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ELRCDismissedPetition dated 5th January, 2022· [2023] KEELRC 1023 (KLR)

Kenya Union of Journalists v Kenya Broadcasting Corporation & 3 others (Petition E002 of 2022) [2023] KEELRC 1023 (KLR)

Employment and Labour Relations Court
2 May 2023
5,501 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the lawful 2% agency fee on non-union workers who benefit from a collective bargaining agreement, dismissing the petition.

What this practically means

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Executive summary

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The petitioner, a trade union of journalists employed by the Kenya Broadcasting Corporation (2nd Respondent), petitioned for declarations that Legal Notice No. 146 of 20th August 2021, gazetted by the Cabinet Secretary for Labour (1st Respondent) directing the employer to deduct 2% agency fee from unionisable employees' basic salary and remit it to the 3rd Respondent union, was unconstitutional, procured by fraud and violated Articles 27, 36, 41 and related provisions. It also sought certiorari, prohibition or mandamus. The 1st Respondent defended the notice as lawfully issued under Section 49 of the Labour Relations Act because the 3rd Respondent's registered CBA benefited all unionisable employees; the 2nd Respondent disclaimed any role; the 3rd Respondent relied on its 2012 recognition agreement and 2017 CBA and questioned the petitioner's standing. The court framed three issues: locus standi, violation of rights, and entitlement to relief. It held the petitioner had standing since Section 22 of the ELRC Act confers a right to sue on behalf of members regardless of a recognition agreement. However, applying Anarita Karimi Njeru, the petitioner failed to demonstrate the manner and extent of any constitutional infringement; no fraud or misrepresentation was proved; and the 2% agency fee deduction is lawful, distinct from union dues under Sections 48 and 49, and does not violate freedom of association. The petition was dismissed with no orders as to costs on 2nd May 2023 (Gakeri J).

Key legal issues

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01

Whether the petitioner trade union had locus standi without a recognition agreement

Holding

The petitioner had the requisite locus standi to file the petition

Reasoning

Section 54(1) of the Labour Relations Act makes a recognition agreement essential only for collective bargaining. The right of a trade union to sue on behalf of its members is grounded on membership and conferred by Section 22 of the ELRC Act, 2011. A recognition agreement is not the basis upon which a union represents its members in court.

p. 9
02

Whether Legal Notice No. 146 violated the petitioner's and interested parties' constitutional rights

Holding

No constitutional violation was demonstrated; the Anarita Karimi Njeru test was not met

Reasoning

Although the petitioner listed Articles 19, 232, 27, 36, 41, 47, 50, 54 and 57, it did not demonstrate with precision the manner and extent of the alleged infringements. The agency fee deduction is expressly authorised by Section 49(1) of the Labour Relations Act for non-members benefiting from a registered CBA.

p. 10
03

Whether the Legal Notice was procured through fraud and misrepresentation

Holding

No evidence of fraud or misrepresentation was furnished

Reasoning

The petitioner alleged the notice was founded on fraud and misrepresentation regarding membership numbers but did not attach the alleged 6th August 2013 audit report or otherwise prove the allegations. The 3rd Respondent had a recognition agreement and a registered CBA benefiting the affected employees.

p. 10
04

Whether the 2% deduction amounted to unlawful double deductions

Holding

No double deductions arise; union dues and agency fee are distinct statutory payments

Reasoning

Section 48 governs union dues payable by members; Section 49 governs agency fees payable by non-members benefiting from a CBA. The two are not mutually exclusive, and employees of another union benefiting from the representative union's CBA are free riders who must contribute to bargaining costs.

p. 11

Legal principles established

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  • A recognition agreement is not a prerequisite for a trade union to sue on behalf of its members; the right to sue is grounded on membership under Section 22 of the ELRC Act
  • Agency fee under Section 49 of the Labour Relations Act is lawful and distinct from union dues under Section 48; payment of agency fee by non-members benefiting from a CBA does not violate freedom of association

Court orders

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  1. 1.The petition dated 5th January 2022 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1)(2)(a),(b),(c),(5), 36, 27, 10, 232, 156, 48, 159(2)(d)
  • Labour Relations Act, 2007Sections 4, 48, 48(2), 49, 49(1), 49(3), 54(1), 59, 62, 65, 73, 74
  • Employment and Labour Relations Court Act, 2011Section 22
  • Civil Procedure Rules, 2010Order 53; Order 21 Rule 1
  • Civil Procedure ActSection 1B
  • Kenya Broadcasting Actestablishment of 2nd Respondent
  • Labour Relations ActSection 40 (registration of the 1st Petitioner implied)

Cases cited (12)

  • Kenya Hotel and Allied Workers Union vs Sunset Hotel Ltd
    (2017) eKLR
  • Communication Workers Union vs Safaricom Ltd
    (2014) eKLR
  • Kenya Union of Employees of Voluntary and Charitable Organization (KUEVACA) vs Board of Governors & Maina Wanjigi Secondary School
    (2015) eKLR
  • Law Society of Kenya vs Commissioner of Lands and Others
    null
  • Modern Soap Factory V Kenya Shoe and Leather Workers Union
    (2020) eKLR
  • Kenya Aviation Workers Union V Bollore Africa Logistics
    (2016) eKLR
  • Anarita Karimi Njeru V Republic
    null
  • Samwa City of Tshwane and Municipal City of Tshwane
    Case No. J877/13
  • Union of Kenya Civil Servants V Kenya Medical Research Institute & another
    (2022) eKLR
  • Amalgamated Union of Kenya Metal Workers V Unity Auto Garage (NRB) Ltd
    (2014) eKLR
  • Tailor and Textile Workers Union V New Wide Garments Kenya (EPZ) Ltd
    null
  • Kenya Hotels and Allied Workers Union V Attorney General & 6 others
    (2015) eKLR
Jurisdiction invoked
Articles 41, 36 and 22 of the Constitution; Employment and Labour Relations Court Act, 2011 (Section 22)

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 Journalists v Kenya Broadcasting Corporation & 3 others (Petition E002 of 2022) [2023] KEELRC 1023 (KLR)", Case Analysis (2023). Petition dated 5th January, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1023/eng@2023-05-02

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