New Strike Laws Among New Employment Legislation

The Statute Law Miscellaneous (Amendments) Bill, 2018 proposes a number of notable amendments to the Employment Act, 2007; the Labour Institutions Act, 2007; and the Labour Relations Act, 2007. Here are some of the key proposals of the amendments bill.

Protected Strikes and Lockouts

There are several proposals in the amendments bill that would limit the constitutional right to strike for employees performing essential public services.

Essential services have been defined as services whose interruption would endanger the life of a person or the health of the population or property. These include hospital services, water services, and fire services.

Before going on strike, unions whose members perform essential services (essential services union) are required to report a trade dispute. In the event the dispute has not been resolved within 21 days, the union must issue a seven-day strike notice. This is in contrast to the requirements for other unions, where only a seven-day strike notice is required before a strike may be called.

Failure to comply with these notice provisions is deemed to be a breach of the employment contract by an employee, which may result in a fine of up to 500,000 shillings or up to three months’ imprisonment.

Further, in a minimum service agreement, which must accompany the strike notice, the essential services union must indicate the minimum number of employees that will continue to work during the strike to ensure minimum disruption to services, the types of services that will be continued, and how emergencies will be handled during the strike.

Export Processing Zone Wages Council

Wages councils regulate the salaries of employees working across various industries and ensure minimum wage compliance. A proposal has been announced to establish a wages council for Export Processing Zones (EPZs). This is consistent with the government’s agenda to increase employment within EPZs, particularly by textile manufacturing companies.

Trade Union Dues and Agency Fees

The amendments bill also proposes check-off agreements between trade unions and employers authorizing the employer to deduct union dues from each applicable employee’s wages, subject to the employee’s consent. In the event the employer refuses to enforce the check-off agreement, the trade union will be entitled to request the Labour Commissioner to issue the appropriate orders.

Comment

The past year has seen prolonged industrial action by several unions. This includes the Kenya Medical Practitioners, Pharmacists and Dentist Union, whose doctors participated in a 100-day strike that crippled health services across the country. The new strike legislation is aimed at ensuring essential services are maintained through industrial action.

Written by Sonal Sejpal, Tabitha Joy Raore, and Milly Mbedi of Anjarwalla & Khanna and Roger James of Ogletree Deakins