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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 1346 (KLR)

Union of National Research and Allied Institutes and Allied Staff of Kenya (UNRISK) v Bukura Agricultural College (Employment and Labour Relations Cause 19 of 2021) [2023] KEELRC 1346 (KLR)

Employment and Labour Relations Court
26 May 2023
3,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kakamega employment court ruled that public employers must negotiate CBAs within Salaries and Remuneration Commission limits, so unions cannot claim wage increases outside those parameters.

What this practically means

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Executive summary

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The claimant union, holding a recognition agreement with the respondent, filed a claim on June 14, 2021 seeking the court's determination of terms for a renewal Collective Bargaining Agreement covering July 1, 2018 to June 30, 2022, on eight issues including validity period, allowances, uniform, general wage increase and effective date. The parties negotiated but deadlocked on two issues: basic wage increase and commuter allowance. By consent, the parties submitted on the two issues and the Central Planning and Monitoring Unit (CPMU) of the Ministry of Labour prepared an expert report dated November 17, 2022, which suggested a CPI-based increment of about 13.15% while noting the respondent's dependence on exchequer funding, deficits, pending bills of Kshs 24.1 million and government directives to cut public spending. The SRC had, by letter dated December 1, 2021, advised retention of status quo on basic salaries and commuter allowance. The court traced the legal framework: ILO Convention 98 Article 4, Articles 41(2)(a), 41(5) and 230 of the Constitution, and sections 57, 59 and 60 of the Labour Relations Act. Relying on the Court of Appeal decision in TSC v KNUT (Odek JA), which this court held itself bound by, the court held that SRC advice on CBA negotiation parameters is binding. It therefore dismissed the claim on general wage increase and commuter allowance, directed that the CBA be negotiated within the SRC parameters, and ordered each party to bear its own costs in view of the parties' good faith.

Key legal issues

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01

Whether the court could depart from the SRC advice of December 1, 2021 on wage increment and commuter allowance

Holding

The SRC advice is binding; the respondent was bound to negotiate the CBA within the SRC parameters of retention of status quo, and the claim on wage increase and commuter allowance was dismissed.

Reasoning

The court applied the Court of Appeal decision in TSC v KNUT (Odek JA), which held that if a Supreme Court advisory opinion is binding, a constitutional advice is more binding; an interpretation rendering Article 230(5) idle would be unconstitutional. The court found itself bound by that precedent and held the SRC letter of December 1, 2021 binding on the parties.

p. 7
02

Whether the CPMU expert report displaced the SRC parameters

Holding

No. The CPMU report was a scientific expert report to assist the court, but the SRC's constitutional mandate on fiscal sustainability took precedence.

Reasoning

The CPMU report recommended a CPI-based increment but the court found that the respondent's dependence on exchequer funding and revenue programs dependent on the exchequer placed the SRC's role at a higher ground, given its constitutional mandate under Article 230(5) to ensure the total public compensation bill is fiscally sustainable.

p. 5
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The legal framework for collective bargaining

Holding

Voluntary negotiation of CBAs is protected by ILO Convention 98 Article 4 and Articles 41(2)(a) and 41(5) of the Constitution, operationalised by sections 57, 59 and 60 of the LRA.

Reasoning

Section 57(1) obliges a recognising employer to conclude a collective agreement; section 59 makes registered agreements binding and enforceable; section 60(6) bars registration of agreements conflicting with law or with guidelines concerning wages and conditions issued by the Minister or relevant bodies.

p. 4

Legal principles established

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  • An employer that has recognised a trade union must conclude a collective agreement with the recognised union setting out terms and conditions of service for all unionisable employees covered by the recognition agreement.
  • A collective agreement becomes enforceable upon registration by the Industrial Court and is effective from the date agreed by the parties.
  • The advice given by SRC on the parameters for negotiation of a CBA is binding.

Court orders

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  1. 1.The court dismisses the claim dated June 14, 2021 with respect to the two outstanding issues of general wage increase and commuter allowance
  2. 2.Each party to bear its own costs of the suit
  3. 3.The parties advised to proceed and conclude the CBA as guided by SRC

Authorities

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Legislation

  • Labour Relations Actsections 57, 59, 60, 62-73; definition of collective agreement
  • Constitution of Kenya, 2010Articles 41(2)(a), 41(5), 230(1), 230(4), 230(5)
  • The Salaries and Remuneration Commission (Remuneration And Benefits Of State And Public Officers) Regulations No 10 of 2011Regulation 18
  • ILO Convention 98 on Right to Organise and Collective Bargaining Convention, 1949Article 4
  • Wage guidelines issued August 24, 1973 and amended November 23, 2005

Cases cited (5)

  • Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • In the Matter of Advisory Opinion of the Court, Constitutional Application No 2 of 2011
  • Kenya National Commission on Human Rights v AG & Another
    Petition No 132 of 2013; [2015] eKLR
  • BIFU v Post Bank Limited
    Nairobi ELRC No 2019 of 2015
  • Kenya Chemical Workers Union v Pyrethrum Processing Company of Kenya Limited
    Nakuru ELRC No 7 of 2020
Jurisdiction invoked
Labour Relations Act, sections 57, 59 and 60; Article 41 of the Constitution

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, "Union of National Research and Allied Institutes and Allied Staff of Kenya (UNRISK) v Bukura Agricultural College (Employment and Labour Relations Cause 19 of 2021) [2023] KEELRC 1346 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1346/eng@2023-05-26

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