Baragwi Farmers Cooperative Society Limited v Banking Insurance And Finance Union [2016] KEELRC 3 (KLR)
The bottom line
#A Kenyan court suspended a union's strike because it demanded an 8% pay increment that was never agreed or included in the court's judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the 8% automatic annual increment was agreed and part of the consent or judgment
The 8% automatic annual increment was neither part of the partial consent nor the judgment of 20th March 2015; it was not an issue before the Conciliator or the court in Cause No. 111 of 2013
The court examined the Conciliator's record of agreed and disputed matters. The agreed items included merit increment and increment dates, while the unresolved items listed overtime, annual leave, housing allowance, provident fund, terminal benefits, salaries and wages, effective date and commuter allowance. The automatic annual increment of 8% was not among them, so it could not have formed part of the consent or judgment.
Whether the strike notice of 3rd October 2016 was protected industrial action
The strike notice was not justified as it sought industrial action over matters outside the agreed terms and outside the subject judgment, and therefore lacked the protection of the law
The court held that where wage increase issues were resolved by partial consent and judgment, any change could only arise in future CBA negotiations. To demand an increment not agreed or adjudicated and to call a strike over it is to introduce extraneous matters. Such industrial action is unjustified and unprotected, justifying the injunction sought by the claimant.
Proper forum for determination of the substantive issues
The matter should have been filed at Nyeri ELRC where the substantive issues in Cause No. 111 of 2013 were addressed; the file is to be forwarded to Nyeri
Most of the substantive issues had already been addressed before the Nyeri court in Cause No. 111 of 2013, including the judgments of 20th March 2015, 22nd March 2016 and 26th May 2016. Although the court has original and exclusive jurisdiction, it opted to determine the preliminary injunction issue and transfer the file to Nyeri for the remaining substantive issues.
Legal principles established
#- Industrial action over matters extraneous to an agreement or court judgment lacks legal protection
- Parties are bound by the terms of a partial consent and court judgment during the term of a CBA, and changes can only arise in future negotiations
Court orders
#- 1.Pending the hearing and determination of the Claim, the respondent, their officials, agents and/or members are prevented from intimidating, threatening and/or otherwise restricting the claimant's employees from going to work
- 2.The strike notice issued by the respondent dated 3rd October 2016 is suspended and shall not be implemented until final determination of the main suit
- 3.Costs in the cause
- 4.The file to be forwarded to the Court in Nyeri where the cause of action arose
- Jurisdiction invoked
- Original and exclusive jurisdiction of the Employment and Labour Relations Court over employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baragwi Farmers Cooperative Society Limited v Banking Insurance And Finance Union [2016] KEELRC 3 (KLR)", Case Analysis (2016). Cause (Nairobi); originating from Cause No. 111 of 2013 (Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/3/eng@2016-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.