The Miscellaneous Amendment Bill 2018 and Its Implication on Labour Relations in Kenya

In 2007, the Labour Relations Act No. 14 of 2007 was enacted into law. The Act was among the five labour related laws enacted that year, which included the Employment Act, the Labour Institutions Act, the Work Injury Benefits Act and the Occupation, Safety and Health Act.

The Act represented the main legal foundation for collective bargaining and labour relations. It combined two earlier laws, namely the Trade Disputes Act and the Trade Unions Act and, in many respects, contained substantial improvements, particularly in creating more efficient and responsive operational procedures to promote employment relations and labour peace in the country.

What does the law provide?

One key and highly controversial 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.

Taking the above into account, Section 78 of the Act 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 lockout, if the subject matter of the strike or lockout is regulated by a collective agreement, if the parties have agreed to refer the trade dispute to the Industrial Court or the dispute was not referred for conciliation and if the employees are engaged in an essential service.

What services may be considered as essential services?

Section 81 of the Labour Relations Act 2007 describes 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.

The Fourth Schedule of the Act lists the following as essential services: (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, and (6) Ferry Services.

In 2010, soon after the enactment of the new labour laws, Kenya promulgated a new constitution, Constitution of Kenya, 2010 which also introduced a raft of fundamental rights and freedoms that had not been provided for under the previous constitution.

As mentioned above Article 41 (2) (d) of the Constitution grants every worker the right join a trade union and to go on strike. By granting every worker the right to go on 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.

What are the proposed changes the Bill seeks to introduce?

Eight years after the promulgation of the Constitution, there is now an effort to align the labour laws enacted in 2007 to align them with the new Constitution. This is being proposed through the Statutes Law (Miscellaneous Amendments) (No.2), 2018 National Assembly Bill No. 12 of 2018 that proposes amendments to the Employment Act 2007, Labour Institutions Act 2007, Labour Relations Act 2007 and NSSF Act.

In amending the Act, the Bill proposes limitation of workers’ right to go on strike by deleting Section 78 (1) (f) of the Act which prevented a person engaged in the provision of an essential service from going on strike. The Bill seeks to introduce a new provision in its place that does not prevent such workers from going on strike but instead limits this right. 

Part XA of the Bill states that the right to go on strike under Article 41(2) (d) of the Constitution shall be limited as set out in this part for the purpose of ensuring the continuation of essential services for the preservation of the life and health of the population and of property.

Amongst the proposals in the Bill geared towards balancing the right to strike and preventing the potential lack of essential services during a workers strike is the requirement for all workers engaged in essential services to enter into collective bargaining agreements with their employers and such an agreement shall be accompanied by a minimum services agreement.

This minimum services agreement shall specify the minimum number of workers that will be at work during a strike to provide essential services.

The minimum services agreement shall also indicate the type of services that must continue during strike action and how the services will be provided. The Bill also stipulates that the agreement should have a waiver of the right of the employer to engage replacement labour to provide services in excess of the minimum services during the period of the strike.

The proposed changes to the NSSF Act provided under the bill would also require that trade unions report any dispute to the Labour Cabinet Secretary and wait for intervention for a prescribed period of twenty one (21) days prior to taking any action. Furthermore, it is also provided that a seven (7) day notice is to be served upon the Cabinet Secretary in the event that there is no resolution with a schedule to indicate that some employees shall remain on duty throughout the strike period for the provision of services.

Recently, the Employment and Labour Relations Court temporarily barred Kenyatta National Hospital Workers from going on strike.

What is the penalty for failing to comply with the provision of the Bill limiting the right to strike?

Essentially, the proposed changes state that employees will be deemed to have breached their employment contracts and committed an offence in case a strike disrupts delivery of essential services. It states that any person who knowing or having reasonable cause to believe that the probable consequences of their actions may endanger human life or public health, or cause serious bodily injury to any person commits an offence shall be liable on conviction to a fine not exceeding KShs 500,000 or imprisonment for a term not exceeding three months.

The Bill has received support from National Assembly Leader of Majority Aden Duale who explained that the proposals were designed to protect industries and ensure that workers’ rights to industrial action did not clash with citizens’ rights and that there is a minimum workforce to control damage during strikes.

The Bill is however not without its skeptics. Central Organisation of Trade Unions Secretary General Francis Atwoli stated in a local daily that the proposals were meant to kill industrial action in the country and that the relevant stakeholders were not consulted before the proposals were agreed upon. Other skeptics argue that the provision, especially on the requirement to provide a list of a minimum number of employees to provide services during the intended boycott period rendered such strikes ineffective and defeated their purpose.

The concept of essential services is however not novel nor is it limited to Kenya. For the past few decades and with the growth and protection of workers’ rights, governments have sought to minimize the effect of such strikes on their populations. It is such strikes that led The International Labour Organization (ILO) for example to provide an opinion on strikes and provision of essential services.

In an ILO publication, ILO Principles Concerning the Right to Strike it was expressed that the right to strike, though fundamental and instrumental to protect economic and social interests of employees, is not absolute. A minimum level of services may be compulsory in the event of a strike when personal safety, accident prevention and the protection of equipment and instruments are at issue.

It was expressed that essential services in the strict sense, where the right to strike may be subject to major restrictions or even prohibitions, to be: the hospital sector; electricity services; water supply services; the telephone service; and, air traffic control.

In a bid to also mitigate the effect of limiting the right to strike for workers engaged in the provision of essential services, the publication also proposes that those who lose an essential means of defending their interests should be afforded appropriate guarantees to compensate for this restriction.

What we can conclude

This position is also the common stand internationally with many countries having provisions that seek to balance workers’ right to strike and the provision of essential services to the general public. The Bill, it must be said is a step in the right direction towards harmonizing the current labour laws with the Constitution.  Whether or not the provisions are fair will always be up for debate but when analyzing the proposed amendments, one must always take the approach of a neutral arbiter.

Should you have any enquiries regarding this article or any general queries on the subject matter, kindly contact Carole Ayugi, Managing Partner and Daniel Wandera, Lawyer, MMAN Advocates.

Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Nothing on this article is intended to guaranty, warranty, or predict the outcome of a particular case and should not be construed as such a guaranty, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations

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