Kenya Union of Commercial Food and Allied Workers v National Museums of Kenya [2020] KEELRC 1191 (KLR)

Employment and Labour Relations Court

29 April 2020

OMONESMUS N. MAKAU

1,672 words in judgment

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The bottom line

Kenya's Employment Court ruled that a union CBA overrides government regulations, so National Museums of Kenya must pay transferred staff their allowances.

What this practically means

Executive summary

The Claimant union sued on behalf of six employees (the grievants) of the National Museums of Kenya, seeking payment of transfer and baggage allowances under Clauses 9(a) and 13(f)(i) of the parties' Collective Bargaining Agreement following the grievants' 2013 transfer from Kitale in Trans Nzoia County to Kapenguria in West Pokot County, a distance of 39 kilometres. The respondent denied liability, contending it was a State Corporation governed by the Government Code of Regulations (Revised 2006), under which transfer allowance is payable only where the distance is not less than 40 kilometres, and further contended the transfers and special damages were not proved. The court disposed of the suit on written submissions and framed three issues: whether the transfers occurred, eligibility for the allowances, and whether the reliefs should be granted. The court held that correspondence in the record, including the respondent's own refusal letter and the conciliator's letter listing the grievants, proved the transfers. On the central conflict between the Code of Regulations and the CBA, the court held the CBA supersedes the Code because section 59 of the Labour Relations Act incorporates CBA terms into employment contracts, and section 26 of the Employment Act gives effect to more favourable negotiated terms. The respondent had knowingly agreed to better terms in the 2013 CBA. The suit was allowed: each grievant was awarded Kshs. 20,000 baggage allowance and one month's basic salary as transfer allowance, payable within 60 days, failing which interest at court rates would run from the date of filing. The claimant was awarded costs.

Key legal issues

Whether the grievants were transferred from Kitale to Kapenguria

Holding

The court found the transfers proved through correspondences in the record, including the respondent's own letter refusing transfer allowance and the conciliator's letter listing the grievants.

Reasoning

The court perused the record and found a letter dated 12.8.2014 from the respondent's Acting Director HR refusing transfer allowance to transferred employees, and a conciliator's letter dated 16.2.2015 listing the six grievants by name. These documents collectively proved the transfers on the material before the court.

p. 3

Whether the CBA supersedes the Government Code of Regulations

Holding

The CBA supersedes the Code of Regulations; the Code provides general HR policy guidelines and forms part of contracts unless employees negotiate better terms, which the respondent did in the 2013 CBA.

Reasoning

Section 59(3) of the Labour Relations Act incorporates CBA terms into employment contracts. Section 26 of the Employment Act makes the Act's provisions basic minimum terms, with more favourable terms in a CBA or contract prevailing. The Code of Regulations was revised in 2006 while the CBA was signed in 2013, so the respondent knowingly agreed to better terms.

p. 3

Whether the grievants were eligible for transfer and baggage allowances

Holding

The claimant proved on a balance of probability that the grievants were eligible for transfer and baggage allowances under Clauses 9 and 13 of the CBA.

Reasoning

Having held the CBA supersedes the Code of Regulations, the court applied Clause 9 (non-accountable baggage allowance of Kshs. 20,000 for inter-county transfers) and Clause 13(f)(i) (transfer allowance of one month basic salary), both of which squarely covered the grievants' inter-county transfers from Kitale to Kapenguria.

p. 4

Legal principles established

A CBA negotiated between the parties supersedes the Government Code of Regulations where it grants employees more favourable terms, and its terms are incorporated into contracts of employment under section 59 of the Labour Relations Act.

Court orders

1.Each grievant awarded Kshs. 20,000 as baggage allowance under Clause 9(a) of the CBA
2.Each grievant awarded one month basic salary as transfer allowance under Clause 13(f)(i) of the CBA, based on salary as at the date of the respective transfer
3.Respondent directed to pay the allowances within 60 days, in default attracting interest at court rates from the date of filing the suit
4.Claimant entitled to costs of the suit

Authorities

Legislation

Labour Relations Actsection 59(1)(2)(3)
Employment Actsection 26(1)(a)
Constitution of Kenya, 2010Article 41(2) and (5)
Museums and Heritage Actnot specified
Government Code of Regulations (Revised 2006)sections J8(1) and K9

Cases cited (3)

Equity Bank Ltd –vs Gerald Wang’ombe Thuni
[2015] eKLR
National Social Security Fund Board of Trustee v Sifa International Ltd
[2016] eKLR
Bangue Indozuex vs DJ Lowe and Company Ltd
[2006] 2 KLR 208

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over employment disputes (referenced through Article 41 of the Constitution and the Labour Relations Act); not expressly stated

Key timeline

Practical implications

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Cite this brief

Caselaw, "Kenya Union of Commercial Food and Allied Workers v National Museums of Kenya [2020] KEELRC 1191 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1191/eng@2020-04-29

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