Kenya Petroleum Oil Workers Union v Kenya Pipeline Company Limited & another (Cause E954 of 2022) [2024] KEELRC 1511 (KLR)
The bottom line
#Kenya's Employment Court ruled that the Salaries and Remuneration Commission's advice binds State corporations, so a union could not register its CBA without SRC approval.
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 2nd Respondent has the mandate to take away the parties' right to collectively bargain
- 2.Whether the 2nd Respondent's advice that its approval is binding is counter to Article 41(5) of the Constitution and ILO Convention No. 98
- 3.Whether the 2nd Respondent's circular dated 14th October 2019 regulating collective bargaining is devoid of legal effect
- 4.Whether the CBA executed on 16th September 2022 ought to be registered notwithstanding the 2nd Respondent's refusal of approval
- 5.Whether employees in service at the time of execution of the CBA should benefit from it
Key legal issues
#Whether the 2nd Respondent's advice on remuneration binds State corporations in collective bargaining
The advice is mandatory and binding, following the Court of Appeal in Teachers Service Commission v KNUT and subsequent decisions
The Court relied on a catena of recent Court of Appeal decisions restating the TSC v KNUT position. A constitutional provision cannot contain mere unenforceable advice. As the law stands, the 2nd Respondent's advice binds all, effectively making it the decision-maker on public service terms and conditions. The Court, lower in the judicial hierarchy, could not depart from those binding pronouncements.
The effect of Article 230 of the Constitution on the right to collective bargaining under Article 41(5) and ILO Convention No. 98
The Court expressed strong obiter concern that the broad application of Article 230 has effectively extinguished free collective bargaining in the public service
While bound to decline the claim, the Court observed that Article 230, broadly applied, has made the 2nd Respondent's advice binding on all, converting its advisory role into a decision-making mandate. Trade unions in the public service have been rendered moot; the bargaining process is directed by a third party. The Court urged that these weighty constitutional questions be settled at the highest judicial level.
Legal principles established
#- The advice of the 2nd Respondent (the constitutional commission on remuneration) is mandatory and binding, not a mere opinion
- An Employment and Labour Relations Court cannot disregard the binding advice of the 2nd Respondent and register a CBA executed contrary to that advice
Court orders
#- 1.The Claim is declined.
- 2.No order on the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution; claim determined under Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016 by agreement of the parties
Relief refused
#Declaration that the 2nd Respondent lacks mandate to take away the right to collectively bargain
Bound by Court of Appeal decisions that the 2nd Respondent's advice is mandatory and binding
Declaration that the 2nd Respondent's circular dated 14th October 2019 is devoid of legal effect
The Court held it is not positioned in the judicial hierarchy to rule on the validity of the circular in light of Court of Appeal decisions upholding the 2nd Respondent's role
Registration of the CBA executed 16th September 2022
The Court cannot sidestep the 2nd Respondent whose advice is mandatory and binding
Order compelling the Respondents to allow all employees in service at execution of the CBA to benefit from it
Claim declined in its entirety
Costs
No order on the 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 position is that, the advice given by the 2nd Respondent, is mandatory and binding. A Constitution, the Court of Appeal states, cannot contain mere advice, incapable of enforcement. The advice is binding and not merely an opinion.
This Court cannot assist the Claimant, by sidestepping the 2nd Respondent, and granting the orders for registration of the CBA executed between the Claimant and the 1st Respondent.
Article 230 of the Constitution whatever its noble intention was, has resulted in the death of the right of collective bargaining in the public service, as known to Article 41 [5] of the Constitution and ILO Convention 98.
The 2nd Respondent is the antithesis of the right to collectively bargain, as envisaged under Article 41[5] of the Constitution and ILO Convention No. 98.
In light of the decisions of the Court of Appeal on the subject matter, the Court is not able to accede to the prayers sought by the Claimant.
The Claim is declined. No order on the costs.
Issues in the judgment
#The judgment does not print the names of the parties or the case number on its face; parties are identified only descriptively
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Kenya Pipeline Company Limited & another (Cause E954 of 2022) [2024] KEELRC 1511 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1511/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.