Ezra Kashumbusha.
NAIROBI, January 15, 2024 | The Labour Relations Court in Kenya has declared that collective bargaining agreements (CBAs) cannot be backdated unless there is prior consent from both parties involved. The ruling, delivered by Justice Benard Manani, emerged from a dispute between the Kenya Quarry and Mine Workers Union and Mineral Enterprises Limited, setting a precedent for the enforcement of CBAs.
Justice Manani emphasized that CBAs, like any other contract, create contractual rights between parties, and these rights only become enforceable upon execution and registration by the court. “The benefits that the instrument confers only crystallize upon its execution and registration,” Justice Manani stated in his ruling.
He clarified that backdating the enforcement date is only permissible when both employers and unions representing workers have mutually agreed to it. In the absence of such an agreement, the effective date of the proposed CBA shall be the date on which the instrument is executed and registered by the court.
The dispute arose between the Kenya Quarry and Mine Workers Union and Mineral Enterprises Limited, who have been at an impasse since 2021 over new CBA negotiations with improved terms for workers under the Union. This negotiation aimed to replace the CBA that expired in 2019.
The backdrop to the conflict includes the partial shutdown of economic activities in 2020 due to the COVID-19 pandemic. During this period, the Federation of Kenya Employers and the Central Organization of Trade Unions agreed to suspend the implementation of existing CBAs or the negotiation of new ones.
Amidst this suspension, Mineral Enterprises Limited acceded to the October request by Kenya Quarry and Mine Workers Union to negotiate a new deal. However, in the course of negotiations, Mineral Limited retained the terms of the expired CBA for its unionized workers.
The legal tussle escalated when Kenya Quarry and Mine Workers Union, through their lawyer Wafula Musamia, filed an application at the Labour Relations Court, seeking a new CBA. Zeus Mitto, representing Mineral Enterprises, argued that his client had been reluctant to retain the terms of the expired CBA and negotiate a new one during a period of suspension.
Mitto also pointed out that KQMWU had walked out of several meetings with the conciliator appointed to mediate the dispute, complicating the resolution process. Mineral Enterprises Limited contended that backdating the CBA would result in its expiration shortly after signing, as it was originally a two-year deal, effectively necessitating a transition into a new agreement.
This ruling not only resolves a specific dispute but also establishes a crucial legal precedent, clarifying the enforceability and dating of CBAs. As stakeholders grapple with the aftermath, the decision fosters transparency and fairness in labor relations, ensuring that agreements are binding only from the date of formal execution.
