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ELRCAllowedNotice of Motion dated 14th January 2016· [2016] KEELRC 991 (KLR)

Kenya Union of Commercial Food and Allied Workers v Guaca Stationers Limited [2016] KEELRC 991 (KLR)

Industrial Court (Employment and Labour Relations Court)
22 June 2016
1,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer must deduct union dues once a union signs up a simple majority of its staff, and cannot punish workers for joining.

What this practically means

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Executive summary

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The Claimant trade union moved the Court by Notice of Motion dated 14th January 2016 seeking an order compelling the Respondent employer to commence deduction and remittance of trade union dues from employees who had acknowledged union membership, plus costs. The union asserted it had recruited 13 of 18 unionisable employees (72%), exceeding the 51% simple majority required under Section 54(1) of the Labour Relations Act, 2007, and that the Respondent had unfairly refused recognition despite internal engagement and a conciliation process. The Respondent, through a Replying Affidavit of Himansu Patel, opposed the application, contending the union lacked constitutional mandate over its employees since it was a stationery rather than tobacco company, that it had 21 unionisable employees so no simple majority was achieved, that four of the listed members had left its employment, and that the check-off signatures were signed months later than dated. The Court found that the Respondent, despite alleging 21 unionisable employees, never produced its employee list, and that the Conciliator's finding of 11 recruited members exceeded 50% whether the workforce was 18 or 21, satisfying Section 54(1). On mandate, the Court held that the Respondent's retail and wholesale stationery business fell within the union's constitutional coverage of shops, retail and wholesale outlets. The application was allowed: the Respondent was ordered to forthwith commence deduction and remittance of union dues and restrained from victimising or disciplining union members on account of their membership. Costs were awarded in the course.

Key legal issues

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01

Simple majority under Section 54(1) of the Labour Relations Act

Holding

The Claimant met the simple majority threshold; the Conciliator found 11 members recruited, which exceeds 50% whether the workforce is 18 or 21.

Reasoning

The Claimant claimed 13 of 18 employees (72%). The Respondent alleged 21 unionisable employees and that 4 of the 13 had left. The Court noted the Respondent never produced its list of employees to substantiate the figure of 21. Relying on the Conciliator's finding of 11 recruited members, the Court held that 11 constitutes more than 50% whichever workforce figure applies, satisfying Section 54(1).

p. 3
02

Whether the Claimant is the right sector trade union

Holding

The Respondent's business of selling and supplying stationery on retail and wholesale basis falls within the Claimant's constitutional mandate covering shops, retail and wholesale outlets.

Reasoning

The Respondent argued the union's constitution (Rule 5) covered sectors such as warehouses, food processing, bottling and brewing, none of which matched a stationery company. The Court considered Rule 5 and found that the sector covering 'Supermarkets, shops, Retails and Wholesale outlets, distribution and supply companies' captured the Respondent's retail and wholesale stationery business, so the union had locus and mandate.

p. 4

Legal principles established

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  • An employer shall recognise a trade union for collective bargaining where the union represents a simple majority of unionisable employees, and even where the employer claims a larger workforce, if the unrebutted numbers recruited exceed 50%, the threshold is met.
  • A union whose constitution covers retail and wholesale outlets has mandate over a company engaged in selling and supplying stationery on retail and wholesale basis.

Court orders

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  1. 1.The Respondent to forthwith commence deduction and remittance of Trade Union dues from employees who have already acknowledged union membership with the Claimant/Applicant
  2. 2.The Respondent restrained from victimizing, intimidating, coercing, harassing, terminating, dismissing or disciplining the Claimant's members on account of their trade union membership
  3. 3.Costs in the course

Authorities

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Legislation

  • Labour Relations ActSection 54(1), (2) and (3)
  • Constitution of Kenya2010 (right of trade union representation)
Jurisdiction invoked
Labour Relations Act, 2007, Section 54; constitutional right to trade union representation under the Constitution of Kenya 2010

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 Union of Commercial Food and Allied Workers v Guaca Stationers Limited [2016] KEELRC 991 (KLR)", Case Analysis (2016). Notice of Motion dated 14th January 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/991/eng@2016-06-22

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