Kenya Union of Journalists v Kenya Broadcasting Corporation & 3 others (Petition E002 of 2022) [2023] KEELRC 1023 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioner trade union had locus standi without a recognition agreement
The petitioner had the requisite locus standi to file the petition
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.
Whether Legal Notice No. 146 violated the petitioner's and interested parties' constitutional rights
No constitutional violation was demonstrated; the Anarita Karimi Njeru test was not met
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.
Whether the Legal Notice was procured through fraud and misrepresentation
No evidence of fraud or misrepresentation was furnished
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.
Whether the 2% deduction amounted to unlawful double deductions
No double deductions arise; union dues and agency fee are distinct statutory payments
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.
Legal principles established
#- 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
#- 1.The petition dated 5th January 2022 is dismissed with no orders as to costs
- Jurisdiction invoked
- Articles 41, 36 and 22 of the Constitution; Employment and Labour Relations Court Act, 2011 (Section 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.