Kenya National Union of Nurse v Chairperson Salaries & Remuneration Commission, Cabinet Secretary Ministry of Health, Chairman Council of Governors, Chairperson Public Service Commission & Attorney General (Petition 51 of 2015) (Employment and Labour) [2016] KEELRC 1614 (KLR)
The bottom line
#Kenya's Employment Court ruled the Salaries and Remuneration Commission cannot block or clear union-negotiated CBAs; its role is advisory only.
What this practically means
#Executive summary
#Key legal issues
#Legality of the SRC circular requiring CBAs of public sector employees to be submitted to SRC for advice before registration
The circular was unconstitutional and violated Article 41(5)
The court analysed Articles 230(4) and 260 and found that nurses are not state officers, so SRC's role is only to advise national and county governments. Requiring CBAs to be cleared by SRC before registration amounted to interference with the union's right to freely negotiate CBAs under Article 41(5) and sections 57 and 60 of the Labour Relations Act, and the requirement is not provided for in law.
Whether the SRC's job evaluation usurped PSC functions and discriminated against senior public servants
No usurpation of PSC functions, but scrapping allowances of senior public servants contravened section 138 of the County Governments Act
The court found no express constitutional provision vesting in PSC a role taken over by SRC; job evaluation is a legitimate tool to aid SRC's advisory function. However, the pronouncement taking away allowances of public officers seconded to county governments violated section 138(1)(a) and (c) of the County Governments Act, which protects their terms from alteration to their disadvantage.
Whether CBA conclusion may be linked to completion of job evaluation
SRC cannot tie conclusion of CBAs to job evaluation
The court held that Article 41(5) must be respected and that linking registration of already negotiated CBAs to job evaluation would amount to renegotiation of agreed terms in the absence of the union, undermining collective bargaining. SRC should devise a way to advise government without intruding into the negotiations themselves.
Whether the Council of Governors was properly enjoined
Not properly enjoined
No relief was sought against the Council of Governors and it is not the employer of the petitioner's members; county public service boards have their own legal capacity. The court found the 3rd Respondent should not have been enjoined.
Legal principles established
#- The SRC's mandate over public officers who are not state officers is advisory only, to national and county governments, and cannot extend to directing pre-registration of CBAs negotiated by trade unions
- The right to collective bargaining under Article 41(5) is exercised between a union and an employer without SRC involvement in the negotiations
Court orders
#- 1.Declaration that the 1st Respondent's circular/directions dated 29th April 2014 and the affidavit circular are unconstitutional in so far as they direct that CBAs should not be negotiated without their active involvement
- 2.That the 1st Respondent's role should be limited to advising the Government in respect of CBAs involving the Petitioner and other public officers and not to control negotiation and registration of CBAs already negotiated
- 3.That the 1st Respondent should not tie conclusion of CBAs to job evaluation
- 4.That the 1st Respondent will pay the Petitioner's costs
- Jurisdiction invoked
- Articles 41, 230, 254(g) and 260 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Medical Practitioners Pharmacists and Dentists Union & another v Salaries and Remuneration Commission & 4 others; 47 County Government Public Service Boards & 56 others (Interested Parties) (Employment and Labour Relations Petition E006 of 2023 & Petition 048 of 2023 (Consolidated)) [2023] KEELRC 2964 (KLR)[2023] KEELRC 2964 (KLR)17 Nov 2023
- Banking, Insurance & Finance Union v Kenya Post Office Savings Bank Ltd (Employment and Labour Relations Cause E822 of 2021) [2023] KEELRC 1542 (KLR)[2023] KEELRC 1542 (KLR)16 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurse v Chairperson Salaries & Remuneration Commission, Cabinet Secretary Ministry of Health, Chairman Council of Governors, Chairperson Public Service Commission & Attorney General (Petition 51 of 2015) (Employment and Labour) [2016] KEELRC 1614 (KLR)", Case Analysis (2016). Petition No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1614/eng@2016-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.