Pwani University Council v Universities Academic Staff Union; Ministry of Labour and Social Protection & another (Interested Parties) (CBA E082 of 2023) [2023] KEELRC 2637 (KLR)
The bottom line
#Kenya's Employment Court refused to register Pwani University's CBA because a clause setting retirement at 75 clashed with public policy, sending it back for renegotiation.
What this practically means
#Executive summary
#Key legal issues
#Effect of an objection by an employer to registration of a CBA on public policy grounds
An employer's objection premised on public policy is a substantive matter that the Court must consider before registration, and warrants remission of the disputed clause to the parties for re-negotiation.
The Employer objected that Clause 11(a) fixing the retirement age of academic staff at 75 years contradicted government policy of 70 years and the University's Retirement Benefits Scheme Trust Deed, and was the subject of pending litigation in Malindi ELRC Petition No E004 of 2023. The Court held the objection substantive and directed re-negotiation.
Relevance of supervisory bodies' non-objection to registration of a CBA
The absence of objection by the Salaries and Remuneration Commission or the Ministry of Labour does not compel registration; the Court must consider objections by the primary parties to the CBA.
The Union argued that since neither the SRC nor the Ministry of Labour objected, the CBA ought to be registered. The Court rejected this, holding that the employer and the union are the primary parties and any objection by either must be considered regardless of supervisory bodies' positions.
Relevance of pending litigation on the same subject matter to registration of a CBA
Where the substance of pending litigation concerns the same subject as a clause in a CBA, registration of the CBA would have a direct bearing on that litigation and is relevant to the objection.
The Union distinguished Malindi ELRC Petition No E004 of 2023 from the CBA, but the Court found that the substance of the Petition concerned the retirement age of union members under the same CBA, so registration would directly affect the Petition's outcome.
Legal principles established
#- The Court must consider an objection by either primary party to a CBA whether or not supervisory bodies such as the Salaries and Remuneration Commission or the Ministry of Labour have raised an issue
- A CBA clause that is contrary to public policy and government guidelines on retirement age warrants remission to the parties for re-negotiation rather than registration
Court orders
#- 1.The parties to re-negotiate Clause 11(a) of the CBA and report back to the Court within forty-five (45) days
- Jurisdiction invoked
- Statutory jurisdiction to register a Collective Bargaining Agreement under the Labour Relations Act; not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pwani University Council v Universities Academic Staff Union; Ministry of Labour and Social Protection & another (Interested Parties) (CBA E082 of 2023) [2023] KEELRC 2637 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2637/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.