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ELRCAllowedCause No. 31 of 2007· [2007] KEELRC 14 (KLR)

KENYA HOTELS & ALLIED WORKERS’ UNION v SERENA BEACH HOTEL (MOMBASA) [2007] KEELRC 14 (KLR)

Industrial Court of Kenya
11 September 2007
CCCharles P. ChemmuttutOWO.A. WafulaJKJ.M. Kilonzo
1,744 words in judgment
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The bottom line

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Kenya's Industrial Court ordered Serena Beach Hotel to recognise the union because it had signed up a clear majority of employees, and the hotel never bothered to respond.

What this practically means

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Executive summary

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The Minister for Labour and Human Resource Development referred to the Industrial Court, under Section 8 of the Trade Disputes Act, Cap. 234, a dispute in which the Kenya Hotels & Allied Workers' Union sought formal recognition from Serena Beach Hotel, Mombasa. The Union, registered under Section 11 of the Trade Unions Act and whose constitution permits recruitment of hotel and hospitality employees, alleged that between 1999 and 2000 it recruited 190, or 100%, of the Hotel's unionisable employees, that it was the appropriate union, and that no rival union claimed recognition. The Hotel refused recognition. A Ministerial Demarcation Committee investigating 85 recognition disputes in the hospitality sector found in 2002 that the Union had recruited 190 unionisable employees against nil recruitment by KUDHEIHA Workers, and recommended that hotels negotiate with the union fulfilling the simple majority rule. An earlier dispute (Cause No. 50 of 2002) was withdrawn by agreement in October 2002. Despite further advice in 2004 from the Chief Industrial Relations Officer that the Union had recruited more than the required simple majority, the Hotel still refused. After a fresh mandate in September 2006, the Union held 156 of about 206 (75.7%) unionisable employees. The Hotel filed no reply memorandum and made no verbal response at the hearing; the matter proceeded in default of its submissions. The Court held that the Union had fulfilled the conditions in Section 5(2) of the Act and awarded that the Hotel accord the Union formal recognition and that the parties sign a recognition agreement within three months for collective bargaining. No costs order was made.

Key legal issues

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01

Entitlement to recognition under Section 5(2) of the Trade Disputes Act

Holding

The Union was entitled to formal recognition as it had recruited a simple majority of the Hotel's unionisable employees (156 out of about 206, or 75.7%).

Reasoning

The Union recruited 190 of the Hotel's unionisable employees between 1999 and 2000, and after a fresh mandate in September 2006 had 156 out of about 206 members (75.7%). The Minister's investigator, Mr S.M. Mbae, advised the Hotel that investigations established the union had recruited more than the required legal and mandatory simple majority warranting recognition. The Hotel filed no reply statement and made no verbal response at the hearing, so the demand stood unchallenged. The Court therefore found the statutory conditions met and awarded recognition with a signing obligation.

p. 3
02

Consequences of failure to file a reply or respond at the hearing

Holding

The dispute was heard in default of written submission by the Hotel and the Union's demand stood unchallenged.

Reasoning

The Hotel's representative filed no reply statement to the Union's memorandum and gave no reasons; at the hearing the Hotel's officer sat throughout without uttering a word. The Court treated the Union's claim as unchallenged on the basis of this default, and was satisfied the statutory recognition conditions were fulfilled.

p. 1

Legal principles established

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  • A union that has recruited the simple majority of unionisable employees in an establishment has fulfilled the statutory conditions for recognition under Section 5(2) of the Trade Disputes Act.

Court orders

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  1. 1.The Hotel to accord formal recognition to the Union
  2. 2.The parties to sign a recognition agreement within three (3) months from the date of the award for purposes of collective bargaining
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour and Human Resource Development)

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 HOTELS & ALLIED WORKERS’ UNION v SERENA BEACH HOTEL (MOMBASA) [2007] KEELRC 14 (KLR)", Case Analysis (2007). Cause No. 31 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/14/eng@2007-09-11

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