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ELRCOtherCause No. 604 of 2015· [2016] KEELRC 1747 (KLR)

Kenya Airline Pilots Association v Kenya Airways Limited [2016] KEELRC 1747 (KLR)

Employment and Labour Relations Court
20 January 2016
MMM. Mbaru
1,902 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 confirmed CBAs must be honoured, staying a pilots' union dispute with Kenya Airways and sending it to conciliation first.

What this practically means

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Executive summary

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The claimant union filed a Notice of Motion on 3rd December 2015 seeking restraining orders against the respondent airline over actions affecting its members' leave, alleging breach of the Collective Bargaining Agreement relating to pilots' checks, tests, training and leave since 2012. The respondent filed preliminary objections contending the suit was incompetent, defective and an abuse of process because the claimant breached the recognition agreement's conciliation procedure, contrary to Article 159(2)(c) of the Constitution, section 15 of the Employment and Labour Relations Court Act and sections 61 and 74 of the Labour Relations Act. Relying on Owners of the Motor Vessel 'Lillian S' and Mukisa Biscuits, the respondent urged the court lacked jurisdiction. The claimant argued it had a right to seek interim relief on safety grounds pending conciliation under section 12(3) of the ELRC Act. The court held that its jurisdiction under Article 162(2) is constitutional and cannot be taken away by a CBA, but that a CBA recognising conciliation sets procedural requirements: disputes should commence with conciliation before filing suit. Noting the claimant admitted the disputes had been pending since 2012 and that it was not opposed to conciliation, the court invoked section 15(4) of the ELRC Act, stayed the proceedings and referred the matter to conciliation, with a mention on 23rd March 2016 and directions that the Minister's conciliation process be monitored. Each party was to bear its own costs.

Key legal issues

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01

Whether conciliation under the CBA is a precondition to filing suit

Holding

Yes; where a CBA recognises conciliation, section 61 of the Labour Relations Act requires that procedure before filing suit, though this does not oust the court's jurisdiction

Reasoning

The court held that its jurisdiction under Article 162(2) and section 12 of the ELRC Act is constitutional and cannot be taken away by a CBA. However, where a CBA recognises conciliation, section 61 of the Labour Relations Act sets procedural requirements: disputes should commence by conciliation and only proceed to court upon failure of that process. Matters under section 74 may go to the Minister except urgent recognition or redundancy matters.

p. 3
02

Whether the court should stay proceedings pending conciliation

Holding

Yes; the court invoked section 15(4) of the ELRC Act, stayed the proceedings and referred the dispute to conciliation

Reasoning

The claimant was not opposed to conciliation and admitted the disputes concerned leave matters pending since 2012 under an existing CBA. Article 159(2)(c) and section 15 of the ELRC Act encourage alternative dispute resolution. For good order and promotion of fair labour practices, the court stayed proceedings and referred parties to conciliation, with a mention date to monitor progress.

p. 3

Legal principles established

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  • The ELRC's jurisdiction over employment and labour relations matters is constitutional and cannot be taken away by a CBA or any other document
  • A CBA requiring conciliation sets a procedural precondition to filing suit, not a limit on the court's jurisdiction
  • A CBA is an enforceable agreement binding on the parties

Court orders

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  1. 1.Invoked section 15(4) of the Employment and Labour Relations Court Act and referred the matter to conciliation
  2. 2.Stayed the proceedings
  3. 3.Mention in 60 days (23rd March 2016) to register settlement or otherwise order as appropriate
  4. 4.The Registrar of the Court to serve the Minister with the Ruling
  5. 5.Parties to abide as directed by the Minister with regard to conciliation
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 41
  • Employment and Labour Relations Court ActSection 12(3)
  • Employment and Labour Relations Court ActSection 15 (including 15(4))
  • Labour Relations Act, 2007Section 59(5)
  • Labour Relations Act, 2007Section 61
  • Labour Relations Act, 2007Section 73(1)
  • Labour Relations Act, 2007Section 74

Cases cited (6)

  • Owners of the Motor Vessel "Lillian S" versus Caltex Oil (K) Limited
    (1989) KLR 1
  • Mukisa Biscuits Co. versus Westend Distributors
    (1969) EA
  • Rift Valley Railways Workers Union versus Rift Valley Railways (K) Ltd & Another
    [2013] eKLR
  • TSC & Others versus KNUT & Another
    Civil Appeal No.196 of 2015
  • Kenya Union Commercial Food and Allied Workers versus Tusker Mattresses
    Cause No.1273 of 2014
  • Kenya Airways versus KAPA
    Cause No.433 of 2015
Jurisdiction invoked
Article 162(2) of the Constitution; section 12 of the Employment and Labour Relations Court Act

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 Airline Pilots Association v Kenya Airways Limited [2016] KEELRC 1747 (KLR)", Case Analysis (2016). Cause No. 604 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1747/eng@2016-01-20

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