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ELRCDismissedIndustrial Cause (Mombasa) – Memorandum of Claim filed 19 September 2012· [2014] KEELRC 873 (KLR)

Kenya Union Of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Raffia Bags (EA) Limited [2014] KEELRC 873 (KLR)

Industrial Court of Kenya
21 March 2014
RSRadido Stephen
3,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's recognition claim because it had recruited fewer than half the workers needed, confirming employers can't be forced to recognise unions without majority support.

What this practically means

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Executive summary

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The Union claimed that the Respondent refused to accord it union recognition, deducted and failed to remit union dues, and unfairly terminated 34 union members (5 shop stewards and 29 employees) because of their union activities. The Union sought recognition, a check-off system, reinstatement or twelve months' compensation, and costs. The Respondent raised a preliminary objection that the Cause was prematurely filed without resort to conciliation under the Labour Relations Act and the Industrial Court Act, and defended the claim on the merits, asserting it was a distinct entity from Raffia Bags (K) Ltd, having bought only that company's assets, and that all employees were on 6-month fixed-term contracts that lapsed automatically. The court held, preferring Rika J's decision in the Color Creations case, that conciliation is not mandatory in recognition disputes, so the Cause was not prematurely filed. On the merits, the Union failed to prove a simple majority of the unionisable workforce, its unfair termination claim failed because the contracts had lapsed and were not renewed, and the dues complaint was unsustainable given the Respondent's uncontroverted evidence of remittances. The court held the Respondent a separate juristic person but flagged an anomaly in a taxpayer certificate predating the change of name. The claim was dismissed with no order as to costs, the Union being at liberty to recruit afresh, and the court directed that a parallel Nairobi cause be placed before the Principal Judge for directions.

Key legal issues

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01

Whether conciliation is mandatory in recognition disputes before moving to court

Holding

Conciliation is not mandatory; the Cause was therefore not prematurely filed and does not offend the cited statutory provisions

Reasoning

The court preferred Rika J's position in the Color Creations case to Kosgey J's in Maisha Mabati. Sections 54(6) read with Part VIII and section 74 of the Labour Relations Act provide for optional conciliation and urgent referral. Article 159(2)(c) of the Constitution and the Industrial Court Act promote ADR, but conciliation is a policy preference, not a jurisdictional precondition. Once parties choose conciliation, however, it must be exhausted.

p. 3
02

Whether the Union attained the statutory threshold for recognition

Holding

No. Even accepting the Union's claimed 91 recruits out of 192 unionisable staff, that is only 47%, below a simple majority

Reasoning

There were discrepancies between the claimed numbers on the check-off forms (83 and 13, totalling 96, but the forms showed 78 and 13) and the Respondent's workforce list of 201 employees with 9 in management. The court could not verify the Union's claimed 146 unionisable workforce. The court found the Union had not met the simple-majority threshold in section 54 of the Labour Relations Act and made no definitive finding on whether it was the right union.

p. 4
03

Whether the 34 employees were unfairly or discriminatively terminated

Holding

No. All employees, including the 34, were on 6-month fixed-term contracts that lapsed automatically on 15 September 2012 and were not renewed

Reasoning

The Union's own witnesses confirmed under cross-examination that all employees were on 6-month contracts and were paid their dues on expiry. The contracts, signed by the employees, were effective 16 March 2012 and lapsed automatically on 15 September 2012. Non-renewal due to reduced business did not amount to unfair or discriminatory termination despite allegations of intimidation by the Managing Director.

p. 5
04

Whether the Respondent is the same entity as Raffia Bags (K) Ltd and thus bound by the earlier recognition agreement

Holding

The Respondent is a distinct legal entity; the Union failed to establish continuity or pierce the corporate veil

Reasoning

The Respondent exhibited a certificate of incorporation of Polycem Bags Ltd dated 6 September 2011 and a change of name to Raffia Bags (East Africa) Ltd dated 15 December 2011. It bought the assets, not the employees, who had been retrenched. The Union did not plead or prove grounds to pierce the corporate veil of the three entities. The court however flagged an anomaly: a Taxpayer Registration Certificate in the Respondent's name dated 28 October 2011, before the change of name.

p. 5
05

Whether the Respondent failed to deduct and remit union dues

Holding

The complaint failed because the Respondent proved deductions and remittances were made

Reasoning

The Respondent exhibited monthly reports of union dues deductions from September 2012 to January 2013 together with payment cheques, and the Union did not controvert this evidence. The court accordingly found the claim unsustainable.

p. 4

Legal principles established

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  • Conciliation is not a mandatory precondition to filing a recognition dispute in the Industrial Court, though it should be encouraged; where parties opt for conciliation they must exhaust it before moving to court
  • A trade union must attain a simple majority of unionisable employees before it is entitled to a recognition agreement under section 54 of the Labour Relations Act
  • Recognition disputes should not be mixed or litigated together with Employment Act individual-rights claims, as this conflates issues and may cause prejudice
  • A registered company has its own separate juristic personality, and a claimant asserting continuity of obligations with a different entity must do more to establish identity
  • Parties must be discouraged from filing multiple suits over the same subject matter

Court orders

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  1. 1.The Cause is dismissed with no order as to costs
  2. 2.The Union is at liberty to initiate fresh recruitment with a view to collective bargaining
  3. 3.The Deputy Registrar to place a copy of the judgment before the Deputy Registrar, Nairobi, with a view to placing Cause No. 2179 of 2012 before the Principal Judge for further directions

Authorities

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Legislation

  • Labour Relations Actsections 4, 5, 48, 54, 54(6), 57, 62, 62(4), 74; Part VIII
  • Employment Actsections 5, 35, 41, 43, 45, 46
  • Industrial Court Actsection 15
  • Industrial Court (Procedure) Rules, 2010rule 6(3)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (5)

  • Kenya Engineering Workers Union v Maisha Mabati-Ruiru
    Nairobi Cause No. 436 of 2010
  • Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers Union v Color Creations Ltd
    Nairobi Cause No. 99 of 2010
  • Kenya Shoe & Leather Workers Union v Raffia Bags (K) Ltd
    Nairobi Cause No. 728 of 2010 (2011?)
  • Transport Workers Union (K) vs. Ideal Logistics Ltd
    Nairobi Industrial Cause No. 1435 of 2012
  • Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Raffia Bags (EA) Ltd
    Nairobi Cause No. 2179 of 2012
Jurisdiction invoked
Industrial Court Act, sections 15 and 74; Labour Relations Act recognition dispute provisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Raffia Bags (EA) Limited [2014] KEELRC 873 (KLR)", Case Analysis (2014). Industrial Cause (Mombasa) – Memorandum of Claim filed 19 September 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/873/eng@2014-03-21

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