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ELRCDismissedNot stated in the excerpt· [2019] KEELRC 1451 (KLR)

Kenya Private Universities Workers Union v Aga Khan University Hospital [2019] KEELRC 1451 (KLR)

Employment and Labour Relations Court
31 May 2019
BOBYRAM ONGAYA
1,161 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant trade union filed a memorandum of claim on 14 March 2019 alleging unfair, unprocedural, unlawful and constructive termination of employment of its member, Dianah Nyanga Owino (the grievant), by the respondent, per a notice dated 22 June 2018. The dispute had been reported to the Cabinet Secretary responsible for labour and a conciliator appointed under the Labour Relations Act, 2007; the conciliator, by letter dated 19 October 2018, noted the respondent's position that it had no recognition agreement with the union and referred the parties back to the Court. The respondent filed a preliminary objection on 22 March 2019 contending that the union lacked locus standi under section 54 of the Labour Relations Act because no recognition agreement existed between the parties, and seeking striking out with costs. The union, relying on Article 41(2)(c) of the Constitution and section 4 of the Act, and on several decisions of the Employment and Labour Relations Court, submitted that membership rather than a recognition agreement confers standing. The respondent cited authorities holding a recognition agreement to be a precondition. Considering the competing lines of authority, the Court held that recognition under section 54 is a precondition for concluding a collective agreement, whereas the precondition to a union's representation of an employee is that employee's union membership. The notice of preliminary objection was dismissed with costs and the parties directed to proceed to expeditious determination of the pending application and the main suit. Judgment was signed, dated and delivered in Nairobi on 31 May 2019 by Byram Ongaya, Judge.

Key legal issues

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01

Whether absence of a recognition agreement under section 54 of the Labour Relations Act, 2007 deprives a trade union of locus standi to sue on behalf of its member

Holding

No. Membership of the trade union is what confers standing to represent an employee; a recognition agreement is only a precondition to collective bargaining

Reasoning

The court considered prior divergent decisions and found the jurisprudence tilting towards the position that recognition under section 54 serves collective bargaining, while representation of an employee depends on that employee's union membership. Article 41(2)(c) of the Constitution and section 4 of the Labour Relations Act guarantee the right to join and participate in union activities without reference to a recognition agreement. The preliminary objection therefore failed.

p. 2

Legal principles established

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  • Recognition is a precondition for concluding a collective agreement, whereas the precondition to an employee's representation by a trade union is that employee's membership in the trade union

Court orders

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  1. 1.The notice of preliminary objection filed for the respondent is dismissed with costs
  2. 2.Parties directed to take steps towards expeditious determination of the pending application and the main suit

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Labour Relations Actsection 4
  • Labour Relations Actsection 73
  • Labour Relations Actsection 48(3)
  • Labour Relations Act, 2007section 54(1) and (2)
  • Employment and Labour Relations Court Rulesrule 5
  • Employment Actsection 40
  • Constitution of KenyaArticle 41(2)(c)

Cases cited (8)

  • Kenya Private University Workers Union –Versus- Kenya Methiodist University
    [2017]eKLR
  • Transport Workers Union (K) –Versus- Ideal Logistics Limited
    [2012]eKLR
  • Banking, Insurance & Finance Union (Kenya) –Versus- Maisha Bora Sacco Society Limited
    [2016]eKLR
  • Communication Workers’ Union –Versus- Safaricom Limited
    [2014]eKLR
  • Kenya Shoe & Workers Union –Versus- Modern Soap Factory Limited
    [2017]eKLR
  • Kenya Shipping, Clearing and Warehousing Workers Union –Versus- Sunripe (1976) Limited
    [2018]eKLR
  • Kenya Hotels and Allied Workers Union –Versus- Golden Jubilee Ltd T/A Crown Plaza Nairobi
    [2019]eKLR
  • Kenya Engineering Workers Union –Versus- Africa Metal Works Limited
    [2019]eKLR
Jurisdiction invoked
Referral of an unresolved trade dispute under section 73 of the Labour Relations Act, 2007 as read with rule 5 of the Employment and Labour Relations Court Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Private Universities Workers Union v Aga Khan University Hospital [2019] KEELRC 1451 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1451/eng@2019-05-31

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