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ELRCPartially AllowedNot stated in the judgment· [2015] KEELRC 1458 (KLR)

Transport Workers Union v African Safari Adventure [2015] KEELRC 1458 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
13 February 2015
OMO. N. Makau
707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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A trade union registered to represent workers in the transport and allied industry sued its employer-respondent seeking an order of recognition, implementation of check-off deductions, an injunction against intimidation and harassment of recruited members, and an order compelling the parties to sign a Collective Bargaining Agreement. The union pleaded that it had recruited 90% of the respondent's unionisable staff, served a notice of recruitment and signed check-off forms on 16/2/2011, and reported the dispute to the Labour Minister, but conciliation failed and the respondent refused to attend. The respondent filed no response and did not attend the hearing, so the suit proceeded exparte by way of written submissions. The court identified two issues: whether the claimant had recruited a simple majority of the respondent's unionisable staff, and whether the orders sought ought to issue. It was not disputed that 25 members were recruited and check-off forms were served. However, the court held that proof of 25 recruits was not proof of the pleaded 90%: the union should have pleaded and proved the total size of the respondent's unionisable workforce. The recognition prayer, the injunction (for want of evidence from the alleged victims), and the CBA prayer were all declined. The court nonetheless granted check-off deductions in respect of the recruited members with immediate effect, without backdating, and noted the union was free to continue recruiting. Each party was ordered to bear her own costs.

Key legal issues

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01

Whether the claimant recruited a simple majority of the respondent's unionisable staff under Section 54 of the Labour Relations Act

Holding

The claimant failed to prove a simple majority; proof of 25 recruited members without evidence of the total unionisable workforce is insufficient

Reasoning

The court found the claimant's annexure showed only 25 employees recruited. That figure alone did not establish the pleaded 90% membership. The claimant was required to plead and adduce evidence of the total number of the respondent's unionisable workforce to enable the court to determine whether the recruited members constituted a simple majority as required under Section 54 of the Labour Relations Act. Absent that evidence, no finding of simple majority could be made.

p. 2
02

Whether an order for implementation of check-off deductions should issue despite failure to prove recognition threshold

Holding

Granted in respect of all recruited members, effective forthwith but not backdated

Reasoning

Although the recognition threshold under Section 54 was not met, the recruitment of the 25 members, service of notice of recruitment and signed check-off forms on 16/2/2011 was not disputed. On that undisputed evidence the court directed the respondent to commence deducting and remitting union dues for those recruited members, while expressly declining to backdate the deductions. The claimant remained free to continue recruiting.

p. 2

Legal principles established

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  • A union seeking recognition must plead and prove the total number of the employer's unionisable workforce in order to demonstrate a simple majority under Section 54 of the Labour Relations Act; mere proof of the number recruited is insufficient

Court orders

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  1. 1.Judgment entered for the claimant directing the respondent to forthwith commence deducting union dues from her unionizable staff who are members of the claimant and remit the same to the claimant as per the notice and check off forms signed on 16/2/2011
  2. 2.The deductions will not be backdated
  3. 3.Each party shall bear her own costs

Authorities

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Legislation

  • Labour Relations ActSection 54
Jurisdiction invoked
Original employment and labour relations jurisdiction (Labour Relations Act, Section 54); the specific constitutional provision is not cited in the judgment

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, "Transport Workers Union v African Safari Adventure [2015] KEELRC 1458 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1458/eng@2015-02-03

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