What do we know about Strikes at the work place?

The Labour Relations Act, 2007 (‘the Act’) defines a strike as cessation of work by employees acting in combination or a concerted refusal or a refusal under a common understanding of employees to continue to work for the purpose of compelling their employer or employer’s organization for which their employer is a member, to accede to any demand in respect of a trade dispute.

The right to strike is integral to an effective collective bargaining process. In order for it to constitute a strike, it has to be a concerted refusal to work with the aim of resolving a trade dispute. Refusal to work individually and abandoning work stations without legal authority amounts to desertion or absenteeism which attracts disciplinary action.

The right to strike is a collective right. It therefore follows that unionized   workers cannot resort to a strike action without involving their trade unions. Employees have to obtain their union’s leadership approval in the planning and execution of a valid strike.

It is in the interest of employees to involve their trade unions as the unions have the power to bargain collectively on behalf of their members against employers.

Procedural requirements

The right to strike under the Constitution is limited to procedural requirements imposed by the Act.

Section 76 of the Act goes on to provide for the following pre-conditions for a strike to be declared lawful –

• that the trade dispute that forms the subject of the strike must concern terms and conditions of employment or the recognition of a trade union
• that the dispute has been referred to conciliation
• that if after the trade dispute remains unresolved upon conciliation, a seven days’ written notice of the strike to the employer and the relevant Cabinet Secretary has been issued before engaging in the strike

Failure to follow the procedures set out above renders the strike unprotected.

Conciliation before strike action

Strikes by their very nature are disruptive to employers and have adverse economic effects. They should be seen as a last resort and parties to a dispute must endeavor to participate in conciliation procedures within the workplace. Participation in this regard must be in good faith with a view to resolving the dispute and not merely as a formality. The dispute ought to be resolved within thirty days of appointment of the conciliator or any extended period agreed to by the parties to the dispute. The ELRC court is empowered under the Act to direct parties to finalize the conciliation process with a view to resolving the dispute.

The Act under Section 77(2) further bars a party from seeking relief in court if they failed to participate or attend conciliation meetings. Therefore, an employer cannot apply to the courts to prohibit the strike if the employer neglected to participate in the conciliation process.   

Protected strikes

A strike is declared lawful if the mandatory procedural requirements in the Act are complied with.

However, the law does not offer protection to strikers who commit an offence during a protected strike leading to loss or damage to an employer’s property.

Is the employer under an obligation to pay employees who participate in a lawful strike?

NO. The employee has withdrawn its services during the period of the strike and the employment contract is deemed temporarily suspended.

To mitigate the effects of the impending strike, the employer is entitled to recruit alternate labour to ensure continuity of business during the strike.

Is the duration of a strike prescribed in law?

NO. However the fact that the employer withdraws remuneration during the period of the strike may limit the duration.

Unprotected strikes

Other than the procedural requirements mentioned above, the instances below will render participation in a strike unlawful:

1. parties have agreed to refer the trade dispute to the courts or arbitration;
2. the strike is not in furtherance of a trade dispute
3. strikes in an essential service e.g strikes in the health service sector are outlawed as they are considered disruptive to the extent of endangering the life or health of persons. However, our courts are slow to issue injunctions against strikes in the essential services as this would seem to curtail the employees’ right to strike under the constitution. The fact that health service providers have been categorized under the Fourth Schedule to the Labour Relations Act as an essential service has not prevented the rise in strikes by health providers seen in Kenya’s recent past.
4. strikes that constitute sympathetic strikes (generally known as solidarity strikes where the employee participates in a strike in furtherance of a trade dispute in which the employee’s employer is not a party to the dispute. Example, a sympathy strike by farmers in support of a dispute by teachers where the farmers have no interest in the dispute).

What are the consequences of participating in an unprotected strike?

1. Employer may seek a declaration from the courts that the strike is illegal
2. Disciplinary action based on internal mechanisms of the employer’s organization may be instituted against the employee. The employer must investigate and determine individual responsibility of each employee even though a strike is a collective action. This is because a person may refuse to participate in an unprotected strike and should therefore not be punished for such refusal.
3. Termination of the employment contract subject to procedural fairness (invitation of employees for a disciplinary hearing before imposition of penalty is mandatory)
4. The employee will not be entitled to remuneration or any benefit under the Employment Act during the period in which they participated in the strike

If you have any queries relating to the above strikes issue or any aspect of employment law, please do not hesitate to contact us. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.

By: AM Mwandoe & AW Mwathi