An estimated 61% of the global workforce earn their living in what is known as the informal economy (ILO 2018). Whilst this encompasses many types of “non-standard” employment relationships, it is broadly defined as economic activity which occurs outside of state regulations (Chen 2005). Informal workers, almost by definition, are excluded from the rights and protections afforded by labour law. They are thus more vulnerable to workplace exploitation at the hands of “employers” and state actors.

Labour organising – and labour scholarship – has traditionally focussed on formally employed workers. Trade unions are understood as the institution and legal means through which workers’ rights are defended and improved (Scully 2016). Unions leverage the collective power of the workforce into legal power afforded them in labour law in order to advocate on their members behalf.

Until recently, trade unions have tended to view informal workers as “unorganisable” (Gallin 2001). There was an understanding that heterogenous employment relations, and logistical and legislative issues would present challenges to union models. Recognising the size and importance of the informal sector however, advocates have called for trade unions to organise informal workers (Bonner and Spooner 2011). They posit that the relationship between trade unions and informal workers is mutually beneficial – the former bringing institutional knowledge and experience and the latter bringing legitimising numbers of workers.

However others, citing these same issues, question the ability and relevance of trade unions to represent the needs of the majority of workers (Lindell 2010).

Through exploring the case of matatu workers in Nairobi, this essay will argue that organising informal workers provides an opportunity for trade unions to critically reassess what it means to achieve rights at work and the models they use to achieve them, and their role in defining and fighting for workers’ rights.

 

Introducing Nairobi’s matatu sector

Matatus are a dominant feature of Nairobi’s cityscape. The 12 to 33-seater, privately-owned buses provide the majority of public transport to the city’s 3 million inhabitants.

The matatu industry is characterised as informal, yet this label masks the complex political economy in which it operates. Rather than an absence of regulation, there are a number of pieces of legislation and regulatory bodies that govern the sector. The enforcement of these however have been historical characterised by “laxity and bribery” (Khayesi and Nafukho 2016). Bus owners and investors are known to be connected to political elites, police commanders and criminal organisations (Mutongi 2016, Rasmussen 2012, Ferance 2016).

An estimated 78% of Nairobi’s citizens work informally (Behrens et. al 2016). The matatu sector itself provides a vital source of employment, particularly for youth from informal settlements. It is estimated that 70,000 people are directly employed and many more depend on the sector for their livelihoods (Spooner and Manga 2019).

In 2015 Uhuru Kenyatta, president of Kenya, announced plans to “formalise” the public transport system via implementing a Bus Rapid Transit (BRT) system. This system, promoted by the World Bank, has replaced “informal” systems in a number of global South cities with variable and complex effects. In Nairobi alone, the pilot stage is estimated to displace 35,000 workers (Spooner and Manga 2019).

It is within this context that this paper will explore the limits and possibilities of trade union organising in the informal sector.

I will firstly explore how traditional methods of union organising are poorly equipped to account for the multiple exclusions faced by informal workers. Secondly, I will argue that the nature of the relationship between formal and informal actors should not be assumed.

1. Limitations to union models

Heterogenous employment relations and legal barriers are highlighted as challenges to union organising in the informal economy. Some authors present these as barriers to be overcome (Bonner and Spooner 2011), other claim that different strategies or organisation forms must be employed all together (Lindell 2010, Bayat 2000).

1.1 An unclear employment relationship

The labour contract – identifying the “employer” and the “employee”- is a focal point of trade union organising. In the matatu sector however, there is a legal and social ambiguity over who the employer is.

The matatu sector, like many other paratransit systems, operates on a “target” system. Individuals who own vehicles lease these vehicles to individuals who drive them, for a daily fee. This “target” must be made by the crew (usually a driver and conductor) before they take a wage. It is the owner’s responsibility to take care of structural maintenance and vehicle insurance. The crew must pay daily running costs including routine repairs, fuel costs, bribes and fines, and additional workers.

Unlike many other African paratransit systems, where decisions on which routes to ply may be made daily by the crew, matatu routes are regulated by the government. In 2012, it was mandated that all matatu owners be organised into Savings and Credit Cooperatives (SACCOs). The government licences individual SACCOs to ply particular routes.

