Labour Relations Act

This Act may be cited as the Labour Relations Act.

Section 2. Interpretation Section the general secretary of a trade union;

Applies to persons in the armed forces or any reserve force.

The Cabinet Secretary must appoint a conciliator as specified in Part VIII.

A party alleging that a right or protection under this part was infringed must prove the facts of the conduct.

Employees are entitled to freedom of association including forming, joining or leaving trade unions, participating in lawful union activities, voting in and standing for union offices or representative roles, and holding office if elected or appointed.

No person must discriminate against employees or job applicants for exercising rights under this Act; employers and others must not require or prevent trade union membership or participation in Act-specified proceedings, nor offer advantages to induce forfeiture of those rights.

Employers have rights to form or join employers’ organisations, participate in their lawful activities and elections, and to stand for and hold office; a juristic employer may exercise election/office rights via a representative.

Prohibits discrimination against employers for exercising rights under the Act and bars offering advantages to induce employers not to exercise those rights; also lists specific prohibited requirements and grounds related to employers’ organisations and participation in proceedings.

Rights of trade unions, employers’ organisations and federations to determine their own constitution and rules.

A provision in a contract or collective agreement may not contradict or limit this section.

A person may not recruit members to form a trade union or employers’ organisation unless they have obtained a certificate from the Registrar; promoters must have two signatories and may lawfully undertake activities to establish the organisation; registration application must be made within six months of certificate issue; certificates obtained by fraud or unlawful activity on behalf of the proposed organisation are addressed by the section.

A trade union or employers’ organisation must apply to the Registrar for registration within six months of receiving a certificate issued under section 12.

Lists the conditions a trade union must meet to register (application, constitution, Kenyan address, representativeness, membership sector limits subject to subsection (2), unique name, meeting with at least fifty members, independence from employers, and sole purpose as a trade union) and allows the Registrar to register multi-sector unions if constitution protects sectoral interests; Registrar must notify potentially affected existing organisations and invite objections.

Lists requirements that an employers’ organisation must meet to be registered, including applying for registration, adopting a compliant constitution, having an office in Kenya, representativeness in certain cases, membership limited to a sector subject to subsection (2), distinct name, independence from trade unions, and primary purpose; the Registrar may register multi-sector organisations if satisfied and must notify potentially affected registered federations or organisations and invite objections.

The provision states that the federation has applied for registration in accordance with this Act.

Requirements for registering a federation of employers

An application to register a trade union must be signed by seven members of the trade union.

Registration requires issuing a certificate of registration in Form B and entering the name and details in the register in Form C.

If the Registrar refuses a registration because requirements are not met, the Registrar must advise the applicant of the reasons in Form D.

Registered entity has perpetual succession and a common seal.

Says that objects in restraint of trade are not to be treated as unlawful so as to make any member of the trade union liable to criminal prosecution.

No person must act or purport to act as an officer or official of a trade union or employers’ organisation that is not registered or has had its registration cancelled.

A registered office must have a physical office and postal address and must give notice of that office and any change to the Registrar in Form E.

Sets registration requirements and procedures for branches: application by unions, organisations or federations in Form F; authorised representative must apply within thirty days; Registrar keeps registers and may request more information; authorised representative must notify dissolution; prohibition on acting as an official if branch not registered or registration cancelled.

Registered trade unions, employers’ organisations or federations may amalgamate with one or more registered trade unions or employers’ organisations, subject to voting and procedural conditions.

Section 27 sets rules for approving and registering changes of name or constitution of registered trade unions, employers’ organisations or federations, including Registrar powers to approve, refer, refuse or order, issuance of a certificate, and that changes take effect when the Registrar approves them.

The Registrar may cancel or suspend the registration of a trade union, employers’ organisation or federation for listed grounds; the Registrar must give at least two months notice in Form M and consider representations, must notify the decision in Form N and give reasons; the union/organisation/federation may appeal to the Employment and Labour Relations Court.

Notices and supporting statements for dissolution are set out, with a 14‑day submission period; the dissolution takes effect from the date of its registration.

A person aggrieved by a Registrar's decision may appeal to the Employment and Labour Relations Court within thirty days.

Officials of a trade union or employers’ organisation must be (or have been) engaged in the sector for which the organisation is registered; there are limits on holding multiple offices, specific permitted exceptions, and a ban for those convicted of fraud or dishonesty.

Minors who are members of a trade union shall enjoy all the rights of a member, unless the constitution provides otherwise.

Section 33. Voting members of trade union Section a trade union unless that person is employed in the sector for which the trade union is registered;

Section 34 sets rules for election of officials of trade unions, employers’ organisations and federations, including that elections follow registered constitutions and that the Registrar may issue directions to ensure compliance.

