Every so often, one crucial sector of the economy or another downs its tools in a labour dispute of national and county impact. This has been common amongst doctors, nurses, teachers and more recently aviation workers. Even before the dust settles after the recent aviation workers industrial action, the doctors are threatening to down their tools in nationwide strikes. This is  as a consequence of the unresolved nurses’ strike, which has been running for more than a month, affecting effective performance of the doctors.

In the latest aviation workers strike that lasted about 3 days at the end of August at Jomo Kenyatta International Airport , Kenya Airways and Jambojet reported having lost a combined estimated Sh976 million in revenues and disruption-related costs. Other airlines and operators are yet to report the impact on their business, but the flight delays and cancellations were massive.

Central to these industrial actions are stalled Collective Bargaining Agreements (CBAs) occasioned by multiple factors.  A CBA is a written agreement concerning terms and conditions of employment made between a trade union and the employer. The Employment and Labour Relations Court Act requires that such agreements be recognised by the employer and thereafter registered in court to become enforceable. Article 41 of the Constitution guarantees fair labor practices, the right to join trade unions, and the right to strike for both the public and private sector.

CBAs address issues of wages, salary increments, working hours, promotions, redundancy procedures, disciplinary processes, allowances, and grievance mechanisms. A lot of engagements and consultations are held between employers and the employees’ representatives and unions before a CBA is concluded. Most CBAs have a tenure of up to two years before renewal. Courts consider a CBA as fundamentally contractual. In Kenya Union of Commercial Food and Allied Workers v Kenya National Library Service (2016), the Court held that a registered CBA is enforceable by specific performance, and budgetary constraints are no defense.  The Supreme Court in Gatuma v Kenya Breweries (2024) held that CBA protections survive business transfers unless in situations of insolvency.

With such watertight legal underpinnings, why are there so many stalled CBA’s affecting the labour market in Kenya? The 2018 Kenya Institute of Public Policy Research and Analysis (KIPPRA) Discussion Paper No. 208 by Beverly Musili discussed the challenges in implementing and enforcing CBAs and identified multiple legal, institutional, financial, and political causes. Where all legal formalities have been undertaken, the main cause of CBA disputes is financial especially in the public sector. Enforcement of many CBAs has faced hurdles due to fiscal unsustainability of wage increments provided during negotiations. This problem prevailed for many years including the 15 years where the teachers' 300% salary increment agreed in 1997 remained unfulfilled prompting repeated strikes in 1998, 2002, 2009, 2012, and 2013.

In some instances, employers sign CBA’s solely to avert strikes with no firm commitment to honour them. This was the case in Kenya Union of Commercial Food and Allied Workers v Kenya National Library Service (2016) eKLR where the employer partially implemented the CBA, paying new salaries and some arrears, but claimed that the National Treasury had not released funds for the balance. While rejecting this defense, the Court held that budgetary constraints are no excuse for non-compliance with a registered CBA. Industrial action affecting health workers has largely been occasioned by a blame game between the national government and the county governments on implementation of CBAs.

The entry of the Salaries and Remuneration Commission (SRC) added bottlenecks to implementation. SRC was created under Article 230 of the Constitution and with it came significant institutional conflicts in the public sector. SRC’s main mandate is to set and regularly review the remuneration and benefits of all state officers and to advise on the remuneration of other public officers. CBAs concluded without SRC involvement were held unenforceable as the mandatory pre-condition of obtaining SRC advice was not met. On the other hand, SRC has been accused of refusing to negotiate directly with trade unions. It is noteworthy that Regulation 18(1) of the SRC Regulations expressly provides that the Commission shall not negotiate with a trade union. Due to this, trade unions are cut out of critical information about fiscal sustainability data underlying wage determinations while negotiating and signing CBAs.

SRC plays an advisory role but this has often been undertaken as a veto power over bargained terms thereby scuttling negotiation and implementation. In Kenya County Government Workers Union v SRC & 4 others [2024], SRC had issued two advisories giving the employer and the union only two fixed options namely adopting the SRC-determined remuneration structure or retaining the existing CBA terms with no latitude for further negotiation. The Court held that by giving the parties only two options to elect from, SRC was essentially limiting the avenues for negotiations and that the effect was to set and define remuneration rather than advise the parties. SRC must advise on parameters within which to undertake collective bargaining negotiations and allow the parties reasonable leeway to negotiate.

Ensuring a clear understanding of the role of the SRC in the bargaining process and effective fiscal assessment before CBAs are concluded is critical. Additionally, a definitive delineation of national and county government responsibilities especially in the health sector should be pursued to avert the repeated cycle of doctors and nurses’ strikes. Overall, a firm commitment for implementation should be central before conclusion of any CBA.

This article was published in the Business Daily and can be accessed here.