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"id": 222354,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/222354/?format=api",
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"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Justice and Constitutional Affairs",
"speaker": {
"id": 185,
"legal_name": "Danson Buya Mungatana",
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"content": " Mr. Temporary Deputy Speaker, Sir, may I take this opportunity to congratulate the Minister for Labour and Human Resource Development for moving the Labour Relations Bill. Mr. Temporary Deputy Speaker, Sir, in the classical marxist theory of labour, labour and management are supposed to be rivals. They are not supposed to be working together. They are supposed to be independent and fighting for positions of power and control of the instruments of production. But that theory has no proper place in the 21st Century. The current thinking in labour relations is that both management and labour are two components of the production process that are not supposed to be rivals. They are supposed to be working together to improve production. That is the 21st Century thinking of labour relations. I, particularly, congratulate the Minister because he has moved our state of legislation from where it used to be, to the 21st Century. Mr. Temporary Deputy Speaker, Sir, there are clear provisions in this Bill that give specific rights to both the labour movement and employer unions. We find obligations and duties created for both labour movement and, on the other side of the coin, employer movements. That is a big step from what used to exist in our laws, that we are trying to improve right now. Mr. Temporary Deputy Speaker, Sir, there is a clear provision on the side of the labour unions for the protection of workers. As my colleague has mentioned, there is a clear right to participate in a strike. An individual is not supposed to be victimised, harassed, isolated or discriminated against because he participated in a strike. Clause 5 is very crucial for the development of the labour movement in Kenya. Many times, workers who participate in strikes or picketing to protest against specific practices or issues that have been raised with management are isolated or branded as black sheep in industries. So, whenever an opportunity arises for them to be promoted, they are left out. Therefore, this particular clause is crucial for the protection of the labour movement in this country. Mr. Temporary Deputy Speaker, Sir, one of the issues I would want to raise in Clause 5 is the protection of labour union leaders. Ordinarily, people who organise the pickets, strikes and lockouts are the labour leaders. Many times when it comes to firing, they are particularly targeted. We saw it happen recently when the University Academic Staff Union went on strike. Even if the May 10, 2007 PARLIAMENTARY DEBATES 1275 participants are reinstated after negotiations are carried out, usually, a lot of obstacles are placed on the way of the union leaders who organised the strike, lockout or picketing against management. I would have wished for a situation where special protection is provided for under Clause 5 for protection or non-discrimination against union leaders. In many other parts of the world, there is, indeed, provision to them. In our country, and in many other third world countries, they are left exposed. They are discriminated against when it comes to re-employment when the industrial action is over. So, the proposed Clause 5 should be buttressed to provide protection of a special kind to union leaders. I want to thank the Minister for giving workers a clear right of freedom and association under Clause 4. In this clause, they are allowed to join trade unions and participate in those kind of activities. During a recent visit I made to some country in the south, I discovered that a trade union that supports domestic workers is very strong. You cannot just hire and fire or put them under inhuman conditions without that trade union criticising your actions. You cannot stop them from joining labour movements. You cannot also harass or intimidate them. In South Africa, trade unions have gone one step ahead to protect the lower cadre of people because of their history. Historically, many people who formed part of the black labour were employed as houseboys, maids and domestic servants in the country that was then dominated and ruled by the white community. So, their history helped them to develop very strong provisions for the unions that are specific and directed towards domestic workers. Although there is a clear provision for the right to join a trade union, as provided for under Clause 5, I would have preferred that there be a very special protection for lower cadre workers such as domestic workers. Although we did not suffer apartheid in this country, we have had a colonial history. It is a pity that the oppression of lower cadre staff has continued in our country. This category of people should be given specific protection. In this case, there should be a clear clause to make it difficult for employers to hire people from the free market for that kind of labour and not allow them to join a trade union. We should not leave them exposed. We need to protect them. As Members of Parliament, one of our prime duties is to protect all, including those who are lowly in terms of employment. So, Clause 4 is a very good effort, but it could have gone further in terms of putting special provisions for the protection of the workers who are lowly paid. Looking at the provision that deals with the management of trade unions in this Bill, I would like to congratulate the Minister. Under Part III, he has made specific efforts in terms of how labour unions should be registered and managed. In particular, Part V, talks about the property, funds and accounts of trade unions, employers, organisations and federations. It is very welcome that the Minister has made clear provisions in terms of trade unions; how they ought to make returns every year. This is very important because the money deducted from workers is protected. This is commendable. There is also a clear provision for inspectors to be appointed by the Registrar of Trade Unions to inspect properties and accounts of trade unions. This is a very good provision. The Minister went further to provide that obstructing an inspector who has been appointed by the Registrar of Trade Unions to inspect such properties is an offence. This is a very good provision. It is commendable. However, I would have preferred that the same transparency and accountability apply to employers' unions. While we have been talking so much about transparency, accountability and failure to create corruption-free environment within the State and public institutions, we also need to look at other institutions that are basically semi-private and create in them, the same culture of transparency and accountability. The employers' unions should not be left out in this provision. They must render accounts and have clear provisions in terms of transparency and accountability. The other clause that needs to be included in this Bill - and I am sure the Minister will 1276 