[2007] KEELRC 3 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Coram: Charles P. Chemmuttut, J.,

J.C. Odaga & J.M. Kilonzo, Members.)

CAUSE NO. 52 OF 2002.

KENYA DOCK WORKERS’ UNION ............................................................Claimants.

v.

KENYA PORTS AUTHORITY................................................................Respondents.

Issue in Dispute:-

1. Withdrawal of Contributory Pension Scheme introduced in 1999, and revert to the non-contributory scheme.

2. Change of Hours of Work from:-

(i) A five day week from Monday to Friday.

(ii) Three (3) shifts per day for operational staff.

(iii) Hours of work for non-operational staff.

Joseph K. Kiliku, General Secretary, for the Claimants (hereinafter called the Union).

M.Onyango (Mrs.), Executive Officer, F.K.E., for the Respondents (hereinafter called the Authority).

A W A R D.

The Notification of Dispute, Form “A”, dated 21st March, 2002, together with the statutory certificate from the Labour Commissioner under Section 14(7) and (9)(e) of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act), were received by the Court on 8th July, 2002. The Union submitted their written memorandum on 5th August 2002, to which the Authority filed their reply statement on 29th August, 2002, and the case was heard in Mombasa on 12th September, 2002 and 28th March, 2003, and final submissions were made on 5th August, 2003.

The Authority is a parastatal established under the Kenya Ports Authority Act, Cap. 391, Laws of Kenya, and is also governed by the State Corporation Act, Cap. 446, Laws of Kenya. The parties have a valid recognition agreement and have also negotiated and entered into several collective agreements to regulate the terms and conditions of service of the unionisable employees. In this case, the parties agreed upon all the 31 issues of their collective agreement for the period 1st January, 2000 to 31st December, 2002, which was registered by the Court under RCA No. 46 of 2000, except the two issues now before the Court for consideration and determination.

I. Withdrawal of Contributory Pension Scheme introduced in 1999, and revert to the non-contributory scheme.

Mr. Kiliku strongly opposed the introduction of the contributory Pension Scheme by the Authority on three main grounds, namely, (i) that, contrary to Section 33(i) of the Retirement Benefits Act, No. 3 of 1997 (which is hereinafter referred to as the RBA Act), the Authority had no legal power to deduct some money from the monthly salaries of the employees from January 1999 to June 2001 and pay the same into the said scheme without their consent and approval, (ii) that the Authority failed or neglected to apply for the registration of the said contributory Pension Scheme before or prior to establishing it and effecting the deductions, contrary to sections 22 (I) and 23 (I) of the RBA Act, and (iii) that the employees of the Authority are engaged on permanent and pensionable terms of employment, and there was, therefore, no need for a contributory Pension Scheme for them. He stated that the deductions were illegal and “forced” or “imposed”, and that the Authority ran the said scheme without a Board of Trustees until 2001 when the trustees were elected. Mr. Kiliku pointed out that the said deductions have seriously eroded the purchasing power of the workforce to the extent that they would be unable to access loans for investment before they retired, or even qualify to get salary advances for education or emergency cases like illness of their dependants.

Mr. Kiliku contended further that the introduction of a contributory Pension Scheme, like the substituted non-contributory Pension Scheme, was negotiable and formed part of the employees’ terms and conditions of service; and in the circumstances, the Union and the employees ought to have been consulted and their approval obtained beforehand in compliance with section 33(I) of the RBA Act. After all, he said, the Authority committed a serious offence by establishing the said contributory Pension Scheme before registration and acquiring a certificate thereof in accordance with the provisions of Section 22(I) and 23(I) of the said Act. Furthermore, the employees of the Authority were permanent and pensionable and any change or interference in their terms and conditions of employment, including the non-contributory Pension Scheme, amounted to a breach of their service contracts (see Union Apps. A to N).

As regards the 9% salary increase awarded to the employees by the Authority, Mr. Kiliku contended that the same was a gift to the employees for their hard work in the previous year, which had resulted in the improvement of productivity and revenue to the Port. In any case, salaries and wages are negotiable under the parties’ collective agreements, and as such the increment could not be treated separately or in isolation, particularly when the Authority had not even applied for the registration of the said contributory pension scheme as required under the RBA Act.

