KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v KENYA NATIONAL LIBRARY SERVICES [2002] KEELRC 32 (KLR)
The bottom line
#Kenya's Industrial Court ruled that even government-funded bodies like the Kenya National Library Services must pay unionised workers proper wages and cannot delay negotiations without consequence.
What this practically means
#Executive summary
#Key legal issues
#Status of a government-funded non-revenue parastatal as an 'industry' under the Trade Disputes Act
The Board's functions and activities, whether profit-making or service-rendering, fall within the connotation of 'industry' and constitute a 'trade dispute' under the Act; the cloak of government protection is inappropriate in industrial adjudication of public corporations.
The Court reasoned that except for genuinely governmental ('regal') functions possibly delegated to it, the Board's activities could equally be undertaken by private citizens or corporations. Being a separate legal entity, it must engage employees like any other commercial undertaking, and budgetary dependence on government does not shield it from normal industrial adjudication.
Minimum wage adjustment
Minimum rates of pay to be adjusted in conformity with the latest General Wages Order, following the Union's acceptance of the Board's offer on that condition.
The Court held that the minimum wage is a bare subsistence fixed by reference to cost of living; in Kenya prices have risen so rapidly that the minimum wage has not kept pace. Since the Union accepted the Board's offer conditional on conformity with the statutory Wages Order, the Court awarded adjustment accordingly.
General wage increase
Awarded 10% each year (20% over two years) for Job Groups S.1–S.4 and 7½% each year (15% over two years) for S.5–S.7, midway between the Board's 5% offer and the Union's 17%/15% demands.
The Court weighed the EPD report on cost of living indices (average 20% rise), the Board's dependence on government grants, and the upgrading of posts improving wages by 15%. Applying the principles of comparative wages, productivity, cost of living and ability to pay, it found the Board's offer too low and the Union's demand too high and split the difference.
House allowance
Demand for Kshs.250/= per month increase across the board allowed, with due regard to Section 9 of the Employment Act and government harmonisation circulars on housing.
The Court noted the scarcity and unaffordability of good housing, the disadvantage faced by junior grades in Nairobi where one-bedroom rents exceed their allowances, and Section 9 of the Employment Act obliging employers to provide reasonable housing or sufficient rent. It took into account the Government's harmonisation circulars on housing and allowed the demand.
Effective date of the collective agreement
Effective date fixed at 1st July 1998 (the date the outgoing agreement expired) for a two-year duration, as the delay was entirely attributable to the Board.
The Board's dilatory attitude and prolonged correspondence with the Government caused the delay in negotiations. The Court held it would be unfair to penalise employees by denying them entitlements from the proper date of commencement, and therefore awarded the Union's proposed date of 1st July 1998 rather than the Board's 1st July 1999.
Legal principles established
#- Every employee in an industry is entitled to the minimum wage irrespective of the capacity of the industry to pay; the minimum wage is a bare subsistence determined by cost of living and reasonable needs
- Commercial or service public corporations are separate legal entities that engage employees on the same conditions as any other commercial undertaking, and their activities constitute an 'industry' and 'trade dispute' under the Trade Disputes Act notwithstanding government control or funding
- The primary objective in awarding wage increases is the restoration of peace, harmony and goodwill in the industry, having regard to comparative wages, productivity, cost of living and the employer's ability to pay
- Gratuity is a reward for good efficiency of faithful service over a substantial period and not a mere boon
- An employer whose dilatory conduct delays negotiation of a new collective agreement cannot penalise employees by backdating consequences against them; the effective date should reflect the proper commencement of the agreement
Court orders
#- 1.Issues Nos. 3, 4(c) to (g) and under Remunerative Allowance (b) to (d), 5, 6, 7 and 8, having been settled/dropped, dismissed as such
- 2.Minimum rates of pay to be adjusted in conformity with the latest General Wages Order
- 3.General wage increase of 10% each year (20% for the two-year period) for Job Groups S.1 to S.4
- 4.General wage increase of 7½% each year (15% for the two-year period) for Job Groups S.5 to S.7
- 5.House allowance increased by Kshs.250/= per month across the board, with new rates of S.1 Kshs.1,700; S.2 Kshs.1,900; S.3 Kshs.2,000; S.4 Kshs.2,100; S.5 Kshs.2,300; S.6 Kshs.2,550; S.7 Kshs.2,900
- 6.Accommodation Allowance demand rejected; existing rates maintained
- 7.Mobile/Lunch Allowance demand rejected; present arrangement maintained
- 8.Extra-Duty Allowance demand rejected
- 9.Gratuity demand rejected
- 10.Staff welfare (coffin expenses) increased by Kshs.2,500/= from Kshs.10,000/= to Kshs.12,500/=
- 11.Effective date of the incoming collective agreement fixed at 1st July 1998 for a duration of two years
- Jurisdiction invoked
- Section 14(7) and (9)(e) of the Trade Disputes Act, Cap. 234, Laws of Kenya (dispute referred with statutory certificate of the Labour Commissioner)
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.
- KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v NATIONAL WATER CONSERVATION AND PIPELINE CORPORATION [2002] KEELRC 9 (KLR)[2002] KEELRC 9 (KLR)8 Nov 2002applied
Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v KENYA NATIONAL LIBRARY SERVICES [2002] KEELRC 32 (KLR)", Case Analysis (2002). Cause No. 76 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/32/eng@2002-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.