Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment (Notice of Motion dated 18th March 2019)· [2020] KEELRC 432 (KLR)

Kenya Union of Commercial, Food and Allied Workers v London Distillers (K) Limited [2020] KEELRC 432 (KLR)

Employment and Labour Relations Court
25 September 2020
5,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed employers cannot delay union wage negotiations by demanding a job evaluation first — collective bargaining is a legal right.

What this practically means

#

Executive summary

#
London Distillers (K) Limited, an employer with a Recognition Agreement with the Kenya Union of Commercial Food and Allied Workers, moved the Employment and Labour Relations Court by Notice of Motion dated 18th March 2019 seeking orders compelling the union to rally its members to participate in a proposed job evaluation exercise and that the evaluation precede further CBA negotiations. The employer argued the last job evaluation was conducted in 2002, that an updated exercise would establish job worth, grading, placement, recruitment, succession and training benefits, and would unlock the CBA negotiation deadlock. The union opposed, contending that job evaluation and collective bargaining are distinct processes, that the CBA for 2017-2019 was long overdue, that the employer had stalled negotiations by postponing meetings and declaring nothing to discuss pending the evaluation, and that unionisable grades were already defined in the CBA and the Industrial Relations Charter. The court framed one issue: whether a job evaluation was necessary before determining the CBA dispute. Reviewing the correspondence, the court found the employer itself caused the stalemate by postponing negotiations and refusing to engage. It held that the benefits of job evaluation had no direct bearing on the CBA, that delay in concluding a CBA prejudices employees, and that the employer cannot unilaterally refuse to negotiate, as negotiation of a CBA is a fundamental right under Article 41 of the Constitution and Section 57(1) of the Labour Relations Act. The application was dismissed with costs, and parties directed to take directions on the hearing of the suit.

Key legal issues

#
01

Whether a job evaluation exercise must precede conclusion of CBA negotiations and the court's determination of the CBA dispute

Holding

The application was dismissed. The court held that job evaluation is not a prerequisite to CBA negotiations; the two processes are distinct and the outcome of a job evaluation can be incorporated into the CBA afterwards.

Reasoning

The court examined the applicant's letters and found the applicant itself stalled the CBA negotiations by postponing them pending job evaluation and later declaring nothing to discuss. The benefits of job evaluation listed in the 2002 report had no direct bearing on the CBA. A CBA is time-bound and delay prejudices employees. The employer's assumed right to unilaterally decline negotiations contravenes Article 41 of the Constitution and Section 57(1) of the Labour Relations Act.

p. 10
02

Who caused the stalemate in the CBA negotiations

Holding

The court found it was the Respondent/Applicant (employer) who caused the stalemate by postponing negotiations and refusing to engage.

Reasoning

Negotiations commenced on 3rd November 2017 with 20 clauses confirmed, but the employer wrote on 8th and 10th November 2017 postponing the 13th November meeting pending job evaluation, and later by letters of 29th January and 28th February 2018 expressed intent not to proceed with negotiations until its conditions, including cooperation with the job evaluation consultant, were met.

p. 9

Legal principles established

#
  • An employer who has recognised a trade union cannot unilaterally refuse or stall collective bargaining by conditioning negotiations on a job evaluation exercise
  • Negotiation of a CBA is a fundamental right of every trade union and every employee who has joined membership of a trade union, under Article 41(5) of the Constitution and Section 57(1) of the Labour Relations Act
  • Delay in concluding a CBA prejudices unionisable employees as it deprives them of improvements to their terms of employment

Court orders

#
  1. 1.The Notice of Motion dated 18th March 2019 is dismissed with costs
  2. 2.Parties are directed to take directions on the hearing of the suit at the time of delivery of the ruling

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 165
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 159(2)(e)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B and 3A
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1)
  • Employment and Labour Relations Court Act, 2011Section 15(5) and (6)
  • Labour Relations ActSection 57(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Revised Wages Guidelines, 23rd November 2005Guidelines 1-4, 7 and 8
  • Kenya's Industrial Relations CharterArticle 11 and Appendix 'C'

Cases cited (2)

  • Universities Academic Staff Union (UASU) v Salaries and Remuneration Commission & Another
    [2019] eKLR
  • Kenya National Union of Nurses v Salaries and Remuneration Commission & 7 Others
    [2019] eKLR
Jurisdiction invoked
Articles 159 and 165 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Commercial, Food and Allied Workers v London Distillers (K) Limited [2020] KEELRC 432 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 18th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/432/eng@2020-09-25

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