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ELRCOtherCause Number 279 of 2014· [2016] KEELRC 1532 (KLR)

Bakery, Confectionery, Food Manufacturing and Allied Workers Union [K] v Mombasa Maize Millers Limited & 3 others [2016] KEELRC 1532 (KLR)

Industrial Court of Kenya
17 March 2016
JRJames Rika
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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When two Kenyan unions compete for the same workers, the Industrial Court may leave the decision to a secret ballot by employees themselves.

What this practically means

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Executive summary

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The Claimant Union, registered in 1977, sought recognition as sole collective bargaining agent of the three Respondent maize-milling enterprises, having forwarded check-off lists showing it had recruited 172 of 314 employees at Mombasa, 323 of 470 at Nairobi and 33 of 40 at Kisumu. The Respondents refused recognition because a Recognition Agreement signed with the Interested Party Union in March 2003 remained in force, and they contended the recruited employees belonged to an outsourcing company, Ready Consultancy Limited. The Interested Party, recognized in the grain-milling industry since 1963, argued the Claimant's 1985/1995 constitutional amendment amounted to an unlawful encroachment on its sphere. Rika J identified three issues: whether the Claimant met the Section 54 recognition criteria; whether the existing Recognition Agreement should be invalidated; and whether union dues should be deducted for the Claimant. The Court found the check-off lists showed recruitment of the Respondents' own employees and rejected the unsupported outsourcing claim. It held both unions' constitutions permitted recruitment of the Respondents' grain-milling employees, that prior decisions had not unequivocally split food processing from food manufacturing, and that trade unions no longer operate on strict industrial classification. It declined either to grant recognition or to invalidate the existing agreement, holding the employees' current preference could only be ascertained by ballot. The Court ordered balloting at all three enterprises, overseen by County Labour Officers and coordinated from Mombasa, with returns filed within 90 days and the cost of the exercise shared equally by the two unions.

Key legal issues

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01

Whether the Claimant recruited a simple majority of the Respondents' unionisable employees despite the outsourcing allegation

Holding

The Court was satisfied the Claimant recruited more than a simple majority; the outsourcing claim was unsupported by any evidence.

Reasoning

The Court examined the check-off lists and found no indication the enlisted members were employees of any other company. No outsourcing company gave evidence claiming the employees, and the arithmetic of outsourcing (33 of 40 employees) made the claim implausible. The Interested Party also did not suggest any of its represented employees were outsourced.

p. 4
02

Whether the constitutional spheres of the two unions demarcate food processing from food manufacturing so as to exclude the Claimant

Holding

Neither union could be prevented from recruiting the Respondents' employees; prior decisions had not unequivocally split the industries, and trade unions no longer operate on strict industrial classification.

Reasoning

The Interested Party's constitution broadly covers distributive and commerce groups including flour mills and food processing, while the Claimant's amended constitution covers grain mills producing flour and processing flour into products. Both overlap with the Respondents' grain-milling business, so both may lawfully recruit, and the employees' preference must be ascertained by ballot.

p. 5
03

Whether the existing Recognition Agreement between the Respondents and the Interested Party should be invalidated

Holding

The Court declined to invalidate it at that stage, holding that recognition is not permanent and that the employees' current preference must be established through balloting.

Reasoning

The Interested Party did not demonstrate it still retained a simple majority, and the intentions of employees could only be known through balloting. Recognition must not be viewed as cast in bronze, but the Court could not, on the record, declare the longstanding relationship ended or grant recognition to the Claimant.

p. 5

Legal principles established

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  • The statutory test for recognition under Section 54(1) and 54(8) of the Labour Relations Act requires proof of a simple majority of employees and relevance to the employer's sector, with reference to the model recognition agreement.
  • Where two registered trade unions' constitutions both permit recruitment in the employer's industry, neither can be barred from recruiting that employer's employees; the employees' choice must be ascertained through balloting.
  • Recognition once granted is not immutable; a Union must remain relevant and retain a majority of current employees, and a Recognition Agreement may be invalidated by the Court in appropriate circumstances.

Court orders

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  1. 1.Balloting to be conducted in all of the 3 Respondents' businesses at Mombasa, Nairobi and Kisumu
  2. 2.Unionisable Employees to elect which between the two Unions they wish to be represented by
  3. 3.The exercise to be overseen by the respective County Labour Officers
  4. 4.Returns and accompanying reports by the Labour Officers to be filed with the Court within 90 days of the order
  5. 5.The County Labour Office Mombasa to coordinate balloting
  6. 6.Costs of the exercise to be met by the two Trade Unions equally
  7. 7.Parties to move the Court for further orders at the end of the exercise

Authorities

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Legislation

  • Industrial Court [Procedure] Rules 2010Rule 27 [1] [a]
  • Labour Relations ActSection 54
  • Labour Relations Act 2007Section 54 [1], 54 [8], 54 [5], Section 4
  • Constitution of KenyaArticles 36 and 41

Cases cited (5)

  • Bakery, Confectionery, Food Manufacturing and Allied Workers Union [K] v. Sameer Agriculture & Livestock [K] Limited
    Industrial Court at Nairobi Cause Number 469 [N] of 2009
  • Bakery, Confectionery, Food Manufacturing and Allied Workers Union v. Ministry for Labour & Others
    Industrial Court at Nairobi Appeal No. 1 of 2008
  • KUDHEIHA v. Commissioner for Higher Education
    [2013] e-KLR
  • Bakery, Confectionery, Manufacturing and Allied Workers Union v. Unga Feeds Limited & Others
    Cause Numbers 19, 20 and 21 of 1988
  • KUPRIPUPA v. Mombasa Millers
    Cause Number 106 of 2009
Jurisdiction invoked
Industrial Court [Procedure] Rules 2010, Rule 27 [1] [a]; dispute over a Recognition Agreement 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, "Bakery, Confectionery, Food Manufacturing and Allied Workers Union [K] v Mombasa Maize Millers Limited & 3 others [2016] KEELRC 1532 (KLR)", Case Analysis (2016). Cause Number 279 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1532/eng@2016-03-17

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