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ELRCPartially AllowedELRC No 393 of 2018· [2020] KEELRC 1899 (KLR)

Kenya Union of Commercial Food and Allied Workers v New Yako Supermarket [2020] KEELRC 1899 (KLR)

Employment and Labour Relations Court at Eldoret
13 February 2020
ANAbuodha Jorum Nelson
1,304 words in judgment
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The bottom line

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A Kenyan court ruled that unions must prove current majority membership through supervised balloting before employers can be compelled to sign recognition agreements or deduct union dues.

What this practically means

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Executive summary

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The Claimant union sued the respondent supermarket seeking enforcement of a recognition agreement and deduction and remittance of union dues under section 48 of the Labour Relations Act, alleging it had recruited 49 of the respondent's 60 unionisable employees (about 82%) in September 2017. The respondent denied that the listed workers were members, asserting some had renounced membership, left employment through redundancy or disciplinary termination, and that terminal dues had been settled after a business take-over from the former Yako Supermarket in 2016. The conciliator appointed in the ensuing trade dispute failed to resolve the recognition question. The court, per Abuodha Jorum Nelson J, affirmed the employees' unfettered right under Article 41 of the Constitution, section 46 of the Employment Act and section 48 of the Labour Relations Act to join or not join a union, and the employer's mandatory recognition duty under section 54(1) once a simple majority is attained. However, because the claimed majority was disputed, no supervised shop-floor balloting had been conducted to verify membership, and the claim had been filed over a year earlier with membership described as ever-changing, the court declined to grant the orders sought on the stale check-off figures. Instead it directed the respondent, upon reasonable notice, to allow the Claimant access to its premises to recruit unionisable members and move towards signing a recognition agreement. Each party was ordered to bear its own costs. The claim therefore partially succeeded.

Key legal issues

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01

Recognition of a trade union under section 54(1) of the Labour Relations Act

Holding

Recognition is mandatory once a simple majority is shown, but the union's claimed 82% membership was disputed and unverified, so recognition orders could not issue on the stale figures; instead access for fresh recruitment was granted

Reasoning

The union claimed 49 of 60 employees (82%) but the respondent disputed the list, stating some members renounced membership or had left through redundancy or disciplinary termination. Because recognition is an ever-changing phenomenon and the dispute was over a year old, the court found it unsafe to compel recognition on the unverified figures and instead ordered access for fresh recruitment leading to a recognition agreement.

p. 2
02

Deduction and remittance of union dues under section 48 of the Labour Relations Act

Holding

Check-off deductions could not be compelled where the underlying membership was disputed; the proper mechanism is supervised shop-floor balloting, which never occurred at conciliation

Reasoning

The respondent denied that the named workers were members and asserted they had renounced membership. The court held that where the simple majority is disputed, the matter is resolved by balloting at the shop-floor under supervision of a Labour Officer assigned by the Court or conciliator. This verification step was never undertaken at conciliation, so the claimed entitlement to deductions remained unproven and the orders sought were refused.

p. 2

Legal principles established

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  • An employer shall recognise a trade union for collective bargaining where that union represents the simple majority of unionisable employees
  • Employees have an unfettered right to join or not join a trade union and may not be victimised for exercising that right
  • A disputed simple majority is to be resolved by supervised shop-floor balloting conducted by a Labour Officer

Court orders

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  1. 1.The respondent, upon reasonable notice, to permit the Claimant to access its premises for purposes of recruitment of unionisable members and eventual signing of a recognition agreement
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Labour Relations Actsection 48
  • Labour Relations Actsection 54(1)
  • Employment Actsection 46
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes (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, "Kenya Union of Commercial Food and Allied Workers v New Yako Supermarket [2020] KEELRC 1899 (KLR)", Case Analysis (2020). ELRC No 393 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1899/eng@2020-02-13

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