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ELRCAllowedNot stated in the judgment· [2019] KEELRC 714 (KLR)

Transport Workers Union v Etihad Airways [2019] KEELRC 714 (KLR)

Employment and Labour Relations Court
3 October 2019
MOMaureen Onyango
1,362 words in judgment
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The bottom line

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Kenya's Employment Court ordered Etihad Airways to sign a union recognition agreement after the union proved it had recruited most of the airline's employees.

What this practically means

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Executive summary

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The Transport Workers Union applied by Notice of Motion dated 14 February 2019, under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, for review of the court's judgment of 8 February 2019, seeking a declaration that it had met the recognition threshold under section 54 of the Labour Relations Act and an order compelling Etihad Airways to execute a recognition agreement. The union asserted it had recruited 8 of the respondent's 9 unionisable employees, evidenced by check-off forms, with dues being deducted and remitted. Etihad Airways filed no response but its counsel argued orally that the applicant had not identified any error apparent on the face of the record, was improperly introducing new facts, and was inviting the court to sit on appeal on its own decision. In its earlier judgment the court had declined recognition solely because the claimant had not stated the total number of unionisable employees. Justice Maureen Onyango held that this omission, now clarified, was a sufficient ground for review under Rule 33's 'any other sufficient reason' limb, and that the uncontroverted evidence showed the claimant had recruited more than a simple majority of the unionisable employees. The court reviewed the 8 February 2019 judgment, set aside its last paragraph, substituted a finding that the claimant met the recognition threshold under section 54, and ordered the respondent to sign a recognition agreement with the claimant within 30 days. Judgment delivered at Nairobi on 3 October 2019.

Key legal issues

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01

Threshold for review under Rule 33

Holding

The application met the review threshold, including 'any other sufficient reason', as the claimant clarified its earlier omission of the total number of unionisable employees

Reasoning

Rule 33(1) permits review for discovery of new matter, error apparent on the face of the record, clarification, or any other sufficient reason. The court noted its earlier judgment declined recognition only because the claimant had not stated the total number of unionisable employees. The claimant had recruited 8 of 9 employees, supported by check-off forms, and the respondent filed no replying affidavit or grounds of objection to controvert this evidence. The failure to state the total number, now clarified, was held a sufficient ground for review.

p. 2
02

Recognition under section 54 of the Labour Relations Act

Holding

The claimant met the statutory recognition threshold, being recruited more than a simple majority of the respondent's unionisable employees

Reasoning

Section 54 of the Labour Relations Act requires a simple majority of unionisable employees for recognition. The claimant recruited 8 of the respondent's 9 unionisable employees, evidenced by check-off forms and confirmed in the earlier judgment. The respondent did not defend the claim, did not attend the hearing, and filed no evidence to controvert the claimant's figures, so the court accepted the claimant's evidence and directed execution of a recognition agreement within 30 days.

p. 2

Legal principles established

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  • An omission in a party's case, once clarified, may constitute 'any other sufficient reason' for review under Rule 33
  • A claimant union recruiting more than a simple majority of an employer's unionisable employees meets the recognition threshold under section 54 of the Labour Relations Act

Court orders

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  1. 1.Review of the judgment dated and delivered on 8 February 2019 by setting aside the last paragraph thereof and substituting it with a finding that the claimant has recruited more than a simple majority of the unionisable employees of the respondent and has met the threshold for recognition under Section 54 of the Labour Relations Act
  2. 2.Order that the respondent sign a recognition agreement with the claimant within 30 days

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Labour Relations ActSection 54
  • Employment ActSection 74

Cases cited (2)

  • Kenya Union of Hair and Beauty Salon Workers -V- Black Beauty Products Ltd; Kenya Scientific Research International & Technical Institutions Workers Union (Interested Party)
    [2018] eKLR
  • Shanzu Investment Ltd vs. the Commissioner of Lands
    Civil Appeal No. 100 of 1993 [1993] eKLR
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules

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, "Transport Workers Union v Etihad Airways [2019] KEELRC 714 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/714/eng@2019-10-03

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