The Registrar must register changes of officials after required notice and may require evidence or refuse registration; unregistered persons must not act as officials.

If a trade dispute is not resolved after conciliation, a party may refer it to the Employment and Labour Relations Court; special rules apply for aggrieved parties, essential services, and authorised representatives.

Urgent referrals to Employment and Labour Relations Court

The Arbitration Act (Cap. 49) does not apply to proceedings before the Employment and Labour Relations Court.

Section 36(2) allows officers, officials or members of a trade union, employers’ organisation or federation to be trustees (subject to section 35); Section 36(3) prohibits persons convicted of crimes involving fraud or dishonesty from being trustees; Section 36(4) requires persons appointed as trustees to comply with the duties and responsibilities in the Trustees (Perpetual Succession) Act (Cap. 164).

All property of a registered trade union, employers’ organisation or federation vests in its trustees for the use and benefit of the organisation and its members; the Cabinet Secretary may, with consent and by Gazette notice, authorize transfer of specified property to others or for public purposes, subject to prescribed limits.

When the office of any trustee changes, the property of a registered trade union, employers’ organisation or federation automatically vests in the current trustees for the same estate and interest and remains subject to the same trusts without any transfer or assignment.

Provides for the payment of salaries, allowances and expenses to its officials.

The funds of a trade union, employers’ organisation or federation must not be used, directly or indirectly, to pay fines or penalties imposed on a person by a court, except fines or penalties imposed on the union or federation under this Act or its regulations.

The Employment and Labour Relations Court may grant an injunction to restrain unauthorized or unlawful expenditure of funds of a trade union, employer’s organisation or federation, on application by the Registrar or by five or more persons with sufficient interest; if cancelling registration when granting an injunction the court may order those funds paid to the public trustee for disposal according to the body's rules.

An official (the treasurer or other officer responsible for funds) must render accounts (in Form R) at specified times or when requested, verify them by statutory declaration, have them audited by a qualified auditor, and after audit hand over funds and property; willfully making false entries is prohibited.

Trade unions, employers’ organisations and federations must prepare annual statements listing donations, assistance, and assets/liabilities; the statement must be accompanied by an auditor’s report in prescribed form; members may request a free copy; making false entries or failing to comply is an offence.

Section 44 concerns inspection of accounts and records by an official or member of a trade union, employers’ organisation or federation at times specified in its constitution.

A person must not obstruct or impede the Registrar (or a person authorized by the Registrar) from inspecting a trade union, employers’ organisation or federation's accounts or its list of members.

The Registrar may require treasurers, executives/management boards or other officials of trade unions or employers’ organisations to provide detailed accounts of their funds; failing to comply is an offence.

An authorised decision-maker may order a person who has union property in their possession or who has unlawfully expended or withheld union money to deliver the property or pay the money to the trustees, and may suspend an official who contravenes that rule.

Employers ordered by the Cabinet Secretary must start deducting trade union dues from employees’ wages within thirty days after a Form S notice signed by affected employees is served; employers must not deduct from employees who have given written resignation notices and must forward such resignation notices to the union; the Cabinet Secretary may vary such orders.

A registered trade union may ask the Cabinet Secretary to order employers covered by a collective agreement to deduct agency fees from non‑member unionisable employees; employers must begin deductions within thirty days of the Cabinet Secretary’s notice; the Cabinet Secretary may vary such orders.

Sets rules for deductions for trade union and employers’ organisation fees: timing for payment into designated accounts, an acknowledgement obligation for unions, limits on deductions and recovery, a set-off permission for employers, and an offence for contravention.

The Cabinet Secretary may make regulations to allow employers to collect levies, subscriptions or payments from employees and pay them to trade unions and trade union federations, excluding trade union dues, for purposes approved by the Cabinet Secretary.

A member of a trade union may pay dues, levies, subscriptions or other constitution-authorised payments directly to the trade union.

Members must pay subscriptions or levies as a condition of their membership of the employers’ organisation.

Employers (including public sector employers) and employer groups must recognise a trade union for collective bargaining if it represents a simple majority of unionisable employees; recognised parties must record the recognition in a written agreement; the Cabinet Secretary may publish a model agreement; disputes may be referred to conciliation and, if unresolved, to the Employment and Labour Relations Court under a certificate of urgency.

Trade union members in a workplace are entitled to elect trade union representatives from among themselves in accordance with the trade union's constitution.

Section 56 lists specific activities connected to trade union access to employer’s premises, allows conditions for access, and permits referral of disputes to the Employment and Labour Relations Court.

