Ministry of Labour And Human Resources

GAZETTE NOTICE NO. 311

THE INDUSTRIAL COURT OF KENYA AT NAIROBI CAUSE NO. 121 OF 2003 (Consolidated with Cause No. 93 of 2002) KENYA UNION OF PRINTING, PUBLISHING, PAPER MANUFACTURERS & ALLIED WORKERS—(Claimants) AND CITY PRINTING WORKS LIMITED —(Respondents) AWARD Issues in Dispute: I. Failure to adjust salaries by Agreed Wage Increases as stiputhted in the CBA for 1995-97. 2. Declaring all employees redundant without due process. The two disputes filed separately between the same parties were consolidated for hearing. These are Cause No. 93 of 2002 and Cause No. 121 of 2003. The respondent company is one of the oldest in the printing business in Nairobi. It is alleged by the Claimant union to be a founding member of the Printers Traders Group of FKE. Around 1973 the Respondent's ownership changed hands and has since been under the control and management of a Mr. Samuel Githegi Mbugua. The Claimant alleges that prior to the change of ownership, the Respondent company was a member of the FKE Printers group and was implementing the CBAs negotiated between the Claimant union and the FKE group. This was, pursuant of a dispute, reaffirmed by the parties in a memorandum dated 14th May, 1979 which read: Agreement: the parties agreed as•follows: I. That the Management of City Printing Works (K) Limited, have agreed to recognize the above union as the sole body representing Unionisable employees of Messrs. City Printing Works (K) Limited. (a) That the Management of the above firm have agreed to implement the same terms and conditions of service as stipulated in the Printing Trades Group of the FKE agreement with the union. The said document is signed by the General Secretary of the Claimant union and the Managing Director of the Respondent company itne presence of a Mr. H.A. Alwy, Conciliator. Mr. Nyamwae for the Respondent did not deny the existence of the aforesaid document. The Claimant further avers that subsequent to the aforesaid agreement, the Respondent continued to pay salaries and wages to its employees in accordance with subsequent CBAs between the trade union and the FKE Printing Trades Group. The Respondent did not deny this. The Court has no reason to dispute the facts as presented. The Respondent did not file a Memorandum in Reply but filed a Statement of Reply that amounts to a bare denial of all the facts averred by the Claimant union in its Memorandum of Claim. The Respondent denied that it failed to adjust salaries as alleged; or that it declared the employees redundant; or that it failed to pay its employees their benefits as alleged. The Respondent further averred that "they neither signed a recognition with the Claimant nor are they members of the printing group of federation of Kenya employers." A letter from the FKE dated 21st July, 2000 states that the Respondent is neither a paid up member of FKE nor did it belong to the Printing group of FKE, In the circumstances, the Claimant did not have a cause of action against the Respondent as alleged. A perusal of the CBAs annexed by the parties do not suggest that the Respondent was, at those material times, a member of the Printing Group of FKE. The issue for determination in this regard, therefore, is whether or not the Respondent is bound by the CBA signed between the Claimant union and the FKE Printing Trades Group? CBAs are contractual agreement binding the parties thereto. In the case of group agreements, as in this instance, all members of the Printing Trades Group of FKE would he bound by the CBA, whether they were signatories thereto or not. The Respondent avers that it was neither a member of the FKE Group nor a signatory to any of it's CBA with the Claimant union. Therefore it was not bound to implement its terms and conditions. We accept that this would be the correct position in law, were the facts to be true. The Claimant avers that the Respondent has at all times been a member of the FKE and as a result has been implementing the various CBA signed between the said Printing Trades Group and the Claimant union. The evidence produced by the union suggests that the Respondent, as at 1995, was not a member of the FKE group. The Respondent may have been a member of the FKE group in earlier days as alleged and not denied by the Respondent, but we did not see proof before us that at the material time to this dispute, the Respondent was a member of the FKE Printing Trades Group. We cannot therefore find for the Claimant that purely on the basis of its membership of the FKE Printing. Trades Group; the Respondent was liable to implement the CBAs referred to by the Claimant union. There is however, a separate issue raised by the Claimant union as regards the Respondent's liability. The Respondent, by the aforesaid agreement of 14th May, 1979, voluntarily agreed to recognize the Claimant union as the sole negotiating party on behalf of the Respondent's unionisable employees as well as "to implement the same terms and conditions of service as stipulated in the Printing Trades Group of the FKE agreement with the union". The Respondent has not, any time to this dispute, denied the existence of the said agreement or its terms. The Claimant further averred that the Respondent did, pursuant to the said agreement, implement subsequent CBAs between the FKE Group and the Union. This was done between 1979 and 1995 – a period of at least 16 years. The Respondent did not deny this fact (Cap. 38)