[2015] KEELRC 297 (KLR)
The court found that the Collective Bargaining Agreement relied upon by the claimant was registered on 19th April, 2006, after the grievant's termination on 21st March, 2006. In accordance with section 11(2) of the Trade Disputes Act, a Collective Agreement only takes effect upon registration by the Industrial...
Source-derived case information.
- Citation
- [2015] KEELRC 297 (KLR)
- Parties
- Applicant: Kenya Petroleum Oil Workers Union; Respondent: Total Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 670 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs
- Legal Topics
- Collective Bargaining Agreements, Termination of Employment, Registration of Collective Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Petroleum Oil Workers Union
Applicant
Total Kenya Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to arrears under the 2005-2006 Collective Bargaining Agreement despite the timing of its registration.
- 2 Whether the Collective Bargaining Agreement applied to the grievant at the time of termination.
Ratio Decidendi
The court found that the Collective Bargaining Agreement relied upon by the claimant was registered on 19th April, 2006, after the grievant's termination on 21st March, 2006. In accordance with section 11(2) of the Trade Disputes Act, a Collective Agreement only takes effect upon registration by the Industrial Court. Since the agreement was not registered at the time of termination, the grievant could not benefit from its provisions. The court relied on precedent to hold that the claim was unsustainable and dismissed it with costs.
Court Disposition
claim dismissed with costs
Orders
- The claim is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 670 OF 2011
KENYA PETROLEUM OIL WORKERS UNION………………CLAIMANT
VERSUS
TOTAL KENYA LIMITED……..……………………………RESPONDENT
JUDGMENT
1. By Memorandum of claim filed on 4th May, 2011, the claimant on behalf of the grievant seeks an order of this Court for the payment of what the Union describes as arrears amounting to some Kshs.328,954/=.
2. The Union does not dispute the termination of the grievant’s services nor that he was paid some money. What the Union demanded was what it felt were the grievant entitlements by virtue of the provisions of the Collective Bargaining Agreement that was signed and took effect from 2005-2006.
3. The respondent on the other hand averred that the grievant’s employment was terminated on 21st March, 2006 in accordance with clause 1-20 of the Collective Bargaining Agreement then in force. The respondent further stated that at the time the grievant’s employment was terminated, the Labour Relations Act was not in force hence could not apply to his case. According to the respondent the applicable law at the time of the grievant’s termination was Trade Disputes Act and that section 11(2) of the said Act provided that a Collective Agreement shall not take effect until it has been accepted for registration by the Industrial Court.
4. The Collective Bargaining Agreement Act relied on by the claimant was registered on 19th April, 2006 as RCA No. 98 of 2006. The grievant was terminated on 21st March, 2006. Going by the decisions in Kenya Chemical & Allied Workers Union v. E.A. Industries (Unilever (K) Ltd). This claim is unsustainable and is hereby dismissed with costs.
5. It is so ordered.
Dated at Nairobi this 30th day of October 2015
Abuodha J. N.
Judge
Delivered this 30th day of October 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge