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ELRCPartially AllowedRegistration of Collective Bargaining Agreement (presented by letter dated 8th October 2020)· [2021] KEELRC 1989 (KLR)

Kenya Union of Commercial Foods and Allied Workers v National Social Security Fund; Salaries and Remuneration Commission (Objector) [2021] KEELRC 1989 (KLR)

Employment and Labour Relations Court
5 March 2021
4,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's employment court ruled NSSF workers aren't public officers, so the SRC couldn't block their union's pay agreement with the Fund.

What this practically means

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Executive summary

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The Kenya Union of Commercial, Food and Allied Workers presented a collective bargaining agreement with the National Social Security Fund for registration before the Employment and Labour Relations Court. The Salaries and Remuneration Commission objected, arguing that NSSF employees are public officers whose remuneration requires SRC advice under Article 230(4) of the Constitution and Section 11 of the SRC Act, and that prior decisions to the contrary were under appeal. The Union contended that NSSF is a commercial state corporation funded by members' contributions and investments, not an exchequer-funded body, and that a prior judgment in Petition No. 30 of 2014 had already held the SRC's 2012 circular inapplicable to NSSF collective bargaining. Justice Maureen Onyango adopted the four issues framed by SRC. Relying on Article 260 definitions and the recent three-judge High Court decision in Katiba Institute, the court held that state corporations and parastatals are not offices in the public service, state organs, or bodies established under the Constitution, and that NSSF employees' remuneration is not payable from the Consolidated Fund or money provided by Parliament, placing them outside SRC's advisory mandate. The court distinguished SRC's authorities on funding grounds, noted that prior consistent decisions of the court had never been stayed or overturned, and cautioned SRC against re-litigating settled issues while appeals proceed at its own pace. The objection was dismissed and the CBA for the period 1st July 2019 to 30th June 2021 was registered, with each party bearing its own costs.

Key legal issues

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01

Whether NSSF employees are public officers subject to SRC advice under Article 230(4) of the Constitution

Holding

NSSF employees are not public officers because their remuneration is not payable directly from the Consolidated Fund or money provided by Parliament, and NSSF is not a State organ or body established under the Constitution.

Reasoning

Article 260 defines a public office as one whose remuneration and benefits are payable directly from the Consolidated Fund or out of money provided by Parliament. NSSF derives its existence from the NSSF Act, 2013 and the State Corporations Act, is not a commission, office, agency or body created under the Constitution, and pays its employees from its own generated income and investments. State corporations are therefore outside the SRC's mandate to advise on remuneration of other public officers.

p. 3
02

Whether the prior decision in Petition No. 30 of 2014 binds this court and precludes re-litigation of the objection

Holding

The decision in Petition No. 30 of 2014 was clear and unequivocal, was not stayed or overturned, and SRC cannot repeatedly raise the same arguments expecting a different outcome.

Reasoning

The court noted that SRC has consistently lost on the argument that CBAs of state corporations not funded by the exchequer require SRC approval. The decision in Petition 30 of 2014 was never stayed or overturned by any competent court, and no stay of the pending appeals was demonstrated. SRC also failed to supply pleadings from the appeals to enable the court assess whether the issues were similar.

p. 6
03

Whether the authorities relied on by SRC were applicable

Holding

The authorities cited by SRC were not relevant because the entities they concerned (TSC, Nairobi City County Government, Moi Teaching and Referral Hospital, Kenyatta National Hospital) are funded directly from the Consolidated Fund or funds set aside by Parliament, unlike NSSF.

Reasoning

The court distinguished the cited cases on the source of funding of the employers concerned. Since NSSF is self-funding through members' contributions and investments, the decisions upholding SRC's role over directly exchequer-funded bodies did not apply to it.

p. 6

Legal principles established

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  • A decision of a court of co-ordinate jurisdiction is not binding though persuasive.
  • Employees of state corporations not funded directly from the Consolidated Fund or money provided by Parliament are not public officers whose remuneration is subject to SRC advice under Article 230(4).
  • CBAs are time-bound and disputes relating to them must be determined with haste.

Court orders

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  1. 1.The objection to registration of the CBA is dismissed
  2. 2.The CBA dated 23rd July 2020 between Kenya Union of Commercial and Food Allied Workers and National Social Security Fund for the period 1st July 2019 to 30th June 2021 is registered
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 60(7)(b)
  • Constitution of Kenya, 2010Article 230(4)
  • Constitution of Kenya, 2010Article 41(5)
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Salaries and Remuneration Commission ActSection 11
  • SRC (Remuneration and Benefits of State and Public Officers) RegulationsRegulation 18
  • State Corporations Act (Cap 446)Section 3
  • Public Officer Ethics ActSection 2
  • NSSF Actnot specified
  • Employment and Labour Relations Court (Procedure) RulesRule 37(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B
  • ILO Convention No. 98not specified

Cases cited (13)

  • Kenya Union of Domestic Hotels Educational Institution and Allied Workers (KUDHEIHA Workers) v Salaries and Remuneration Commission
    (2014) eKLR
  • National Union of Water and Sewerage Employees v Mathira Water and Sanitation Company Ltd and Others
  • Republic v Eldoret Water and Sanitation Company ex parte Booker Onyango
    [2008] eKLR
  • Nairobi City County Government v Kenya County Government Workers Union; Salaries and Remuneration Commission (Interested Party/Applicant)
    [2019] eKLR
  • Teachers Service Commission (TSC) v Kenya National Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • Salaries and Remuneration Commission Okiya Omtatah, Okoiti v Parliamentary Service Commission and others
  • Kenya Union of Commercial, Food and Allied Workers v Salaries and Remuneration Commission, NSSF and the AG
    [2015] eKLR
  • Chemelil Sugar Company Limited & 2 Others v Kenya Union of Sugar Plantation and Allied Workers Union
  • National Hospital Insurance Fund Management Board v Kenya Union of Commercial Food and Allied Workers & 2 Others
    (2016) eKLR
  • National Hospital Insurance Fund v Kenya Union of Commercial Food and Allied Workers & 2 Others
    (2018) eKLR
  • Kenya Union of Commercial Fund and Allied Workers v National Hospital Insurance Fund & Another
    (2021) eKLR
  • Katiba Institute & another v Attorney General & Another
    [2020] eKLR
  • Fredrick Otieno Outa v Jared Odoyo Okello & 4 others
Jurisdiction invoked
Section 60 of the Labour Relations Act (registration of collective bargaining agreements)

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 Foods and Allied Workers v National Social Security Fund; Salaries and Remuneration Commission (Objector) [2021] KEELRC 1989 (KLR)", Case Analysis (2021). Registration of Collective Bargaining Agreement (presented by letter dated 8th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1989/eng@2021-03-05

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