East Africa Portland Cement Co. Ltd v Kenya Chemical & Allied Workers Union [2017] KECA 215 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that union members on contract must receive CBA benefits negotiated for their union, including wage increases.
What this practically means
#Executive summary
#Key legal issues
#Whether contract employees who are union members are entitled to benefits negotiated under a CBA even if negotiations were understood to relate to casuals only
Yes. Once contract staff became union members paying dues, the negotiations covered their cadre; it did not matter that the union did not explicitly state the full category of workers covered, unless contract staff were expressly excluded - and express exclusion would have been discriminatory and void.
The court held that payment of union dues is a condition of membership and that a CBA applies to members. Section 57 of the Labour Relations Act requires an employer with a recognition agreement to negotiate for all unionisable employees covered by it, not only employees covered by the negotiations. Section 59(1)(b) binds all unionisable employees, and Section 59(3) incorporates CBA terms into individual contracts. Paying casuals and contract staff doing the same work different wages would contravene section 5 of the Employment Act on equality and non-discrimination.
Whether differential pay between casuals and contract staff amounted to discrimination
Yes. The court agreed with the learned judge that treating contract staff and casuals differently in wages abrogated ILO Convention 100 on equal remuneration and was fortified by Article 27 of the Constitution.
Both categories performed the same tasks, were not in management, and were union members. Section 5 of the Employment Act outlaws discrimination in employment and upholds equality of opportunity. The court endorsed the trial judge's reliance on ILO Convention 100 (equal remuneration for work of equal value) and Article 27 of the Constitution, answering all grounds of appeal.
Whether non-members of a union can claim benefits from terms negotiated for members
No. Non-members cannot be beneficiaries of negotiations for wages and conditions of service negotiated for members; entitlement accrued only once contract staff became members following the consent order on check-off dues.
The court noted that prior to 30th November 2011, when the consent order in Industrial Cause No.1451 of 2011 compelled implementation of the check-off system, contract staff were not paying union dues and thus were not members. Payment of union dues is a condition for membership, and as the CBA applies to members, non-members could not claim the negotiated benefits for the earlier period.
Legal principles established
#- A collective agreement binds all unionisable employees employed by the employer party to the agreement, not merely those expressly covered by the negotiations; terms negotiated by a union benefit all members on whose behalf it negotiated.
- An employer with a recognition agreement must enter into a CBA on terms and conditions of service for all unionisable employees covered by the recognition agreement, and it would be discriminatory and void to expressly exclude union-member contract staff from negotiated benefits.
- Terms of a registered CBA are incorporated into the individual contracts of employment of unionisable employees who are union members.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- Employment and Labour Relations Court
- ELR Cause No. 2119 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 29(1)(a) re-appraisal of evidence); appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "East Africa Portland Cement Co. Ltd v Kenya Chemical & Allied Workers Union [2017] KECA 215 (KLR)", Case Analysis (2017). Civil Appeal No. 14 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/215/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.