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ELRCPartially AllowedCause — Memorandum of Claim filed 02.02.2011 (Industrial Court, Nakuru)· [2013] KEELRC 343 (KLR)

KENYA PLANTATION AND AGRICULTURAL WORKERS UNION V EXPRESSIONS FLORA LIMITED [2013] KEELRC 343 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
17 May 2013
BOByram Ongaya
4,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled employers must deduct union dues and agency fees once proper statutory notices are served, and agency fees don't violate workers' rights.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim on 02.02.2011 seeking an order compelling the respondent to comply with sections 48 and 50 of the Labour Relations Act, 2007 by deducting and remitting union dues, and to implement the collective bargaining agreement. The respondent, a member of the Agricultural Employers Association bound by the recognition and collective agreement between the union and the Association, opposed the claim through its human resource officer, who testified that of the 457 signatories to the Forms S only 51 were employees, and that 102 letters rejecting the deductions had been received from employees. At trial the respondent did not dispute that it was not opposed in principle to deduction and remittance of union dues and that it was bound by the recognition and collective agreement. The court framed three issues: compliance with section 48, whether agency fees under section 49 violate Article 41(2)(c) of the Constitution, and entitlement to remedies. The court held that a Ministerial Order directed at the employers' organization suffices for member employers; that service of the Form S notice triggers the duty to deduct without need for the employees' concurrence; that there were no valid resignations because the letters were never served on the union and the employees later re-signed check-off forms; and that cessation provisions cannot be invoked where deductions had not commenced. On agency fees, the court held that the statutory regime does not violate the negative right not to join a union and granted the agency fee remedy as the natural alternative to that pleaded, following its BIFU decision and the policy analysis in Peter Wambugu Kariuki. Judgment was delivered at Nakuru on 17 May 2013 with deductions to commence at the end of June 2013 and each party bearing its own costs.

Key legal issues

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01

Compliance with section 48 of the Labour Relations Act for deduction of union dues

Holding

Compliance was established: Ministerial Orders under section 48 existed, Form S notices signed by employees were served, and there were no valid resignations since purported resignation letters were never served on the union and the employees subsequently re-signed check-off forms

Reasoning

The court found the Forms S signed by 457 employees pursuant to Ministerial Orders ending with one effective from 26 October 2007. The purported February 2011 resignation letters (102 letters) were never forwarded to the claimant, and under section 48(8) the employer must forward any resignation notice to the union; the concerned employees later re-signed check-off forms. Deductions had not yet commenced, so cessation provisions could not be invoked by the respondent.

p. 4
02

Agency fees under section 49 and Article 41(2)(c) of the Constitution

Holding

The agency fee regime does not violate the negative right not to join a trade union; the statutory framework promoting strong unions and collective bargaining is upheld, and the court found it just to make an order for agency fees even though framed under section 48 in the pleadings

Reasoning

The court held the right to join a trade union is both positive and negative, but must be assessed in its social and economic effects. Employees who benefit from collective bargaining agreements may be required to contribute by way of agency fees without joining or participating. Drawing on its earlier opinion in the BIFU case, the court granted the agency fee remedy as the natural or obvious likely alternative to that pleaded, guided by Article 159's avoidance of technicalities.

p. 6

Legal principles established

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  • Where a trade union has concluded a recognition and collective agreement with an employers' organization, a Ministerial Order directed at the employers' organization to deduct is sufficient for deductions by any employer being a member of that organization
  • Service upon the employer of the notice in Form S triggers the deduction of trade union dues; there is no statutory requirement for the union to serve the Ministerial Order, nor for the employer to seek the employees' concurrence
  • Cessation provisions on deductions apply only where deductions have commenced; an employer cannot rely on them to justify a failure to deduct in the first place
  • The agency fee regime under section 49 of the Labour Relations Act does not violate the negative right not to join a trade union under Article 41(2)(c), where the statutory administrative and accountability provisions are complied with
  • In assessing the conflict between the positive and negative elements of freedom of association in labour relations, the positive element stands on a higher ground than the negative element

Court orders

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  1. 1.The respondent shall make deduction of union dues and remit to the claimant as per the Forms S completed by the employees who are members of the claimant and employees of the respondent
  2. 2.The respondent shall deduct agency fees and remit to the claimant in accordance with section 49 of the Labour Relations Act, 2007
  3. 3.The parties shall meet within 14 days from the date of the judgment to reconcile the particulars of the respondent's employees subject to orders (a) and (b), and the claimant shall file and serve the reconciled lists by close of 31.05.2013
  4. 4.The claimant shall, only for information reasons, by 31.05.2013, file and serve upon the respondent the Ministerial Orders referred to in the forms signed by its members requiring the respondent to deduct the trade union dues
  5. 5.The deduction and remittance of trade union dues and the agency fees in the matter shall commence at the end of June 2013
  6. 6.Each party to bear own costs of the case

Authorities

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Legislation

  • Labour Relations Act, 2007section 48
  • Labour Relations Act, 2007section 49
  • Labour Relations Act, 2007section 50
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • Banking Insurance & Finance Union (Kenya) – Versus- Kipsigis Teachers SACCO Society Limited
    Cause No. 9 of 2012 at Nakuru
  • Peter Wambugu Kariuki and 16 Others –Versus- Kenya Agricultural Research Institute
    Petition No. 20 of 2013
Jurisdiction invoked
Labour Relations Act, 2007; Article 41(2)(c) of the Constitution of Kenya, 2010; Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "KENYA PLANTATION AND AGRICULTURAL WORKERS UNION V EXPRESSIONS FLORA LIMITED [2013] KEELRC 343 (KLR)", Case Analysis (2013). Cause — Memorandum of Claim filed 02.02.2011 (Industrial Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/343/eng@2013-05-17

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