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ELRCPartially AllowedELRC Cause (Kakamega), Statement of Claim dated 11th May 2023· [2023] KEELRC 2531 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –St. Mary’s Mumias Girls High School (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 2531 (KLR)

Employment and Labour Relations Court
18 October 2023
3,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked an employer from cutting negotiated termination notice benefits, ruling that reducing existing CBA gains is an unfair labour practice.

What this practically means

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Executive summary

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The claimant union, recognised under a 1995 recognition agreement to represent support staff of the respondent public school board, filed an unopposed statement of claim dated 11th May 2023 after the respondent, in negotiations for a new CBA (1st October 2021 to 31st September 2023), proposed to reduce the termination notice and pay-in-lieu provisions of the outgoing 2016-2017 CBA to a uniform one month. The parties had exhausted conciliation at the Ministry of Labour without resolution. The respondent never entered appearance and only the claimant filed submissions. The court, guided by section 59 of the Labour Relations Act (a registered CBA binds the parties and is incorporated into individual contracts), section 26(2) of the Employment Act (more favourable agreed terms prevail over statutory minima), and the Court of Appeal's decision in Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union [2018] eKLR, held that the ELRC adjudicates trade disputes arising from CBA negotiation deadlocks and may adopt the previously negotiated terms of an outgoing CBA. The court found the outgoing clause 6 notice terms (ranging from 2 to 5 months' pay in lieu by length of service) more favourable than both the statutory 28-day minimum and the respondent's proposal, and held that reducing them across the board was an unfair labour practice. The court ordered the parties to retain the existing clause 6(a)(i, ii & iii) terms in the new CBA and made no order as to costs.

Key legal issues

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01

Whether the court should compel retention of the more favourable termination notice terms of the outgoing CBA where the proposed new terms are retrogressive

Holding

Yes - the respondent's proposal to reduce notice to one month across the board was an unfair labour practice; the existing superior terms of clause 6 of the 2016-2017 CBA are to be retained in the new CBA

Reasoning

The registered CBA was incorporated into employment contracts under section 59(3) of the Labour Relations Act, and its termination notice terms (2, 3 or 5 months' pay in lieu depending on service) were more favourable than the 28-day statutory minimum under section 35(1)(c) of the Employment Act. Following Kenya Tea Growers Association, the court, on deadlock after conciliation, adjudicates the dispute and may adopt the previously negotiated terms. Reducing accrued gains was retrogressive and an unfair labour practice.

p. 8
02

The role of the ELRC where parties reach deadlock in CBA negotiations after conciliation

Holding

The ELRC adjudicates the trade dispute, including the disagreement over CBA terms, but must exercise its power judiciously and not substitute its preference for the parties' freedom of agreement

Reasoning

Article 162(2)(a) and the LRA (sections 62-73, Part IX) establish a mechanism whereby unresolved trade disputes are referred to the ELRC for adjudication. The Court of Appeal in Kenya Tea Growers Association held the court may issue terms more favourable than statutory minima, but judicially and case by case, respecting collective bargaining's voluntary nature.

p. 4

Legal principles established

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  • Where parties to CBA negotiations reach a deadlock, the ELRC is tasked with adjudicating the trade dispute, including the disagreement over the terms of the CBA
  • A registered CBA is incorporated into the contracts of employment of covered employees and is binding and enforceable upon registration
  • Where the terms of a contract of service agreed in a CBA are more favourable than the statutory minimum, the favourable terms apply
  • Where parties are unable to agree on the terms of a new CBA, the court may uphold the previously negotiated terms of the outgoing CBA, without substituting its preference for the parties' freedom to agree

Court orders

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  1. 1.The parties to retain the existing terms under clause 6 (a)(i, ii & iii) of the outgoing CBA 2016-2017 into the new CBA
  2. 2.No order as to costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution; ELRC Act; Labour Relations Act, 2007 Parts VIII and IX (Section 73(1))

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 Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –St. Mary’s Mumias Girls High School (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 2531 (KLR)", Case Analysis (2023). ELRC Cause (Kakamega), Statement of Claim dated 11th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2531/eng@2023-10-18

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