Employers that have recognised a trade union must conclude a collective agreement covering unionisable employees and must disclose relevant information to the union for negotiations; that information is confidential with specified exceptions; disputes may be referred to the Cabinet Secretary and then to the Employment and Labour Relations Court, which may order withdrawal of disclosure rights.

Section 58 provides for conciliation and arbitration of trade disputes identified in a collective agreement by independent and impartial conciliators or arbitrators appointed by agreement between the parties; it also says a party that has referred a dispute to conciliation under such an agreement is not required to refer it to the Cabinet Secretary, allows the Employment and Labour Relations Court to set aside an arbitration award on any recognised legal ground, and requires review applications to that Court within thirty days of an award.

Section 59 states who collective agreements bind (parties, certain employees, and employers who are members of employers’ organisations), identifies authorised signatories, says agreements remain binding on parties at commencement (including resigned members), requires terms to be incorporated into covered employees’ contracts, and makes enforceability contingent on registration by the Employment and Labour Relations Court.

Collective agreements must be submitted to the Employment and Labour Relations Court for registration; employers or employers’ organisations must submit agreements, trade unions may submit if employers fail, and the Court has procedures for requesting information, registering or refusing registration and must give reasons for refusals.

The Cabinet Secretary may, after consulting the Board, make regulations to establish machinery to determine terms and conditions of employment for any category of public sector employees.

Section 62 describes who may report a trade dispute to the Cabinet Secretary, a time limit for reporting, that a trade union may report redundancy disputes after notice is given, and that such reporting does not prevent an employer from declaring redundancies on expiry of notice.

Every party to a trade dispute referred to in section 62 must file a replying statement in the prescribed form and manner with the Cabinet Secretary within fourteen days of receiving a copy of the report of the dispute; the section also states that the respondent may file a replying statement and that failure to file does not affect validity of the referral.

Any party with an interest in a dispute may file a statement of interest with the Cabinet Secretary within fourteen days of receiving a copy of the referral.

The section sets rules for appointment of conciliators: the Cabinet Secretary may require parties to supply information, must give written reasons if refusing to appoint as in subsection (1), parties aggrieved may refer the matter to the Employment and Labour Relations Court urgently, and the Cabinet Secretary may consult the Board on reported disputes.

Section 66 lists the persons who may be appointed to conciliate, including a public officer, persons from a panel appointed by the Cabinet Secretary after consulting the Board, a conciliator from the Conciliation and Mediation Commission, a chairperson in accordance with subsection (1), an even number of persons drawn equally from lists submitted to the Cabinet Secretary by employer and trade union representatives on the Board, and the secretary of the conciliation committee.

The section gives conciliators powers to mediate, investigate and summon persons, and requires persons to comply and the Cabinet Secretary to pay prescribed witness fees.

A signed copy of the agreement shall be lodged with the Cabinet Secretary as soon as it is practicable.

If a dispute is not resolved by conciliation, the conciliator issues a certificate stating the dispute has not been resolved.

The Cabinet Secretary may appoint a conciliator or conciliation committee if satisfied it is in the public interest to prevent or resolve a dispute.

The Cabinet Secretary may appoint a committee of inquiry to investigate any trade dispute and report to the Cabinet Secretary.

The Cabinet Secretary may delegate his powers under this Part to the Commissioner for Labour or the Chief Industrial Relations Officer.

A strike or lock-out is protected if the trade dispute that is the subject of the strike or lock-out concerns terms and conditions of employment or the recognition of a trade union.

A party that failed to attend any conciliation meeting may not seek relief under subsection (1)(b); the Employment and Labour Relations Court may direct the parties to engage in further conciliation in good faith when granting relief under subsection (1)(b).

Certain strikes or lock-outs are prohibited.

The section defines "protected strike" and "protected lock-out", prohibits employers from dismissing or disciplining employees for participating in or preparing for a protected strike, states subsections (2),(3) and (4) do not apply to actions that are offences, and provides that employers are not obliged to pay employees for services not rendered during a protected strike or lock-out.

Employees who participate in a strike are not entitled to payment or other Employment Act benefits for the period they participated; participating employees may be liable to disciplinary action.

Defines "essential services" as services whose interruption would probably endanger life or public health.

The Employment and Labour Relations Court has jurisdiction over prosecutions under the Act; convicted trade unions, employers’ organisations or federations may be fined up to forty thousand shillings; persons convicted of an offence under the Act may be fined up to ten thousand shillings.

The Cabinet Secretary may, after consultations with the Board, make regulations on any matter for the better carrying out of the provisions of this Act.