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ELRCDismissedCause No. 1340 of 2016· [2021] KEELRC 1282 (KLR)

Amalgamated Union of Kenya Metal Workers v Load Trailer (EA) Limited [2021] KEELRC 1282 (KLR)

Employment and Labour Relations Court
9 July 2021
MOMaureen Onyango
1,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that union-negotiated dues and benefits can only be enforced after the collective bargaining agreement is officially registered.

What this practically means

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Executive summary

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The Claimant, a trade union with a recognition agreement dated 22nd June 2015 with the Respondent, reported a dispute to the Minister of Labour after the Respondent refused to negotiate the first CBA. This court determined the CBA in a judgment delivered on 20th April 2018. The Respondent's application to set aside the judgment was dismissed, and the Respondent signed the CBA only after warrants of arrest were issued against its Managing Director. The Claimant filed the present application seeking an order adopting its calculations of arrears and terminal dues and an order enforcing Section 26 of the Employment Act 2007 and ILO Convention 100. The Respondent opposed through the affidavit of Jagdeep Singh Gurmeet Bhachu, contending that the tabulation was done without consultation, was grossly exaggerated, and that COVID-19 had affected its liquidity, besides asserting that some employees had voluntarily left the union. The court, per Maureen Onyango J, held that under Sections 57, 59 and 60 of the Labour Relations Act, a collective agreement becomes enforceable and implementable only upon registration, and it is the employer's duty to submit it for registration within 14 days, failing which the union may do so. Since the signed CBA had not been presented for registration by either party, the Claimant's tabulation was premature, although it represents an entitlement of employees employed as at 20th April 2018 which the court would grant upon registration. The Respondent's averments on lack of consultation and COVID-19 hardship were rejected, as the award predated the pandemic and the Respondent could not benefit from its own deliberate default. The application was declined solely on the ground of non-registration of the CBA.

Key legal issues

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01

Whether the Claimant was entitled to have the court adopt its tabulation of CBA arrears and terminal dues before registration of the CBA

Holding

The application was valid but premature; orders could only issue after registration of the CBA

Reasoning

Section 59(5) of the Labour Relations Act provides that a collective agreement becomes enforceable and implementable upon registration. Although the CBA was awarded by the court and signed by the parties, neither the Respondent (whose statutory duty it is) nor the Claimant had submitted it for registration. The tabulation was therefore an entitlement contingent on registration, and the court would grant it once the CBA was registered.

p. 3
02

Whether the Respondent could rely on lack of consultation and COVID-19 financial hardship to resist the tabulation

Holding

Neither averment was sustainable

Reasoning

It was the Respondent's statutory obligation to implement the CBA, and the tabulation was necessitated by its default. The award predated COVID-19, and the record shows the Respondent had consistently obstructed the CBA, signing it only after warrants of arrest were issued against its Managing Director. The Respondent could not benefit from its own deliberate default.

p. 3
03

Whether employees who resigned from the union could be excluded from CBA benefits

Holding

Not determined; the application failed on prematurity alone

Reasoning

Section 59(2) of the Labour Relations Act provides that a collective agreement continues to bind parties including members who have resigned from the trade union. The court did not expressly rule on this averment, as the application failed solely because the CBA had not been registered.

p. 2

Legal principles established

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  • An employer who has recognised a union must conclude and submit a collective agreement for registration within 14 days of its conclusion, failing which the union may submit it
  • A collective agreement becomes enforceable and implementable only upon registration by the Industrial Court, effective from the date agreed by the parties
  • A party cannot benefit from its own deliberate default

Court orders

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  1. 1.The Claimant's application dated (seeking adoption of calculations of arrears and terminal dues and enforcement of Section 26 of the Employment Act 2007 and ILO Convention 100) is declined
  2. 2.The application is declined only on the ground that the CBA signed by the parties has not yet been registered

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Labour Relations ActSection 57
  • Labour Relations ActSection 60(1), (2) and (3)
  • Labour Relations ActSection 59(1)-(5)
  • Employment Act 2007Section 26
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • ILO Convention 100
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the CBA dispute referred under Section 62 of the Labour Relations Act

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, "Amalgamated Union of Kenya Metal Workers v Load Trailer (EA) Limited [2021] KEELRC 1282 (KLR)", Case Analysis (2021). Cause No. 1340 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1282/eng@2021-07-09

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