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ELRCDismissedCause Number 1148 of 2011· [2013] KEELRC 120 (KLR)

Kenya Plantation And Agricultural Workers Union v Unilever Tea Kenya Limited [2013] KEELRC 120 (KLR)

Industrial Court of Kenya
18 September 2013
2,489 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that daily-rated seasonal workers are entitled to a weekly rest day, but not to pay for it, unless a collective agreement says so.

What this practically means

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Executive summary

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The Kenya Plantation and Agricultural Workers Union claimed on behalf of about 15,000 Unilever Tea Kenya Limited employees, principally daily rated ungraded seasonal workers in Kericho and Kiambu, that the Respondent was obliged to pay them for their weekly rest day under Clause 4(ii)(e) of the 2010-2011 CBA and Section 27 of the Employment Act 2007, seeking payment of rest day arrears dating back to 2007. The union relied on Cause Number 192 of 2008 (Kenya Shoe & Leather Workers Union v Bata Shoe Company). The Respondent, through its Operations Manager and Human Resources Manager, testified that the daily rate was a measure of output for seasonal employees on monthly contracts; the CBA deliberately provided an unpaid rest day with double hourly rate for work done on rest day, and its proposal for paid rest day had been rejected in negotiations. Rika J held that Section 27 grants only the bare rest day and does not compel payment; paid rest day is a matter for collective bargaining. The Bata authority was distinguished as it concerned casual employees converted under Section 37, whereas these employees are seasonal by agreement, with no claim for conversion. The court declined to impose terms on the parties and dismissed the claim with no order on costs, directing the parties to discuss the subject comprehensively and in good faith in future collective bargaining. Delivered at Nairobi on 18th September 2013.

Key legal issues

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01

Whether rest day is payable to daily-rated ungraded employees

Holding

No - the law grants only the bare rest day; pay during rest day is a matter for negotiation and agreement, and the CBA between the parties does not provide for it

Reasoning

Section 27 of the Employment Act 2007 sets minimum standards: one rest day per seven days of work. It does not expressly require payment for the rest day. The governing CBA, borrowed from industry practice with KTGA, provides for a rest day without pay and double hourly rate for work done on rest day. The court declined to introduce a term the parties had not agreed, and noted the Claimant's own proposal for a paid rest day was rejected during negotiations.

p. 3
02

Whether the Bata Shoe Company decision (Cause No. 192 of 2008) governs this dispute

Holding

It is distinguishable - that case concerned conversion of casual employees under Section 37; the present employees are seasonal, not casual

Reasoning

The Claimant relied on Cause Number 192 of 2008 (Kenya Shoe & Leather Workers Union v Bata Shoe Company), which dealt with casual employees converted to regular employment and thus entitled to paid rest day under Section 37. Here the ungraded employees are accepted across the board to be seasonal employees on monthly contracts, categorized as such by agreement between employer and union, with no claim for conversion. The court held it would be neither fair nor just to apply casual-employee law to agreed seasonal labour arrangements.

p. 2
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Whether seasonal employees can access paid rest day

Holding

Only through collective bargaining or conversion into regular employment; the court cannot compel the parties to adopt it

Reasoning

The law does not outlaw paid rest day for irregular/seasonal employees - it leaves the window open for parties to determine this at the collective bargaining forum. The court should not compel parties through that window. The union was directed to pursue the subject comprehensively and in good faith in future negotiations, as the issue raised by the Limuru branch may not have reached top decision-making levels.

p. 4

Legal principles established

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  • Section 27 of the Employment Act 2007 grants daily-rated employees a minimum of one rest day in every seven days but does not compel payment for that rest day; payment for rest day is a matter for collective agreement
  • Section 37 of the Employment Act confers paid rest day on employees converted from casual to regular employment, not on seasonal employees on monthly contracts
  • Courts should not impose terms of employment on parties; paid rest day is determinable at the collective bargaining forum so long as CBAs do not breach statutory minimum standards

Court orders

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  1. 1.The Claim is dismissed
  2. 2.No order on the costs
  3. 3.Parties directed to discuss the subject matter of the dispute comprehensively and in good faith in their future collective bargaining and negotiations

Authorities

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Legislation

  • Employment Act 2007Section 27 [2]
  • Employment Act 2007Section 37
  • Regulation of Wages [Agricultural Industry] Order

Cases cited (1)

  • Kenya Shoe & Leather Workers Union v. Bata Shoe Company
    Cause Number 192 of 2008
Jurisdiction invoked
Reference of a trade dispute to the Industrial Court after conciliation deadlock under the Labour Relations Act machinery (dispute reported to the Minister for Labour and conciliator recorded deadlock)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation And Agricultural Workers Union v Unilever Tea Kenya Limited [2013] KEELRC 120 (KLR)", Case Analysis (2013). Cause Number 1148 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/120/eng@2013-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.