Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –St. Mary’s Mumias Girls High School (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 2531 (KLR)
The bottom line
#A Kenyan court blocked an employer from cutting negotiated termination notice benefits, ruling that reducing existing CBA gains is an unfair labour practice.
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 Respondent should abide by the negotiated and agreed terms of the parties' CBA on termination clause without retrogressing the same
- 2.Whether the Respondent should pay costs of the suit
- 3.Whether the court should compel the retention of the terms of clause 6 (i) to (iii) of 2016-2017 CBA where the proposed new terms of CBA are retrogressive
Key legal issues
#Whether the court should compel retention of the more favourable termination notice terms of the outgoing CBA where the proposed new terms are retrogressive
Yes - the respondent's proposal to reduce notice to one month across the board was an unfair labour practice; the existing superior terms of clause 6 of the 2016-2017 CBA are to be retained in the new CBA
The registered CBA was incorporated into employment contracts under section 59(3) of the Labour Relations Act, and its termination notice terms (2, 3 or 5 months' pay in lieu depending on service) were more favourable than the 28-day statutory minimum under section 35(1)(c) of the Employment Act. Following Kenya Tea Growers Association, the court, on deadlock after conciliation, adjudicates the dispute and may adopt the previously negotiated terms. Reducing accrued gains was retrogressive and an unfair labour practice.
The role of the ELRC where parties reach deadlock in CBA negotiations after conciliation
The ELRC adjudicates the trade dispute, including the disagreement over CBA terms, but must exercise its power judiciously and not substitute its preference for the parties' freedom of agreement
Article 162(2)(a) and the LRA (sections 62-73, Part IX) establish a mechanism whereby unresolved trade disputes are referred to the ELRC for adjudication. The Court of Appeal in Kenya Tea Growers Association held the court may issue terms more favourable than statutory minima, but judicially and case by case, respecting collective bargaining's voluntary nature.
Legal principles established
#- Where parties to CBA negotiations reach a deadlock, the ELRC is tasked with adjudicating the trade dispute, including the disagreement over the terms of the CBA
- A registered CBA is incorporated into the contracts of employment of covered employees and is binding and enforceable upon registration
- Where the terms of a contract of service agreed in a CBA are more favourable than the statutory minimum, the favourable terms apply
- Where parties are unable to agree on the terms of a new CBA, the court may uphold the previously negotiated terms of the outgoing CBA, without substituting its preference for the parties' freedom to agree
Court orders
#- 1.The parties to retain the existing terms under clause 6 (a)(i, ii & iii) of the outgoing CBA 2016-2017 into the new CBA
- 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 162(2)(a) of the Constitution; ELRC Act; Labour Relations Act, 2007 Parts VIII and IX (Section 73(1))
Relief refused
#Costs of the suit awarded to the claimant
Court followed the Court of Appeal approach on costs in employment disputes and made no order as to costs
Costs
No order as to costs - each party to bear its own 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 Court in resolution of the dispute Orders the parties to retain the existing terms under clause 6 (a)(i, ii &iii)of the outgoing CBA 2016-2017 into the new CBA.
The Court holds that the proposal by the respondent for one month notice or payment in lieu which is inferior to existing terms under clause 6 (i,ii and iii) in the 2016-2017 CBA amounts to unfair labour practice.
The court then consequently holds that it was unfair labour practice to reduce the notice period across the board in the proposed new CBA negating gains under the outgoing CBA.
the learned Judge had no basis for reviewing the retirement age as had been agreed to by the parties in the previous CBA.
this being an employment dispute I make no order as to costs.
Issues in the judgment
#Judgment inconsistently refers to the new CBA period as '1st October 2021 to 31st September 2023', a date that does not exist; likely means 30th September 2023
Clause 6(a)(i) of the CBA quotes '2 months pay in lieu of notice' for less than five years while the claim elsewhere describes notice periods as 'three months, four months and five months respectively'
The claimant union is not expressly named in the text reproduced; it is described only by its registration scope
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –St. Mary’s Mumias Girls High School (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 2531 (KLR)", Case Analysis (2023). ELRC Cause (Kakamega), Statement of Claim dated 11th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2531/eng@2023-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.