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ELRCDismissedNot stated in judgment· [2021] KEELRC 923 (KLR)

Kenya Union of Commercial, Food and Allied Workers v National Museums of Kenya [2021] KEELRC 923 (KLR)

Employment and Labour Relations Court
23 September 2021
MNMathews N. Nduma
994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that no one can be forced to sign a Collective Bargaining Agreement and dismissed a contempt case against Dr. Kibunjia.

What this practically means

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Executive summary

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The claimant union filed a Notice of Motion dated 7th November 2019 seeking to have Dr. Mzalendo N. Kibunjia, the respondent's Director General, summoned to show cause why he should not be punished for contempt of an order issued by Ongaya J. on 2nd November 2018, which recorded that the CBA for 1st July 2013 to 30th June 2017 was agreed, that parties agree a signing date for onward registration failing which the court validate the date, and that a decree issue. The union complained that the respondent had failed to sign the CBA in violation of that order. The respondent opposed, explaining that as a parastatal funded by the National Treasury it could not sign the CBA before obtaining the advice and consent of the Salaries and Remuneration Commission, that it had written to the Commission and awaited its advice, and that collective bargaining is voluntary under the Industrial Relations Act, 2007 and ILO Convention 98. The court held that a plain reading of the 2nd November 2018 order shows its execution was predicated on the parties agreeing a signing date, which was never agreed, and that the order contained a fallback option for the court to validate the date. No evidence of willful defiance was adduced. The court further held that it cannot compel a party to negotiate or sign a CBA since collective bargaining is voluntary, and unresolved disputes must proceed by statutory conciliation under the Labour Relations Act, 2007 or be adjudicated by the court as an economic dispute. The entire application was dismissed with costs in the cause. The court also noted the ambiguity of the phrase 'failing Court to validate the date' and left it to the parties to seek clarification.

Key legal issues

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01

Whether the Director General was in contempt of the order of 2nd November 2018

Holding

No contempt established; the order's execution was predicated on the parties agreeing a signing date, which had not happened, and the order provided an alternative option

Reasoning

A plain reading of the order of 2nd November 2018 shows its execution depended on the parties agreeing a date for signing the CBA, which date was never agreed. The order contained a fallback option - that the court validate the date - which neither party invoked. Without evidence of willful defiance, the contempt application fails.

p. 2
02

Whether the Court could order signing of the Collective Bargaining Agreement

Holding

No - collective bargaining is voluntary and cannot be compelled; disputes go to statutory conciliation or adjudication

Reasoning

Collective bargaining under the Industrial Relations Act, 2007 and ILO Convention 98 is voluntary. Where parties fail to agree, the dispute must be resolved through statutory conciliation or other options under the Labour Relations Act, 2007, failing which an economic dispute may be brought to the Court for adjudication of the union's demands.

p. 2

Legal principles established

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  • Collective bargaining is voluntary and a court cannot compel a party to negotiate or sign a CBA; disputes are resolved through statutory conciliation or adjudication
  • Contempt requires proof of willful defiance of a court order

Court orders

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  1. 1.The entire application is dismissed with costs in the cause

Authorities

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Legislation

  • Industrial Relations Act
  • Labour Relations Act
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over contempt of its own orders and Collective Bargaining Agreement disputes under the Labour Relations Act, 2007

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 Union of Commercial, Food and Allied Workers v National Museums of Kenya [2021] KEELRC 923 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/923/eng@2021-09-23

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