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ELRCPartially AllowedNot stated in judgment (Respondent's Notice of Preliminary Objection dated 14th December 2015 arising from Claimant's application dated 3rd December 2015)· [2016] KEELRC 1554 (KLR)

Kenya Airline Pilots Association v Kenya Airways Limited [2016] KEELRC 1554 (KLR)

Employment and Labour Relations Court (Industrial Court)
4 February 2016
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court stayed the pilots' union case against Kenya Airways, ruling parties must first exhaust dispute procedures agreed in their CBA before suing.

What this practically means

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Executive summary

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Kenya Airways Limited filed a Notice of Preliminary Objection on 14th December 2015 against an application dated 3rd December 2015 by the Claimant, a pilots' trade union whose claim alleged violation of the parties' Collective Bargaining Agreement, discontinuation and cancellation of training without due process, unfair labour practices and discrimination. The Respondent argued that the parties' Recognition Agreement and CBA set out internal dispute resolution mechanisms which the Claimant was obliged to exhaust before filing suit, invoking Article 159(2)(c) of the Constitution, section 15 of the Employment and Labour Relations Court Act, and sections 73 and 74 of the Labour Relations Act, and relying on the Mukisa Biscuits principles. The Claimant countered that the objection was fact-based, that its members faced uncertainty over 2016 flight rosters, and that the Court had jurisdiction under section 12 to grant urgent interim orders. The Court held that a Recognition Agreement is a special contract binding the parties, and that a registered CBA carries the status of a judicial order with enforceable rights and obligations. It affirmed that internal dispute resolution mechanisms in a CBA bind the parties subject to statutory exceptions, and that the Court may still issue interim orders where a legitimate case is shown. However, as no interim orders were in place, the Court referred the dispute to the Minister for conciliation under section 15(4) of the Employment and Labour Relations Court Act and stayed the matter. The judgment was delivered by M. Mbaru, Judge, on 4th February 2016 in Nairobi.

Key legal issues

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01

Exhaustion of internal dispute resolution mechanisms in the Recognition Agreement and CBA before filing suit

Holding

The objection was allowed; the dispute was referred to the Minister for conciliation and the matter stayed, since the parties had agreed internal mechanisms that were not exhausted and no interim orders were in place

Reasoning

Article 159(2)(c) of the Constitution and section 15 of the Employment and Labour Relations Court Act are mutually reinforcing and encourage alternative dispute resolution. The Recognition Agreement and CBA set out internal mechanisms that keep industrial peace. Absent interim orders in place, the Court referred the dispute to conciliation under section 15(4) and stayed the matter.

p. 3
02

Status and sanctity of a Collective Bargaining Agreement

Holding

A CBA is a binding, enforceable agreement whose registration gives it the status of a judicial order; its terms, including dispute resolution fora, bind the parties

Reasoning

The Court held that a CBA creates a special relationship and, upon registration, carries rights and obligations enforceable in court. Section 59(5) of the Labour Relations Act recognises it as an enforceable agreement. Both parties agreed the CBA created a forum for dispute resolution, and such terms bind the parties subject to statutory exceptions concerning strikes, essential services, redundancy or recognition.

p. 3
03

Whether the Court retains power to grant interim relief notwithstanding unexhausted internal mechanisms

Holding

Yes - the Court may issue interim orders where a legitimate case is found, and a party cannot be locked out of the Court where interim orders are sought in the interests of justice

Reasoning

Relying on section 12 of the Employment and Labour Relations Court Act and the Said Ndege decision, the Court affirmed that where a party seeks restraining or preservation orders, the Court must address such applications as of right. In this case the Court found a legitimate cause brought the Claimant to court, but since no interim orders were in place, the referral route under section 15(4) was adopted.

p. 3
04

Validity of the preliminary objection under the Mukisa Biscuits principles

Holding

The Court entertained and ultimately upheld the substance of the objection by referring the dispute to conciliation, notwithstanding the Claimant's contention that it was founded on facts rather than pure law

Reasoning

The Claimant argued the objections did not meet the Mukisa Biscuits test because they depended on facts. The Court nonetheless found the agreed internal dispute resolution procedures reasonable and mutually agreed, and applied section 15(4) to refer the dispute to the Minister for conciliation rather than striking out the suit outright.

p. 3

Legal principles established

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  • A Recognition Agreement is a special contract between an employer and a trade union binding the parties to its dispute resolution terms unless shown to have been breached or illegal
  • Registration of a CBA with the Court gives it the status of a judicial order, creating enforceable rights and obligations
  • Parties must exhaust the internal dispute resolution mechanisms in their CBA/Recognition Agreement before coming to court, save for specified exceptions
  • The Court retains jurisdiction to grant interim orders notwithstanding unexhausted internal mechanisms where a legitimate case is shown

Court orders

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  1. 1.Noting there are no interim orders, and in reference to the parties' Recognition Agreement at clause 4 and pursuant to the provisions of section 15(4) of the Employment and Labour Relations Court Act, the dispute herein is referred to the Minister for conciliation
  2. 2.The matter herein is stayed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 48
  • Industrial Court Act, 2011 (Employment and Labour Relations Court Act)Section 15 (including 15(4))
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations Act, 2007Sections 60, 73(1), 74 and 59(5)
  • Labour Institutions ActNot specified (referenced re Minister's directives)

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co Ltd versus West End Distributors
    (1969) EA
  • KUDHEIHA versus Papillion Lagoon Reef
    [2014] eKLR
  • TSC & Others versus KNUT
    Civil Appeal No.196 of 2015
  • KAPA versus Kenya Airways Limited
    Cause No.2133 of 2015
  • BIFU versus Maisha Bora Sacco Society Limited
    Cause No.2298 of 2014
  • Said Ndege versus Steel Works Ltd
    Cause No.158 of 2013 (Mombasa)
Jurisdiction invoked
Section 12 and section 15 of the Employment and Labour Relations Court Act (Industrial Court Act, 2011), including section 15(4) referral to the Minister for conciliation; Article 159(2)(c) of the Constitution

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 Airline Pilots Association v Kenya Airways Limited [2016] KEELRC 1554 (KLR)", Case Analysis (2016). Not stated in judgment (Respondent's Notice of Preliminary Objection dated 14th December 2015 arising from Claimant's application dated 3rd December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1554/eng@2016-02-04

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