Sunday, January 11, 2015
2015 has started with another strike by teachers. All attempts to forestall the strike through negotiations and Court adjudication did not bear fruit hence class rooms remain closed in all public schools. The hope in many Kenyans is that the tide of industrial actions witnessed in 2013 will not emerge again. This notwithstanding, it is critical to look at what the law talks about strikes, whether there is a less abrasive means of resolving industrial disputes and the reforms needed.
The foremost foundation for all present industrial action is the Constitution that guarantees every person the right to fair labour practices. It further gives employees the right to participate in the activities of a trade union and most importantly in this case, the right to go on strike. Previously the right to go on strike was not enshrined in the Constitution. It was and still is however recognized under International Labour Organisation’s (ILO) standards.
The Employment Act does protect employees who are members of a trade union and who engage in lawful strikes from termination. This law also allows employees to participate in the activities of a trade union. These provisions echo the Constitution and are also further enshrined in the Labour Relations Act.
The Act specifically protects the right to freedom of association for both employers and employees. It further provides for the right to collective bargaining and outlines the modalities for registration of trade unions. It also enshrines the process of recognition of trade unions by employers which then puts into motion the negotiation of a Collective Bargaining Agreement (CBA). Most importantly, it touches on the need for parties to engage in conciliation before proceeding on strike. In fact once a strike notice has been issued an employer can go to court for the strike to be prohibited if employees, through their union, have failed to engage in conciliation. However the court has powers to ask the parties to engage further in the conciliation.
Nevertheless during many strikes we have seen a narrative that has always repeated itself. Its story line proceeds as follows, a strike notice is issued, the employer invites the union for negotiations, negotiations fail to yield fruits and the employer files a case in Court just before the expiry of the notice. The court issues orders prohibiting the strike but the employees defy the court order and proceed on strike anyway. Once the strike commences, negotiations between both parties continue and hopefully the issue resolved and employees resume work.
The question of strikes is an issue of balancing between business interests or provision of public services and the rights of employees. It is generally known as the balance between business and human rights. Ultimately the state needs to continue providing public services or in the case of profit making companies, they need to make profit and hence create more employment opportunities. However on the other hand, employees need to enjoy their constitutional right to fair labour practices. They need to be fairly remunerated and treated with dignity in a way that allows them to work efficiently. These two competing interests need to have perfect harmony for us to eradicate the problem of strikes in the public and private sector.
On this note, I emphasize the need to entrench more alternative dispute resolution mechanisms that should be pursued before a strike is declared. Presently the law does not give a prominent position to conciliation but only presents it as one of the means of resolving industrial disputes. It seems that whether conciliation takes place or not, employees are still guaranteed to go on strike. However it would be important to reform the law relating to industrial actions so that parties can engage in negotiations and mediation before resulting to strikes.
On the role of the Industrial Court, as observed, employees still disobey Court orders prohibiting strikes. The court should not be so quick to declare a strike illegal. Instead it should focus on playing a supervisory role in the negotiations between parties. It should provide strict timelines within which parties must agree. The Industrial court should embrace ‘court-mandated-alternative dispute resolution’. To this end any return to work formula should be registered in Court to ensure future compliance.
The alternative to this is to entrench a more pro-active role for labour officers. Their mandate during the conciliation proceedings should be enhanced and their decisions adopted and registered in Court. The capacity of Labour Officers to conduct proper conciliation proceedings needs to be improved. More training and provision of infrastructure where proceedings will take place are urgent needs.
Ultimately the question of labour relations management is founded on the need to balance business and human rights. It is critical for all players to accommodate an appropriate balance to ensure the speedy resolution of industrial actions. The core institutions, the Industrial Court and the Ministry of Labour, should also play a more pro-active role in resolving the disputes between employers and employees.
We all hope that the current strike stalemate can be resolved expeditiously so that our children continue enjoying their right to education.