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ELRCDismissedNot stated in the judgment as provided

Kenya Petroleum Oil Workers Union v Kenya Pipeline Company Limited & another (Cause E954 of 2022) [2024] KEELRC 1511 (KLR)

Employment and Labour Relations Court
14 June 2024
1,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a trade union in the petroleum, oil and gas industries, sued the 1st Respondent (its employer, a State petroleum transport and storage corporation) and the 2nd Respondent (the constitutional commission on remuneration) after the 2nd Respondent refused approval of a CBA executed on 16th September 2022. The Claimant sought declarations that the 2nd Respondent lacked mandate to extinguish the right to collectively bargain, that its binding advice contravened Article 41(5) of the Constitution and ILO Convention No. 98, that its circular of 14th October 2019 was of no legal effect, registration of the CBA, and an order that all serving employees benefit from it. After conciliation failed, the parties agreed the claim be determined on documents under Rule 21 of the ELRC (Procedure) Rules, 2016. The 1st Respondent defended itself as having merely complied with the law by seeking advice; the 2nd Respondent confirmed it had advised that the proposed 10% salary review and allowances were unsustainable. The Court, bound by the Court of Appeal's line of authority from Teachers Service Commission v KNUT and subsequent decisions, held that the 2nd Respondent's advice is mandatory and binding and declined all the prayers. Significantly, the Court voiced strong obiter criticism, observing that Article 230 as broadly applied has rendered public service collective bargaining 'as dead as a dodo' and made trade unions moot, and urged that these constitutional questions be settled at the highest judicial level. The claim was dismissed with no order on costs on 14th June 2024.

Questions the Court framed

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

  1. 1.Whether the 2nd Respondent has the mandate to take away the parties' right to collectively bargain
  2. 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. 3.Whether the 2nd Respondent's circular dated 14th October 2019 regulating collective bargaining is devoid of legal effect
  4. 4.Whether the CBA executed on 16th September 2022 ought to be registered notwithstanding the 2nd Respondent's refusal of approval
  5. 5.Whether employees in service at the time of execution of the CBA should benefit from it

Key legal issues

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01

Whether the 2nd Respondent's advice on remuneration binds State corporations in collective bargaining

Holding

The advice is mandatory and binding, following the Court of Appeal in Teachers Service Commission v KNUT and subsequent decisions

Reasoning

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.

p. 2
02

The effect of Article 230 of the Constitution on the right to collective bargaining under Article 41(5) and ILO Convention No. 98

Holding

The Court expressed strong obiter concern that the broad application of Article 230 has effectively extinguished free collective bargaining in the public service

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Claim is declined.
  2. 2.No order on the costs.

The bench

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

majority

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

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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

p. 4

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

p. 2

Registration of the CBA executed 16th September 2022

The Court cannot sidestep the 2nd Respondent whose advice is mandatory and binding

p. 2

Order compelling the Respondents to allow all employees in service at execution of the CBA to benefit from it

Claim declined in its entirety

p. 4

Costs

No order on the 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 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.
p. 2Binding nature of the SRC's advice on public service remuneration
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.
p. 2Limits of the Court's power to register a CBA contrary to the 2nd Respondent's advice
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.
p. 3Effect of Article 230 on the right to collective bargaining
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.
p. 3Tension between the 2nd Respondent's mandate and collective bargaining rights
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.
p. 4Outcome
The Claim is declined. No order on the costs.
Final orders

Issues in the judgment

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minor

The judgment does not print the names of the parties or the case number on its face; parties are identified only descriptively

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 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.