The Nairobi Hospital will have to negotiate and execute a recognition agreement with the Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU) after failing to get an order stopping the process.
The Court of Appeal rejected an application by the hospital to stall the process, saying the recognition deal can still be terminated by either side, in case the agreement is negotiated and signed.
A recognition agreement names the union or unions who have rights to represent and negotiate on behalf of employees in that workplace. It sets out the rules and procedures to be used by the union and the employer in carrying out consultation, collective bargaining and representation.
“As to whether the intended appeal will be rendered nugatory if the stay is not granted, and the appeal ultimately succeeds, we do not think that the applicant successfully demonstrated this,” Justices Jamila Mohammed, Fred Ochieng, and Aggrey Muchelule said in the verdict dated June 20.
The Nairobi Hospital moved to court seeking to suspend a ruling of the Employment and Labour Relations Court last July, directing them to conclude the talks with the union, within 30 days.
The union sued the hospital stating that a simple majority of unionisable employees were its members and that it should be ordered to negotiate and execute a recognition agreement.
KMPDU alleged that the hospital had refused to recognise it for purposes of collective bargaining. It further said the number of staff that the hospital represented was about 14 percent of the total unionisable employees.
The dispute was then referred to the Ministry of Labour and Social Protection through a conciliation on July 7, 2022, but the ministry failed to act, forcing the union back to court.
Justice Hellen Wasilwa then ordered the parties to negotiate within 30 days but Nairobi Hospital sought a review of the decision, claiming that it was not served with the court documents. The hospital further argued that 20 members had exited the Union thereby reducing the alleged majority.
In a ruling last year, Justice Mathews Nduma said the hospital was properly served with the court documents. The judge added that the hospital had not presented a credible reason as to why it had not filed a defence to the claim.
The judge noted that the simple majority of an employer to recognise a union is considered at the time of the recruitment of members and the checkoff forms presented to the employer by the union, and not later.
The judge added that the exit of some employees after the fact was not material to the issue of acquiring a simple majority by the union. Still not satisfied, Nairobi Hospital moved to the appellate court, seeking to stall the process, pending appeal.
The hospital maintained that the threshold for recognition had not been met and that the trial judge ought to have set aside the judgment.
