Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers & 2 others v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA); Ministry of Education & 3 others (Interested Parties) [2020] KEELRC 739 (KLR)
The bottom line
#Kenya's Employment Court approved the 2020 university staff CBAs but excluded the retirement age clause because the SRC was never consulted on it.
What this practically means
#Executive summary
#Key legal issues
#Court's power on registration of CBAs
The court may register a CBA as submitted, with agreed amendments or modifications, or refuse registration where it conflicts with the law or ministerial guidelines
Section 60 of the Labour Relations Act sets out the registration regime: every collective agreement must be submitted within fourteen days of conclusion, the court may request further information or representations, may register in the form submitted or with agreed amendment, and shall refuse registration of agreements conflicting with the Act or ministerial wage directives. Section 15(5) and (6) of the ELRC Act permits reference to Cabinet Secretary wage guidelines and SRC guidelines. Together these provisions give the court discretion over registration.
Whether the signed CBAs could be resisted on grounds of funding and SRC advice
Interim registration was granted for all agreed terms except the retirement age clause, with horizontal implementation pending final determination
The court found the three CBAs were signed by all parties following negotiation with SRC input, except the retirement age clause which was not subjected to SRC opinion before conclusion. The disputed Kshs.8.8 billion cap and horizontal versus vertical implementation were unresolved factual questions requiring clarification. To avoid lapse of funds set aside by Treasury, the court registered the CBAs partially, excluding the retirement clause and ordering horizontal implementation only, reserving contested issues for the final judgment.
Legal principles established
#- The Industrial Court is not bound to register a CBA as presented and may register it with amendments or modifications agreed by the parties, or reject it if it conflicts with the law or ministerial directives
- Every collective agreement must be submitted to the Industrial Court for registration within fourteen days of its conclusion, and the court shall not register one that conflicts with the Labour Relations Act or ministerial wage guidelines
Court orders
#- 1.All three CBAs Nos. 1, 2 and 3 of 2020 are accepted for registration as presented, with the exception of the retirement age clause which is excluded and reserved to the final judgment
- 2.Implementation to be on horizontal basis pending further orders of the court
- 3.The retirement age currently in force to continue until the dispute is finally determined
- 4.The issue of whether to implement the CBA both horizontally and vertically to abide the final determination
- 5.All parties to file submissions on the issues set out within 30 days
- 6.Matters to be heard by way of highlighting of further submissions on a date to be set by the court
- Jurisdiction invoked
- Section 60 of the Labour Relations Act; Sections 15(5) and (6) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers & 2 others v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA); Ministry of Education & 3 others (Interested Parties) [2020] KEELRC 739 (KLR)", Case Analysis (2020). CBA No. 1, 2 and 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/739/eng@2020-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.