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ELRCPartially AllowedPetition No. 12 of 2014 (Consolidated with Petition No. 14 of 2014)· [2014] KEELRC 240 (KLR)

P.J. Dave Flowers Limited & another v Kenya Plantation and Agricultural Workers Union & another [2014] KEELRC 240 (KLR)

Industrial Court of Kenya
25 September 2014
8,771 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 that flower farms that joined and left an employers' association were still bound by its union agreements for their full terms, including back pay.

What this practically means

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Executive summary

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The Petitioners, two flower-farming companies, petitioned the Industrial Court to stop a strike threatened by the Kenya Plantation and Agricultural Workers Union via a strike notice dated 3rd March 2014, contending the union had not followed the statutory strike procedure, had not supplied an updated members' register, and that no CBA bound them, especially after their withdrawal from the Agricultural Employers Association in July 2013. The union countered that it had complied with the Labour Relations Act, that check-off forms had been served, and that the Petitioners were bound by CBAs concluded between the union and the Association while the Petitioners were members. The Association was enjoined as an Interested Party. The court consolidated the petitions, stayed the strike notice on 10th March 2014 and directed CBA negotiations. Framing four issues, the court held that freedom of association under Articles 36 and 41 is central to labour relations; that a federation member may negotiate direct recognition with a union for matters not covered by the federation agreement, but only with written notice to the federation; and that under section 59(1) and (2) of the Labour Relations Act the CBAs for 2011-2013 and 2013-2015 bind the Petitioners for their entire durations, notwithstanding their opting in and out of the Association. The effective date of a CBA cannot be chosen by the parties. The court declared the parties bound by both CBAs, restrained industrial action under the strike notice, ordered remittance of all outstanding union dues and agency fees by 2nd October 2014, directed that withdrawal from the federation recognition be expressed in writing under section 54(5), and ordered each party to bear its own costs. The judgment also cautions that repeated opting in and out of negotiations amounts to an unfair labour practice.

Key legal issues

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01

Whether a member of an employers' federation can negotiate a direct CBA with a union

Holding

Yes - a member may negotiate directly with the union on matters not covered by the federation CBA, but such direct recognition must be communicated in writing to the federation; absent a separate recognition agreement, the federation's agreement applies.

Reasoning

The court noted the Interested Party's Recognition Agreement precludes negotiations with members on covered matters. Where a member faces a unique situation not adequately covered by the federation CBA, the member may enter recognition directly with the union, provided the federation is notified in writing. Absent that, the federation Recognition Agreement applies to its members.

p. 11
02

Whether the CBAs between the Interested Party and the Respondent bind the Petitioners

Holding

Yes. By operation of section 59(1) and (2) of the Labour Relations Act, the CBAs for 2011-2013 and 2013-2015 bind the Petitioners for their entire durations, including through their withdrawal from and re-joining of the Interested Party.

Reasoning

Section 59(1)(c) binds employers who become members of an employers' organisation party to a collective agreement; section 59(2) keeps the agreement binding on those who resign. The Petitioners joined the Interested Party when a CBA was running, withdrew, and later re-joined; in each case the applicable CBA became effective and binding on them for its full duration.

p. 13
03

Whether the CBA takes effect from the date of admission or from its effective date

Holding

From the effective date - the entire duration of the CBA - not a date chosen by the parties.

Reasoning

The court rejected the Petitioners' submission that applying the CBA from the date of admission was the most efficient route. Section 59 imposes a legal requirement on when a CBA takes effect; a CBA cannot be applied in piecemeal, and its entire duration is relevant. Retroactive application is thus the statutory consequence, not a punitive choice.

p. 14
04

Whether the Petitioners must deduct and remit union dues and agency fees

Holding

Yes, for the periods the CBAs are in force, including arrears, payable by 2nd October 2014.

