Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 2298 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#How the figure of Kshs.8.8 billion was arrived at
The figure was allocated by Treasury on SRC advice and was based on horizontal implementation only, excluding automatic annual increments and resultant pension liabilities
SRC's letter of 13th January 2020 required implementation by direct mapping of 2016/17 salary points and directed that automatic annual increments be implemented through the normal budgetary process. The IPUCCF implementation committee's computation of Kshs.13.812 billion included annual increments and pension liabilities, which explained the difference between the two figures.
How earlier CBAs were implemented
The immediate past CBA was implemented in exactly the same way as proposed by the unions and as provided in the implementation matrix of the three CBAs
KUSU and UASU produced the implementation schedules and matrices of the predecessor 2013-2017 CBA, showing the same mode of implementation. IPUCCF, SRC and the Attorney General did not controvert this evidence, so the court accepted the unions' position unchallenged.
Whether the CBAs should be implemented diagonally as proposed by the unions or horizontally as proposed by SRC
The court found in favour of the unions' diagonal implementation; the CBAs as signed incorporated SRC's own advice including annual increments, and the computation by the implementation committee was accurate
SRC gave advice before, during and after negotiations and approved the CBAs for registration. Its own letters of 28th August 2019 and 30th September 2019 provided for annual increments within the salary structures, which represent vertical implementation. The exclusion of annual increments from the Kshs.8.8 billion caused the shortfall; SRC was directed to secure additional budgetary allocation with IPUCCF, Ministry of Education and Treasury.
The retirement age
The proposals for amendment of retirement age are expunged from the CBAs as they contravene public policy and guidelines
Retirement in the public sector is governed by government policy, the last circular of 20th March 2009 having set the mandatory retirement age at 60 with exceptions. SRC guidelines require negotiations to adhere to existing policies and guidelines. The CBAs proposed 65 or 75 years, which cannot stand against public policy.
Legal principles established
#- The court confirms that collective agreements signed in strict adherence to SRC parameters and approved by SRC for registration are registrable, and that a governmental budgetary allocation that excluded agreed annual increments cannot be used to defeat the agreed computation
- Collective bargaining negotiations must adhere to existing government policies and guidelines, including on retirement age
Court orders
#- 1.The computation by the Implementation Committee of IPUCCF was accurate and the figure of Kshs.8.8 billion is not sufficient to implement the CBAs as it did not include annual increments and resultant pension liabilities
- 2.SRC directed to work together with IPUCCF Implementation Committee, the Ministry of Education and Treasury to make provision for the additional budgetary allocation necessary for implementation of the CBAs
- 3.The proposals for amendment of retirement age are expunged from the CBAs
- 4.The current practice as set out in the pension schemes for universities, the policies and guidelines in place and the provisions of any law governing retirement age in the public sector shall apply
- 5.The CBAs are confirmed as registered on 3rd July 2020 as amended by the judgment
- Jurisdiction invoked
- Section 60(1) and (7) of the Labour Relations Act, 2007; Rule 36(1-3) of the Employment and Labour Relations Court Procedure Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 2298 (KLR)", Case Analysis (2021). RCA No. 62 of 2020, RCA No. 63 of 2020 and RCA No. 64 of 2020 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2298/eng@2021-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.