The courts have finally put to rest a long dispute as to whether those involved in providing essential services can engage in industrial action.
In a judgement delivered on April 16, Industrial Court judge Nduma Nderi declared that it was unlawful for workers engaged in essential service to hold a strike, just as much as it was for management to subject such employees to a lockout.
In the last two years, the health sector has been subjected to frequent strikes by union members making various demands, and management responding with threats to stop their pay and lock them out.
In his judgement, Justice Nderi made reference to several sections of the Labour Relations Act. He reminded the parties that Section 78(1) of the act stated that no person should take part in a strike or lockout if the employee and employer were engaged in an essential service. Section 81(1) of the same act defines an essential service as, â€œA service the interruption of which would endanger the life of a person or health of the population or any part of the population.â€
Justice Nderi said: â€œThe Ministry of Labour in consultation with the National Labour Board, has listed the health services, which include nursing services, as essential, and Section 81(3) provides that there shall be no strike or lockout in an essential service.â€
He added that Section 81(4) provided that any trade dispute in a service that was listed as essential would be adjudicated upon by the Industrial Court.
â€œThese two provisions are as clear as daylight and are meant to protect life of a person or health of the population or any part of the population,â€ he explained in the judgment.
The provisions, he pointed out, met the requirements of Article 24(1) of the Constitution. The article sets out to ensure that the enjoyment of rights and fundamental freedoms by any persons should not prejudice the rights and fundamental freedoms of others.
The judge further noted that the law had gone further to ameliorate the effects of the restriction by providing for a direct adjudication of disputes in essential services by the court and by certificate of urgency if necessary.
The elaborate judgment would suggest to employers that they apply Section 80 of the Labour Relations Act, even in an essential service, given the illegality of employees in such services to stage a strike in the first place.
Such sentiments were expressed earlier during the hearings, when lawyer Harrison Okeche, representing the Federation of Kenya Employers (FKE), told the court: â€œUnder this law, an employer is not legally bound to pay an employee who took part in an illegal strike and therefore did not offer services.â€
The courtâ€™s decision comes after a four months of a protracted battle between the employers in the health sector and the nurses engaged in public service, who in December last year, staged a nationwide strike called by interim officials of the new Kenya National Union of Nurses, to pressurise the Registrar of Trade Unions to reverse a decision not to register the union.
The strike had prompted employers to move to court to determine if the nurses were engaged in a lawful act.
During the hearing of the matter on January 23, State Counsel Kiage Oenga contended that the Labour Relations Act outlawed participation of nurses in a strike. â€œThe effect of the strike was that it paralysed provision of essential medical services in public hospitals countrywide,â€ Mr Oenga had argued.
Lawyer Oenga had advanced similar arguments while representing then ministries of public health and medical services early last year, when doctors, through their Kenya Medical Practitioners Pharmacists and Dentist Union (KMPPDU), had led a nationwide strike to compel the government to comply with a return to work formula they had struck in December 2011.
At the time, lawyer Ashitava Mandale, speaking for Kenyatta National Hospital (KNH), had told the court that since KMPPDU had acknowledged that there had been an agreement with the government, it should have gone to court seeking orders to compel the government to meet the agreements instead of calling a strike.
The recent judgment by Justice Nderi, together with these arguments, provide vital workplace lessons in services that the law describe as â€œessentialâ€.