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ELRCDismissedCause No 560 of 2013· [2019] KEELRC 2595 (KLR)

Kenya Hotels and Allied Workers Union v Hotel Royal Orchid [2019] KEELRC 2595 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
22 November 2019
ANAbuodha Jorum Nelson
834 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to force a hotel to recognise a new union because a rival union already held a valid recognition agreement and CBA.

What this practically means

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Executive summary

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The Claimant union sought an order compelling the respondent hotel to sign a recognition agreement to pave way for CBA negotiations, alleging it had recruited 105 employees (75% of unionisable employees) between July and August 2015, and that the respondent declined to sign despite conciliation before an appointee of the Cabinet Secretary for Labour who recommended signing. The respondent and the interested party (Kudheiha, which already had a recognition agreement and CBA with the respondent through the Kenya Association of Hotel Keepers and Caterers) opposed the claim, arguing the existing agreements covered all unionisable employees, no withdrawal forms had been executed, and that the Claimant should seek recognition through KAHC. The interested party relied on Khamu v Ali (2015) eKLR, a three-judge bench decision, to show rival unions may lawfully coexist in the hotel sector. The court held that although the Claimant may have recruited the requisite simple majority under section 54(1) of the Labour Relations Act, no employer can maintain two recognition agreements and CBAs concurrently for the same unionisable employees; the parties to the existing agreement must properly disengage before a new union can be recognised. Emphasising freedom of association and competition among rival unions, the court declined to compel recognition and dismissed the suit with no order as to costs, on 22nd November 2019.

Key legal issues

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01

Whether attainment of the simple majority under section 54(1) of the LRA entitles a union to automatic recognition

Holding

No - even if the Claimant recruited the requisite majority, it is not entitled to automatic recognition while a parallel recognition agreement and CBA with a rival union exists

Reasoning

The court accepted it may be true that the Claimant recruited the simple majority, but held that the statutory threshold does not by itself earn recognition where a rival union already holds a recognition agreement and CBA. The parties to the existing agreement must properly disengage as stipulated in the Labour Relations Act before a new union can enter. Concurrent recognition agreements for the same employer and unionisable employees are impermissible.

p. 2
02

Whether rival unions may compete for members and whether the court should aid recruitment

Holding

Rival unions must compete for members; courts cannot use orders to secure members a union has failed to recruit

Reasoning

The court characterised the dispute as turf wars between older unions and new entrants. Freedom of association means employees choose their union; a union cannot use a court order to obtain members it has been unable to recruit, and must compete for its share of members in a crowded field.

p. 1

Legal principles established

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  • No employer can have two recognition agreements and CBAs running concurrently with regard to unionisable employees; recognition by a rival union's prior agreement must be disengaged before a new union can be recognised
  • Union membership is an exercise of freedom of association; a court cannot order employees to join a union or force recognition where a rival union's agreement subsists

Court orders

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  1. 1.The suit was dismissed with no order as to costs

Authorities

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Legislation

  • Labour Relations Actsection 54(1)

Cases cited (1)

  • Khamu vs Ali (2015) eKLR
    (2015) eKLR
Jurisdiction invoked
First-instance employment and labour relations dispute under section 54(1) of the Labour Relations Act, 2007

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 Hotels and Allied Workers Union v Hotel Royal Orchid [2019] KEELRC 2595 (KLR)", Case Analysis (2019). Cause No 560 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2595/eng@2019-11-22

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