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ELRCPartially AllowedCause No 1160 of 2017· [2020] KEELRC 536 (KLR)

Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited [2020] KEELRC 536 (KLR)

Employment and Labour Relations Court
7 August 2020
6,717 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a trade union registered under the Labour Relations Act to represent employees in the building and construction sector, filed a memorandum of claim dated 19th June 2017 seeking an order compelling the respondent, a building and construction company, to sign a recognition agreement, to desist from intimidating employees, and to participate in collective bargaining. The claimant asserted it had recruited 56 of the respondent's 70 unionisable employees, supported by check off forms (Form S). The respondent opposed, questioning the union's integrity, demanding an audit of its affairs, tax compliance and officials' good standing, alleging discrepancies and fraud in the check off forms, and contending the union failed to prove a simple majority or produce its constitution. The claim was disposed of by written submissions. The court, Onyango J, framed the single issue as whether the claimant qualified for recognition under section 54 of the Labour Relations Act. The court held that recognition depends only on proof of a simple majority and the sector in which the employer operates; tax clearance, good conduct and audits are not criteria, and demands for such authentication would constitute prohibited employer interference with union affairs. The court found the claimant had proved on a balance of probabilities a simple majority of 56 out of 70 unionisable employees, unrebutted by the respondent, and noted the respondent had refused to participate in conciliation. The court further found the respondent guilty of intimidation through paragraph 16 of its employment contracts barring union membership, declaring the clause null and void as contravening Article 41 of the Constitution and various statutory provisions. The court ordered recognition within 30 days, immediate deduction and remittance of union dues for employees who signed check off forms, union access under section 56, withdrawal of paragraph 16, and costs of Kshs.50,000 to the claimant.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 10
02

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

Holding

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

Reasoning

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.

p. 6
03

Whether paragraph 16 of the respondent's employment contracts, prohibiting employees from joining a trade union, was lawful

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The respondent is directed to recognise the claimant union within 30 days
  2. 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. 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. 4.The respondent is directed to withdraw paragraph 16 of its contracts forthwith
  5. 5.The respondent shall pay the claimant's costs assessed at Kshs.50,000 to cover reasonable expenses and disbursements

Authorities

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Legislation

  • Labour Relations Actsections 4, 5, 8(1)(a) and (b), 9, 11, 48, 49, 54, 56, 62, 74(a)
  • Employment Act Cap. 226sections 17(11), 19(1)(f) and (g), 46
  • Occupational Safety and Health Act, 2007not specified
  • Work Injury Benefits Act, 2007not specified
  • National Construction Authority Act No. 41 of 2011not specified
  • Evidence Act Cap 80sections 106, 107, 108, 109
  • Constitution of Kenya 2010Articles 36, 41, 159(2)(d), 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • Kenya Petroleum Oil Workers Union v Kenol Mahavir Service Station and Another
    [2017] eKLR
  • Kenya Shoe and Leather Workers Union v Crown Industries Limited & Another
    [2017] eKLR
  • Kenya Chemical & Allied Workers Union v Strategic Industries Limited
    [2016] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Shade Net Limited
    [2017] eKLR (Cause 16 of 2017)
  • CMC 444 Aviation Ltd v Kenya Airways (Cruis Air Ltd) (1)
    Nairobi Civil Application No. 12 of 1978, [1978] KLR 103
  • Alfred Kioko Muteti v Timothy Miheso & Another
    [2015] eKLR, Nairobi HCCC 232 of 2012
  • Kenya National Private Security Workers Union v Watchdog Limited
    [2018] eKLR, Nairobi ELRC Cause No. 127 of 2013
  • Kenya Shoe and Leather Workers Union v Falcon Tanners Company Limited & another
    [2013] eKLR, Nairobi ELRC Cause No. 378 of 2013
  • Kenya Private Universities Workers Union v Don Bosco Utume Salesian Theological College
    [2019] eKLR, Nairobi ELRC Cause No. 1347 of 2018
  • Kenya Chemical & Allied Workers Union v Base Titanium Limited
    [2016] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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 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.