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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 699 (KLR)

Kenya Engineering Workers Union v Hebatullah Brothers Limited [2019] KEELRC 699 (KLR)

Employment and Labour Relations Court
3 October 2019
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers must share salary and financial records with recognised unions for CBA talks, but unions still need evidence to prove victimisation.

What this practically means

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Executive summary

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The Applicant union moved the Employment and Labour Relations Court by Notice of Motion dated 28th January 2019 seeking interim orders restraining the Respondent from victimising or discriminating against its members, an order that any increment used to coerce union withdrawal be extended to all unionisable employees, and an order compelling the Respondent to produce audited financial statements for April 2016 to March 2018, its wage bill, staff numbers and salary details. The Respondent opposed, contending the dispute was premature as a Conciliator had been appointed, that the union lacked a simple majority for recognition, and that no discrimination had occurred. The Court framed three issues: whether the Respondent should be compelled to produce employee register and salary information, whether discrimination or coercion was proved, and whether the reference was premature. Holding that the dispute had been referred more than thirty days after the Conciliator's appointment, it was not premature under Section 69 of the Labour Relations Act. Finding a Recognition Agreement existed and negotiations for a CBA were ongoing, the Court invoked Section 57(2) obliging the employer to disclose relevant information for negotiations, subject to confidentiality. However, the Court found no evidence of coercion or victimisation of members and declined the interim anti-discrimination orders. The Respondent was directed to produce the specified documents within 30 days, the union to treat the information as confidential, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the dispute was premature given the appointment of a Conciliator

Holding

The dispute was properly before the Court, having been referred more than 30 days after the Conciliator's appointment, in compliance with Section 69 of the Labour Relations Act

Reasoning

The dispute was reported to the Minister on 17th October 2018 and a Conciliator appointed on 2nd November 2018. Under Section 69, a dispute is deemed unresolved if 30 days expire from the appointment of the conciliator. The reference to Court was made on 28th January 2019, more than 30 days later, and Section 57(6) permits reference under certificate of urgency. The reference was therefore in compliance with the law and not premature.

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02

Whether the Respondent should disclose financial and salary information for CBA negotiations

Holding

Yes. Having recognised the union and negotiated a prior CBA, the Respondent is bound to disclose relevant information under Section 57(2), subject to confidentiality

Reasoning

The Respondent did not deny its Recognition Agreement with the Applicant and had negotiated a CBA for 2016-2018, with negotiations for the next CBA ongoing when the dispute arose. Section 57(2) obliges an employer to disclose all relevant information allowing the union to negotiate effectively; the disclosures are confidential, and the union is bound to keep them confidential.

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03

Whether the Respondent discriminated against or coerced the Applicant's members

Holding

No evidence of coercion of members to resign or of victimisation was found

Reasoning

The Applicant alleged that the Respondent gave 7.5% salary increments to members who withdrew from the union while excluding those who remained, amounting to discrimination. The Respondent denied victimising or discriminating against any member. The Court, on the affidavits on record, found no evidence supporting the allegations of coercion or victimisation.

p. 3

Legal principles established

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  • A trade dispute is deemed unresolved after conciliation if thirty days expire from the appointment of the conciliator, and the union may thereafter refer the dispute to the Industrial Court under a certificate of urgency.
  • An employer that has recognised a trade union must disclose to the union all relevant information to allow effective negotiation, and Section 57 elaborately provides the right to such information and recourse to the court where denied.

Court orders

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  1. 1.The respondent to produce the audited financial statement for the past two (2) years (April 2016 - March 2018), wage bill and number of staff, both unionisable and management, and salaries of the unionisable staff and lower level management staff to the union within 30 days
  2. 2.The claimant to treat the information with confidence as provided in Section 57
  3. 3.Both parties reminded that failure to comply with the orders constitutes an offence punishable under the Labour Relations Act and the Employment and Labour Relations Court Act
  4. 4.Each party shall bear its costs of the application

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Labour Relations ActSections 54 and 57
  • Labour Relations ActSection 57(1)-(8)
  • Labour Relations ActSection 69
  • Employment and Labour Relations Court ActNot specified
Jurisdiction invoked
Sections 57(6) and 69 of the Labour Relations Act (dispute referred to the Industrial Court under certificate of urgency)

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 Engineering Workers Union v Hebatullah Brothers Limited [2019] KEELRC 699 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/699/eng@2019-10-03

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