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ELRCPartially AllowedPetition No. 104 of 2020 (Consolidated with Cause No. 294 of 2020)· [2020] KEELRC 526 (KLR)

Kenya Aviation Workers Union v Kenya Airways PLC; Central Organization of Trade Disputes (K) & another (Interested Party) [2020] KEELRC 526 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
20 August 2020
7,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kenya Airways broke its agreement with staff by enforcing pay cuts without finishing consultations, then ordered both sides back to conciliation.

What this practically means

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Executive summary

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The Kenya Aviation Workers Union petitioned the Employment and Labour Relations Court against Kenya Airways PLC, challenging three sets of communications issued in July 2020 during the Covid-19 pandemic: the Managing Director's general notice of 3/7/2020 and consequent HR directives of 7/7/2020 directing unpaid leave and 30% pay cuts, and a notice of non-renewal of contracts of 48 insourced staff. The union alleged these were implemented without prior consultation in breach of Clause 4 of the CBA dated 19/12/2014, the Employment Act, the Fair Administrative Action Act and Articles 27 and 41 of the Constitution. The matter was consolidated with Cause No. 294 of 2020 concerning the phased staff rationalisation and non-renewal of the 48 contracts. COTU supported the union; the Federation of Kenya Employers opposed, arguing the petition offended procedural rules and the Anarita Karimi Njeru threshold. The Respondent pleaded dire financial losses of USD 7.4 million weekly and ongoing negotiations culminating in MOAs for April to June 2020. The court framed four issues. It held that while Clause 4 did not require consultation before issuance of a notice, implementation could not proceed without discussion; since the CEO's communication showed rationalisation had already commenced and unpaid leave was to begin 6/7/2020 while consultations were unconcluded, the Respondent breached the CBA and Articles 27(1), (2) and 41. On the 48 employees, the court could not determine the issue as the contracts were not exhibited. Balancing industry survival against job protection, the court directed the parties to submit to conciliation within 30 days to resolve the issues. No costs order was made.

Key legal issues

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01

Whether Clause 4 of the CBA was violated

Holding

The Respondent breached Clause 4 by implementing decisions (commencement of phased staff rationalisation, unpaid leave and pay cuts) before concluded consultation with the union; the clause did not require consultation before issuance of a notice but before implementation.

Reasoning

Clause 4 required that amendments or notices leading to alteration of terms of service not be arbitrarily introduced and be discussed with the union before implementation. The Chief Executive Officer's 3/7/2020 communication stated the rationalisation had already commenced, and the HR communication indicated unpaid leave and reduced pay were to take effect from 6/7/2020. Minutes of the 8/7/2020 meeting showed discussions were ongoing but unresolved, with conclusion rescheduled to 10/7/2020. Implementation had therefore preceded concluded consultation, breaching the CBA and Articles 27(1), (2) and 41 of the Constitution.

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02

Whether the Respondent was obliged to renew the contracts of the 48 unionisable employees

Holding

The court could not determine this issue because the actual fixed-term contracts were never exhibited.

Reasoning

The Respondent contended the 48 employees served fixed-term contracts that expired, while the Petitioner relied on the 10/5/2017 MOA and 3/5/2019 Conciliation Committee agreement. However, neither party exhibited the actual contracts in question. Without the contracts, the court could not examine their terms or determine whether termination was fair, and declined to second-guess their terms.

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03

Whether the Respondent breached the Constitution and rights of the Petitioner's members

Holding

Yes - the failure to consult before implementing directives affecting remuneration breached fair labour practices under Article 41(1) and (2) and Articles 27(1) and (2).

Reasoning

The court held that although Covid-19's impact on industry was grave and obvious, it did not justify departing from the established principle of negotiations and consultations between union and management before implementing far-reaching decisions. The impugned decisions affected members' remuneration and livelihoods and required caution; proceeding without consultation breached fair labour practices guaranteed under Article 41(1) and (2).

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Legal principles established

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  • Implementation of decisions altering employees' terms and conditions of service may not proceed without concluded consultation with the union, even where notice of the decision itself may issue before discussion
  • The Covid-19 pandemic does not excuse derogation from the principle of negotiation and consultation between union and management before implementing decisions with far-reaching consequences

Court orders

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  1. 1.The Respondent and Petitioner directed to submit to a conciliation process within the next 30 days and resolve the issues herein

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25, 27(1) and (2), 27(5), 41(1) and (2), 47, Chapter 4
  • Employment ActSections 9, 10(5), 28, Part IV and V, Section 5(1)(a), (2), (3)(b), 40, 62
  • Labour Relations ActSections 5, 55, 59, 62
  • Fair Administrative Action ActSections 4 and 6
  • Civil Procedure ActSections 6 and 7
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 4(1), 7(1), 7(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of Constitution) Practice and Procedure Rules, 2013null
  • Collective Bargaining Agreement dated 19/12/2014Clauses 4, 9A, 9B, 18, 20, 21, 42-49

Cases cited (16)

  • Anarita Karimi Njeru v Republic
    (1979) 1 KLR
  • Kenya Union of Journalists and Allied Workers Union vs Nation Media Group Limited and Another
    (2013) eKLR
  • Kenya Chemical Workers Union vs General Plastics Limited
    (2017) eKLR
  • Sarah Wanyaga Muchiri vs Henry Kathii & Another
    (2014) eKLR
  • Engen Petroleum Limited vs Commission for Conciliation Mediation and Arbitration and Others
    [2007] ZALAC 5
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya and 3 Others
    (2014) eKLR
  • Barclays Bank of Kenya & Another vs Gladys Muthoni & 20 Others
    (2018) eKLR
  • James Kabengi Mugo vs Syngenta East Africa Limited
    (2013) eKLR
  • Rajab Barasa & 4 Others vs Kenya Meat Commission
    (2016) eKLR
  • Amatsi Water Services Company Limited vs Francis Shire Chachi
    (2018) eKLR
  • Trocaire vs Catherine Wambui
    (2018) eKLR
  • Davis Contractors Limited vs Fareham UDC
    (1956) AC 696
  • Kenya Airways Limited vs Satwant Singh Flora
    (2013) eKLR
  • Kivanga Estates Limited vs National Bank of Kenya
    (2017) eKLR
  • Dock Workers Union v Kenya Ports Authority
    [2015] eKLR
  • Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & Another
    [2014] eKLR
Jurisdiction invoked
Article 41(1) and (2) of the Constitution; Employment and Labour Relations Court jurisdiction over employment and labour disputes

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 Aviation Workers Union v Kenya Airways PLC; Central Organization of Trade Disputes (K) & another (Interested Party) [2020] KEELRC 526 (KLR)", Case Analysis (2020). Petition No. 104 of 2020 (Consolidated with Cause No. 294 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/526/eng@2020-08-20

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