The institution of the SACCO complicates the nature of the employment relationship. As the body that grants drivers their licences, SACCOs have the power to hire and fire workers. Yet in many cases, workers are still chosen and can be dismissed by owners. The SACCO is listed on workers licences as the “employer”, and they are mandated to pay social security contributions on behalf of their “employees” (although many neglect this duty). However, under the Traffic Act (2012), matatu owners are defined as the employers.  This leads to social ambiguity over who is the employer, with bus drivers, conductors and other members of the matatu workforce, uncertain of who they should be

The ambiguity of the employment relationship enables both SACCOs and owners to avoid the responsibilities of an employer and, when approached by unions, to claim they are not the legal employer.

1.2 Workers’ multiple exclusions

Recognition under labour law translates the power unions derive from their collective organising of their membership base (associational power) and positions in economic systems (structural power) (Wright 2000) into legal and political power.

In order to organise workers legally, Kenyan unions are required to recruit a simple majority (50+1%) of the workforce and submit a list (the “check-off”) of employees to the employer. In this instance, the SACCO. Only once this has been accepted can they legally act on behalf of workers, enter into collective bargaining, and conduct legal strikes.

On submission of the “check-off” to the SACCO, unions have found that unionising workers are subjected to intense harassment. Some workers may be temporarily prevented from working, others – either those identified as more active or to discourage others – are fired.

There are means to pursue these matters in the industrial court. However, unions are presented firstly with the issue that at the time of the harassment occurring, they were not yet legally recognised. This complicates legal proceedings. Secondly, the fast nature of matatu employment is misaligned with the lengthy procedures of court action. Lack of social protection, personal savings, or union funds to support intimidated workers, means they cannot afford to wait for a court verdict. Workers may move on, but in the process, become discouraged from the benefits that unionisation can bring to them. This issue is illustrated by the following interview extract with a union representative:

“The labour laws are very clear, the employees have signed the check-off, you send to them the employer, then they start victimisation, intimidating them. They are threatened, some of them are terminated. If you take a case to the industrial court…Then the case takes 2 to 3 years, the other employees are also demoralised. So, they will…not see this person as receiving justice. So they will start resigning; “this union is not working for us”. We tried to explain to them, it is the legal process, we cannot interfere with the legal process of the courts.” (Union representative)

This illustrates a contradiction with which unions are faced: the process by which they achieve legal protection require forms of legal, social and economic protection to already be in place. These protections, most matatu workers do not have. Authors such as Lindell (2011) and Bayat (2000), argue that this mismatch in union models and informal realities that render union approaches ineffective.

Others argue instead that unions must be critically reflective in adapting these models (Bonner and Spooner 2011, Gallin 2002, Rizzo 2013). Rizzo (2013) for instance, in his in-depth analysis of the struggles of informal bus workers in Dar es Salaam, demonstrates how a collaboration of an informal association and formal union was able to adapt to these differing pressures. The collaboration used more subtle strategies to gain the attention of policy makers whilst minimising conflict with more powerfully positioned bus owners.

The case of matatu workers demonstrates that uncritical application of legal and institutional union methods are less effective and often damaging to informal workers. Efforts must be made by unions to understand the multiple vulnerabilities faced by workers and adapt their strategies with these in mind.

2. Pathways to organisation

Gallin (2002) states there are two pathways through which informal workers become unionised. One occurs when informal workers establish a new union; “self-organisation”. The other is when an existing formal sector union extends its activities into the informal sector; “formal organisation”. A third pathway occurs when a formal sector union extends its activities into the informal through collaboration with an existing informal union or association; “collaborative organisation”. Each of these pathways and actors have unique challenges.

In the matatu sector there are both examples self-organisation and formal organisation.

In 2013 two unions were independently established by groups of matatu workers. They were created as means for workers to represent themselves with matatu owners and newly institutionalised SACCOs. Both unions have faced and continue to face significant challenges. In the process of becoming registered, organisers were harassed and imprisoned by the authorities who branded them as criminal cartels. Joe Ndiritu, Chairman of one of these unions, reflects on mistakes that they made early on; they thought employers would welcome worker self-organisation as a way to improve the industry.  This misunderstanding cost him personally as he was blacklisted by the SACCO and forced to leave the route on which he had worked for over 20 years. It was also a significant set-back in building the union. Both unions recognise that their effectiveness is hindered by a lack of organisational structure and financial resources. Time and resources spent on establishing these detracts from organising activities.

