Kenya Chemical And Allied Workers Union v East African Portland Cement Company Limited [2015] KEELRC 781 (KLR)
The bottom line
#Kenya's Employment Court ruled that contract workers who pay union dues deserve the same negotiated CBA pay as permanent staff doing similar work.
What this practically means
#Executive summary
#Key legal issues
#Whether contract staff who are union members are covered by the CBA
Contract employees who pay union dues through check-off are 'members' within the CBA and are covered by it.
The term 'Members' was undefined in the Memorandum of Agreement. The court turned to Section 48 of the Labour Relations Act, which defines trade union dues as a subscription required to be paid by a member. Payment of dues voluntarily deducted on the employee's express instructions is what constitutes membership. The prior dispute in Cause 1451/2011, settled by the Respondent agreeing to deduct and remit dues for the affected employees, confirmed their membership.
Whether the Respondent breached the CBA by paying contract staff inferior wages
The Respondent breached the CBA by partially implementing it in favour of only workers on permanent engagement.
The Respondent conceded that contract staff are paid less than permanent unionisable staff, arguing implementation would cost KShs 71.3 million monthly and risk redundancies. Conceding differential pay amounted to breach of the CBA. The authorities cited by the Respondent were distinguished because they concerned adding un-negotiated terms, not breach of negotiated terms. Differential pay for similar work was also discriminatory under Section 5 of the Employment Act, Article 27 of the Constitution and ILO Conventions 98 and 100.
Remedies for breach of the CBA
The Respondent was ordered to implement the CBA as negotiated, with renegotiation of implementation where it is unsustainable.
The court found the claim had merit. Rather than grant the full panoply of remedies sought (conversion to permanent terms, arrears, special damages), the court directed implementation of the CBA as negotiated, and where implementation problems arise on grounds of unsustainability, the parties should renegotiate the implementation process to reach an amicable settlement beneficial to all parties.
Legal principles established
#- Payment of trade union dues is what makes an employee a member of a trade union, and members paying union dues are covered by the CBA negotiated whether permanently employed or on contract.
- Payment of different wages to workers performing similar work constitutes discrimination irrespective of whether they are on contract or permanent terms.
Court orders
#- 1.The Respondents to implement the Collective Bargaining Agreement as negotiated.
- 2.Where implementation is unsustainable, the Respondents should renegotiate the implementation process for purposes of reaching an amicable settlement beneficial to all parties.
- Jurisdiction invoked
- Jurisdiction as the Industrial Court/Employment and Labour Relations Court over the registered collective bargaining agreement and the trade dispute reported under Section 61(2) of the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical And Allied Workers Union v East African Portland Cement Company Limited [2015] KEELRC 781 (KLR)", Case Analysis (2015). Cause No. 2119 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/781/eng@2015-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.