INTRODUCTION
Labor rights are rights arising from
labor relations between workers and their employers, and accrue under labor and
employment law. One of the key rights includes the right to unionize. Unions
adopt collective bargaining and industrial action to improve working conditions
for their members.
Employees regard trade unions as
essential to their welfare since, without them, they are not in a position to
bargain collectively with the employers. They resist any attempt by the
employers to weaken their unions and fight to win the right of collective
bargaining through the unions. To-day the policy of our Government is, on the
one hand, to prevent industrial strife between the employers and the employees,
and on the other, to secure economic justice for the employees.
Industrial action is a means through
which employees use in order to acquire new or better conditions at the
workplace. Industrial action is also a strike action which involves a dispute
of interest aimed at creating new terms and conditions of their employment.
•
Strikes
•
Unionbans on overtime
•
Limitations on work – go slows & work-to rules
•
Secondary boycotts
•
Picketing
•
Sit-ins.
Demands pursued through industrial
action by way of strikes may be categorized as Occupational which seek to
guarantee or improve workers’ living and working conditions, or trade union
demands which are aimed at developing the rights of trade unions and their
leaders.The main issue is whether the distinction influences the outcome of the
strike, and their impact on the welfare of workers, whether direct or indirect.
In this respect, much debate is done over political and sympathy strikes, and
whether they fall within the principles of freedom of association.
a)
Protected industrial action: complies with the rules and procedures set out in
the Labor Relations Act (LRA). If the industrial action complies with the law,
then employees may not be dismissed by their employer for taking such action.
b)
Unprotected industrial action: does not comply with the rules and procedures
set out in the LRA. The courts are not sympathetic towards employees who go on
an unprotected strike. If an employer dismisses employees who go on an
unprotected strike, it is not likely that the court will help these employees.
The right to strike is a fundamental
element of collective bargaining. Industrial action is one of the avenues used
by employees to protect their economic and social interests and resolve
industrial disputes.
Legislative framework is has a role in
equalizing bargaining power and promoting stable bargaining. The International
Labour Organisation attempts to ensure that the right of parties to take
industrial action is balanced against other rights of workers, employers, and
the public (for example, non-striking workers have freedom to work, as well as
the right to protection of property and personal safety).[1]
Article 23 (4) provides that everyone
has the right to form and to join trade unions for the protection of his
interests. This underpins the importance of trade unions in protecting workers’
or employer(s) interests, and one of the available mechanisms is industrial
action.
Art 8 (1) provides that state parties
are to ensure that the right of everyone to form and join trade unions of their
choice is protected, and that this shall only be subject to the rules of the
organisation concerned. The purpose of these unions is the promotion and
protection of economic and social interests of workers. Further part (c)
therein provides that trade unions are to function free of limitations other
than those prescribed by law, which are necessary in a democratic society in
the interests of national security or public order or for the protection of the
rights and freedoms of others.
Art 8 (1) (d) provides that state
parties undertake to ensure the right to strike is exercised in conformity with
their national laws.
Kenya ratified Convention No. 98 on the
Right to Organize and Collective Bargaining. This Convention concerns the
application of the principles of the right to organize and to bargain
collectively. It recognizes the right to assemble, to demonstrate, to picket,
and to present petitions to public authorities allows employees to take
industrial action while championing for their rights.
Article 1 of the Convention provides
that workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment while Article 1 (2) outlines that
such protection shall apply more particularly in respect of acts calculated to
make the employment of a worker subject to the condition that he shall not join
a union or relinquish trade union membership.
Furthermore, Article 1 (2) (b) outlines
that the protection extends to causing dismissal of or otherwise prejudice a
worker by reason of trade union membership or because of participation in union
activities outside working hours or with the consent of the employer, within
working hours.
This court was originally established
under the Industrial Court Act and named the Industrial Court. It was however
renamed to Employment and Labour Relations Court in accordance with Statute Law
(Miscellaneous Amendments) Act 2014.[2]
This court was established for the purpose of settling employment and
industrial relations disputes and the furtherance, securing and maintenance of
good employment relations in Kenya.[3]
It has exclusive, original and
appellate jurisdiction to hear and determine all disputes relating to
employment and labour relations. These include those arising out of employment
with regard to employer and employee, an employer and a trade union, between
trade unions and employer organisation, between an employer’s organisation or a
federation and a member. Further, the court is also concerned with disputes on
registration and election of trade union officials and disputes relating to the
registration and enforcement of collective agreements.[4]
Thus, it is against the public interest
and provisions of the Trade Disputes Act to permit any employer to harass,
mistreat or undermine the trade unions which form a part of the most effective
instruments of the Government policy of industrial peace through representative
negotiations between them and the employers; and any systematic attempt by an
employer to use his powers of management to disrupt the trade union of his
employees will be condemned by this Court.[5]
The Ministry of Labour, Social Security
and Services is a key player in the institutional framework governing strikes
and general industrial action in Kenya. The ministry has the mandate of
managing industrial and labour relations. It is in charge of registration and
supervision of trade unions. This function is performed through the Office of
the Registrar of Trade Unions.
