Changes limit rights but ensure services

The Universities Academic Staff Union at a meeting on November 1, 2017. They later called a nationwide lecturers' strike. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • The labour law is fabricated on the presumption of an unequal bargaining power between the employer and the employee.
  • Whereas the employer has financial power, the employees can only have strength when they act collectively — as is the nature of any strike.
  • The country’s legal framework strongly advocates for public participation in matters of governance.

the dark history of strikes in Kenya is a clear indication that the battle for fair labour practices is far from won. With the pangs of the 100-day doctors’ strike and the recent three-month industrial action by lecturers still fresh, it is clear that the government intends to address this problem and ensure it never recurs.

Touted to be an affront to the constitutionally protected right to labour relations, the proposed amendments to the Labour Relations Act 2007 have come under attack from the Central Organisation of Trade Unions (Cotu), who say the changes would undermine the rights of workers to go on strike.

But the government has downplayed the claims, saying the changes aim at insulating essential services such as healthcare from strikes.

MINIMUM SERVICE AGREEMENT

Among other things, the amendments introduce a minimum service agreement, which requires employees providing essential services to indicate the minimum number of workers required to remain on duty  during a strike, the type of services that must continue, the manner in which such services will be provided and the process of responding to emergencies. Prior to going on strike, it is proposed, a trade union or employers report the dispute to the Cabinet secretary for Labour and, if it has not been resolved after 21 days, the union or employer would issue a seven-day strike notice. Also, provision for a dispute resolution mechanism must be specified in a collective bargaining agreement.

It must be noted, however, that the right to labour relations is not an absolute right; it can, therefore, be limited, provided the limitation meets the requirements of Article 24 of the Constitution. Such limitation has to ensure that enjoyment of rights and fundamental freedoms does not prejudice the rights and freedoms of others and whether there are less restrictive means to achieve its purpose as well as importance.

NATIONAL LAWS

The State, the custodian of the welfare of the people, is tasked with protection of the people’s rights, and it is its obligation under international and national laws to ensure that human rights are observed, respected and fulfilled not only by itself but also other actors.

The labour law is fabricated on the presumption of an unequal bargaining power between the employer and the employee. Whereas the employer has financial power, the employees can only have strength when they act collectively — as is the nature of any strike.

The right to go on strike can, however, if not limited, tip the scales in favour of the employees and consequently result in an imbalance in collective bargaining.

A strike that contravenes this Act attracts penal sanctions.

Of great concern, therefore, is whether the amendments have a negative effect on the right to labour relations.

PROHIBITING STRIKES

In a petition filed by activist Okiya Omtatah in 2014, the Employment and Labour Relations Court ruled that the right to go on strike is adequately limited and that the provision prohibiting strikes in essential services derogates from the core content of the right to strike.

Mr Omtatah had sought a declaration that the State enact a legal and policy framework to secure the rights of workers in essential services and an amicable resolution of labour disputes without disrupting service delivery.

In arriving at the decision, the government had to walk a tight rope of the dilemma of ensuring the citizenry’s right to essential services and good labour practices.

GOVERNANCE

Indeed, the country’s legal framework strongly advocates for public participation in matters of governance. One of the set out ways the people can exercise their sovereign powers is through their democratically elected representative. Perhaps MPs should shift their attention from debating on possible constitutional reforms for personal interests and add their voices to such pertinent issues.

Mr Lusweti is a law graduate. [email protected]