Summary
- Court of Appeal judges, while suspending the decree by the Employment and Labour Relations Court on September 14, noted that there are no practical ways for EAPCC to recover the colossal sum from workers in the event its property is sold but gave a stringent condition to the struggling firm.
- The Labour Court had on August 2 allowed the Kenya Chemical and Allied Workers Union (Kcawu) to recover the colossal sum that Portland owes more than 400 workers under the 2013–2015 CBA, prompting the firm to seek the Court of Appeal’s protection.
Troubled East African Portland Cement Company (EAPCC) has been given 30 days to deposit Sh350 million in court as a condition
to suspend an order allowing the sale of its property to recover Sh1.4
billion it owes workers.
Court of Appeal judges, while
suspending the decree by the Employment and Labour Relations Court on
September 14, noted that there are no practical ways for EAPCC to
recover the colossal sum from workers in the event its property is sold
but gave a stringent condition to the struggling firm.
The
Labour Court had on August 2 allowed the Kenya Chemical and Allied
Workers Union (Kcawu) to recover the colossal sum that Portland owes
more than 400 workers under the 2013–2015 CBA, prompting the firm to
seek the Court of Appeal’s protection.
“The applicant must deposit in court or provide a bank guarantee
in the sum of Sh350 million being approximately 25 per cent of the
decretal sum,” the judges ruled, adding that the said deposit or bank
guarantee “shall be provided within 30 days or the conditional stay
shall automatically lapse.”
EAPCC had in its
application pleaded with judges Martha Koome, Hannah Okwengu and J.
Otieno-Odek to suspend the decree pending the appeal, arguing that some
of the items attached constitute tools of trade.
Portland said attachment of those tools would cripple its business operations making it difficult to meet its obligations.
The
union, however, urged the court to deny the cement maker any reprieve,
arguing that the firm had not advanced any solid grounds in its appeal.
The
judges, however, noted that arguable grounds had been established to
warrant granting of reprieve even as they maintained that the stay of
execution would lapse with EAPCC’s failure to provide the Sh350 million
guarantee.
The decree to recover Sh1,401,585,364 emanates from a
long-running dispute arising from EAPCC’s failure to fully implement the
collective bargaining agreement (CBA).
The said CBA was the subject of a dispute before the Labour Court and the Court of Appeal.
Portland Cement was particularly aggrieved by the court’s directive that it increases the wages of contract employees.
The
court held that the contract staff, who were not part of management and
are members of Kcawu by payment of union dues, were entitled to benefit
from the negotiated CBA.
EAPCC’s argument that there
were separate negotiations for non-management workers, some of who were
on contract and others not, was rejected.
The Labour Court found that payment of union dues is what makes an employee a member of a trade union.
Portland
had conceded that the dues paid to staff on contract are different from
that paid to permanent employees though unionisable.
The
reason EAPCC advanced for this was that putting the wages on the same
level is unsustainable and if implemented would require Sh71.3 million
per month that it was unable to raise. EAPCC and Kcawu have negotiated
CBAs since 1961. However, the contract employees were not covered by the
CBA until 2011.
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