Union of National Research and Allied Institutes Staff of Kenya (UNRISK) v Kenya Union of Commercial Food and Allied Workers (KUCFAW) [2016] KEELRC 1400 (KLR)

Employment and Labour Relations Court

5 April 2016

HWHellen S. Wasilwa

1,566 words in judgment

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The bottom line

A Kenyan union's claim for dues deductions failed because it skipped the required step of getting a Ministerial order under Section 48.

What this practically means

Executive summary

The claimant union, UNRISK, filed a memorandum of claim dated 19 May 2015 seeking orders compelling the respondent employer to commence check-off deductions of union dues, to respect the rights of its employees to join the claimant union, to pay dues arrears of Kshs. 1,804,600 from its own funds for the period January 2013 to April 2015, to continue paying equivalent monthly contributions until check-off was implemented, and to pay a fine of Kshs. 100,000 under Section 19(5) of the Employment Act. The claimant relied on 323 recruited members and a conciliation process under Section 62 of the Labour Relations Act. The respondent resisted on the ground that it had a recognition agreement and CBA with the interested party, KUCFAW, and that no gazette order under Section 48 of the Labour Relations Act directed it to pay dues to the claimant. The interested party alleged anomalies in the check-off forms and that the same employees could not be represented by two unions. Justice Hellen S. Wasilwa framed a single issue: whether the claimant was entitled to the prayers sought. Relying on Article 41 of the Constitution and Section 48 of the Labour Relations Act, she held that although employees authorising dues deductions cannot be faulted, the claimant was required to obtain a Ministerial order directing the employer to deduct dues, which it had not shown. The claim was therefore dismissed in totality, with direction to follow proper channels including recognition, before proceeding further. No costs order was recorded.

Key legal issues

Whether the claimant was entitled to orders compelling check-off deductions, payment of dues arrears and a statutory fine

Holding

The claim was dismissed because the claimant had not complied with the mandatory procedure under Section 48 of the Labour Relations Act of obtaining a Ministerial order directing the employer to deduct union dues

Reasoning

The court held that while Article 41 protects freedom of association and any employee authorising dues deduction cannot be faulted, Section 48 of the Labour Relations Act requires a trade union to request the Minister to issue an order directing an employer to deduct dues. The claimant produced no gazette order or evidence of such ministerial direction. Absent that step, seeking deductions and arrears was premature.

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Legal principles established

A trade union must obtain a Ministerial order under Section 48 of the Labour Relations Act directing an employer to deduct union dues before it can claim check-off deductions or arrears from the employer

Court orders

1.Dismissal of the claimant's claim in totality
2.Direction that the claimant follow proper channels including resettlement and recognition before proceeding further

Authorities

Legislation

Employment ActSection 19(1)(a)(f),(g), 19(4), 19(5), 19(6)
Labour Relations Act, 2007Section 48, Section 62
Constitution of Kenya, 2010Articles 36, 41

Jurisdiction invoked: Labour Relations Act, 2007 and Employment Act, 2007; Articles 36 and 41 of the Constitution

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Union of National Research and Allied Institutes Staff of Kenya (UNRISK) v Kenya Union of Commercial Food and Allied Workers (KUCFAW) [2016] KEELRC 1400 (KLR)", Case Analysis (2016). Cause No. 905 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1400/eng@2016-04-05

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