Kenya Airways Limited v Kenya Airliners Pilots Association [2013] KEELRC 569 (KLR)

The Industrial Court is specially established under Article 162(2)(a) of the Constitution with the status of the High Court. Section 12(1) of the Industrial Court Act, 2011 grants it exclusive original and appellate jurisdiction over employment and labour relations disputes, while Article 165(5) ousts the High Court's jurisdiction. A dispute over negotiation of a CBA falls squarely within these provisions.

Sections 59(1), 59(3) and 59(5) of the LRA make a registered collective agreement binding and enforceable, its terms being incorporated into individual contracts of employment. Part VII of the LRA contains no provision for variation or review. The variation clause (Clause 51) requiring 60 days' written notice was not followed by the Claimant, and the statutory dispute resolution mechanism was not invoked.

Because the injunction sought was final in nature, taking away accrued contractual rights of the Respondent's members, the Claimant had to establish a clear right on a balance of probabilities rather than a mere prima facie case. The Claimant fell short of this threshold, having neither followed the Clause 51 procedure nor impugned the CBA.

Applying Combe v Combe, the Claimant had to show that the Respondent by words or conduct made a promise or assurance intended to affect legal relations and that the Claimant acted on it to its detriment. The cost-cutting discussions fell far short of this; no waiver of the notice period under Clause 51 was established.

The ILO Committee's position permits wage restrictions only in compelling circumstances of national economic interest, as an exceptional measure with safeguards. In Kenya such limitation of employees' rights could only be achieved through legislation satisfying Article 24 of the Constitution. The Claimant was not in receivership, so the principle did not apply.