Labour Union Within The International Labour Law

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INTRODUCTION

The International Labour Organization which is an agency of the United Nations is the only tripartite organization agency of the United Nations. This means that it has a government, employer and worker representatives in order for it to fulfill its objectives efficiently. In order to achieve this standards promoting decent working conditions for all women and men, it aims at promoting rights at work, encouraging decent working conditions, enhancing social protection, strengthening dialogue in handling work related issues. To see to this, it works its 181 member states.

BRIEF HISTORY OF THE ILO

The International Labour Organization was created in 1919 as part of the treaty of Versailles that ended the 1st World War. This treaty stated that the Universal and Lasting peace could be accomplished only if it was based on social Justice.

In 1914, the International Labour Organization adopted the Declaration of Philadelphia that stated that labour is not a commodity and under the principle that “poverty anywhere is poverty everywhere” set up basic economic and human rights.

In order to achieve its objectives, the ILO launched technical assistance programs which provide expertise and assistance to governments, workers and employers worldwide, especially in developing nations.

In 1998, delegates to the International Labour Conference Adopted the Declaration on Fundamental Principles and Rights at Work which are:

Right to freedom of association and collective bargaining
Elimination of child labour, forced labour and discrimination linked to employment.

The above rights enable an aggrieved parson to claim freely and equally based on fair share of wealth which they have helped to generate.

APPLICATION OF THE ILO OBJECTIVES IN KENYA

1. DECENT WORK

Work is important especially when it comes to a person’s well-being. This is because alongside enabling a person to earn an income, it strengthens individuals, their families and communities. It also enhances economic and social advancement.

The term decent work here is used to mean work that allows room for personal development (i.e.) productive work, work where there is social integration, work where people are free to express their concerns, enabling workers to organize and participate in the decisions that affect their lives and lastly equality of opportunity and treatment for all women and men. Therefore countries have to factor in these objectives in their development policies.

In Kenya, we had the Decent Work Country Program (DWCP) for Kenya 2013 – 2016 that focused on interventions on the following areas:

Enhancing social protection through policies and actions that promote social assistance.

In occupational Safety and Health, (OSH) there is scarcity of data in order to characterize the conditions under which workers are engaged. There is low awareness on OSH therefore exposing risk to workers at the work place.

Promotion of employment creation and employability.

This is in terms of improving access for young women and men to decent and productive employment opportunities.

Strengthening industrial relations.

This happens by ensuring there is an effective system promoting social dialogue that helps in domestication of ILO standards.

Between the years of 2007 and 20111, the main priority areas of the ILO in support of the National Development Goals were:

Expansion and strengthening of the principle of inclusion for enhanced influence of tripartite partners in the national and international framework.
Expansion of social protection and fight against HIV/AIDS at the work place.
Youth empowerment, employment and elimination of child labour particularly in its worst form.

2. STRENGTHENING SOCIAL DIALOGUE ON WORK RELATED ISSUES

These are relations that are held between labour and management with or without direct government involvement in the matter. When used in the right way, Social Dialogue is a flexible tool that enables government and employers and workers organizations to manage change and achieve economic and social goals. It gives an equal voice to the workers, employers and the government through their governing councils. It ensures that the views of the social partners are closely reflected in ILO Labour Standards.

It helps prevent important economic and social issues, encourage good governance, advance social and industrial peace and stability and boost economic progress.

ELEMENTS OF SOCIAL DIALOGUE

Independent workers with all the relevant information to engage in social dialogue.
There has to be commitment from all parties to engage in social dialogue.
There has to be respect for the fundamental Rights of Freedom of Association and collective bargaining.
Great and appropriate support from institutions (i.e.) the state has the mandate to create a stable political and civil climate which enables autonomous employers and workers organization to operate freely.

