Kenya Scientific Research International Technical and Allied Institutions Workers Union v Kenya Agricultural Research Institute & another [2013] KEELRC 146 (KLR)
The bottom line
#Kenya's Industrial Court ruled employers must let unions onto workplace premises to recruit staff, as long as the union gives notice and doesn't disrupt work.
What this practically means
#Executive summary
#Key legal issues
#Res judicata in trade disputes
The res judicata objection fails; prior causes did not bar the present claim
The Court held that recognition of trade unions is a continuous process, and issues over recognition can legitimately re-arise between the same parties. Prior determinations in Causes 48 N of 2009, 355 of 2009 and 575 of 2010 did not finally settle the question of access and recruitment. The industrial justice system applies res judicata with caution, since the phrase 'final' is relative in labour disputes, particularly regarding recognition and collective bargaining.
Access to workplace for union recruitment
The Claimant is granted access to recruit, subject to notice and timing conditions
The Court found the right of access inherent in legitimate trade union activity under the Constitution and the Labour Relations Act. The failure to submit fresh check off forms as ordered in Cause 48 N of 2009 may have resulted from lack of access. The access orders earlier granted to the Interested Party did not bar the Claimant, and it would be unreasonable to deny the Claimant access given its long association with the Respondent's employees since 2003.
Freedom of association and competing unions
Employees remain free to join, leave and shift between trade unions regardless of recognition
Recognition rests on freedom of association, which includes the right to dissociate as much as to associate. Recruitment is a continuous process and even where an employer has recognized one union, employees are not barred from shifting allegiance to another. The Court urged the competing unions to resolve their differences at their own level with the assistance of the Trade Union Centre.
Legal principles established
#- Res judicata should be applied with caution in trade disputes, as recognition is a continuous process and the same issues can legitimately re-arise between the same parties
- The right of access to workplaces for recruitment is inherent in legitimate trade union activity, subject only to reasonable regulation such as notification of the employer and timing
- Freedom of association encompasses both the right to associate and to dissociate; employees may shift allegiance between trade unions even after recognition of one union
Court orders
#- 1.The Respondent shall grant the Claimant Union access to its premises for purposes of recruitment of unionisable employees as members of the Claimant Union
- 2.The Claimant shall notify the Respondent at least 7 days before undertaking such exercise
- 3.Recruitment shall be undertaken during tea, lunch breaks, and/or the close of business, and shall not be timed to disrupt the normal performance of duties by potential recruits
- 4.No order on the costs
- Jurisdiction invoked
- Industrial Court jurisdiction over trade disputes referred under the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Scientific Research International Technical and Allied Institutions Workers Union v Kenya Agricultural Research Institute & another [2013] KEELRC 146 (KLR)", Case Analysis (2013). Cause Number 639 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/146/eng@2013-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.