Kenya Union of Commercial, Food & Allied Workers v T.S.S. Grain Millers Limited [2014] KEELRC 1184 (KLR)
The bottom line
#Kenyan employers must deduct union dues for any union whose employees sign check-off forms, even if another union already has a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer was under a legal duty to deduct and remit union dues to the Claimant Union despite an existing recognition agreement with a rival union
Yes - the 38 employees' signed Form S constituted written instructions under section 19(1)(g) Employment Act; a check-off in favour of a second union with more than 5 members is lawful and not barred by a recognition agreement with another union
Section 17(11) Employment Act protects the employee's right to dispose of wages as they deem fit, and section 19(1)(g) imposes a positive duty to deduct as requested in writing. Section 48 Labour Relations Act allows a union with more than 5 members employed by an employer to seek a Ministerial order for check-off. Multiple unions may serve check-off lists; the recognition agreement with one union is no bar, though a minority union cannot exercise organisational rights until it meets the recognition threshold.
Whether non-service of the Gazette Notices with Form S defeated the Union's claim
No - it was a mere technical irregularity, though non-service meant the Court directed the Union to serve the notices as a condition of the order
The Respondent was put on notice that the Minister had made an order because the notices were cited in the body of the Form S letter, and the status of the Kenya Gazette is well known. The employer could not claim ignorance of the bank account in good time, but the Union's failure to serve copies was poor practice that prejudiced the Union, justifying a direction to serve the notices before deductions commenced.
Whether an order restraining victimisation or discipline of union members should issue
No - the Union laid no factual grounds for the relief
Neither the motion nor the supporting affidavit set out grounds for the victimisation claim, and the Respondent deposed that no employee had been disciplined on the basis of union activities. Without any evidentiary foundation the interlocutory relief could not be granted and Prayer 4 was dismissed.
Legal principles established
#- An employer cannot resist an employee's written request to have wages deducted and paid to a union; an employer may deduct dues in favour of more than one union notwithstanding a recognition agreement with another union
- Failure to serve a copy of a Gazette Notice cited in the body of Form S is a technical irregularity not causing prejudice
Court orders
#- 1.The Union to serve Gazette Notices Nos 11887 of 7 December 2007 and 7315 of 22 June 2011 upon the Respondent forthwith
- 2.The Respondent to commence deducting and remitting monthly union dues to the Union from the 38 employees named in Form S with effect from July 2014
- 3.Prayer 4 (victimisation/discipline restraint) dismissed
- 4.Main Cause to be fixed for hearing on the merits
- 5.Bakery, Confectionary, Food Manufacturing & Allied Workers Union joined suo moto as an Interested Party
- 6.Claimant Union to serve the Bakery Union with the pleadings and the ruling, with 14 days to file responses if it wishes
- Jurisdiction invoked
- Jurisdiction over the trade dispute stated in the Memorandum of Claim (refusal to sign a recognition agreement) and the interlocutory motion dated 21 March 2014; specific statutory basis in sections 17(11) and 19(1)(g) Employment Act, 2007 and section 48 Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & Allied Workers v T.S.S. Grain Millers Limited [2014] KEELRC 1184 (KLR)", Case Analysis (2014). Not stated in the judgment (Memorandum of Claim filed 26 March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1184/eng@2014-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.