Tailors and Textiles Workers Union v Ashton Apparels [EPZ] Limited [2015] KEELRC 1061 (KLR)
The bottom line
#Kenyan employers cannot force workers to join a union—union shop clauses are unconstitutional, but unions can still collect agency fees from non-members.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Recognition Agreement
There is a formally valid Recognition Agreement in place between the Parties; the allegation of fraud under police investigation does not affect its formal validity
The Court had earlier directed recognition in Nairobi Cause Number 40[N] of 2008 and that decision stood, not having been overturned. The Agreement was executed by the Parties' representatives, is dated and signed, and contains the fundamental clauses required of a Recognition Agreement including provision for modification and termination. The Respondent, if aggrieved, ought to have sought revocation or termination before the Court or the National Labour Board rather than rely on pending police investigations.
Constitutionality of the Union Shop clause 2(c)
Clause 2(c), which makes Employees automatic Union Members on completing probation, is unlawful, unconstitutional, void and unenforceable
Section 4(1) of the Labour Relations Act grants every Employee the right to join or leave a Trade Union, anchored on Articles 36 and 41 of the Constitution. Article 36(2) provides that no Person shall be compelled to join an Association. Section 5(2) of the Act expressly prohibits requiring an Employee to become a Trade Union Member. The Union Shop compels Membership and violates freedom of association and the right to work.
Deduction of dues from Non-Union Members
The Respondent shall deduct and remit Trade Union dues only in respect of signed up Members; the Claimant may recover representation costs from non-Members through agency fees under Section 49
Section 48 of the Labour Relations Act defines Trade Union dues as subscriptions payable by Members as a condition of Membership, and Section 48(6) excludes Employees who have resigned in writing. The mischief of free-riders is addressed through the Agency Shop mechanism under Section 49, whereby non-Members covered by a CBA may be required to pay agency fees upon a Labour Minister's order. Fixed-term contract status does not excuse deduction for signed up Members.
Legal principles established
#- Union Shop and Closed Shop Agreements are unlawful and unconstitutional in Kenya; Section 5(2) of the Labour Relations Act prohibits compelling Employees to become Trade Union Members
- Freedom of association includes the right to dissociate; Employees cannot be forced to belong to a Trade Union
- The problem of free-riders is adequately addressed through agency fees under Section 49 of the Labour Relations Act, not through Union Shop arrangements
- Trade Union dues are only payable by signed up Members and are not to be deducted in respect of an Employee who has resigned in writing
Court orders
#- 1.The Claimant is at liberty to enforce an order for agency fees, rather than enforce a Union Shop Agreement
- 2.It is declared clause 2 [c] of the Recognition Agreement is unlawful, unconstitutional, void and unenforceable
- 3.The Respondent shall deduct and remit trade union dues with respect to all the signed up Members of the Claimant Union
- 4.No order on the costs
- Jurisdiction invoked
- Industrial Court Act 2011 and Labour Relations Act 2007; dispute referred following Certificate of Disagreement from conciliation under the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tailors and Textiles Workers Union v Ashton Apparels [EPZ] Limited [2015] KEELRC 1061 (KLR)", Case Analysis (2015). Cause Number 340 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1061/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.