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ELRCDismissedApplication dated 16th April 2015 in Claim dated 20th April 2015 (Cause)· [2016] KEELRC 1539 (KLR)

Kenya Aviation Workers Union v Bollore Africa Logistics – Kenya & another [2016] KEELRC 1539 (KLR)

Employment and Labour Relations Court (Industrial Court)
23 February 2016
5,002 words in judgment
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The bottom line

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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

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Executive summary

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The Claimant union, Kenya Aviation Workers Union (KAWU), moved the Court by application dated 16th April 2015 seeking preservatory orders to stop the Respondent's memo dated 8th April 2015 requiring deduction of agency fees from KAWU members' salaries and remittance to the interested party, Aviation and Airport Services Workers Union, pursuant to Gazette Notice No.5027 of 2009. KAWU argued it held majority membership under a Recognition Agreement of January 2015, that its members had resigned from the interested party, that the Gazette Notice and the underlying CBA were otiose, and that the deductions contravened various constitutional provisions and sections 48 and 49 of the Labour Relations Act. The Respondent, through the affidavit of Felix Mulwa, maintained that the deductions complied with section 49 of the Labour Relations Act and the subsisting Gazette Notice, which had not been revoked. Only the Respondent opposed the application. Applying Giella v Cassman Brown, American Cyanamid and Mrao Ltd, the court held that in employment matters the injunction bar is raised beyond an arguable case. It found agency fee deductions under section 49 lawful, the Gazette Notice in force until varied or revoked, and no violation of constitutional rights. Finding no prima facie case or irreparable injustice, the court vacated the interim orders issued on 20th April 2015, dismissed the application and made no orders as to costs.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case established; interim orders vacated and application dismissed

Reasoning

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.

p. 7
02

Lawfulness of agency fee deductions under section 49 and Gazette Notice No.5027

Holding

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

Reasoning

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.

p. 7
03

Alleged violation of constitutional rights

Holding

No violation of constitutional rights under articles 29, 35, 37, 41, 43, 47 or 50

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The orders issued on 20th April 2015 (interim orders) are vacated
  2. 2.Application dated 16th April 2015 is dismissed
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 26, 29, 35, 37, 41 (including 41(2)(c)), 43, 47, 50
  • Industrial Court Act [Employment and Labour Relations Court Act]Sections 12, 48, 49
  • Labour Relations ActSections 48 (including 48(6) and (7)), 49 (including 49(2), (3), (5)), 59 (including 59(2))
  • Employment ActSection 5; Section 17 as reproduced (19(1)(f))
  • Industrial Court (Court) RulesRule 16
  • Gazette Notice No.5027 of 2009Deduction of agency fees

Cases cited (6)

  • Julius Maina Kinoko versus Hezekiah Ndinguri Njenga t/a Tabby Services
    [201?] eKLR
  • Suleiman versus Amboseli Resort Limited
    [2014] eKLR
  • Mrao Ltd versus First American Bank of Kenya Ltd & 2 others
    [2003] KLR; Court of Appeal No.39 of 2002
  • Giella versus Cassman Brown & Co. Ltd
    (1973) EA
  • American Cyanamid
  • Kenya Union of Journalists & Allied Workers versus Nation Media Group Limited & Another
    Cause No.799 of 2010
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

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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 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.