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ELRCAllowedNot stated in judgment (Motion filed 23 July 2014)· [2014] KEELRC 1239 (KLR)

Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2014] KEELRC 1239 (KLR)

Industrial Court of Kenya
7 August 2014
2,543 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 blocked a ferry workers' strike, confirming ferry services are an essential service where strikes are legally prohibited.

What this practically means

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Executive summary

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Kenya Ferry Services Ltd moved the Industrial Court in Mombasa on 23 July 2014 seeking to restrain the Dock Workers Union from calling an unprotected strike following a deadlocked CBA negotiation and a strike notice issued on 22 July 2014. The Union raised a preliminary objection that the Applicant had sued the Ferry Branch, an entity without juristic personality, and that the Court therefore lacked jurisdiction. The Court held that a trade union acquires legal personality only upon registration under section 21 of the Labour Relations Act, and a branch gains no distinct personality under section 25 or from a recognition agreement; however, the misnomer was a curable irregularity not going to jurisdiction, and the Applicant was directed to amend. On the merits, applying the Giella v Cassman Brown principles as adapted for the Industrial Court, the Court found ferry services listed in the fourth schedule to the Labour Relations Act as an essential service, so the right to strike was statutorily prohibited; the recognition agreement also obliged the parties to refer deadlocked disputes to the Court under Parts IX and X rather than strike; and the strike notice was addressed to the Cabinet Secretary rather than the employer and was ambiguous as to its period. Irreparable loss to the travelling public and the economy, not compensable in damages, was established. The Court granted an injunction restraining all forms of industrial action pending determination of the dispute, gave directions for filing of responses, prioritised the main Cause, and ordered costs to abide the main Cause. It also observed that negotiations must be conducted in utmost good faith where the right to strike is fettered.

Key legal issues

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01

Whether the branch of the union, rather than the mother union, could be sued

Holding

A branch has no juristic personality; trade disputes should be commenced against or by the mother trade union, but the misnomer here was a curable irregularity, not a jurisdictional bar.

Reasoning

Section 21 of the Labour Relations Act confers legal personality on a trade union only upon registration. Section 25 provides for registration of branches but does not clothe them with distinct juristic personality, nor can such personality arise from a recognition agreement. However, the parties had voluntarily signed the recognition agreement defining the union as the Kenya Ferry Services Ltd branch, the union was aware of the definition, and no prejudice was suffered, so the defect was amendable.

p. 3
02

Whether the Applicant is an essential service provider and strikes are prohibited

Holding

Yes - ferry services are listed in the fourth schedule to the Labour Relations Act as an essential service, so the right to strike is statutorily prohibited.

Reasoning

Section 78(1)(f) prohibits strikes in essential services, and section 81 defines essential services as those whose interruption would endanger life or health of a population. Ferry services appear in the fourth schedule, so the Applicant demonstrated a prima facie case. The Court noted the constitutionality of the listing was not challenged in this case and left that debate for an appropriate case.

p. 3
03

Whether the recognition agreement contractually barred a strike

Holding

Yes - having deadlocked at the Joint Industrial Council and conciliation, the parties were contractually obliged to refer the dispute to the Court under Parts IX and X of the Labour Relations Act rather than call a strike.

Reasoning

Clause 11(e) of the recognition agreement provides that upon failure to settle at the Joint Industrial Council there shall be no cessation of work and the dispute shall be dealt with under the Labour Relations Act procedure. A strike is a weapon of last resort and must be preceded by statutory and contractual referral mechanisms.

p. 4
04

Whether irreparable loss would follow refusal of the injunction

Holding

Yes - although the Applicant itself might not suffer irreparable loss, the travelling public and the national economy would suffer loss not compensable in damages.

Reasoning

Hundreds of thousands of workers, traders and citizens rely on the ferry services between the south coast and Mombasa Island. The alternative of air travel is not viable given the numbers involved. Loss to security, economy, convenience and public health would be massive and not remediable by damages.

p. 4

Legal principles established

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  • A trade union acquires legal personality only upon registration under section 21 of the Labour Relations Act, and a branch of a trade union does not acquire a distinct juristic personality under section 25 or from a recognition agreement.
  • Naming a branch instead of the mother trade union is an irregularity curable by amendment, not a jurisdictional defect.
  • Ferry services are an essential service under the fourth schedule to the Labour Relations Act, so strikes in that sector are prohibited.
  • A strike notice should be directed to the employer with whom the union has a recognition agreement and be clear and unambiguous as to the notice period.

Court orders

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  1. 1.An Order prohibiting and/or restraining the Dock Workers Union, its officials, agents and/or members from taking part in, calling, instigating or inciting others to take part in a strike, cessation of work, go-slow, sit-in or any form of industrial action pending hearing and determination of the economic dispute
  2. 2.Respondent to file its Response to the Statement of Claim and any other relevant documents within 14 days
  3. 3.Applicant at liberty to file any documents in reply within 5 days of service by the Respondent
  4. 4.Main Cause to be heard on a priority basis on a date convenient to the parties and Court, to be agreed forthwith
  5. 5.Costs to abide the main Cause

Authorities

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Legislation

  • Labour Relations Actsections 78 and 81; section 78(1)(f); fourth schedule; Part IX and X; sections 21 and 25
  • Constitution of Kenya, 2010Articles 24 and 41
  • Industrial Court Actsection 12
  • Societies Actnot specified
  • Companies Actnot specified
  • Constitution of Dock Workers Unionrule 25

Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd.
    (1973) EA 338
Jurisdiction invoked
Industrial Court Act, section 12; 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, "Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2014] KEELRC 1239 (KLR)", Case Analysis (2014). Not stated in judgment (Motion filed 23 July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1239/eng@2014-08-01

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