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ELRCOtherNairobi ELRC Cause No. E229 of 2022· [2024] KEELRC 1768 (KLR)

Transport Workers Union Kenya v Etihad Airways Pjsc (Cause E229 of 2022) [2024] KEELRC 1768 (KLR)

Employment and Labour Relations Court
8 July 2024
JGJACOB GAKERI
2,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to impose CBA terms on Kenya Airways and the union, ordering them back to the negotiating table within 60 days.

What this practically means

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Executive summary

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The Claimant union sued under a Memorandum of Claim dated 11th April 2022 alleging failure of joint negotiations on a CBA with the Respondent, seeking a declaration that the union's position was merited on eight contested clauses including transport allowance, sick leave, severance pay, house allowance, leave travelling allowance, termination, salary increment and the effective date. The Respondent denied the union's majority status, challenged the Recognition Agreement under Section 54 of the Labour Relations Act, 2007, and offered its own lower figures. The court framed two issues: the validity of the Recognition Agreement and whether the court should intervene in the negotiations. It held the Recognition Agreement, signed on 2nd December 2019, remained in force since neither party had sought its termination or revocation, and the respondent's claim of falling membership was unsupported. On intervention, the court relied on Court of Appeal authority that CBAs are voluntary agreements which courts may fix only sparingly and without substituting the parties' preferences. Noting the Conciliator issued no certificate of unresolved dispute, the CPPMD report was incomplete because the Respondent withheld financial statements, and the parties had not engaged the recommendations together, the court declined to impose terms on any clause, merely noting guidance where it appeared (e.g. leave travelling allowance at Kshs.20,000/=, default to Employment Act severance minima). It ordered the parties to re-negotiate the draft CBA and lodge it with the Cabinet Secretary for registration within 60 days, with each party bearing its own costs.

Key legal issues

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01

Validity of the Recognition Agreement

Holding

The Recognition Agreement remains valid and binding; no party sought its termination or revocation under Section 54(5), and the respondent's claim that only 4 union members remained was unsupported by evidence.

Reasoning

Section 54 obliges an employer to recognise a union representing a simple majority. Termination or revocation of a recognition agreement requires an application to the Board under Section 54(5). Neither party made such an application, so the agreement signed on 2nd December 2019 stands. The respondent's bare assertion of falling membership was unproven.

p. 3
02

Whether the court should impose CBA terms on the parties

Holding

The court declined to impose terms; it directed the parties to re-negotiate the six contested clauses and lodge the CBA for registration within 60 days.

Reasoning

A CBA is a voluntary agreement under Section 2 of the Labour Relations Act; only a union and employer can make it. The Court of Appeal in Teachers Service Commission and Kenya Tea Growers confirms courts may intervene sparingly without substituting their preferences. The absence of a certificate of unresolved dispute, the incomplete CPPMD report (no financial statements) and the parties' non-engagement left the court unguided.

p. 4

Legal principles established

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  • A CBA is a voluntary agreement between a trade union and employer; the court's role is to register it and ensure observance, not to negotiate or dictate its terms, though it may intervene sparingly and judiciously where parties fail to agree.
  • In wage-increment disputes a court should consider productivity, cost of living and ability to pay.
  • A recognition agreement remains in force unless cancelled or revoked through the prescribed process; a party alleging loss of majority must prove it.

Court orders

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  1. 1.Parties to re-negotiate the draft CBA, agree on the contested issues and lodge the same with the Cabinet Secretary for purposes of registration within 60 days.
  2. 2.Parties shall bear their own costs.

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54 (and 54(4), 54(5))
  • Labour Relations Act, 2007Section 2 (definition of collective agreement)
  • Labour Relations Act, 2007Sections 57(2) and 57(3)
  • Employment Act, 2007Section 40
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (4)

  • Kenya Quarry & Mine Workers Union V Mineral Enterprises Ltd
    ELRCC No. E891 of 2022
  • Teachers Service Commission V Kenya National Union of Teachers & 3 others
    (2018) eKLR
  • Amalgamated Union of Kenya Metals Workers V Kenya Vehicles Manufacturers Ltd
    (2018) eKLR
  • Kenya Tea Growers Association V Kenya Plantation & Agricultural Workers Union
    (2018) eKLR
Jurisdiction invoked
First-instance dispute over CBA negotiations referred to the Employment and Labour Relations Court under 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, "Transport Workers Union Kenya v Etihad Airways Pjsc (Cause E229 of 2022) [2024] KEELRC 1768 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. E229 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1768/eng@2024-07-08

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