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ELRCOtherNot stated in the judgment· [2023] KEELRC 2637 (KLR)

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)

Employment and Labour Relations Court
26 October 2023
522 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 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

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Executive summary

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This ruling of the Employment and Labour Relations Court (Linnet Ndolo J, delivered virtually at Nairobi on 26th October 2023) deals with an objection raised by the Employer to the registration of a Collective Bargaining Agreement with the Union. Upon receipt of the CBA for registration, the Employer objected that Clause 11(a), which sets the mandatory retirement age for academic staff at seventy-five (75) years with voluntary early retirement at fifty-five (55), is contrary to public policy and government guidelines fixing retirement for university academic staff at seventy (70) years, and is inconsistent with the Pwani University College Staff Retirement Benefits Scheme Trust Deed. The Employer relied on earlier CBAs in which it was held that existing pension schemes, policies and laws governing public-sector retirement age shall apply, and referred to pending litigation in Malindi ELRC Petition No E004 of 2023 seeking to suspend retirement notices issued on the basis of the 2017 CBA. The Union argued that the Petition was distinguishable and that the absence of objection from the Salaries and Remuneration Commission or the Ministry of Labour obliged registration. The Court rejected the latter argument, holding that the employer and the union are the primary parties to a CBA and any objection by either must be considered. Finding the public policy objection substantive, the Court declined registration and directed the parties to re-negotiate Clause 11(a) and report back within forty-five (45) days. No costs order was made.

Key legal issues

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01

Effect of an objection by an employer to registration of a CBA on public policy grounds

Holding

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.

Reasoning

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.

p. 2
02

Relevance of supervisory bodies' non-objection to registration of a CBA

Holding

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.

Reasoning

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.

p. 2
03

Relevance of pending litigation on the same subject matter to registration of a CBA

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The parties to re-negotiate Clause 11(a) of the CBA and report back to the Court within forty-five (45) days

Authorities

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Cases cited (2)

  • CBA Nos 1, 2 & 3 of 2020: Inter Public Universities Council Consultative Forum v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA), Universities Academic Staff Union (UASU) & Kenya Universities Staff Union (KUSU)
  • Malindi ELRC Petition No E004 of 2023
Jurisdiction invoked
Statutory jurisdiction to register a Collective Bargaining Agreement under the Labour Relations Act; not expressly cited in the judgment

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, "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.