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INDUSTRIAL RELATIONS

CHARTER

KENYA

DATE: REVISED 30 THAPRIL, 1984

A:
PREAMBLE:
The Government of the Republic of Kenya, the Federation of Kenya Employers and the
Central Organisation of Trade Unions (K):

1. Considering that at their Tripartite Meeting held in Nairobi on 4th May, 19976
convened by and under the Chairmanship of the Minister for Labour, they agreed to
endeavour to prepare a revised Industrial Relations Charter, based on the spirit of the
Original Charter of 1962.

2. Realising that it is in the national interest for the Government, employers and workers
to recognize the importance of consultation and co -operation to the efficiency and
productivity of an undertaking and that process can only be made on foundation of
good terms and conditions of employment, which include security of employment and
income, and the improvement of workers’ conditions of service.

3. Desiring to make the greatest possible contribution to the success and prosperity of
Kenya, agreed upon the following Revised Industrial Relations Charter.

B: AGREED RESPONSIBILITIES OF GOVERNMENT, EMPLOYERS AND


WORKERS:
I ALL PARTIES AGREED

1. That affirming their faith in democratic principles, they agreed to settle all future
differences, disputes and grievances by mutual negotiation, Conciliation and
voluntary arbitration in accordance with the laid down machinery;

2. That in case there should be a strike or a lockout the provisions of the Parties
Agreement and those of the Trade Disputes Act shall be strictly adhered to;

3. That they undertake to promote maximum co-operation to abide by the agreement


mutually entered into;

4. That they undertake to observe strictly the grievance procedure outlined in the
Recognition Agreement which will ensure a speedy and full investigation leading to
settlement;

www.fke-kenya.org/download/industrialrelationscharter.pdf
5. That they will educate the Labour Officers, the Management Personnel and employees
regarding their obligations to one another for the purpose of good industrial relations;

6. That there shall be constituted the National Joint Consultative council consisting or
representatives of the Federation of Kenya Employers and the Central Organisation of
Trade Unions (K) to advise the Minister for Labour on general Industrial Relations
matters. Such council shall have the power to set up a Demarcation Committee to
adjudicate of demarcation disputes. Appeals of the Council’s demarcation decisions
shall lie with the Industrial Court through the established machinery.

7. That they respect one another’s right of freedom of association;

8. That they deal promptly with all correspondences between the, co -operate fully with
conciliators and investigators; facilitate the signing of Form A as a means of speeding
up the final settlement of disputes; and avoid the use of abusive and derogatory
language;

9. That they will not engage in any activities, which are contrary to the spirit of this
Charter;

10. That there shall also be constituted a Tripartite Consultative Council under the
Chairmanship of the Minister for the time being responsible for Labour on matters
affecting the economy in general and employment matters in particular. The Council
shall determine its own rules and procedures;

11. The following will be excluded from Union representation:

(a) Persons who are formulating, administering, co -ordinating, and/or controlling


any aspects of the organisation’s policy.

(b) Staff who perform work of a confidential nature as shall be defined by a Tripartite
Committee.

(c) Any other category of staff who may in the case of any particular undertaking, be
excluded from Union representation by mutual agreement.

Also refer to appendix “C” 1. (iii)

II. GOVERNMENT
RESPONSIBILITIES:

1. The Government shall ensure speedy settlement of disputes at all stages.

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2. That the Government undertakes to enter into joint consultation with both the
Federation of Kenya Employers (FKE) and the Central Organisation of Trade Unions
(K) (COTU) on tripartite basis on all matters affecting employment policy and labour
administration through the established statutory boards or other established organs.

3. That the Government will, as a matter of policy, promote industrial trade unionism,
that is, trade unions organised on the basis of a broadly defined industry irrespective
of the craft, occupation or trade in which the workers are engaged. In this
connection, it will, in co -operation with the Federation of Kenya Employers and the
Central Organisation of Trade Unions (K), encourage conditions which would
progressively achieve industrial trade unionism.

A list of Industrial groupings will be established and attached to this charter as an


appendix.

