reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases, employers successfully appealed the Employment and Labor Relations Court’s decisions to a branch of the High Court. The enforcement mechanisms of the Employment and Labor Relations Court remained weak, and its case backlog raised concerns about the efficacy of the court.
The Employment and Labor Relations Court received many cases arising from the implementation of new labor laws. The parties filed the majority of cases directly without referral to MOLSS for conciliation. In 2015-16, the number of filed cases increased by 23.5 percent to 4,244, while the number of cases settled more than doubled to 2,403. The total Collective Bargaining Agreements registered in 2016 were 298, compared to 230 in 2015. The government established the court to provide for quick resolution of labor disputes, but backlog cases dated to 2007.
The chief justice designated all county courts presided over by senior resident magistrates and higher-ranking judges as special courts to hear employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers cited the ability of workers to submit labor-related cases throughout the country as a positive step. In 2016 the Judiciary finalized the Employment and Labor Relations (Procedure) Rules. The significant changes introduced in the new Court procedure rules provide parties access to file pleadings directly in electronic form, new pretrial procedures, and alternative dispute resolution. The rules also set a 30-day time limit for the court to submit a report on disagreements over Collective Bargaining Agreements filed.
The government generally respected freedom of association and the right to bargain collectively, although enforcement was inconsistent. The government expressed its support for union rights mandated in the constitution.
Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers and others who operated in private settings were vulnerable to exclusion from legal protections, although domestic workers unions exist in the country to protect their interests. The East African Community Affairs bureau (EAC) of the Ministry of Labor , however, claimed all employees are covered by the existing labor laws, and the ministry continued to advise domestic workers on the terms of their contracts, especially when their terms and conditions of work are violated.
In 2016 the government deployed labor attaches to Qatar, Saudi Arabia, and the United Arab Emirates (UAE) to regulate and coordinate contracts of Kenyan migrant workers and promote overseas job opportunities. EAC also helped Kenyan domestic workers understand the terms and conditions of their work agreements. The government signed two bilateral agreements for employment opportunities with Saudi Arabia and Qatar, and EAC negotiations continued with UAE. The EAC also established a directorate to regulate the conduct of labor agents for migrant workers, including requiring the posting of a 500,000 shilling ($5,000) performance guarantee bond for each worker.
The survival of trade unions was threatened by the misuse of internships and other forms of transitional employment, with employers often not hiring employees after an internship ends. State agencies increasingly outsourced jobs to the private sector, and in the private sector, casual workers were employed on short-term contracts. This shift contributed to declining numbers in trade unions. NGOs and trade unionists reported increased replacement of permanent positions by casual or contract labor, especially in the EPZs, the Port of Mombasa, and in the agricultural and manufacturing sectors. In some cases cited, employers staffed permanent jobs with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in these positions for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, employers replaced them with new trainees at the end of the three years. During the year the ministry reviewed misuse of term contract employment.
Workers exercised the right to strike. Nonteaching university staff demonstrated in 2016, seeking better employment terms. They did not report to work for 72 days in 2016 and for 42 days during the year. The matter was resolved in June when the government agreed to implement a new collective bargaining agreement. The health sector witnessed industrial strikes that began in the fourth quarter of 2016 and continued into the year. The doctors’ strike lasted for 100 days, leading to disruption of public health care service delivery and temporary detention of seven union officials. Strikes involving Kenya National Union of Nurses in various counties continued for most of the reporting year. The nurses demanded higher wages, prompt payment of salaries, more promotions, better working conditions and sufficient drugs for patients. They also demanded that county governments remit statutory deductions taken from their paychecks to the National Social Security Fund and the National Hospital Insurance Fund. The most recent strike ended November 3, when the government agreed to pay withheld back salaries; authorized a collective bargaining agreement; agreed to pay for nurses uniforms and to provide a risk allowance; and announced it would drop all pending disciplinary cases against nurses resulting from the strikes.