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ELRCOtherEmployment and Labour Relations Cause (memorandum of claim dated January 30, 2017)· [2022] KEELRC 1611 (KLR)

Banking, Insurance & Finance Union (Kenya) v Citi Bank, N. A (Cause 169 of 2017) [2022] KEELRC 1611 (KLR)

Employment and Labour Relations Court
28 July 2022
LNLinnet Ndolo
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that whether bank employees qualify for union benefits depends on actual job duties, not fancy job titles.

What this practically means

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Executive summary

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The claimant union, registered under the Labour Relations Act to represent finance-sector employees, sued a commercial bank respondent alleging that the bank had locked out union activity by irregularly abolishing unionisable positions, granting new job titles, and failing to deduct and remit union dues and agency fees despite the bank's membership of the Kenya Bankers Association, through which the claimant held a recognition agreement and successive CBAs. The claimant sought declarations that the respondent's employees were unionisable and entitled to CBA terms and freedom of association, an order for computation and remittance of agency fees at 1% of basic monthly salary with arrears from June 1, 2014, and costs. The respondent denied any unionisable employees, contending it offered better terms than the CBA and that no employee suffered detriment, and objected that the claimant identified no specific employees and sought payment to the union without deduction from any employee, which would breach employees' freedom of association. Both sides cited competing authorities on when agency fees are payable. The court held that unionisability cannot be determined merely by job title but requires an analysis of each job. Rather than granting the declarations and orders sought, the court directed the Labour Commissioner to appoint a Labour Officer to conduct an onsite job analysis within the respondent's establishment, directed the respondent to facilitate access and availing of employment records, and required a report within sixty days. The substantive reliefs were not granted at this stage; no costs order was made.

Key legal issues

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01

Whether the respondent's establishment has unionisable employees entitled to CBA coverage, union dues and agency fees

Holding

The question cannot be resolved on the pleadings or job titles alone; the court directed an onsite job analysis by a Labour Officer to establish which positions are unionisable

Reasoning

The respondent maintained it had no unionisable employees and offered better terms than the CBA, while the claimant alleged manipulation of job titles and relied on the CBA with the KBA. The court held that determining unionisability requires analysis of each job, not merely its title, and that an onsite inspection was necessary for a just determination. It therefore referred the question to the Labour Commissioner for an independent job analysis report within 60 days, deferring the substantive reliefs.

p. 4
02

Whether agency fees are recoverable absent identified non-member employees benefiting from the CBA

Holding

The respondent's objection that no specific employees were identified was noted, with the respondent relying on authority that agency fees are payable only by non-members who benefit from a negotiated CBA; the issue was left to be resolved after the job analysis

Reasoning

The respondent relied on Kenya Hotels and Allied Workers Union v Attorney General & 6 others for the proposition that agency fees are only payable where a non-member employee benefits from a CBA, and argued the claimant identified no employees. The claimant relied on Tailors & Textile Workers, Amalgamated Union and Union of Kenya Civil Servants. The court did not finally resolve this and instead ordered a factual job analysis.

p. 4

Legal principles established

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  • Unionisability of a job is not determined by its title but by an analysis of the actual duties of each job

Court orders

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  1. 1.The Labour Commissioner to appoint a Labour Officer to conduct an onsite job analysis within the respondent's establishment
  2. 2.The Respondent to facilitate the job analysis by allowing the designated Labour Officer access to the workplace and availing all employment records including but not limited to employment contracts and job descriptions
  3. 3.The designated Labour Officer to file a report on the job analysis within sixty (60) days from the date of the judgment

Authorities

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Legislation

  • Labour Relations Actsections 2, 48, 49, 59
  • Employment Act, 2007sections 10(3)(e), 14, 26
  • Constitution of Kenya, 2010Article 41
  • Gazette Notice No 924February 6, 2009 (deduction and remittance of agency fees)

Cases cited (4)

  • Tailors & Textile Workers Union v New Wide Garments Kenya (EPZ) Limited
    [2013] eKLR
  • Amalgamated Union of Kenya Metal Workers v Total Kenya Limited
    [2015] eKLR
  • Union of Kenya Civil Servants v Kenya Medical Research Institute & another
    [2021] eKLR
  • Kenya Hotels and Allied Workers Union v Attorney General & 6 others
    [2015] eKLR
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over the trade dispute referred after unsuccessful conciliation under the Labour Relations Act, 2007

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, "Banking, Insurance & Finance Union (Kenya) v Citi Bank, N. A (Cause 169 of 2017) [2022] KEELRC 1611 (KLR)", Case Analysis (2022). Employment and Labour Relations Cause (memorandum of claim dated January 30, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1611/eng@2022-07-28

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