Another union, established in 1943, began organising matatu workers in 2017. This formal sector union had previously refused to organise matatu workers. In light of the significant disruptions and job losses estimated as a result of the proposed BRT, they were encouraged by the International Transport Workers Federation (ITF) to organise in the sector. Unlike the two informal unions, they have well-established internal structures and are able to cross-subsidise reduced incomes from informal organising with that from formal sector dues. The union has extensive experience and knowledge of labour law and institutional processes associated with union activities.

It is these institutional and organisational attributes that some argue give advantage to existing formal unions. Bonner and Spooner (2011), conclude that informal workers need the “organisational experience” of formal unions, whilst formal unions need the numbers of informal workers, to maintain legitimacy. In Gallin’s analysis of organising across the formal/informal divide, trade unions themselves are not imagined as an interest group (Gallin 2002).

Trade unions however take myriad forms in terms of structure and politics. Webster (1987), in his analysis of the trade union movement in South Africa discusses how the institutionalisation of unions acted to separate workers struggles from wider political struggles. Serrano et. al (2011) similarly reflect that institutional unionism is based on a theory of social compromise in which collective bargaining is a “rational” way for both parties to maximise “organisational effectiveness” – the demands of owners and workers seen as equally legitimate.

Rather than to assume a mutually beneficial relationship between actors – formal unions, informal organisations and informal workers – it is necessary to be critical of their positions, rhetoric and relations to one another.

The ITF coordinates the activities of the three unions, assigning zones for organising and facilitating group training sessions. Whilst there is not open conflict between the three actors, the formal/informal divide is apparent.

Prior to establishing the two informal unions both groups of workers approached the formal union for representation and were met with a lack of interest and hostility. This remains a source of distrust among the informal organisers. They question the formal unions’ willingness to understand the problems and needs of informal workers and are unconvinced that their ‘formal’ ways of operating will meet informal needs.

For its part, the narrative of the formal union reflects and reproduces much of the stigma placed on matatu workers as “unruly” and undisciplined.

“Yes, [matatu workers] behaviour is like instinct, so you tell him to join the union, he sees the unions as the traffic laws…No, we are not going to allow our members to break those [traffic] rules. So, you have to obey by the law. And you must be educated so you know what you are supposed to do.” (formal union representative)

A priority of the formal union is to extend existing labour law into the sector via the establishment of an employment relationship, contracts and monthly salaries. They support the BRT project precisely because it will “formalise” the sector. In contrast, the informal unions are sceptical of the project because it will displace thousands of workers. Formalisation and extension of labour law is not only proposed as a way to ensure rights for workers but as a way to enable more effective union activities and to bring discipline to an “unruly” workforce.

In Dar es Salaam, dala dala workers organised to fight for the implementation of labour contracts – a worker-led demand. In this instance, a lengthy process was undertaken between the formal transport union, on the one hand, and the informal association and workers, on the other, to build an understanding of one another. Strategically, this allowed actors to understand how best to use their position in achieving shared goals. Importantly however, it allowed these shared goals to be understood and identified, not least by addressing the many misconceptions and prejudices associated with informal work(ers).

In Nairobi, whilst there is coordination between unions so as to minimise direct competition, there remains little understanding or cooperation across the formal/informal divide. The formal union is the least constrained in terms of resources, however it employs a highly top-down model of organising with little space for input by either informal unions or workers.

In conclusion

Speaking at a conference on organising in the informal economy, the General Secretary of the Nigeria Automobile Technicians Association stated, “Informal workers need the organisational experience of the trade unions while unions also need the vast numbers of informal workers to build more power to leverage more concessions on larger macroeconomic issues” (Komolafe and Emeribe 2009, in Bonner and Spooner 2011).

This essay has argued that the nature of formal-informal relationships and the mutual benefit they bring to both actors, should not be assumed.

Formal union organising in the informal economy may not always be a process of extending and applying existing activities and models. An uncritical adherence to legal and institutional means of organising may overlook the myriad forms of social, legal and economic exclusion faced by informal workers. This may limit the progress in workers’ protections and rights that this model can achieve, and potentially cause damage to workers.

Nor should the position and value of informal workers in this relationship be limited to one of ‘numbers providing legitimacy’, rather they should be considered active collaborators. Gallin (2001) states that in order to organise in the informal economy the trade union movement must “undergo fundamental changes in its culture, its self‐awareness and the way it relates to society”. Engagement with informal actors is an opportunity for unions to critically reassess their goals, structure, and position within wider systems, and adapt where necessary.

 

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