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.