4. That the Registrar of Trade Unions shall ensure that the definition of membership
coverage provided for each union's constitution shall be defined as clearly as possible
to avoid overlapping of such Trade Unions' spheres of activity. In this connection
before a trade union is registered the following procedure shall be adopted:-

(a) The recommendation from the Permanent Secretary to the Registrar of Trade
Unions must state that the Minister for Labour has been personally consulted
and has approved the recommendation.

(b) The recommendation from the Central Organisation of Trade Unions must be
accompanied by a resolution of a properly constituted Executive Board of C O
T U (K) supporting that recommendation.

(c) The recommendation from F K E must be accompanied by a resolution of the F


K E Management Board.

5. The Government shall display in conspicuous places in government offices the


provisions of this Charter and shall impress upon its officers the contents of the
charter and shall take appropriate action where enquiries reveal that the spirit or the
contents of this Charter have been contravened.

III. EMPLOYER’S
RESPONSIBILITIES:

1. That each employer’s organisa tion, group of employers or individual undertakings,


shall accord recognition to trade unions appropriate to their industries as negotiating
bodies for the employees of such organisations, groups of undertakings in respect of
terms and conditions of employment

2. That employers shall not engage in such practices as: -

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(a) Interference with the rights of employees to enroll or continue as union
members.

(b) Discrimination, restraint or coercion against any employee because of


recognised activity of trade unions.

(c) Victimization of any employee and abuse of authority in any form.

(d) Abuse of use of intemperate language.

(e) Shall generally respect the provisions of the ILO Convention No.98 concerning
application of the Principles of the Right to Organise and to Bargain
Collectively.

3. That employers shall take action for:-

(a) Settlement of grievances and.

(b) Implementation of settlements, awards agreements, decisions and orders as


speedily as possible.

4. That in cases of misconduct employers shall distinguish between misconduct justifying


immediate dismissal and those where discharge must be proceeded by a warning,
reprimand, suspensions or some other form of disciplinary action and shall arrange
that all such disciplinary actions shall be subject to appeals in accordance with the
parties Agreements or the law.

5. That every employee has the right to approach management on personal problems
and employers shall agree to always make accredited representatives available to
listen to the day-to-day problems of employees.

6. That employers shall educate their employees on the contents of the Industrial
Relations Charter and take appropriate action where management inquiries show that
the spirit and/or contents of this Charter has been contravened .

Management should give full publicity on their Notice Boards to this Charter

IV. UNION’S
RESPONSIBILITIES:
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1. That the unions shall discourage any breach of the peace or civil commotion by
union members.

2. That the union's representatives shall not engage or cause employees to engage in any
union activity during working hours, unless as provided by law or by agreement.

3. That the unions shall discourage such practices as: -

(a) Negligence of duty.


(b) Damage to property.
(c) Careless operation of machinery.
(d) Interference with or disturbance to normal work.
(e) Insubordination.
(f) Abusive or intemperate language and generally shall respect the provisions of
the ILO Convention No.98 (that is the right to Organise and Collective
Bargaining

4. That the Unions shall display in conspicuous places in the Union offices, the
provisions of the charter and shall impress upon the officers and members the
contents of the Charter and shall take appropriate action where Union’s inquiries
reveal that the spirit contents of this Charter have been contravened.

5. That the Unions shall maintain at all times a high degree of union membership in
enterprises.

C.
RECOGNITION:

It is agreed in principle that the Model Recognition Agreement attached to this


Charter as Appendix “A” is hereby accepted as a guide to parties in all future
agreements and that negotiations shall commence on the basis of the model
Recognition Agreement and a joint Machinery shall be set up as may be appropriate
to the particular industry or undertaking, such machinery shall ensure expeditious
settlement of trade disputes.

D. EMPLOYMENT
POLICY:

The provisions of the ILO Convention No.111 concerning Basic Aims and standards of
Social policy adopted in June, 1962 Article 14, shall apply as follows:-

1. All parties to this agreement shall aim at abolishing all discrimination among workers
on ground of race, colour, sex, belief, tribal association or trade union affiliation
including discrimination in respect of:-

(a) Admission to public or private employment;


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(b) Labour legislation and agreements which shall afford equitable economic
treatment to all those lawfully resident or working in the country;

(c) Conditions of engagement and promotions;

(d) Opportunities for vocational training;

(e) Conditions of work;

(f) Health safety and welfare measures;

(g) Discipline

(h) Participation in the negotiation of Collective Agreements;

(i) Wages rates, which shall be fixed according to the principle of equal pay for
work of equal value in the same operation and undertaking.

