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ELRCPartially AllowedELRC Cause No. 711 of 2018· [2019] KEELRC 2046 (KLR)

Kenya union of commercial,food and allied workers (kucfaw) v Amicum outsourcing limited & 2 others [2019] KEELRC 2046 (KLR)

Employment and Labour Relations Court
7 March 2019
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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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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KUCFAW, holding a recognition agreement and CBA with Tusker Mattresses Limited (3rd Respondent), filed a Memorandum of Claim on 15 May 2018 alleging that outsourced labour supplied to Tusker Mattresses by Amicum Outsourcing Limited (1st Respondent) and Artemis Outsourcing Limited (2nd Respondent) was victimised on account of union membership. The union sought declarations of violation of freedom of association, an injunction against victimisation, orders for deduction and remittance of union dues, reinstatement of terminated employees, and equal terms of service with the 3rd Respondent's regular employees. The 1st and 2nd Respondents denied having any recognition agreement with the union, denied receiving check-off forms and denied unfair labour practices; the 3rd Respondent filed a preliminary objection on locus standi and supported the Conciliator's recommendations. The court referred the matter to conciliation; the Conciliator found 449 of about 3,500 outsourced employees had joined the union, that terminations followed fair disciplinary procedures, and that the outsourced workers had independent contracts with the outsourcing companies. The court held that the claim on violation of freedom of association was not proved, that the claimant had mixed up issues of recognition, dues remittance and unfair termination, and that the terms of the CBA with the 3rd Respondent could not extend to outsourced labour with independent contracts, so no discrimination arose. However, lack of a recognition agreement did not bar deduction and remittance of dues for employees who signed check-off forms. The court ordered continued remittance of union dues and that each party bear its own costs; all other relief was refused.

Key legal issues

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01

Freedom of association and alleged victimisation for union membership

Holding

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.

Reasoning

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.

p. 5
02

Check-off and remittance of union dues without a recognition agreement

Holding

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.

Reasoning

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.

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03

Equality of terms for outsourced labour with principal employer's employees

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.That the Respondents should continue to remit union dues for employees who have signed check-off forms
  2. 2.That costs of the Claim be borne by each party

Authorities

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Legislation

  • Labour Relations Actsection 54(1)
  • Employment Actsection 5
  • Labour Institutions Actsection 55(2)

Cases cited (5)

  • The Wringley Company (East Africa) Limited v The Honourable Attorney General, the Industrial Court of Kenya the Bakery, Confectionary Manufacturing and Allied Workers Union and Sheer Logic Management Consultants Ltd
    Petition 22 of 2012
  • Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union
    [2016] eKLR
  • Communication Workers Union v Safaricom Limited
    [2014] eKLR
  • Kenya Shoe & Workers Union v Modern Soap Factory Ltd
    [2017] eKLR
  • Kenya Union of Printing, Publishing, Paper Manufactures, Pulp & Packaging Industries v Raffia Bags (EA) Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Labour Relations Act; Employment Act cited in submissions)

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 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.