For the foregoing reasons, Mr. Kiliku prayed that:-

(i)the contributory Pension Scheme be withdrawn and the non-contributory Pension Scheme be reverted to or restored, and

(ii) the deductions which were allegedly illegally made between January, 1999 to June, 2001, together with the accrued interest thereon, be refunded to the employees.

Mrs. Onyango submitted that prior to January, 1999, the Authority granted non-contributory pension to all its employees in accordance with the Pensions Regulations, 1983, issued by the Minister for Transport and Communication under the Kenya Ports Authority Act, Cap. 391, Laws of Kenya. The pension was paid wholly at the discretion of the Minister; and since it was non-contributory, the members had very limited rights e.g. the scheme was not registered by the Commissioner of Income Tax under the Income Tax (Retirement Benefits) Rules, and as such the pensioners did not benefit from tax exemptions. Due to the limitations of the scheme, the Authority appointed a pensions expert to conduct an in-depth study of the existing pension arrangement and recommend a more suitable pension scheme. Consequently, the expert recommended a contributory pension scheme to be registered under the RBA Act, to enable the members to enjoy the rights and benefits provided for under the RBA Regulations. The recommendations were accepted and adopted by the Authority, and the current contributory Pension Scheme was registered under Section 29 of the RBA Act, vide, Certificate of Registration No. 0075 of 9th August, 2002.

On 11th June 1999, the Minister for Transport and Communications issued Legal Notice No. 82, retrospectively revoking the non-contributory Pension Scheme, which was in operation since 1983, with effect from 1st January, 1999, and the new contributory Pension Scheme was introduced and became operational since then, i.e. 1st January, 1999. As regards the modalities of implementation of the new pension scheme, Mrs. Onyango averred that the Authority involved the Union fully at every step taken to implement the same as shown by the minutes of the Joint Industrial Council (J.I.C.) meetings covering the period between March 1999 and February, 2000. She pointed out that the Authority also awarded its employees a wage increase of 9% with effect from 1st January, 1999 to compensate them against the effects of the contributions to the new scheme. This gesture, she said, was acknowledged and appreciated by the Union, and it was incorporated in the parties’ subsequent collective agreement. Mrs. Onyango asserted further that the 9% wage increase was 1. 5% over and above the contribution stipulated in the Trust Deed and Rules under which the contributory Pension Scheme was established. The wage increase was, therefore, quite generous in view of the fact that the members contribute to the contributory Pension Scheme only 7. 5% of their basic wage or salary while, the Authority contributes 22. 5%, making a total contribution of 30% of the basic wage or salary, which is the maximum rate of contributions authorized by law. Thus, the current contributory Pension Scheme is open and mandatory to all the employees, irrespective of grade, in compliance with Rule 18(3) of the Retirement Benefits (Occupational Retirement Benefits Scheme) Regulations, 2000, which provides, inter alia,that:-

“18(3) The scheme rules shall provide that a member of thescheme shall not be permitted to withdraw frommembership whilst he remains an employee of the sponsor…

(a)…………………………………………………………….

(b)…………………………………………………………..”

On the benefits of the current contributory Pension Scheme, Mrs. Onyango submitted further that it is much beneficial compared to the previous non-contributory Pension Scheme. She showed the Court how the pension was beneficial to the employees as commuted under the new contributory Pension Scheme. Furthermore, the Authority has been de-linked from the day-to-day management of the scheme, which is a major departure from the previous arrangement. Instead the members and the Authority have representation in the Board of Trustees, which manages the scheme with well-defined responsibilities under the Retirement Benefits Regulations. Mrs. Onyango contended further that, under Section 6(f) of Employment Act, Cap. 226, Laws of Kenya, the Authority had power to deduct any amount from the wages or salary of its employees. Section 6(f) of the said Act states, inter alia, thus:-

“6. (I) ………………………………………………………………………..

