Kenya Aviation Workers Union v Bollore Africa Logistics Limited & another [2018] KEELRC 1049 (KLR)
The bottom line
#An employer cannot sign a new recognition agreement with a rival union while a valid one with another union still exists — Bollore's second agreement was declared void.
What this practically means
#Executive summary
#Key legal issues
#Termination of the recognition agreement between claimant and respondent
There was no evidence of termination; the respondent neither applied to the National Labour Board nor gave the contractual 3 months' notice
The recognition agreement contained a clause permitting termination by 3 months' notice with compliance with relevant laws, and Section 54(5) allows application to the National Labour Board to terminate or revoke a recognition agreement. The respondent did not show it terminated the agreement by application to the Board, by notice, or that it lapsed automatically upon the claimant's deregistration. The agreement therefore remained subsisting.
Whether the Interested Party commanded a simple majority at the time of signing the recognition agreement
No proof of majority membership; no Form S (check-off) forms or written resignations were produced
Section 48 of the Labour Relations Act requires employees to notify the employer of union membership through Form S and to resign in writing. The respondent's membership list was undated, of unclear provenance, and neither respondent nor Interested Party produced any check-off forms or written resignations. There was therefore no proof that any employee left the claimant or joined the Interested Party.
Bad faith in the timing of the recognition agreement
The Interested Party acted in bad faith by signing the recognition agreement the day before the Court of Appeal ruling on the stay of deregistration
The Interested Party, which had filed Judicial Review Application No. 1 of 2014, knew the stay ruling was due on 3rd February 2017 yet signed the recognition agreement with the respondent on 2nd February 2017. The court treated this as a deliberate scheme to defeat the outcome of the court's decision should it favour the claimant.
Validity of the recognition agreement between respondent and Interested Party
It was a nullity
Given the absence of termination of the claimant's recognition agreement, lack of proof of the Interested Party's majority, bad faith, and the respondent's lack of capacity, the recognition agreement signed on 2nd February 2017 was a nullity. Consequently the respondent cannot negotiate or register a CBA with the Interested Party while the claimant's recognition agreement subsists.
Legal principles established
#- A trade union is entitled to recognition by an employer for CBA negotiations once it has recruited a simple majority of the unionisable employees
- An employer cannot enter into a recognition agreement with another union while a subsisting recognition agreement with a union that has not been validly terminated is in force
Court orders
#- 1.Declaration that the respondent has no capacity to negotiate a CBA with the Interested Party as there is a subsisting valid recognition agreement with the claimant
- 2.Injunction stopping the respondent from negotiating or registering any collective bargaining agreement between the respondent and the Interested Party for as long as there is a valid recognition agreement between the claimant and the respondent
- 3.Declaration that any negotiations of a collective bargaining agreement between the respondent and the Interested Party while there is a valid recognition agreement between the claimant and the respondent are null and void
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Labour Relations Act and Article 41 of the Constitution (as invoked by the Interested Party); court of first instance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Bollore Africa Logistics Limited & another [2018] KEELRC 1049 (KLR)", Case Analysis (2018). Memorandum of Claim dated 23rd November 2017 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1049/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.