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{
    "id": 1115629,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1115629/?format=api",
    "text_counter": 310,
    "type": "speech",
    "speaker_name": "Mwea, JP",
    "speaker_title": "Hon. Josphat Kabinga",
    "speaker": {
        "id": 13441,
        "legal_name": "Josphat Kabinga Wachira",
        "slug": "josphat-kabinga-wachira-2"
    },
    "content": "Hon. Temporary Deputy Speaker, the Committee received the initial response from the National Treasury on 3rd August 2021, and an updated version on 31st August 2021, both of which were promptly shared with the hon. Member. We have copies of the same here. The Committee invited officials from the National Treasury, KPA, Dock Workers Union (DWU) and the hon. Member to a meeting on 2nd September 2021 to deliberate on the matter. The Committee further held meetings with the Salaries and Remunerations Commission (SRC) on 21st September 2021. During the two meetings, the Committee was informed that KPA and DWU signed a two-year CBA for Financial Year 2021/2022 on 12th March 2021. The National Treasury and KPA confirmed that the Authority is in a position to sustain the salary increment. The SRC informed the Committee that it declined to grant clearance to facilitate the registration of the CBA between KPA and DWU at the Employment and Labour Relations Court on the grounds that the CBA is a two-year agreement and not a four-year one as prescribed in the SRC guidelines issued on 4th July 2012, and revised on 21st March 2014 and 14th October 2019. This raised the issue of whether the SRC guidelines are legally sound. The SRC guidelines were issued by SRC through letters addressed to accounting officers of various state organs, constitutional commissions, independent offices and other public bodies. The guidelines prescribed the procedure to be followed by public service organisations and requirements to be met while seeking SRC advice on remunerations and CBA in the Public Service. Hon. Temporary Deputy Speaker, the right to collective bargaining is enshrined in Article 41 (5) of the Constitution, which states that every trade union, employers’ organisation and employer has the right to engage in collective bargaining. A scrutiny of the SRC guidelines reveals specifications on a manner of undertaking collective bargaining as well as the contents of the agreement. For instance, the guidelines state that the cycle of CBA shall be four years. It is the Committee’s considered view that SRC’s directives regarding CBAs reduce or limit the right to engage in collective bargaining as safeguarded in Article 41 (5) of the Constitution. This brings us to the question of whether the right to labour relations as provided for under Article 41, and in particular collective bargaining, may be limited? The answer to this question is found in Article 25 of the Constitution, which sets out the fundamental rights and freedoms that may not be limited. The right to engage in collective bargaining is not listed under Article 25 of the Constitution and, therefore, it can be inferred that it is a right that may be limited. Upon that conclusion, the question that follows is how such a right of fundamental freedom can be limited. This concern is adequately addressed by Article 24 of the Constitution, which guides that such limitation must be within the confines of legislation enacted by Parliament. Article 24 (1) provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law. The upshot, therefore, is that a person who desires to limit a right or fundamental freedom of the Bill of Rights must do so through a law. Upon that ascertainment and the earlier option that the imputed SRC guidelines limit the rights to collective bargaining, it follows that one must then ask whether the SRC guidelines on the collective bargaining are law as envisioned in the Constitution. Hon. Temporary Deputy Speaker, the Constitution, in Article 94 (5), empowers Parliament to make provisions having the force of law in Kenya and precludes all persons or bodies from so doing expect under authority conferred by the Constitution or by legislation passed by the Legislature. Article 94 (6) further stipulates that legislation that confers authority to make provisions having the effect of law shall expressly specify the purpose and objectives for which The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}