Kenya Aviation Workers Union v Ballore Africa Logistics Kenya Limited & another [2016] KEELRC 43 (KLR)
The bottom line
#A Kenyan court refused to force employees to repay seven years of union agency fees, ruling the delayed demand was unfair and unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Whether retrospective agency fees deductions from 2009 to 2016 could be ordered
No - the demand was made too late, was grossly punitive and would leave employees without salary for months
The Interested Party remained silent from June 2009 until April 2015 when the Respondent issued its circular, and only sought to be enjoined to demand dues when the Claimant filed suit. The employees not members of the Interested Party received their wages without any deduction and should not be sanctioned for the Interested Party's delay. Ordering repayment from 2009 to 2016 would leave employees with no salary for months and would entrench an unfair labour practice, contrary to Articles 36 and 41 of the Constitution.
Whether the Respondent was in contempt of court orders
No - the interim orders of 20th April 2015 were lawful orders issued to ensure a fair hearing and their compliance cannot ground committal or penalisation
The stoppage of the Respondent's circular on agency fee deductions was a lawful interim order that bound all parties, and the Court had noted that the claimant, Respondent and Interested Party had all abided by it. Since the Respondent obeyed a valid court order and was not found to be on the wrong, punishing it would serve no useful purpose, and the agency fees claimed were in any event not due being made late in the day.
Whether the Court should exercise residual/inherent jurisdiction to give directions on agency fee deductions
The directions sought do not arise; the Court declined to make orders that would impoverish employees
The Respondent sought directions on the mode and formula for deductions, but the Court held that making such directions would amount to using the Court to impoverish employees who had enjoyed non-deduction for over seven years. The Court invoked its inherent jurisdiction, as described in the cited authorities, to prevent abuse of process and do justice between the parties, holding the demand for retrospective fees to be extreme and unfair.
Legal principles established
#- Section 49 of the Labour Relations Act must be read together with the constitutional rights to freedom of association and fair labour practices; agency fees cannot be enforced in a manner that negates fundamental rights or punishes employees
- A party entitled to agency fees must assert that right without delay; an employer not found at fault and employees who received full wages should not be sanctioned with retrospective back-deductions
- The Court's inherent jurisdiction may be invoked to prevent abuse of process and do justice between the parties
Court orders
#- 1.The two applications dated 5th May 2016 and 16th May 2016 were not allowed
- 2.No agency fees is payable from the Respondent's employees with regard to Legal Notice No.5027 of 2009, the demand being overtaken by time and grossly unfair on the employees
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Labour Relations Act, sections 48, 49 and 57; Articles 36 and 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Ballore Africa Logistics Kenya Limited & another [2016] KEELRC 43 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/43/eng@2016-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.