Collective bargaining agreements (CBAs) can only be backdated if parties on both sides of the negotiating table have given prior consent, the Industrial Relations Court has ruled.
Justice Benard Manani, while ruling on a dispute between the Kenya Quarry and Mine Workers Union (KQMWU) and Mineral Enterprises Ltd, ruled that collective agreements are like any other contract and cannot be enforced until they are signed.
The only exception, the judge found, is in cases where employers and unions representing workers have both agreed to backdate the execution date.
“A CBA, like any other contract, creates contractual rights between the parties. These rights remain uncertain until the document is signed by the parties and registered by the court. As such, the benefits conferred by the instrument only crystallize at the time of its execution and registration,” Justice Manani said in his ruling.
Judge Manani’s decision is likely to affect the outcome of similar legal battles over the enforcement of collective agreements.
“In the absence of agreement of the parties in this action as to the effective date of the proposed CBA, that date shall be the date on which the instrument is executed and recorded by the court,” the judge added , finding that KQMWU and Mineral Enterprises Ltd. each bears their own legal costs for the case.
KQMU and Mineral Enterprises Ltd have since 2021 been engaged in negotiations on a new collective agreement with improved conditions for unionized workers.
The negotiations were aimed at replacing another collective agreement which expired in December 2019.
Following the partial shutdown of economic activities due to the Covid-19 pandemic in 2020, the Ministry of Labour, the Federation of Kenya Employers (FKE) and the Central Organization of Trade Unions (Cotu) entered into a tripartite agreement to suspend the implementation of existing collective agreements or negotiations of new ones.
Despite the suspension, Mineral Enterprises Ltd gave in to an October 2021 request from the KQMWU to negotiate a new agreement.
During negotiations, Mineral Enterprises Ltd retained the terms of the expired collective agreement for its unionized workers.
The KQMWU, through Wafula Musamia, filed an application with the Industrial Relations Court in 2022, after reaching an agreement, seeking to have the new collective agreement backdated to the start of negotiations.
Zeus Mitto, representing Mineral Enterprises Ltd, argued that his client had done all possible by retaining the terms of the expired collective agreement and agreeing to negotiate a new one while that action had been suspended.
Mr Mitto also argued that the KQMWU was responsible for the delays as its representatives first demanded Sh300,000 in advance of union dues. He added that the KQMWU filed a complaint with the Ministry of Labor after Mineral Enterprises Ltd refused to pay union dues.
Mineral Enterprises Ltd court documents indicate the KQMWU withdrew from several meetings with the conciliator appointed to arbitrate the dispute.
Mr Musamia of the KQMWU said Mineral Enterprises Ltd was responsible for stalling negotiations and should not be allowed to benefit from a delay in implementing the collective agreement.
In response, Mineral Enterprises Ltd argued that backdating the ABC would cause the document to lapse shortly after signing, as it was a two-year agreement. This would amount to abandoning the ABC negotiations to conduct a new one.