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ELRCPartially AllowedCause No. 320 of 2013· [2015] KEELRC 1562 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Alied Workers v B.O.G Chilchila Secondary School [2015] KEELRC 1562 (KLR)

Employment and Labour Relations Court
19 March 2015
1,265 words in judgment
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The bottom line

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A Nakuru court ordered a school employer to deduct union dues, sign a recognition agreement, and negotiate a CBA — but limited dues arrears to twelve months.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim dated 17th September 2013 against the respondent school's Board of Governors, complaining of the refusal to deduct and remit union dues and the refusal to sign a recognition agreement. An earlier ex parte judgment of 7th November 2014 was set aside by consent dated 5th February 2015, allowing the respondent to participate at trial. The claimant asserted a recognition agreement and CBA dating to 18th March 1986, gazetted via L.N. No. 263 of 1993, and that it had recruited all 12 of the respondent's employees. The respondent, through its Principal and Secretary DW1 Everlyn Koech, admitted recruiting of nine workers in 2011 and receipt of a demand letter, but refused recognition on grounds of alleged excess workers, some paid by the Ministry of Education. The court framed four issues and held that the union, having recruited 12 members - more than five employees under Section 48(2) and beyond the 50% plus 1 threshold of Section 54(2) of the Labour Relations Act, 2007 - was entitled to deduction and remission of dues and to a recognition agreement and CBA negotiations. However, because the claimant had not strictly complied with the prescribed procedure under Section 48(2), the court declined to order payment of all arrears from the respondent's own pockets, limiting arrears to the preceding twelve months. Judgment was delivered on 19th March 2015 by D.K.Njagi Marete J, with costs awarded to the claimant.

Key legal issues

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01

Entitlement to deduction and remission of union dues

Holding

The claimant, having recruited 12 of the respondent's employees, is entitled to deduction and remission of union dues under Section 48(2) of the Labour Relations Act, 2007.

Reasoning

The court found it undisputed that the claimant had recruited 12 members of the respondent's workforce, exceeding the statutory threshold of more than five employees under Section 48(2) of the Labour Relations Act, 2007. The respondent's defence that some workers were excess or paid by the Ministry of Education did not displace the statutory entitlement; DW1 conceded the union is entitled to dues.

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02

Obligation to sign a recognition agreement and negotiate a CBA

Holding

Having recruited beyond the 50% plus 1 threshold under Section 54 of the Labour Relations Act, 2007, the claimant is entitled to a recognition agreement and CBA negotiations.

Reasoning

The court held that the claimant's recruitment of 12 out of 12 employees surpassed the simple majority requirement of Section 54 of the Labour Relations Act, 2007. There being no rival union, the respondent's refusal to sign on grounds of alleged excess staff was not a lawful justification for withholding recognition.

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Arrears of union dues

Holding

Arrears were limited to the preceding twelve months because the claimant had not strictly complied with the procedure under Section 48(2) of the Labour Relations Act, 2007.

Reasoning

Although the respondent was defiant, the court declined to order payment of all arrears from the respondent's own pockets as a punitive measure. The claimant's own non-compliance with the prescribed procedure for requesting a deduction order provided a middle ground, and justice was better served by limiting the arrears period rather than castigating the respondent with an all-out punishment.

p. 2

Legal principles established

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  • A trade union that has recruited more than five employees of an employer is entitled to a deduction and remission of union dues under Section 48(2) of the Labour Relations Act, 2007
  • A trade union that has recruited a simple majority (50% plus 1) of an employer's workforce is entitled to the signing of a recognition agreement and entry into negotiations for a Collective Bargaining Agreement under Section 54 of the Labour Relations Act, 2007

Court orders

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  1. 1.The respondent be and is hereby ordered to deduct and remit union dues of the claimant's members in the respondent's establishment.
  2. 2.The respondent be and is hereby ordered to remit union dues owing to the claimant for the preceding twelve (12) months only.
  3. 3.The respondent be and is hereby ordered to sign a recognition agreement with the claimant within thirty (30) days of these orders of court.
  4. 4.The respondent be and is hereby ordered to enter into and complete a Collective Bargaining Agreement within ninety (90) days of these order of court.
  5. 5.The costs of this claim to be borne by the Respondent.

Authorities

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Legislation

  • Employment ActSection 54(2); Section 19(a)(1)
  • Labour Relations ActSection 48; Section 48(2); Section 54(2)
  • Constitution of Kenya, 2010Article 41
  • L.N. No. 263 of 1993Gazette notice directing Board of Governors to enter recognition with the appropriate union
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act, 2007 and Employment Act, 2007 (memorandum of claim filed as Cause No. 320 of 2013)

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 Union of Domestic, Hotels, Educational Institutions and Alied Workers v B.O.G Chilchila Secondary School [2015] KEELRC 1562 (KLR)", Case Analysis (2015). Cause No. 320 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1562/eng@2015-03-19

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