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ELRCPartially AllowedCause No. 29 of 2006· [2007] KEELRC 13 (KLR)

BAKERY, CONFECTIONERY, MANUFACTURING & ALLIED WORKERS’ UNION v MILL BAKERS LTD [2007] KEELRC 13 (KLR)

Industrial Court of Kenya
15 March 2007
CCCharles P. ChemmuttutOWO.A. WafulaJKJ.M. Kilonzo
2,459 words in judgment
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The bottom line

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Kenya's Industrial Court ordered Mill Bakers to recognise a union representing a simple majority of its employees, ruling casual-worker arguments and Minister findings could not defeat workers' freedom of association.

What this practically means

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Executive summary

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The Minister for Labour referred to the Industrial Court a dispute arising from Mill Bakers Ltd's refusal to sign a recognition agreement with the Bakery, Confectionery, Manufacturing & Allied Workers Union. The Union had recruited 26 of the Company's 50 employees and sought recognition, remittance of union dues, and a declaration that recognition take effect retrospectively from 27th November 2003. An investigation by the Minister had found the 16 of the 26 recruits were casual employees who had since left, and recommended that recognition be denied until the Union recruited a 51% simple majority of unionisable employees. The Union contended there was no legal basis for excluding the casuals and that the Company was engaged in unfair labour practice contrary to ILO Conventions Nos. 87 and 98, the ILO Declaration on Fundamental Principles and Rights at Work, the Industrial Relations Charter and Section 80(1) of the Constitution. The Company disputed the genuineness of some signatures and argued that most recruits were casuals who had left, had resigned, or had withdrawn from the Union. The Court held that the Company's own workforce comprised 50 permanent employees at the material time, so the 26 recruits were permanent employees and the Union had exceeded the simple majority required under Section 5(2) of the Trade Disputes Act. The Court took exception to the Minister's findings and found the Company in violation of the ILO instruments and the Constitution. It ordered the Company to accord formal recognition forthwith and directed the parties to sign a recognition agreement within one month. No retrospective effective date was granted and no costs order was made.

Key legal issues

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01

Whether the Union had recruited a simple majority of the Company's unionisable employees

Holding

The Court held the Union had recruited 26 of 50 employees, exceeding the simple majority, and rejected the Minister's finding that 16 of the recruits were casuals.

Reasoning

The Court noted the Minister denied recognition because 16 of the 26 recruits were said to be casual workers. However, the Company's own submission to the Investigator described its labour force as 50 permanent employees. On that material, the 26 recruits were permanent employees and the Minister's finding was erroneous.

p. 4
02

Whether the Company's refusal to recognise the Union breached international labour standards and the Constitution

Holding

The Court found the Company's refusal violated ILO Conventions Nos. 87 and 98, the ILO Declaration, the Industrial Relations Charter and Section 80(1) of the Constitution.

Reasoning

The Court accepted the Union's submissions founded on freedom of association guarantees, including the protection against anti-union discrimination in ILO Convention No. 98 and Section 80(1) of the Constitution guaranteeing freedom to form or belong to trade unions, and found the Company in violation.

p. 4

Legal principles established

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  • Casual workers recruited by a union must be counted where the employer's own workforce figures show the employees were permanent, and a union that has recruited a simple majority of unionisable employees is entitled to recognition.
  • An employer's refusal to recognise a union enjoying majority membership violates ILO Conventions Nos. 87 and 98, the ILO Declaration on Fundamental Principles and Rights at Work, the Industrial Relations Charter and Section 80(1) of the Constitution of Kenya.

Court orders

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  1. 1.The Company to accord forthwith formal recognition to the Union as the sole and appropriate representative of the unionisable employees in its establishment
  2. 2.The parties to sign a recognition agreement within one month from the date of the award
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 - reference of the dispute to the Court 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 MILL BAKERS LTD [2007] KEELRC 13 (KLR)", Case Analysis (2007). Cause No. 29 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/13/eng@2007-03-15

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