PARLIAMENTARY DEBATES May 10, 2007 consider incorporating it - is the one that talks about the idea of organizing the organized labour. Already, we know that it is very important to have numbers, whether a labour union is planning a strike, picketing or go-slow. But the numbers or memberships in a trade union do not tell us enough; for example, whether the membership itself understands the role of trade unions. Numbers do not also tell us whether that membership is an able membership. We know that labour unions have continued to collect dues from the members for a long time. Indeed, this is where they collect their strength to organize--- We would like to see, in this law, a clause that would make training of the membership of labour unions a compulsory kind of thing, so that we can have an informed labour movement; a movement that knows its responsibility. We should not have a labour movement that only knows how to strike, go on a go-slow or one that will have a membership that can be easily influenced into participating in non-industrial action in the name of the labour union. So, it is important that there should be clear provision for the training of the membership of labour unions. There must be standards created for the labour unions. If we want to organize the labour movement in Kenya, then let us do it wholesome. This will ensure that the membership of trade unions is trained, so that they know what is their right and responsibility as well. Mr. Temporary Deputy Speaker, Sir, the future of the labour movement rests in an informed and committed membership that knows what it is doing, and not one that is easily influenced into doing other things. Why do I say this? As Members of Parliament, I think it is important for us to create very strong labour and employers' movements, because in this 21st Century, what we need is an organization that will help us produce more in the economy. We do not need organizations that will not help us in terms of that eventual goal. Mr. Temporary Deputy Speaker, Sir, one of the intentions of this Bill is to democratize trade unions and employers' organizations or federations. Democracy does not necessarily mean that you have to agree all the time. One of the things that we may not agree on--- For example, if there is a call to go on strike, picket, lock-out or go-slow, it may not be true that all individuals in a particular industry are willing to participate in that strike, lock-out, picket or go-slow. It is not uncommon in this country - and that is part of the reason why we need this law - for people who do not wish to participate in a strike, go-slow or any form of industrial action, to be victimised by the people who are intending to participate in that industrial action, whether legal or illegal. A situation may develop, where a person does not want to participate in a go-slow and, for some reason, he is victimised by the trade union. I think the time has come for us to democratize the trade unions and employers' federations and movements; that, that right to disagree or not to participate in a strike, must be respected. That must be provided for in this Bill. Although, it has been stated in this Bill, in principle, that need to democratize the labour movement and employers' organizations, it is clear that the individuals who refuse to participate are not protected. So, I think a new clause needs to be introduced by the Minister, to see to it that the individual's right to disagree not to participate in a strike or any form of industrial action, is recognized and entrenched in this law. Mr. Temporary Deputy Speaker, Sir, I would like to support the Minister, in his clear intention of creating alternative dispute mechanisms within this Bill. That is a good thing, because for those of us who have practised law either inside or outside the courts, we know that any court action, in this country, takes a long period of time. Even the courts that are proposed to be created by this Bill will contribute to the clogging of the system. There will then be interference in terms of speed of finalising any cases that may be pending in these courts. Therefore, the Minister's move to create alternative dispute resolution mechanism is to his credit. However, it would be a very good thing--- Some countries have created special departments of conciliators within their Ministries that deal with these matters. Therefore, it would be a good idea to create such a department, deliberately, to deal with the efforts to settle disputes. Those who May 10, 2007 PARLIAMENTARY DEBATES 1277 have practised law know that any matter that is resolved outside the courts is better than that which is resolved within the courts. This is because any outside resolution on any matters involves dialogue and it helps people to reach to a conclusion that helps both sides to come up with something that is reasonable. Mr. Temporary Deputy Speaker, Sir, finally, I would like to, particularly, state that it is a good idea to recognize the special roles of trade unions in this Bill. This has, sort of, set them apart clearly under law, although we had it in practice. The trade unions will have a special role. I say this because, of late, we have had many people who have gone--- I am, particularly, talking about the flower farms. Some Non-Governmental Organisations (NGOs) have gone out of their way to bring out some of the things in a manner that has hurt the production and profits of that industry. There is a labour movement but it has also been demonised. It has been told that it is not doing enough. In the recent history in Kenya, those NGOs have gone to the international markets, tried to malign the name of the country and the industry as a whole. They are saying that the labour movement in Kenya is not doing enough. Mr. Temporary Deputy Speaker, Sir, it is very good that now, that will have to come to an end because of the special role that has been recognised. Why I say so is that if you have other organisations that are not limited by law and are not operating within the framework of the law, say or keep saying things that will hurt a whole industry, that will cost us so much and yet there is a labour movement that is regulated and knows how to engage, then we will not be doing very well for this country. Otherwise, I, again, want to support this Bill wholeheartedly. I also want to say that we are now moving into the 21st Century. There is a very clear attempt to bring our standards of labour relations to the International Labour Organisation's (ILO's) standards. This is good for this country. I want to congratulate the Minister and the Government in general for pushing us ahead. Normally, in countries like Canada where many companies are being bought by United States investors, when they go and fire people - or say: \"You are supposed to go! You cannot do this or participate in that!\", trying to apply American law, they are promptly told: \"In Canadian law, this cannot happen.\" I am so happy that in Kenya now, we are moving to a stage where we are protecting the workers' and employers' organisations to a level that is 21st Century; to a level we will all move together in increased production. Thank you. With those few remarks, I beg to support."
}