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ELRCPartially AllowedCause No 431 of 2019· [2020] KEELRC 1041 (KLR)

Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) v Brava Food Industries Limited [2020] KEELRC 1041 (KLR)

Employment and Labour Relations Court
22 May 2020
MOMAUREEN ONYANGO
1,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered an employer to recognise a union and start deducting dues after failing to challenge the union's membership numbers.

What this practically means

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Executive summary

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The Claimant union filed a Memorandum of Claim on 2nd July 2019 alleging that the Respondent employer refused to respond to its communications seeking recognition under Section 54 of the Labour Relations Act. The union claimed to have recruited 21 of 31 unionisable employees and forwarded check-off forms on 18th April 2019. It sought a declaratory order compelling execution of a Recognition Agreement, commencement of union dues deductions, settlement of accrued dues, and negotiation of a Collective Agreement. The Respondent denied proper service of the recognition documents and raised non-disclosure of a prior dismissed suit, ELRC Cause No. 1111 of 2018, in which the union had failed to establish the recognition threshold and where the employer had evidenced outsourcing of employees. The court framed two issues: whether the simple majority threshold was met, and whether the Respondent was obliged to deduct and remit union dues. Holding that the Respondent did not refute the recruitment figures or produce contrary evidence on employee numbers, the court found the simple majority threshold met. On dues, email evidence showed the Respondent was aware of the employees' union membership and had attempted to persuade them to withdraw; it failed to prove sufficient reason for non-compliance with the notice requiring deduction. The court applied the Court of Appeal's holding in Banking Insurance Finance Union (K) v Kenya Revenue Authority that signed check-off forms suffice as proof of membership. The claim was allowed: the Respondent was ordered to commence deducting and remitting union dues with effect from June 2020, to sign the recognition agreement within 30 days, and to pay the Claimant's costs. Reliefs for settlement of accrued dues from the employer's accounts and for negotiation of a Collective Agreement were not granted in the final orders. Judgment delivered at Nairobi on 22nd May 2020 by Maureen Onyango J.

Key legal issues

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01

Simple majority threshold for recognition

Holding

The Claimant met the simple majority threshold under Section 54

Reasoning

The Claimant recruited 21 employees out of 52 total, of whom 21 were said to be management and 31 unionisable. The Respondent did not refute the recruitment allegations and produced no evidence of its unionisable employee numbers. Unrebutted, the Claimant's evidence satisfied the statutory simple majority requirement for recognition.

p. 2
02

Obligation to deduct and remit union dues

Holding

The Respondent was aware of employees' union membership and had no sufficient reason to fail to deduct dues

Reasoning

Emails and minutes showed the Respondent met employees who joined the union and sought to persuade them to withdraw. Having received the check-off forms, the Respondent failed to prove sufficient reason for non-compliance with the notice requiring deduction of dues under Section 48(3) of the Labour Relations Act.

p. 2

Legal principles established

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  • A union seeking recognition need only demonstrate that it represents a simple majority of the employer's unionisable employees
  • Proof of union membership is established by submission of check off forms signed by the employees

Court orders

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  1. 1.The respondent do commence deducting and remitting union dues for the employees who have signed the check off forms with effect from June 2020
  2. 2.The respondent do sign recognition agreement within 30 days from date of judgment
  3. 3.The respondent do pay claimant's costs for this suit

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 48(3)
  • Constitution of KenyaArticle 36
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 5 Rule 3
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Employment ActSection 54

Cases cited (4)

  • Kenya Chemical & Allied Workers Union v Jumbo Foam Industries Limited
    [2014] eKLR
  • Banking Insurance and Finance Union (K) v Maisha Bora Sacco
    [2016] eKLR
  • Kanga Mwaduma Mwambire & Another v National Bank of Kenya Ltd
    [2006] eKLR
  • Banking Insurance Finance Union (K) v Kenya Revenue Authority
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied); claim founded on Article 36 read with Article 41 of the Constitution and Sections 48 and 54 of the Labour Relations Act

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, "Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) v Brava Food Industries Limited [2020] KEELRC 1041 (KLR)", Case Analysis (2020). Cause No 431 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1041/eng@2020-05-22

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