Time flies with great content! Renew in to keep enjoying all our premium content.
Prime
Civil servants union barred from recruiting nurses and midwives
Nurses holding hands during a strike in Eldoret City Uasin Gishu County on December 23, 2024, over lack of lack of promotions, non-implementation of their pay in accordance with the Salaries and Remuneration Commission, among other grievances.
The Employment and Labour Relations Court has barred the Union of Kenya Civil Servants (UKCS) from recruiting nurses and midwives employed under institutions that already recognise the Kenya National Union of Nurses & Midwives (KNUNW).
The court ruled that recruitment must comply with the Labour Relations Act and existing recognition agreements. The case was filed by KNUNW, which accused UKCS of establishing a "Nurses and Midwives Chapter" and conducting unauthorised recruitment targeting the two categories of workers.
“There must be order in the workplace as intended by the Legislature in legislating the Labour Relations Act, and more so in a sector as crucial as the health," the court stated, reinforcing regulations on labour representation in public health institutions.
The court issued an injunction restraining UKCS, its officials, and agents from registering or recruiting nurses and midwives employed by organisations with active recognition agreements or Collective Bargaining Agreements (CBAs) with KNUNW, pending the hearing of the main case. The matter was also ordered to be fast-tracked.
The court emphasised that employee recruitment "can only be conducted within the legal framework established by the Labour Relations Act," which permits an employer to recognise only one union at a time.
The ruling underscores the necessity of maintaining order "in a sector as crucial as healthcare."
KNUNW demonstrated that it holds recognition agreements and CBAs with the Ministry of Health, national referral hospitals, and all 47 county governments.
The court affirmed that these agreements remain valid and enforceable. Under Kenyan labour law, once a CBA is registered, it applies to all unionisable employees of the employer, including non-members.
KNUNW further argued that its constitutional provisions broadly encompass nurses and midwives employed in Kenya’s public service. UKCS countered that workers have a constitutional right to join a union of their choice and maintained that its "chapter" was merely an internal structure aimed at improving representation for specific professional groups.
"The orders sought by the applicant would unjustifiably infringe on workers' constitutional right to unionise by preventing nurses and midwives, who are civil servants and existing UKCS members, from choosing their preferred union, including the possibility of dual membership, which has never been legally contested," UKCS argued.
The union also contended that KNUNW’s application violated Article 41 of the Constitution, which guarantees workers the right to fair labour practices, including freedom to join trade unions.
However, the court dismissed UKCS’s constitutional argument, clarifying that rights under Article 41 are exercised through statutory frameworks. It emphasised that litigants must adhere to the Labour Relations Act rather than bypassing it.
The court further ruled that the Registrar of Trade Unions may register unions and branches —not chapters— declaring any formation labeled as a "chapter" unlawful. "Recruitment into such a structure is null and void," the court stated.
UKCS did not dispute creating recruitment forms or conducting a recruitment drive but failed to present any recognition agreements with employers of nurses and midwives.
The court questioned whom UKCS intended to recruit, given that its own constitution restricts membership to public servants.
Recognition agreements, the ruling noted, are "special contracts" governing employer-union relations. Kenyan law prohibits simultaneous recruitment by two unions under the same employer, requiring recognition disputes to undergo conciliation.
The court’s order suspends UKCS’s recruitment efforts in workplaces already covered by KNUNW’s agreements, maintaining the status quo until the main case is determined.
