Win for employers as court outlaws backdated CBAs

Collective bargaining agreements (CBA) cannot be backdated unless parties on both sides of the negotiating table have given prior consent, the labour relations court has ruled.

Justice Benard Manani, while determining a dispute between Kenya Quarry and Mine Workers Union (KQMWU) and Mineral Enterprises Ltd, ruled that CBAs are similar to any other contract and cannot be enforced before signing.

The only exception, the judge held, is in circumstances where employers and unions representing workers, have both agreed to backdating the enforcement date.

“A CBA, just like any other contract, creates contractual rights between parties. These rights remain inchoate until the instrument is executed by the parties and registered by the court. As such, the benefits that the instrument confers only crystalize upon its execution and registration,” Justice Manani said in his ruling.

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Justice Manani’s ruling is likely to affect the outcome of similar court battles over enforcement of CBAs.

“Absent agreement by the parties in the instant action on the effective date of the proposed CBA, that date shall be the date on which the instrument shall be executed and registered by the court,” the judge added, holding that KQMWU and Mineral Enterprises Ltd each bear their own legal costs for the case.

The KQMU and Mineral Enterprises Ltd have since 2021 been locked in negotiations over a new CBA with improved terms for workers under the union.

The talks were aimed at replacing another CBA that expired in December 2019.

Following the partial shutdown of economic activities on account of the Covid-19 pandemic in 2020 the Ministry of Labour, Federation of Kenya Employers (FKE) and Central Organisation of Trade Unions (Cotu) entered into a tripartite agreement to suspend implementation of existing CBAs or negotiations of new ones.

Despite the suspension, Mineral Enterprises Ltd ceded to an October, 2021 request by KQMWU to negotiate a new deal.

In the course of the negotiations, Mineral Enterprises Ltd retained the terms of the expired CBA for its unionised workers.

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KQMWU, through Wafula Musamia, in 2022 filed an application at the labour relations court, after a deal was struck, seeking to have the new CBA backdated to when the negotiations started.

Zeus Mitto, representing Mineral Enterprises Ltd, argued that his client had bent over backwards by retaining the terms of the expired CBA and agreeing to negotiating a new one at a time such action had been suspended.

Mr Mitto also argued that the KQMWU was to blame for delays as its representatives first demanded Sh300,000 in advance union dues. He added that KQMWU filed a dispute with the Labour ministry after Mineral Enterprises Ltd refused to pay the union dues.

Mineral Enterprises Ltd’s court papers indicate that the KQMWU walked out of several meetings with the conciliator appointed to mediate the dispute.

KQMWU’s Mr Musamia held that Mineral Enterprises Ltd was responsible for the stalled talks and should not be allowed to enjoy a delayed CBA execution date.

Mineral Enterprises Ltd in response argued that backdating the CBA would see the document lapse shortly after signing, as it was a two-year deal. This would mean walking out of a CBA negotiation into a fresh one.

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