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ELRCPartially AllowedELRC Cause (Nairobi), Application filed 9 May 2018· [2019] KEELRC 1756 (KLR)

Tailors and Textiles Workers Union v Global Apparels EPZ Limited; Fidelis Omwamba Onsongo & 6 others ( Proposed Interested Parties) [2019] KEELRC 1756 (KLR)

Employment and Labour Relations Court
30 April 2019
HWHellen Wasilwa
2,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer must deduct and remit union dues once it receives valid check-off forms, unless an employee's written resignation has been notified to the union.

What this practically means

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Executive summary

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The Claimant union, which had a Recognition Agreement and CBA with the Respondent for some fifteen years, filed an application on 9 May 2018 seeking orders compelling the Respondent to deduct union dues from 1,644 employees who signed check-off forms, prohibitory orders against victimisation of unionised employees, and monthly printouts of dues deductions. The union alleged it recruited 431 employees in 2016 and a further 1,644 in 2018, submitting check-off forms on 7 March 2018, and that the Respondent instead victimised union members through unfair terminations, shortened contracts, unrealistic targets and refusal to receive letters. The Respondent, through its HR Manager, admitted receipt of check-off forms but contended that many listed persons were not employees, gave wrong identity card numbers, were duplicated, or protested deductions, with some alleging coercion or withdrawal of membership. It attributed contract endings to the seasonal effluxion of time and denied victimisation. The court analysed Section 48 of the Labour Relations Act, holding that once an employer receives the prescribed form it is obliged to deduct dues, and that it may not deduct dues from employees who have resigned in writing, but such resignation must be notified to the union. The Respondent's resignation letters were all dated 2016 and were never notified to the union, and no employee objected to the 2018 check-off forms. The court found a prima facie case and granted the orders compelling deduction of dues from 1,644 employees, prohibiting victimisation pending full hearing, and requiring monthly printouts, with costs in the cause.

Key legal issues

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01

Obligation to deduct and remit union dues under Section 48 of the Labour Relations Act

Holding

The Claimant having submitted check-off forms in the prescribed form, the Respondent was obliged to deduct and remit dues unless employees had notified resignation in writing, which was not demonstrated

Reasoning

Section 48(2) allows a trade union with more than five members to request an order directing an employer to deduct dues; Section 48(3) obliges the employer to commence deductions within thirty days of service of Form S. Section 48(6) exempts employees who notified resignation in writing. The Respondent's resignation letters all dated 2016 were not notified to the union, and no employee objected to the 2018 check-off forms.

p. 4

Legal principles established

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  • Once an employer receives the prescribed form requesting deduction and remittance of union dues, the employer is obliged to effect the deductions under Section 48 of the Labour Relations Act
  • An employer may not deduct union dues from an employee who has resigned from the union, and the employer must notify the union of such resignation

Court orders

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  1. 1.Respondent to deduct union dues from 1,644 employees who signed the check-off forms and remit to the Claimant's gazetted account
  2. 2.Respondent prohibited from victimising unionised employees through terminations, dismissals, redundancies or retrenchments due to union membership until the case is fully heard and determined
  3. 3.Respondent to submit monthly printouts of union dues deductions from union members
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 12, 20
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 6, 17, 18
  • Labour Relations ActSections 48(2), 48(3), 48(6), 55(8)
Jurisdiction invoked
Sections 12 and 20 of the Employment and Labour Relations Court Act; Rules 6, 17 and 18 of the Employment and Labour Relations Court (Procedure) 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 (1)

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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, "Tailors and Textiles Workers Union v Global Apparels EPZ Limited; Fidelis Omwamba Onsongo & 6 others ( Proposed Interested Parties) [2019] KEELRC 1756 (KLR)", Case Analysis (2019). ELRC Cause (Nairobi), Application filed 9 May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1756/eng@2019-04-30

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