Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1134 of 2018 (Consolidated with Cause No. 573 of 2019)

Kenya Union of Commercial, Food & allied Workers v Gravity Trading Company Limited; Central Organisation of Trade Unions (Kenya) (Interested Party) [2021] KEELRC 2387 (KLR)

Employment and Labour Relations Court of Kenya
11 November 2021
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenyan employers must recognise a union once it signs up a simple majority of employees, even if the numbers don't perfectly match.

What this practically means

#

Executive summary

#
The claimant union, registered in the commercial, food and allied workers sector, recruited the respondent's unionisable employees in January 2018 and forwarded check off forms and a draft recognition agreement, but the respondent refused to recognise the union or deduct and remit union dues. In a replying affidavit, the respondent's director admitted employing 10 employees and contended that no Minister's Order under section 48(2) of the Labour Relations Act and no Gazette Notice had been issued or served, and that deductions without such an order would breach section 19 of the Employment Act. By a consent dated 12th October, 2020 and adopted on 13th October, 2020, the parties agreed that the respondent would commence deduction and remittance of union dues from August 2020 for employees who had signed check off forms, leaving only the recognition issue for determination. The court held that under section 54 of the LRA an employer must recognise a union representing a simple majority of unionisable employees, a right grounded in Article 41 of the Constitution and reinforced by section 17(11) of the Employment Act. The claimant's check off forms showed 12 members recruited against the respondent's admitted workforce of 10; the variance did not defeat recognition where the union's sector and mandate were uncontested. The court also found that the reverse of the check off forms disclosed the Minister's Order under Kenya Gazette Notice No.11153 of 8th August, 2013, satisfying sections 48(2) and (3) of the LRA. Judgment was entered for the claimant: the respondent was directed to recognise the union within 30 days and to deduct and remit union dues for employees who signed check off forms pursuant to the consent, with each party bearing its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant union had recruited a simple majority of the respondent's unionisable employees so as to qualify for recognition under section 54 of the LRA
  2. 2.Whether the respondent should be directed to recognise the claimant and conclude a recognition agreement
  3. 3.Whether the respondent was obliged to deduct and remit trade union dues

Key legal issues

#
01

Threshold for recognition of a trade union under section 54 LRA

Holding

The claimant satisfied the simple majority threshold, having recruited 12 employees against the respondent's admitted 10, and its sector and mandate were not contested; recognition was therefore ordered

Reasoning

Section 54(1)-(3) requires a union to prove recruitment of a simple majority of unionisable employees before an employer must recognise it and conclude a written recognition agreement. Section 54(8) requires the court to consider the sector of the employer. The claimant's check off forms showed 12 members recruited, exceeding the employer's admitted workforce of 10. The right to unionise is grounded in Article 41 of the Constitution and reinforced by section 17(11) of the Employment Act.

p. 2
02

Deduction and remittance of trade union dues under sections 48 and 49 LRA and section 19 Employment Act

Holding

The claimant complied with section 48(2) and (3) LRA, the check off forms bearing the Minister's Order pursuant to Kenya Gazette Notice No.11153 of 8th August, 2013, justifying an order for deductions and remittances

Reasoning

The respondent argued that absent a Minister's Order under section 48(2) LRA, any deduction would be unlawful under section 19 of the Employment Act. The court found the reverse of the check off forms contained the details of the Minister's Order published in Kenya Gazette Notice No.11153 of 8th August, 2013, so the statutory prerequisites were met, and deductions were directed pursuant to the consent adopted on 13th October, 2020.

p. 3

Legal principles established

#
  • An employer must recognise a trade union for collective bargaining where that union represents the simple majority of unionisable employees, and the court will take into account the sector in which the employer operates
  • A minor variance between the number of recruited employees shown on check off forms and the employer's stated headcount does not defeat recognition where the union's sector and mandate are not contested

Court orders

#
  1. 1.The respondent is directed to recognise the claimant union within 30 days
  2. 2.The respondent is directed to deduct and remit union dues of all employees currently in its employment who have signed check off forms, pursuant to terms agreed upon vide the consent adopted by the court on 13th October, 2020
  3. 3.Each party shall bear own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Labour Relations Act, section 54(7) - reference of an unresolved recognition dispute to the Industrial Court (ELRC)
Consolidated with
Cause No. 573 of 2019

Relief refused

#

Prospective monthly deductions/remittances of Ksh.4,400 per member as claimed for the period before the consent

By consent the parties agreed that deductions would commence from August 2020 in accordance with the adopted consent, which governed the deductions order

p. 2

Costs

Each party shall bear own costs

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
p. 2Statutory recognition threshold - section 54(1) LRA
The numbers of recruited employees being 12 and the letters of appointment issued by the respondent being 10, the variance should not affect the recognition of the claimant by the respondent.
p. 3Minor variance in membership numbers does not defeat recognition
The respondent is directed to recognise the claimant union with 30 days;
p. 3Final order (a) - recognition
The respondent is directed to deduct and remit union dues of all employees currently in its employment who have signed check off forms and pursuant to terms agreed upon vide consent adopted by the court on 13th October, 2020;
p. 3Final order (b) - deduction and remittance of union dues
Each party shall bear own costs.
p. 3Final order (c) - costs

Issues in the judgment

#
minor

Judgment refers to the conciliator events occurring on '16th May, 2028', an apparent typographical error for 2018

minor

The header of the judgment misspells the court as 'EMPLOYMNT AND LABOUR RELATIONS COURT'

minor

The director's name is rendered inconsistently as 'Pradip N Mashru' and 'Mr Mshru' within the same judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Commercial, Food & allied Workers v Gravity Trading Company Limited; Central Organisation of Trade Unions (Kenya) (Interested Party) [2021] KEELRC 2387 (KLR)", Case Analysis (2021). Cause No. 1134 of 2018 (Consolidated with Cause No. 573 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2387/eng@2021-11-11

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