Revisiting sections of Labour Relations Act, 2007

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Joshua Malidzo Nyawa

Strikes are considered “a right to self-defence” as they are a means of balancing power between the employer and the workers. The right to strike is a bedfellow of the right to bargain collectively. In Industrial relations matters, the workers’ ultimate arsenal in bargaining terms and conditions of service is the right to go on strike while the employer has the right to a lockout. The Strike is not the toy of ambitious Politicians. It is the red rainbow across the sky of industrial desperation. It is a permanent warning to politicians to keep their promises, to Authority to be careful and to dictators to disappear. The Strike is Labour’s life insurance against betrayal. It is the child of the Labour Movement. It is Labour’s natural reaction to a system of Society based upon the private ownership of the machinery of production.

This right is Labour’s ultimate attitude in the class struggle. It is its answer to the problem of economic disorganization. It has become the rallying-cry of millions of persons the world over who favour it simply because they do not wish to see the highly industrialized modern world sink into chaos, and human society sink to the level of savage survival. As correctly stated in Bader Bop, that the right to strike is both of historical and contemporaneous significance and that it is important for the dignity of workers who in our constitutional order may not be treated as coerced employees. Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers.

Workers enjoy collective power primarily through the mechanism of strike action.’ If wages are too low to meet the needs of life, if the hours of labour are too long or working conditions intolerable, the thing to do is not call some witch-doctor of a politician, but simply quit work in sufficient numbers and with sufficient solidarity to force a shut-down of operations until the evils is remedied

The right to strike

Article 6(4), guarantees “the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”  The right to strike has been held to be part and parcel of the collective bargaining process, it was held in NUMSA:

The right to strike is an important component of a successful collective bargaining system. In interpreting the rights in section 23, therefore, the importance of those rights in promoting a fair working environment must be understood. It is also important to comprehend the dynamic nature of the wage-work bargain and the context within which it takes place. Care must be taken to avoid setting in constitutional concrete, principles governing that bargain which may become obsolete or inappropriate as social and economic conditions change.”

In similar vein, was the holding in Plascon? The Constitutional Court has itself emphasised the general importance of the right to strike:

“Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers. Workers enjoy collective power primarily through the mechanism of strike action.”

The importance of the right to strike as a component of a successful collective bargaining system is evident in re: Certification of the Constitution of the Republic of South Africa, 1996 where the Court stated that Workers exercise collective power primarily through the mechanism of strike action. In theory, employers, on the other hand, may exercise power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace.

The importance of the right to strike for workers has led to it being far more frequently entrenched in constitutions as a fundamental right than is the right to lock out. This is particularly so having regard to the importance of the right to strike as a critical bargaining weapon used by employees in the exercise of collective power against employers who enjoy greater social and economic power it is so that industrial action is, by its very nature, disruptive. However, although strikes are generally intended to impose a punitive cost on an employer in order to force its hand and achieve a desired goal and when legislative provisions limit or intrude upon those rights, they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning.  In the First Certification case, Court stated, “Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and as such.”

The right to strike must be seen in the context of a right protected in order to redress the inequality in social and economic power in employer/employee relations.  On the importance of the right to strike, the Kenyan high court has previously stated, “The right to strike is a fundamental element in stable collective bargaining. Employees promote and protect their economic and social interest, and resolve labour disputes, through strike action.”

The right of trade unions and employees to strike is not simply an end in itself but a means to an end and exists specifically in the context of the process of collective bargaining. That end is the resolution of the impasse which exists in the collective bargaining process at the time when this Mechanism is invoked. In the context of the right to strike as being part and parcel of the collective bargaining process, the right to strike is drawn from the institution of collective bargaining. The right to strike, fundamental as it is, is thus not an end in itself – the resolution of disputes through collective bargaining remains the ultimate objective.

Limited right?

Not all rights are absolute; some can be limited as Popper holds:

“Freedom, we have seen, defeats itself, if it is unlimited. Unlimited freedom means that a strong man is free to bully one who is weak and to rob him of his freedom. This is why we demand that the state should limit freedom to a certain extent, so that everyone’s freedom is protected by law. Nobody should be at the mercy of others, but all should have a right to be protected by the state.  It is widely recognized, both in this country and abroad, that in certain circumstances, it will be reasonable and justifiable to limit the right to strike, particularly in times of national emergency or in services where a strike is likely to harm the public. That right is not absolute and may be limited in terms of a law of general application to the extent that such limitation may be reasonable and Justifiable in an open and democratic society.”

