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ELRCDismissedPetition dated 2nd April 2020 (ELRC, Nairobi)

Kenya Aviation Workers Union v Kenya Airports Authority & another [2021] KEELRC 1376 (KLR)

Employment and Labour Relations Court
2 June 2021
5,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Kenya Aviation Workers Union petitioned the ELRC on behalf of unionisable employees of the Kenya Airports Authority (KAA), challenging the involvement of the Salaries and Remuneration Commission (SRC) in CBA negotiations. The Union had negotiated a fresh CBA for 2016–2019, agreed on 8th August 2019, providing basic pay increments of 7%, 7%, 2% and 2%. KAA refused to execute, having referred the CBA to SRC, which directed renegotiation within set parameters; the Board varied the increments downwards to a uniform 6%. The Union sought declarations that KAA's employees are not state or public officers, that SRC lacks locus over their remuneration, that the post-agreement variation was an unfair labour practice, orders of certiorari quashing SRC's letters of 2019 and the Board's decision, a permanent injunction, and an order for execution and registration of the CBA as agreed. KAA defended its compliance with SRC guidelines and invoked estoppel; SRC asserted its constitutional mandate under Article 230 and reliance on Article 259(1). After written submissions, the court held that KAA is a government-owned enterprise fitting the definition of a state organ, and its workers are paid from the public purse, placing their remuneration within SRC's purview. However, the court criticised the timing of SRC's intervention, holding that SRC advisory must be sought before conclusion of negotiations, not after. The Petition was dismissed with no order as to costs, with a direction that future CBA cycles include SRC input prior to registration.

Questions the Court framed

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

  1. 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. 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. 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. 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. 5.Whether the CBA agreed on 8th August 2019 should be executed and registered as agreed

Key legal issues

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01

Whether Kenya Airports Authority is a state organ and its employees public officers for purposes of Article 230

Holding

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

Reasoning

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.

p. 5
02

Timing of SRC's advisory role in CBA negotiations

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 41 and Article 162(2) of the Constitution (labour and employment relations jurisdiction of the ELRC)

Relief refused

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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

p. 5

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

p. 5

Costs

No order as to 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 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.
p. 5Status of KAA as 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.
SRC mandate over KAA employees' remuneration
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.
p. 5Timing of SRC advisory
In the premises, given the foregoing, the Petition is dismissed with no order as to costs.
p. 5Disposition

Issues in the judgment

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minor

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

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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 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.