(a)……………………………………………………………………

(b)……………………………………………………………………

(c)…………………………………………………………………..

(d)………………………………………………………………….

(e)………………………………………………………………….

(f)any amount the deduction of which is authorized by any written law for the time being in force;

(g)……………………………………………………………………

(h)……………………………………………………………………

(i)……………………………………………………………………

(2) …………………………………………………………………….

(3) ………………………………………………………………………”

She said that the deductions towards the contributory Pension Scheme were neither forced nor were they a “surcharge” to cover a deficit as alleged by the Union. Mrs. Onyango maintained that as long as one was in the employment of the Authority and has qualified to join the current contributory Pension Scheme, then he or she would have no choice but to join it. Otherwise, the only way in which the employees would qualify to withdraw their benefits under the scheme would be by leaving the service of the Authority.

The relevant facts of this case are not in dispute and practically common ground. The Authority, which was established under the Kenya Ports Authority Act, Cap. 391, Laws of Kenya, had a non-contributory Pension Scheme of its own for all its workforce since 1983, whose funds and assets were entrusted to an equal number of Board of Trustees, representing both the management and the unionisable employees. However, on the recommendation of a pension expert, the Authority set up a contributory Pension Scheme under the RBA Act and Income Tax Act, for the benefit of all its employees. On 11th June, 1999, the Minister for Transport and Communications, under Legal Notice No. 82, retrospectively revoked the Authority’s (Pensions) Regulations 1983, and extended the provisions of the aforementioned RBA Act and Income Tax Act to the Authority’s contributory Pension Scheme and the same was subsequently registered under Certificate of Registration, No. 0075, dated 9th August, 2002. The Union vehemently opposed the introduction of the contributory Pension Scheme mainly on three grounds as set out, at pages 3 to 4 hereinabove. In the circumstances, they demanded that (i) the contributory Pension Scheme be withdrawn and the non-contributory Pension Scheme be reverted to or restored, and (ii) the deductions which were allegedly illegally made between January, 1999 and June, 2001, together with the accrued interest thereon, be refunded to the employees.

The relevant provisions of the RBA Act, for purposes of this issue are Sections 22,23 and 33. These sections by themselves, it should be obvious, subjected the contributory Pension Scheme to the provisions of the said RBA Act, and the position was regularized when the Authority obtained the necessary Certificate of Registration. Obviously, there were some procedural breaches committed by the management of the Authority when they introduced the contributory Pension Scheme. For example, they neglected to apply for the Certificate of Registration before or prior to establishing it, and also that the Board of Trustees was not constituted until after June, 2001, when the trustees were elected. But in the instant case the breaches were due to a bona fide mistake or omission, and we are not prepared to penalize the Authority for breaches of minor procedural lapses in view of the fact that the same were not wilful but were legally regularized latter and no loss of revenue was occasioned thereat.

The question of making some provision against old age or death of an employee is of extreme importance for the maintenance of peaceful relations between employees and employers in the field of industrial relations. It legitimately falls within the scope of social security and has benefits both for the employees and the employers. For the former (employees,) on payment of a comparatively small amount to a pension scheme out of their wages or salaries, a good sum is made available to them or their dependants on the happening of some specified contingency such as retirement or death. It also cultivates among the employees a spirit of saving something regularly. For the latter (employers), in return for a small contribution, such a scheme would assure them of honest and faithful service for a fairly and reasonably long period of a large number of their employees and would also encourage the stabilization of steady labour force. We may emphasize here that in the contentment of work lies the welfare, future prosperity and success of the industry.

The questions for determination in this matter, therefore, are:-

(i)whether or not, in the absence of properly constituted Board Trustees between January, 1999 and June, 2001, the employees are entitled to a refund of the amounts deducted by the Authority during that period towards the contributory Pension Scheme.

(ii)whether or not the Authority should revert to the non-contributory Pension Scheme in force prior to January, 1999.