2. The foregoing provisions of this article shall be without prejudice to such measures as
the Kenya Government may deem necessary or desirable for the safe-guarding of
motherhood and for ensuring the health, safety and welfare of women workers and
working children.

E. STRIKES AND
LOCKOUTS:

It is hereby agreed that the Government, the Federation of Kenya Employers and the
Central Organisation of Trade Unions (K) shall seek to bring to an end such strikes or
lockouts which may arise from or be caused by any questions, differences or disputes,
contention, grievance or complaint with respect to work, wages or any other matter
Machinery established in accordance with provisions of the parties Recognition
Agreements and/ or of the Trade Disputes Act should be strictly adhered to.

F.
INTIMIDATION:

It is hereby agreed that employees and management shall enjoy adequate protection
against any acts of interference by each other or each other’s agents or members.
Such protection shall apply more particularly in respect of such acts are: -

(a) Would make the employment of an individual employee subject to the


conditions that he shall or shall not join a union.

(b) Would cause the dismissal of an employee by reason of Union membership or


acts of participation in Union activities outside working hours or with the
consent of the employer, within working hours;
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(c) The drawing up, issuing or publication of discriminatory lists or any action
which will prevent supervisor or shop-stewards from carrying out his normal
function.

G. JOINT
CONSULTATION:

The parties recognize that consultation and co-operation on the basis of mutual
confidence are essential contributions to the efficiency and productivity of an
undertaking and also contribute to the social economic well being of all.

It is therefore agreed that:-

1. Full support will be given by the parties to the constitution and the regulations of
the National Joint Consultative Council, Works councils and to all other Joint
Machinery or boards set up under the law or Recognition Agreements in the
various industries throughout Kenya;

2. Encouragement shall be given to voluntary agreements between the parties;

3. Management shall take appropriate measures to facilitate proper functioning of


joint machinery by making available facilities for meetings and in appropriate
cases, the staff essential thereto including allowing representatives of the
employees the necessary time, within reason, to attend such meetings without loss
of pay;

4. It is clearly understood, however, that the employees’ representatives not being full
time paid officials of the union are first and foremost employees of the industry
and as such their first and prime responsibility is to carry out the duties assigned to
them by the employer;

5.
(a) Means should be readily available whereby any questions which may
arise affecting all employees covered by the agreement can be fully and
promptly considered with a view to satisfactory settlement.

(b) The recognised procedure covering negotiations and discussions


between the parties should be, so far as is practicable, fully known and
understood by the employees and by all members of management as
well as by the Ministry of Labour Conciliators and Investigators;

(c) All parties shall conduct their negotiations in good faith and at a
representative level.

H. PRESS
STATEMENTS:
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The Federation of Kenya Employers and the Central Organisation of Trade Unions (K)
agreed to recommend their affiliates that, during negotiations on a trade dispute,
statements to the News Media should be avoided as far as possible. Such statements
may be made after the conclusion of the negotiations. The parties also agree that
letters on Trade Disputes should not normally be copied to Ministries or parties not
concerned with such disputes other than the Minister for Labour.

CONCLUSIONS
:

The Government, the Federation of Kenya Employers and the Central Organisation of Trade
Unions (K) agree to observe and abide by the Industrial Relations Charter. The Principles of
this Charter shall be brought also to the notice of parties who are not affiliated to the
Federation of Kenya employers or the Central Organisation of Trade Unions by the
Government.

SIGNED: by the Ministry for Labour for and on behalf of the Government of Republic of
Kenya.

HON. ALIJAH W. MWANGALE, M.P.


