Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherCause No. 758 of 2016· [2018] KEELRC 2206 (KLR)

Banking, Insurance and Finance Union (Kenya) v Pesa Transact Limited [2018] KEELRC 2206 (KLR)

Employment and Labour Relations Court
5 March 2018
HWHellen S. Wasilwa
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court confirmed the union covered the company's sector but ordered a verification of membership numbers before any recognition or dues order.

What this practically means

#

Executive summary

#
The Claimant Union filed this claim on 5 May 2016 alleging it had recruited 51 of the Respondent's employees and that the Respondent refused to remit union dues or sign a recognition agreement, and sought orders for deduction and remittance of dues, execution of a recognition agreement, and cessation of harassment and intimidation of unionisable employees. The Respondent, incorporated under Cap 486 and operating in the telecommunications industry managing financial service kiosks, denied being a financial institution, disputed the membership figures, alleged recruitment by misrepresentation, relied on 28 voluntary withdrawals, and maintained that the Claimant never attained a simple majority of the unionisable workforce. It also relied on a conciliator's finding that the Claimant had not attained a simple majority. On the submissions, the Claimant invoked Civicon Limited on numbers being assessed at the time of the claim, while the Respondent relied on Kenya Jockey and Betting Workers Union on the dynamic nature of a simple majority and on Kenya Scientific Research on freedom of association and the right to dissociate. The Court held that on the Respondent's own admission it dealt with finances in the communication industry, so the Claimant, covering banking, insurance and finance, was the appropriate union. However, the membership records were not placed before the Court and the Court could not determine the requisite number of unionisable employees. It therefore directed, under Section 15 of the Employment & Labour Relations Court Act, that the matter be referred to the Labour Commissioner to appoint a Labour Officer to conduct a verification exercise and report back within 60 days, with costs in the cause.

Key legal issues

#
01

Whether the Claimant is a relevant union for the Respondent's sector

Holding

The Claimant is the appropriate union since the Respondent deals with finances in the communication industry

Reasoning

The Respondent argued it was a telecommunications company, not a financial institution regulated by the Central Bank Act. The Court held that on the Respondent's own admission it deals with finances in the communication industry, and the Claimant, which covers banking, insurance and finance industries, fits properly within the Respondent's business.

p. 3
02

Whether the Claimant attained a simple majority for recognition

Holding

Undetermined on the evidence; referred to the Labour Commissioner for a verification exercise

Reasoning

Both parties produced conflicting figures for membership and the unionisable workforce, and the membership records were not produced in Court. The Court found it could not determine the requisite number of unionisable employees without proper investigation and documents, and directed a verification exercise under Section 15 of the ELRC Act.

p. 3

Legal principles established

#
  • A court determining a recognition claim is concerned with membership numbers as at the time the claim is made
  • An employer shall recognise a trade union for collective bargaining if it represents a simple majority of unionisable employees

Court orders

#
  1. 1.The matter be referred to the Labour Commissioner to appoint a Labour Officer to carry out a verification exercise on the number of unionisable employees and the Claimant's membership
  2. 2.The Labour Officer to report back to Court within 60 days
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 54(7)
  • Employment & Labour Relations Court ActSection 15
  • Companies Act (Cap 486 Laws of Kenya)
  • Central Bank Act

Cases cited (3)

  • Civicon Limited Vs Amalgamated Union of Kenya Metal Workers
    (2016) eKLR
  • Kenya Jockey and Betting Workers Union Vs Resort Kenya Limited
    (2014) eKLR
  • Kenya Scientific Research International Technical and Allied Institutions Workers Union Vs Kenya Agricultural Research Institute & Another
    (2013) eKLR
Jurisdiction invoked
Section 15 of the Employment & Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banking, Insurance and Finance Union (Kenya) v Pesa Transact Limited [2018] KEELRC 2206 (KLR)", Case Analysis (2018). Cause No. 758 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2206/eng@2018-03-05

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