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ELRCPartially AllowedCause No. 693 of 2014· [2015] KEELRC 1029 (KLR)

Kenya Chemical & Allied Workers Union v Henkel Chemicals (E.A) Limited [2015] KEELRC 1029 (KLR)

Employment and Labour Relations Court
2 June 2015
HWHellen S. Wasilwa
2,028 words in judgment
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The bottom line

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Kenya's Employment Court refused to write a CBA for a union and employer but ordered them to renegotiate and sign one within 60 days.

What this practically means

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Executive summary

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The Claimant union and the Respondent manufacturer had a recognition agreement and prior CBAs. In February 2012 the Claimant served proposals for a new CBA, including a 30% general wage increase. The Respondent declined to negotiate citing internal problems and hard economic conditions, including a KRA tax demand of Kshs.4,334,467/=. The dispute was reported to the Minister of Labour, a conciliator was appointed, negotiations resumed and the Claimant forwarded a draft CBA in December 2012, but the Respondent refused to sign. Conciliation failed and the conciliator referred the dispute to the court in September 2013. The Claimant sought an order that the negotiated matter be reduced into a CBA and that the Respondent be compelled to sign the agreement as drawn by the Claimant. The court directed the Economic Planning Department of the Ministry of Labour to report on the Respondent's finances; the report showed healthy financial performance with fluctuating net profits and rising wage bills. Framing two issues - whether the court could force clauses on the parties and what orders to grant - the court followed its earlier decision in KUCFAWU v Sanpac Africa Ltd, holding that it would not descend into the parties' boardrooms or impose CBA terms, as that would make it a judge in its own cause. However, finding the Respondent had taken a hard-line stand since 2012, the court ordered the parties to renegotiate and sign a CBA within 60 days based on the EPD report parameters, and awarded costs to the Claimant, payable by the Respondent.

Key legal issues

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Whether the court can force parties to accept specific clauses in an intended Collective Bargaining Agreement

Holding

The court will not impose substantive CBA clauses on the parties; parties must freely negotiate, with the court limited to minimum supervision such as setting timelines

Reasoning

Relying on its earlier decision in KUCFAWU v Sanpac Africa Ltd, the court reasoned that inserting provisions into a CBA would place the judge in the parties' boardroom, compromising the court's ability to later register and adjudicate disputes over the same CBA. Instead, finding the Respondent had taken a hard-line stand since 2012 and failed to cede ground, the court directed renegotiation within 60 days using the Economic Planning Department report parameters.

p. 4

Legal principles established

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  • The court will not dictate the substantive terms of a Collective Bargaining Agreement to the parties; it may only supervise negotiations where one party takes a hard-line stand, e.g. by setting timelines for conclusion.
  • Where a party takes a hard-line position and refuses to cede ground, the court has a duty to ensure a Collective Bargaining Agreement is negotiated and registered without delay, based on economic conditions, inflationary trends and cost of living.

Court orders

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  1. 1.The Claimant and Respondent must proceed and renegotiate and sign a Collective Bargaining Agreement within 60 days based on the parameters set by the Economic Planning Department (EPD) report
  2. 2.The parties to report back to court accordingly
  3. 3.The Respondents to meet costs of the suit

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 58(1)
  • Constitution of KenyaArticle 41(5)

Cases cited (1)

  • Kenya Union of Commercial Food and Allied Workers Union (K.U.C.F&A.W) vs Sanpac Africa Limited
    Nairobi ELRC No.722/12
Jurisdiction invoked
Reference of a trade dispute to the Industrial Court by a conciliator under the Labour Relations Act, Part VIII, following conciliation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Chemical & Allied Workers Union v Henkel Chemicals (E.A) Limited [2015] KEELRC 1029 (KLR)", Case Analysis (2015). Cause No. 693 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1029/eng@2015-06-02

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