COLLECTIVE BARGAINING

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Collective Bargaining
• Collective bargaining is negotiation between a
trade union and an organization in respect to
terms and conditions of employment for
members of the union working in the
organization.
• ILO Convention No. 154 of 1986 defines
collective bargaining as “all negotiations
between employers or employer’s organizations
and workers for the purpose of determining
terms and conditions of employment.

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Collective Bargaining

• Bargaining is done between parties that have

mutual interests. The main objectives are to
reach an agreement and continue to coexist as
employer and employee.
• Collective bargaining is a formalized process by
which employers and trade unions negotiate
terms and conditions of employment and the
ways in which certain employment-related
issues are to be regulated at national,
organizational and workplace levels.

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Collective Bargaining

• It is a systematic process which begins with the

presentation of the charter of demands and
ends with reaching an agreement. The
agreement serves as the basic law governing
labour management relations over a period of
time in an enterprise.

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Collective Bargaining

• It is flexible process and not fixed or static.

Mutual trust and understanding are
fundamental to the harmonious relations
between the parties.

• The result of collective bargaining procedure is

called the collective bargaining agreement
(CBA).

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Collective Bargaining

• A Collective Agreement is defined in the Labour

Relations Act under Section 2 as
“an agreement made between a trade union
and an employer or organization of employers
which relates to terms and conditions of
employment, whether or not enforceable in law
and whether or not concluded under machinery
for negotiation”.

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Procedural Agreements

• Collective agreements may either be procedural or

substantive.

– Procedural agreements deal with the relationship between

the workers and the management, and the procedures to
be adopted for resolving individual or group disputes.
– This will normally include procedures in respect of
individual grievances, disputes and discipline. Frequently,
procedural agreements are incorporated into company rule
books which provide information defining the overall terms and
conditions of employment and codes of behavior.

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Substantive Agreements

• On the other hand, a substantive

agreement deals with specific issues,
such as basic pay, overtime premiums,
bonus arrangements, holiday
entitlements, hours of work etc

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Conditions necessary for effective
collective bargaining

• The law does not specifically provide for the

process of collective bargaining, but there are
prerequisite conditions, which must be fulfilled
before parties proceed with bargaining process.

• The International Labour Organisation has

provided guidelines for bargaining. These
conditions are reflected in the Labuor Relations
Act. (LRA)

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Conditions necessary for effective
collective bargaining

• In order to for a union to enter negoiations with

with an organization it must have the support
of a simple majority of 51% of unionisable
employees in the undertaking, which it seeks to
negotiate with.

• Appendix A of the Industrial Relations Charter

offers a model recognition agreement and it
marks out collective claims and grievances as
part of the negotiation procedure.

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Conditions necessary for effective
collective bargaining

• Representatives of the trade union may raise

such claims with the management in writing
three months before expiration of existing
agreements.

• Employers’ are required to recognize a trade

union for purposes of collective bargaining if
that trade union represents the simple majority
of unionisable members.

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Conditions necessary for effective
collective bargaining

• The union and the employers are to conclude a

written recognized agreement recording the
terms upon which the employer or his
organization recognizes the trade union.
• An employer may apply to the National Labour
Board to terminate or revoke a recognition
agreement.
• The terms of the agreement are to be included
in the contract of employment of every
employee covered by the agreement.

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Conditions necessary for effective
collective bargaining

• The union and the employers are to conclude a

written recognized agreement recording the
terms upon which the employer or his
organization recognizes the trade union.
• An employer may apply to the National Labour
Board to terminate or revoke a recognition
agreement.
• The terms of the agreement are to be included
in the contract of employment of every
employee covered by the agreement.

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Collective Bargaining Agreement

• The collective bargaining agreements must be

reduced to writing and signed by the Chief
Executive Officer, CEO (or the equivalent) of any
employer body or employer association party to
the agreement and the General Secretary of any
trade union that is party to the agreement.
• It is lodged with the Minister in charge of labour
matters (hereinafter referred as the Minister)
within fourteen days of its execution to be
enforceable.

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Collective Bargaining Agreement

• The Minister furnishes it with the Industrial

Court for purposes of registration.
• The Minister may object to the registration if
he or she deems it undesirable for registration.
• In cases where the Minister has made objection
to registration, the Industrial Court may
summon parties to hear them out.

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Collective Bargaining Agreement

• It is an offence to implement a collective

agreement before the Industrial Court
registers it. Once registered, the
collective agreement binds parties to
comply with the commitments made
under it.

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Collective Bargaining Agreement

• Failure to perform by either party gives rise to

a trade dispute which is dealt with in
accordance of the provisions of the LRA.
• In general, collective agreements have a
duration span of up to two years before
renewal by parties.
• Collective agreements modify individual
contracts. Benefits are extended to non-union
members serving in enterprises where they are
in force.

