Kenya Aviation Workers Union v Kenya Airports Authority & another [2019] KEELRC 1110 (KLR)
The bottom line
#Kenya's Employment Court ruled Kenya Airports Authority unlawfully terminated a union's recognition agreement and coerced members, protecting workers' freedom of association.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner had locus standi
The Petitioner, as a registered trade union acting in the interest of its members, had locus standi under Articles 22(2)(d) and 258(2)(d) and section 8 of the Labour Relations Act
The court held that an association may sue on behalf of its members under Articles 22(2)(d) and 258(2)(d), and that a registered union has rights in its own capacity under Article 41 and section 8 of the Labour Relations Act. The Respondents' forum-shopping and locus objections did not displace this standing.
Whether termination of the Recognition Agreement violated the Petitioner's and its members' constitutional rights
The termination without the 3 months' notice required by Clause 14 breached the agreement and infringed Articles 36 and 41(4) and section 8 of the Labour Relations Act
Clause 14 required 3 months' notice of termination. The 1st Respondent terminated with effect from the next day. Because the right to the recognition agreement is protected by Article 41 and section 8 of the Labour Relations Act, the manner of termination also amounted to a constitutional violation, not merely a private contract dispute.
Whether the Respondents intimidated and coerced members to resign to reduce the Petitioner's membership
The Respondents manipulated members by miscommunicating the orders in Cause 2204 of 2015 and threatening backdated deductions, causing massive withdrawals and unfairly favouring the rival union
Internal memos threatened cumulative 12-month backdated deductions, which was not a correct interpretation of Wasilwa J's orders requiring remittance from date thereof. Membership fell from 329 to 111 to 21. The court found this was intimidation and coercion, that the Respondents failed to act as a neutral party, and that this amounted to unfair labour practice and discrimination.
Whether the private-law/contract characterisation by the Respondents defeated the constitutional claims
The cases relied on by the Respondents were distinguished because in them there was no union membership, recognition agreement or CBA
The court distinguished Communication Workers Union and Humphrey Makoh Nyongesa on the basis that there was no union membership in those cases, whereas here the Petitioner had members, a recognition agreement and a negotiated CBA, so the constitutional dimension applied.
Legal principles established
#- An association acting in the interest of one or more of its members has locus standi under Articles 22(2)(d) and 258(2)(d) to institute proceedings alleging infringement of rights in the Bill of Rights
- Termination of a recognition agreement in breach of its own notice clause, and manipulation of union membership to dislodge a union, violates the rights of association and collective bargaining under Article 41 and freedom of association under Article 36
Court orders
#- 1.A declaration that the decision by the 1st Respondent to issue a termination notice through the letter dated 31st August 2017 is procedurally unfair, unlawful and unreasonable and in breach of Article 27, 36 and 41 of the Constitution as well as section 8 of the Labour Relations Act
- 2.A declaration that the Respondents breached Articles 36 and 41 of the Constitution by preventing its employees from freely associating with the Petitioner
- 3.A declaration that the Respondents engaged in unfair labour practices and breached Article 41 of the Constitution by threatening and harassing members of the Petitioner and job grade S5 employees
- 4.A permanent injunction restraining the 1st Respondent from terminating the Agreement on Recognition and Negotiation Procedure dated 22nd April 2014 without following due process
- 5.An order for certiorari to bring to this Court and quash the decision of the 1st Respondent to issue a termination notice of the Agreement on Recognition and Negotiation Procedure without following due process
- Jurisdiction invoked
- Articles 22, 23, 36, 41 and 47 of the Constitution; Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Kenya Airports Authority & another [2019] KEELRC 1110 (KLR)", Case Analysis (2019). Petition (Nairobi ELRC, filed 13th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1110/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.