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ELRCAllowedCause No. 316 of 2013· [2015] KEELRC 230 (KLR)

Kenya Hotels And Allied Workers Union v Laughing Budha Cafe & Lounge [2015] KEELRC 230 (KLR)

Industrial Court of Kenya
20 November 2015
MOMaureen Onyango
881 words in judgment
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The bottom line

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Kenya's Industrial Court ordered a Kisumu cafe to deduct union dues and sign a recognition agreement after refusing for four years.

What this practically means

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Executive summary

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The Kenya Hotels and Allied Workers Union claimed that Laughing Budha Cafe & Lounge, a hospitality business in New Nyanza, refused to deduct union dues from its 14 unionisable employees or to sign a recognition agreement despite the union having recruited all of them between December 2010 and September 2011. The union served check off forms and a recognition agreement on 2nd December 2011, and after the Respondent failed to comply, reported a dispute to the Minister for Labour. A conciliator, Joel Omweno, convened meetings at which the Respondent repeatedly promised to sign but did not, leading to a Certificate of Disagreement and referral to the Industrial Court. The union pleaded compliance with sections 48, 54, 62, 69(a) and 73(1) of the Labour Relations Act and sought orders compelling deduction and remittance of dues from December 2011, execution of a recognition agreement, an equivalent of Shs.2,100 monthly as union dues for the period of refusal, and costs. The Respondent filed a notice of appointment under protest but no defence, and though duly served with hearing notices, did not attend; the court proceeded undefended on 24th September 2015. Justice Maureen Onyango held that the Claimant had recruited a simple majority (in fact 100%) of the unionisable employees, uncontroverted by the Respondent, and that section 48(3) obliged deduction within 30 days of service of Form S, with section 50 criminalising default. The court directed immediate commencement of dues deductions and remittance from 1st December 2015, execution of a recognition agreement within 30 days, and awarded the claimant costs fixed at Shs.50,000.

Key legal issues

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01

Whether the Claimant qualified for recognition by recruiting a simple majority of the Respondent's unionisable employees

Holding

The Claimant recruited 14 employees, said to be 100% of the unionisable employees, and the Respondent did not contest this; the court was satisfied a simple majority had been recruited.

Reasoning

The court considered the pleadings and annexed documents, including check off forms listing 14 employees. The Respondent, though served, filed no defence and did not appear at the hearing despite due service. The uncontroverted evidence established that the Claimant had recruited all 14 unionisable employees, exceeding the simple majority threshold under section 54(1) of the Labour Relations Act, entitling it to a recognition agreement.

p. 2
02

Whether the Respondent was obliged to deduct and remit union dues

Holding

The Respondent was under a statutory duty to deduct union dues upon service of the check off form and to remit them, having failed to do so since December 2011.

Reasoning

Section 48(3) of the Labour Relations Act obliges an employer served with Form S to commence deductions within 30 days and remit them to the union's designated account, and section 50 criminalises non-compliance. The check off forms were served on 2nd December 2011, yet the Respondent declined to deduct. The court therefore directed immediate commencement of deductions and remittance with effect from 1st December 2015.

p. 2

Legal principles established

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  • An employer served with Form S (check off form) must commence deduction of union dues within 30 days and remit them to the union's specified account; failure to comply with section 48(3) is an offence under section 50.
  • An employer must sign a recognition agreement with a union that has recruited a simple majority of unionisable employees.

Court orders

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  1. 1.The Respondent to immediately commence deduction of Union dues from the salaries of the employees on the check off form and remit to the Union's designated account with effect from 1st December, 2015
  2. 2.The Respondent to sign a recognition agreement with the Union within 30 days
  3. 3.The Respondent to pay the claimant's costs of the dispute in the sum of Shs.50,000/=

Authorities

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Legislation

  • Trade Union Actnull
  • Labour Relation Act (Labour Relations Act)Sections 48, 48(3), 50, 54, 54(1), 62, 69(a), 73(1)
Jurisdiction invoked
Referral of a labour dispute under the Labour Relations Act following a Certificate of Disagreement issued by a conciliator appointed by the Minister for Labour

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 Hotels And Allied Workers Union v Laughing Budha Cafe & Lounge [2015] KEELRC 230 (KLR)", Case Analysis (2015). Cause No. 316 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/230/eng@2015-11-20

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