Kenya Private Universities Workers Union v Don Bosco Utume Salesian Theological College [2019] KEELRC 176 (KLR)
The bottom line
#A Kenyan court ordered an employer to deduct union dues for existing members but refused to force union recognition because the union lacked majority support.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the union
The Claimant has locus standi to institute the suit as it recruited members among the Respondent's employees as demonstrated by the Form S check-off forms filed in court.
Recognition under Section 54(1) is only for collective bargaining, not representation. An employee becomes a member upon payment of membership fees and is entitled to representation upon becoming a member. The check-off forms demonstrated membership among the Respondent's employees, so the preliminary objection lacked merit and was dismissed.
Misrepresentation or fraud in recruitment
No sufficient evidence of misrepresentation, fraud or coercion in the recruitment of the union's members.
The alleged attendance list said to have been passed off as check-off forms was not produced in court. Minutes of 28th February 2018 showed members were to be issued with individual check-off forms, indicating consensus regarding the disputed forms. The allegation of fraud therefore failed for want of evidence.
Remittance of union dues
The Respondent is compelled to deduct and remit dues only for the five remaining members at the agreed rate of 1.5%, but not for the 17 employees who resigned in writing.
Section 48(6) prohibits deduction for employees who have in writing resigned from the union. The letter of 14th June 2018 was sufficient notice that 17 employees had resigned. There was no proof of coercion of the resignations, so dues are payable only for the remaining five members.
Recognition of the union
The Claimant has not proved entitlement to recognition under Section 54(1) as it has only five members, which is not a simple majority.
Section 54(1) requires recognition only for a union representing a simple majority of unionisable employees. The Claimant's five members fall short of a simple majority, and there was no proof of the exact number of the Respondent's unionisable employees, so the prayer for a recognition agreement failed.
Legal principles established
#- An employer shall recognise a trade union for purposes of collective bargaining only where that union represents the simple majority of unionisable employees
- No union dues deduction may be made in respect of an employee who has in writing notified the employer of resignation from the union
- A trade union that has recruited members among an employer's employees has locus standi to file suit for its members even before recognition
Court orders
#- 1.The Respondent to comply with Section 48 of the Labour Relations Act, 2007 by deducting union dues from the five remaining members and remitting the same to the Claimant's gazetted bank account
- 2.The Respondent to deduct and remit dues in respect of any other employee who may be recruited by the union
- 3.The Respondent's preliminary objection on locus standi dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade disputes and compliance with the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Workers Union v Don Bosco Utume Salesian Theological College [2019] KEELRC 176 (KLR)", Case Analysis (2019). Cause No 1347 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/176/eng@2019-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.