Workers’ right to strike cannot be taken away

COTU Secretary General Farancis Atwoli. [Benjamin Sakwa/Standard]

The five sets of our labour laws came into force in 2007 as a result of concerted efforts by social partners, namely workers, employers and the Government through an International Labour Organisation-funded programme in 2001-2004.

These laws have been cited globally as the most progressive legislation and many nations have sought to interact with us in order to learn about the Laws.

However, there is now a proposal to amend these laws in the name of ‘aligning’ them with the new Constitution 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.

The Bill does not provide adequate justification for the proposed amendments based on the Statutory Instruments Act, 2013 that compels lawmakers to promote the legal effectiveness, clarity and intelligibility of proposed edicts to anticipated users through an ‘explanatory memorandum’

This is a statement that explains the purpose, effect and operation of a proposed instrument, including a Bill. It should give a brief description of its purpose, legislative context, policy background and impact, among other considerations.

Omnibus amendment

This requirement is lacking when it comes to the Statute Law Miscellaneous Amendment Bill, 2018. This omission allows Parliament to make various amendments with far-reaching consequences as opposed to the amendment of a particular Act not brought under this omnibus amendment.

In addition to the Statutory Instruments Act, the National Assembly Standing Orders 117 and 122 require every Bill to be accompanied by, among others, (i) a memorandum containing a statement of the objects and reasons of the Bill; (ii) disclosure on limitation of fundamental rights and freedoms, if any; (iii) a statement of how it concerns county governments; (iv) and a statement that the Bill is not a money Bill.

In the absence of any rationale, one is unable to interrogate the Bills with context in mind. There should be a succinct description of the problem, of any attempts made to rectify it, and why the Bills offer the best solution.

In amending the Labour Relations Act, 2007, the Bill proposes limitation of workers’ right to go on strike by introducing a new clause. 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.

The Bill goes further to define ‘essential service’ to mean any of the services whose interruption would probably endanger the life of a person or health of the population or any part of the population, or property.

As proposed, the Bill gives the Cabinet secretary in the Ministry of Labour and Social Protection power to increase the list of essential services and further limit the number of workers who can go on strike without directly consulting the trade unions. He only has to consult the Labour Board. This clause gives room for further violation of workers’ right to go on strike.

Minimum number

The minister may declare any other service an ‘essential service’ for the purpose of this section if a strike or lockout is so prolonged as to endanger the life or health of a person or property.

The Bill introduces a minimum services agreement in the confines of collective bargaining agreement that continues to limit the number of workers who may go on strike by requiring a union to declare the minimum number of employees required to continue working during a strike, either expressed as a number or a percentage of the current workforce.

Further, the Bill compels unions to indicate the type of services that must be continued during strike action, which shall be expressed by job function and not by individual employees.

The most grievous of all is the requirement to explain the manner in which the essential services shall be provided during the strike and the process of responding to emergencies during the strike or lockout.

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.

This Bill seeks to destroy trade unions and violate the rights of workers. The Central Organisation of Trade Unions strongly opposes the amendments.

Workers have a right to go on strike; they must do so if there is an unresolved industrial dispute.

Boycott is the only tool that workers can use to demand their rights and no one should take away these rights by way of essential services or any other means.

Mr Atwoli is the secretary general of the Central Organisation of Trade Unions