National Union of Water & Sewerage Employees v Mathira Water and Sanitation Company Ltd & 2 others; Attorney General & another (Interested Parties) (Cause 1664 of 2012) (Employment and Labour) [2013] KEIC 4 (KLR)
The bottom line
#Kenya's Industrial Court confirmed water companies and their unions can freely negotiate and register collective agreements without Salaries and Remuneration Commission control.
What this practically means
#Executive summary
#Key legal issues
#Status of employees of Water Service Providers
They are public servants of a special kind, working for a private company that is an agent and instrumentality of a Public Authority, and are paid from public funds
The Court traced the water reforms under the Water Act 2002 and found the water companies are wholly owned by Local Governments, act as agents of Water Services Boards, and render a public service. Revenue is generated from a public resource (water) held in trust by the Government, so the tariff revenue account is a public account privately held. The characterization is a matter of qualitative judgment, and such employees are vaguely public servants falling within the Commission's advisory mandate.
Whether the SRC Act 2011 bars registration of CBAs for water company employees
It does not; the Commission's role as to non-State officers is advisory, and collective bargaining for unionisable employees remains with trade unions and employers
Article 230(4) confers on the Commission a two-fold mandate: setting and reviewing State officers' remuneration, and merely advising National and County Governments on remuneration of other public officers. The Act's expanded review functions and the 2013 Regulations were found too restrictive, in conflict with Article 41 rights to collective bargaining and the objects of Article 249, and a recipe for industrial unrest.
Validity of the directives of 7th June 2011 and 29th August 2012
The directives blocking the CBA were declared devoid of legal effect
The 2nd Respondent withheld approval of the concluded CBA on the basis of an Office of the President circular and advice that the CBA was a salary review requiring SRC involvement. The Court held the Water Company enjoys operational autonomy over its unionisable staff and that neither the Board, the Commission nor the Government could interfere with the negotiated CBA between the employer and the union.
Legal principles established
#- Water Companies are private limited liability companies rendering public services as agents and instrumentalities of the Government, and their unionisable employees fall within the advisory function of the Salaries and Remuneration Commission
- The Commission's role regarding non-State officers is advisory only; it was not intended to take over collective bargaining for unionisable public sector employees
- An agent or factor of a person can be an employer; Water Companies can be employers and independently negotiate terms and conditions of employment with their employees
Court orders
#- 1.Declared that the Salaries and Remuneration Commission Act 2011 does not bar the Claimant and the first Respondent from registering the CBA concluded between them
- 2.Declared that the Salaries and Remuneration Commission Act 2011 does not bar any Water Service Provider from collectively bargaining and registering a CBA with any recognized trade union
- 3.The Claimant and the first Respondent are at liberty to submit the CBA concluded between them to the Industrial Court for registration
- 4.The 2nd and 3rd Respondents shall not interfere with the Claimant's and 1st Respondent's right to collectively bargain
- 5.The instructions given by the 3rd and 2nd Respondents in the letters of 7th June 2011 and 29th August 2012 are declared devoid of any legal effect
- 6.No order on the costs
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes; dispute concerning registration of a CBA under the Labour Relations Act 2007 and the Industrial Court Act 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Union of Water & Sewerage Employees v Mathira Water and Sanitation Company Ltd & 2 others; Attorney General & another (Interested Parties) (Cause 1664 of 2012) (Employment and Labour) [2013] KEIC 4 (KLR)", Case Analysis (2013). Industrial Court Cause (Cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2013/4/eng@2013-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.