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ELRCStruck OutNot stated in judgment· [2023] KEELRC 3470 (KLR)

Kenya Engineering Workers Union v Mabati Rolling Mills Limited (Cause E100 of 2023) [2023] KEELRC 3470 (KLR)

Employment and Labour Relations Court
7 December 2023
MMM. Mbarũ
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a union's bid to force an employer to reveal staff salaries because the union skipped a mandatory conciliation step first.

What this practically means

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Executive summary

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The claimant union filed a notice of application dated 11 September 2023 seeking interim orders compelling the respondent employer to produce the salaries of all management staff for December 2022 and July 2023, together with the wage bill and numbers of unionisable and management staff. The union claimed a CBA signed on 25 March 2019 had not been reviewed from the effective date of 1 January 2021 despite a clause 36 proposal, and alleged the respondent had raised management salaries by 10% while offering only 5% to unionisable staff. The respondent opposed, arguing that disputes over disclosure of information under Section 57(5) of the Labour Relations Act must first go to the Minister for conciliation, that the June 2023 referral to the Minister concerned only general wage increase and not documents, and that the information sought was confidential personal data of non-unionised staff whose disclosure would breach the Data Protection Act and Article 31 of the Constitution. The court identified one issue: whether the production orders should issue. It held the orders as couched engaged individual salary records with far-reaching implications, to be granted only in the clearest of cases, and that the claimant, having invoked Section 74 (which addresses recognition, redundancy and essential services) while relying on Section 57 grounds, had proceeded under the wrong provisions. For want of exhausting the Section 57(5) conciliation mechanism, the application, being premature, was struck out, with costs to abide the outcome of the main claim.

Key legal issues

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01

Whether the interim orders for production of salary records and wage bills should issue

Holding

No - the application was premature as the claimant had not exhausted the Section 57(5) LRA conciliation mechanism, and the application was anchored on the wrong provisions (Section 74 rather than Section 57)

Reasoning

The orders sought concerned CBA negotiation disclosure under Section 57, yet the claimant invoked Section 74 which addresses recognition, redundancy and essential services disputes. Individual salary records engage privacy under Article 31 of the Constitution and the Data Protection Act, and such far-reaching orders require the Section 57(4) exceptions to be interrogated first, a function for the Minister in conciliation. The balance of convenience favoured the respondent.

p. 4
02

Whether production of individual salary records is appropriate where data subjects have not consented

Holding

Such orders engage privacy rights and the Data Protection Act and should only issue after the statutory exceptions and privacy protections are considered

Reasoning

The court noted that Section 57(4) LRA protects information that is privileged, prohibited by law, harmful if disclosed, or private personal information absent employee consent. Article 31 of the Constitution protects privacy and the Data Act governs processing of sensitive personal data. These must be accounted for before salary records of non-unionised management staff are produced.

p. 4

Legal principles established

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  • Orders for production of individual salary records of management staff have far-reaching implications and must only be made in the clearest of cases
  • A dispute over disclosure of information under Section 57 of the LRA must first be referred to the Minister for conciliation under Section 57(5) before resorting to the court
  • An applicant who moves the court under the wrong provisions without sufficient correlated facts in support cannot obtain interim relief

Court orders

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  1. 1.Application dated 11 September 2023, being premature, is struck out
  2. 2.Costs shall abide the outcome of the main claim

Authorities

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Legislation

  • Labour Relations Act, 2007Section 57(1)-(6)
  • Labour Relations Act, 2007Section 62
  • Labour Relations Act, 2007Section 62(4)
  • Labour Relations Act, 2007Section 74
  • Data Protection ActNot specified
  • Constitution of Kenya, 2010Article 31

Cases cited (1)

  • Mwanzia v Rhodes
    (Constitutional Petition E115 of 2022) [2023]
Jurisdiction invoked
Sections 57, 62 and 74 of the Labour Relations Act, 2007

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 Engineering Workers Union v Mabati Rolling Mills Limited (Cause E100 of 2023) [2023] KEELRC 3470 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3470/eng@2023-12-07

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