The Office of the Registrar of Trade
Unions registers and manages the activities of trade unions. Apart from
registering trade unions, this institution also registers employers’
organisations and federations of trade unions. It has the mandate of ensuring
that these registered bodies carry out activities. Under section 20 of the
Labour Relations Act, the registrar may refuse the application for registration
for the aforementioned bodies if he/she is not satisfied that the body meets
the registration requirements.
The registrar further ensures that no
person performs any act in furtherance of a trade union or employer’s
organisation unless that trade union or employer’s organisation is registered,
or an application for its registration is being considered.[6]
The International Labour Organisation
was formed in 1919 as part of the League of Nations to protect worker’s rights.
It was later incorporated into the United Nations. The UN protects workers’
rights through its various instruments, including the Declaration of Human
Rights, and the International Covenant on Economic, Social and Cultural Rights.
Notably, the ILO Freedom of Association
and Protection of the Right to Organize Convention No. 87 of 1948, and the
Right to Organise and Collective Bargaining Convention No. 98 of 1949 do not
explicitly make reference to a right to strike. Authors have noted that these
Conventions, having no specific provisions on the right to strike, do not
therefore set out a global, precise and detailed, absolute and unlimited right.
The Committee on the Freedom of
Association and the Committee of Experts on the application of Conventions and
Recommendations have frequently asserted that the right to strike is a
fundamental right of workers, and the committee has defined the limits thereof.
Further, the International Labour
Conference, which issues guidelines for ILO policies, passed the Resolution
Concerning the Abolition of Anti-Trade Union Legislation in the States Members
of the International Labour Organisation 1957, which called for adoption of
laws to ensure the effective and unrestricted exercise of trade unions rights, including
the right to strike, by the workers.
Article 2 (6) of the Constitution of
Kenya, 2010 provides that ‘any treaty or convention ratified by Kenya shall
form part of the law of Kenya under this Constitution’. By virtue of this
article, any international human rights instrument that Kenya ratifies becomes
part of the law of Kenya and it is enforceable before the domestic courts.
The right to industrial action is
constitutionally recognized under Article 41 (2) (d) which outlines that every
worker has the right to go on strike. This right is also recognized by the
Convention. Thus workers in Kenya whose right to industrial action has been
denied or infringed can rely on the Convention to claim redress.
This position was highlighted in the
case of Tailors & Textiles Workers’ Union v. Bedi Investments Ltd
where the court was of the view that, for the benefit of the employers and the
employees in general, one of the functions of this Court is to protect
legitimate trade union activities. Further, it was of the viewthat the State,
in maintaining the balance between the employers and the employees, has a duty
to preserve peace within the industry. On the one hand, it must discourage
strikes by the employees, and on the other, put down any acts of victimization
or unfair labor practices by the employers, which are a fruitful cause of industrial
strife.
The Labor Relations Act was enacted to
specifically address labor relations. The purpose of this Act is to promote
sound labour relations through the protection and promotion of freedom of
association, the encouragement of effective collective bargaining and promotion
of orderly and expeditious dispute settlement, conducive to social justice and
economic development.
The procedures that should be followed
before an industrial action is legal is governed under Section 76 of the Act,
which provides thus:
‘A person may participate in a
strike or lock-out if—
a)
the trade dispute that forms the subject of the strike or lock-out concerns
terms and conditions of employment or the recognition of a trade union;
b)
the trade dispute is unresolved after conciliation—
(i) under this Act; or
(ii) as specified in a registered
collective agreement that provides for the private conciliation of disputes;
and
c)
seven days written notice of the strike or lock-out has been given to the other
parties and to the Minister by the authorised representative of— (i) the trade
union, in the case of a strike; (ii) the employer, group of employers of
employers’ organisation, in the case of a lock-out.’
The following cases are instances where
workers engaged in protected and unprotected rights:
In the case of Kenya Plantation
& Agricultural Workers Union V Maji Mazuri Flowers Ltd,[7]
the issue for determination was whether the Respondent was bound by the Return
to Work Formula not to dismiss the grievant for engaging in an unprotected
strike. From the facts presented before the Court, the grievant were among a
group of about 50 employees who were suspected of having participated in an
unprotected strike. The strike took place at the behest of the Claimant Union to
whom the grievant were members.
The strike lasted for a very short time
because the matter was resolved through conciliation presided over by the
Ministry of Labour. This case highlights the room that has been afforded by the
courts in determining cases based on their merits as opposed to arguing on the
basis of whether they feel under the typologies of protected and unprotected.