For convenience in determining this matter, these issues are considered together. We have looked into or gone through several cases of pension schemes very carefully, and in our considered view or opinion the concession has been recognized as a necessary beneficial relief to the employees, especially where, as in the present case, the scheme has been carefully set out in a proper instrument or drawn up as required or regulated by law, and it is self-contained. According to the documents on the record, the contributory Pension Scheme covers the entire workforce of the Authority, and was recommended and approved by the Government. In our view, therefore, the matter at hand rests entirely in rules and it is firmly established principle of law that a mere violation of a rule, as distinguished from a provision of a statute or a constitution, would not entitle an aggrieved party to challenge its establishment. It is also wrong in principle to lightly interfere with a carefully prepared pension scheme such as the one under consideration which was established in good faith. In any case, the deductions were held by the Authority in trust on behalf of the employees. The contributions thereto of 22. 5% and 7. 5% by the Authority and the employees respectively are fairly reasonable and confer substantial benefits on the employees.

On the wage increase of 9%, the Court agrees with Mrs. Onyango that the increment was not a gift as alleged by the Union, but it was meant to compensate the employees against the effect of the contributions towards the contributory Pension Scheme.

Therefore, the demand by the Union that the employees’ contributions for the period January, 1999 to June, 2001 be refunded to them and that the Authority revert to non-contributory Pension Scheme is absolutely uncalled for and untenable. It is thus rejected, subject to the following conditions:-

(a)That the contributions of the employees who are still in service, for the period under consideration, i.e. January, 1999 to June, 2001, be credited to their accounts under the contributory Pension Scheme and certificates thereof be issued to them.

(b)That the contributions (of both the employee and the Authority) for those employees who have since left employment, be paid or refunded to them or their next of kin in accordance with the contributory Pension Scheme rules and regulations.

(c)That the Board of Trustees shall strictly enforce the contributory Pension Scheme so formulated and introduced in accordance with the law, especially the RBA Act, and the rules and regulations made or prescribed thereunder, and/or contained in the Deed of Trust.

2. Change of Hours of Work from:-

(i) A five day week from Monday to Friday.

(ii) Three (3) shifts per day for operational staff.

(iii) Hours of work for non-operational staff.

In her background submission on this issue, Mrs. Onyango submitted that the matter was not new to the parties as it had been raised before without success, but it has now reached a situation where the Authority can no longer continue with the current arrangements without jeopardizing the existence of the enterprise. She pointed out that the proposed changes in the hours of work were very crucial for the development of Mombasa Port, and this was why the issue has been re-visited time and again as evidenced in the previous two disputes, under Causes Nos. 74 of 1987 and 72 of 1990. The proposed changes were again raised by the Authority during the last negations but the parties were unable to resolve them. Hence this dispute for adjudication and determination.

Clauses 4 and 5 of the parties’ collective agreement provide for hours of work and overtime on a five-day week (Monday to Friday), and the Authority has proposed to introduce or effect the following changes with regard to the hours of work at the Port in order to improve the efficiency and effectiveness of the delivery of services and maximize productivity:-

(a)That the Port operates on a seven day week from Monday to Sunday.

(b)That every employee works five (5) days a week after which he/she becomes entitled to two (2) rest days. The rest daysmay fall on any day of the week.

(c)That a normal shift be eight (8) hours but the Authority shall determine when to start and finishas those maynot be uniform in the entire organization or for all employees.

(d)That any employee requested to work on his/her rest day or extend to the next shift be compensated by either being paid overtime atagreed rates or be given time off.

(e)That a shift be broken into two parts as found appropriate by the Authority as is currently being done for non-operational employees where the working time is broken into morning and afternoon sessions with a lunch break in between.

Mrs. Onyango averred that although the current hours of work have been operating for a long time, the arrangement has inherent problems affecting efficiency and productivity which the Authority intend to have them changed for the benefit of all the stakeholders, including the employees as well. She stated that in order to serve its customers, the Port has to operate twenty-four (24) hours per day, seven days a week; and it is indeed in this regard that the “Port and dock services, including stevedoring and lightering, loading and unloading of cargo from or to any ship and dispatch of any cargo to destinations” are regarded as an essential service pursuant to the First Schedule of the Act. Therefore, because of the problems experienced with the current arrangements, the Authority has persistently proposed to change the working hours at the Port, and the Court has also appreciated the need for such change by awarding in the aforementioned disputes that the status quo be maintained “in the meantime” and advised the parties to negotiate further on the matter.

