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ELRCAllowedCause No 1345 of 2014· [2018] KEELRC 1251 (KLR)

Bakery Confectionery, Food Manufacturing & Allied Workers Union v Joy Super Bakers Limited [2018] KEELRC 1251 (KLR)

Employment and Labour Relations Court
10 August 2018
MNMathews N. NdumaMOMaureen Onyango
731 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant Union sought recognition by the Respondent as the sole union representing its unionisable employees, together with an order compelling the deduction and remission of union dues. The Claimant relied on a check-off notice bearing 49 signed employees out of a workforce of 60, a draft Recognition Agreement attached to its Memorandum of Claim, and Ministerial order No. 7170 issued under the Labour Relations Act, 2007 requiring the Respondent to effect the check-off system. The Respondent opposed, disputing that 49 employees had been recruited, alleging that 20 listed persons were not its employees and that 24 had withdrawn from union membership, and contending that the statutory threshold under section 54 had not been met. The court found that the Claimant had recruited a simple majority of the Respondent's employees at the time it sought the deduction of dues, and that the Minister had issued a lawful order under section 49(1) which the Respondent had not contested under section 50(1). The Claimant proved its case on a balance of probabilities, and the Respondent failed to rebut the credible documentary evidence; the conciliator's recommendation for formal recognition supported this finding. The court ordered the Respondent to deduct and remit union dues in respect of all union members in its employ forthwith, to sign the Recognition Agreement forthwith, and to pay the costs of the suit. The judgment was signed by Nduma J in Kisumu on 20th July 2018 and delivered by Onyango J in Nairobi on 10th August 2018.

Key legal issues

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01

Recognition under section 54(1) of the Labour Relations Act

Holding

The Claimant proved, on a balance of probabilities, that it had recruited 49 of 60 employees, a simple majority, entitling it to formal recognition.

Reasoning

The court accepted the check-off notice bearing 49 signed employees and the Minister's order No. 7170 as credible documentary proof of recruitment. The Respondent's defence alleged that 20 listed persons were not its employees and that 24 had withdrawn, but it failed to rebut the documentary evidence. The conciliator's recommendation that formal recognition be accorded affirmed the court's finding.

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02

Deduction and remission of union dues (check-off)

Holding

The Minister's order No. 7170 under section 49(1) was lawful and unchallenged, mandating the Respondent to deduct and remit union dues forthwith.

Reasoning

The Ministry of Labour issued order No. 7170 requiring the Respondent to effect the check-off system. The Respondent did not contest the order pursuant to section 50(1) of the Labour Relations Act. The employer is therefore mandated to implement the Minister's decision and commence deduction of union dues forthwith in respect of all union members in its employ.

p. 2

Legal principles established

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  • An employer is mandated to implement the Minister's lawful check-off order under section 49(1) and commence deduction of union dues forthwith, and failure to contest the order under section 50(1) leaves it binding.
  • Recruitment of a simple majority of unionisable employees (here 49 out of 60) obliges the employer to formally recognize the union under section 54(1) of the Labour Relations Act.

Court orders

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  1. 1.The Respondent is to deduct union dues and remit to the union in respect of all members of the union in its employ in terms of the Minister's order no. 7170 forthwith
  2. 2.The Respondent is to sign Recognition Agreement with the Claimant Union forthwith
  3. 3.Respondent to pay costs of the suit

Authorities

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Legislation

  • Labour Relations Act, 2007section 54(1)
  • Labour Relations Act, 2007section 49(1)
  • Labour Relations Act, 2007section 50(1)

Cases cited (2)

  • Kenya Game Hunting & Safari workers Union Vs. Micatio Safaris
    [2013] eKLR
  • Industrial Court of Kenya Cause No. 469 (N) of 2009
Jurisdiction invoked
Labour Relations Act, 2007, sections 49, 50 and 54; Employment and Labour Relations Court jurisdiction over recognition of trade unions and check-off disputes

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, "Bakery Confectionery, Food Manufacturing & Allied Workers Union v Joy Super Bakers Limited [2018] KEELRC 1251 (KLR)", Case Analysis (2018). Cause No 1345 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1251/eng@2018-08-10

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