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Can CBA covered workers negotiate terms individually?

Striking workers. Employees whose terms are covered by a CBA can only have their employment terms reviewed when a new CBA is being negotiated. Photo/PHOEBE OKALL
Striking workers. Employees whose terms are covered by a CBA can only have their employment terms reviewed when a new CBA is being negotiated. Photo/PHOEBE OKALL  

Terms and conditions of employment may be set by the letter of appointment as agreed between the employer and employee, or by a collective bargaining agreement (CBA) negotiated between an employer and a trade union.

Negotiation of collective bargaining agreements is provided for in the Labour Relations Act which provides that an employer, group of employers or an employers’ organisation that recognises a trade union shall conclude a collective agreement setting out terms and conditions of service for all unionisable employees covered by the recognition agreement.

The International Law Organisation (ILO) Convention 98 recognises the right of both workers and employers to collectively bargain for terms and conditions of service.

There is a write-up by Bill Bennet, an on-line commentator on employment issues, that makes some interesting reading about the usually knotty subject of salary negotiations.

He discusses how workers in Australia, New Zealand, and the US used to negotiate salaries “in the good old days”.

Mr Bennett has a rather humorous style of putting across his message.

If the things he wrote in a 2008 article truly represent what used to happen, then salary negotiations were even more intense then than they tend to be these days.

“Pay bargaining was even tougher in America, where negotiation could involve guns,” he wrote.

That’s how serious, or is it nasty, things were then.

Hopefully, no trade unionist shot an employer because then there would be no deal.

In Australia and New Zealand, union members and employers would lock themselves “in smoke-filled” rooms to agree on a standard pay rise for employees, but hardly were the discussions ever smooth.

From Mr Bennett’s article, which can be accessed on http://billbennett.co.nz/how-to-negotiate-a-pay-rise-in-uncertain-times, it sounds like “strikes, lock-outs, mass-sackings”, were more frequent then.

Firm stands were taken by both sides, and once a deal had been struck, it was conclusive and irreversible.

“Generally, pay negotiations would settle down with an agreement where every worker would get a similar pay rise,” writes Mr Bennett.

The connection this has with the present is that even now, salary negotiations are not an easy task.

After union representatives and employers have negotiated the details and appended their signatures on paper, the deal will have been sealed for the specified period.

Collective agreements spell out the terms of employment for unionisable employees, basically outlining wage scales, increments, working hours, overtime details, and so on.

They are binding. Which is why when a question came in recently about whether it was possible for a union member to directly negotiate salary with an employer, it carried with it some heavy surprise.

The question could not have come out of nowhere.

An employee must have made that kind of an attempt — going back to the employer in question to try to individually present a case for a salary review, and probably waving a good appraisal sheet as a reason.

Employees whose terms are covered by a CBA can only have their employment terms reviewed when a new CBA is being negotiated.

However, this does not mean that an employee cannot personally negotiate better terms over and above those in the CBA.

For example, an employee who has performed better than others may seek to negotiate a merit increase promotion which may not necessarily be provided for in the CBA.

An employer who agrees to renegotiate the terms of a union member on individual basis must be careful to ensure that it is not negating the spirit of the CBA, whose function really is to regulate the terms and conditions of employment of unionisable employees.

Section 59 of the Labour Relations Act expressly states under sub-section 1, that a collective agreement binds for the period of the agreement.

Unionisable employees

It also binds the parties to the agreement, these being “all unionisable employees employed by the employer, group of employers, or member of the employers’ organisation party to the agreement”, and “the employers who are or become members of an employers’ organisation party to the agreement to the extent that the agreement relates to their employees”.

Section 59(2) states further: “A collective agreement shall continue to be binding on an employer or employees who were parties to the agreement at the time of its commencement and includes members who have resigned from that trade union or employer association.” The law goes on to clarify under Section 59(3) thatl, “The terms of the collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement.”

This also covers new employees who are unionisable.

It means that the terms that shall be drawn for them will be in accordance with the applicable collective agreement.

It would not be wise for an employer to negotiate with them better terms than those agreed in the CBA, as this would create disharmony at the workplace, but also expose the employer to accusations of discrimination which is prohibited by section 5(3) of the Employment Act, 2007.

Ms Mugo is the executive director of the Federation of Kenya Employers.

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