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ELRCDismissedCause 389 of 2010· [2013] KEELRC 330 (KLR)

KENYA HOTELS AND ALLIED WORKERS UNION V VOYAGER BEACH RESORT [2013] KEELRC 330 (KLR)

Industrial Court of Kenya
27 February 2013
MOMaureen Onyango
1,230 words in judgment
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The bottom line

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A Kenyan union failed to force an employer to recognise it because it could not prove it had recruited a simple majority of workers.

What this practically means

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Executive summary

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This Industrial Court award, prepared by Lady Justice Maureen Onyango after the case was heard and finalized by Justice Charles P. Chemmuttut who did not prepare the award before the Court's reconstitution, determines a recognition dispute between the Kenya Hotels and Allied Workers Union and Voyager Beach Resort. The Claimant union sought an order compelling the Respondent to sign a recognition agreement and to deduct union dues, asserting it had recruited a simple majority (stated as 257 employees) of the Respondent's unionisable staff. The Respondent opposed, stating it was a member of the Kenya Association of Hotel Keepers and Caterers, which had a recognition agreement with KUDHEIHA Workers, that the Claimant lacked a simple majority, and that employees did not want dues deducted for two unions. The court framed six issues. It found that KUDHEIHA remained a rival union in the hotel industry notwithstanding an earlier decision in Cause 39 of 2007, and that conflicting decisions in Causes 39 and 109 of 2007 prevented it leaning either way. The Claimant failed to demonstrate when it achieved a simple majority; the recognition agreement was dated 17th August 2007 before any members' names were submitted, so the Respondent was under no obligation to sign. No evidence of victimization was proved. The court also declined to order dues deductions, holding it would be against workers' rights to force payment in the circumstances. The claim was dismissed with each party bearing its own costs, the court noting a pending petition on industry representation.

Key legal issues

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01

Whether the Claimant is the sole appropriate union for the hotel industry

Holding

KUDHEIHA is a rival union still representing employees in the hotel industry, so the Claimant is not the sole union

Reasoning

A prior decision (Cause 39 of 2007) had directed KUDHEIHA to vacate the hotel industry, but as a matter of fact KUDHEIHA still represents all members of the Association of Hotel Keepers and Caterers. Faced with conflicting decisions in Causes 39 of 2007 and 109 of 2007, the court held it could not lean on either side and found KUDHEIHA to be a rival union.

p. 2
02

Whether the Claimant had recruited a simple majority

Holding

The Claimant failed to prove the point at which it achieved a simple majority

Reasoning

The check off forms sent to the Respondent on 30th November 2008 related to membership between May 2007 and September 2008, and the recognition agreement was dated 17th August 2007 before any names were submitted. The numbers also fluctuated between 247 and 123. Without proof of majority, no obligation to sign arose.

p. 2
03

Whether the Respondent should be compelled to sign a recognition agreement

Holding

No, the Claimant did not qualify for recognition

Reasoning

Given the failure to prove a simple majority, the existence of a rival union, the recognition agreement between the employers' association and KUDHEIHA, and conflicting prior decisions, the court declined to compel the Respondent to recognize the Claimant.

p. 3

Legal principles established

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  • A union seeking recognition must demonstrate when it achieved a simple majority and submit members' names to the employer before demanding execution of a recognition agreement
  • The court will not force employees to pay union dues where employees have withdrawn and already pay agency fees under another union's collective agreement

Court orders

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  1. 1.Dismissal of the claim by the Claimant
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Jurisdiction of the Industrial Court over labour disputes (recognition agreement dispute under the Labour Relations Act)

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 AND ALLIED WORKERS UNION V VOYAGER BEACH RESORT [2013] KEELRC 330 (KLR)", Case Analysis (2013). Cause 389 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/330/eng@2013-02-27

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