You don’t need a union to strike
2 years ago
The right to strike is guaranteed under Article 41(2)(d) of the Constitution. The provision provides that: – ‘Every worker has the right to go on strike.’
The spirit under this provision is clear, open and general in that the right to strike is fundamental for every worker; whether alone; in the company of others who are not members of any union; or workers who are members of a union.
Kenya is also a signatory to the International Covenant on Economic, Social and Cultural Rights which guarantees workers the right to strike.
What is a strike?
A strike is:-
The cessation of work by employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work, for the purpose of compelling their employer or an employers’ organization of which their employer is a member, to accede to any demand in respect of a trade dispute (Section 2 of the Employment Act and Section 2 of the Labour Relations Act).
What is a trade dispute?
A trade dispute is: –
A dispute or difference, or an apprehended dispute or difference, between employers and employees….concerning any employment matter, and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work…
What is a lawful strike in Kenya?
According to Section 76 of the Labour Relations Act, a person may participate in a strike if: –
- The trade dispute that forms the subject of the strike concerns terms and conditions of employment;
- The dispute is unresolved after conciliation; and
- 7 days written notice of the strike has been given to the other Parties, and to the Minister by an authorized representative of the Trade Union.
Conciliation is a mandatory dispute resolution mechanism for disputes between an employer and a trade union. The dispute is reported to the CS Labour who appoints a conciliator to hear the dispute and make recommendations on settlement. The dispute must be resolved within 30 days, though the parties can agree to increase the time period. If the dispute is not resolved, the conciliator is required to issue a certificate of deadlock which gives the parties the right to escalate the matter to the Industrial Court. Conciliation does not apply unless there is a trade union in the picture.
According to Section 79 of the Labour Relations Act, it is unlawful for an employer to take disciplinary action against an employee who participates in a lawful strike a.k.a protected strike.
In Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Pwani University (2015)eKLR, the Court relied on the South African case of Eppwawu vs. Metrofile [Pty] Limited  Zacc 30;  2 Bllr 103 [Lac], where it was observed that:-
…The purpose of a protected strike is to enable Employees engage in a form of power play with the Employer, with a view to influencing the Employer into offering better conditions of employment….The Employer ordinarily must have everything to do with a protected strike, and the subject matter capable of being negotiated and resolved between the Employer and the Employee.
On the other hand, a strike that does not comply with the Labour Relations Act is an unprotected strike. An employee who takes part in an unprotected strike is deemed to have breached the employee’s contract and is liable to disciplinary action.
Can an employee who is not unionized strike?
The Labour Relations Act only provides for strikes that are carried out by employees who are unionized.
I think that an affirmative answer to this question would be contrary to the spirit and purpose of Article 41(2)(d) of the Constitution which provides the right to strike as a right of every worker. An affirmative answer would also be discriminatory, contrary to Article 27 of the Constitution which accords every person equal status before the law and also the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
The right to strike is not absolute meaning its application can be limited – as is done, for example, in the provision prohibiting doctors from going on strike (not that the limitation has been effective when it comes to doctors).
According to Article 24 of the Constitution, a right or fundamental freedom should not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. It should also be very clear, from the wording of the legal provision, that its intention is to limit a certain right or freedom.
In my view, there is no justification for limiting the right to strike to employees who are unionized. Such a limitation is unconstitutional.
Non-unionized employees and striking
In the case of non-unionized employees, the first attempt to handling a trade dispute is by engaging alternative dispute resolution mechanisms by raising their grievances within the employer’s internal grievance handling mechanism.
According to Section 12 of the Employment Act, employers with more than 50 employees are required to have a grievance handling mechanism. But really, good practice is that every organization should have a grievance handling mechanism.
The Constitution also encourages parties to a dispute to engage in alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
The idea is to give notice of the dispute and an opportunity to the employer to try and resolve the matter amicably. Strikes are very costly hence the need to attempt amicable resolutions first.
If the dispute remains unresolved after a reasonable period and good faith discussion, the employee should give notice of the strike to the employer.
Examples…did the Uber drivers strike the other day? I don’t believe they are unionized…other examples???
Written by Nelson Gachuki
Edited by Anne Babu
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