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ELRCDismissedNot stated in judgment as provided (ELRC claim, Nairobi)· [2021] KEELRC 2053 (KLR)

Kenya Glass Workers Union v Kenya Engineering Workers Union & another [2021] KEELRC 2053 (KLR)

Employment and Labour Relations Court
19 February 2021
MOMaureen Onyango
3,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that workers can freely switch unions, and a union with recognition agreements cannot use litigation to trap unhappy members.

What this practically means

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Executive summary

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Kenya Glass Workers Union, the claimant, a trade union representing glass sector workers, sued the Engineering Workers Union and Hebatullah Brothers Limited, alleging that between September and October 2019 the 1st Respondent, colluding with the Federation of Kenya Employers, recruited the 2nd Respondent's employees who were members of the claimant union and forwarded check off forms (Form S) for deduction of dues to the 1st Respondent. The claimant sought a declaration that the actions were null and void, a permanent injunction, expunging of the check off forms and an order barring the 2nd Respondent from remitting dues to the 1st Respondent. Interim restraining orders had been issued on 12th November 2019. The 1st Respondent filed a preliminary objection on the mode of institution, an application to set aside the interim orders, and a defence showing that it had held a recognition agreement with the 2nd Respondent since 1986; employees had resigned from the claimant and joined it, with forms routed through FKE at the employer's request. The court framed three issues: interference with membership, the preliminary objection, and entitlement to remedies. It dismissed the preliminary objection, holding procedural technicalities cannot ground striking out pleadings, and declined to rule on the setting-aside application as overtaken by events. On the claim, it found the claimant had not proved collusion; employees exercised their right under section 4(1) of the Labour Relations Act to change unions, and recognition is not static. The claim was dismissed, the interim orders discharged, the 2nd Respondent directed to deduct and remit dues per check off forms from both unions and release retained dues to the 1st Respondent, with each party bearing its own costs.

Key legal issues

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01

Whether the preliminary objection on institution of the suit under Rules 3, 4 and 5 of the ELRC Procedure Rules should succeed

Holding

The preliminary objection was dismissed; the rules are procedural and the court must act without undue regard to technicalities under section 20(1) ELRC Act and Article 159(2)(d) of the Constitution

Reasoning

The court held that Rules 3, 4 and 5 are rules of procedure, and both section 20(1) of the ELRC Act and Article 159(2)(d) of the Constitution mandate administration of justice without undue regard to procedural technicalities. Further, striking out only the application while leaving the claim intact would serve no purpose, so the objection had no merit.

p. 4
02

Whether the 1st Respondent, in collusion with FKE and the 2nd Respondent, interfered with the claimant's membership

Holding

The claimant failed to prove collusion; employees had freely resigned from the claimant and joined the 1st Respondent, exercising their right under section 4(1) of the Labour Relations Act

Reasoning

The claimant produced check off forms and the FKE letter forwarding forms of 192 employees, but the 1st Respondent's evidence showed employees resigned from the claimant with letters copied to it, and check off forms were submitted through FKE at the employer's request. Since the claimant had itself benefited from an earlier exodus from the 1st Respondent, it could not complain when members moved the other way.

p. 5
03

Whether recognition of a union is permanent and bars recruitment by a rival union

Holding

No - recognition is not cast in bronze; recruitment is continuous and unions must compete to remain most representative

Reasoning

Adopting Rika J's reasoning in the Mombasa Maize Millers case, the court held that grant of recognition does not end the need for a union to remain relevant and most representative. Labour is mobile and employees may leave after recognition, so the claimant must maintain its majority rather than use the court to retain members who are dissatisfied.

p. 6
04

Whether the 1st Respondent's application of 4th December 2019 to set aside the orders of 12th November 2019 should be determined

Holding

The court declined to determine it, as the orders would become redundant upon determination of the claim and the grounds overlapped with the defence to the claim

Reasoning

The court reasoned that the orders of 12th November 2019 would become redundant once the claim was determined, and the grounds in the application were the same as those raised in opposition to the memorandum of claim, so they would be considered alongside the defence rather than in a separate ruling.

p. 4

Legal principles established

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  • Procedural technicalities cannot be the basis for striking out pleadings in the ELRC, which must act without undue regard to technicalities
  • Every employee has a right to join a trade union and a right to leave a trade union under section 4(1) of the Labour Relations Act
  • Recognition, once granted, is not cast in bronze; recruitment is continuous and a union must maintain majority membership to remain relevant

Court orders

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  1. 1.Preliminary objection dated 21st November 2019 dismissed
  2. 2.Claim dismissed
  3. 3.Orders granted on 12th November 2019 discharged
  4. 4.2nd Respondent directed to deduct and remit union dues in accordance with the check off forms received from each of the two unions
  5. 5.Any union dues collected and retained by the 2nd Respondent in respect of check off forms from the 1st Respondent to be released to the 1st Respondent
  6. 6.Each party to bear its costs

Authorities

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Legislation

  • Labour Relations ActSections 4(1), 48, 69(a); Form S
  • Employment and Labour Relations Court (Procedure) RulesRules 3, 4 and 5 (also referred to as 2016 Rules)
  • Employment and Labour Relations Court ActSection 20(1)
  • Employment ActSection 19
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B (Chapter 21, Laws of Kenya)

Cases cited (1)

  • Bakery Confectionery, Food Manufacturing and Allied Workers Union (K) v Mombasa Maize Millers Limited and 3 Others
    (2016)
Jurisdiction invoked
Jurisdiction of the ELRC under the Employment and Labour Relations Court Act and the Labour Relations Act, 2007 (trade union recognition and check-off disputes)

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 Glass Workers Union v Kenya Engineering Workers Union & another [2021] KEELRC 2053 (KLR)", Case Analysis (2021). Not stated in judgment as provided (ELRC claim, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2053/eng@2021-02-19

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