Kenya Aviation Workers Union v Bollore Africa Logistics – Kenya & another [2016] KEELRC 1539 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers must keep deducting agency fees under a Gazette Notice until the Minister changes or cancels it, even if workers switch unions.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
No prima facie case established; interim orders vacated and application dismissed
The court applied Giella v Cassman Brown and Mrao Ltd, holding that in employment matters the bar is raised: there must exist a clear right, evidence of infringement and high chances of success at trial, viewed in the context of fair labour relations and industrial peace. The deductions were made under valid law, so no right of the Claimant members was infringed.
Lawfulness of agency fee deductions under section 49 and Gazette Notice No.5027
Deductions are lawful; sections 48 and 49 of the Labour Relations Act do not conflict; the Gazette Notice remains in force until varied or revoked by the Minister
Section 49 is directed at the employer and empowers deduction of agency fees from unionisable employees covered by a registered CBA who are not union members. The CBA in RCA No.14 of 2009 was registered, the Minister published Gazette Notice No.5027 giving effect to the law, and resignations to join another union trigger agency fees under section 49(5). A CBA remains in force for its terms and is not extinguished by the lapse of time or members' resignation.
Alleged violation of constitutional rights
No violation of constitutional rights under articles 29, 35, 37, 41, 43, 47 or 50
The court found the deductions lawful under sections 17 and 49 of the Employment Act and Labour Relations Act respectively. The provisions affirm the right to associate and to choose one's union, but that right is exercised in the context of existing benefits under a subsisting CBA. Deductions made in accordance with clear provisions of the law cannot amount to unfair labour practice or infringement of rights.
Legal principles established
#- Deduction of agency fees from unionisable employees covered by a registered CBA pursuant to a Ministerial order under section 49 of the Labour Relations Act is lawful, even where such employees have resigned from the benefiting union and joined another, until the Minister varies or revokes the order
- An employee who resigns from a union covered by a CBA is immediately liable to have agency fees deducted under section 49(5)
- In employment matters, interlocutory injunction principles require more than an arguable case - a right, evidence of infringement and high chances of success upon trial, in the context of fair labour relations and industrial peace
Court orders
#- 1.The orders issued on 20th April 2015 (interim orders) are vacated
- 2.Application dated 16th April 2015 is dismissed
- 3.No orders as to costs
- Jurisdiction invoked
- Article 35 and 41 of the Constitution; sections 12, 48 and 49 of the Industrial Court Act [Employment and Labour Relations Court Act]; Rule 16 of the Court Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Bollore Africa Logistics – Kenya & another [2016] KEELRC 1539 (KLR)", Case Analysis (2016). Application dated 16th April 2015 in Claim dated 20th April 2015 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1539/eng@2016-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.