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ELRCOtherNot stated in judgment· [2023] KEELRC 1674 (KLR)

Kenya Chemical Workers Union v Agro Chemicals & Food Company Limited & another (Cause E004 of 2023) [2023] KEELRC 1674 (KLR)

Employment and Labour Relations Court
13 July 2023
CBC. N. Baari
2,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that public sector pay disputes must be negotiated with SRC input, sending a deadlocked CBA back to the table.

What this practically means

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Executive summary

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The Claimant union filed a claim seeking conclusion of a Collective Bargaining Agreement with the 1st Respondent in terms of its proposals, following a Certificate of Unresolved Trade Dispute issued by a Conciliator on 6th December 2022. Negotiations for a four-year CBA had deadlocked on 21st September 2022 over five items with financial implications: Housing Allowance, Leave Travelling Allowance, Daily Subsistence Allowance, Bicycle/Commuter Allowance and wage increase. The 1st Respondent, a commercial state corporation, maintained it was bound by advisories from the 2nd Respondent, the Salaries and Remuneration Commission, issued under Article 230(4) of the Constitution and Sections 11 and 12 of the SRC Act. The SRC maintained it had fully discharged its constitutional mandate by advising on the disputed items. The sole issue was whether the court should itself determine the disputed terms on the basis of the declared impasse. Justice C. N. Baari held that an impasse suspends but does not terminate the obligation to bargain, and that because the 1st Respondent is a public service entity, the SRC's advisory is mandatory and binding, making the bargaining process tripartite. Applying Otieno Odek JA's holding in Teachers Service Commission v KNCHR (Civil Appeal No. 196 of 2015), the court declined to impose terms, since the result would cease to be a collective bargaining agreement. The court directed the parties into further and more intense negotiations within the SRC advisory parameters and made no order on costs, the parties being social partners. Judgment delivered at Kisumu on 13th July 2023.

Key legal issues

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01

Whether the court should impose terms on the five items in deadlock between the parties

Holding

The court declined to determine the disputed items and instead directed the parties back to intensified negotiations within the SRC advisory parameters

Reasoning

The 1st Respondent is a public service entity whose terms are governed by policies with statutory underpinning. The SRC advisory of 1st December 2021 set the negotiating parameters. The SRC's advisory role is mandatory and binding, making public sector bargaining tripartite. Imposing terms would render the outcome something other than a genuine CBA.

p. 6
02

Effect of an impasse in collective bargaining

Holding

An impasse suspends but does not terminate the duty to bargain, which the court enforces

Reasoning

The court held that parties retain a fundamental responsibility for fair labour relations and must negotiate freely and voluntarily; the declaration of unresolved dispute triggers the court's role in enforcing the continuing obligation to bargain rather than substituting its own terms.

p. 5

Legal principles established

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  • The SRC's advisory on public sector remuneration is mandatory and binding; collective bargaining in the public sector is tripartite, not bipartite
  • An impasse in collective bargaining suspends negotiations but does not terminate the obligation to bargain, which the Court can enforce

Court orders

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  1. 1.That parties go into further and more intense negotiations and conclude the CBA in line with the advisory given by the 2nd Respondent (SRC)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 230(4)
  • Constitution of Kenya, 2010Article 230(5)
  • Salaries and Remuneration Commission Act, 2011Sections 11 and 12

Cases cited (1)

  • Teachers Service Commission v. Kenya National Union of Teachers
    Civil Appeal No. 196 of 2015
Jurisdiction invoked
Referral of an unresolved trade dispute under the Labour Relations Act following a Certificate of Unresolved Trade Dispute (as stated in the claim)

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 Chemical Workers Union v Agro Chemicals & Food Company Limited & another (Cause E004 of 2023) [2023] KEELRC 1674 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1674/eng@2023-07-13

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