Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others [2018] KEELRC 2183 (KLR)
The bottom line
#Kenya's Employment Court declared the 2018 UASU lecturers' strike unlawful because the union skipped mandatory conciliation before striking, and ordered lecturers back to work.
What this practically means
#Executive summary
#Key legal issues
#Whether the strike called by the Respondent vide strike notice dated 21.2.2018 was protected and lawful
The strike was unprotected and prohibited because it was called before the trade dispute involved was referred to conciliation under section 62 of the Labour Relations Act, contrary to sections 76(b) and 78(1)(e) of the Act.
The court held that Part X of the Labour Relations Act lays down irreducible minimum procedural requirements for a protected strike. A trade dispute existed, expressly cited in the strike notice (failure to negotiate, sign and implement the 2017-2021 CBA), concerning terms and conditions of employment. It should have gone through conciliation under section 62 before industrial action. The Respondent also failed to attend conciliation convened under section 70. Non-compliance rendered the strike unprotected, exposing participants to section 80(1) consequences.
Whether the Respondent's Article 41 constitutional rights to strike and collective bargaining were a free-standing basis for lawful industrial action
No - the constitutional rights to strike and collective bargaining are exercised through the statutory procedures in Part X of the Labour Relations Act, which are in harmony with the Constitution.
The court reasoned that although the Respondent and her members have constitutional and statutory rights to withdraw labour to compel negotiation of a CBA, those rights are exercisable only within the statutory procedures of Part X of the Labour Relations Act. The statutory provisions are in harmony with the Constitution and are the conduit through which Article 41 rights are exercised.
Whether a trade dispute capable of conciliation existed at the time the strike was called
Yes - the strike notice itself expressly cited three grievances concerning terms and conditions of employment, constituting a trade dispute within section 76 of the Act.
The Respondent had argued that no dispute existed capable of conciliation because the Claimant had not tabled a counter proposal. The court rejected this, holding that the strike notice dated 21.2.2018 expressly listed three grievances, including failure to negotiate, sign and implement the 2017-2021 CBA, which concerned terms and conditions of employment as contemplated by the Act. The demand for a counter proposal should have been made at conciliation proceedings before the strike was invoked.
Legal principles established
#- For a strike to be protected in Kenya it must comply with Part X of the Labour Relations Act, especially sections 76 and 78, including mandatory referral of the trade dispute to conciliation before industrial action; non-compliance renders the strike unprotected and exposes participants to the consequences under section 80(1).
- Constitutional rights to strike and to collective bargaining under Article 41 are exercisable only within the statutory procedures in Part X of the Labour Relations Act.
- A trade dispute existed where the strike notice expressly cited grievances including failure to negotiate, sign and implement the 2017-2021 CBA; such a dispute must first go through conciliation before a protected strike.
Court orders
#- 1.Application allowed in terms of prayer 3, 4 and 5 of the Notice of Motion dated 1.3.2018
- 2.Dispute referred to the C.S. Labour to assist the parties resolve the 2017-2021 CBA dispute under section 70 of the Labour Relations Act within 60 days, with a direction that the C.S. Labour should not appoint Mr. G. A. Omondi who had earlier been appointed as conciliator
- 3.The Respondent to call off the strike forthwith and the employees to resume work on Monday 19th March 2018 at 08.00 hours
- 4.The Claimant to present to the C.S. Labour her counter proposal for the 2017-2021 CBA and serve the Respondent within 30 days from the date of the order, for use in the conciliation process
- 5.If the Respondent complies with the order to call off the strike, her members shall not be victimized in any way for participating in the unprotected strike
- 6.Suit to be mentioned on 17th April 2018 to confirm compliance
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over industrial disputes and strikes under the Labour Relations Act and Article 41 of the Constitution (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others [2018] KEELRC 2183 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 1.3.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2183/eng@2018-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.