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ELRCAllowedCause No. 216 of 2014· [2016] KEELRC 842 (KLR)

Kenya Chemicals And Allied Workers Union v Form Mattresses Ltd [2016] KEELRC 842 (KLR)

Employment & Labour Relations Court
26 May 2016
MOMaureen Onyango
1,257 words in judgment
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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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The Claimant union sued Form Mattresses Ltd for refusing to deduct and remit union dues from 123 employees it had recruited using check-off forms forwarded between November 2011 and July 2012. The Respondent's sole defence was that the employees were not in permanent employment and that trade union dues under section 48(1) of the Labour Relations Act did not cover temporary employees. After failed conciliation before the County Labour Office, the matter came to court. Justice Maureen Onyango framed two issues: whether temporary employees can become union members, and whether an employer can be compelled to deduct union dues through check-off. Relying on Articles 36(1) and 41(2)(c) of the Constitution and sections 48(3) and 48(6) of the Labour Relations Act, the court held that the statutory scheme gives employees, not employers, the decision to have union dues deducted, and that neither the provisions nor the definition of trade union dues excludes casual employees. The court further found, unchallenged, that the employees had worked over ten years and had converted to permanent status under section 37 of the Employment Act. Citing the Bamburi Cement and Mombasa Cement decisions, the court found the Respondent's reason invalid and ordered the Respondent to deduct and remit union dues for all employees who signed the check-off forms.

Key legal issues

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01

Whether temporary/casual employees can become union members

Holding

Yes - freedom of association under Articles 36 and 41 applies to every employee and neither section 48 nor the definition of trade union dues excludes casual employees

Reasoning

The court read sections 48(3) and 48(6) of the Labour Relations Act together and found that an employer has no control over an employee's decision to have union dues deducted. The statutory language refers to 'employees' without excluding casuals, and the employees here had worked over ten years, converting their terms to permanent status under section 37 of the Employment Act.

p. 2
02

Whether the employer could be compelled to deduct and remit union dues via check-off

Holding

Yes - the employer was ordered to deduct and remit union dues from all employees who signed check-off forms

Reasoning

The Respondent did not deny recruiting 123 employees or the check-off forms, and its sole ground (non-permanent employment) was rejected. Precedents involving Bamburi Cement and Mombasa Cement supported compelling deduction where employees had signed check-off forms, as an exercise of the constitutional right to join a trade union.

p. 3

Legal principles established

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  • Temporary or casual employees may become union members and an employer may be compelled to deduct union dues via check-off forms
  • Non-permanent employment status is not a valid reason for an employer to refuse to deduct union dues

Court orders

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  1. 1.The Respondent to deduct and remit to the Claimant Union dues from all the employees who have signed the check-off forms

Authorities

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Legislation

  • Labour Relations Actsection 48(1), 48(3), 48(6), section 50, section 4(1), Appendix 5 (Form S check-off)
  • Employment Actsection 37, sections 19(1)(f) and 19(1)(g)
  • Constitution of Kenya, 2010Article 36(1), Article 41(2)(c)

Cases cited (2)

  • Chemical and Allied Workers Union v Bamburi Cement Limited
    Cause No. 1181 of 2011
  • Kenya Chemical and Allied Workers Union v Mombasa Cement Limited & Kenya Quarry and Mine Workers Union (interested party)
    Cause No. 790 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes referred after conciliation under the Labour Relations Act

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 Chemicals And Allied Workers Union v Form Mattresses Ltd [2016] KEELRC 842 (KLR)", Case Analysis (2016). Cause No. 216 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/842/eng@2016-05-26

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