Is Labour Relations Amendment Bill 2019 draconian? COTU vows to fight it ‘with every breath’
Labour Relations Act (2007) Amendment Bill was introduced in Parliament on April 24, 2019 by Kikuyu MP Kimani Ichung’wa. And its passage will be an injury to labour unions.
The labour movement has now intensified pressure on Parliament to reject the proposed changes to the Labour Relations Act, 2007.
COTU Kenya Secretary General Bro Dr Francis Atwoli while addressing the press on Wednesday, November 14, 2019 in Kisumu called on the Parliament to reject Amendment Bill saying that it is an affront to the Labour Movement saying that COTU (K) will oppose both in parliament and in court.
Atwoli claimed the bill is a plan to micromanage the labour movement in Kenya especially in cases of strike.
What draft labour amendments mean?
The new proposal states that a trade union calls secret balloting before it can call on its members to strike.
“A trade union intending to call for a strike by workers who provide essential services shall take a ballot vote prior to issuing a notice of intention to hold the strike,” the bill states.
If adopted by legislators, workers who provide these essential services would be subjected to a maximum of five-day strikes. The five-day window is meant to enable the matter to be referred to the Employment and Labour Relations Court (ELRC) for arbitration.
Hon. Ichung’wa wants air traffic controllers, clinical officers, meteorologists, sanitation workers, marine and port navigational workers, electricity service workers and telecommunication service workers among others to be subjects of this law.
More so, such a strike can only begin if it is supported by 50 per cent of workers, and will automatically hit a brick wall if majority of workers oppose it.
The limitation of the strike to five days will be effected by amending section 78 and 81 of the Act to provide that ‘there shall be no strike or lockout in an essential service’ during that period.
The bill is also seeking to slap a Sh5, 000,000 fine, with the alternative of five-years in imprison, on union officials, should the strikes they call to disrupt the provision of essential services hold more than five days. This also applies to employees who will take part in strikes.
Why unionists protest against plan to amend the laws?
COTU (K) emphasized that every worker in this nation provides essential services in both private and public sectors for the overall national development.
“Everybody provides essential services both in public and public sectors. What every worker does is essential for industrial stability, economic growth and for overall national development. So, whoever is working in whichever sector is providing essential services to Kenyans. You can’t classify that those people in public service since they are providing essential services can’t go on strike. If we allow that, it will be extended to parastatals,” he said.
Article 41 (1)(d) on Labour Relations in the Constitution permits workers to go on strike whereas paragraph (5) states that every trade union, employers’ organisation and employer has the right to engage in collective bargaining.
Unionists argue that these set of amendments is an insult to workers and will weaken the bargaining power of workers and unions.
Noting that these proposals are meant to kill industrial action in the country, unionists note that with these amendments going on struggles and strikes on their genuine demands will almost be impossible. And, they will impose slave like conditions on the workers. Even people supporting workers’ struggles will be punishable with huge fines and imprisonment.
In an International Labour Organisation publication, where the right to strike is subject to restrictions or a prohibition especially for employees engaged in the provision of essential services, the workers concerned should be afforded compensatory guarantees, such as conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned.
What Labour Relations Act provide?
Labour Relations Act No. 14 of 2007 was enacted into law in 2007. This Act was among the five labour related laws that were enacted including the Employment Act, the Labour Institutions Act, the Work Injury Benefits Act and the Occupation, Safety and Health Act.
Combining two earlier laws, namely the Trade Disputes Act and the Trade Unions Act, it provides the main legal foundation for collective bargaining and labour relations. Among other characteristics, it contains substantial modifications, by establishing efficient and responsive operational procedures to promote employment relations and labour peace in the country.
Substantively, one key and highly provocative provision of the Act was the restriction on strikes for persons providing essential services. Article 41 (2) (d) of the Constitution of Kenya 2010 provides that every worker has the right to go on strike.
In terms of Section 78, it provides that no person shall take part in a strike or lockout if any law, court award or collective agreement prohibits that person from carrying out a strike or a lock out, if the subject matter of the strike or lock-out is regulated by a collective agreement, if the parties have agreed to refer the trade dispute to the ELRC or the dispute was not referred for conciliation and if the employees are engaged in an essential service.
Section 81 of the Labour Relations Act 2007 defines essential services as 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.
Article 41 (2) (d) of the Constitution grants every worker the right join a trade union and to go on strike. By permitting every worker the right to engage in strike, the Constitution, which supersedes any legislation, essentially rendered the provisions of the Act which prevented persons engaged in essential services from going on strike as null and void
By Joseph Mambili, Editor, COTU (K).