Kenya Aviation Workers Union v Kenya Airports Authority [2016] KEELRC 736 (KLR)

Industrial Court of Kenya

6 September 2016

HWHellen Wasilwa

908 words in judgment

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The bottom line

A Kenyan employment court ruled that Job Grade 5 staff can join a union, and the employer must deduct their dues and pay them CBA benefits.

What this practically means

Executive summary

The Claimant/Applicant union filed a Notice of Motion dated 10.12.2015 under the Industrial Court Act and Industrial Court Rules 2010, seeking orders compelling the Respondent to deduct and remit union dues from members in Job Grade 5 who had signed check-off forms, and to desist from denying those staff the benefits and increments under the Collective Bargaining Agreement registered on 12th February 2015. The union's Secretary General, Moss Ndiema, deponed that despite submitting check-off forms since December 2014, the Respondent failed to effect deductions, and refused to effect wage increments and benefits for Grade 5 staff. The Respondent opposed the application, contending that Clause 4.0 of the CBA was not absolute but conditional on certain grades and benefits. The court construed Clause 4.0, which makes employees in Job Grade S1-5 eligible to join unions of their choice, subject to exclusions for jobs exercising management and administrative actions or involving confidentiality as defined in the Industrial Relations Charter. The court held that all staff in Grade S1-5 are unionisable, and only those exercising the listed duties, where the Industrial Relations Charter also forbids, may be excluded. Noting that the Respondent never communicated any reservations about the eligibility of the intended members, the court found the refusal to deduct dues denied workers the constitutional right under Article 41(2)(c) to form, join or participate in trade union activities. The application was allowed: the Respondent was ordered to deduct and remit union dues for Grade 5 members who signed check-off forms, not to deny them CBA benefits and increments, and to pay the costs of the application.

Key legal issues

Unionisability of Job Grade 5 staff under Clause 4.0 of the CBA

Holding

All staff in Grade S1-5 are unionisable; only those exercising management/administrative duties or handling confidential information may be excluded, and only where the Industrial Relations Charter forbids

Reasoning

The court construed Clause 4.0 of the CBA registered on 12.2.2015, which makes employees in Job Grade S1-5 eligible to join unions of their choice subject to exclusions for management, administrative and confidential roles. The court read the exclusions as exceptions, not as making the clause conditional across the grade.

p. 2

Failure to deduct and remit union dues

Holding

The Respondent's failure to effect deductions on submitted check-off forms, without communicating any objection, infringed workers' rights under Article 41(2)(c) of the Constitution

Reasoning

Check-off forms had been submitted since December 2014 but the Respondent never deducts dues and never communicated any reservation about the eligibility of the staff concerned. In the absence of such communication, declining to deduct dues denies workers the constitutional right to form, join or participate in trade union activities.

p. 3

Benefits and increments under the CBA for Job Grade 5

Holding

The Respondent must not deny Job Grade 5 union members the benefits and increments provided in the registered CBA

Reasoning

The court found the Respondent had refused, failed, ignored and neglected to effect wage increments and benefits under the CBA to Job Grade 5 staff, and treated this as flowing from the same erroneous view that the grade was not unionisable. The final order compels compliance with the registered CBA.

p. 3

Legal principles established

All staff in Job Grade S1-5 are unionisable unless they exercise management, administrative or confidential functions and the Industrial Relations Charter forbids union membership
An employer who considers certain staff excluded from union membership must expressly communicate that to the union; silence leaves the obligation to deduct and remit dues intact

Court orders

1.The Respondent to deduct and remit forthwith union dues from the Claimant/Applicant's members in Job Grade 5 who have signed the check off forms
2.The Respondent should not deny the said members of staff in Grade 5 the benefits and increments provided for within the CBA registered on 12.2.2015
3.Respondent to pay costs of this Application

Authorities

Legislation

Industrial Court ActSection 12(3)(viii), Section 20
Industrial Court Rules 2010Rules 13(4), 16, 27, 24(5), 36
Constitution of KenyaArticle 41(2)(c)

Jurisdiction invoked: Industrial Court Act No. 20 of 2011, Section 12(3)(viii), Section 20; Industrial Court Rules 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya Aviation Workers Union v Kenya Airports Authority [2016] KEELRC 736 (KLR)", Case Analysis (2016). Cause No 2204 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/736/eng@2016-09-06

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