It seemed that there was an urgent need for safeguards against strikes and lockouts by health care workers in Kenya, at least several interested parties had expressed this desire over time. The government had sponsored the Labour Relations (Ammendment) Bill 2019 which was doing its rounds this week in the national assembly. This is in a renewed effort to tame industrial unrest in the public service.
Ballot vote before staff are allowed to go on strike
The bill seeks to among other things to bar workers providing essential services from picketing. ONLY a members’ ballot vote of 50 plus majority taken 2 months to the commencement of a strike would occasion a strike. Upon the expiry of the two months the matter would have to be referred to an industrial court within 5 days.
Other restrictive measures include the worker seeking approval from labour cabinet secretary before workers can join any trade union.
Punitive measures to be introduced
To guard against interruption of essential services, which are described as those that endanger health, life, safety of population or any part of the population.
Proposed in the bill were heavy fines for noncompliance: not less than Kshs 5m fine or imprisonment of not less than 5 years or both.
Workers in the essential services sector must not take part in sympathetic strikes or lockouts.
Bill will erode Constitutional gains
Article 41 of the Kenya Constitution and labour relations laws spelt that: workers could express their rights to go on strike as one of the avenues when their rights to better terms and conditions of employment are violated by employers. While Articles 37 and 38 gave Kenyans the right to demonstrate and picket [See http://kenyalaw.org/].
The Kenya Constitution gave every worker (with some exceptions for disciplined armed forces) the rights to join a union, engage in collective bargaining and the freedom to strike, linked to supporting rights to fair remuneration and reasonable working condition
Could it be that these legitimate expressions which had of late been overused or perhaps abused in some instances?
The bill apparently seeks to limit these rights.
Nairobi grand demonstration [courtesy of KNUN Website http://www.knun.org/nairobi-grand-demos/ ]
But do we need a safeguard after-all?
May be there was need to safeguard against strikes and lockouts by health care workers. On 60th day of the 5 months nurses’ strike of 2017 the Federation of Women Lawyers of Kenya (FIDA) on 1st August 2017 went to court asked the attorney general’s (AG) office to in 90 days to file a bill to come up with a law that would mitigate the effects of industrial action affecting essential services workers.
In its submission filed under certificate of urgency it demonstrated that the respondents had allowed the strike to prolong with no hope of calling it off. It agitated for an order to compel them to sign the CBA to be signed and filed in court in 7 days. This was not to be and it will be interesting to know what would be the next course of action by FIDA. [See http://www.nation.co.ke/news/Fida-in-court-over-nurses-strike/1056-4040580-6e180qz/index.html]
Fida observed that CBAs in the health sector appeared to be losing their value. There was a need to balance upholding the freedom of workers to go on strike while protecting the citizens’ right to life which should supersede the strike. The gains made by free maternity program, Campaign against malaria, HIV, TB would come to naught if we failed to properly organize manpower. Its manpower that implemented projects and programs. Fida insisted ‘all trade unions in the health sector must adopt measures that allow some of their members to continue working before strike notice are issued’ https://www.standardmedia.co.ke/ktnnews/video/2000139529/major-hospitals-bear-the-greatest-burden-as-the-nurses-strike-drags-on
This was not the first time such a petition was coming concerning essential services if one remembers the Petition 70 of 2014 by famous activist Okiya Omtatah Okoiti. It sought among others …there is need for the state to enact a legal and policy framework to secure the rights of workers in essential services, and to ensure the amicable resolution of Labour disputes without disrupting service delivery. The petition was dismissed by Justice Nduma on 8th day of December 2015 in that it conflicted with constitutional provision in the Bill of Rights Article 41 (2) (d)- provides for industrial action among other things.
However, on 11th October 2017, FIDA again filed a case by asking the Industrial Court to compel nurses union, Council of Governors, The Ministry of Health and Salaries & Remuneration Commission (KNUN, COG, MOH and SRC) to complete nurse’s Collective Bargaining Agreement by signing and registering the CBA in court. This was heard by Judge Nduma Nderi. Determination of the case was on 8th December 2017. Unfortunately, this writer could not access the details of this determination.
What happens next?
The Central Organization of Trade Unions (COTU) secretary General Francis Atwoli has rejected the move and asked the National assembly to reject it. He said such restrictive laws will be detrimental to true labour movement in the country. The professional unions have not said as much and it was about time. Considering that this bill was received in parliament April 2019, there was only so much time we could afford before it sails through and becomes law.
[See related article on this blog http://www.compleathealthsystems.com/nursing-news/strikes-kenya-rare-normal-common-normal/].