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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 287 (KLR)

Kenya Electrical and Allied Workers Union v Wartsila Eastern Africa Limited (Cause 524 of 2019) (Employment and Labour) [2020] KEELRC 287 (KLR)

Employment and Labour Relations Court
15 October 2020
HWHELLEN WASILWA
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ordered Gulf Power to deduct union dues for uncontested members immediately, but left the recognition agreement fight for full trial.

What this practically means

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Executive summary

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The Claimant union filed an amended Notice of Application seeking orders compelling the Respondent employer to deduct and remit union dues, to restrain victimization of union members, and to sign a Recognition Agreement under section 54 of the Labour Relations Act, 2007, on the basis that it had recruited 69 of the Respondent's 129 unionisable employees, exceeding the simple majority threshold. The Respondent opposed the application, contending that the union had only 45 or fewer signed check-off forms (some with duplicated names or covering departed employees), that it had already been deducting and remitting dues save for employees who had resigned, and that a conciliator had found the union had not attained a simple majority. Both parties filed written submissions and relied on various authorities. The court declined to determine the recognition question, holding that the disputes over membership numbers, resignations and duplicate names raised contested factual issues requiring real evidence in the Main Claim; notably, the conciliator's report was not produced before the court. The court held that unsigned withdrawal letters could not be relied upon. However, it found the Respondent obliged by law to deduct and remit union dues for members whose membership was uncontested. Accordingly, the court ordered the Respondent to commence immediate deductions and remittance of union dues with a schedule of names it avers are uncontested, and reserved the remaining issues for the Main Claim. Costs were awarded in the cause. The application was thus partially allowed.

Key legal issues

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01

Deduction and remittance of union dues

Holding

The Respondent must immediately commence deductions and remittance of union dues for members whose membership is uncontested

Reasoning

The court held that deduction and remittance of union dues does not depend on recognition being granted. Since the Respondent concedes certain members, it is obliged by law to deduct and remit dues for those uncontested members, with a schedule of names to be provided. The contested factual questions are reserved for the Main Claim.

p. 3
02

Simple majority and recognition agreement

Holding

Whether the Applicant has attained a simple majority under Section 54(1) of the Labour Relations Act cannot be determined on affidavit evidence and is reserved for the Main Claim

Reasoning

The parties disputed the number of members recruited (69 versus 45 or fewer) and alleged duplicate names, resignations and unsigned withdrawal letters. The conciliator's report was not produced. The court found these contested issues of fact require viva voce evidence and could not be resolved on the application.

p. 3
03

Unsigned withdrawal letters

Holding

Letters of withdrawal from the union that are not signed by their authors cannot be relied upon

Reasoning

In assessing the Respondent's claim that some members had resigned, the court noted that some withdrawal letters were unsigned and therefore could not be relied upon when ascertaining current union membership for purposes of determining the simple majority question.

p. 3

Legal principles established

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  • An employer is obliged by law to deduct and remit union dues for members whose membership is uncontested, even before recognition is granted

Court orders

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  1. 1.The Respondents are ordered to commence immediate deductions and remittance of union dues to the Applicant with a schedule of names they aver are uncontested
  2. 2.Costs in the cause
  3. 3.The rest of the issues to be resolved in the Main Claim

Authorities

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Legislation

  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 48(6)
  • Constitution of Kenya, 2010Article 41

Cases cited (8)

  • Kenya Union of Commercial Food and Allied Workers vs. Eastleigh Mattresses Limited
    [2017] eKLR
  • Kenya National Union of Nurses vs. County Public Service Board Homabay
    [2018] eKLR
  • Kenya Petroleum Oil Workers Union vs. Kenol Mahavir Service Station & Another
    [2017] eKLR
  • Transport Workers Union vs. Trans-Trade Limited (K)
    [2016] eKLR
  • Banking Insurance and Finance Union vs. Waumini Sacco Society Limited
    [2018] eKLR
  • Kenya Union of Printing, Publishing, Paper, Manufacturers, Pulp and Packaging Industries vs. Raffia Bags (EA) Limited
    [2014] eKLR
  • Kenya Hotels and Allied Workers Union vs. Lake Naivasha Sawela Lodge Limited
    [2019] eKLR
  • Kenya Chemicals & Allied Workers Union vs. Base Titanium Limited
    [2016] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inferred from court's nature; not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Electrical and Allied Workers Union v Wartsila Eastern Africa Limited (Cause 524 of 2019)  (Employment and Labour) [2020] KEELRC 287 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/287/eng@2020-10-15

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