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ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 22nd November 2022)· [2024] KEELRC 2581 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Brava Food Industries Limited (Cause E899 of 2022) [2024] KEELRC 2581 (KLR)

Employment and Labour Relations Court
24 October 2024
1,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant union sued the Respondent employer for refusal to negotiate a Collective Bargaining Agreement (CBA) pursuant to a Recognition Agreement executed on 23rd June 2020, which followed a judgment of Onyango J in ELRC Cause No 431 of 2019 directing execution of the Agreement. The union forwarded CBA proposals in May 2021, but the Respondent repeatedly deferred negotiations, citing need for more time and the ill health of a key director. A Conciliator appointed by the Minister for Labour recommended the parties embark on CBA negotiations. Meanwhile, the Respondent pursued de-recognition, filing a revocation application before the National Labour Board on 9th July 2020 - barely two weeks after executing the Recognition Agreement - without serving the union, and sought injunctive orders in ELRC Misc Application No E060 of 2022, which was struck out by Ocharo J on 20th January 2023. The Respondent maintained it had lost statutory simple majority under Section 54 of the Labour Relations Act. The Court held that the simple majority issue was res judicata, that the National Labour Board has no power to review decisions of the Court making its application a nullity, and that the Respondent's conduct amounted to abuse of process bordering on contempt. The Court ordered the parties to negotiate, conclude and present a duly executed CBA for registration within thirty days, and awarded the Claimant costs.

Key legal issues

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01

Duty to negotiate a CBA under Section 57 of the Labour Relations Act

Holding

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.

Reasoning

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.

p. 4
02

Res judicata on simple majority membership

Holding

The question of simple majority was already determined by a court of concurrent jurisdiction and could not be reopened.

Reasoning

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.

p. 4
03

Powers of the National Labour Board

Holding

The Board cannot review or revoke a Recognition Agreement so as to vary or quash a judgment of the Court.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.An order that the Respondent fully cooperate with the Claimant in negotiations (flowing from findings)
  3. 3.The Claimant to have the costs of the case

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 57(1) and (2)

Cases cited (3)

  • Bakery Confectionery Food Manufacturing and Allied Workers Union (K) v Brava Food Industries Limited
    ELRC Cause No 431 of 2019
  • Brava Food Industries Limited v Bakery Confectionery Food Manufacturing & Allied Workers Union (K) and National Labour Board
    ELRC Miscellaneous Application No E060 of 2022
  • Commercial Food & Allied Workers Union (K) v London Distillers Limited
    [2020] eKLR
Jurisdiction invoked
Labour Relations Act, Sections 54 and 57; Employment and Labour Relations Court jurisdiction over refusal to negotiate a Collective Agreement

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, "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.