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ELRCPartially AllowedCause No. 54 of 2002· [2003] KEELRC 11 (KLR)

BAKERY, CONFECTIONERY, MANUFACTURING & ALLIED WORKERS’ UNION v DAIS BAKERY (1996) LTD [2003] KEELRC 11 (KLR)

Industrial Court of Kenya
12 November 2003
CCCharles P. ChemmuttutJKJ.M. KilonzoMJM.M.M. Jahazi
1,312 words in judgment
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The bottom line

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Kenya's Industrial Court ordered Dais Bakery to recognise the workers' union but refused to backdate the agreement, so recognition only applies going forward.

What this practically means

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Executive summary

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The Minister for Labour, under Section 8 of the Trade Disputes Act, Cap. 234, referred to the Industrial Court a dispute over the Company's refusal to recognise the Union. The Union had previously been rejected in Cause No.124 of 1999 but was told to pursue the laid-down procedure. It served check-off forms signed by a majority of unionisable employees and a model recognition agreement, which the Company refused to sign on the ground that the listed workers were casuals. A trade dispute was reported, investigated, and in July 2001 the Minister found the workers were legally not casuals, that no law barred casuals from joining a union, that there was no rival union, and recommended formal recognition. The Company nonetheless refused to sign. The Union prayed that the Court uphold the Minister's findings, order execution of the recognition agreement, and give it a retrospective effective date of 26th October 2000. The Company filed no reply and did not appear, so the matter proceeded ex parte. The Court, finding the Union's case unrebutted and the requirements of Section 5(2) satisfied, upheld the Minister's findings and recommendation, ordered formal recognition of the Union as sole representative of the unionisable employees, and directed the parties to sign a recognition agreement within two months. It declined to make the agreement retrospective, holding that imprudent in a recognition dispute. The award was delivered at Nairobi on 12th November 2003 with both members in full agreement.

Key legal issues

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01

Whether the Union had met the requirements for recognition under Section 5(2) of the Trade Disputes Act

Holding

The Court upheld the Minister's findings that the Union had recruited 69 employees who signed check-off forms, that the workers were not casuals, and that there was no rival union; the Company was ordered to accord the Union formal recognition.

Reasoning

The Company neither filed a reply nor appeared despite due service, so the Union's case was uncontroverted. The Minister's investigator had found the workers were long-serving and legally not casuals, and that no rival union claimed the same workers. On that unrebuted evidence, the Court found the statutory requirements for recognition under Section 5(2) were satisfied and upheld the Minister's recommendation.

p. 1
02

Whether the recognition agreement should operate retrospectively from 26th October 2000

Holding

The Court declined to give the award retrospective effect, though it granted recognition prospectively.

Reasoning

Although the Union sought an effective date of 26th October 2000 to enable employees to benefit from their labour over the intervening period, the Court held it was not prudent to grant retrospective relief in a recognition dispute. It therefore only ordered recognition and signing of the agreement within two months, going forward from the award date.

p. 3

Legal principles established

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  • A union that has recruited the majority of unionisable employees through duly signed check-off forms has met the statutory requirements for recognition, and an employer's refusal on the ground that the workers are casuals lacks legal merit.

Court orders

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  1. 1.The Company to accord formal recognition to the Union as the sole and right representative of its unionisable employees
  2. 2.The parties to sign a recognition agreement within two (2) months from the date of the award

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234Section 8
  • Trade Disputes Act, Cap. 234Section 14(9)(e)
  • Trade Disputes Act, Cap. 234Section 46(1)
  • Trade Disputes Act, Cap. 234Section 4(1)
  • Trade Disputes Act, Cap. 234Section 5(2)
  • Constitution of KenyaSection 73
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "BAKERY, CONFECTIONERY, MANUFACTURING & ALLIED WORKERS’ UNION v DAIS BAKERY (1996) LTD [2003] KEELRC 11 (KLR)", Case Analysis (2003). Cause No. 54 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2003/11/eng@2003-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.