Criteria for limitation

In Samuel Manamela, the Constitutional Court of South Africa, in considering the limitation clause which is in parimateria to Article 24, cautioned against using the factors set out therein as a laundry list. Article 24 certain parameters that have to be met where a legislation is enacted in order to limit a right, in the same vein is the Polish Constitution, which holds, “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Article 24 provides that a limitation in legislation should not derogate a right in the Constitution, in that a right or fundamental freedom shall not be so limited as to derogate from its core essential content. Such a principle has been discussed in various judgments, as shown in S v Zuma and Others and in particular the following quotation approved of by Kentridge AJ:

Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law. In interpreting statutes in the light of the Bill of Rights, it is necessary to read the legislation ‘in ways which give effect to its fundamental values’. In a similar vein, in South African Police Service v Police and Prison’s Civil Rights Union & another Nkabinde J reminded us that an important purpose of the LRA is to give effect to the right to strike and that the process of interpretation should give effect to that purpose ‘so as to avoid impermissibly limiting the right to strike.

[29] Bearing the importance of the fundamental right to strike in mind, the legislature would hardly have expected employees working within a designated essential service industry whose services were not required in order to provide an acceptable minimum essential service to have no remedy should agreement not be reached with their employer on a minimum services agreement

Article 24(2) further provides safeguards where a limitation is contained in legislation and it provides that such limitation is not valid unless it specifically expresses the intention to limit a particular right in a clear and specific manner, as well as the nature and extent of that limitation. It not only calls for the strict construction of legislative provisions limiting rights, but also prohibits any limitations that have the effect of derogating from the core or essential content of rights leading to the rights being ineffective or illusory, Our Constitution, unlike its dictatorial predecessor, is value-based. The rights in the Bill of Rights are sourced in constitutional values; these rights give effect to the founding values and must be construed consistently with them. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them.  The importance of the right to strike is further reinforced by the view that the constitutional right to strike should not, in the absence of express limitations, be restrictively interpreted. And when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning.

Sections 78(1) (F) and 81 (3)

The provisions of the law have well been discussed by the Kenyan judiciary, and I seek to quote the decisions; In Kenya Ferry Services Limited v Dock Workers Union [Ferry Branch], the court held:

This Court thinks in determining whether the limitation imposed on the right to strike is a reasonable limitation, there is need to look at the right to strike as part of the collective bargaining process. Employees principally resort to strike action to unlock an impasse in the collective bargaining and negotiation process. Unless the strike action is called for other reasons, rather than the furtherance of collective bargaining, the Court should be slow in upholding limitation. The right to strike is a bedfellow of the right to bargain collectively. The nature of the right to strike is fundamental to the whole institution of collective bargaining. These are two inseparable fundamental rights involved, and which are recognized by the ILO under Convention 87 and 98, as the staple of stable labour relations. If the Court simply looks at the service as essential, and declares the strike illegal, it will have misperceived the nature of the right of strike, and freedom of association, and the right to collectively bargain, contrary to Article 24[1]”

It is to be noted that the only specific rights or fundamental freedoms which by legislation may be limited are those relating to persons serving in the Kenya Defence Forces or the National Police Service, under Article 24[5]. Section 76 places procedural limitations on the right to go on strike provided under Article 41 (2) (d) of the Constitution. The limitations under Section 76 are clear and specific and do not derogate from the core or Essential content of the right to strike. However as it was correctly held that limitation under Section 81 (3) are specific that; “There shall be no strike or lock-out in an essential service.”

Essential service is defined in the Act to mean service the interruption of which would probably endanger the life of a Person, or the health of the population or any part of the population this limitation is absolute and derogates from the core or essential content of the right to strike. Similarly the limitation under Section 78 (1) (f) which reads; “No person shall take part in a strike or lock-out or in any conduct in contemplation of a strike or lock-out if; (f) The employer and employees are engaged in an essential service derogates from the core or essential content of the right to strike.”

To this extent, Section 81(3) and 78 (1) (f) purports to nullify the right to go on strike provided under Article 41 (2) (d) of the Constitution. Article 2 (4) of the Constitution provides; “Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” And as such it was the court’s finding that Section 78(1) (f) and 81 (3) of the Labour Relations Act, 2007 do not meet the legal standards set under Article 24 (2)(c), as read with Section 41 (2) (d) of the Constitution.

The Legislature needs to relook these provisions in light of the Constitution of Kenya, 2010. The right to strike need not be outlawed, even in essential services, It would leave employees in a designated essential service whose services were not required to provide an acceptable minimum operation in an essential service, but who were unable to reach agreement with their employer on a minimum services agreement, high and dry and without any remedy to recover their right to strike.

The provisions of the legislation have made the right to strike illusory, despite the warning in The media rights case, where the court warned that Our Constitution, “unlike its dictatorial predecessor, is value-based” The rights in the Bill of Rights are sourced in constitutional values; these rights give effect to the founding values and must be construed consistently with them. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them.  And when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning.^

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