MINISTER FOR
LABOUR

For and on behalf of the Federation of Kenya Employers


HENRY KINYUA, CHAIRMAN/FKE

For and on behalf of the Central Organisation of Trade Unions (K)


HON. JUMA BOY, M.P. (SECRETARY GENERAL)

APPENDIX ‘C’

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LEVEL OF UNION
REPRESENTATIVE

At a meeting chaired by the Minister for Labour and attended by representatives of the
Federation of Kenya Employers and Central Organisation of Trade Unions (K) it was agreed
that the following persons shall be excluded from Union representation:

1. (i) Executive Chairman; Managing Director; General Manager (and his Deputy)
and
Functional Heads – that is – Departmental Heads (and their Deputies).

(ii) Branch Manager ( and his Deputy)


(iii) Persons in-chage of operation in an area (and their Deputies)
(iv) Persons having authority in their organisations to hire, transfer, appraise,
suspend, promote, reward, discipline and handle grievances provided that
such persons fall within the Industrial Relations Charter Clause No. 11 - 1
(v) Persons training for above positions (including understudies).

2. (i) Personal Secretaries to persons under 1 above.


(ii) Persons whose functional responsibilities are of a confidential nature as shall be
agreed upon between the parties.

3. Any other category of staff who may, in the case of any particular undertaking, be
excluded from union representation bny mutual agreement.

SIGNED:

……………………………………………………………………………
… HON. R. J. OUKO
BY THE MINISTER FOR
LABOUR
……………………………………………………………………………
…. G. W. GICHUKI
FOR AND ON BEHALF OF
THE
FEDERATION OF KENYA
EMPLOYERS
………………………………………………………………………
… J. MULEI
FOR AND ON BEHALF
OF
CENTRAL ORGANISATION OF TRADE UNIONS
(K)

9
DATED THIS 14TH DAY OF APRIL 1984

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APPENDIX ‘A’

AGREEMENT RELATIVE TO RECOGNITION AND


NEGOTIATING PROCEDURE

Between

………………………………………………………………
..

And

……………………………………………………………
….

1. PREAMBLE

The two parties to this agreement, meeting together in free heart and voluntary
association, have fully determined toregulate the relations between them to the
interest of Workers and Management. They agree voluntarily to work together to
promote and establish mutual understanding and co-operation as follows: -

(a) The negotiations and discussions between the representatives of the Union and
the employer shall be conducted on a representative and authoritative basis;

(b) That means shall be readily available whereby any issues which may arise
affecting all employees or any category of employees covered by this
Agreement, can be fully and promptly considered with a view to a satisfactory
settlement;

(c) That the recognised procedure of negotiations and discussions between both
parties shall be, so far as practicable, fully known and understood by the
workers and by all members of the Management of the
…………………………………………………………………………………………

…………………………………………………………………………………………

(d) That an essencial factor in successful negotiations and discussions is the clear
statement or report of the issue involved and the resulting decision after
mutual agreement between the parties to this Memorandum of Agreement;

(e) The employer and the Union recognize their mutual interest in promoting good
relationship between them and agree on the desirability of improving
productivity since, only from such improvements, can better wages and

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conditions and terms of employment be achieved and they agree jointly to
maintain goodwill in the industry and to co-operative towards this end.

2. RECOGNITION

(a) The ……………………………………………..affords full recognition to the


Union as a properly constituted and representative body and the sole labour
organisation representing the interest of workers who are in the employment of
the ………………………………………………. In all negotiable
matters
concerning rates of pay, overtime, hours of work, method of wage and salary
payment, paid leave, duration or employment, medical benefits, principles of
promotion, terms of employment for all employees who are in the employment
of the ……………………………………………… defined from time to time by
the government, Federation of Kenya Employers and the Central Organisation
of Trade Unions (K). Such recognition should take account of the principle of
industrial trade unionism.

(b) The Union undertakes, after elections have been carried out in accordance
with its Constitution, to present without delays the names of all branch
officials and national officials to the ………………………………………. And to
advise any changes as they occur. The ………………………………. On its part
undertakes not to enter into discussion and negotiations on the subjects
specified in clause 2(a) of this Agreement with any individual or individuals
purporting to represent the Union other than its accredited representatives.

(c) The Union undertakes to provide its officials with proper credentials setting
out, inter-alia the position held by them.

(d) The Union undertakes that no employee shall be compelled to become a


member of the Union and the …………………………………………………..
undertakes that no employee shall be penalized on account of his union
membership.

