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ELRCAllowedCause 2 of 2013· [2013] KEELRC 521 (KLR)

KUDHEIHA WORKERS V EREGI TEACHERS COLLEGE [2013] KEELRC 521 (KLR)

Industrial Court of Kenya
28 January 2013
HWHellen Wasilwa
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer cannot delay collective bargaining after recognising a union—the court ordered Eregi Teachers College to negotiate a CBA within three months.

What this practically means

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Executive summary

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The Industrial Court of Kenya at Kisumu (Hellen Wasilwa, Judge) determined an ex parte cause in which Kudheiha Workers, a trade union representing employees in educational institutions, sued Eregi Teachers College for refusing to negotiate a collective bargaining agreement. A recognition agreement was signed on 22 October 2010 under section 54(1) of the Labour Relations Act 2007 after the union recruited the unionisable employees. The union sent CBA proposals on 10 January 2011, made repeated attempts to engage the college, and reported a dispute to the Ministry of Labour on 6 June 2011. A conciliator was appointed; the college failed to attend the joint meeting, a certificate of disagreement issued, and the union filed this cause. The respondent never entered appearance nor filed a reply despite service, and the matter proceeded ex parte. The court framed two issues: whether the claimant had fulfilled its obligations to warrant collective bargaining, and what remedy it was entitled to. Relying on Article 41(5) of the Constitution and sections 54(1) and 57(1) of the Labour Relations Act, the court held that the claimant had recruited the requisite numbers, gained recognition, and thereby compelled the respondent to negotiate; refusal to commence negotiations was a breach of the law. The court ordered the respondent to negotiate a CBA with the union without further delay, to commence and complete negotiations within three months, aided by the Labour Office Kakamega, gave the union liberty to seek further orders on breach, and awarded costs to the claimant.

Key legal issues

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01

Whether the Claimant fulfilled its obligations to warrant a demand to enter into collective bargaining

Holding

The Claimant fulfilled its part by recruiting the requisite simple majority of unionisable employees and obtaining a recognition agreement; the Respondent was bound to negotiate a CBA and its refusal breached the law.

Reasoning

Article 41(5) of the Constitution grants every trade union, employers' organisation and employer the right to collective bargaining. Under section 54(1) of the Labour Relations Act 2007 an employer must recognise a trade union representing the simple majority of unionisable employees, which the Claimant did through a signed recognition agreement dated 22 October 2010. Section 57(1) obliges an employer who has recognised a union to conclude a collective agreement. The Respondent ignored proposals, conciliation and the conciliator's certificate of disagreement, and never appeared to contest the claim.

p. 2
02

What remedy the Claimant is entitled to

Holding

The appropriate remedy is a mandatory order compelling the Respondent to negotiate a CBA with the Claimant within three months, with the assistance of the Labour Office Kakamega, plus costs.

Reasoning

Having found the Respondent in breach of its statutory obligation to negotiate a collective agreement, the court fashioned a remedy that enforces the right to collective bargaining rather than awarding damages: an order to negotiate without further delay, to be completed within three months, facilitated by the Labour office Kakamega, with liberty to return to court on breach and costs against the Respondent.

p. 2

Legal principles established

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  • An employer who has recognised a trade union under section 54(1) of the Labour Relations Act is bound to conclude and negotiate a collective agreement with that union; refusal to commence negotiations is a breach of the law.

Court orders

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  1. 1.The Respondents must negotiate with the Claimants without any further delay
  2. 2.Such negotiations must commence and be completed within three months from the date of the ruling and be aided by the Labour office Kakamega
  3. 3.The Claimants are at liberty to move the court for any other orders in case of breach
  4. 4.The Respondents to pay the costs of the case

Authorities

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Legislation

  • Constitution of KenyaArticle 41(5)
  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 57(1)
Jurisdiction invoked
Industrial Court of Kenya jurisdiction under the Labour Relations Act 2007 and Article 41(5) of the Constitution of Kenya (right to collective bargaining); dispute reported to the Ministry of Labour and certified as unresolved

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KUDHEIHA WORKERS V EREGI TEACHERS COLLEGE [2013] KEELRC 521 (KLR)", Case Analysis (2013). Cause 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/521/eng@2013-01-28

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