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ELRCPartially AllowedCause No 97 of 2017· [2018] KEELRC 465 (KLR)

Kenya Plantations & Agricultural Workers Union v Kenya Chemical & Allied Workers Union & 2 others [2018] KEELRC 465 (KLR)

Employment and Labour Relations Court
6 December 2018
MOMaureen OnyangoMNMathews Nderi Nduma
6,169 words in judgment
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The bottom line

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A Kenyan employment court stopped a chemical workers' union from recruiting at an agricultural company because the union's constitution only covers chemical industries, not farming.

What this practically means

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Executive summary

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The claimant union, Kenya Plantation and Agricultural Workers Union, sued Kenya Chemical and Allied Workers Union (1st respondent), Homalime Kenya Limited (2nd respondent) and the Agricultural Employers Association (Interested Party), alleging that the 1st respondent gate-crashed and disrupted its general workers meeting at the 2nd respondent's premises on 12th March 2017 and was interfering with its constitutional rights to freedom of association and collective bargaining. The claimant held a Recognition Agreement (1999) and successive CBAs with the 2nd respondent through the Interested Party. The 1st respondent counter-claimed that it had recruited 222-239 employees who had resigned from the claimant, constituting a simple majority, and sought to compel the 2nd respondent to sign a Recognition Agreement with it. Pursuant to interim orders, the Kisumu County Labour Officer conducted a demarcation exercise and reported that the 2nd respondent predominantly operates in the agricultural sector, that the 1st respondent's constitution does not cover agriculture or lime production, that no resignation letters were forwarded as Section 48(8) of the Labour Relations Act requires, and that the existing recognition agreement and CBA remain valid until revoked. The court affirmed that employees may only join unions whose constitutions cover their sector, holding that eligibility under Section 54(8) must be established before the majority test applies. It found the 1st respondent ineligible to recruit the 2nd respondent's employees, declared its activities an interference with the claimant's rights, and restrained it from recruiting, holding meetings, demanding dues or contracting with the 2nd respondent's employees while the claimant's Recognition Agreement and CBA subsist. The court also cautioned the 2nd respondent against taking sides in union membership disputes, and observed, adopting Rika J in the Mombasa Maize Millers case, that recognition is not cast in bronze and the claimant must maintain a healthy majority. The claimant's case succeeded; no costs order was made.

Key legal issues

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01

Sector eligibility of the 1st respondent under Section 54(8) of the Labour Relations Act

Holding

The 1st respondent's constitution covers chemical and allied manufacturing industries, not agriculture; since the 2nd respondent predominantly operates in the agricultural sector, the 1st respondent is not eligible to recruit its employees.

Reasoning

Section 54(8) requires the court to take into account the sector in which the employer operates. The demarcation report of the County Labour Officer found that Homalime's activities — sugar cane growing, livestock rearing, forestry, and lime production used for bleaching sugar and neutralising soil acidity — are agricultural in nature. The 1st respondent's constitution (Rules 2(i)-(viii)) lists chemical and manufacturing trades only. Reliance on the fact that lime is a chemical product was held not to reflect the sector of the employer's operations.

p. 7
02

Proof of resignation from the claimant union under Section 48 of the Labour Relations Act

Holding

No resignation letters were tabled or forwarded to the claimant as required by Section 48, so a valid resignation of members was not proved.

Reasoning

Both the claimant's counsel and the County Labour Officer found that although the 1st respondent asserted that 222-239 employees had resigned and joined it, no resignation letters were produced or forwarded to the claimant union as Section 48(6)/(8) requires for resignations to have force of law. Accordingly, the alleged defection of a majority of employees could not ground revocation of the existing Recognition Agreement.

p. 8
03

Validity of the existing Recognition Agreement and CBA

Holding

The Recognition Agreement and CBA between the claimant and the 2nd respondent remain valid and binding until revoked by the parties in accordance with the agreement and Section 54 of the Labour Relations Act.

Reasoning

Relying on the authorities cited by the claimant (Kenya Ferry Services and Kenya Airline Pilots Association), a Recognition Agreement is a special contract binding the parties unless breached or terminated per its terms and Section 54 of the LRA. No breach or termination was shown; the Labour Officer also recommended that the recognition agreement and CBA remain valid until revoked by either party.

p. 5
04

Employer neutrality in union membership disputes

Holding

The 2nd respondent was wrong to take sides, with its Manager allegedly inciting workers against the claimant and later supporting the 1st respondent.

Reasoning

Correspondence dated 23rd November 2016 showed the 2nd respondent's Manager inciting workers against the claimant, and the 2nd respondent had deducted and remitted dues to both unions and sponsored the 1st respondent's recognition bid. The court held that an employer must not interfere in employees' union membership and cannot be seen to side with one union while claiming to be in a quagmire.

p. 6

Legal principles established

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  • A trade union may only recruit members from the sector specified in its constitution; an employee's freedom to join a union of choice is limited to a union whose membership clause covers the industry in which the employee works.
  • Under Section 54(8) of the Labour Relations Act, eligibility of a union in terms of the sector in which the employer operates must be satisfied before the majority-membership test for recognition becomes relevant.
  • An employer must not interfere with, or take sides in, employees' trade union membership
  • Recognition of a trade union is not permanent; recruitment is continuous and a union must remain relevant and maintain a healthy majority in the collective bargaining unit.

Court orders

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  1. 1.A declaration that the 2nd respondent operates within the agricultural sector
  2. 2.A declaration that the 1st respondent (Kenya Chemical and Allied Workers Union) is not eligible to recruit members from among the employees of the 2nd respondent
  3. 3.A declaration that the activities of the 1st respondent in Homalime Kenya Limited amount to interference with the claimant's right to Freedom of Association and right to Collective Bargaining with Homalime Kenya Limited
  4. 4.An injunction restraining the 1st respondent, its officials, agents, servants, assigns and representatives from holding meetings, recruiting, entering into any agreement(s), or demanding trade union dues from the 2nd respondent's employees and from interfering with the claimant's rights to Freedom of Association and Collective Bargaining as long as the Recognition Agreement and CBA between the claimant and the 2nd respondent subsist

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54 (including 54(2), (5), (8))
  • Labour Relations Act, 2007Section 48 (including 48(3), (6), (8))
  • Labour Relations Act, 2007Section 4(1)(b) and (c)
  • Labour Relations Act, 2007Section 14(1)(d) and (e)
  • Labour Relations Act, 2007Section 19(1)(f), (i) and (6)
  • Labour Relations Act, 2007First Schedule, Provision No. 2
  • Employment Act, 2007General reference to minimum terms
  • Constitution of Kenya, 2010Chapter Four (Bill of Rights), Article 41(1); Articles 36 and 41
  • Labour Relations Act (Labor Relations Act)Registration of employers' organisations (Interested Party)

Cases cited (4)

  • Transport Workers Union v Automobile Association of Kenya & Another
    (2016) eKLR
  • Kenya Ferry Services Limited v Dock Workers Union [Ferry Branch]
    2014 eKLR
  • Kenya Airline Pilots Association v Kenya Airways Limited
    [2016] eKLR
  • Bakery, Confectionery, Food Manufacturing and Allied Workers Union [K] v Mombasa Maize Millers Limited & 3 others
    [2016] eKLR
Jurisdiction invoked
Section 54(8) of the Labour Relations Act, 2007 (Industrial Court/ELRC jurisdiction to determine recognition disputes) and Article 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantations & Agricultural Workers Union v Kenya Chemical & Allied Workers Union & 2 others [2018] KEELRC 465 (KLR)", Case Analysis (2018). Cause No 97 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/465/eng@2018-12-06

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