Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Shanzu Teachers College (Cause E015 of 2023) [2023] KEELRC 1263 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a trade union with a valid Recognition Agreement can sue an employer even if its membership has dropped.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a recognised trade union whose membership is alleged to have fallen below a simple majority
The claimant has proper standing because recognition was achieved and a certificate of unresolved dispute issued under Section 69 of the LRA; loss of members cannot defeat a subsisting Recognition Agreement without recourse to the Board under Section 54(5).
Recognition under Section 54(2) of the LRA confers on a trade union the status necessary for CBA negotiations. Once recognition is granted, the agreement endures even if membership diminishes; revocation lies only through an application by the employer to the National Labour Board under Section 54(5). It is not sufficient for an employer to merely cite loss of members. Having obtained a certificate of unresolved dispute under Section 69, the claimant was within its rights to move the court.
Whether the respondent is a non-juristic person and a wrong party to the suit
The respondent, having signed a Recognition Agreement and CBA with the claimant, is a proper party to be sued.
The court noted it is not in dispute that the parties have a CBA and the suit relates to the respondent's refusal to engage in negotiations for a new CBA. Since a Recognition Agreement and CBA dated September 19, 2013 exist between the claimant and the respondent, and the certificate of unresolved dispute issued against the respondent, the employer with whom a CBA exists is a proper party to be sued. The objection that remedies cannot lie against the respondent was rejected, and the claim directed to be heard on the merits.
Legal principles established
#- Once an employer has recognised a trade union, the Recognition Agreement stands notwithstanding a diminution in membership unless terminated or revoked under Section 54(5) of the LRA through an application to the National Labour Board.
- Before an employer may invoke Section 54(5) of the LRA to revoke a recognition agreement, CBA negotiations with the recognised union are imperative.
- Where a dispute has been reported to the Minister and a certificate of unresolved dispute has issued under Section 69 of the LRA, the trade union has proper standing to move the court and the employer with whom a CBA exists is a proper party to be sued.
Court orders
#- 1.The preliminary objections dated March 17, 2023 are found without merit and dismissed with costs to the claimant
- 2.The respondent is given 14 days to comply with Rule 13 of the Employment and Labour Relations Court (Procedure) Rules, 2016
- 3.The claim shall proceed to be addressed on the merits
- Jurisdiction invoked
- Jurisdiction under the Labour Relations Act, 2007 (Section 54 read with Section 69, certificate of unresolved dispute) and the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Shanzu Teachers College (Cause E015 of 2023) [2023] KEELRC 1263 (KLR)", Case Analysis (2023). Cause No E015 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1263/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.