(e) The ………………………………………………………. Reserves the sole right


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conducts its business and manage its operations and for this prupose, to
engage, promote, demote and terminate the services of any worker in
accordance with the terms of service agreed with the Union. It is agreed that
the …………………………….’s jurisdiction applies to the whole area legally
defined in the ……………………………..’s leases and to housing or

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accommodation which may from time to time be provided by the
……………………………………………..
…………………………………..

(f) The Union undertakes that employees who are Union representatives will
carry out the duties delegated to them by Management during their prescribed
working hours and such representatives will not leave their plae of work for
any purpose connected with their activities as union representatives without
permission of Management. Such permission shall not be unreasonably
withheld.

(g) Security and sanitary staff will, in the event of a strike or other disturba nce
leading to stoppage of work, continue to perform their normal duties for the
protection of the ………………………………….’s property and assets in the
interest of both parties to this Agreement and the Union agrees that it will use
influence to achieve this. The ………………………… agrees to use such
employees during the strike solely for their normal routine duties. In the event
of continued production during strike action the Union reserves the right to
withdraw the services of all employees;

(h) Normal rights of access to members and potential members shall be accorded
to accredited Union representatives for the purpose of Union business in
accordance with ILO Convention No.135.

3. NEGOTIATING PROCEDURE

(a) Individual Grievances


Individual employees of the ………………………… ……… wishing to raise a
grievance with which he is directly and personally concerned, shall first
approach his immediate superior. If case settlement is not reached, he shall
have the right to appeal to the higher levels of Managerment as soon as
possible in accordance with the established procedures. The employee shall be
represented by an accredited Union representative at all stages.

(b) Collective Claims


These shall mean any claims for alteration to terms of service regarding matters
specified in Clau se 2(a) of this Agreement, which may affect all employees of
any group of the…………………………………………………..

(i) Collective Claims

Such claims shall be raised in writing with the Management by the


Management by the Union’s General Secretary or his authorized
representative three months before the expiry of the current agreement;
within which period the parties will eneavour to reach a settlement. All

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agreements jointly reached shall be committed in writing and signed by
both parties.

(ii) In the event of failure to reach a settlement of the dispute within the
period, the dispute shall be processed in accordance with the Trade
Disputes Act.

(c) Collective Grievance

These shall mean grievances arising from a breach, real of alleged, of existing
terms of service i n the matters specified in Clause 2 (a) of this Agreement,
which may affect all employees of any group of employees of the
……………………………………………………….. such grievances shall be
raised by the shopstewards with the immediate superior in the first instance
and in the event such grievance cannot be satisfactorily resolved, they then
may immediately be referred by the Union’s general secretary or his
representative to the higher levels of Management in writing. In the event of
failure to settle the matter, it shall be referred to the Negotiating Committee
and Clauses (3), (4) and (5) of the preceding sub-section shall apply.

(d) Failure to Reach Agreement

(i) In the een of failure to reach a settlement at the Committee level either
party may refer the dispute to the Ministry of Labour in accordance
with the provisions of the Trade Disputes act.

(ii) No strike, lockout or other action to stop or hinder the operations of the
business of the …………………………………………………. on a dispute
which has been or should be referred to the Committee shall take place
until:-

(a) Deadlock has been recorded in the Committee; and

(b) After such deadlock …………………………………. Days’ strike


or lockout notice has been given and has elapsed in addition to
the statutory period stipulated in the Trade Disputes Act.

4. MODIFICATION TO AND TERMINATION OF THIS


AGREEMENT

This Agreement shall come into force on the ………………………………… day of


…………………………….and shall continue in force for a minimum period of
…………………………….. Thereafter the Agreement shall continue in force until
amdended or terminated.

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Either party wishing to amend or modify the Agreement shall give ………………
months’ written notice to the other party with details of the proposed amendments.
In the event of it proving impossible to obtain mutual agreement to the amendment of
the Agreement, then either party may refer the dispute to the Minister for Labour for
normal action in terms of the Trade Disputes Act Cap.234.

SIGNED: For the Company ………………………………….

SIGNED: For the Union


…………………………………….

In the presence of: ……………………………………………………


Signed at ………………………..……………..This day of


………………………………..