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ELRCDismissedCause Number 3 of 2015· [2016] KEELRC 1635 (KLR)

Tailors and Textiles Workers Union v Mombasa Apparels [EPZ] Limited [2016] KEELRC 1635 (KLR)

Industrial Court of Kenya
26 February 2016
JRJames Rika
1,778 words in judgment
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The bottom line

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A Kenyan court refused to force an EPZ employer to recognise a union because the union couldn't prove it had recruited most employees.

What this practically means

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Executive summary

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The Tailors and Textiles Workers Union claimed against Mombasa Apparels [EPZ] Limited seeking reinstatement of locked-out employees, deduction and remittance of trade union dues, and an order compelling the Respondent to sign a Recognition Agreement. Reinstatement and check-off were settled by consent recorded on 29th January 2015 after conciliation at the County Labour Office, leaving recognition and costs for determination on the parties' pleadings, documents and submissions under Rule 21 of the Industrial Court (Procedure) Rules 2010. The Union asserted it had recruited a majority of the Respondent's unionisable employees and argued that Unit 2 at Changamwe was a 'Sector' or a unit within a 'Group of Employers' capable of separate recognition. The Respondent, a distinct legal entity from Ashton Apparels EPZ Limited, disputed the check-off forms, alleging forgeries, duplicates, non-employees and management staff, and denied any simple majority. Rika J held that the Union failed to establish a simple majority, noting inconsistent recruitment figures between the Statement of Claim and closing submissions. The Court further held that the Respondent's three units were production units of a single employer, not separate 'Sectors,' 'Industries' or employers, and that separate recognition per unit would undermine industrial stability and impose multiple negotiations over similarly placed employees. Drawing on the earlier decision in Kenya Union of Export, Import and Allied Workers Union v Registrar of Trade Unions, the Court distinguished 'Sector,' 'Industry' and 'Trade.' The claim was found without merit and premature, and was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Claimant achieved a simple majority for recognition

Holding

The Claimant did not prove a simple majority; its figures were inconsistent between pleadings and submissions

Reasoning

The Statement of Claim alleged 2,118 of 2,400 recruited, while closing submissions stated 1,327 of 1,756. The Respondent disputed the check-off forms, alleging forged signatures, duplicates, non-employees and management staff. The Court could not be satisfied the statutory simple majority under Section 54 of the Labour Relations Act was met.

p. 3
02

Whether Unit 2 constitutes a separate 'Sector' or employer for recognition purposes

Holding

No; the units are production units of a single employer and cannot have separate recognition agreements

Reasoning

The three units are management creations for operational convenience, not separate legal or business entities. Employment letters are issued by one employer. Treating units as separate bargaining units would create disparate terms for similarly placed employees and disorganize industrial stability. 'Sector' refers to a large segment of the national economy, not a section of a company.

p. 3
03

Meaning of 'Sector', 'Industry' and 'Trade' in industrial trade unionism

Holding

Sectors are broad segments of the national economy; industries are more specific groupings within sectors; trades exist within industries; Unit 2 was none of these

Reasoning

Relying on the Industrial Court's earlier decision in Kenya Union of Export, Import and Allied Workers Union v Registrar of Trade Unions, the Court distinguished 'Sector' (few broad segments of the economy, e.g. the Financial Sector) from 'Industry' (defined groupings such as Banking within the Financial Sector), with 'trades' within industries. Textiles and garments would be an industry within the manufacturing sector.

p. 3

Legal principles established

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  • A production unit within a single enterprise cannot be a 'Sector' capable of its own recognition agreement and collective bargaining process
  • Recognition under Section 54 of the Labour Relations Act requires a simple majority of the employer's unionisable employees, measured across the single employer entity

Court orders

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  1. 1.The Claim is dismissed with costs to the Respondent
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rules 21 and 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, "Tailors and Textiles Workers Union v Mombasa Apparels [EPZ] Limited [2016] KEELRC 1635 (KLR)", Case Analysis (2016). Cause Number 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1635/eng@2016-02-26

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