Why your employer must always disclose a more favourable CBA

Both our Employment and Labour Relations laws affirm the importance of ensuring employees receive terms and conditions of service that are more favourable irrespective of their age, sex, race. [iStockphoto] When the 2010 Constitution was promulgated and Dr Willy Mutunga became the first Chief Justice (CJ) and president of the Supreme Court, we all believed it is a new dawn for the Judiciary. He did not disappoint. He was transformative in every aspect and made dramatic and incredible transformation in the Judiciary. From its ethos, costume, institutional framework, law reporting, embracing technology, physical infrastructure and more. But the most dramatic transformation was the way the citizenry regarded and viewed the Judiciary; with more trust and confidence. The systems, structures and infrastructure he put in place and the personal investments continue to bear fruit. His two successors have built on these. As much as the two successors brought in their personal styles of leadership (with even some reversal for example to the old costume), the level of trust and confidence from the public, though not the same, still remains. And, incomparable to the way wananchi view the Executive and Parliament (National Assembly and Senate). The latter two continue to struggle with perceptions; lack of trust and confidence from the public. Interesting jurisprudence is emerging form judicial interpretation of the Constitution and the laws. A case in point is that of Omondi Justus Rang'anga & 28 others v Kenya Commercial Bank Limited with Banking, Insurance & Finance Union (BIFU) as an interested party, which puts together some exciting precedents and established judicial positions. Justice Mbaru of the Employment and Labour Relations Court at Nairobi delivered yet another clarifying judgement on November 30th 2022. The claimants, hired on fixed term renewable contracts as clerks by KCB on various periods, filed the claim on July 19th 2021 seeking to secure their employment on terms and conditions that are not discriminatory compared to permanent employees under terms and conditions superior and negotiated with BIFU for unionisable employees. But KCB instead of responding to the case on December 31st 2021 as expected, terminated the claimants' employment. The judge observed that rights in employment are protected by the Employment and Labour Relations Laws. If an employee signs a fixed term contract without awareness of a Collective Bargaining Agreement (CBA) providing favourable terms, the employer is obligated to engage the employee on more favourable terms like others doing similar work. The employer is deemed by law to have engaged in unfair labour practices by failing to disclose the favourable CBA terms. However, what is ground-breaking and more progressive in this and other similar cases, is the affirmation by the Supreme Court of the meaning of discrimination in employment matters. The Supreme Court in the case of Law Society v Attorney General and COTU petition (number 4 of 2019) clearly stated that, discrimination is the unjust or prejudicial treatment of different people in the same circumstances. This is referred to as "the principle of equal pay for equal work of equal value." For example, research has established that women earn less than their male counterparts doing equal work of equal value. However, both our Employment and Labour Relations laws affirm the importance of ensuring employees receive terms and conditions of service that are more favourable irrespective of their age, sex, race. The emerging jurisprudence since the 2010 Constitution has been consistent on this matter. This particular case, therefore, summarises a number of other cases, which establish the meaning of discrimination to include unfair treatment or denial of normal privileges to persons because of their race, age, sex... the recognition of fixed term contract in law is not a justification to pay low wages or to deny allowances and privileges and create a disparity that is not justified. The right of an employer to issue a fixed term contract should not negate the application of the law. This makes Kenya more progressive and it is no mean achievement by our Judiciary. Join the conversation @Koki_Muli @StandardKenya.

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