Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited [2020] KEELRC 536 (KLR)
The bottom line
#Kenya's Employment Court ruled employers must recognise unions once a simple majority joins, and contract clauses banning union membership are void.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant union recruited a simple majority of the respondent's unionisable employees so as to qualify for recognition under section 54(1) of the Labour Relations Act
The claimant proved on a balance of probabilities that it had recruited more than a simple majority (56 of 70 unionisable employees) and was entitled to recognition
The claimant pleaded a simple majority and produced check off forms containing 130 names with national identity card numbers. The respondent did not deny that the named persons were its employees, did not deny having 70 unionisable employees, and did not rebut the claimant's figure of 56 out of 70 in its submissions. The respondent's allegations of discrepancies in the check off forms were made in general terms without particulars. The court therefore found the simple majority proved and that the union operated in the building and construction sector in which the respondent admitted it operates.
Whether the respondent could resist recognition and deduction of union dues by demanding an audit of the union, its tax compliance and officials' good conduct
No. Such matters are not criteria for recognition under the Act; trade unions are registered and supervised by the Registrar of Trade Unions, and demanding authentication amounts to prohibited interference with union affairs
The court held that the Act prescribes only the simple-majority threshold and the sector consideration. Employers with doubts about a union's legality may verify with the Registrar of Trade Unions. Demanding that the union authenticate itself would amount to employer interference with a union's internal administration, prohibited under section 8(1)(a) and (b) of the Labour Relations Act. Employees' freedom of association under sections 4 and 5 of the Act and Articles 36 and 41 of the Constitution protects joining a union and seeking its recognition.
Whether paragraph 16 of the respondent's employment contracts, prohibiting employees from joining a trade union, was lawful
The clause was null and void and constituted intimidation of employees, contravening Article 41 of the Constitution and sections 46 of the Employment Act and 4, 5 and 9 of the Labour Relations Act
The clause stated employees served under a Management Contract and were not permitted to join a trade union. The court found this amounted to intimidation and directly contravened constitutional and statutory protections of freedom of association and protection from anti-union discrimination. The respondent was directed to withdraw the clause forthwith.
Legal principles established
#- An employer shall recognise a trade union for collective bargaining if that trade union represents the simple majority of unionisable employees; recognition is a right, not a privilege granted by the employer
- An employer's doubts about a union's integrity, tax compliance or good standing are not criteria for recognition under the Labour Relations Act; trade unions are supervised by the Registrar of Trade Unions
- No employer shall limit the right of an employee to dispose of his wages as the employee deems fit, and an employer is obliged to deduct and remit union dues upon a signed check off form (Form S)
- A contractual clause prohibiting an employee from joining a trade union contravenes Article 41 of the Constitution, section 46 of the Employment Act and sections 4, 5 and 9 of the Labour Relations Act and is null and void
- A party alleging discrepancies in evidence must provide specifics; general, unparticularised allegations of coercion and fraud carry no weight
Court orders
#- 1.The respondent is directed to recognise the claimant union within 30 days
- 2.The respondent is directed to immediately deduct and remit union dues of all employees currently in its employment who have signed check off forms
- 3.The respondent is directed to grant access to the union in the manner provided in Section 56 of the Labour Relations Act for purposes of the union meeting its members, subject to the same not interrupting operations
- 4.The respondent is directed to withdraw paragraph 16 of its contracts forthwith
- 5.The respondent shall pay the claimant's costs assessed at Kshs.50,000 to cover reasonable expenses and disbursements
- Jurisdiction invoked
- Reference by the trade union to the Industrial Court under section 54(7) of the Labour Relations Act, 2007 after unsuccessful conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Commercial, Food and Allied Workers v Amritlals Wholesalers Limited (Cause 4 of 2019) [2023] KEELRC 3017 (KLR)[2023] KEELRC 3017 (KLR)24 Nov 2023applied
- Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Board of Management Museno Secondary School (Cause E030 of 2022) [2023] KEELRC 2768 (KLR)[2023] KEELRC 2768 (KLR)2 Nov 2023applied
- Kenya Union of Commercial, Food and Allied Workers v House Mart Limited [2021] KEELRC 666 (KLR)[2021] KEELRC 666 (KLR)14 Oct 2021
- Kenya Union of Domestic, Hotels, Educational and Hospitals Workers (Kudheiha Workers) v Limuru Country Club [2020] KEELRC 174 (KLR)[2020] KEELRC 174 (KLR)1 Dec 2020applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited [2020] KEELRC 536 (KLR)", Case Analysis (2020). Cause No 1160 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/536/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.