Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Brava Food Industries Limited (Cause E899 of 2022) [2024] KEELRC 2581 (KLR)
The bottom line
#Kenya's Employment Court ordered Brava Food Industries to negotiate a collective agreement with the recognised union within 30 days, ruling employers cannot dodge that duty.
What this practically means
#Executive summary
#Key legal issues
#Duty to negotiate a CBA under Section 57 of the Labour Relations Act
The Respondent, having executed a Recognition Agreement, was bound to negotiate and conclude a CBA; its persistent stalling was unlawful and abusive of the court process.
The Recognition Agreement was executed on 23rd June 2020 pursuant to a judgment of Onyango J. The Respondent repeatedly deferred negotiations citing various reasons while simultaneously pursuing de-recognition before the National Labour Board without serving the Union. Section 57 imposes a duty on a recognising employer to conclude a CBA. The Respondent's conduct defeated a valid court order and amounted to abuse of process bordering on contempt.
Res judicata on simple majority membership
The question of simple majority was already determined by a court of concurrent jurisdiction and could not be reopened.
The Respondent argued it had lost statutory simple majority under Section 54 of the Labour Relations Act, entitling it to de-recognise the Union. The Court held that simple majority had been determined in ELRC Cause No 431 of 2019, which directed execution of the Recognition Agreement. The Respondent could not, through the National Labour Board, effectively seek to set aside that judgment.
Powers of the National Labour Board
The Board cannot review or revoke a Recognition Agreement so as to vary or quash a judgment of the Court.
The Respondent lodged a revocation application before the National Labour Board barely two weeks after executing the Recognition Agreement, without serving the Union. Relying on Ocharo J's ruling striking out a similar attempt, the Court held the Board is subordinate to the Court and has no power to review its decisions; the pending application and proceedings before the Board were a nullity.
Legal principles established
#- The National Labour Board has no power to review decisions of the Employment and Labour Relations Court; any such proceedings before it are a nullity.
- Once simple majority has been determined by a court of competent jurisdiction, the issue is res judicata and the employer cannot reopen it through a de-recognition process.
- An employer that has recognised a trade union is under a statutory duty to conclude a Collective Agreement with the recognised union.
Court orders
#- 1.An order directing the parties to negotiate, conclude and present a duly executed CBA for registration by the Court within thirty (30) days from the date of the judgment
- 2.An order that the Respondent fully cooperate with the Claimant in negotiations (flowing from findings)
- 3.The Claimant to have the costs of the case
- Jurisdiction invoked
- Labour Relations Act, Sections 54 and 57; Employment and Labour Relations Court jurisdiction over refusal to negotiate a Collective Agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Brava Food Industries Limited (Cause E899 of 2022) [2024] KEELRC 2581 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 22nd November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2581/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.