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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 982 (KLR)

Kenya National Private Security Workers’ Union v Eveready Security Guards Limited [2019] KEELRC 982 (KLR)

Employment and Labour Relations Court
26 July 2019
MOMaureen Onyango
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employers must deduct union dues once at least five employees join, even without a recognition agreement.

What this practically means

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Executive summary

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The claimant, a trade union registered under section 19 of the Labour Relations Act, 2007 to represent employees in the private security industry, claimed that employees of the respondent security service provider voluntarily joined it between October 2015 and June 2016 by signed check-off forms, and that the respondent refused to deduct and remit union dues and instead victimised, harassed and intimidated employees for joining the union, contrary to section 4 of the Labour Act, sections 4, 5, 6 and 7 of the Labour Relations Act and Articles 36 and 41 of the Constitution. It sought orders for deduction and remittance of dues from the date the check-off forms were signed, an injunction against victimisation, and liberty for workers to organise in a union of their choice. The respondent denied knowledge of the recruitment, contended the check-off forms were never served, and argued that section 48 must be read with section 54, requiring a simple majority and a recognition agreement, which the claimant lacked; it already recognised the Kenya Union of Commercial Food and Allied Workers Union. The court held that membership confers a right of representation irrespective of recognition, that section 48 applies once a union has recruited at least five employees, and that the check-off forms bore 167 signatures supported by a gazette notice authorising deductions. The respondent's recognition and simple majority arguments were held misplaced and irrelevant. The claim succeeded; the court ordered deduction and remittance of dues from August 2019, restrained victimisation of union members, and directed that workers be allowed to organise in a union of their choice. No orders for costs were made.

Key legal issues

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01

Whether the absence of a recognition agreement or simple majority defeats a claim for check-off deduction of union dues

Holding

It does not; section 48 applies to unions with a minimum of five recruited members, and recognition under section 54 is irrelevant to a claim for deduction and remittance of dues

Reasoning

The court held the respondent's reliance on section 54 and the existing recognition agreement with another union misplaced. Section 48(2) requires only more than five employees belonging to the union, and section 48(3) obliges deduction within 30 days of service of check-off forms. Section 54 applies to recognition for collective bargaining, which the claimant did not seek. The respondent did not deny recruitment of at least five members, and 167 signed check-off forms plus a gazette notice authorising deductions were produced.

p. 3
02

Whether the check-off forms were served on the respondent as required by section 48(3)

Holding

The court treated service as effective, noting the check-off forms attached as appendices and the Minister's gazette notice authorising deductions

Reasoning

The respondent contended the check-off forms were never served, which under section 48(3) would remove the basis for deductions. The court found the attached check-off forms bore 167 names of employees and that a gazette notice No. 10615 of 3rd August 2012 authorised deduction of dues, making it an offence for the employer to fail to deduct. The respondent also did not deny that at least five of its employees had been recruited.

p. 4
03

Whether the claimant is the appropriate union for the private security sector despite another union's recognition agreement

Holding

The claimant is the appropriate union for the private protective security sector

Reasoning

The court relied on its prior holding in Cause No. 70 of 2002 in which the Kenya Union of Commercial Food and Allied Workers amended its rules by deleting the words 'watchman organisations', meaning that union was not the relevant union for employees of private security companies. The claimant, registered to represent employees in the private security industry, was therefore the appropriate union.

p. 4

Legal principles established

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  • Membership of a trade union gives an employee a right of representation by the union even where there is no recognition agreement; recognition governs only the right to negotiate terms and conditions of employment
  • Section 48 of the Labour Relations Act applies once a union has recruited a minimum of five employees, and does not depend on attainment of a simple majority under section 54
  • Once an employer is served with check-off forms it must commence deduction of union dues within 30 days, and it is an offence for an employer to fail to deduct dues authorised by the Minister
  • The existence of another union claiming to represent employees does not stop an employer from deducting and remitting union dues; that is only relevant for recognition purposes

Court orders

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  1. 1.That the respondent do deduct and remit union dues from August 2019 from the union members
  2. 2.That the respondent be ordered not to intimidate, victimize, harass and or sack any worker involved in union activity
  3. 3.The court do direct and order respondent to allow workers to be organized, engaged in a union of their choice
  4. 4.There shall be no orders for costs

Authorities

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Legislation

  • Labour Relations Actsection 19
  • Labour Relations Act, 2007section 4
  • Labour Relations Act, 2007section 5
  • Labour Relations Act, 2007sections 6 and 7
  • Labour Relations Act, 2007section 48 (including 48(2) and 48(3))
  • Labour Relations Act, 2007section 54
  • Constitution of Kenya, 2010Article 36 and Article 41 (including 41(2)(c))
  • Labour Actsection 4
  • Employment Actsection 46
  • Civil Procedure Actsection 27

Cases cited (5)

  • Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) -V- British Army Training Unit Kenya
    (2015) eKLR
  • Abyssinia Iron & Steel Limited Vs Kenya Engineering Workers Union
    (2016) eKLR
  • Kenya Union of Commercial, Food and Allied Workers Vs Nairobi Sports House Limited
    (2018)
  • Kenya Union of Hair and Beauty Salon Workers Vs Style Industries Limited and Another
    (2017) eKLR
  • Kenya Union of Commercial, Food and Allied Workers Union Vs Ruthaka Farmers’ Cooperative Society
    (2018) eKLR
Jurisdiction invoked
Jurisdiction under the Labour Relations Act and the Industrial Court Act as the court seized of an employment/industrial relations dispute (Articles 36 and 41 of the Constitution relied on as to rights)

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 Eveready Security Guards Limited [2019] KEELRC 982 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/982/eng@2019-07-26

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