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ELRCAllowedCause No. 999 of 2011· [2016] KEELRC 880 (KLR)

Kenya Hotels And Allied Workers Union v Sunset Limited Hotel & another [2016] KEELRC 880 (KLR)

Employment and Labour Relations Court
13 July 2016
HWHellen S. Wasilwa
1,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that employers cannot deduct both union dues for a recognized union and agency fees for another union from the same employee's pay.

What this practically means

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Executive summary

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The Kenya Hotels and Allied Workers Union (KHAWU) sued Sunset Limited Hotel, with KUDHEIHA Workers as an interested party, seeking orders that the Respondent stop deducting union dues/agency fees towards KUDHEIHA, deduct COTU dues once monthly only, continue monthly deductions of Claimant members' dues per check-off forms and remit them to the Claimant, plus costs. The Claimant relied on a recognition agreement reached through conciliation and check-off forms submitted by members, contending that double deductions violated Section 48 of the Labour Relations Act, 2007. The Respondent replied that it belonged to the Kenya Hotel Keepers and Caterers Association, which had signed a collective agreement with KUDHEIHA effective 1st July 2010, that its manager lacked authority to sign the recognition agreement, and that most employees wished to remain KUDHEIHA members. KUDHEIHA relied on prior authority in Petition 5 of 2013 holding that Sections 48 and 49 are not mutually exclusive. Justice Hellen S. Wasilwa found a recognition agreement existed between the Claimant and Respondent, that check-off forms proved membership, and that payslips showed workers were being deducted both KUDHEIHA dues and KHAWU dues. Following the Petition 5 of 2013 decision and Section 48(6), she held that an employee who has opted for a union recognized by the employer cannot simultaneously have agency fees deducted for another union, characterizing this as forced double deduction. The court ordered that union dues be deducted only to the Claimant in respect of check-off forms submitted and not as agency fees towards KUDHEIHA, with costs to the Claimants.

Key legal issues

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01

Entitlement to union dues versus agency fees

Holding

Employees who signed check off forms are members of the Claimant union and their dues must be remitted to it; concurrent agency fee deductions to KUDHEIHA amount to unlawful double deduction.

Reasoning

The court found a recognition agreement dated 21.1.2011 between the Claimant and Respondent and check off forms submitted by members. Payslips showed double deductions to KUDHEIHA, KHAWU and COTU. Applying Section 48(6) of the Labour Relations Act and following Petition 5 of 2013, the court held that a person who has opted for a union recognized by the employer cannot still have agency fees deducted to another union, as that is a forced deduction.

p. 2
02

Effect of employee notification of union membership/resignation on deductions

Holding

Section 48(6) of the Labour Relations Act bars an employer from deducting dues from an employee who has notified the employer in writing of resignation from the union; conversely, signed check off forms prove membership justifying deduction.

Reasoning

The court relied on check off forms dated December 2014 as proof of membership of the Claimant union. Section 48(6) prohibits deductions from employees who have resigned in writing, which by implication recognizes the check-off mechanism as the basis for lawful deductions and remittance to the designated union.

p. 2

Legal principles established

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  • Where an employer has a recognition agreement with a union and employees have signed check off forms, the employer must deduct and remit union dues to that union and cannot simultaneously deduct agency fees for another union.

Court orders

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  1. 1.Union dues to be deducted only to the Claimant in respect of the check off forms submitted and not in respect of agency fees towards KUDHEIHA
  2. 2.Costs of the cause to the Claimants

Authorities

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Legislation

  • Labour Relations Act, 2007Section 48
  • Labour Relations Act, 2007Section 48(6)
  • Labour Relations Act, 2007Section 49

Cases cited (1)

  • Kenya Hotels and Allied Workers Union vs. The Hon. Attorney General & 3 Others
    Petition 5 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes (Labour Relations Act, 2007, Section 48 invoked)

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 Hotels And Allied Workers Union v Sunset Limited Hotel & another [2016] KEELRC 880 (KLR)", Case Analysis (2016). Cause No. 999 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/880/eng@2016-07-13

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