Union of National Research Institute Staff of Kenya [UNIRISK] v Kenya Marine and Fisheries Research Institute [KMFRI] [2019] KEELRC 1927 (KLR)
The bottom line
#Kenya's Employment Court ruled that the Salaries and Remuneration Commission's silence cannot block collective bargaining, giving a state corporation 90 days to get SRC advice or the court will decide.
What this practically means
#Executive summary
#Key legal issues
#Scope of the SRC's advisory mandate over state corporation employees
Employees of state corporations fall within the advisory mandate of the SRC
The Court accepted decisions cited by the Respondent establishing that the SRC's mandate extends to parastatal employees. The Respondent, classified PC 4B by the CPMU, could not negotiate without SRC approval or guidance. Its employees, represented by the Claimant Union, thus fall within the SRC's advisory mandate under Article 230 of the Constitution.
Effect of SRC inaction on the collective bargaining process
SRC's failure to give advice within a reasonable time is an abuse of mandate that grossly violates the right to collective bargaining, and cannot defeat the process
The Respondent sought SRC advice in 2016; three years later none had been given. The CBA cycle was outliving the 4-year cycle set by the SRC itself. The Court held that other actors (Labour Office, CPMU, Court) had discharged their mandates, and the Constitution, the Labour Relations Act and ILO Convention No. 98 could not be intended to allow one actor's inaction to frustrate collective bargaining.
Role of the Court in deadlocked collective bargaining
The Court may impose a solution on deadlocked collective bargaining processes without abrogating the parties' right to freely negotiate and agree
Section 26(2) of the Employment Act 2007 defines terms and conditions of employment as arising from CBAs, individual contracts, written laws or court judgments. Parties may submit unresolved disputes to the ELRC. The Court's role is to impose a solution on deadlocked processes so that collective bargaining is not left indefinitely unresolved and parties can cross over to the next bargaining cycle.
Legal principles established
#- The advisory mandate of the SRC must not be exercised in a manner that stifles, stunts or denies the constitutional right to collective bargaining
- The SRC's failure to advise a party to collective bargaining constitutes abuse of its mandate and violates the right to collective bargaining
- The absence of SRC advice does not shut down collective bargaining or deprive the Court of its mandate to resolve deadlocked disputes
Court orders
#- 1.The Respondent is granted 90 days from the date of the Judgment to seek the advice of the SRC in writing
- 2.A copy of the Judgment, the CPMU Report and the Closing Submissions of both Parties shall be forwarded to the SRC by the Respondent
- 3.The Court shall review the dispute at the end of the 90 days and give a final determination of the contested items, with or without the input of the SRC
- Jurisdiction invoked
- Constitution of Kenya and the Employment and Labour Relations Court Act, read with Article 41(5) on collective bargaining
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of National Research Institute Staff of Kenya [UNIRISK] v Kenya Marine and Fisheries Research Institute [KMFRI] [2019] KEELRC 1927 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1927/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.