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ELRCDismissedApplication and Notice of Motion dated 25th September, 2020

Kenya National Private Security Workers Union v Wellsfargo Limited [2020] KEELRC 17 (KLR)

Employment and Labour Relations Court
16 December 2020
3,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to rewrite a registered collective bargaining agreement, confirming unions are bound by CBAs they negotiated and consented to register.

What this practically means

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Executive summary

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The applicant, a trade union representing private security industry employees, sought by Notice of Motion dated 25th September, 2020 to stay the implementation of clauses 9.1 and 9.2 of a Collective Bargaining Agreement executed on 27th June, 2019 and registered by the court on 23rd July, 2020, contending that the CBA's overtime calculation formula disadvantaged employees contrary to section 27 of the Employment Act and the Regulation of Wages (Protective Security Services) Order 1998. It also sought an order reverting to the old overtime calculation method, an injunction against depriving workers of overtime, supply of the original CBA and minutes, payment of overtime arrears from August, 2020, and costs. The respondent opposed, arguing the CBA was negotiated and executed by the parties, registered by consent, and that the application amounted to an attempt to set aside a consent without proof of fraud, mistake or duress, contrary to freedom of contract. The court analysed the sanctity of registered CBAs under sections 59 and 60 of the Labour Relations Act, noting that a registered CBA binds the parties, is incorporated into employment contracts, and becomes enforceable upon registration. It found the applicant participated in negotiations, attended court, and itself requested registration by letter of 29th June, 2020. The court held it could not suo motu alter the registered CBA terms and found no material evidence of unpaid overtime arrears. The application was dismissed with no orders on costs to maintain industrial peace.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should stay the implementation of clauses 9.1 and 9.2 of the CBA registered on 23rd July, 2020 pending the respondent's compliance with the Regulation of Wages (Protective Security Services) Order 1998
  2. 2.Whether the respondent should revert to the old method of calculating and paying overtime
  3. 3.Whether an injunction should issue restraining the respondent from depriving workers overtime pay
  4. 4.Whether the applicant should be supplied with the original copy of the CBA and minutes
  5. 5.Whether the respondent should pay overtime arrears to affected employees from August, 2020

Key legal issues

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01

Sanctity and binding effect of a registered CBA

Holding

The CBA registered on 23rd July, 2020 by consent is binding on both parties, including the applicant, and its terms must be implemented for its duration

Reasoning

Under sections 59(1), 59(3) and 59(5) of the Labour Relations Act, a collective agreement binds the parties, its terms are incorporated into employment contracts, and it becomes enforceable upon registration. The CBA here followed a long process of negotiation, referral to the Minister, and consented registration in court, including the applicant's own written request for registration. The applicant was represented in negotiations and consented before the court.

p. 5
02

Whether the court can vary registered CBA overtime terms to conform with the Wage Order

Holding

No; even where wording differs from the Wage Order, the court cannot alter the terms of a CBA registered with the consent of the parties

Reasoning

The applicant compared clause 9(2) of the CBA with the Regulation of Wages (Protective Security Services) Order 1998 formula. The court found the CBA terms in fact related to the applicable Wage Orders and, in any event, altering them would circumvent the fundamental principles under Article 41 and sections 59 and 60 of the Labour Relations Act providing for the right to negotiate and register a binding CBA. Any dispute on terms must go through the agreed dispute resolution mechanism.

p. 5
03

Whether the consented registration of the CBA can be set aside

Holding

The applicant did not meet the conditions for setting aside a consent, such as fraud, mistake or duress

Reasoning

The court traced the registration history: objections on 9th and 24th October, 2019, referral to the Minister, conciliation, and finally the applicant's own letter of 29th June, 2020 requesting urgent registration, on which date the parties by consent confirmed registration. The applicant's challenge amounted to an attempt to set aside a consent without establishing fraud, mistake or duress, applying ordinary contractual principles.

p. 4

Legal principles established

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  • A registered collective agreement binds the parties to it and is enforceable and shall be implemented upon registration
  • A CBA, like any contract, may only be set aside on established principles such as fraud, mistake, duress or misrepresentation
  • The court cannot suo motu alter the terms of a registered CBA

Court orders

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  1. 1.The application dated 25th September, 2020 is dismissed
  2. 2.No orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Labour Relations Act, 2007 (registration and enforcement of collective agreements; sections 59 and 60)

Relief refused

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Stay of implementation of clause 9.2 and 9.1 of the CBA

The CBA was registered by consent of the parties and is binding; no basis to interfere with its terms was established

p. 5

Order that the respondent revert to the old method of calculating and paying overtime

The CBA terms on overtime were negotiated, agreed and registered with the applicant's consent; the court cannot alter registered CBA terms

p. 5

Injunction restraining the respondent from depriving workers overtime

The respondent's averment that employees are paid due overtime in accordance with the CBA was not challenged

p. 5

Supply of the original copy of the CBA and minutes

The matter was addressed by the court on 24th October, 2019; an original copy exists on the court file and FKE is not a party

p. 5

Payment of overtime arrears from August, 2020

The alleged arrears lacked material evidence

p. 5

Costs

No orders on costs - as the parties are engaged under an on-going CBA and to maintain industrial peace, there shall be no orders on costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the court finds the application dated 25 th September, 2020 is found without merit and is hereby dismissed. As the parties are engaged under an on-going CBA and to maintain industrial peace, there shall be no orders on costs.
p. 5Final orders and costs
A collective agreement is a contractual agreement like any other left to party autonomy, save that it is underpinned by specific statutory provisions which if breached would render it or the offending clauses illegal.
p. 4Nature of a CBA (quoting Social Service League, M.P. Shah Hospital)
(3) The terms of the collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement.
p. 3Incorporation of CBA terms into employment contracts
parties shall adhere to the applicable CBA for its term and where there is a dispute on its terms, the dispute resolution mechanism agreed upon shall apply.
p. 5Dispute resolution under a registered CBA

Issues in the judgment

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minor

Inconsistent dates for execution and registration of the CBA in the judgment (27th June 2020 vs 27th June 2019; registered 23rd July 2020 vs 23rd July 2019)

minor

Typographical error in statutory reference to section 59

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 National Private Security Workers Union v Wellsfargo Limited [2020] KEELRC 17 (KLR)", Case Analysis (2020). Application and Notice of Motion dated 25th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/17/eng@2020-12-16

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