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Collective Bargaining Agreement

• This arises from the constitutional provisions

which protect freedom of association, and the
Industrial Relations Charter which prohibits
discrimination, but it is a contentious issue
vividly discussed among union members.

• Agreements may be denounced by mutual

agreement of the parties with adequate notice
being served by the initiating party.

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Collective Bargaining Agreement

• Collective bargaining in Kenya is commonly

conducted either on single establishment or in a
multi-employer approach.

• It includes not only negotiations between the

employers and unions but also includes the
process of resolving labour-management
conflicts. This makes collective bargaining
essentially, a recognized way of creating a
system of industrial jurisprudence.

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Collective Bargaining Agreement

• It acts as a method of introducing civil rights in

the industry, that is, the management should
be conducted by rules rather than arbitrary
decision making.

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Benefits to Employers

1. It increases the strength of the workforce,

thereby, increasing their bargaining capacity
as a group.
2. Collective bargaining increases the morale and
productivity of employees.
3. It restricts management’s freedom for
arbitrary action against the employees.
Moreover, unilateral actions by the employer
are also discouraged.

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Benefits to Employers

4. Effective collective bargaining machinery

strengthens the trade unions movement.
5. The workers feel motivated as they can approach
the management on various matters and bargain for
higher benefits.
6. It helps in securing a prompt and fair settlement of
grievances.
7. It provides a flexible means for the adjustment of
wages and employment conditions to economic and
technological changes in the industry, as a result of
which the chances for conflicts are reduced.

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Benefits to Employers

8. It becomes easier for the management to resolve issues at

the bargaining level rather than taking up complaints of
individual workers.
9. Collective bargaining tends to promote a sense of job
security among employees and thereby tends to reduce
the cost of labor turnover to management.
10.Collective bargaining opens up the channel of
communication between the workers and the
management and increases worker participation in
decision making.
11.Collective bargaining plays a vital role in settling and
preventing industrial disputes.

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The Role of Collective Bargaining in
Industrial Relations

• Collective bargaining is an important form of

employee participation which shows that the
employer espouses democratic and
representative methods of managing the
organization whereby employees determine
their destiny.
• It results into a legally recognized document
which binds the parties to the CBA thereby
dissuading employers and trade unions from
resorting to self help measures.

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The Role of Collective Bargaining in
Industrial Relations

• Uniformity of terms and conditions of

employment may be one of the consequences
of collective bargaining.
• The CBA is a registered document and as such,
it becomes part of the laws of the land
especially when interpreting employment
contracts.
• Contains express terms of a contract which are
characterized by certainty hence reducing
grievances and disputes.

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The Role of Collective Bargaining in
Industrial Relations

• Collective bargaining is an internationally

recognized employee relations process.
• Collective bargaining is recognized as a labour
right under article 41 of the Constitution.

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Recognition of a Trade Union for
Purposes of Collective Bargaining

• An employer, including an employer in the

public sector, shall recognise a trade union for
purposes of collective bargaining if that trade
union represents the simple majority of
unionisable employees.

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Recognition of a Trade Union for
Purposes of Collective Bargaining

• A group of employers, or an employers’ organisation,

including an organisation of employers in the public
sector, shall recognise a trade union for the purposes of
collective bargaining if the trade union represents a
simple majority of unionisable employees employed by
the group of employers or the employers who are
members of the employers’ organisation within a sector.

• An Employers or an Employers Organisation is required to

entre into a written recognition agreement recording the
terms upon which the employer or employers’
organisation recognises a trade union.

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Recognition of a Trade Union for
Purposes of Collective Bargaining

• The Cabinet Secretary is required to publish a

model recognition agreement.
• An employer, group of employers or employers’
association may apply to the National Labour
Board to terminate or revoke a recognition
agreement.
• If there is a dispute as to the right of a trade
union to be recognised for the purposes of
collective bargaining the trade union may refer
the dispute for conciliation.

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Recognition of a Trade Union for
Purposes of Collective Bargaining

• A recognition agreement must provide for trade

union members in a workplace to elect from
among themselves trade union representatives
in accordance with the constitution of the trade
union.
• A recognition agreement must provide for an
employer to grant a trade union reasonable
access to the employers premises for officials
or authorised representatives of the trade union
to pursue the lawful activities of the

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Recognition of a Trade Union for
Purposes of Collective Bargaining

Trade union including but not limited to—

(a) recruiting members for the trade union;
(b) holding meetings with members of the trade
union and other employees outside of working
hours;
(c) representing members of the trade unions in
dealings with the employer; and
(d) conducting ballots in accordance with the
constitution of the trade union.

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