Kenya Union of Commercial Food and Allied Workers v Worldwide Movers (K) Limited (Cause E539 of 2022) [2023] KEELRC 1293 (KLR)
The bottom line
#A Kenyan court ordered an employer to recognise a union because the employer failed to prove that certain employees were management staff excluded from union membership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant union attained the statutory simple majority
The Claimant proved membership of 11 out of 15 unionisable employees (73.3%), above the simple majority required by Section 54 of the Labour Relations Act
The Claimant sought recognition after recruiting 12 of 15 unionisable employees, later conceding one (Kimeu Nyamai) had retired, leaving 11 of 15, or 73.3%. The Respondent's counter of 46% depended on excluding five employees as non-unionisable. The court found the Respondent failed to discharge the burden of proving exclusions, relying only on a sole witness statement of one Neena without statements from the affected employees.
Whether the named employees were management/non-unionisable staff
The Respondent failed to prove that the three employees were management staff excluded by the Industrial Relations Charter
The Respondent alleged five employees were non-unionisable based on titles and supervisory roles, and relied on clause 11, appendix C of the Industrial Relations Charter. The court held titles do not automatically exclude employees from union membership; their actual powers to hire, fire, suspend, promote or reward had to be shown. The Respondent offered only the witness statement of Neena and no statements from the employees themselves.
Membership counted at time of claim
The relevant numbers are those as at the time the claim was made, per Civicon Limited v Amalgamated Union of Kenya Metal Workers
Mr Macharia submitted, relying on Civicon Limited, that the trial court is only concerned with numbers as at the time the claim was made. This supported counting Silas Njeru Kiringa, who joined the union in March 2022 while employed by the Respondent, despite his subsequent transfer to Priority Logistics effective September 1, 2022. The court applied this approach in assessing the majority.
Legal principles established
#- Recognition of a trade union is mandatory where the union recruits a simple majority of the employer's unionisable employees
- The burden lies on the employer to demonstrate that employees recruited by a union are excluded from union membership by virtue of their positions
- Job titles alone do not make an employee non-unionisable; the court must examine the actual powers and functions conferred
Court orders
#- 1.The Respondent to recognize the Claimant union and both parties to enter into a recognition agreement within 30 days of the judgment
- 2.Thereafter the parties to embark on collective bargaining within 60 days of the signing of the recognition agreement
- 3.Each party to bear their own costs of the suit
- Jurisdiction invoked
- First-instance employment and labour relations claim under Section 54 of the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Worldwide Movers (K) Limited (Cause E539 of 2022) [2023] KEELRC 1293 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1293/eng@2023-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.