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ELRCAllowedCause No. 1150 of 2012· [2015] KEELRC 1027 (KLR)

Kudheiha Workers Union v Aga Khan University Hospital [2015] KEELRC 1027 (KLR)

Employment and Labour Relations Court
25 May 2015
HWHellen S. Wasilwa
1,268 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 must deduct and remit union dues once workers sign authorisation forms—refusing interferes with their constitutional right to join a union.

What this practically means

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Executive summary

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Kudheiha Workers Union, a registered trade union, sued Aga Khan University Hospital for refusing to deduct and remit union dues from over 100 members of staff who had joined the union and signed check-off forms between July 2009 and July 2011. The claimant reported a trade dispute to the Minister for Labour on 6 January 2011; a conciliator was appointed on 22 February 2011 but conciliation failed, leading to referral to the Employment and Labour Relations Court. The respondent, through the Federation of Kenya Employers, defended the claim on the basis that certain positions were not recognised in the Collective Bargaining Agreements covering December 2007 to December 2010 and June 2011 to December 2013, that nurses were not provided for in the union's constitution until 2015, and that some staff fell under statutory bodies whose mandates would have been affected. It contended it nonetheless deducted and remitted dues for unionisable employees. The court, framing a single issue - whether the refusal to deduct and remit union dues was justified - held that Article 41(2)(c) of the Constitution guarantees every worker the right to join and participate in a trade union, and that under section 48(2) and (3) of the Labour Relations Act deduction and remittance of dues is part of the employer's obligations once members sign authorisation forms. The court found the respondent's refusal infringed employees' constitutional rights, ordered the respondent to forthwith deduct and remit union dues for employees who had authorised it within 30 days, and awarded costs to the claimant.

Key legal issues

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01

Whether refusal to deduct and remit union dues from employees who joined the claimant union was justified

Holding

The refusal was unjustified and infringed the employees' right under Article 41 of the Constitution to join and participate in trade union activities.

Reasoning

Article 41(2)(c) guarantees every worker the right to form, join or participate in a trade union. Section 48(2) and (3) of the Labour Relations Act obliges an employer to commence deducting union dues within thirty days of service of Form S signed by the employees. The claimant's members signed check-off forms authorising deduction; the respondent's refusal constituted interference with that constitutional right, and it was not for the employer to determine union eligibility within the unionisable category.

p. 3

Legal principles established

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  • It is not the employer's duty to decide which unionisable employees may join a union; refusal to deduct and remit authorised union dues infringes employees' rights under Article 41 of the Constitution.

Court orders

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  1. 1.Respondent to forthwith deduct and remit union dues for employees who have so authorised, not later than 30 days from the date of the judgment
  2. 2.Respondent to meet costs of the case

Authorities

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Legislation

  • Constitution of KenyaArticle 41(2)(c)
  • Labour Relations ActSection 48(2) and (3)
Jurisdiction invoked
Labour Relations Act dispute referred to the Employment and Labour Relations Court after conciliation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kudheiha Workers Union v Aga Khan University Hospital [2015] KEELRC 1027 (KLR)", Case Analysis (2015). Cause No. 1150 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1027/eng@2015-05-25

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