By Kate Kiama
A
strike is defined as the cessation of work or a concerted refusal to work by employees
acting in combination for purposes of compelling their employer or an
employer’s organization to accede to any demand in respect of a trade dispute.
A lock-out is defined on
the other hand as the closing of a place of employment, or the suspension of work,
or the refusal by an employer to continue to employ any number of employees for
the purpose of compelling those employees to accept any demand in respect of a
trade dispute. It is important to note that the purpose of a lock-out is not
intended to finally terminate employment.
The discussion below will
attempt to address the Kenyan situation using national and international
provisions relating to strikes as a fundamental right of the employees.
Pursuant to Article 41 (1) and 41
(2) (a)-(d) of the Constitution, every person has the right to fair
labour practices, the right to fair remuneration, reasonable working conditions,
to join a trade union as well as the
right to go on strike. The Labour Relations Act 2007[1]
recognizes two types of strikes under Sections 76 and 78. Section 76 of the LRA
2007 defines a protected strike as a lawful strike which follows the
laid out procedure pursuant to the Act. For a strike to qualify as a protected
one, three conditions must be met. Firstly, the dispute must be about the terms and conditions of
employment or the recognition of a Trade Union[2].
Secondly, the dispute must be referred to conciliation. Parties are free to
appeal on the conciliators decision if not satisfied. The court in TSC v.
KUPPET & Anor 2013[3] held
that the purported teachers strike that paralyzed the education sector earlier
this year was not a lawful strike because
the conciliation process had
never begun in earnest, and consequently
the parties were ordered to resume the
conciliation process before legally joining a strike. Thirdly, the act mandates
employees to give their employer and the relevant cabinet secretary a minimum
of seven day notice prior to the commencement of the strike.
If an employee participates in a protected strike,
they will not be in breach of contract[4]
and therefore an employer cannot dismiss an employee or take disciplinary
action against an employee who takes part in a protected strike. It is however
prudent to point out that an employer is nevertheless not under any obligation
to remunerate the employee for services that the employee did not provide
during the duration of the strike pursuant to Section 79 (6) of the Labour
Relation Act 2007. In the previously discussed case of TSC v. KUPPET & Anor
2013[5],
the government’s decision to pay the striking teachers was a political decision.
In contrast the Employment Appeal Tribunal in the decision of Sunderland
Polytechnic v Evans 1993[6] held
that deductions of an employee’s wages based on an industrial action are lawful
deductions.
A prohibited strike as provided for under Section 78 LRA 2007 is
essentially an illegal strike which ignores all the laid down procedure yet the
employees withdraw their labour. They are often referred to as wild-cat strikes.
An employee who takes part, incites or instigates others to take part in an
unlawful or prohibited strike is liable for breach of their contract of
employment.[7] The
employee will be subject to disciplinary action and is not entitled to any
payment or benefit under the Employment
Act 2007 during the period in which the employee participates in the strike.
The European Court in Demir and
Baykara v Turkey[8]
making reference to the conventions of the ILO
and the European Social Charter
held that the right to strike is a protected right but must be conducted in
accordance with certain laid down procedures.
Section 81 of the Labour
Relations Act 2007 as read with Article
24 (5) (c) (d) of the
Constitution prohibits the right to strike for employees in the essential
services industry including persons in the Kenya Defence Forces or the National
Police Service.
It may be surprising to find that
the right to strike is not set out explicitly in ILO Conventions and
Recommendations.[9]
Two resolutions
of the International Labour Conference provide guidelines for ILO policy on the
recognition of the right to strike in member States. These include the Resolution
concerning the Abolition of Anti-Trade Union Legislation[10] in the
member states of the International Labour Organization, adopted in 1957 which called
for the adoption of ‘laws …ensuring the effective and
unrestricted exercise of trade union rights, including the right to strike, by
the workers’.[11]
Similarly, the
Resolution concerning Trade Union Rights and Their Relation to Civil Liberties,[12] adopted
in 1970, invited the Governing Body to instruct the Director-General to take
action in a number of ways ‘with a view to considering further action to
ensure full and universal respect for trade union rights in their broadest
sense’, with particular attention to
be paid, inter alia, to the ‘right to strike ‘.[13]
[1] Hereafter referred to as LRA 2007
[2] The matter must be one able to qualify
as being a trade dispute pursuant to Section 2 LRA 2007.
[3] Petition No. 22/2013 eKLR 2013
[4] Section 79 (5 ) LRA 2007
[5] Petition No. 22/2013 eKLR 2013
[6] IRLR 196
[7] Section 80 LRA 2007
[8] Application No 34503/97, 12
November 2008
[10] The
Abolition of Forced Labour Convention, 1957 (No. 105), prohibits the use of
forced or compulsory labour “as a punishment for having participated in
strikes” (Article 1, subparagraph (d);
[11] ILO, 1957,
p. 783
[12] the
Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92),
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