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ELRCOtherCause No. 680 of 2013· [2018] KEELRC 2376 (KLR)
Kenya Building, Construction, Timber and Furniture Industries Employees Union v Aqua Plumbing Company Limited [2018] KEELRC 2376 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court ruled it cannot force an employer to sign a Collective Bargaining Agreement, sending the union and employer back to conciliation.
What this practically means
#Executive summary
#The Claimant, a trade union registered under the repealed Trade Disputes Act Cap 233, filed a Memorandum of Claim on 14th May 2013 alleging the Respondent's failure to sign a negotiated Collective Bargaining Agreement. The Respondent, a plumbing and building company formerly a member of the Kenya Association of Building and Civil Engineering Constructors, refused to cooperate with negotiations, prompting the union to report the dispute to the Minister for Labour for conciliation. During conciliation the parties agreed on several items but differed on redundancy and retirement, represented in clauses 17(iv) and 19(a) of the proposed CBA. The Conciliator advised that these were statutory matters under the Building and Construction Industry Order (Legal Notice No. 94 of 2004) and the Employment Act, which are not negotiable but may be improved upon. The Respondent refused further negotiations. The Respondent filed no response, no defence and no submissions despite court directions, and the case proceeded undefended. Justice Hellen S. Wasilwa held that a Collective Bargaining Agreement is a matter of agreement between parties and that courts should not force its signing, as this would be tantamount to managing the affairs of the employees and the union contrary to freedom of association. The Court declined the Claimant's prayer and instead directed the parties to submit once more to the Conciliator and report back within 60 days for further directions. The judgment was read in open court on 16th February 2018 with no appearance for parties.
Key legal issues
#01
Whether the Court may order a party to sign a Collective Bargaining Agreement
Holding
The Court declined to order signing and instead directed the parties back to conciliation
Reasoning
A CBA is a matter of agreement between the parties. Judicial compulsion of signature would amount to the Court managing the internal affairs of the union and employees, which offends freedom of association. The Court therefore adopted a facilitative approach, referring the parties back to the Conciliator with a reporting timeline.
p. 2
Legal principles established
#- Courts will not compel parties to sign a Collective Bargaining Agreement as doing so would interfere with freedom of association
Court orders
#- 1.The parties to submit once more to the Conciliator and attempt to sign a Collective Bargaining Agreement
- 2.The parties to report back to Court their progress within 60 days for further directions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a Memorandum of Claim concerning a Collective Bargaining Agreement (claim filed under the repealed Trade Disputes Act Cap 233)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Aqua Plumbing Company Limited [2018] KEELRC 2376 (KLR)", Case Analysis (2018). Cause No. 680 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2376/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.