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ELRCDismissedStatement of Claim dated 29th July 2010· [2016] KEELRC 547 (KLR)

Kenya Chemical & Allied Workers Union v Strategic Industries Limited [2016] KEELRC 547 (KLR)

Employment and Labour Relations Court
7 October 2016
LNLINNET NDOLO
1,112 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a union's recognition claim because it could not prove, with clean documents, that a simple majority of employees had joined.

What this practically means

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Executive summary

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The Claimant, a registered trade union for workers in the chemical and allied industries, sued seeking an order compelling the Respondent employer to recognise it for purposes of collective bargaining, an order for deduction and remittance of union dues, and a deterrent order for breach of section 50(10) of the Labour Relations Act. The dispute arose from a proposed Recognition Agreement and check-off forms for 363 employees submitted to the Respondent on 24th July 2007, which the Respondent neither signed nor acted upon. The Claimant later claimed recruitment of 2010 employees, a simple majority. The Respondent contested the claim, producing a page-by-page analysis of the check-off forms showing repeated names, unknown persons, former and deceased employees, and 297 employees who had disclaimed membership, leaving only 914 current employees. The Respondent also noted the Claimant's list contained only 1785 names despite a claim of 2010 recruits. The Court framed two issues: recognition and deduction of union dues. On recognition, it held that under section 54(1) of the Labour Relations Act the union bears the duty to avail documentary evidence of a simple majority; the discrepancies were unexplained, so recognition could not be ordered. The Court respectfully declined to follow Ongaya J's holding in Kenya Chemical and Allied Workers Union v Ruby M.W.F Flour Mills Limited that the right to recognition survives a fall below simple majority, reasoning that a union no longer enjoying a simple majority cannot justly retain recognition. On dues, the Respondent undertook to effect deductions upon submission of check-off forms, rendering the issue unnecessary. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Claimant was entitled to an order for recognition under section 54(1) of the Labour Relations Act

Holding

No - the Claimant failed to provide verifiable documentary evidence that it had recruited a simple majority of the Respondent's unionisable employees

Reasoning

Section 54(1) imposes a duty on the employer to recognise a union that has recruited a simple majority, but the union must avail documentary proof of such recruitment. The Respondent's page-by-page analysis of the check-off forms showed repetitions, unknown names, former employees, deceased employees and disclaimers, and the Claimant made no attempt to explain these discrepancies. Without tangible evidence of a simple majority, the Court could not order recognition.

p. 3
02

Whether the right to recognition survives a reduction in the union's membership below the simple majority

Holding

No - the Court respectfully disagreed with the decision in Kenya Chemical and Allied Workers Union v Ruby M.W.F Flour Mills Limited, holding that recognition lapses once a union no longer enjoys a simple majority

Reasoning

Ongaya J had held that the right to recognition survives reduction in numbers below simple majority. Ndolo J took a different view: employees join unions partly for their bargaining ability, and are free to resign if they lose faith. Since recognition confers collective bargaining and agency fee advantages, it cannot be just for a union no longer commanding a simple majority to retain recognition.

p. 3
03

Whether the Court should order deduction and remittance of union dues

Holding

No determination was necessary because the Respondent undertook to effect deductions upon submission of the relevant check-off forms

Reasoning

The Respondent did not oppose deduction of union dues per se but conditioned it on submission of the relevant check-off forms. In light of that undertaking, the issue was rendered unnecessary and the Court declined to make a determination on it.

p. 3

Legal principles established

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  • An employer is bound to recognise a trade union under section 54(1) of the Labour Relations Act only if the union represents the simple majority of unionisable employees
  • The right to recognition does not survive a fall below simple majority; recognition depends on the union continuously enjoying a simple majority
  • Recognition is a matter of verifiable numbers and the trade union bears the duty to avail documentary evidence of majority recruitment

Court orders

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  1. 1.The Claimant's claim fails and is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 50(10)

Cases cited (1)

  • Kenya Chemical and Allied Workers Union v Ruby M.W.F Flour Mills Limited
    Nakuru Cause No 102 of 2013
Jurisdiction invoked
Labour Relations Act, 2007; Employment and Labour Relations Court jurisdiction over trade union recognition disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Kenya Chemical & Allied Workers Union v Strategic Industries Limited [2016] KEELRC 547 (KLR)", Case Analysis (2016). Statement of Claim dated 29th July 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/547/eng@2016-10-07

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