The Government has moved to curb the rising wave of workers' strikes by proposing that labour unions indicate the number of employees required to continue working during boycotts.
A proposed amendment to the Labour Relations Act specifies that all collective bargaining agreements must indicate the minimum number of workers that will be at work during a strike to provide essential services.
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The unions must also indicate the type of services that must continue during strike action and how the services will be provided.
Those targeted are doctors, nurses, clinical officers, air traffic controllers, sanitation workers, meteorologists, marine and port navigational workers, electricity service workers and telecommunication service workers.
Others include workers involved in the supply and distribution of fuel, petrol, oil, power and lighting.
“A collective bargaining agreement for employees involved in the provision of essential services shall be accompanied by a minimum service agreement in a format to be prescribed by the Minister,” the provision states.
“A minimum services agreement shall indicate the minimum number of employees required to continue working during a strike, either expressed as a number or a percentage of the current workforce. The right to go on strike shall be limited as 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 requirement is contained in the Statute Law (Miscellaneous) Amendment Bill 2018 to be introduced in the National Assembly this week.
The proposed law compels workers' unions to show the process of responding to emergencies during a strike and the minimum service levels associated with various functions during the industrial action.
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The move is seen as seeking to curb the series of debilitating strikes across the country, including among doctors and nurses that affected thousands of Kenyans last year. During the boycotts, scores of patients, including pregnant mothers, died as the health workers kept away from hospitals.
While Section 41(2) of the Constitution protects the right of workers to go on strike, Section 43 gives Kenyans the right to economic and social rights such as the right to healthcare services. For example, no Kenyan shall be denied the right to emergency treatment.
National Assembly Leader of Majority Aden Duale explained that the proposals were designed to protect industries and ensure that workers’ rights to industrial action did not clash with citizens’ rights.
“This Bill is meant to protect industries and productivity in the country. The biggest threats to economic stability at the moment are strikes that have bedevilled the country," said Mr Duale.
“Workers have a right to picket but we must strike a balance so that your right does not affect the right of other citizens. We must have a minimum workforce to control damage during strikes.”
He assured that stakeholders would have an opportunity to air their views during public participation forums.
But Central Organisation of Trade Unions Secretary General Francis Atwoli told The Standard that the proposals were meant to kill industrial action in the country.
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Mr Atwoli said labour unions were not consulted before the proposals were published.
“Every worker has a right to a CBA. It is in the Constitution and you cannot change it in law. The Government is trying to stop workers from going on strike. As a workers' union, we were not involved in drafting the proposal. Any amendment to labour laws must involve workers,” he said.
Also reading an ill motive in the proposed law is the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU), which termed the provision ‘ridiculous.
“In case of a strike, we normally give a notice of 21 days. Within this period, there should be mitigation measures to ensure that patients continue receiving services,” said KMPDU Chairman Samuel Oroko. He said the public hearings for the proposed law was mere rubber stamping.
“These are just avenues to rubber-stamp what the Government already thinks. If the Government wants to push through the amendment, it will do so,” he said.
Lawyer Okweh Achiando argued that the provision would amount to unions undermining themselves.
“You cannot tell workers to go on strike then turn back and provide a list of workers that will be at work. That is irrational. It will undermine the very reason the strike was called in the first place.”
John Mbalu, another lawyer, said the provision would reduce the effectiveness of boycotts.
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“If there is a strike and a number of employees are at work, the strike will not be as effective as it should be. The proposed law is in favour of the employer,” he said.