Kenya union of commercial,food and allied workers (kucfaw) v Amicum outsourcing limited & 2 others [2019] KEELRC 2046 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Freedom of association and alleged victimisation for union membership
The claim that the 1st and 2nd Respondents violated employees' rights of association was not proved; the Conciliator found terminations followed fair disciplinary procedures and some employees resigned or absconded.
The court examined the Conciliator's report, which recorded that terminated employees went through fair and open disciplinary procedures, some were re-employed, some withdrew from the union, and no complaints were lodged with the union or Labour Office. The claimant also mixed up recognition, dues remittance and unfair termination issues. Absent proof, the association claim failed.
Check-off and remittance of union dues without a recognition agreement
The 1st and 2nd Respondents must continue to deduct and remit union dues for employees who signed check-off forms, despite having no recognition agreement with the claimant.
The court held that although the claimant lacked a recognition agreement with the 1st and 2nd Respondents (recruitment having not met the section 54(1) threshold), this did not bar deduction and remittance of dues for employees who had voluntarily acknowledged membership by signing check-off forms and had not resigned from the union.
Equality of terms for outsourced labour with principal employer's employees
Outsourced employees working at the 3rd Respondent's premises remain employees of the outsourcing companies under independent contracts; the claimant's CBA with the 3rd Respondent cannot extend to them and no discrimination arises.
Relying on the conciliation findings that the outsourced workers have contracts with the 1st and 2nd Respondents and are deployed within the 3rd Respondent's premises but are not its employees, the court held the recognition agreement and CBA terms could not extend to them, so the claim for equal terms against the 3rd Respondent failed.
Legal principles established
#- A recognition agreement with a principal employer does not extend to outsourced labour employed under independent contracts with third-party outsourcing companies
- Lack of a recognition agreement does not bar an employer from deducting and remitting union dues for employees who signed check-off forms
Court orders
#- 1.That the Respondents should continue to remit union dues for employees who have signed check-off forms
- 2.That costs of the Claim be borne by each party
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Labour Relations Act; Employment Act cited in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya union of commercial,food and allied workers (kucfaw) v Amicum outsourcing limited & 2 others [2019] KEELRC 2046 (KLR)", Case Analysis (2019). ELRC Cause No. 711 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2046/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.