Kenya National Union of Nurses v Moi Teaching and Referral Hospital Board & 2 others [2015] KEELRC 90 (KLR)
The bottom line
#Kenya's Employment Court refused to register a nurses' CBA signed without the Salaries and Remuneration Commission's binding advice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Salaries and Remuneration Commission advised the employer
- 2.Whether the advice of the Salaries and Remuneration Commission is binding on employers of public officers
- 3.What is the nature and extent of the advice by the Salaries and Remuneration Commission (whether the Commission can legally set the remuneration of public officers)
- 4.What should be the legal consequences of an employer in the public service disregarding the advice of the Salaries and Remuneration Commission
Key legal issues
#Whether the Salaries and Remuneration Commission advised the employer
Yes. The Commission tendered advice to the employer prior to the signing of the collective bargaining agreement, and that advice was ignored or disregarded.
The employer submitted proposals to the Commission on 3 September 2014; correspondence and a meeting of 13 January 2015 followed; the Commission rendered its advice on 27 January 2015 that basic wages and financially-implicating terms be maintained at existing levels. The employer acknowledged receipt on 2 February 2015 but signed the CBA the next day on different terms.
Whether the advice of the Salaries and Remuneration Commission is binding on employers of public officers
Bound by the Court of Appeal in Teachers Service Commission v KNUT, the Court held that the advice is binding on all employers of public officers, though the judge expressed doubt whether Article 259(11) strictly binds statutory public bodies whose powers do not flow from the Constitution.
The Court of Appeal judges (Githinji, Azangalala, Otieno Odek, Koome and Mwilu JJA) each held SRC advice binding under Articles 230(4)(b) and 259(11). The judge noted obiter that for statutory creatures like the employer, the power to fix remuneration is located in statute or common law, not the Constitution, and flagged the question but, parties not having addressed it, said no more.
Nature and extent of the SRC's advice: whether it can legally set the remuneration of public officers
The SRC's mandate over public officers is advisory only; the power to fix remuneration lies with national and county governments and public body employers. The advice must be legal, fair, rational and proportional and is susceptible to judicial review. The SRC should allow employers a margin of appreciation and make its data available to unions for good faith bargaining.
Article 230(4)(b) charges the SRC with advising, not fixing, remuneration of public officers. Because the statutory framework bars the SRC from directly engaging unions, unions lack access to its data, creating disharmony with the Article 41 right to collective bargaining. The judge proposed a formula allowing employers a margin of appreciation and disclosure to unions; the rigid advice here was an unfair exercise of the SRC's powers.
Legal consequences of a public service employer disregarding the advice of the SRC
Following the Court of Appeal, an agreement reached without the involvement of the SRC is invalid; consequently the application for registration had to be dismissed.
The judge noted no party had addressed the question, but the Court of Appeal holding that agreements concluded without SRC involvement are invalid, together with stare decisis, left no option but dismissal. The parties were directed to negotiate afresh taking the SRC advice into account.
Legal principles established
#- The advice of the Salaries and Remuneration Commission under Article 230(4)(b) of the Constitution is binding on all employers of public officers, per the Court of Appeal decision in Teachers Service Commission v Kenya Union of Teachers, which binds this Court
- An agreement reached without the involvement of the Salaries and Remuneration Commission would be invalid
Court orders
#- 1.The Union's application for registration of the collective bargaining agreement is dismissed
- 2.The parties are directed to go back to the negotiating table and reach a mutually agreed deal on the outstanding issues after putting into consideration the 1st Interested Party's advice
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Registration of a collective agreement under section 60 of the Labour Relations Act, 2007; jurisdiction of the Employment and Labour Relations Court
Relief refused
#Registration of the collective bargaining agreement signed on 3 February 2015
The Union and the employer disregarded the binding advice of the Salaries and Remuneration Commission, and the Court of Appeal holding on the binding nature of that advice compelled dismissal
Costs
Each party to bear own costs considering the nature of the dispute and the unclear state of the law at the time the dispute was commenced and argued in Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The order which commends itself here is to direct the parties to go back to the negotiating table and reach a mutually agreed deal on the outstanding issues after putting into consideration the 1st Interested parties advise.
In so far as the partners here ignored the advice of the 1st Interested party, and in view of the principle of stare decis, I have no option but to dismiss the application here.
Each party to bear own costs considering the nature of the dispute and the unclear state of the law at the time the dispute was commenced and argued in Court.
The holding by the Court of Appeal is binding upon me and therefore I must find that the advice of the Salaries and remuneration Commission is binding upon all employers of public officers.
although the Salaries and Remuneration Commission has the duty to advise the employers (public institutions), it must allow the employers a margin of appreciation to enable the employers negotiate in a voluntary heart and good faith.
Issues in the judgment
#The Court of Appeal decision in Teachers Service Commission v KNUT is referred to inconsistently as both 'Petition No. 3 of 2015' (High Court numbering) and a Court of Appeal decision reported as (2015) eKLR, without clarifying the relationship between the two citations.
The judgment's own case number and citation are not stated anywhere in the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Moi Teaching and Referral Hospital Board & 2 others [2015] KEELRC 90 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/90/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.