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ELRCPartially AllowedCause No. 722 of 2012· [2015] KEELRC 1103 (KLR)

Kenya Union of Commercial Food & Allied Workers (K.U.C.F & A.W) v Sanpac Africa Limited [2015] KEELRC 1103 (KLR)

Employment and Labour Relations Court of Kenya
13 May 2015
HWHellen S. Wasilwa
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot write your Collective Bargaining Agreement for you — but it can order you to finish negotiating one within 60 days.

What this practically means

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Executive summary

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The Claimant, a registered trade union, filed a statement of claim on 30 April 2012 alleging that the Respondent, Sanpac Africa Limited (formerly Santowels Limited), refused to negotiate a Collective Bargaining Agreement. The parties had a valid recognition agreement, the last CBA having expired on 31 December 2011. The Claimant forwarded review proposals on 24 February 2011; the Respondent failed to make counter proposals until after the union reported a trade dispute to the Minister for Labour under Section 62 of the Labour Relations Act on 21 June 2011. A conciliator appointed on 24 June 2011 failed to resolve the dispute, prompting this cause. The Respondent, responding through the Federation of Kenya Employers, denied refusing to negotiate, contending that most issues had been agreed and only general wage increase, house allowance, death of an employee, meals allowance and commuter allowance remained outstanding, and blamed the breakdown on factors including abusive language by the union's General Secretary. A Central Planning and Monitoring Unit report was filed on 3 April 2014. The court found that negotiations had stalled after considerable agreement on most issues. Invoking Article 41(5) of the Constitution, it held that collective bargaining is a right to be exercised voluntarily without coercion, and that inserting provisions into the agreement would compromise the court's impartiality as a future registrar and adjudicator of CBAs. It therefore declined to insert the Claimant's proposed provisions but, exercising its duty to ensure negotiations proceed, ordered the parties to negotiate and conclude a CBA within 60 days and report back to court.

Key legal issues

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01

Whether the court can impose terms of a Collective Bargaining Agreement on unwilling parties

Holding

The court declined to insert provisions into the CBA, holding that to do so would compromise its role in registering and adjudicating negotiated agreements

Reasoning

The court reasoned that collective bargaining under Article 41(5) is a right of the parties to exercise voluntarily without court interference or coercion. Directing the court to insert provisions would draw it into the parties' boardroom negotiations, compromising its impartiality when later registering a negotiated CBA or adjudicating disputes. Its duty is instead to ensure negotiations proceed and are completed.

p. 3
02

Duty of the court where negotiations have stalled

Holding

The court has a duty to aid the parties to reach a reasonable settlement and ordered negotiations to be concluded within 60 days

Reasoning

Noting that the parties had considerably negotiated and agreed on most issues, the court held its duty was to ensure negotiations proceed rather than impose terms. The dispute was properly before the court under Section 54(7) of the Labour Relations Act after failed conciliation, but the appropriate remedy was a supervisory order directing completion of negotiations within 60 days and a report back to court.

p. 4

Legal principles established

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  • Collective bargaining is a right the parties must exercise voluntarily and without coercion; the court will not impose terms on negotiating parties but may direct that negotiations proceed

Court orders

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  1. 1.The court declined to insert any provisions into the Collective Bargaining Agreement as submitted
  2. 2.The Claimant and Respondent to negotiate and conclude a Collective Bargaining Agreement within 60 days from the date of judgment and report back to court

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Labour Relations ActSection 54
  • Labour Relations ActSection 54(7)
  • Labour Relations ActSection 54(8)
  • Labour Relations ActSection 57(1)
  • Constitution of KenyaArticle 41(5)
  • Companies Act
Jurisdiction invoked
Sections 54(7) and 54(8) of the Labour Relations Act, 2007 (dispute referred to the Industrial Court after failed conciliation)

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 (K.U.C.F & A.W) v Sanpac Africa Limited [2015] KEELRC 1103 (KLR)", Case Analysis (2015). Cause No. 722 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1103/eng@2015-05-13

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