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ELRCOtherCause Number 1731 of 2011· [2014] KEELRC 620 (KLR)

Kenya Union Of Printing, Paper Manufacturers and Allied Workers v Packaging Industries Limited & another [2014] KEELRC 620 (KLR)

Industrial Court of Kenya
26 February 2014
JRJames Rika
3,024 words in judgment
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The bottom line

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Kenya's Industrial Court ruled a union's recognition depends on continuously holding majority employee support, and ordered a secret ballot to decide which union workers actually want.

What this practically means

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Executive summary

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The Claimant Union filed a dispute seeking recognition by Packaging Industries Limited and action on its Check-Off Lists under Section 48 of the Labour Relations Act, alleging recruitment of 242 of the Respondent's 345 unionisable employees. The Respondent and the Interested Party relied on a 1988 Recognition Agreement and a 2004 Collective Bargaining Agreement, arguing the Claimant had no foundation for recognition and that unions should respect each other's spheres of influence. The Court framed four issues: the validity of the 1988 agreement, whether fresh recognition could be ordered with another union, whether the Claimant should be recognised, and whether its Check-Off Lists should be acted upon. The Court held that recognition rests on a continuous simple majority requirement; because the 2006 strike disrupted the Interested Party's membership base and the simple majority question remained unanswered, the 1988 Recognition Agreement is no longer valid. However, the Court found doubt over the voluntariness of the Claimant's recruitment and the employees' withdrawal from the Interested Party, declining to grant recognition directly. It ordered a democratic ballot of the unionisable employees, conducted by a Labour Officer appointed by the Commissioner of Labour within 21 days, witnessed by a court officer, with results filed within 14 days and the parties to return for further orders. The two unions were to bear the costs of the exercise. The Award was dated and delivered in Nairobi on 26th February 2014 by Rika J.

Key legal issues

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01

Validity of the 1988 Recognition Agreement

Holding

The 1988 Recognition Agreement is no longer valid because the Interested Party has not demonstrated it retains a simple majority of the unionisable employees.

Reasoning

The agreement had a modification and termination clause and was never terminated under it. However, recognition depends on continuous simple majority support, which was disrupted by the 2006 strike and subsequent employee movements. The Court looked beyond the four corners of the document to the factual support base and found the simple majority question unanswered, rendering the agreement invalid.

p. 5
02

Whether the Court can order a fresh Recognition Agreement with another union

Holding

Yes, the Court may order fresh recognition once the employees' choice is democratically established.

Reasoning

The Court affirmed its power to declare a recognition agreement invalid and to order fresh recognition once employees express their preference through a ballot. Recognition is a right resting on the strength of the collective bargaining unit, and employees may move in and out of unions in exercise of the constitutional right to associate and dissociate.

p. 5
03

Whether the Claimant's recruitment was voluntary and whether it should be recognised

Holding

Recognition was not granted to the Claimant; the dispute must be resolved by ballot.

Reasoning

The Court found the Claimant had not convinced it that its recruitment of employees was voluntary, casting doubt on the withdrawal letters from the Interested Party. The longstanding relationship between the Respondent and the Interested Party could not be ended hurriedly without a solid expression of the employees' views, requiring a democratic ballot.

p. 5

Legal principles established

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  • Recognition rests on a continuous simple majority requirement; a recognised union that loses its simple majority may be de-recognised
  • Recognition Agreements are not permanent covenants and may be vacated or amended on several grounds
  • Recognition Agreements do not create mutually respected spheres of influence in a sector

Court orders

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  1. 1.The Commissioner of Labour shall appoint a Labour Officer other than Labour Officers involved with the dispute in the past, to conduct a ballot at the Respondent, within 21 days of the delivery of this Award
  2. 2.The Deputy Registrar of the Industrial Court to designate an Officer from the Court to witness the balloting exercise
  3. 3.Costs of the exercise to be met by the two Trade Unions
  4. 4.The result of the balloting shall be filed in Court within 14 days of the conclusion of the exercise
  5. 5.Parties shall fix the dispute for further orders after the balloting exercise is over

Authorities

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Legislation

  • Labour Relations ActSection 48
  • Labour Relations ActSection 48[6]
  • Labour Relations ActSection 54
  • Labour Relations ActSection 54 [5]
  • Labour Relations ActSection 4 [1]
  • Labour Relations ActSection 69
  • Constitution of KenyaArticle 41
  • Trade Dispute Act Cap 234
  • ILO Conventions Number 87 and 98freedom of association and collective bargaining
Jurisdiction invoked
Trade dispute referred under the Labour Relations Act, 2007 following conciliation and the Industrial Court's jurisdiction over recognition disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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 Union Of Printing, Paper Manufacturers and Allied Workers v Packaging Industries Limited & another [2014] KEELRC 620 (KLR)", Case Analysis (2014). Cause Number 1731 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/620/eng@2014-02-26

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