Court declines to award 64 KPA employees 20pc pay hike

The Employment Court in Mombasa has declined to award a 20 per cent salary increment to 64 employees of Kenya Ports Authority (KPA) who transitioned from the defunct Kenya Ferry Services (KFS).

The 64 employees who are non-unionsable said that KPA failed to address salary disparities between them and the unionisable employees of the defunct KFS whose salaries were increased by 20 per cent during their absorption into the KPA employment structure.

Justice Ocharo Kebira said that the salary increment was subject to approval by the Salary and Remunerations Commission (SRC) and KPA was not bound to consider and onboard the 64 employees with the 20 per cent pay hike.

The judge noted that despite the 20 per cent salary increment for the defunct KFS non-unionisable employees being under internal discussion of the Board of Directors of the defunct KFS, the same had not accrued before the merger.

“In that context, it would be a misapprehension of both fact and law for non-unionised employees to allege discrimination solely on the basis that their terms and benefits are not at parity with those secured through a CBA," said Justice Kebira.

He said the differentiation in terms does not constitute unlawful discrimination, but rather reflects a legitimate and legally sanctioned distinction grounded in the voluntary exercise of the right to organise and bargain collectively.

The 64 employees led by Thomas Kaingu, argued that KPA failed to uniformly and fairly implement and comply with its own system of horizontal placement into the respective job grades and harmonization of the pay grades.

Kaingu said they have suffered prejudice and lost income, promotions, equal and fair treatment due to them as former employees of the defunct KFS.

He asked the court to declare that KPA contravened their rights to fair labour practices in unilaterally varying the terms of their respective employment contracts by failing to address glaring and apparent salary disparities and sustain the allowances they previously enjoyed.

Kaingu said that, following a presidential directive issued in 2009, KFS was dissolved and merged with the KPA with all its employees.

“Before the merger, the claimants and other non-unionisable employees of the KFS had been engaged in internal negotiations aimed at harmonising revised, improved salaries, allowances and terms of employment,” said Kaingu.

He said the negotiations and harmonisation process were at an advanced stage of completion but were not concluded due to the merger.

Kaingu further told the court that at the time of the presidential directive, the unionisable employees of KFS successfully concluded negotiations over salaries and terms of service unlike the 64 claimant and other non-unionisable employees of the defunct KFS.

“The unionisable employees of the defunct KFS were the first to be absorbed into the KPA system in July 2021,” he said.

He argued that KPA without the participation of the 64 employees and other non-unionisable employees of the defunct KFS, undertook the absorption in secrecy, in a discriminatory manner, and in contravention of their constitutional right to fair labour practices, under the Employment Act, and international best practices.

However, KPA’s Principal Human Resource Officer Alice Mutiso, said that on July 1, 2021, the defunct KFS staff were all absorbed by KPA at their prevailing KFS salaries.

Mutiso said that the unionisable and non-unionisable employees were treated differently because unionisable employees were covered by a Collective Bargaining Agreement (CBA) that was in existence on their absorption, and their positions were distinct and not common between KPA and KFS staff.

Mutiso told court that KPA had to create posts in its establishment to accommodate the non-unionisable staff of KFS, as their absorption was not covered by any CBA.

“After the payments were backdated to July 1 2021, pursuant to the approval by the KPA Board of Directors, all backdated payments were made in December 2023, and no staff of the defunct KFS, whether unionisable or non-unionisable, had their allowances curtailed or unpaid,” said Mutiso.

She said that later in February 2022, the unionisable employees were converted into KPA staff, with all their salaries backdated to July 2021.

“Between the period July 1, 2021 and April 19, 2022, non-unionisable staff of the defunct KFS expressed their feeling that they were discriminated against because, despite the merger, they retained their KFS salaries, awaiting the finalisation of the restructuring and the subsequent translation of staff onto posts within the new structure," said Mutiso.

She argued that KPA completed the restructuring process in July 2023 and incorporated all staff, including those from the Ferry Services Department, into the new structure, with the appeals process still ongoing.

Mutiso further said that KPA approved payment of salary differences for non-unionisable staff to align their earnings with the KPA salary scales.

“Following the approved translation exercise by the KPA’s Board of Directors, in April 2022, non- unionisable employees of KFS started enjoying KPA management salaries and allowances,” said Mutiso.

She argued that the salaries earned by the 64 claimants after their absorption into KPA were considerably higher than those earned under KFS.

Mutiso said that horizontal placement was implemented for the 64 claimants where feasible, however, in certain instances, she said it was unfeasible due to the presence of an existing KPA employee occupying the specific positions.