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ELRCDismissedPetition (not specified in judgment)· [2019] KEELRC 1580 (KLR)

Universities Academic Staff Union (UASU) v Salaries and Remuneration Commission & another [2019] KEELRC 1580 (KLR)

Employment and Labour Relations Court of Kenya
20 May 2019
MOMaureen Onyango
3,411 words in judgment
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The bottom line

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Kenya's Employment Court ruled that the Salaries and Remuneration Commission properly consulted university lecturers before its 2017 job evaluation, so UASU's challenge failed.

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 against the Salaries and Remuneration Commission (SRC), challenging the job evaluation of academic staff in public universities conducted through PwC using the Paterson/REMeasure tool. UASU complained that it was excluded from the process from the outset, that the tool was unsuited to academic jobs, and that the resulting Job Evaluation Report of 30th June 2017 infringed Articles 10, 41, 47, 232 and 248 of the Constitution and contradicted the existing Collective Bargaining Agreement. It sought declarations of unconstitutionality, a permanent injunction against implementation, interest and costs. The Attorney General was discharged from the petition in February 2018 following a preliminary objection. The SRC responded that the nationwide job evaluation was within its constitutional mandate under Article 230, that UASU's representatives attended meetings, that its concerns were forwarded to PwC and addressed through the introduction of the 'Sapiential Factor', and that job evaluation could not adversely affect an existing CBA. Maureen Onyango J found that although UASU was not involved from the very outset, it raised concerns which were forwarded to the consultants before the report was finalised, and that consultation does not require wholesale adoption of the consulted party's demands. The petitioner did not demonstrate violation of Articles 10, 41 or 248 nor that it was not consulted. The petition was dismissed with no orders as to costs on 20th May 2019.

Key legal issues

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01

Whether the Respondent was obliged to involve the Petitioner from the very onset of the job evaluation process

Holding

Although the petitioner was not involved from the outset, it was allowed to raise its concerns which were sent to the consultants for consideration well before the report was prepared; this satisfied the requirements of consultation

Reasoning

The court found as a fact that the Respondent invited Vice Chancellors to a sensitization meeting, received the Petitioner's concerns by letter dated 14/16 March 2017, forwarded them to PwC, and convened meetings on 9th and 16th May 2017 at which the Petitioner was represented by six persons. The meeting resolutions required UASU to share concerns in writing and continue engaging the Commission. Consultation does not require wholesale adoption of the consulted party's demands.

p. 4
02

Whether the job evaluation violated Articles 10, 41, 47, 232 and 248 of the Constitution

Holding

The petitioner did not demonstrate violation of Articles 10, 41 or 248; in its submissions it only referred to Article 232(1)(d), (e) and (f), and consultation had occurred

Reasoning

The court noted the common ground that the Petitioner advanced its concerns on the Paterson tool and that meetings were held and the Sapiential Factor introduced to weight academic jobs. Since the Petitioner's input was taken into account before the final report, the Article 232 values of involvement, accountability and transparency were satisfied and no violation of Articles 10, 41, 47 or 248 was established.

p. 5

Legal principles established

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  • Consultation does not require that all proposals or demands of those consulted be adopted; it requires that their input be taken into account before the final decision is reached

Court orders

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  1. 1.The petition is dismissed
  2. 2.There shall be no orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1) and (2), 23(3), 41(5), 47, 230(4), 232(1)(d), (e) and (f), 248, 259(11)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2010Rule 13
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 7
  • Salaries and Remuneration Commission ActSection 13
  • Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations, 2013Regulation 12
  • Universities Act No. 42 of 2012Section 3
  • Employment Act 2007Not specified
  • Evidence ActSection 107

Cases cited (7)

  • Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11: 2006 (12) BCLR 1399 (CC)
    CCT12/05) [2006] ZACC 11
  • Kenya Airways Limited v Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan Hospital Nairobi
    [2015] eKLR
  • Gibb Africa Ltd v KRA
    [2017] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others
    [2013]
  • Geoffrey Oduor Sijeny v Kenyatta University
    [2018] eKLR
  • Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
Jurisdiction invoked
Article 23(3) of the Constitution, Rule 13 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2010 and Rule 7 of the Employment and Labour Relations Court (Procedure) Rules 2016

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 (UASU) v Salaries and Remuneration Commission & another [2019] KEELRC 1580 (KLR)", Case Analysis (2019). Petition (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1580/eng@2019-05-20

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