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Introduction

This is one of those Bills that you just know mean war!

The Labour Relations (Amendment) Bill, 2019 was published in March this year but for some reason, I have not been able to get a copy from the Government Printers to date and I only managed to access the online version last week.

The Bill only deals with strikes and lockouts by those engaged in essential services.

The concept of Essential Services 

According to Section 81(1) of the Labour Relations Act, an “essential service” means a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population. A list of the essential services is contained in the 4th Schedule to the Act, that is: –

  1. Water Supply Services.

  2. Hospital Services.

  3. Air Traffic Control Services and Civil Aviation Telecommunications Services.

  4. Fire Services of the Government or Public Institutions.

  5. Posts Authority and Local Government Authorities.

  6. Ferry Services.

Currently, Section 78(1)(f) prohibits strikes or lockouts by employers and employees engaged in essential services. The Bill proposes to delete this sub-section.

Section 81(3) also completely prohibits strikes or lock-outs by those engaged in essential services.

This prohibition has been challenged in the past as it is seen as curtailing the Constitutional right to strike.

You can strike BUT for ONLY 5 days…

The Bill contains a proposal to include a statement in Section 81(3) permitting those engaged in essential services to strike for not more than 5 days. If the dispute persists after the 5 days, the matter is to be referred to court.

The Committee of Experts of the ILO has in the past expressed concern at the imposition of a limit on the duration of a strike “which, due to its nature as a last resort for the defence of workers’ interests, cannot be predetermined”.

Having the matter immediately escalated to court also goes against the ILO principle of promoting consensus-based approaches to dispute resolution such as through collective bargaining with possibly, the help of independent facilitators. A negotiated agreement, however unsatisfactory, is preferred to an imposed determination.

If at all the matter has to go to court, there should be a timeline within which the dispute should be determined.

The Committee of Experts has also advocated for the establishment of minimum service standards during strikes but the minimum service should be restricted to only those operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service while ensuring that the scope of the minimum service does not render the strike ineffective.

Limiting the right to strike…

The Bill proposes a new Section 81A which contains the following important provisions:-

  1. The Constitutional right to strike enshrined in Article 24 is limited in respect of workers who provide essential services;
  2. This limitation is necessary to avoid interruption of essential services which would endanger the health, life and safety of the population;

Conduct a ballot before you strike…

The Bill also proposes a new Section 81B which contains the following important provisions: –

  1. A trade union intending to call a strike by workers who provide essential services shall take a ballot vote before issuing a notice of intention to hold the strike;
  2. The strike shall be approved by not less than 50% of the members eligible to vote;
  3. The vote shall be valid for two months;

Should you decide to disobey…

The Bill proposes the following penalties: –

  1. An employee who continues with the strike after the 5 days and after the matter has been referred to court shall be guilty of an offence and shall be liable to a fine of not less than Kes. 5M or to imprisonment for a term not less than 5 years or both.
  2. A trade union official who fails to call for an end of the strike after the 5 days shall be liable to a similar penalty.

The Bill has been sponsored by Kimani Ichungwa, MP.

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.

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Comments

  1. I surely hope the five days is not interpreted as five accumulated days but consecutive days. I am not sure where the MP sponsoring the bill is coming from knowing how long employment grievances take long to get addressed. We have all seen doctors and nurses go on strike for months and the responses we get are threats of discontinuation only after there is an uproar from the public after the plight of the of patients in various facilities has been highlighted. The five days will not get things done for the aggrieved parties. I don’t deem it a good move at all.

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