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ELRCDismissedPetition dated October 17, 2022 (ELRC)· [2023] KEELRC 619 (KLR)

Egerton University v Universities, Academic Staff Union & another (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 619 (KLR)

Employment and Labour Relations Court
16 March 2023
3,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's employment court ruled Egerton University cannot block a lecturers' strike indefinitely and must show CBA implementation within 120 days.

What this practically means

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Executive summary

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Egerton University petitioned the Employment and Labour Relations Court seeking to forestall a strike called by UASU and an array of reliefs. The parties were referred to conciliation, and the conciliator's report of February 16, 2023 framed six issues: non-remittance of third-party deductions; unilateral variation of employer pension contribution; structured procedure for academic staff reviews and promotions; reinstatement of annual salary increments; unfair disciplinary action against union officials; and withheld/deferred salaries. The conciliator found the parties had a registered CBA, most disputes were monetary, the University unilaterally varied salaries from 100% to 60% without consultation contrary to sections 17 and 18 of the Employment Act, and failure to implement the CBA violated freedom of association and collective bargaining rights. The University argued it could not pay pending government funding and that orders in ELRC No. 16 of 2022 were stayed by the Court of Appeal; the Union supported the conciliator's findings, citing authorities on remittance of union dues and unilateral pay cuts. The court declined to pronounce on the stayed orders of E16 of 2022. It held that unilateral variation of wages without consultation violates section 10(5) of the Employment Act, and that deducting without remitting is an offence under section 19(4)-(6) notwithstanding financial hardship. Balancing the Article 41 right to strike against the employer's rights under Article 24, the court found the University could not hold back strike action forever. The Petitioner's application could not stand. The court directed the University, within 120 days aligned to the budget cycle, to demonstrate how it is implementing the CBA, failing which the union may initiate a fresh strike after requisite notices. Costs were in the cause. Judgment was delivered virtually on March 16, 2023 by Justice Hellen Wasilwa.

Key legal issues

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01

Whether the unilateral variation of salaries and employer pension contribution was lawful

Holding

It was an unlawful violation of employees' rights; variation of contractual terms requires consultation with the employee under section 10(5) of the Employment Act

Reasoning

The conciliator found the University unilaterally varied salaries from 100% to 60% by a circular of May 13, 2020 without prior engagement or consultation with UASU. The court applied section 10(5) of the Employment Act requiring consultation and written notice, and held that financial constraints do not excuse unilateral variation of wages.

p. 6
02

Whether failure to remit third-party and statutory deductions is excused by lack of government funding

Holding

No; the employer's admission of deduction without remittance is an offence under section 19(4), (5) and (6) of the Employment Act

Reasoning

The Petitioner admitted making deductions from members' remuneration but not remitting them, attributing this to lack of government funding. The court held the statutory duty to remit within the specified period is absolute, and non-compliance is an offence punishable by fine or imprisonment, with the court able to order refund with the employer's own funds.

p. 6
03

Whether the Petitioner's application to forestall the strike should be granted

Holding

It cannot stand; the employer must within 120 days demonstrate implementation of the CBA, failing which the union may strike after requisite notices

Reasoning

Balancing the Article 41 right to strike against the employer's position under Article 24, the court accepted the union's right to strike but gave the employer an opportunity to show it is working towards resolving the grievances, including demonstrating that payment arrears are factored into the budget cycle, or alternatively initiating a redundancy process.

p. 8

Legal principles established

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  • It is a violation of employees' rights for an employer to vary terms of engagement without consultation, per section 10(5) of the Employment Act
  • An employer who deducts amounts from employees' remuneration and fails to remit them commits an offence under section 19(4)-(6) of the Employment Act; failure to remit cannot be excused by lack of funding
  • The right to strike under Article 41(2)(d) is subject to limitation under Article 24 and must be balanced against the employer's rights, but an employer cannot hold back strike action indefinitely without demonstrating steps to implement the CBA

Court orders

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  1. 1.The application filed by the Petitioner seeking a raft of orders (including to forestall the strike) cannot stand and is refused
  2. 2.The Petitioner is directed that within 120 days, being the end and beginning of the budget cycle, demonstrate how they are implementing what is in the CBA between them and the Union
  3. 3.In default, the Respondent union is free to initiate a fresh strike action after giving the requisite notices
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41 (labour relations)
  • Constitution of Kenya, 2010Article 24 (limitation of rights)
  • Employment Act, 2007Sections 10(5), 17, 18, 19(1)(a),(f),(g),(h), 19(4), (5), (6)
  • Labour Relations Act, 2007Section 59(3), section 76

Cases cited (4)

  • Kenya Union of Nurses v Murang'a County Public Service Board and another
    [2021] eKLR
  • Sarah Mangoli v Kenya Medical Research Institute & Another
    [2020] eKLR
  • Kenya Union of Commercial Food and Allied workers v Tuskers Mattresses Limited
    [2020] eKLR
  • Geoffrey Mworia v Water Resources Management Authority and 2 others
    [2015] eKLR
Jurisdiction invoked
Not expressly invoked; Petition under the Constitution and labour statutes referred to conciliation (Labour Relations Act conciliation process)

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, "Egerton University v Universities, Academic Staff Union & another (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 619 (KLR)", Case Analysis (2023). Petition dated October 17, 2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/619/eng@2023-03-16

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