Jumbo Foam Mattresses Industries Limited v Kenya Chemical and Allied Workers Union [2020] KECA 285 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer must recognise a union once it signs up a simple majority of workers, and fake outsourcing cannot stop it.
What this practically means
#Executive summary
#Key legal issues
#Simple majority requirement for recognition of a trade union
The respondent had recruited 156 members out of a workforce of 230, being 67.8% of unionisable employees, clearly above the simple majority required under section 54 of the Labour Relations Act, so the employer was obliged to sign a recognition agreement
Section 54 of the Labour Relations Act requires an employer to recognise a union representing the simple majority of unionisable employees. The court accepted the respondent's figures of 156 of 230 employees (67.8%), which surpassed the simple majority threshold. The appellant's attempt to reduce this figure by excluding alleged outsourced workers failed because no written contracts of employment with the outsourcing firms were produced. The trial court's finding of a simple majority therefore stood.
Whether the alleged outsourcing to Norgen Enterprises Limited and Liberty Associates defeated the union's majority claim
The outsourcing arrangement was a sham fabricated to defeat the union's recognition claim, since there was no proof of written employment contracts with the outsourcing companies
The appellant contended that 170 of its 280 employees were outsourced to Liberty Associates and that others belonged to Norgen Enterprises Limited, and it faulted the trial judge for calling the outsourcing a sham. On re-evaluation, the Court found no written contracts of employment with those entities existed, rendering the outsourcing claim mischievous. It adopted the trial judge's characterisation of the arrangement as a sham meant to defeat recognition, and held that coerced transfers after attainment of the simple majority were inconsequential.
Status of the appeal in light of subsequent compliance with the decree
The appeal was academic because the recognition agreement had been signed, dues deducted and remitted, and a CBA negotiated
The respondent submitted that the decree had been satisfied: union dues had been deducted and submitted, and a CBA covering terms and conditions of service had been renegotiated, creating new rights for employees. The Court accepted, as pointed out by the respondent's counsel, that the recognition agreement had been signed, and observed that the appeal was merely academic. This did not change the outcome since the appeal was in any event held to be devoid of merit on its substance.
Legal principles established
#- An employer is bound to recognise a trade union for collective bargaining where that union represents the simple majority of unionisable employees
- A purported outsourcing of employees is a sham where there is no proof of written contracts of employment with the purported outsourcing companies, and such an arrangement cannot be used to defeat a union's quest for recognition
- On a first appeal the Court of Appeal re-evaluates the evidence and draws its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Industrial Court of Kenya (Employment and Labour Relations Court) at Kisumu
- Kisumu Civil Cause No. 240 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment is expressly treated as 'a first appeal'), from the Industrial Court at Kisumu
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jumbo Foam Mattresses Industries Limited v Kenya Chemical and Allied Workers Union [2020] KECA 285 (KLR)", Case Analysis (2020). Civil Appeal No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/285/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.