In Kenya Ferry Services Limited v
Dock Workers Union (Ferry Branch),[8]the
Applicant sought an injunctive order prohibiting the Respondent from calling an
unprotected strike, cessation of work or go slow of its members. The principles
for grant of such injunctive orders were set out in the case of Giella v
Cassman Brown & Co. Ltd.[9]The
principles set out in the Giella case are largely applicable in the
Industrial Court. However, owing to the nature of some of the disputes handled
by the Court, other considerations may be applicable before an injunctive
relief is granted. The Court is therefore entitled to add to, adopt or modify
the principles. To help unravel and determine whether the Applicant has made out
a case for the grant of the reliefs sought, the Court in this case examined the
statutory provisions governing the operations of the Applicant and the calling
of a (un)protected strike.
In Thakrar vs. Cir Cittero Menswear
PLC (in administration)[10]The
English High Court held that a mediated settlement was an enforceable
contract.However, in many jurisdictions including ours, the principal methods
of enforcing a settlement agreement reached at mediation or conciliation is as
a contract. This is “unsatisfactory result since that enforcement mechanism
leaves the party precisely where it started in most cases, with a contract
which it is trying to enforce.”[11]
Cognizant of these difficulties of
enforcing agreements reached in mediation or conciliation, it is desirable to
specifically provide in the agreement itself that the parties have agreed to
present the same before court to be reduced into an order of the court. This
should be done without the necessity of having to commence judicial proceedings
as in the present case. It was the court’s considered view that the Respondent
was bound by the terms of the Return to Work Formula entered into on 5th
August, 2011.
In ASLEF v London Midland, the
court of appeal, held, for the first time, that the international recognition
and context of the right to strike is relevant to the interpretation of the UK
legislation, restating the position adopted in P v NASUWT (2003) that
the law should be given a “likely and workable construction”.
In the case of RMT v Serco Docklands,
the notices provided to the employers by a union, before an industrial action
should be adequately detailed out. The Court found there was no statutory
obligation requiring the union to use any particular category of jobs and
therefore no obligation on the union to adopt the categories used for pay
purposes. It accepted that the approach adopted by the union was perfectly
sensible - which was to notify the employer of the jobs identified by the
workers themselves and complied with the statutory obligation.
Constitution of Kenya 2010.
Statutes
1.
Labour Relations Act.
2.
Industrial Court Act.
3.
Trade Disputes Act.
4.
Statute Law (Miscellaneous Amendments) Act 2014.
International instruments
1.
Universal Declaration of Human Rights 1948.
2.
Freedom of Association and Protection of the Right to Organize Convention No.
87 of 1948.
3.
Convention No. 98 on the Right to Organize and Collective Bargaining 1949.
4.
1957 Resolution Concerning the Abolition of Anti-Trade Union Legislation in the
States Members of the International Labour Organisation.
5.
International Covenant for Economic, Social and Cultural Rights 1966.
Articles
1.
Research Paper No. 33 2007-08 – Striking a balance: the need for further reform
of the law relating to industrial action. Jane Romeyn 25th June 2008
Retrieved from http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP0708/08rp33#_Toc202155969.
2.
Gernigon, B; Odero, A & Guido, H: ILO Principles Concerning the Right to
Strike – International Labour Review Vol. 137 (1998) No. 4.
3.
Edna Sussman: “The Final step issued in Enforcing Mediation Settlement
Agreement”, Fordham Law School, New York, 2008.
Online sources
1. http://www.knut.or.ke/index.php/2012
(accessed 29 March 2015)
2. http://www.thinkafrica.com
(accessed 28 March 2015)
3.
William Robert Ochieng & Robert M. Maxom ‘An Economic History of Kenya’.
Retrieved fromhttp://books.google.co.ke/books/about/An_economic_history_of_Kenya.html?id=wY62AAAAIAAJ&redir_esc=y
(accessed 28 March 2015).
Case law
1.
ASLEF v London Midland,IRLR 399 (CA)
2.
RMT v Serco Docklands[2011] EWCA Civ. 226
3.
P v NASUWT (2003)
4.
Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2014] eKLR
5.
Kenya Plantation & Agricultural Workers Union V Maji Mazuri Flowers Ltd
[2012] eKLR
6.
Thakrar vs. Cir Cittero Menswear PLC (in administration) [2002] EWHC 1975 (Ch.)
7.
Tailors & Textiles Workers’ Union v. Bedi Investments Ltd, Cause No. 30 of
1991.
[1] Research Paper No. 33 2007-08 –
Striking a balance: the need for further reform of the law relating to
industrial action. Jane Romeyn 25th June 2008 Retrieved from http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP0708/08rp33#_Toc202155969
[2] Retrieved from http://www.judiciary.go.ke/portal/blog/post/industrial-court-renamed
(accessed on 26th March 2015)
courtesy of group 14, KUSOL class of
2015
[11]Edna Sussman: “The Final step issued
in Enforcing Mediation Settlement Agreement”, Fordham Law School, New York,
2008.
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