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ELRCDismissedIndustrial Cause (not stated in judgment)· [2013] KEELRC 926 (KLR)

Fondo Kalama &19; others v Anderson M Mtalaki & 3 others [2013] KEELRC 926 (KLR)

Industrial Court of Kenya
6 December 2013
RSRadido Stephen
2,080 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed employees' claim over union access, ruling that union recognition disputes must be fought by the trade union itself, not individual workers.

What this practically means

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Executive summary

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Sixteen employees of the Kenya Ports Authority Makupa Welfare Club/Centre (waiters, barmen, cooks, cleaners and kitchen cashiers) sued the club's Chairman, Secretary and Treasurer, seeking a declaration that the Respondents' refusal to grant them access to join a trade union of their choice was unfair and unlawful, general damages, and an order authorising them to join a union. The Dock Workers Union had forwarded authority forms for 16 newly recruited members and asked for entrance fees and monthly deductions; the Respondents replied that, per the union's registered constitution, the employees were not eligible as they were not port industry employees, and refused to sign a recognition agreement. The facts not being in dispute, the Cause proceeded by written submissions under Rule 21 of the Industrial Court (Procedure) Rules, 2010. The court reviewed the law on freedom of association under the Constitution, the Labour Relations Act and ILO standards, noting ILO Convention No. 87 had not been ratified by Kenya and that the Claimants had failed to plead the legal provisions relied on. The court held the real dispute was the Dock Workers Union's right to organise and be recognised under section 54 of the Labour Relations Act, which only the Union could enforce. The employees had already exercised their freedom of association and established no prejudice. The Memorandum of Claim was dismissed with no order as to costs on 6 December 2013.

Key legal issues

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01

Whether individual employees can sue to compel union recognition

Holding

No; the claim is misconceived because recognition is a matter between the trade union and the employer under section 54 of the Labour Relations Act

Reasoning

The court accepted that freedom of association is the bedrock of workers' rights and that the 16 employees had joined the Dock Workers Union. However, having joined, the employees' purpose was collective bargaining. The law channels the recognition process through the union itself, which must demonstrate it represents a simple majority of unionisable employees. The proper claimant for recognition is therefore the Union; individual employees had no clear right to the declarations sought and showed no prejudice.

p. 5
02

Whether an employee may join any trade union of his choice

Holding

The court declined to answer, finding the question academic on the facts because the employees had already joined the union and the real dispute concerned recognition

Reasoning

The court observed that within industrial relations, employees join unions not for the mere sake of exercising freedom of association but for the purpose of organising and collectively bargaining. Since the employees had already exercised their freedom of association by joining the Dock Workers Union, answering the abstract question would be an academic exercise; the operative issue was the union's entitlement to recognition, a claim for the Union to bring.

p. 4
03

Non-compliance with Rule 4(d) and (e) of the Industrial Court (Procedure) Rules, 2010

Holding

The Claimants failed to plead the specific legal provisions violated in the Statement of Claim, raising them only in submissions, which complicated the Court's task

Reasoning

The Rules require a Claimant to specify in the Statement of Claim the provisions alleged to have been violated and the laws or conventions relied upon. The Claimants cited Articles 2(5), (6) and 41(2) of the Constitution and ILO Convention No. 87 only in submissions, without the benefit of the Respondents' submissions on those provisions. The court also noted ILO Convention No. 87 does not appear in the list of conventions ratified by Kenya.

p. 3

Legal principles established

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  • Once employees have exercised freedom of association to join a trade union, the proper mechanism for enforcing representation is for the trade union to seek recognition under section 54 of the Labour Relations Act, and the proper party to enforce that right is the Union, not the individual employees

Court orders

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  1. 1.Dismissal of the Memorandum of Claim filed on 8 May 2013
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(5), 2(6) and 41(2)
  • Labour Relations ActSections 4, 5 and 54
  • Industrial Court (Procedure) Rules, 2010Rules 4(d) and (e) and 21
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Industrial Court (implied); Industrial Court (Procedure) Rules, 2010 govern procedure

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, "Fondo Kalama &19; others v Anderson M Mtalaki & 3 others [2013] KEELRC 926 (KLR)", Case Analysis (2013). Industrial Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/926/eng@2013-12-06

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