[2023] KEELRC 2783 (KLR)

University Academic Staff Union (UASU) v Chuka University; Ministry of Labour and Social Protection & another (Interested Parties) (Miscellaneous Case E087 of 2023) [2023] KEELRC 2783 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2783 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Miscellaneous Case E087 of 2023

JK Gakeri, J

November 7, 2023

Between

University Academic Staff Union (UASU)

Applicant

and

Chuka University

Respondent

and

Ministry of Labour and Social Protection

Interested Party

Attorney General

Interested Party

Ruling

1. This is the Applicant’s Notice of Motion dated 5th April, 2023 seeking Orders That;1. The Honourable Court do register the internal Collective Bargaining Agreement between the Applicant Union and the Respondent employer for the period 2013 – 2017 as executed by the parties.2. The costs of the Application be borne by the Respondent/Employer.

2. The Notice of Motion is based on various articles of the Constitution of Kenya, 2010 and provisions of the Labour Relations Act, 2007, Employment and Labour Relations Court Act, 2011 and the Employment and Labour Relations Court (Procedure) Rules, 2016 and supported by the Affidavit of Dr. Constantine Wasonga, the Secretary General of the Applicant Union who deposes that the CBA was agreed upon after in depth negotiations which were conducted within the beacons and parameters of the law and was forwarded to the Ministry of Labour on 11th November, 2022.

3. That every item of the CBA was discussed and agreed upon.

4. The affiant disposes that the Ministry of Labour and Social Protection had notwithstanding reminders failed to forward the CBA to the court for registration without any justification.

5. The affiant further deposes that since the parties to CBA were bound by the CBA, it was unjust for the Ministry of Labour and Social Protection to delay the registration process.

6. That the actions of the Ministry of Labour and Social Protection violates the union’s members constitutional rights under Article 41 on fair labour practice, fair remuneration, reasonable working conditions as well as the right to conclude a CBA.

7. That the CBA has benefits due to the Applicant’s union members and its non-registration is detrimental to them.

8. The affiant urges the court to register the Collective Bargaining Agreement to safeguard the accrued rights to the Applicant’s Union members.

Replying Affidavit 9. In a Replying Affidavit dated 12th July, 2023 sworn by Eunice Wamuyu Githae, the affiant deposes that the Applicant Union had a Recognition Agreement with the Respondent.

10. That the Respondent and the Applicant negotiated and executed a Collective Bargaining Agreement (CBA) for the period 2013 – 2017 based on the inauguration Terms and Conditions of service.

11. The affiant deposes that after the Respondent executed the CBA, it proceeded to implement its terms and members of the Applicant Union have been enjoying the terms as negotiated and executed.

12. That on expiry of the 2013 – 2017 CBA, the Applicant and the Respondent negotiated a subsequent CBA 2017 – 2021.

13. The affiant states that there was need for the CBA 2013 – 2017 to be registered as it forms the basis of the terms of subsequent CBA 2017 – 2021 and pave way for future CBAs.

14. That Section 60(3) of the Labour Relations Act, 2007 permitted the Union to submit the CBA to the Employment and Labour Relations Court for registration if the employer or employer’s organization fails to do so.

15. That the Respondent had no objection to the registration of the 2013 – 2017 CBA as negotiated and executed.

16. That parties should bear own costs.

17. Counsel for the Interested Party sought 7 days to file a Replying Affidavit but had not filed by 13th October, 2023 when the court retired to prepare this ruling.

Interested Party’s Response 18. The Interested Party filed a copy of a letter from the Ministry of Labour and Social Protection dated 5th October, 2023 stating that it had no objection as it had received a no objection letter from the SRC and the parties had been advised to forward the CBA for analysis for purposes of registration.

19. Relatedly, the Ministry of Labour forwarded copies of two letters namely; Ref No. SRC/TS/SC/3/17 dated 29th April, 2014 and Ref No. MLSSS/6/31/ VOL 1 (25) addressed to the Ministry of Labour and Social Protection and the Chief Registrar of the Judiciary respectively on registration of Collective Bargaining Agreements.

20. Both letters underscored the importance of the Ministry’s analysis of all CBAs by public sectors employers to ensure conformance with Regulation of Wages Orders. They equally underscored the essence of the SRC’s letter of no objection to prevent public sector employers from committing the Government to CBAs that it could afford to implement and also avoid exacerbating disparities and distortions in public sector wages.

