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ELRCAllowedPetitioner's Application dated 10th June 2020 (Main Suit: Petition)· [2022] KEELRC 696 (KLR)

Kenya Universities Staff Union v Egerton University & another [2022] KEELRC 696 (KLR)

Employment and Labour Relations Court
25 February 2022
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenyan universities cannot cut or delay staff salaries through internal memos—they must first negotiate any CBA changes with the union at the national forum.

What this practically means

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Executive summary

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The Petitioner, the Kenya Universities Staff Union, moved the Court by Application dated 10th June 2020 seeking interim orders restraining the Respondents from implementing a Circular dated 13th May 2020 and an Internal Memo dated 11th May 2020, and from changing members' terms and conditions of service without consultation. The Application was supported by the affidavit of Dr. Charles Mukhwaya and grounded on the Recognition Agreement and a valid CBA concluded through the Inter Public Universities Councils Consultative Forum (IPUCCF), which the Respondents allegedly varied unilaterally contrary to Section 10 of the Employment Act and Article 41 of the Constitution. The 1st Respondent, through its Finance Officer Moses Odero Ouma, cited financial constraints - reduced Government capitation, fewer self-financing students, a bank overdraft and accounts frozen by KRA - and pointed to a 4th May 2020 meeting with Union Chapter officials, apprehending that orders granted to UASU in a similar petition had stalled negotiations. The 2nd Respondent submitted the Application was misconceived since salaries were paid on 21st May 2021. The Court held that the 4th May 2020 meeting with Chapter officials was not a legally mandated consultative forum; salary reductions or withholding go to the core of collective bargaining and must be negotiated at the national forum including IPUCCF. No consultation on altering the CBA was shown, and the Return-to-Work Formula exhibited was with UASU, not the Petitioner. The Application was allowed and the Respondents restrained pending determination of the Petition, with costs in the Petition.

Key legal issues

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01

Whether Chapter-level consultation satisfied the obligation to negotiate changes to CBA terms

Holding

It did not; consultation should have occurred at the national forum, including IPUCCF

Reasoning

The Court noted that Management met the Petitioner's Chapter Chairman and Organizing Secretary on 4th May 2020, but doubted this was a legally mandated consultative forum. Chapter Representatives correctly said the proposal was beyond their mandate. Matters affecting negotiated terms and conditions under the Recognition Agreement and CBA must be discussed through the collective bargaining structures, including the national offices and IPUCCF.

p. 2
02

Whether the Respondents consulted the Petitioner on altering the negotiated terms

Holding

No consultation was shown; the Circular and Memo were unilateral and unjustified

Reasoning

The Respondents could not demonstrate consultation with the Petitioner on the change to negotiated terms in the existing CBA. Financial constraints, including reduced Government capitation, fewer self-financing students, a bank overdraft and frozen bank accounts, may have been genuine, but the correct forum to address them was the Head Offices of the Unions and the IPUCCF, not the Chapters.

p. 2
03

Whether the Return-to-Work Formula settled the Application

Holding

The Return-to-Work Formula exhibited was between the 1st Respondent and UASU, not the Petitioner

Reasoning

The 1st Respondent suggested the Application was settled through a Return-to-Work Formula dated 30th November 2020, but the copy exhibited was between the 1st Respondent and the Universities' Academic Staff Union, while the Petitioner is the Kenya Universities Staff Union. It therefore could not dispose of the Petitioner's Application.

p. 2

Legal principles established

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  • Reduction or withholding of staff salaries to be released at a later date is a matter at the core of collective bargaining and can only be done at the national forum where the CBA was negotiated and concluded
  • A unilateral Circular and Memo altering an existing CBA without consultation is unjustified

Court orders

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  1. 1.Pending hearing and determination of the Petition, the Respondents are restrained, by themselves, Agents, Servants and/or other Persons acting on their behalf, from implementing the Circular and Internal Memo dated 13th May 2020 and 11th May 2020 respectively
  2. 2.Pending hearing and determination of the Petition, the Respondents are restrained from changing any terms and conditions of service of the Petitioner's members, without the consultation/inclusion of the Petitioner
  3. 3.Costs in the Petition

Authorities

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Legislation

  • Employment ActSection 10
  • Constitution of KenyaArticle 41

Cases cited (1)

  • NAIROBI E&LRC PETITION NO. 80 OF 2020 (UASU)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya and the Employment Act, Section 10

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 Universities Staff Union v Egerton University & another [2022] KEELRC 696 (KLR)", Case Analysis (2022). Petitioner's Application dated 10th June 2020 (Main Suit: Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/696/eng@2022-02-25

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