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ELRCDismissedMemorandum of Claim dated 5th August 2020· [2021] KEELRC 1236 (KLR)

Union of Kenya Civil Servants v Kenya Medical Research Institute & another [2021] KEELRC 1236 (KLR)

Employment and Labour Relations Court
16 July 2021
MOMaureen Onyango
5,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can keep deducting agency fees for a union whose benefits employees still enjoy, even after those employees join another union.

What this practically means

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Executive summary

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The Claimant, a registered trade union, claimed that the 1st Respondent's staff voluntarily joined it in 2017 and terminated their membership of the 2nd Respondent, yet the 1st Respondent continued deducting agency fees in favour of the 2nd Respondent contrary to Section 48(6) of the Labour Relations Act. It sought a declaration that these deductions since 2017 were unlawful, plus costs, and moved for a temporary injunction restraining further deductions. The 1st Respondent relied on a subsisting Recognition Agreement and CBA with the 2nd Respondent and on the Cabinet Secretary's agency fee order (Legal Notice No. 37 of 2nd April 2015), contending that union dues and agency fees are distinct statutory deductions. The 2nd Respondent maintained that the Claimant's members continue to benefit from its CBA and remain liable to pay agency fees, and that the Claimant is not a sector-specific union recognised by the employer. The court framed a single issue: the legality of deducting agency fees from the Claimant's members in favour of the 2nd Respondent. It held that agency fees under Section 49 are distinct from union dues under Section 48; that the registered CBA of 25th August 2014 and its incorporated terms continue to bind and benefit the employees even after the CBA's lapse by virtue of Section 59; and that agency fees therefore remain payable by non-members enjoying CBA benefits until the Claimant negotiates its own CBA. The court also noted the absence of resignation letters required by Section 48(6), (7) and (8). The claim was dismissed with no orders as to costs.

Key legal issues

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01

Legality of deduction of agency fees from the Claimant's members in favour of the 2nd Respondent

Holding

The deduction is lawful under Section 49 of the Labour Relations Act and does not constitute unlawful double deduction; agency fees and union dues are distinct statutory deductions

Reasoning

The court found a registered CBA of 25th August 2014 between the 1st and 2nd Respondents and a Cabinet Secretary's agency fee order (Legal Notice No. 37 of 2nd April 2015) still in force and unvaried. Section 48 governs union dues while Section 49 governs agency fees payable by unionisable non-members who benefit from the CBA. Since the Claimant's members remain covered by and benefit from the CBA's incorporated terms, they remain liable to pay agency fees to the 2nd Respondent.

p. 7
02

Effect of employees resigning from the 2nd Respondent and joining the Claimant

Holding

Resignation from a union does not terminate the obligation to pay agency fees; moreover, the Claimant produced no resignation letters as contemplated by Section 48(6), (7) and (8)

Reasoning

Even if the employees had resigned, agency fees would still be payable for as long as they benefit from the CBA negotiated by the 2nd Respondent, until the Claimant negotiates its own CBA and becomes entitled to charge agency fees itself. The Claimant also failed to attach the resignation letters required by the Act, undermining its assertion of terminated membership.

p. 6
03

Whether the CBA benefits survive expiry of the CBA period

Holding

Yes; the terms of the registered CBA were incorporated into the employees' contracts of employment under Section 59 of the Labour Relations Act and continue after lapse of the agreement

Reasoning

The court relied on Section 59 of the Labour Relations Act and the South African decision in Samwa City of Tshwane, which held that terms of a lapsed collective agreement incorporated into individual employment contracts continue until varied by another agreement. Thus the employees continued to benefit from the CBA terms and remained liable for agency fees.

p. 7

Legal principles established

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  • Agency fees under Section 49 of the Labour Relations Act are distinct from trade union dues under Section 48, and remain payable by unionisable employees who are not members of the recognised trade union for as long as they benefit from its registered CBA, notwithstanding their membership of another union
  • An employer alleging that employees have resigned from a union must produce the resignation notices contemplated by Section 48(6), (7) and (8) of the Labour Relations Act
  • A registered CBA is incorporated into the contracts of employment of all covered employees, and its benefits continue after the lapse of its agreed period

Court orders

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  1. 1.The memorandum of claim is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Labour Relations ActSection 48
  • Labour Relations ActSection 49
  • Labour Relations ActSection 59
  • Labour Relations Act No. 14 of 2007Sections 48(6), (7) & (8)
  • Employment ActSection 17
  • Constitution of Kenya 2010Article 36(1) and (2)
  • Constitution of Kenya 2010Article 41(2)(c)
  • Constitution of Kenya 2010Article 2(4)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Union of National Research Institute Staff of Kenya (Deduction of Agency Fees) Order, 2015 (Legal Notice No. 37 of 2nd April 2015)The Order and Schedule
  • Science, Technology Amendment Actestablishment of the 1st Respondent

Cases cited (10)

  • Kenya Hotels and Allied Workers Union v Sunset Limited Hotel and KUDHEIA Workers (Interested Party)
    [2016] eKLR
  • Tailors and Textiles Workers Union v Global Apparels EPZ Limited; Fidelis Omwamba Onsongo & 6 Others (Proposed Interested Parties)
    [2019] eKLR
  • Amalgamated Union of Kenya Metal Workers v Unity Auto Garage (Nrb) Limited
    [2014] eKLR
  • Tailor and Textile Workers Union v New Wide Garments Kenya (EPZ) Limited (Cause No.1624 of 2013)
  • Rift Valley Railway Workers Union v Rift Valley Railways (Kenya) Ltd and Another
    [2014] eKLR
  • Communication Workers of America v Beck
    487 U.S. 735 (1988)
  • Kenya Hotels and Allied Workers Union v Attorney General & 6 Others
    [2015] eKLR
  • Musa Mohamed Kaleve & 2 others v East African Portland and Cement Limited
    [2020] eKLR
  • Kenya Aviation Workers Union v Bollore Africa Logistics - Kenya & another
    [2016] eKLR
  • Samwa City of Tshwane and Municipal Manager, City of Tshwane
    Case No. J877/13
Jurisdiction invoked
First-instance claim before the Employment and Labour Relations Court under the Labour Relations Act; no specific constitutional or statutory jurisdictional provision invoked for the court's jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Union of Kenya Civil Servants v Kenya Medical Research Institute & another [2021] KEELRC 1236 (KLR)", Case Analysis (2021). Memorandum of Claim dated 5th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1236/eng@2021-07-16

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