Applicant’s Submissions 21. Counsel addressed two issues;As to whether there is a valid Collective Bargaining Agreement between the parties for the period 2013 – 2017, counsel submitted that there was as evidenced by the record and a copy had been forwarded to the Ministry of Labour and Social Protection vide letter dated 8th May, 2020 and cited the sentiments of Radido J. in Social Service League, MP Shah Hospital V KUDHEIHA (2018) eKLR to urge that a CBA was an agreement like any other dependent on the parties thereto and the instant CBA was agreed upon without duress, coercion, fraud or misrepresentation.

22. That SRC had not specifically objected to the registration of the CBA and the SRC circular came after the CBA had been concluded and freely executed and it was consulted after the CBA was concluded.

23. According to counsel, the immediate post CBA was implemented in the same way and the Employer/Respondent had not raised any concerns regarding its registration.

24. The sentiments of the court in Inter-Public Universities Councils Consultative Forum of the Federation of Kenya Employers & 2 others V KUDHEIHA; Ministry of Education & 3 others (Interested Parties) CBA No. 1 of 2020, were cited to urge that the CBA be registered as the court did in that case.

25. Reliance was also made on the decision in Said Ndege V Steel Makers Ltd (2014) eKLR.

26. Counsel urged that the employer’s objection is bad in law and was intended to delay registration of the CBA.

27. As to whether the court ought to register the CBA herein, counsel submitted that it should do so as the CBA was unopposed and parties are bound by the documents they duly execute and the delay violated the Applicant’s members rights under Article 41 of the Constitution of Kenya, 2010 and Section 57 of the Labour Relations Act.

28. Reliance was also made on the provisions of Section 60 of the Labour Relations Act, 2007 and the decision in Kenya Union of Commercial Foods and Allied Workers V National Social Security Fund; Salaries and Remuneration Commission (Objector) (2021) eKLR to urge the court to register the CBA.

29. When the matter came up on 13th July, 2023, the Respondent and the Interested Party had not complied and were accorded 14 days to do so. The Respondent was absent on 20th September, 2023, counsel for the Interested Party sought 14 days to file a response.

30. The applicant’s counsel on the other hand urged the court to set a ruling date which the court did and accorded the Respondent and Interested Party 10 days to file responses and Submissions but the Interested Party did not. The Respondent too did not file Submissions.

Determination 31. The singular issue for determination is whether the Collective Bargaining Agreement (CBA) 2013 – 2017 between the Applicant Union and the Respondent executed on 13th September, 2018 is registrable by this court.

32. It is common ground that the Applicant Union and the Respondent negotiated and concluded a CBA and executed the same in September 2018.

33. It is also not in contest that the CBA was freely negotiated and executed in accordance with the provisions of Section 59 of the Labour Relations Act, 2007.

34. Strangely, although a CBA is an agreement between the parties analogous to any other agreement, it only becomes a binding and enforceable contract upon registration as ordained by the provisions of Section 59(5) of the Labour Relations Court Act, 2007 which states that;“A Collective Agreement becomes enforceable and shall be implemented upon registration by the Employment and Labour Relations Court and shall be effective from the date agreed upon by the parties.”

35. Notwithstanding the fact that a CBA is an agreement identical to other agreements, it is highly regulated by the law and in particular the provisions of the Labour Relations Act, 2007 regarding negotiation and conclusion, effect and registration among others.

36. Section 60 provides that;1. Every collective agreement shall be submitted to the Employment and Labour Relations Court for registration within 14 days of its conclusion.2. The employer or employer’s organization which is a party to an agreement to be registered under this section shall submit the agreement to the Employment and Labour Relations Court for registration.3. If an employer or employer’s organization fails to submit the collective agreement to the Employment and Labour Relations Court as specified in subsection (1), the trade union may submit it.4. . . .5. The Employment and Labour Relations Court may register an agreement –a.in the form it was submitted by the parties; orb.with amendments or modifications agreed to by the parties.6. The Employment and Labour Relations Court shall not register a collective agreement that –a.conflicts with this Act or any other law; orb.does not comply with any directives or guidelines concerning wages, salary levels and other conditions of employment issued by the Minister.7. The Employment and Labour Relations Court –a.may register a collective agreement within fourteen days of receiving it;b.may refuse to register a collective agreement unless all parties to the agreement have had an opportunity to make oral representation to the Employment and Labour Relations Court; andc.shall give reasons for refusing to register any collective agreement.

37. From the documentary evidence on record, it is discernible that no steps were taken by the parties to have the CBA between them registered before November 2022, more than 4 years after the collective agreement was executed.

38. By letter dated 11th November, 2022, Applicant Union submitted three copies of the 2013 – 2017 CBA to the Principal Secretary, Ministry of Labour and Social Protection for purposes of registration by this court. There is no evidence to show that the Ministry of Labour and Social Protection forwarded the CBA to the court for registration.