In the decided case of John K Biiy v Seth Panyako & 5 others (2017) EKLR CAUSE NO. 1069 of 2017 .on the month of 5th June 2017 the Kenya National Union of Nurses through the mandate of the General Secretary of the National Governing Council called for a strike without the knowledge of the chairman of the union who is the claimant, called for a national strike of all the nurse. The claimant sought the court in order to for the strike to be declared illegal because 1st he had not been aware of the strike and also because there was a Recognition Agreement signed Between the Union and the County Governments and a CBA awaiting signing further that in the recognition agreement, there was a stipulation that no industrial action could be taken as the parties continued with negotiations.

It was held that the strike of 5th June 2017 was illegal and that the strike on 5th June 2017 was illegal and that it be called off, as it was interfering with the smooth running of the Health Care Services in the Country.

In Kenya, Social Dialogue occurs as in the above case where all the actors such as the workers, employers and government representatives come together and dialogue in order to come up with an amicable solution to a discourse that existed before. Strong labour unions agree to campaign for workers’ rights by way of industry-wide collective bargaining (i.e.) strikes which can occur either at the county level or national level. Through his, the government and employers by all means work hard to ensure that their strike or boycott does not disrupt work. Kenya’s Vision 2030 lays the foundation for social dialogue where one of its key objectives is “raising labour productivity to international levels.”

3. ENHANCING SOCIAL POTECTION

This refers to policies and programs which reduce poverty and diminish vulnerability by promoting efficient labour markets and diminishing a workers exposure to risks. It also improves the workers ability to manage economic and social risks such as unemployment, sickness, disability and old age. Article 43 of the Constitution of Kenya, 2010 which provides for the right for every person the right to social security it also binds the state to provide appropriate social security to persons who cannot otherwise be able to provide for it themselves.

This right to social protection can be threatened where death of a main income earner, where there is no accessibility to healthcare services, where there are high numbers of unemployment and also where work related injuries occur among others .

The ILO has a Social Protection floor which is a set of nationally identified and defined social security guarantees that secure protection and prevent or alleviate poverty, vulnerability and social exclusion .it is important to note that social protection works closely with the Decent Work Country Program (DWCP) .

In Kenya, the social protection policy has three key objectives of social protection which are :

the provision of assistance,
the provision of health insurance,
The provision of social security.

In the decided case of Efil Enterprises Limited V. Dickson Mathambyo Kilonzo (2018) eKLR , Mr. Dickson Kilonzo who had been employed by Efil Enterprises instituted a claim for special damages, general damages, costs and interests. During the course of his duties while he was pushing a wheel barrow full of concrete on a stony path, he was injured on his left arm. He claimed the incident was caused by the negligence and breach of statutory duty on the part of the appellant. This wheelbarrow had been tied against a rope so as to aid in moving against the rocky path. In the process, the rope snapped and he fell injuring his left hand around the wrist. Despite having previously asked for protective gear from his employer, he was not given any by his employer. Neither was he given any training by the employer. Immediately he got healed and returned back to work, he was laid off without being compensated.

In this case, the appellant relied on Section 13 1 (a) of the Occupational Safety and Health Act which provides that every employee shall at the workplace (a) ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace. In claiming this he was actually saying that he was not liable for the injury that occurred to the employee because it was the employee that failed to take caution. The appellant was found liable by the court because he had failed to ensure the environment in which the respondent worked was safe. Therefore, from the above case, we see that the employer in this case had not taken sufficient steps in order to ensure there was a safe system of work at the construction site and hence lead to the injuring of the employee.

4. PROMOTION OF RIGHTS AT WORK

1. Freedom from Discrimination

The ILO has a convention called the Discrimination (Employment and Occupation) Convention, 1958

This convention deals with discrimination in respect of employment and occupation. Article 2 of the Convention establishes that it is the obligation of the member states to pursue a national policy that promotes equality of opportunity and treatment in respect of employment and occupation with a view of eliminating discrimination.

Lots of people suffer from discrimination especially at work. This in essence is a violation of a most basic human right, with great social and economic consequences. Discrimination curtails opportunities and creates social tensions and inequalities. Tackling discrimination is an essential part of promoting decent work .

It is prudent to note that both Article 27 of the Constitution of Kenya 2010 and Section 5 of the Act prohibit discrimination on the basis of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status.

