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ELRCPartially AllowedNot stated in the judgment· [2013] KEELRC 821 (KLR)

Amalgamated Union of Kenya Metal Workers v Unity Auto Garage (NRB) Limited [2013] KEELRC 821 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 September 2013
1,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered an employer to keep deducting and remitting union dues under a gazette notice until the Labour Minister clarifies the order.

What this practically means

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Executive summary

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This ruling of the Industrial Court (M. Mbaru, Judge) determined a Notice of Motion dated 24th July 2013 by the claimant trade union, brought under sections 73, 74 and 80 of the Labour Relations Act and section 12 of the Labour Institutions Act. The claimant sought a stay of the revocation of Gazette Notice No. 14722 of 19th October 2012 and an order compelling the respondent employer to continue deducting and remitting union dues. The union argued that a recognition agreement and CBA existed between the parties, and that the respondent, prodded by the Kenya Motor Repairers Association - an unregistered association and a third party to the recognition agreement and CBA - had refused to remit dues and instead asked the Minister to revoke the gazette notice, contrary to sections 49(3) and 82 of the Labour Relations Act and Article 41 of the Constitution. The respondent countered that the requirements of section 49(2) were not followed in issuing the notice, that only 8 of 52 employees were affected, below the threshold in section 51(1), that the CBA had expired and membership had fallen below the required percentage, and that the application was premature since the gazette notice remained in force and there was nothing to stay. The court held that a recognition agreement and CBA oblige an employer to deduct and remit dues as directed by the Minister; that such directions bind unless procured by misrepresentation or fraud or misused funds; and that under section 59(2) an expired CBA continues to bind the parties until reviewed. The court found justification in the respondent writing to the Minister for clarification but directed interim compliance with Gazette Notice No. 14722 pending the Minister's clarification, with costs in the cause.

Key legal issues

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01

Obligation to remit union dues under a gazette notice backed by a recognition agreement and CBA

Holding

The respondent is bound to comply with the Minister's gazette notice pending clarification from the Minister, even though it may seek clarification on the eligible employees.

Reasoning

The court held that a recognition agreement and CBA create the framework for union dues deduction, and Ministerial directions under section 48 must be obeyed by the employer. A party may seek clarification from the Minister on the nature and effect of the orders, but this does not suspend compliance in the interim. Only misrepresentation, fraud, or misuse of funds would justify non-compliance, none of which was established here.

p. 2
02

Continued binding effect of an expired CBA

Holding

An expired CBA remains binding on the parties until they review it, by virtue of section 59(2) of the Labour Relations Act.

Reasoning

The respondent argued the CBA had expired and membership had fallen below the statutory threshold. The court held that the duty to review a lapsed CBA rests on the parties, and until they do so, the previously applicable CBA continues to bind the employer and the employees who were parties to it, including those who resigned.

p. 2
03

Legality of the Kenya Motor Repairers Association's involvement

Holding

The respondent was justified in writing to the Minister seeking clarification, but the Association is not a party to the recognition agreement or CBA.

Reasoning

The claimant argued the Association, being unregistered as a trade union, could not handle labour matters or seek revocation of the gazette notice. The court accepted that where a party to a CBA seeks clarification of the Minister's orders, it may write to the Minister, and found justification in the respondent's letter, while still requiring interim compliance.

p. 2

Legal principles established

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  • A collective agreement continues to bind the employer and employees who were parties to it even after its nominal expiry and includes members who have resigned, until reviewed by the parties.
  • Where the Minister directs an employer to deduct and remit union dues for five or more employees, the employer must comply unless an employee resigns with written notice or the Minister varies the directions.
  • Ministerial directions on dues remittance stand unless shown to have been obtained through misrepresentation or fraud or the money used for non-trade-union purposes.

Court orders

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  1. 1.The respondent, as the employer, is directed to comply with the requirements outlined in the Gazette Notice No. 14722 of 19th October 2012, pending clarification from the Minister responsible for Labour in Kenya
  2. 2.Costs in the cause

Authorities

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Legislation

  • Labour Relations Actsections 73, 74, 80
  • Labour Relations Actsection 48, 48(2)(a) and (b)
  • Labour Relations Actsection 49(2), 49(3)
  • Labour Relations Actsection 51(1)
  • Labour Relations Actsection 59(2), 82
  • Labour Institutions Actsection 12
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Sections 73, 74 and 80 of the Labour Relations Act and section 12 of the Labour Institutions 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, "Amalgamated Union of Kenya Metal Workers v Unity Auto Garage (NRB) Limited [2013] KEELRC 821 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/821/eng@2013-09-16

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