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Saturday, September 21, 2013

Law relating to strikes and lock-outs.

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
[9] see Hodges-Aeberhard and Odero, 1987, pp. 543 and 545
[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),
[13] ILO, 1970, pp. 735-736

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