39. It is unclear why the parties did not comply with the law as no reason has been provided for the inordinate delay in forwarding the CBA to the Ministry for purposes of facilitating its registration.

40. Surprisingly, minutes of a meeting between the Management of Chuka University and the Universities Academic Staff Union (UASU) held on 21st November, 2022 at 9. 00 am at the Respondent’s Boardroom reveal that the Salaries and Remuneration Commission (SRC) had written to the Respondent informing it that the 2013 – 2017 CBA had to be renegotiated as it had been negotiated without a baseline and SRC was not involved.

41. The minutes reveal that the Respondent implemented the CBA after it was signed.

42. Put in the alternative, the CBA was not registered but was implemented and SRC was not involved.

43. Needless to emphasize, Section 60(1) of the Labour Relations Act, 2007 is couched in mandatory terms and read with Section 60(5) of the Act, it is evident that an unregistered CBA ought not to be implemented and if implemented, it amounts to an irregularity as it is unenforceable. Any deductions made from members’ salaries or wages were irregular.

44. The foregoing is fortified by the requirement by the SRC, that the 2013 – 2017 CBA be registered after renegotiation and SRC did not recognize it.

45. It is clear to the court that the SRC proposal is intended to correct an anomaly occasioned by the parties in order to secure the gains made by the employees for purposes of future CBAs. Since the Applicant Union and the Respondent have been advised accordingly, I will say no more.

46. Flowing from the foregoing analysis, it is the finding of the court that the Collective Bargaining Agreement 2013 – 2017 duly executed by the parties and approved by the Ministry of Labour is capable of being registered.

47. The last issue for consideration is the effect of non-involvement of the Salaries and Remuneration Commission in the CBA negotiation process.

48. The Salaries and Remuneration Commission is established by Article 230(1) of the Constitution of Kenya, 2010. The salient powers and functions of the Commission are set out in Article 230(4) of the Constitution of Kenya, 2010 and are supplemented by Section 11 of the Salaries and Remuneration Commission Act, 2011. One of these functions is to“advise the National and County Government on the remuneration and benefits of all public officers.”

49. In so doing, the Commission is enjoined to consider the parameters set out in Article 230(5) of the Constitution which include, sustainability of the public wage bill, attraction and retention of skills in the public service, productivity and performance as well as transparency and fairness.

50. Under Section 11 of the Salaries and Remuneration Commission Act, the Commission is empowered to;a.inquire into and advise on the salaries and remuneration to be paid out of public funds.b.keep under review all matters relating to the salaries and remuneration of public officers.c.. . .d.. . .e.determine the cycle of salaries and remuneration review upon which Parliament may allocate adequate funds for implementation.

51. In National Hospital Insurance Fund V Kenya Union of Commercial Food and Allied Workers & 2 others (2016) eKLR, the court held that for a body or institution to fall within the mandate of the Salaries and Remuneration Commission, the body, institution or organization had to be a public body employing or appointing to it either state officers or public officers.

52. Article 260 of the Constitution of Kenya defines Public Officer to mean;a.any state officer; orb.any person, other than a state officer who holds a public office.

53. The Article further defines the phrases public office and public service.

54. While public officer is dependent on payment of remuneration and benefits from the Consolidated Fund or from money provided by Parliament, Public service is the collectivity of all individuals, other than state officers, performing a function within a state organ.

55. The status of the advice given by the SRC was laid bare by the Court of Appeal in a Five Judge Bench in Teachers Service Commission V Kenya National Union of Teachers (KNUT) & 3 others (2015) eKLR, where it held that the advice was binding upon all employers of public officers.

56. In the words of Odek JA;“I hereby come to the conclusion and finding that the advise given by SRC is binding. The advise is binding because to hold otherwise would render the functions of SRC under Article 230(5) idle, it would render SRC ineffective and irrelevant . . .Seeking SRC’s advice is a constitutional procedural step; the content of the advise given is substantive as it affects the remuneration rights and entitlement of public officers . . . the binding nature of the advice given by SRC is a matter involving interpretation of the following provisions of law . . . the binding nature of SRC advice is a constitutional matter dependent on the governance structure established by the Constitution . . . SRC advice is not advise in persona, it is advice in rem as it limits and determines remuneration rights and entitlement of public officers. Being advice in rem, SRC advice binds all persons, state organs and independent commissions and the judge came to the conclusion and finding that the advise by SRC is binding . . .A literal recording of Article 230(4)(b) of the Constitution shows that SRC is not one of the envisaged external forces against whom the shield of independence can be waved. The Constitution, vide Article 230(4)(b) and (c) has integrated SRC in the determination of all matters relating to remuneration and benefits of public officers.The practical consequences is that SRC has an integrated, over-arching centripetal force in the determination of remuneration and benefits payable to public officers which includes teachers. Using company law analogy, the advise given by SRC is like a floating charge hovering over all public service and when it descends it attaches, crystallizes and binds anything and everything that it lands upon . . . SRC has teeth and can bite and must bite and shall bite. SRC is the forum for determining fiscal sustainability of the remuneration and benefits of all public officers. One ignores SRC at his/her own peril.”

