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ELRCPartially AllowedCause No. 109 of 2005

KENYA SHOE & LEATHER WORKERS’ UNION v LEATHER INDUSTRIES OF KENYA LTD [2007] KEELRC 20 (KLR)

Industrial Court of Kenya at Nairobi
18 October 2007
CCCharles P. ChemmuttutOWO.A. WafulaJKJ.M. Kilonzo
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled night watchmen working 60-hour weeks were not owed overtime because their appointment letters' 45-hour term was legally invalid.

What this practically means

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Executive summary

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This Industrial Court award determines a trade dispute notified in June 2005 concerning the working hours of 22 night watchmen employed by Leather Industries of Kenya Ltd. The Union, through its Secretary General Joseph Bolo, claimed that the watchmen's letters of appointment since 1993 stipulated a 45-hour working week, yet the Company worked them 60 hours per week; it sought overtime for the pre-1999 period, before the grievants became paid-up Union members, quantifying each grievant's demand. The Company, through counsel Orao-Obura, opposed the demand, relying on Clause 10 of the successive collective agreements since 1988, which provided that watchmen would work 60 hours per week, and argued that the collective agreements varied the appointment letters. It also raised limitation and lack of particulars, and produced schedules showing most grievants were overpaid, with five grievants owed sums the Company undertook to pay. The Court held that under Section 5(2) of the Regulation of Wages (General) Order a night worker's normal week may be up to 60 hours, and under the Protective Security Services Order, 1998, guards' normal week is 52 hours. The grievants' hours never exceeded 60 and were lawful; the 45-hour term in their appointment letters was invalid as contrary to statute and the collective agreement. The Union's overtime demand was rejected, but the Company was ordered to pay the five grievants their admitted outstanding dues.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievants, night watchmen required to work 60 hours per week between 1993 and 1999, were entitled to overtime payment for hours worked beyond the 45 hours stated in their letters of appointment
  2. 2.Whether the 45-hour term in the appointment letters was valid in light of the statutory provisions and the parties' collective agreements
  3. 3.Which of the 22 grievants, if any, are owed outstanding dues by the Company

Key legal issues

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01

Whether the grievants were entitled to overtime for hours worked beyond the 45 hours stipulated in their letters of appointment

Holding

No. The 45-hour term was invalid; night watchmen could lawfully be worked up to 60 hours per week under the Regulation of Wages (General) Order and Clause 10 of the collective agreements.

Reasoning

Section 5(2) of the Regulation of Wages (General) Order fixes a 60-hour maximum week for night workers, and Clause 10 of the collective agreements since 1988 provided watchmen would work 60 hours per week. The appointment-letter term of 45 hours conflicted with both the statute and the collective agreement and was therefore invalid. The grievants never worked beyond 60 hours, so no overtime was due.

p. 4
02

Whether any grievants are owed outstanding dues

Holding

Five grievants (serial Nos. 1, 3, 5, 8 and 9) were owed amounts admitted by the Company, which undertook to pay them.

Reasoning

The Company's counsel produced summaries of schedule sheets showing that all grievants except five were overpaid, and the five named grievants were owed specific sums. The Company undertook to pay them, and the Court ordered payment. The Company also waived any refund of overpayments from the other grievants.

p. 3

Legal principles established

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  • Overtime allowance is payable only for extra work done beyond lawful maximum hours, not as a source of additional income.
  • A contractual term on working hours that contravenes statutory maxima and the applicable collective agreement is invalid and unenforceable.

Court orders

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  1. 1.The Union's demand for overtime payment for the grievants is rejected
  2. 2.The Company is ordered to pay the five grievants (Gangesia Dabalen, Ogicho Dogo, Thulelle Galgesa, Kmakar Malable and Ilgotoi Dabalen) their admittedly outstanding dues or entitlements as shown by the Company's schedule

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CC
majority

Wrote the judgment

OW
majority
JK
majority
Jurisdiction invoked
Section 14(7) and (9)(e) of the Trade Disputes Act, Cap. 234, Laws of Kenya

Relief refused

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Overtime payment for the 22 grievants for hours worked between 1993 and 1999 in excess of 45 hours per week

The statutory maximum for night workers was 60 hours per week and Clause 10 of the collective agreements allowed 60 hours for watchmen, so the hours worked were lawful and the 45-hour term in the appointment letters was invalid

p. 4

Costs

No order as to costs appears in the judgment; the award is silent on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The working hours for the grievants did not exceed 60 hours per week in any case, and were within the limits prescribed by the law. So they cannot be called excessive by any stretch of imagination and were strictly speaking not over-worked.
p. 4lawfulness of night watchmen's working hours
Overtime allowance is granted for extra work done, and not to serve as a source of additional income.
p. 3nature of overtime
we are of the considered opinion that the demand is not justified and the same is accordingly rejected. The Company is, however, ORDERED to pay the five grievants their admittedly outstanding dues or entitlements as shown at page 8 hereinabove.
p. 4final orders / disposition

Issues in the judgment

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minor

The record contains two slightly different descriptions of the Court's station and initial counsel appearances that are not internally reconciled

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 SHOE & LEATHER WORKERS’ UNION v LEATHER INDUSTRIES OF KENYA LTD [2007] KEELRC 20 (KLR)", Case Analysis (2007). Cause No. 109 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/20/eng@2007-10-18

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