When is strike legal under the Labour Act 2003, Act (651)?
Section 174 of the Labour Act 2003, (Act 651) defines strike as “any action by two or more workers in concert which is intended by them to restrict in anyway the service they normally provide to the employer or diminish the output of such service with a view to applying coercive pressure upon the employer and includes sympathy strike and those activities commonly called work-to-work, a go slow or sit down strike”.
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Thus, an action undertaken by workers which slows down their normal work is considered a strike action. Therefore, strike does not only mean total withdrawal of services.
Strike is a tool applied by workers to press home their demands from their employers. However, the law requires that before applying strike as a tool, workers should ensure that all the necessary processes prescribed under the law are followed before embarking on strike.
Available statistics at the commission show that from the year 2010 -2016, a number of strikes were recorded mainly by workers in the public service and though these workers may have legitimate concerns, they failed to adhere to the laid down procedures under the law to embark on these industrial actions, thus making their actions “illegal” under the law.
For strike to be legal, the Law under Section 159 stipulates two circumstances under which legal strike can occur.
The first is where the parties fail to agree to refer the dispute to voluntary arbitration, and where the dispute remains unresolved at the end of the arbitration process, either party intending to take strike action or institute lockout, shall give written notice of this to the other party and the commission, within seven days after failure to agree to refer the dispute to voluntary arbitration or the termination of the proceedings.
This means that the parties would have gone through negotiation and mediation, yet they failed to resolve the dispute and one party to the dispute does not want the matter to be referred to voluntary arbitration, or the parties are at voluntary arbitration, but the conduct of one party is stalling the process.
It is under such a circumstance that a party intending to strike or institute lockout must give a written notice to the other party and the National Labour Commission. However, what has become the norm by some workers, workers organisations and associations is for them to issue press releases or press statements of their intention to embark on strike. In other instances, the NLC is only copied notice of strike. Such acts contravene the provisions for embarking on strike under the law.
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Again, such act prevents the commission to pro-actively intervene to have the issue resolved. Very often also, the strike action started before the commission was informed. Furthermore, the practice where workers write to state that if no action is taken within a specific period “we would advise ourselves” is not appropriate because advising “oneself is not a notice “to the commission. Where a party is aggrieved and intends to take action, that party should state clearly the reasons for dissatisfaction and officially report to the commission for redress.
A notice of strike, therefore, must be properly served as required by the law. It is important to note that today’s practice of the industrial relations must be based on transparency, good faith and adherence to the Labour Act 2003, (Act 651).
As social partners and industrial relations practitioners, let us commit ourselves to sub-part II of Act 651 which clearly spells out the requirements for effective dispute resolution.