Kenya Aviation Workers Union v Kenya Airways PLC; Central Organization of Trade Disputes (K) & another (Interested Party) [2020] KEELRC 526 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Clause 4 of the CBA was violated
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.
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.
Whether the Respondent was obliged to renew the contracts of the 48 unionisable employees
The court could not determine this issue because the actual fixed-term contracts were never exhibited.
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.
Whether the Respondent breached the Constitution and rights of the Petitioner's members
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).
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).
Legal principles established
#- 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
#- 1.The Respondent and Petitioner directed to submit to a conciliation process within the next 30 days and resolve the issues herein
- Jurisdiction invoked
- Article 41(1) and (2) of the Constitution; Employment and Labour Relations Court jurisdiction over employment and labour disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.