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ELRCOtherNot stated in the judgment as provided

Kenya Ferry Services Limited v Dock Workers Union [Ferry Branch] [2014] KEELRC 61 (KLR)

Industrial Court of Kenya
15 December 2014
JRJames Rika
2,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot use SRC salary regulations to escape collective bargaining agreements already signed with unions.

What this practically means

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Executive summary

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The Kenya Ferry Services Limited, the Claimant Employer, sought directions from the Industrial Court at Mombasa on whether its claim against the Dock Workers Union should proceed, in light of circulars from the Salaries and Remuneration Commission advising that CBAs involving Public Officers should be reviewed every 4 years rather than the 2-year cycle in the parties' 2011 Recognition Agreement. Negotiations commenced in October 2013 on the 2-year basis, deadlocked in conciliation in June 2014, and the Claimant filed suit in August 2014 alleging the Union incited members to unlawful strike action; the Court had already barred industrial action pending determination. The Claimant argued its employees are Public Officers bound by SRC Regulations and that the KUDHEIHA High Court decision clarified the SRC's mandate. The Union opposed, contending the Labour Relations Act governs collective bargaining, the Recognition Agreement's 2-year cycle stands, and the SRC's role is advisory only. Judge James Rika held that the Labour Relations Act 2007 is the primary legislation on collective bargaining and cannot be amended by subsidiary legislation under another Act; the Recognition Agreement's 2-year cycle remains binding; the SRC advises Public Service Employers but cannot bind Trade Unions, and once a dispute reaches Court it becomes litigation in which the SRC may participate only as witness or interested party. The Court found the Claimant was delaying its own dispute and directed that the Claim proceed as filed or, alternatively, be withdrawn with interlocutory orders lifted.

Questions the Court framed

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

  1. 1.Whether the Court should give directions on the continuation of the Claim in light of the SRC circulars advising a 4-year CBA cycle
  2. 2.Whether the Ferry Workers are Public Servants subject to the SRC Regulations
  3. 3.Whether the 2-year cycle in the Recognition Agreement or the 4-year cycle under the SRC Regulations should govern CBA negotiations

Key legal issues

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01

Whether the 2-year or 4-year CBA cycle should govern the parties

Holding

The 2-year cycle in the Recognition Agreement governs; SRC Regulations cannot be read into the Recognition Agreement

Reasoning

The Recognition Agreement concluded in 2011 binds the parties to a 2-year review cycle. It has not been terminated or modified by mutual agreement. The Court cannot read clauses into it outside the Labour Relations Act, and the SRC Regulations being subsidiary legislation under another Act cannot override the primary legislation governing collective bargaining.

p. 4
02

Whether the Ferry Workers are Public Officers subject to SRC mandate

Holding

The Workers render public service and are characterized as Public Officers per the KUDHEIHA decision

Reasoning

Relying on the High Court decision in KUDHEIHA v SRC and the NUWASE v Mathira Water decision, the Court accepted the Workers are Public Officers whose Employer must take SRC advice in collective bargaining. However, failure to take such advice cannot prejudice the Employees' right to collective bargaining or delay settlement of the dispute.

p. 3
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Role of the SRC once a dispute is in litigation

Holding

The SRC could only come in as a Witness or an Interested Party

Reasoning

Once disagreement in negotiations was registered and the dispute brought to Court, the process ceased to be collective bargaining and became litigation. The SRC is an advisory mechanism and additional safeguard under Article 230, but not a replacement for collective bargaining in the public sector.

p. 4

Legal principles established

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  • The Labour Relations Act 2007 is the primary legislation governing collective bargaining in both private and public sectors and cannot be amended through subsidiary legislation from another Act
  • Once a dispute reaches the Court it becomes litigation determinable under the Labour Relations Act and Industrial Court Act, not a negotiation process
  • Modification or termination of a Recognition Agreement can only be done in terms of the Agreement and Section 54 of the Labour Relations Act
  • The SRC is an advisory mechanism for Public Service Employers and cannot bind Trade Unions

Court orders

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  1. 1.The Claimant shall proceed with its Claim as drawn, amended and filed
  2. 2.In the alternative, the Claim should be withdrawn and subsisting interlocutory orders lifted

The bench

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

JR
majority

Wrote the judgment

Jurisdiction invoked
Industrial Court Act 2011, Section 3, and Industrial Court (Procedure) Rules 2010, Rule 16

Relief refused

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Directions to postpone/restart the CBA process based on SRC advice

The Court found the Claimant was delaying the dispute it initiated to avoid concluding collective bargaining

p. 3

Costs

No costs order made in the judgment as provided

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.

IT IS ORDERED: [a] The Claimant shall proceed with its Claim as drawn, amended and filed. [b] In the alternative, the Claim should be withdrawn and subsisting interlocutory orders lifted.
p. 5Final orders
The Labor Relations Act 2007, is the primary Legislation governing collective bargaining, in both the private and public sectors, and cannot be amended through subsidiary legislation originating from another Act of Parliament.
p. 4Hierarchy of legislation in collective bargaining
Trade Unions are not bound by the advice of the SRC. The SRC is properly a mechanism created to advise Public Service Employers, in their engagement with the Trade Unions.
p. 4SRC advisory role
The SRC is a welcome additional safeguard, entrenched in the Constitution under Article 230. It must not however be taken as a replacement for the Institution of Collective Bargaining in the Public Sector.
p. 5Balance between fiscal oversight and labour rights

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 Ferry Services Limited v Dock Workers Union [Ferry Branch] [2014] KEELRC 61 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/61/eng@2014-12-15

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