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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 1670 (KLR)

Kenya National Private Security Workers Union v Radium Security Services Ltd [2018] KEELRC 1670 (KLR)

Employment and Labour Relations Court
29 June 2018
RSRadido Stephen
697 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenyan employers must deduct and remit union dues once check-off forms are valid, even before signing a recognition agreement with the union.

What this practically means

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Executive summary

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This is an interlocutory application by the Kenya National Private Security Workers Union seeking orders compelling the Respondent employer to deduct union dues from unionisable employees who had signed check-off forms and remit them to the Union's gazetted account, and to pay from its own kitty sums that should have been deducted but were not. The dispute had earlier been reported to the Cabinet Secretary, East African Community, Labour & Social Protection, who appointed a Conciliator; the conciliation failed and an unresolved dispute certificate was issued on 5 April 2018, precipitating these proceedings. The Respondent opposed the application, arguing that the conciliator made no recommendations, that some check-off names were repeated, unclear or cancelled, and that a recognition agreement had to be signed before dues could be deducted. The Court, per Radido J, held that the law on deduction of union dues is in section 48 of the Labour Relations Act, read with section 19(1)(g) of the Employment Act, and that the gazette notice and Form S check-off procedures had been satisfied. The Court rejected the argument that a recognition agreement must precede dues deduction, holding that recognition comes after deductions commence. On the forms, the Court found the names legible apart from isolated cancellations and single-name entries. The Court allowed the application in terms of proposed order 3, excluding cancelled names and entries with only one name, ordered deductions and remittances to commence effective July 2018 with the Respondent bearing any shortfall from its own resources, and made no order as to costs in view of the envisaged social partnership between the parties.

Key legal issues

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01

Whether the Respondent could be compelled to deduct and remit union dues before signing a recognition agreement

Holding

No recognition agreement is needed before deduction of dues; the argument that it must precede deduction was rejected as unsound in law and logic

Reasoning

The law on deduction of union dues is found in section 48 of the Labour Relations Act, with section 19(1)(g) of the Employment Act permitting employees to dispose of wages. The Cabinet Secretary issued the requisite gazette notice, employees joined the Union, and Form S was furnished to the Respondent. Since a recognition agreement follows rather than precedes dues deduction, the Union's application succeeded under proposed order 3, excluding illegible or cancelled entries.

p. 2
02

Validity of the check-off forms supplied to the Respondent

Holding

The check-off forms were substantially valid; only cancelled names and entries where only one name was given were excluded

Reasoning

The Court examined Form S as sent to the Respondent and found that apart from one instance of a single name and one cancellation, the names were legible and clear. The Respondent's objections based on repeated, unclear or cancelled names therefore only succeeded to a limited extent, narrowing the scope of the deduction order to the qualifying employees.

p. 2

Legal principles established

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  • The signing of a recognition agreement does not trigger the commencement of deduction of union dues; deduction commences once Form S check-off forms are furnished and the gazette notice is in place

Court orders

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  1. 1.Application allowed in terms of proposed order 3, save for cancelled names and instances where only one name has been given
  2. 2.Deductions and remittance of union dues to commence effective July 2018
  3. 3.Failure to commence deductions, the Respondent will meet the dues owing from its own resources
  4. 4.No order as to costs

Authorities

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Legislation

  • Labour Relations Actsection 48(2); section 48; third schedule
  • Employment Act, 2007section 19(1)(g)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes following an unresolved certificate of dispute issued by a Conciliator appointed by the Cabinet Secretary 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, "Kenya National Private Security Workers Union v Radium Security Services Ltd [2018] KEELRC 1670 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1670/eng@2018-06-29

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