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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 153 (KLR)

Agricultural Employers Association v Kenya Plantation & Agricultural Workers [2015] KEELRC 153 (KLR)

Employment and Labour Relations Court
4 December 2015
RSRadido Stephen
1,968 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled employers and unions choose their own negotiating teams, but can lawfully exclude representatives of companies not bound by the collective agreement.

What this practically means

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Executive summary

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The Agricultural Employers Association, on behalf of flower-growing employers, and the Kenya Plantation & Agricultural Workers Union had operated a recognition agreement since 1999 and sought to negotiate a successor collective bargaining agreement after the expiry of the 2015 CBA. Negotiations aborted when the Union walked out of a meeting, objecting to the presence of Mr. Issa Wafula, Group Human Resources Manager of East African Growers Ltd, an employer that was not among the 57 employers bound by the expired CBA and which was already covered by separate recognition agreements with two of its companies. The Association moved to Court seeking orders compelling the Union to negotiate and conclude a new CBA within 30 days, and ancillary relief on union dues and salary arrears which the Court declined to grant at an interlocutory stage. The Court held, grounding itself in Articles 36 and 41 of the Constitution and sections 6, 8 and 57 of the Labour Relations Act, that each social partner is generally free to choose its own negotiating team, but that this is subject to exceptions where lawful objections are raised, informed by Botswana and South African comparative authority. Because East African Growers Ltd had only a tenuous, inchoate interest in the agreement and Wafula offered no demonstrated expertise or posed no prejudice, the Union's objection was held legitimate and lawful. The Court declined to grant the order as worded, instead ordering the parties to resume negotiations in good faith without Wafula or his principal, with each party bearing its own costs.

Key legal issues

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01

Whether either social partner can dictate the composition of the other's negotiating team

Holding

The general rule is that each partner freely chooses its own team, but this is subject to exceptions where lawful objections to a particular member are raised

Reasoning

The Court grounded the general rule in Article 36 of the Constitution (freedom of association) and Article 41(3)&(4) (employers' right to form and participate in employers' organisations and determine their own administration), given statutory impetus in sections 6 and 8 of the Labour Relations Act. Comparative Botswana and South African authority confirmed that objections to team composition may be justified on good and valid grounds, each case on its own merits.

p. 3
02

Whether the Union's objection to Mr. Issa Wafula's participation was legitimate

Holding

Yes - the objection was legitimate and lawful because Wafula's employer, East African Growers Ltd, was not among the 57 employers bound by the CBA and had only an inchoate interest, and no expertise or prejudice was demonstrated

Reasoning

The first ground (Wafula's past Union employment) failed for want of demonstrated prejudice. The second ground succeeded: East African Growers Ltd was not a signatory and would not be bound by the agreement; its anticipated future membership was a tenuous, inchoate interest. Wafula offered no legal or industrial relations expertise. The Union also had direct recognition agreements with two companies in that stable, making his presence premature.

p. 4

Legal principles established

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  • Either social partner is free to select its own bargaining representatives without interference from the other party
  • A party may lawfully object to a member of the other side's negotiating team where lawful reasons are advanced, and the Court determines the objection on its peculiar circumstances
  • A person whose employer has only an anticipated/inchoate interest in the CBA being negotiated may not participate in negotiations but may only sit as an observer if mutually allowed
  • The party on whose behalf an objected-to person serves must demonstrate a right or interest, such as legal or industrial relations expertise, that the person would contribute to the negotiations

Court orders

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  1. 1.The Association and the Union to resume negotiations with a view to concluding a new collective bargaining agreement, in good faith, and without the participation of Mr. Wafula or his principal East African Growers Ltd
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Constitutional and statutory jurisdiction under Article 41 of the Constitution and the Labour Relations Act (Articles 36 and 41(3)&(4) of the Constitution; section 57 of the Labour Relations Act) - no specific jurisdictional provision pleaded

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, "Agricultural Employers Association v Kenya Plantation & Agricultural Workers [2015] KEELRC 153 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/153/eng@2015-12-04

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