On overtime, the Authority has also proposed that overtime work be payable up to 15% of basic salary and that for any additional overtime worked, the Authority will exercise the option of converting such overtime worked into time off in lieu. Mrs. Onyango submitted that the Authority has the responsibility to arrange work in line with its business, provided that the agreed hours of work are not violated; and in support of her case, she relied on the observation by this Court in Cause No. 72 of 1990 where it was stated, inter alia, at page 42 as hereunder:-

“………. the Court is of the view that it is purely the function of the management to regulate the number of shifts according to the requirements of their business. They are the best or sole judge to decide which are the thin and busy hours of the business and what should be the number of the shifts to cope with the business. The management are also the best judge as to how their work should be carried on economically and efficiently, and the employees have no right to complain as long as they are not victimized”.

That, she said, was thirteen years ago when the Court delivered or made the award on the issue of hours of work, but since then many changes have taken place in the country’s business scene which have forced or compelled many business organizations to appraise their work arrangements, undertake restructuring programmes and strategically plan their activities. It is, therefore, only logical for the Authority to look for ways of improving the operations of the Port for the benefit of all the stakeholders, including the employees.

In conclusion, Mrs. Onyango submitted that a five (5) day working week from Monday to Friday in a Port that operates seven (7) days a week and twenty-four(24) hours a day is uneconomical, inefficient and expensive to customers. Thus, it is the responsibility of the Authority to explore survival optional options that will enable it to stay ahead of the competition and ensure job security for all its employees. Furthermore, to maintain the current status quo will eventually lead to the Port being reduced from a major regional Port to a feeder Port status, resulting in declining throughput, plummeting revenue and shrinking job opportunities, with staff retrenchment becoming a very likely reality. Mrs. Onyango, therefore, urged the Court and sundry to abhor and condemn the Union’s persistent and obstinate refusal to concede to the proposed positive changes of working hours as anti-development and short-sighted, and prayed that the demand be allowed.

Mr. Kiliku’s written main and final submissions are riddled with massive repetitions and monotony. In his introductory remarks, Mr. Kiliku dwelt at length on the changes that have taken place or occurred during the industrial revolution, but in a nutshell the thrust of his strenuous objection to the demand was that the Authority violated the spirit and letter of the previous Court awards by overworking the employees, particularly during the third shift, i.e. abnormal hours; that the changes which the Authority intend to introduce will deprive the employees of their earnings, jeopardize good industrial relations, create serious unfavourable conditions and problems, adversely affect productivity and disrupt the smooth running of the operations of the Port; that any attempt to coerce the employees to accept new methods of work will undermine peace and stability at the Port. Mr. Kiliku vehemently denied the assertion by the management of the Authority that the operations of the port have become expensive to the Port users compared to Tanzania ports due to heavy overtime of unionisable employees, considering that the wage bill for the leaner non-operational management staff far exceeds that of the larger productive unionisable employees. He pointed out that the operational costs and expenditure of the Port involve not only the wage bill for the unionisable employees only, but also the wage bill of management and office cadres, tariffs, surcharges, demurrages, life of machinery, e.t.c. Therefore, the management of the Port should explore other ways and means to ameliorate the working conditions at the Port instead of blaming the unionisable employees and overtime arrangement.

On overtime, Mr. Kiliku submitted that it is a privilege and on request by the management when there is enough work to justify it and should be compensated in kind. After all, he said, overtime is paid for by the shippers in hard currency. He castigated the management of the Port for inefficiency and poor performance thereat, and urged them to improve the services in line with other ports all over the world, resulting in reduction of working hours and days so as to make the Port profitable and attractive.

