ILO report blames weak enforcement of pay deals for workers' strikes

“Kenya and Mozambique have made some strides in establishing formal structures to negotiate wages and working conditions, although implementation remains uneven due to weak enforcement mechanisms,” reads the report published March 18. 

The report sought to paint a picture of the institutional and labour relations regimes in the six countries. it pointed out the fact that Kenya has not ratified a number of international laws in relations to labour.

“Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154),” the report says.

However, to promote social dialogue, five laws were enacted in 2007: Labour Relations Act, Employment Act, Labour Institutions Act, Work Injury Benefits Act and Occupation, Safety and Health Act.

The report notes that freedom of association is enshrined in Article 36 of the Constitution and that the Labour Relations Act expands on this right and makes provisions for necessary protections to both workers and employers as well as their respective organisations and representatives. 

The law then allows county employees to join any recognized and registered trade union of their choice.

The Labour Relations Act, the report says, includes provisions on dispute management mechanisms, the reaffirmation of the role of the Industrial Relations Court to register and approve collective bargaining agreements (CBAs), speedy resolution of disputes (within 30 days), and the duties to engage in good faith and to disclose information required by the other party in the negotiation process.

Enactment of these laws, however, does not seem enough action to warrant county governments to keep their end of the bargain when it comes to CBAs.

“Although there have been harmonious working relations with the employers under the CBA, there have also been instances of conflictual labour practices, such as the arrest of union officials during industrial action,” the report says. “At times, county governments have also allegedly disregarded the CBA signed between the national government and health workers, causing rifts and an increase in strike action, as well as threats against or the dismissal of trade union leaders by the various county governors”

The report gives an example of the Nairobi City County Government that suspended 500 workers in September 2013, including union officials, for allegedly taking part in an unlawful strike. Police then used tear gas to disperse a protest calling for the implementation of the collective agreement (ITUC 2014) and the County Secretary engaged private contractors and youth groups as replacement workers. 

In another incident, in 2015, the Employment and Labour Relations Court issued a decision in Kenya County Government Workers Union versus the County Government of Nyeri, which prohibited the county government from replacing casual employees on strike.

In some instances, the report documents, interference from Salaries and Remuneration Commission (SRC) and refusal of counties to recognise CBA signed with the National Government has made this relationship frosty.

“However, the collective agreement signed in 2019 between the Kenya Local Government Workers Union (KLGWU) and the Nairobi County government was amended by the Salaries and Remuneration Commission, which moved the union to call a strike demanding that the agreement be enforced as signed,” the report says.

It adds: “At times, county governments have also allegedly disregarded the CBA signed between the national government and health workers, causing rifts and an increase in strike action, as well as threats against or the dismissal of trade union leaders by the various county governors.”

Once devolution came into play, most counties disregarded CBAs with the National Government on the grounds that they were independent. This forced workers’ union to first sign recognition agreements with the respective county governments before they can engage to formulate a CBA.

Such played a key role in the 2017 health workers strike that saw doctors keep off hospitals for 100 days. Clinical officers and nurses too were on strike then. 

“In 2017, a 25-day-long strike by the Kenya Union of Clinical Officers (Kuco) ended when the 47 County Governments signed Recognition Agreements that would lead to collective bargaining. Earlier that year, County Governments and the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) signed CBAs,” the report says.

In the comparative analysis, the report notes that while in some countries a decentralised system of government came as a development model, like the case with Kenya as informed in the 2010 referendum, in others like Morocco, South Africa, Mozambique and Cameroon was as a result of civil unrest.

Decentralisation, the report adds, has also placed additional roles and responsibilities on subnational government workers,(in Kenya’s context county workers) but this has not translated into additional or adequate funding from the federal or central governments.

The report states that climate crisis and population growth are compounding the roles and functions of subnational governments while privatisation of public services and outsourcing are failing to provide adequate and decent working conditions in most countries.

“The lack of funding and limited revenue collection avenues granted to subnational government (counties) often result in unfilled staff structures, unpaid wages, industrial actions, and lack of service delivery which often leads to service delivery protests in some countries,” the report says.