Kenya National Private Security Workers Union v Wellsfargo Limited [2020] KEELRC 17 (KLR)
The bottom line
#A Kenyan court refused to rewrite a registered collective bargaining agreement, confirming unions are bound by CBAs they negotiated and consented to register.
What this practically means
#Executive summary
#Key legal issues
#Sanctity and binding effect of a registered CBA
The CBA registered on 23rd July, 2020 by consent is binding on both parties, including the applicant, and its terms must be implemented for its duration
Under sections 59(1), 59(3) and 59(5) of the Labour Relations Act, a collective agreement binds the parties, its terms are incorporated into employment contracts, and it becomes enforceable upon registration. The CBA here followed a long process of negotiation, referral to the Minister, and consented registration in court, including the applicant's own written request for registration. The applicant was represented in negotiations and consented before the court.
Whether the court can vary registered CBA overtime terms to conform with the Wage Order
No; even where wording differs from the Wage Order, the court cannot alter the terms of a CBA registered with the consent of the parties
The applicant compared clause 9(2) of the CBA with the Regulation of Wages (Protective Security Services) Order 1998 formula. The court found the CBA terms in fact related to the applicable Wage Orders and, in any event, altering them would circumvent the fundamental principles under Article 41 and sections 59 and 60 of the Labour Relations Act providing for the right to negotiate and register a binding CBA. Any dispute on terms must go through the agreed dispute resolution mechanism.
Whether the consented registration of the CBA can be set aside
The applicant did not meet the conditions for setting aside a consent, such as fraud, mistake or duress
The court traced the registration history: objections on 9th and 24th October, 2019, referral to the Minister, conciliation, and finally the applicant's own letter of 29th June, 2020 requesting urgent registration, on which date the parties by consent confirmed registration. The applicant's challenge amounted to an attempt to set aside a consent without establishing fraud, mistake or duress, applying ordinary contractual principles.
Legal principles established
#- A registered collective agreement binds the parties to it and is enforceable and shall be implemented upon registration
- A CBA, like any contract, may only be set aside on established principles such as fraud, mistake, duress or misrepresentation
- The court cannot suo motu alter the terms of a registered CBA
Court orders
#- 1.The application dated 25th September, 2020 is dismissed
- 2.No orders on costs
- Jurisdiction invoked
- Labour Relations Act, 2007 (registration and enforcement of collective agreements; sections 59 and 60)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v Wellsfargo Limited [2020] KEELRC 17 (KLR)", Case Analysis (2020). Application and Notice of Motion dated 25th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/17/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.