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ELRCStruck Out· [2020] KEELRC 75 (KLR)

Kenya Aviation Workers Union v AGS Worldwide Movers Limited [2020] KEELRC 75 (KLR)

Employment and Labour Relations Court
16 December 2020
NMNzioki wa Makau
886 words in judgment
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The bottom line

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A Kenyan court struck out an aviation union's bid to represent a storage company's workers, ruling it was the wrong union and had skipped mandatory conciliation.

What this practically means

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Executive summary

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The Claimant Union moved the Court by notice of motion dated 28 January 2020 seeking interim orders compelling the Respondent, a storage and removals company, to deduct and remit union dues for 76 employees who had signed check-off forms, and to recognize the Claimant as the majority union for collective bargaining purposes. The Respondent opposed, contending that most of the 76 recruits were casual workers, that the Claimant was the wrong union for its sector (the correct one being the Kenya Shipping, Clearing and Warehouses Workers Union), and that its business of removals and relocations falls outside the Claimant's aviation-industry mandate. The court, Nzioki wa Makau J, compared the Claimant's constitutional objectives with the Respondent's core business and found the Claimant was not the union for the Respondent's sector. Applying Rika J.'s decision in Kenya Shoe Leather Workers Union v Africa PVC Industries Limited, the court held that a union cannot stretch its wings of representation into an area represented by another union, and that the rival union's absence from court was no impediment. Prior deduction and remittance of dues did not absolve the Claimant. The court further found the dispute had never been referred to the Ministry of Labour and Social Services for conciliation, so the suit was prematurely filed. Accordingly, the suit was struck out for lacking a cause of action, with costs of both the suit and the motion awarded to the Respondent.

Key legal issues

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01

Constituency/scope of trade union representation under the principle of industrial trade unionism

Holding

The Claimant Union, whose mandate covers aviation industry activities, cannot represent employees of a storage and removals company; its suit for recognition and check-off was misconceived

Reasoning

The court compared the Claimant's constitutional objectives (air navigation, air transport, airports, general cargo at airports, air travel agents) with the Respondent's core business of storage and removals, concluding the Respondent falls outside the Claimant's sector. Relying on Rika J.'s authority, prior deduction and remittance of dues did not confer representational competence, and the absence of the rival union from court was no bar to the finding.

p. 2
02

Exhaustion of conciliation machinery before instituting suit

Holding

The suit was filed prematurely without referral to the Ministry of Labour and Social Services for conciliation, warranting striking out and costs against the Claimant

Reasoning

The court noted there was no report from a conciliator nor any communication to or from the Ministry. It held that conciliation under the Labour Institutions Act framework should have been sought first, as it could have saved the Court's time. The sanction was striking out of the suit for lack of a cause of action plus costs of the suit and motion against the Claimant.

p. 2

Legal principles established

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  • A trade union cannot extend representation into a sector covered by another union, and the court may assess relevance of the union to an industry on the material before it even without the other union in court
  • An employment dispute on representation and union dues should be referred to conciliation under the Ministry of Labour before suit is filed

Court orders

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  1. 1.The suit is struck out for lacking a cause of action
  2. 2.The Claimant to pay the Respondent costs of the suit and costs of the motion

Authorities

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Legislation

  • Labour Institutions Actconciliation framework

Cases cited (1)

  • Kenya Shoe Leather Workers Union v Africa PVC Industries Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Institutions Act framework

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 Aviation Workers Union v AGS Worldwide Movers Limited [2020] KEELRC 75 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/75/eng@2020-12-16

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