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ELRCAllowedNot stated in judgment (Memorandum of Claim dated November 16, 2021)· [2023] KEELRC 2870 (KLR)

Banking Insurance & Finance Union (Kenya) v Access Bank (Kenya) PLC (Employment and Labour Relations Cause E948 of 2021) [2023] KEELRC 2870 (KLR)

Employment and Labour Relations Court
2 November 2023
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Access Bank must pay its unionised staff salary and allowance increases under the 2021 banking CBA, plus arrears, despite an earlier settlement.

What this practically means

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Executive summary

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The Claimant, a trade union representing employees in the banking and insurance sector with a recognition agreement with the Kenya Bankers Association, sued the Respondent bank for failing to implement the CBA dated August 19, 2021 and registered by the Court on September 22, 2021. It sought orders compelling the Respondent to pay unionisable employees a 4% salary increment effective March 1, 2020, a further 3% effective March 1, 2021, and a 6% increase on all allowances, with arrears. The Respondent opposed, relying on a consent dated March 16, 2021 reached in conciliation of an earlier dispute, under which it was to harmonise salaries with the 2019 CBA in three instalments by February 2023, and argued that the later CBA did not vary the consent and that implementing it would amount to unjust enrichment. The court framed a single issue: whether the Respondent was bound to implement the 2021 CBA in addition to the consent. Holding that the Respondent was bound by the CBA as a member bank listed in Appendix 'A', and that the consent concerned only the 2019 CBA's benefits while the suit concerned the later CBA, which did not exist when the consent was signed, the court found merit in the claim. It directed the Respondent to compute and pay the increments with arrears, in addition to amounts due under the consent, with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent is bound to implement the CBA dated August 19, 2021 in addition to the consent dated March 16, 2021

Holding

The consent related only to the earlier 2019 CBA; the Respondent is separately obligated to implement the subsequent 2021 CBA.

Reasoning

The consent of March 16, 2021 resolved a dispute over the CBA dated September 10, 2019 and its harmonisation schedule covered the period to February 2021 with a wage reopener. The suit is based on the later CBA dated August 19, 2021, which did not exist when the consent was signed and is therefore not covered by it. The two instruments cover different benefits under different agreements, with different entry points and sliding scales.

p. 6
02

Whether the Respondent, as a member of the Kenya Bankers Association, is bound by the CBA negotiated between the Claimant and the Association

Holding

Yes; the Respondent is bound by virtue of Appendix 'A' to the CBA listing member banks.

Reasoning

The Respondent is a member of the Kenya Bankers Association and appears at No. 1 on the list of member banks in Appendix 'A' to the CBA. Under section 59 of the Labour Relations Act, a collective agreement binds employers who are members of an employers' organisation party to the agreement, and its terms are incorporated into the contracts of employment of covered employees. It becomes enforceable upon registration.

p. 4

Legal principles established

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  • A collective agreement becomes enforceable and binding upon registration by the Industrial Court, and binds employers who are members of the employers' organisation party to the agreement.

Court orders

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  1. 1.The Respondent be and is hereby directed to immediately compute and pay all the unionisable employees of the bank who are covered by the CBA a 4% salary increment with effect from March 1, 2020 and a further 3% salary increment effective 1st March, 2021 together with ensuing arrears
  2. 2.The Respondent is directed to immediately compute and pay all unionisable employees covered by the CBA 6% increment on all the allowances as contained in the CBA from 1st March 2020 together with ensuing arrears
  3. 3.The above payments will be in addition to the payments due and payable under the consent between the parties signed on March 16, 2021
  4. 4.Each Party shall bear its costs of this suit

Authorities

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Legislation

  • Labour Relations ActSection 59
  • Labour Relations ActSection 59(5)
  • Labour Relations ActSection 60(5)
  • Labour Relations ActSection 49
  • Constitution of KenyaArticle 41(5)
  • Civil Procedure ActSection 27
  • Banking Actnull

Cases cited (7)

  • Flora N. Wasike v Destimo Wamboko
    (1982-88) IKAR 625
  • Teachers Service Commission v Kenya National Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited
    [2015] eKRL
  • Kuwinda Rurinja Co. Limited v Andkuwinda Holdings Limited & 13 Others
    [2019] eKLR
  • Purcell v F.C. Trigell Ltd
    [1970] 2 All ER 671
  • Samuel Kamu Macharia v Kenya Commercial Bank. Kenya Commercial Finance Company Limited
    [2003] eKLR
  • Peter Munila Ngure v Equity Bank
    [2018] eKLR
Jurisdiction invoked
Section 59(5) and Section 60(5) of the Labour Relations Act, No. 14 of 2007 and Article 41(5) of the Constitution of Kenya

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, "Banking Insurance & Finance Union (Kenya) v Access Bank (Kenya) PLC (Employment and Labour Relations Cause E948 of 2021) [2023] KEELRC 2870 (KLR)", Case Analysis (2023). Not stated in judgment (Memorandum of Claim dated November 16, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2870/eng@2023-11-02

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