57. In the words of Mwilu JA (as she then was);“No valid salary and/or benefit of a state or public officer as appropriate, shall ensue from a process that ignores the roles of SRC as I have reproduced them above . . . There can be no doubt that SRC has to be involved in its advisory role in negotiations on the conclusion of a CBA involving public officers.The manner and style of how that is to be done is not primary, what is of paramount importance, to my mind is that SRC’s advise has to be sought and once obtained, it is binding . . .”

58. In sum, the learned justices of appeal were unanimous that while employers of public officers are at liberty to negotiate salary and other benefits with trade unions, SRCs advice must be sought.

59. The learned judges of appeal were unequivocal that a CBA concluded and executed without the advise of the SRC being sought and given, is invalid. This court has nothing to add.

60. The court is bound by the findings and holding of the Court of Appeal.

61. In Kenya National Union of Nurses V Moi Teaching and Referral Hospital; SRC & Ministry of Labour (Interested Parties) (2015) eKLR, Radido J. relied on the Court of Appeal decision above.

62. The learned judge expressed himself as follows;“The above citations leave no doubt that the advise by the Salaries and Remuneration Commission is binding not only to the Teachers Service Commission but other public body employers not only in terms of Article 259(II) but as well as in terms of Article 230(4)(b) of the Constitution.”

63. The Court of Appeal decision cited above underscored the centrality of the SRC in the determination of salaries and benefits of public officers such as teachers, employees of County and National Government and other state bodies such as Independent Commissions and state corporations, such as public universities.

64. Being an employer of pubic officers, the Respondent was obligated by the Constitution of Kenya, 2010 to seek SRCs advise before it made any offers to the Applicant Union or executed the CBA in question.

65. The court finds it puzzling that the Applicant Union and the Respondent ignored the SRC and purported to conclude a CBA and proceeded to implement it without involving the SRC or the Ministry of Labour and Social Protection, yet the CBA was executed in September 2018 long after the Court of Appeal decision in Teachers Service Commission V Kenya National Union of Teachers & 3 others (Supra).

66. The foregoing is consistent with the provisions of Section 15(6) of the Employment and Labour Relations Act, 2011 which enjoins the court to make reference to any relevant guidelines published by the SRC as follows;

67. Nothing in this Section shall preclude the court from making reference to the guidelines as maybe published from time to time by the Salaries and Remuneration Commission to the extent to which they may be relevant to the dispute.

68. The minutes of the meeting between the Applicant Union and the Respondent on 21st November, 2022 make reference to SRC Circular Ref No. SRC/TS/10 VOL 1 (51) which precipitated the meeting.

69. The minutes leave no doubt that the Applicant Union declined to renegotiate the 2013 – 2017 CBA on the premise that it was negotiated, executed and implemented.

70. Having found that the Salaries and Remuneration Commission has no objection to the registration of the CBA 2013 – 2017 and the Ministry of Labour and Social Protection has advised the parties on the way forward, it behoves the applicant to act in accordance with the Ministry’s letter dated 5th October, 2023 by presenting the CBA to the Ministry for analysis.

71. On 26th October, 2023, the Applicant filed a Notice of Motion dated 24th October, 2023 seeking orders that this ruling be arrested and stayed pending the filing of a no objection letter dated 26th September, 2023 from the SRC and the same be admitted as part of the court record.

72. The court gave directions on service and inter partes hearing was slated for 7th November, 2023, the ruling date.

73. Instructively, the Ministry of Labour and Social Protection had received the no objection letter on 20th September, 2023 and by letter dated 5th October, 2023 which the Interested Party filed, directed the parties to forward a copy of the CBA to the Ministry for analysis. It is unclear to the court whether the direction was complied.

74. The SRC’s no objection letter does not alter the directions of the Ministry on the forwarding of the CBA to the Ministry for analysis to facilitate registration.

75. Consequently, copies of the CBA shall be forwarded to the Ministry of Labour and Social Protection at the earliest instance.

76. The CBA for 2013 -2017 will be registered as soon as a copy is received from the Ministry of Labour and Social Protection.

77. The Notice of Motion dated 5th April, 2023 is dismissed.

78. Parties shall bear own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH DAY OF NOVEMBER 2023DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGE