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ELRCPartially AllowedCause No. 183 of 2016· [2016] KEELRC 533 (KLR)

Kenya Union of Commercial Food And Allied Workers v Kenya National Library Service [2016] KEELRC 533 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
19 July 2016
MMM. Mbaru
1,774 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a registered collective agreement is fully enforceable, and employers cannot use lack of Treasury funding as an excuse.

What this practically means

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Executive summary

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The Claimant, a registered trade union, sued the Kenya National Library Service, a state corporation, over failure and/or refusal to fully implement a Collective Bargaining Agreement covering 1 July 2010 to 30 June 2012, registered by the court as RCA No. 293 of 2013. The Claimant sought a declaration of refusal to implement, an order for payment of the outstanding arrears of about Kshs. 66 million within 14 days, and costs. The Respondent admitted the arrears of Kshs. 66,347,316.10 but contended that its failure to pay arose from statutory, constitutional and financial constraints: it required Treasury technical guidance and SRC approval, was subject to a Treasury freeze on pay adjustments (Circular No. 17/2013), and no funds were allocated in successive budgets. It had partially implemented the CBA in July 2014, paying about Kshs. 15.9 million in arrears. The court held that under sections 57(1) and 59 of the Labour Relations Act a registered CBA is binding, is incorporated into individual employment contracts, and is enforceable upon registration. Reliance on the TSC v KNUT decision, the Moses O Sigu and KUCFAW v Corn Products decisions, the court found the Respondent's financial dependence on Treasury no excuse: it should have joined the Treasury or line ministry to bear responsibility. Judgment was entered for the Claimant for specific performance of the 2010-2012 CBA, ordering payment of the outstanding Kshs. 66,347,316.10, with 90 days allowed for full implementation in light of the good labour relations between the parties.

Key legal issues

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01

Enforceability of a registered CBA

Holding

Once registered, a CBA is binding and enforceable and must be implemented upon registration

Reasoning

Sections 57(1) and 59 of the Labour Relations Act oblige an employer with a recognised union to conclude a CBA, and a registered CBA binds the parties and is incorporated into individual employment contracts. The court relied on TSC v KNUT and its own prior decisions. The CBA here was registered as RCA No. 293 of 2013, giving it legal force, so the Respondent was bound to implement it in full.

p. 3
02

Financial constraints as a defence to non-implementation

Holding

Dependence on Treasury funding does not excuse non-implementation; the employer should join the third party

Reasoning

The Respondent argued its hands were tied by Treasury circulars and lack of allocated funds. The court held that where inability to pay stems from a third party such as the national treasury or line ministry, the Respondent should have joined those parties so they bear responsibility. Admitted arrears of Kshs. 66,347,316.10 remained owing and specific performance was granted.

p. 3

Legal principles established

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  • A registered CBA is binding on the parties, is incorporated into individual contracts of employment, and is enforceable upon registration
  • A party that fails to implement a registered CBA has a remedy of specific performance
  • Inability to pay caused by a third party such as the national treasury does not excuse an employer; it should join that party to bear responsibility

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for specific performance of the terms of the 2010-2012 CBA
  2. 2.The Respondent to fully implement the CBA 2010-2012 and pay the outstanding amounts of Kshs. 66,347,316.10
  3. 3.The Respondent granted ninety (90) days to fully implement the CBA of 2010-2012

Authorities

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Legislation

  • Labour Relations ActSection 57(1)
  • Labour Relations ActSection 59 (including 59(5))
  • Labour Relations ActSection 60
  • State Corporations ActCap 446
  • Constitution of KenyaArticle 11(1) and (2)(a)
  • Cap 225 (Kenya National Library Service statute)

Cases cited (3)

  • Teachers Service Commission versus Kenya National Union of Teachers & Others
    [2015] eKLR
  • Moses O Sigu versus Royal Garments Industries EPZ Limited
    Cause No.83 of 2014
  • KUCFAW versus Corn Products Kenya Limited
    Cause No.1302 of 2012
Jurisdiction invoked
Dispute referred to the Employment and Labour Relations Court under the Labour Relations Act (registered CBA, RCA No. 293 of 2013)

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 Union of Commercial Food And Allied Workers v Kenya National Library Service [2016] KEELRC 533 (KLR)", Case Analysis (2016). Cause No. 183 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/533/eng@2016-07-19

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