Kenya Union of Commercial Food & Allied Workers v Seb Estates Limited [2019] KEELRC 2548 (KLR)
The bottom line
#Once an employer signs a union recognition agreement in Kenya, it must negotiate a collective bargaining agreement, even if union membership later shrinks.
What this practically means
#Executive summary
#Key legal issues
#Validity of the recognition agreement and obligation to negotiate a CBA
The recognition agreement executed on 25th August 2011 was valid; the respondent was under an obligation under sections 54(1) and 57(1) of the Labour Relations Act to negotiate a CBA with the union
Both parties admitted signing a recognition agreement on 25th August 2011. Under section 54(1), once a recognition agreement is signed it paves way for negotiation of a CBA. The simple majority question is only relevant before recognition, and the respondent had not given notice to terminate the recognition agreement. The alleged understanding making enforceability conditional on recruitment of a simple majority was unsupported by evidence or law.
Simple majority as precondition to negotiation
The respondent's argument that the claimant lacked a simple majority was misplaced; simple majority is relevant only at the recognition stage
Section 54(1) requires simple majority for recognition. The parties had already executed a recognition agreement, which the respondent had not moved to terminate under section 54(5). The claim that the union had only 18 of 232 unionisable employees was unsupported by any evidence. Consequently, the locus standi objection failed.
Whether refusal to negotiate amounts to unfair labour practice
The respondent was ordered to commence negotiations within 30 days; the court found the respondent under an obligation to negotiate but did not make an express declaration of unfair labour practice
The conciliator's meetings showed the respondent sought adjournments and failed to attend a scheduled meeting, and never submitted counter proposals. The dispute was the refusal to negotiate rather than the content of proposals. The court's remedy was a mandatory order to commence negotiations rather than adoption of the CPMU award.
Legal principles established
#- A simple majority of unionisable employees is a prerequisite to recognition of a union, not to the subsequent negotiation of a collective agreement
- A valid recognition agreement entitles the union to negotiate a collective bargaining agreement and confers locus to negotiate
- Issues not pleaded in a memorandum of response cannot be raised for the first time in submissions
Court orders
#- 1.The respondent to commence negotiations of the Collective Bargaining Agreement with the union by sending its counter proposals and commencing negotiations within 30 days from the date of judgment
- 2.The case to be fixed for mention within 60 days from date of judgment for parties to report on the progress of negotiations of the CBA
- Jurisdiction invoked
- Section 54(7) of the Labour Relations Act, 2007 - referral of an unsettled recognition/collective bargaining dispute to the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food & Allied Workers v Seb Estates Limited [2019] KEELRC 2548 (KLR)", Case Analysis (2019). Memorandum of Claim dated 16th January 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2548/eng@2019-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.