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ELRCDismissedCause Number 93 of 2014 (Originally Industrial Court at Nairobi, Cause Number 1465 of 2010)· [2015] KEELRC 676 (KLR)

Kenya Petroleum Oil Workers Union v Giefcon Limited & another [2015] KEELRC 676 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
31 July 2015
3,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a union's recognition claim because it had no current members working for the employers involved.

What this practically means

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Executive summary

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The Kenya Petroleum Oil Workers Union claimed against Giefcon Limited (a manpower outsourcing company) and Libya Oil [K] Limited, seeking an order that Giefcon sign a recognition agreement under Section 54 of the Labour Relations Act 2007, that both Respondents effect a check-off system under Section 48, and that the Respondents be restrained from victimising or discriminating against employees. The union recruited 35 employees outsourced by Libya Oil to Giefcon in 2010, but Giefcon declined recognition and check-off, and the employees allegedly withdrew membership or had their contracts terminated. Rika J identified two issues: whether the union merited recognition from either Respondent, and whether trade union dues should be deducted and remitted. The court held that recognition under Section 54 requires a union to represent a simple majority of current unionisable employees within an existing bargaining unit. The union failed to show current members employed by either Respondent; the 1st Respondent was the employer under the Service Outline Agreement but its contracts with the employees had terminated by 2011, and as a generalist outsourcing outfit it fell outside the petroleum industry union's coverage. The 2nd Respondent was never an employer, a fact the Claimant admitted. The court also expunged evidence introduced through closing submissions and the 1st Respondent's out-of-time submissions, and held that while payment of union dues does not depend on recognition, the employees' written withdrawal of membership was presumed voluntary. The Claim was dismissed with no order on costs, dated and delivered at Mombasa on 31st July 2015.

Key legal issues

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01

Whether the Claimant Union merits recognition from either Respondent under Section 54 of the Labour Relations Act 2007

Holding

No; recognition requires a simple majority of current unionisable employees represented by the union and a pre-existing employment relationship, neither of which was shown

Reasoning

Section 54 requires the union to represent a simple majority of unionisable employees. The purpose of recognition is collective bargaining for an existing bargaining unit. The 35 members recruited in 2010 had either withdrawn membership in writing or had their contracts terminated by 2011, and the Claimant's own submissions suggested members' contracts were terminated and members feared job loss. Neither Respondent currently employed members of the Claimant, so an order for recognition would be purposeless.

p. 5
02

Whether the 2nd Respondent was the employer of the employees claimed to be Claimant members

Holding

No; the 1st Respondent was the employer under the Service Outline Agreement, contracting, controlling and remunerating the employees to the exclusion of the 2nd Respondent

Reasoning

The Service Outline Agreement specified the 1st Respondent was an independent contractor, not an agent of the 2nd Respondent. The 1st Respondent supervised and paid the employees, their salaries, employment taxes and contributions including trade union dues. The Claimant admitted in its pleadings that the 1st Respondent operated as a contractor and directed its check-off forms and draft recognition agreement only to the 1st Respondent.

p. 5
03

Whether trade union dues should be deducted and remitted under Sections 48 and 19 of the Labour Relations Act and Employment Act

Holding

No; although dues do not depend on recognition, the employees voluntarily recanted their membership on 12th November 2010 and the Claimant adduced no evidence of involuntary forfeiture

Reasoning

The court held payment of dues does not depend on recognition, and an employer receiving check-off forms should deduct and remit. However, the employees wrote to the employer two days after the check-off forms were forwarded, recanting membership. Section 4 of the Labour Relations Act allows association and dissociation, and the court could not assume withdrawal was involuntary. The shop steward Otwenyo, who allegedly lost his job for refusing to withdraw, was not called as a witness.

p. 6
04

Whether the document R.06 introduced through closing submissions could be relied on

Holding

No; it was expunged from the record as offending Rules 17 and 26para 1 of the Industrial Court [Procedure] Rules 2010

Reasoning

The court has consistently emphasized that closing submissions are not an avenue for adding evidence. The document, in the nature of evidence and a second draft recognition agreement, was introduced by the Claimant in its closing submissions, contrary to Rules 17 and 26para 1 of the Industrial Court [Procedure] Rules 2010, and was accordingly expunged, following KUDHEIHA v. NORTH COAST BEACH HOTEL.

p. 4

Legal principles established

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  • An employer is obliged to recognise a trade union under Section 54 of the Labour Relations Act 2007 only where the union represents a simple majority of unionisable employees, which requires current employees and an existing collective bargaining unit
  • Closing submissions are not an avenue for parties to adduce additional evidence or material
  • Payment of trade union dues does not depend on an employer's grant of recognition; an employer who receives check-off forms should deduct and remit dues so long as deductions do not violate wage protection under Part VI of the Employment Act 2007
  • Employees are free to associate and dissociate from a trade union under Section 4 of the Labour Relations Act, and withdrawal is presumed voluntary absent contrary evidence
  • Outsourcing companies cannot be called to account on trade union recognition and collective bargaining absent a law specifically regulating the outsourcing industry on the subject
  • The court may consider the full array of remedies available to a party based on the evidence, even where not expressly pleaded

Court orders

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  1. 1.Expunged from the record the document marked R.06 introduced by the Claimant in its Closing Submissions
  2. 2.Expunged from the record the 1st Respondent's Submissions filed outside the stipulated period without leave
  3. 3.Dismissed the Claim
  4. 4.Directed that each party bears its own costs (no order on costs)

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 48
  • Labour Relations ActSection 4
  • Employment Act 2007Section 19
  • Employment Act 2007Part VI
  • Constitution of Kenyanot specified (right to join a trade union of one's choice)
  • Industrial Court [Procedure] Rules 2010Rule 27[1][a]
  • Industrial Court [Procedure] Rules 2010Rule 21
  • Industrial Court [Procedure] Rules 2010Rules 17 and 26[1]

Cases cited (1)

  • KUDHEIHA v. NORTH COAST BEACH HOTEL
    [2014] e-KLR
Jurisdiction invoked
Dispute referred to the Industrial Court under Rule 27[1][a] of the Industrial Court [Procedure] Rules 2010 concerning a recognition agreement and trade union dues under the Labour Relations Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Petroleum Oil Workers Union v Giefcon Limited & another [2015] KEELRC 676 (KLR)", Case Analysis (2015). Cause Number 93 of 2014 (Originally Industrial Court at Nairobi, Cause Number 1465 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/676/eng@2015-07-31

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