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ELRCPartially AllowedPetition (not specified in judgment; filed 13 February 2019)· [2019] KEELRC 91 (KLR)

Universities Academic Staff Union v Machakos University & another [2019] KEELRC 91 (KLR)

Employment and Labour Relations Court
6 December 2019
3,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's university staff promotion guidelines were struck down because lecturers' union was never consulted before they were adopted.

What this practically means

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Executive summary

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The Universities Academic Staff Union (UASU) petitioned the Employment and Labour Relations Court challenging the Harmonised Criteria and Guidelines for Appointment and Promotion of Academic Staff in Universities in Kenya dated 27 October 2014, contending that it was excluded from the consultations leading to their adoption despite being the recognised trade union of academic staff with a recognition agreement and collective bargaining agreement with the Inter Public Universities Councils Consultative Forum. The petition was prompted by a memo from Machakos University scrapping the positions of Assistant Lecturers and Tutorial Fellows and requiring Ph.D attainment by October 2019 pursuant to the new Criteria. UASU alleged violations of Articles 10, 41, 47 and 232 of the Constitution and of the Labour Relations Act and Employment Act. The Respondents — the Commission for University Education and Machakos University — maintained that the process complied with the legal framework and involved stakeholders, and that the petition did not meet the Anarita Karimi Njeru threshold. The Court found the petition met the threshold, that the Criteria and Guidelines concern terms and conditions of service under the Labour Relations Act and Employment Act, and that the Respondents failed to demonstrate that UASU or lecturers were consulted — no minutes or notes of departmental consultations were produced. Holding that Vice-Chancellors and Principals, as the epitome of the employer, could not represent employees, the Court declared the Criteria and Guidelines invalid, null and void for breach of Articles 10(2)(a),(c), 41, 232(1)(d),(f) and sections 10(5) and 13 of the Employment Act. The declaration was granted on procedural grounds, not because the Criteria were inherently unconstitutional; each party was to bear its own costs.

Key legal issues

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01

Whether the Petition met the constitutional threshold

Holding

The Petition met the Anarita Karimi Njeru threshold as the alleged violations and manner of violation were pleaded with sufficient clarity

Reasoning

The Court applied the Anarita Karimi Njeru standard relied on by the Respondents and found the Petition particularised the constitutional norms alleged to have been violated and how they were violated, so the threshold objection failed.

p. 4
02

Whether the Harmonised Criteria and Guidelines are terms and conditions of service within labour legislation

Holding

The Criteria and Guidelines fall squarely within terms and conditions of service, being a collective bargaining and employment matter under section 2 read with section 57 of the Labour Relations Act

Reasoning

The Court examined the Criteria and Guidelines and found they created new job designations, set grading nomenclature and minimum criteria for appointment and promotion. These matters directly impact terms and conditions of service, which are the embodiment of a collective agreement under the Labour Relations Act, and trigger the consultation requirements of sections 10(5) and 13 of the Employment Act.

p. 4
03

Whether UASU was afforded a reasonable opportunity to participate

Holding

UASU, a primary stakeholder with a recognition agreement predating 2014, was not afforded a reasonable opportunity to participate; the Respondents did not discharge the burden of showing consultation

Reasoning

The Commission invited only Vice-Chancellors and Principals. No evidence — minutes or notes — was produced showing lecturers were consulted through departments. Applying the public participation standard in the Council of Governors case and the burden-shifting principle in Law Society of Kenya, the Respondents failed to demonstrate consultation. Consultation with organised labour is also a constitutional value under Articles 10(2)(a),(c) and 232(1)(d),(f).

p. 4

Legal principles established

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  • Where there is organised labour with a recognition agreement, the employer/regulatory authority must involve the trade union directly in formulating criteria affecting terms and conditions of service
  • Vice-Chancellors and Principals, being the epitome of the employer, cannot represent employees or their trade union in consultations over terms and conditions of service
  • Once a party asserts there was no public participation, the burden shifts to the respondent to show that there was

Court orders

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  1. 1.A declaration that the Harmonised Criteria and Guidelines for Appointment and Promotion of Academic Staff in Universities in Kenya dated 27 October 2014 are invalid, null and void for having been made in breach of Articles 10(2)(a), (c), 41(1),(2)(c), (4)(b) & 5 and 232(1)(d),(f) and sections 10(5) and 13 of the Employment Act, 2007
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Universities Actsections 4, 5(c), 70
  • Universities Regulations, 2014 (Legal Notice No. 76 of 2014)Regulation 87(1)
  • Constitution of Kenya, 2010Articles 10(2)(a),(c), 41(1),(2)(c),(4)(b),(5), 47, 232(1)(d),(e),(f)
  • Labour Relations Actsections 2, 57
  • Employment Act, 2007sections 10(5), 13
  • Statutory Instruments Actobligation to consult with persons likely to be affected

Cases cited (3)

  • R v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 4 Ors ex parte Council of Governors & Ar
    (2017) eKLR
  • Anarita Karimi Njeru v R
    (1979) eKLR
  • Law Society of Kenya v Attorney General & 2 others
    (2019) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (employment and labour relations jurisdiction of the Employment and Labour Relations Court); Universities Act No. 42 of 2012 and Labour Relations Act invoked

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, "Universities Academic Staff Union v Machakos University & another [2019] KEELRC 91 (KLR)", Case Analysis (2019). Petition (not specified in judgment; filed 13 February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/91/eng@2019-12-06

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