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ELRCOtherCause No. 30 of 2001· [2003] KEELRC 12 (KLR)

KENYA SHIPPING, CLEARING & WAREHOUSES WORKERS UNION V JIHAN FREIGHTERS LTD [2003] KEELRC 12 (KLR)

Industrial Court of Kenya
23 May 2003
1,066 words in judgment
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The bottom line

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A Kenyan labour court delayed recognising a union until a secret ballot confirmed whether workers truly wanted it.

What this practically means

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Executive summary

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This interim award of the Industrial Court of Kenya at Mombasa, presided over by Charles P. Chemmuttut, J, with Members A.K. Kerich and H.B.N. Gicheru concurring, determined a trade dispute referred to the Court by the Minister for Labour on 16th March 2001 under Section 8 of the Trade Disputes Act, Cap. 234. The issue in dispute was a recognition agreement. The Union claimed it had recruited a simple majority of the Company's unionisable employees from September 1999 and that the Company had refused to sign a recognition agreement; the Minister's investigation found the Company to have been arrogant and anti-union and recommended formal recognition, which the Union accepted but the Company rejected for want of proof of membership. The Company in reply asserted that no documentary proof of recruitment was ever provided despite repeated requests, and that it was willing to accord recognition once the Union proved a simple majority. The Court found the Union had a strong case for recognition, but noted that contrary to Section 46(1) of the Act it had refused to serve check-off forms on demand for fear of victimisation. The Court accordingly declined to order immediate recognition and instead directed Mr. J.N. Macharia of the Economic Planning Division to conduct a secret ballot of the unionisable employees, with reasonable access and in the presence of both parties' representatives, to determine whether they wished to belong to the Union, to be completed within one month, with the final decision to follow upon receipt of the results. Both Members of the Court agreed. No costs order was made.

Key legal issues

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01

Recognition of a union by an employer

Holding

The Union had a strong case for recognition, having recruited more than a simple majority of unionisable employees per the Minister's investigation, but final recognition was deferred pending a secret ballot

Reasoning

The Union recruited 11 of 17 unionisable employees according to the Minister's investigation, and the Minister recommended formal recognition. However, the Union refused to serve check-off forms contrary to Section 46(1) of the Act. The Court therefore directed a secret ballot to establish the true wishes of the employees before making a final decision.

p. 2
02

Compliance with Section 46(1) - service of check-off forms

Holding

The Union's refusal to serve check-off forms on demand was contrary to Section 46(1) of the Trade Disputes Act, which weighed against granting immediate recognition

Reasoning

The Court found that on demand, and contrary to Section 46(1) of the Act, the Union refused to serve check-off forms upon the Company, allegedly for fear of victimisation of the unionisable employees who became members. This non-compliance justified the direction of a secret ballot rather than an immediate recognition order.

p. 2
03

Method of ascertaining union membership

Holding

A secret ballot conducted by an independent officer with access to employees, in the presence of both parties' representatives, is the best method of establishing whether the Union has bona fide members

Reasoning

The Court held that the exact and true wishes of the unionisable employees had to be established, and that the best way was to give the employees an opportunity to express their wishes through a secret ballot, conducted by Mr. J.N. Macharia of the Economic Planning Division with reasonable access to the employees and in the presence of both parties' representatives.

p. 2

Legal principles established

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  • Where a union claims recognition but has failed to serve check-off forms as required by Section 46(1) of the Trade Disputes Act, the court may order a secret ballot to ascertain the genuine wishes of the unionisable employees

Court orders

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  1. 1.Directed Mr. J.N. Macharia of the Economic Planning Division (EPD) to undertake a secret ballot of the unionisable employees, with reasonable access to them and in the presence of both parties' representatives, to determine whether they wish to belong to the Union
  2. 2.The secret ballot exercise to be completed within one month from the date of the interim award
  3. 3.The Court to make its final decision immediately on receipt of the results of the secret ballot

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 8
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 14(9)(e) and (f)
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 46(1)
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya - 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, "KENYA SHIPPING, CLEARING & WAREHOUSES WORKERS UNION V JIHAN FREIGHTERS LTD [2003] KEELRC 12 (KLR)", Case Analysis (2003). Cause No. 30 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2003/12/eng@2003-05-23

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