As regards the tour to other ports, Mr. Kiliku submitted that the operations of Mombasa Port are not different from the operations of those other Ports, particularly the ports in this region, except that the overtime rates and other benefits in those ports are better than what is obtaining in our Port of Mombasa. He stated that Saturdays and Sundays in other ports are treated as holidays or weekends and employees are paid double rate, and thrice normal rate for third shifts. However, he said, in Tanzania International Container Services Ltd., a third shift is paid as overtime and averred that the working week for these ports are Monday to Friday.

For the foregoing reasons, Mr. Kiliku urged the Court to censure, while rejecting the demand, the management of the Port for circumventing the previous Court awards and for insatiable maximization of profits at the expense of the employees’ health and earnings.

During the initial hearing of this dispute, the parties and the Court saw the need and justification to visit other ports, particularly in the region, for comparative analysis, especially on hours of work and overtime because they relate to both productivity, employment levels and automation on the one hand and chargeable tariffs, competition and international maritime standards and regulations on the other. The issue of rest days, i.e. Saturdays and Sundays, work being paid at double rate was also isolated as big drain of the Authority’s revenue, and the need to change this practice has been raised twice before in this Court without a lasting solution being found. It is, therefore, time that the matter is resolved once and for all without causing any industrial unrest; and this will largely depend on the worldwide practice as the Authority cannot be treated in isolation nor can the Court set a precedent without good reasons. It was for this reason that the following representatives of the parties and the Industrial Court economist identified and visited four Ports, namely, Mauritius Ports Authority (MPA), Tanzania Harbour Authority and Tanzania International Container Services Ltd., Port Klang (Regional Port Authority) Malysia and the Port of Singapore:-

1. Mr. A.F.O Oludhe - Chief Industrial Relations Officer, Kenya Ports Authority.

2. Mrs. O. Onyango - Senior Executive Officer, Federationof Kenya Employers, F.K.E.

3. Mr. J.K. Kiliku - General Secretary, Dock Workers’Union.

4. Mr. B.O. Wamidha - Shopsteward, Dock Workers’Union.

5. Mr. J.N. Macharia - Economist, Industrial Court.

The report thereof forms part of this award.

One of the most critical problems facing parties to the employment relationship, and especially the employees, is that of changes at work as a result of new technology reorganization of production, re-training and new methods of work; and, of course, it should be recognized by both parties that commercial requirements may necessitate changes in the terms and conditions of employment of the employees. So what is the employee’s work obligation: how is it defined in law, and to what extent does the law require the employee to be flexible, and when change is introduced, how does the law regulate the process of change? The Courts see the contract of employment as needing to define the work purchased by the employer from the employee; but the employer, however, is more interested in flexibility and mobility so as to maximize production in the light of changing requirements. However, there can really be no doubt as to the fact that an employee is expected to adopt himself to new methods and techniques introduced in the course of his employment (see North Riding Garage Ltd. V. Butterwick (1967) 2 Q.B.56). No doubt, an employee is not bound positively to do more for his employer than his contract of employment requires. He can withdraw his goodwill if he pleases. But what he must not do is to wilfully obstruct the employer as he goes about his business. This does not mean that the employer could require an employee to do anything which lay outside his obligations under the contract, such as to work excess hours of work or to work an unsafe system of work or anything of that kind; but it does mean that within the terms of the contract the employee must serve the employer faithfully with a view to promoting those commercial interests for which he is employed. Moreover, the contrary view or conclusion is, in our opinion, one which proceed upon too much narrow and formalistic an approach to the legal relations of employer and employee and would fly in the face of common sense. Although doubtless, all of us, being conservative by nature, desire nothing better than to be left to deepen our accustomed ruts, and hate change, employees have no right to remain in perpetuity doing one defined type of work in one particular way. Therefore, employees risk dismissal if they continue to resist change. The policy issue here is between the right of the employer unilaterally to change the work obligation and the right of the employee to adhere to the obligation. In Woods v. W.M. Car Services (Peterborough) Ltd. (1982) IRLR.413in the Court of Appeal, Watkins L.J., said at page 416:-

“Employers must not, in my opinion, be put in a position where, through the wrongful refusal of their employees to accept change, they are prevented from introducing improved business methods in furtherance of seeking success for their enterprise.”

