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ELRCPartially AllowedNot stated in the judgment· [2014] KEELRC 1502 (KLR)

Kenya Union of Commercial Food & Allied Workers v Ruchu Garage Farmers Co-op Society Limited [2014] KEELRC 1502 (KLR)

Industrial Court of Kenya
30 June 2014
1,001 words in judgment
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The bottom line

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A Kenyan court confirmed that a collective agreement registered late is still valid and corrected severance pay to one month's salary per year worked.

What this practically means

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Executive summary

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The applicants, through the supporting affidavit of Peter Ngugi, the claimant's Assistant Secretary General, moved the Industrial Court by Notice of Motion dated 30.5.2013 under Sections 3, 12 and 16 of the Industrial Court Act 2011, Rule 32 of the Industrial Court (Procedure) Rules 2010 and Section 87 of the Employment Act 2007, seeking review of the court's judgment of 18.12.2012, specifically Order No. 3, on the ground that severance pay had been erroneously computed at 15 days' salary per year worked instead of the terms of the applicable Collective Bargaining Agreement. The respondents opposed through grounds of opposition and skeletal submissions, arguing there was no new matter or error apparent on the face of the record and that the CBA was itself invalid for being submitted for registration beyond the 14 days allowed by Section 60(1) of the Labour Relations Act 2007. The respondents, though represented, did not attend the hearing. The court held that late registration does not invalidate a CBA, since Section 60(7)(a) is not mandatory and registration by the court validates the agreement. On the merits, it found an error apparent on the face of the record: the claimant, who had served 11 years from January 1999 to February 2009, should have been awarded severance under Clause 5(vi) of the CBA at one month per year worked, not 15 days per year. The court reviewed Order No. 3 and awarded Ksh 32,120 x 2 = Ksh 64,240, with no order as to costs.

Key legal issues

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01

Validity of a Collective Bargaining Agreement registered beyond the 14-day statutory period

Holding

Late registration does not invalidate the CBA; the court's registration, which follows defined parameters and is discretionary, validates it.

Reasoning

Section 60(1) of the Labour Relations Act 2007 requires a collective agreement to be submitted for registration within fourteen days of conclusion. However, Section 60(7)(a), empowering the court to register a collective agreement within fourteen days of receiving it, is not mandatory in its wording. The court does not blindly register CBAs but applies parameters and may refuse registration. Registration therefore cures the late submission.

p. 2
02

Whether the computation of severance pay at 15 days per year worked instead of per the CBA constituted an error apparent on the face of the record

Holding

Yes. The claimant had asked for computation per the CBA, which tiered severance by length of service; for 11 years' service, at least 1 month per year worked was due under Clause 5(vi).

Reasoning

The court had computed severance for the claimant's 11 years of service (January 1999 to February 2009) at 15 days' salary per year worked, whereas the claimant had requested computation under the CBA, whose Article 5 categorised calculations by length of service. Under Clause 5(viii), 11 years' service would trigger referral to a joint Committee; there was no proof of that, so Clause 5(vi) applied, giving at least 12 months. The order was varied to 1 month per year worked, yielding Ksh 64,240.

p. 3

Legal principles established

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  • Late submission of a Collective Agreement for registration beyond the 14 days prescribed by Section 60(1) of the Labour Relations Act does not invalidate it once registered, because registration is not mandatory.
  • The Industrial Court has power to review its own judgments, awards, orders or decrees in accordance with the Rules, including where there is an error apparent on the face of the record.

Court orders

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  1. 1.The court reviewed its judgment of 18.12.2012, in particular Order No. 3
  2. 2.Severance pay computed at 1 month's salary for each year worked instead of 15 days per year worked, resulting in Ksh 32,120 x 2 = Ksh 64,240
  3. 3.No order as to costs

Authorities

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Legislation

  • Industrial Court ActSections 3, 12, 16
  • Industrial Court (Procedure) Rules 2010Rule 32(1)(a)-(e)
  • Employment Act 2007Section 87
  • Labour Relations Act 2007Sections 60(1), 60(7)(a)
Jurisdiction invoked
Sections 3, 12 and 16 of the Industrial Court Act 2011, Rule 32 of the Industrial Court (Procedure) Rules 2010 and Section 87 of the Employment Act 2007

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 Commercial Food & Allied Workers v Ruchu Garage Farmers Co-op Society Limited [2014] KEELRC 1502 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1502/eng@2014-06-30

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