Kenya Union of Domestic, Hotels, Educational Institutions and Hosptials Workers v Tenwek Hosptial Board of Management [2020] KEELRC 1693 (KLR)
The bottom line
#Tenwek Hospital won its challenge after the court ruled that a retirement age clause was inserted into their collective bargaining agreement without genuine negotiation.
What this practically means
#Executive summary
#Key legal issues
#Effect of registration of a CBA
The 2016/2017 CBA took effect only upon its registration on 15th November, 2017; before registration it had no legal force even if backdated by agreement
Relying on section 59(5) of the Labour Relations Act, 2007, the court held that a collective agreement becomes enforceable upon registration and effective from the date agreed by the parties. Backdating by parties only gains legal force from registration. The notices of retirement issued to the grievants predated or accompanied the registration, so the registered 2016/2017 CBA could not invalidate them.
Validity of the insertion of clause 17 into the 2016/2017 CBA
The insertion changing the retirement age from 55 to 60 years without negotiation was irregular and unlawful, amounting to an unfair labour practice
The respondent's unchallenged counter-claim evidence, given by CEO Geoffrey Langat, was that retirement age was never an item for negotiation yet appeared in the final CBA. The claimant filed no reply to the counter-claim, so the averments stood unchallenged. The respondent promptly reported the dispute to the Minister. The court found the unilateral insertion circumvented the registration process and constituted unfair labour practice.
Whether the grievants' claims for early-retirement dues succeed
The claims were dismissed; the grievants were properly retired under the 2014/2015 CBA whose clause 17 set retirement at 55 years
Since the 2016/2017 CBA clause 17 was unlawfully inserted and the retirement notices had already taken effect with due notices issued, the terms of the existing clause 17 in the 2014/2015 CBA applied. The grievants, including any not unionised, were not to suffer disadvantage, but no entitlement to the claimed five years' dues arose.
The counter-claim for nullity of clause 17
Allowed to the extent that the parties remain bound by clause 17 of the 2014/2015 CBA until a new CBA is negotiated covering retirement age
The court accepted the principles in Flora N. Wasike v Destimo Wamboko that a consent judgment or agreement has contractual effect and may be set aside only on grounds justifying setting aside a contract, including fraud. The unchallenged particulars of fraud regarding the insertion of clause 17 supported the declaration sought, though the parties remain bound by the earlier CBA pending fresh negotiation.
Legal principles established
#- A collective agreement becomes enforceable and effective only upon registration, and backdating takes legal force only from the date of registration
- A CBA, being a binding agreement, can only be set aside on grounds that would justify setting aside a contract, such as fraud or misrepresentation
- Unilaterally altering a CBA's retirement age without the parties' agreement or a court order is an unfair labour practice
Court orders
#- 1.A finding that the insertion of Clause 17 into the 2016/2017 CBA was irregular and therefore unlawful
- 2.The claimant's claims are dismissed
- 3.The counter-claim is allowed to the extent that the parties shall remain bound by clause 17 of the 2014/2015 CBA until a new CBA is negotiated and agreed upon addressing the retirement age as an item for negotiation
- 4.No orders as to costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (Labour Relations Act, 2007; Labour Institutions framework); not expressly cited as a constitutional article in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hosptials Workers v Tenwek Hosptial Board of Management [2020] KEELRC 1693 (KLR)", Case Analysis (2020). Cause No. 25 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1693/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.