Kenya Aviation Workers Union v Kenya Airports Authority & another [2021] KEELRC 1376 (KLR)
The bottom line
#Kenya's Employment Court confirmed the Salaries and Remuneration Commission can shape pay deals at state corporations, but only if consulted before—not after—negotiations end.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the employees of the 1st Respondent are state or public officers whose remuneration falls within the mandate of the Salaries and Remuneration Commission under Article 230 of the Constitution
- 2.Whether the 2nd Respondent had authority or locus standi to advise on, set or review the remuneration and benefits of the 1st Respondent's employees and to interfere with the CBA negotiated between the parties
- 3.Whether the 1st Respondent's downward variation of the agreed basic pay increments after the agreement of 8th August 2019 amounted to unfair labour practice contrary to Article 41(2)
- 4.Whether certiorari should issue to quash the 2nd Respondent's letters of 14th August 2019, 20th August 2019 and 13th December 2019 and the 1st Respondent's Board decision
- 5.Whether the CBA agreed on 8th August 2019 should be executed and registered as agreed
Key legal issues
#Whether Kenya Airports Authority is a state organ and its employees public officers for purposes of Article 230
KAA, as a government-owned enterprise running national airports, fits within the definition of a state organ and its workers are paid from the public purse, so their remuneration falls within SRC's mandate
The court reasoned that KAA is a government owned enterprise that runs, maintains and operates national airstrips and airports, and its workers are paid out of money collected by the exchequer. On that basis the remuneration of the employees is within the purview of the Salaries and Remuneration Commission notwithstanding the authorities cited by the Petitioner on state corporations.
Timing of SRC's advisory role in CBA negotiations
SRC's interposition must be part and parcel of negotiations from the onset, not after conclusion; the parties' conduct of negotiating first and seeking advice later was improper
The court held that while SRC has a role in determining salaries, its advisory should be sought before the conclusion of negotiations. Raising hopes through agreement and then dashing them by post-agreement SRC recommendations was described as despicable, but the remedy was prospective: future CBA cycles must include SRC input prior to registration.
Legal principles established
#- SRC advisory must be sought before conclusion of CBA negotiations, not after the parties have agreed
- State corporations' employees paid from the exchequer fall within SRC's remuneration mandate
Court orders
#- 1.The Petition is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 and Article 162(2) of the Constitution (labour and employment relations jurisdiction of the ELRC)
Relief refused
#Declaration that KAA employees are not state/public officers and that SRC lacks locus over their remuneration
The court found KAA is a state organ whose workers are paid from the public purse, placing them within SRC's purview
Declarations that the variation of agreed CBA terms was an unfair labour practice and unconstitutional
Though the court criticised the timing of SRC's intervention, no finding of unfair labour practice was made against the Respondents; the Petition was dismissed in its entirety
Orders of certiorari quashing the SRC letters and the Board's decision, permanent injunction, and an order for execution and registration of the CBA as agreed
Not granted as the Petition failed; the court instead directed that SRC input precede conclusion of future CBAs
Costs
No order as to costs
Quotable passages
#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 Kenya Airports Authority is a government owned enterprise that runs, maintains and operates the national airstrips and airports both international and local. As such it fits within the definition of a state organ.
The remuneration of workers of the 1st Respondent therefore falls within the purview of the Salaries and Remuneration Commission as they are paid out of money collected by the exchequer or in other words, they are paid out of the public purse.
the interposition of SRC is never intended to be after the negotiations. It must be part and parcel of the negotiations and advisory should be sought before the conclusion of the negotiations.
In the premises, given the foregoing, the Petition is dismissed with no order as to costs.
Issues in the judgment
#Internal tension: the court treats KAA as a state organ whose employees fall under SRC, while authorities cited by the Petitioner (and the court's own criticism of SRC's post-agreement intervention) point the other way; the reasoning bridging the two positions is thin
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Kenya Airports Authority & another [2021] KEELRC 1376 (KLR)", Case Analysis (2021). Petition dated 2nd April 2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1376/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.