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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim filed 26 March 2014)· [2014] KEELRC 1184 (KLR)

Kenya Union of Commercial, Food & Allied Workers v T.S.S. Grain Millers Limited [2014] KEELRC 1184 (KLR)

Industrial Court (Employment and Labour Relations Court)
18 July 2014
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Kenya Union of Commercial, Food & Allied Workers Union filed a Memorandum of Claim against T.S.S. Grain Millers Ltd on 26 March 2014 over refusal to sign a recognition agreement, accompanied by a motion seeking orders that the Respondent deduct and remit union dues, restrain victimisation of union members, and recognise the Union. The Union had recruited 38 of the Respondent's employees and served Form S (check-off forms) referencing Gazette Notices Nos. 11887 and 7315 of 7 December 2007 and 22 June 2011. The Respondent opposed, asserting an existing recognition agreement and CBA with the Bakery, Confectionary, Food Manufacturing & Allied Workers Union, to which it was already remitting dues. The Court, per Radido Stephen J, held that under sections 17(11) and 19(1)(g) of the Employment Act, 2007 employees may direct deduction of wages to a union of their choice, and under section 48 of the Labour Relations Act, 2007 more than one union may serve an employer with check-off lists; a recognition agreement with one union does not bar a second check-off for a union with more than 5 members. Non-service of the Gazette Notices was a mere technical irregularity. Prayer 3 was granted: the Union to serve the Gazette Notices forthwith and the Respondent to commence deductions and remittances for the 38 employees from July 2014. Prayer 4 (victimisation restraint) was dismissed for want of grounds. The Court directed the main cause to proceed on the merits and suo moto joined the Bakery Union as an Interested Party.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 3
02

Whether non-service of the Gazette Notices with Form S defeated the Union's claim

Holding

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

Reasoning

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.

p. 3
03

Whether an order restraining victimisation or discipline of union members should issue

Holding

No - the Union laid no factual grounds for the relief

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Union to serve Gazette Notices Nos 11887 of 7 December 2007 and 7315 of 22 June 2011 upon the Respondent forthwith
  2. 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. 3.Prayer 4 (victimisation/discipline restraint) dismissed
  4. 4.Main Cause to be fixed for hearing on the merits
  5. 5.Bakery, Confectionary, Food Manufacturing & Allied Workers Union joined suo moto as an Interested Party
  6. 6.Claimant Union to serve the Bakery Union with the pleadings and the ruling, with 14 days to file responses if it wishes

Authorities

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Legislation

  • Employment Actsection 17(11)
  • Employment Actsection 19(1)(g)
  • Labour Relations Actsection 48
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

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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, "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.