As in the present case, Watkins was concerned with a refusal to accept change rather than an inability to do so. It is, therefore, not for the employees to determine what method and standard is appropriate for the employer to achieve.

It is important to remember that the working hours have remained unchanged for many years at the Port; and during these years considerable changes have taken place in the country’s economic position, development and expectations. With the growing realization of the need for better distribution of national wealth, has also come the understanding of the need for increase in production as an essential pr-requisite of which greater efforts on the part of the employees or workforce are needed. That in itself is sufficient reason against accepting the argument against any change in the working hours if found justified on relevant considerations. Of course, the changes in working methods and practices which the Authority seeks to bring in its train are great. The Authority wants to introduce up to date modern methods for dealing with bulk problems, e.g. easing congestion at the Port. However, the Authority leaves the jobs done by those who operate the new methodology precisely the same as before, although the content of some of the jobs will have been considerably altered, but in no case altered anything like sufficiently to fall outside the original description of the proper functions of the employees concerned; and there has been a substantial reason for the Authority to justify the changes in the working hours and overtime. In view of the nature of the work and the fact that the conditions in which the employees of a port have to work and the way in which ports have to operate differ widely from those in other industries, like factories, shops and offices, it sometimes becomes necessary for the employees to work for longer hours continuously, for example, in cases of emergencies. In its proposal, the Authority has conceded and agreed that an employee would be granted two (2) rest days on any day of the week, not necessarily on Saturday or Sunday or Public Holiday. It was also conceded that if an employee is made to work on a rest day or extend to the next shift, he/she would be compensated by either being paid overtime at agreed rates or be given time off. These concessions, in our opinion, are reasonable.

Though the employees may be entitled to look forward to a five-day week and work only by the day and during eligible overtime, these are goals which may be reached after a country has attained an adequately high level in national economy and industrial development. It would be unreasonable to approach this problem in a purely doctrinaire spirit. If for example, any employer desires to produce more goods and is prepared to compensate the employees for the additional work involved in the process, industrial adjudication would be reluctant to discourage the employer and would assist both capital and labour to devise ways to co-operate with each other and produce more. We appreciate the submissions which the parties have ably and concisely put before us, but at the end of the day, it is largely for the Authority to decide, on the material which is available to it, what is to be done by way of re-organisation and what the requirements of the business for the employees to carry out their work efficiently and in a particular manner, and the employees have no right to complain as long as they are not victimized. We think that this view accords with public policy, otherwise certain sections of the economy, like the Authority which is an “essential service”, would suffer in this age of rapid technological changes.

With the foregoing discussion, we are quite clear in our minds that the Authority is entitled and within its right to introduce or change the working schedule and overtime for all its employees, provided that it substantially complies with all the legal formalities and does not offend in any way against the provisions of the relevant law, and the employees cannot refuse to work or insist upon working on the days which are set apart as their rest days. The Union has not advanced any cogent reason in support of its refusal to accept the change in the working schedule and has also not shown that any employee will be victimized or thrown out of employment by the Authority on the introduction of the working schedule. There is nothing in the memorandum of the Union about the disadvantages concerning the introduction of the working schedule for the employees. Under the circumstances, we cannot restrain the Authority from introducing the working schedule in any manner it likes, provided that it does not offend against the relevant provisions of the law; and it cannot, therefore, be argued that the change of the working schedule is tantamount to a change in the terms and conditions of service. The demand by the Authority is, therefore, allowed.

The members of the Court who sat with the Judge throughout the entire proceedings of this dispute have supported this decision. However, Messrs. M.A. Warrakah and M.M. Jahazi, who sat with the Judge for only one morning in Mombasa during the final submissions of this dispute for purposes of introduction on the first day of their appointment as members of the Court, are not called upon to offer or tender any advice or opinion.

DATED and delivered in Nairobi this 5th day of April, 2007.

Charles P. Chemmuttut, MBS.,

JUDGE.

J.C. Odaga, J.M. Kilonzo,

MEMBER. MEMBER.