Section 5(7) of the Act provides that where an employee alleges that they have been discriminated against, then the burden of proof shifts to the employer to show that it did not take place. The Convention Concerning Discrimination in Respect of Employment and Occupation 1958 ARTICLE 1 defines discrimination as “ any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction, or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment occupation.

In the decided case of Ol Pejeta Ranching Limited V. David Wanjau Muhoro (2017) eKLR in this case, it was held that, taken as a whole, the evidence adduced in the case led to a reasonable conclusion that there was discrimination against the respondent based on race. In this case, the respondent claimed that during his employment he was subjected to unlawful discrimination based on his colour. The respondent alleged that white managers holding similar responsibilities and doing work of similar value or equal value as the respondent were paid disproportionately higher salaries on no justifiable grounds at all. The respondent came to this conclusion by comparing his salary to that of his comparators. The appellant in his defence claimed that the judge should have considered the respondents and the comparators respective qualifications, abilities and competence to determine whether there was a justifiable basis for the differentiation in their terms and conditions of employment.

As is the rule that where an employee alleges discrimination, the burden of proof rests on the employer to prove that in fact there is no discrimination. In the above case, the appellant (employer) failed to tender evidence to the effect showing that indeed white managers held superior academic qualifications as provided for by Section 107 of the Evidence Act which provides that where a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

However, there are instances when discrimination may be considered positive and therefore allowed through affirmative action. This is as provided for under Section 5(4) of the Employment Act as analyzed below.

Employment Act 2007

Section 5

An employer shall promote equal opportunity on employment and strive to eliminate discrimination in any employment policy or practice.
No employer shall discriminate directly or indirectly against an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinion, nationality or ethnic or social origin, disability, pregnancy, mental status.

It is not discrimination to:

Take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the work place.
Distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
Employ a citizen in accordance with the national employment policy or
Restrict access to limited categories of employment where it is necessary in the interest of state security

Constitutional Provisions

Article 27 Equality and Freedom from Discrimination states that very person is equal before the law and has the right to equal protection and equal benefit of the law. This is to mean that one enjoys fully their rights and freedoms. In this case, it states that both women and men ought to be treated equally in their places of work and no discrimination is allowed either directly or indirectly. Article 41 Labour Relations provides as well that every person has the right to fair labour practices. The right of workers and employers to form and join organizations of their choice is an important aspect of any democratic nation. It is a basic right that is integral for social and economic progress. This is linked to the right to collective bargaining. Representation of workers is an important part of decent work as it enriches political dialogue. Article 41 2 (c) of the constitution provides for this right to freedom of association

CONCLUSION

In conclusion therefore, it is evident that even with the policies and the various protections available under law for the worker against discrimination; there is still a lot that has to be done in terms of enforcement of these labour policies in order to protect the employee against discrimination here in Kenya because discrimination still exists. The enforcement mechanisms of the ILO standards in Kenya is quite poor as there is still work to be done on a few areas such as elimination of discrimination at the work place

REFERENCES

The Constitution of Kenya, 2010

STATUTES

The Employment Act ( CAP 226) Revised Edition 2012 (2007)
The Occupational Safety and Health Act, 2007
The Evidence Act (CAP 80) Revised Edition 2014

CONVENTIONS

The Convention Concerning Discrimination in Respect of Employment and Occupation1958 no. 111

CASES

Ol Pejeta Ranching Limited v. David Wanjau Muhoro (2017)eKLR Civil Appeal 42 of 2015
Efil Enterprises Limited v. Dickson Mathambyo Kilonzo (2018)eKLR Civil Appeal 28 of 2015
John K Biiy v. Seth Panyako& 5 others (2017) eKLR NO.

BOOKS

Devereux S. and R. Cipryk (2009) Social Protection in Sub-Saharan Africa: A Regional Overview, IDS/Centre for Social Protection

WEBSITES

https://www.ilo.org/global/about-the-ilo/WCMS
https://www.hakijamii.com/State-of-Social-Protection-in-Kenya-Final.pdf
https://www.ilo.org/secsoc/areas-of-work/policy-development-and-applied-research/social-protection-floor

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