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ELRCDismissedIndustrial Cause No. 1507 of 2011 (memorandum of claim dated 24th October 2011)· [2014] KEELRC 266 (KLR)

Kenya Union of Commecial Food and Allied Workers v National Social Security Fund [2014] KEELRC 266 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
1 October 2014
MNMathews N. Nduma
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that employers must consult unions over job evaluations but don't need union agreement — and unions must prove their claims with evidence.

What this practically means

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Executive summary

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The Claimant union, which had a Recognition Agreement and a CBA registered on 22nd January 2010 with the National Social Security Fund, filed a memorandum of claim on 24th October 2011 seeking a permanent injunction against implementation of a Job Evaluation Exercise conducted by Pricewaterhousecoopers, a declaration that the results and intended transfers and mass displacement of employees were null and void, and an order for an all-inclusive fresh job evaluation. By a prior consent order, the grades had already been implemented and issues of transfers and displacement were spent, leaving only the question whether the exercise violated the Recognition Agreement and CBA by failing to involve the union through properly authorised representatives, the union contending only the Secretary General could appoint representatives under Clause 2 of the Recognition Agreement and Section 2(9) of the Labour Relations Act. The claimant led no oral evidence, relying on pleadings and an affidavit, while the respondent called Wilson Gachoni and produced minutes and correspondence showing three shopstewards sat on the steering committee and the Project Management Office and that the General Secretary was consulted. The Court held that the union was involved, that the claimant's allegations were bald and unsupported, and that an employer must consult but need not obtain the union's concurrence on measures affecting negotiable CBA terms. The suit was dismissed with costs to the respondent on 1st October 2014.

Key legal issues

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01

Whether the Job Evaluation Exercise violated the Recognition Agreement and CBA by failing to involve the union through properly authorised representatives

Holding

The Court found no violation; the evidence showed shopstewards sat on the steering committee and PMO and the General Secretary was consulted during implementation

Reasoning

The claimant called no witnesses and relied on averments and affidavits. The respondent's witness, Wilson Gachoni, testified extensively and produced documentation showing three shopstewards (Genge Odongo, Lucy Ndung'u and Reuben Macharia) were involved in the steering committee and the Project Management Office, and that a consultative meeting was held with the General Secretary on 18th October 2010. The claimant's allegations were bald and unsupported.

p. 4
02

The extent of the employer's duty to consult the union over workplace measures affecting negotiable terms

Holding

The employer must consult, but need not obtain the union's concurrence, before implementing measures affecting negotiable CBA terms, provided its conduct does not breach or repudiate contracts of service

Reasoning

The Court held that management of the business is the employer's prerogative, exercised fairly, transparently and lawfully. Measures touching negotiable terms in the CBA and individual contracts must not be implemented without consultation, but concurrence is not required, and the conduct must not amount to breach or repudiation of contracts of service. The Job Evaluation process did not negate collective bargaining, which was ongoing.

p. 4

Legal principles established

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  • An employer has the prerogative to manage its business, subject to a duty to consult (not necessarily obtain concurrence of) the union where measures affect negotiable CBA terms, and must not breach or repudiate contracts of service
  • He who alleges bears the burden of proof

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • The Labour Relations ActSection 2(9)
  • Industrial Court ActSection 12
  • Constitution of Kenya 2010Article 41

Cases cited (1)

  • KUCFAW and BAT
    Industrial Cause No. 499 of 2010
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011 as read with Article 41 of the Constitution of Kenya 2010

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, "Kenya Union of Commecial Food and Allied Workers v National Social Security Fund [2014] KEELRC 266 (KLR)", Case Analysis (2014). Industrial Cause No. 1507 of 2011 (memorandum of claim dated 24th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/266/eng@2014-10-01

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