MPs are bracing for a confrontation with workers as they start debating a controversial law requiring doctors, nurses and other medical workers to continue working during strikes.
This is after workers’ unions threatened to seek court action if MPs pass the controversial law.
Under the proposed law, unions representing workers whose services are classified as “essential” will be required to provide a set minimum number of their members who will be required to continue working during strikes.
Two unions, the Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU) and the Kenya Electrical, Trade and Allied Workers Union (Ketawu) this week warned MPs against passing the law, terming it unconstitutional.
“This law is null and void as it goes against the Constitution. The Constitution is clear that every worker has a right to strike, in fact, we went on strike last year based on the constitution and not the Labour Relations Act. MPs can rest assured that we will go on strike again just to demonstrate that the law is unconstitutional,” warned KMPDU secretary-general, Dr Ouma Oluga.
Ketawu secretary-general Ernest Nadome said that workers would seek redress in court if the law is passed and assented to by the President.
“We will lobby MPs and if they ignore us, we will lobby at the presidency so that it is not assented to. Court action will be the last resort,” said Mr Nadome, whose union represents workers in the energy sector.
The medical and electricity workers are among 11 categories of workers in “essential services” whose Collective Bargaining Agreements will contain measures to ensure the faster resolution of disputes over pay and that services are not disrupted during strikes.
Other workers whose unions will be required to provide a set minimum number of its members so that services are not interrupted are: employees of water companies, air navigation, meteorological departments, fire fighters, supply and distribution of fuel, power and lighting, telecommunication services and marine and port navigation.
The government argues in the Bill that the action is necessary, saying: “The right to go on strike under Article 41(2) (d) of the Constitution shall be limited as set out in this Part for the purpose of ensuring the continuation of essential services for the preservation of the life and health of the population and of property.”
This will be implemented if MPs approve the changes to the Labour Relations Act as contained in the Statute Law (Miscellaneous Amendments) Bill published on April 10 and introduced in the National Assembly last week.
The Bill is meant to make minimal but necessary changes to laws and is usually drafted by the Attorney-General’s office, with input from the various ministries, state agencies and parastatals.
The government has in the past been criticised for using the Miscellaneous Amendments Bill to make changes so significant that a separate Bill would have provided more opportunities for public participation and better scrutiny of the proposed changes.
Already, lawyers are unhappy with a proposal to make it possible for all High Court divisions to handle land cases. In the changes to the labour law, CBAs for the listed essential services shall be required to have a dispute resolution mechanism and the minimum service agreement.
The Bill states that a minimum services agreement shall indicate the minimum number of employees required to continue working during a strike, either expressed as a number or a percentage of the current workforce.
It will also state the type of services which must be continued during a strike action, which shall be expressed by job function and not by individual employees and the minimum service levels associated with various functions and duties to be performed during a strike.
The minimum service agreement will also state how the essential services shall be provided during the strike, how emergencies will be handled and a provision for the employer to temporarily hire workers during the strike.
In the proposed changes, the Cabinet Secretary will also have some leeway to intervene in an ongoing strike. It states that the Cabinet Secretary “may declare any other service an “essential service” for the purpose of this section if a strike or lock-out is so prolonged as to endanger the life or health of a person or property.”
The changes to the law appear to be some of the lessons learnt from the prolonged strikes by medical workers over the past year, the worst of which was probably the 100-day doctors’ strike, with provision of primary healthcare affected by the strikes by nurses and clinical officers.
The International Labour Organisation lists Rwanda, South Africa and Tanzania as the only countries in Africa where minimum services and essential services are provided for in law.
With the Statute Law (Miscellaneous Amendments) Bill now under consideration, interested parties can submit their views on the proposed changes, with the Justice and Legal Affairs Committee also getting input from other departmental committees on the changes touching on their ministries.