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ELRCDismissedCause (Industrial Court, Mombasa) – suit filed 15.11.2010· [2015] KEELRC 518 (KLR)

Kenya Scientific Research International Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute & another [2015] KEELRC 518 (KLR)

Industrial Court of Kenya
21 September 2015
OMOnesmus Makau
1,409 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 dismissed a union's recognition claim because it had not signed up a simple majority of workers before filing suit.

What this practically means

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Executive summary

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The claimant trade union sued on 15 November 2010 seeking revocation of a recognition agreement between the respondent employer and the interested party union, an order restraining remittance of union dues to the interested party, an order compelling the respondent to deduct and remit dues to the claimant, and a declaration that the claimant is the proper union to represent the respondent's unionisable staff. The suit arose from a failed conciliation under section 62 of the Labour Relations Act, after which a certificate of disagreement issued. The respondent and the interested party opposed, relying on an existing recognition agreement signed on 12 February 2009 and a registered CBA (RCA No. 2 of 2013). The suit was disposed of by written submissions. The court framed three issues: which union was the proper one, whether the rival recognition agreement should be revoked, and whether dues should be remitted to the claimant. Applying section 54(1) of the LRA, the court held that the claimant's pleaded 253 members did not constitute a simple majority of the respondent's 548 unionisable staff, even without the additional staff declared unionisable in Cause No. 333 of 2011, and that recognition is assessed as at the date of filing suit. Revocation of the rival agreement was refused as the interested party's simple majority before recognition was unrebutted. A remittance order under section 48 was refused because the claimant produced no ministerial order. The suit was dismissed with costs and interests.

Key legal issues

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01

Recognition threshold under section 54(1) of the LRA

Holding

Claimant had not recruited a simple majority of the respondent's 548 unionisable staff and was not entitled to recognition

Reasoning

Section 54(1) requires simple majority for recognition. The claimant pleaded 253 members, which is below 50% of the 548 unionisable workforce, even before adding the staff declared unionisable in Cause No. 333 of 2011. Recognition must be assessed as at the date of filing suit, not at the date of judgment.

p. 2
02

Revocation of rival union's recognition agreement

Holding

Revocation refused; interested party had simple majority before its February 2009 recognition

Reasoning

Since the claimant did not qualify for recognition, it had no basis to demand revocation of the interested party's agreement. The respondent's unchallenged evidence was that the interested party had a simple majority before recognition and had since registered a CBA.

p. 3
03

Remittance of union dues under section 48 of the LRA

Holding

Claimant entitled in principle but claim fails absent a ministerial order

Reasoning

Section 48(1) permits a union with more than 5 members to apply for a ministerial order directing deduction and remittance of dues. The court was satisfied the claimant had recruited more than 5 employees, but it did not produce the minister's order, so no remittance order could issue; members would also risk double deductions.

p. 3

Legal principles established

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  • An employer is bound to recognise a trade union for collective bargaining only if that union represents a simple majority of unionisable employees
  • Recognition disputes are determined as at the date the suit is filed, not on current facts
  • A union seeking deduction and remittance of dues must first obtain the minister's order under section 48(2) of the LRA

Court orders

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  1. 1.Suit dismissed with costs and interests

Authorities

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Legislation

  • Labour Relations Actsection 54(1)
  • Labour Relations Actsection 57
  • Labour Relations Actsection 62
  • Labour Relations Actsection 48(1), 48(2), 48(3) and Form S (Third Schedule)
Jurisdiction invoked
Reference of a trade dispute under section 62 of the Labour Relations Act after conciliation failed; dispute referred to the court after a certificate of disagreement

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 Scientific Research International Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute & another [2015] KEELRC 518 (KLR)", Case Analysis (2015). Cause (Industrial Court, Mombasa) – suit filed 15.11.2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/518/eng@2015-09-21

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