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ELRCDismissedNot stated in judgment· [2016] KEELRC 1065 (KLR)

Kenya Scientific Research International,Technical & Institutions Workers Union v M-Care Limited [2016] KEELRC 1065 (KLR)

Employment and Labour Relations Court
17 June 2016
ANAbuodha Jorum Nelson
523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan trade union does not need a recognition agreement with an employer to sue on behalf of its members in the Employment and Labour Relations Court.

What this practically means

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Executive summary

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The respondent raised a preliminary objection contending that the applicant trade union lacked locus standi to file the dispute on behalf of the claimants because it had neither a collective bargaining agreement nor a recognition agreement with the respondent, as allegedly required by law. Counsel for the respondent argued that locus standi is regulated by law and that, absent a recognition agreement, the union could not file a trade dispute within the meaning of the Labour Relations Act, relying on Communication Workers' Union v. Safaricom Ltd and Kenya Union of Employees of Voluntary and Charitable Organizations v. BOG Maina Wanjigi Secondary School. The union did not file submissions in response. The court examined Section 2 of the Labour Relations Act, which defines recognition agreements and collective bargaining agreements, and held that a recognition agreement's essence is to confer on a union the right to engage with the employer for collective bargaining purposes; it does not govern union representation generally. Union membership and representation are regulated by union constitutions, and the Employment and Labour Relations Court Act, the Labour Relations Act and the rules of the Court permit unions to file and prosecute claims on behalf of their members. The court likened union officials' right of audience to that of advocates, and found nothing unlawful in a union bringing an action on behalf of its members in a dispute with their employer. The court held the union had locus standi and overruled the preliminary objection.

Key legal issues

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01

Whether a trade union requires a recognition agreement or collective bargaining agreement with an employer to have locus standi to file a claim on behalf of its members

Holding

The union has locus standi; recognition is only necessary for collective bargaining, not for representation in litigation

Reasoning

The court defined recognition and collective bargaining agreements under Section 2 of the Labour Relations Act, holding that a recognition agreement confers the right to negotiate on behalf of members but does not gatekeep court representation. Union membership and representation are governed by union constitutions, and the ELRC Act, the Labour Relations Act and the Court rules permit unions to file and prosecute claims for members. Union officials, like advocates, have a right of audience.

p. 2

Legal principles established

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  • Recognition agreements are required for collective bargaining purposes, not for union representation generally; unions may file and prosecute claims on behalf of their members under the Employment and Labour Relations Court Act, the Labour Relations Act and the Court's rules.

Court orders

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  1. 1.The preliminary objection is overruled
  2. 2.It is so ordered

Authorities

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Legislation

  • Labour Relations ActSection 2
  • Employment and Labour Relations Court Act

Cases cited (2)

  • Communication Workers’ Union vs. Safaricom Ltd
  • Kenya Union of Employees of Voluntary and Charitable Organizations v. BOG Maina Wanjigi Secondary School
Jurisdiction invoked
Employment and Labour Relations Court Act and 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 Scientific Research International,Technical & Institutions Workers Union v M-Care Limited [2016] KEELRC 1065 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1065/eng@2016-06-17

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