Reasoning

Since the CBAs apply to the Petitioners for their entire durations, the union dues and agency fees accruing during those periods became due and owing. The Respondent invoked section 76(1)(c) of the Labour Relations Act after deductions were stopped. The court directed remittance of all dues outstanding to date.

p. 13
05

Whether the strike notice of 3rd March 2014 was lawful

Holding

The notice, though permitted under the applicable CBA, had to be read within sections 76 and 77 of the Labour Relations Act, and the Court had to give directions before enforcement; the Respondent was restrained from industrial action under that notice.

Reasoning

The court invoked section 77(3), which permits the Industrial Court to direct parties to engage in further conciliation in good faith before a strike notice is enforced. Recognition disputes had repeatedly spawned suits and strike notices; the court required each party to engage in further conciliation within the realms of fair labour practices.

p. 15

Legal principles established

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  • A collective agreement binds employers who are or become members of an employers' organisation party to the agreement, and continues to bind parties who resign from that organisation for the duration of the agreement.
  • The effective date of an applicable CBA is not a matter of choice for the parties; the entire duration of the CBA is relevant.
  • Opting in and out of negotiations and association membership during CBA negotiations, even where a right to associate exists, may constitute an unfair labour practice indicating lack of good faith.
  • Employee terms and conditions of employment do not cease merely because the employer has withdrawn membership from an employers' organisation or federation.

Court orders

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  1. 1.A declaration that the Petitioners and the Respondent are bound by the terms of the Collective Bargaining Agreements applicable for the periods 2011-2013 and 2013-2015 as between the Respondent and the Interested Party
  2. 2.A declaration that the effective dates for the application of the CBAs is the entire duration of the 2011-2013 and 2013-2015 agreements, subject to any reviews of the 2013-2015 agreement by consent or lawful orders
  3. 3.Where the Petitioners no longer wish to be bound by the Interested Party Recognition Agreement and CBA, this is to be expressed in writing (per section 54(5) of the Labour Relations Act)
  4. 4.The Respondent shall not engage in industrial action vide notice dated 3rd March 2014
  5. 5.The Petitioners shall remit Trade Union dues of all unionisable employees who are members of the Respondent and agency fees from all unionisable employees who are not members, as due and outstanding, to be paid on or before 2nd October 2014
  6. 6.Mention on 9th October 2014 for the Court to confirm compliance
  7. 7.Each party will bear their own costs

Authorities

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Legislation

  • Labour Relations Actsection 73(1)
  • Labour Relations Actsection 76(1)(c)
  • Labour Relations Actsection 79
  • Labour Relations Actsection 2 (definitions of Recognition Agreement and Collective Agreement)
  • Labour Relations Actsection 54(2)
  • Labour Relations Actsection 54(5)
  • Labour Relations Actsection 59(1), (2) and (3)
  • Labour Relations Actsection 77(3)
  • Labour Relations Actsections 48 and 49
  • Labour Relations Actsection 6
  • Constitution of KenyaArticle 36
  • Constitution of KenyaArticle 41(3)(e)
  • Companies Act
  • ILO Constitution
  • ILO Declaration of Philadelphia1944
  • ILO Declaration on Fundamental Principles and Rights at Work1998
  • Universal Declaration of Human Rights1948
  • Covenant on Civil and Political Rights
  • African Charter on Human and Peoples' Rights1981

Cases cited (2)

  • Collins Oroto Lukhale versus AAA Growers Limited
    Industrial Cause No. 100 of 2012
  • Elizabeth Washeke and 62 Others versus Airtel (K) Limited and Another
    Cause No. 1972 of 2013
Jurisdiction invoked
Articles 36 and 41 of the Constitution of Kenya and 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, "P.J. Dave Flowers Limited & another v Kenya Plantation and Agricultural Workers Union & another [2014] KEELRC 240 (KLR)", Case Analysis (2014). Petition No. 12 of 2014 (Consolidated with Petition No. 14 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/240/eng@2014-09-25

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