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ELRCDismissedCause No 1422 of 2018· [2023] KEELRC 1515 (KLR)

Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Vegpro (K) Limited – VP Group; Kenya Union of Commercial Food and Allied Workers (Interested Party) (Cause 1422 of 2018) [2023] KEELRC 1515 (KLR)

Employment and Labour Relations Court
16 June 2023
1,151 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a union's recognition claim because it couldn't prove most workers had joined it and its paperwork named the wrong union.

What this practically means

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Executive summary

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The claimant union, registered for the Shipping Agencies, Clearing and Forwarding, Freight Logistics, Import and Export sector, sued the respondent warehousing company under sections 54 and 74 of the Labour Relations Act, 2007 and Articles 36 and 41 of the Constitution, seeking an order compelling the respondent to sign a recognition agreement and to deduct and remit union dues on the basis of numerous check-off forms allegedly forwarded between 2016 and 2018. A conciliator had issued a certificate of non-settlement. The respondent denied receiving the check-off forms and asserted that it had recognised the interested party union in January 2012, with collective agreements registered up to RCA No. 338 of 2017. The interested party likewise affirmed its recognition and its members' continuing membership. Determining the suit on the record and written submissions, the Court found that the check-off forms bore the name of the Kenya Shipping, Clearing and Warehouses Workers Union, a different entity from the named claimant, and that the discrepancy was unexplained, with no evidence of service of the forms. There was also no evidence of the respondent's total unionisable employees, so a simple majority could not be established under section 54(1). On sector appropriateness, the Court observed that warehousing would be a shared recruitment sphere governed by freedom of association. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the claimant established recruitment of a simple majority of the respondent's unionisable employees under section 54(1) of the Labour Relations Act

Holding

The claimant failed to establish the simple-majority threshold; the check-off forms bore the name of a different union and there was no evidence of the respondent's total unionisable employees

Reasoning

The check-off forms exhibited were in the name of the Kenya Shipping, Clearing and Warehouses Workers Union, a different entity from the claimant. No pleading or evidence explained the discrepancy, and there was no evidence of service of the forms on the respondent. Further, no evidence established the total number of unionisable employees, so a simple majority could not be computed. The statutory precondition to recognition was therefore not met.

p. 2
02

Whether the claimant is the correct sector union and whether union dues deduction should be ordered

Holding

Because of the identity discrepancy, the Court declined to order deduction of union dues; warehousing would in any event be a shared sphere of recruitment under freedom of association rather than a strict one-sector-one-union principle

Reasoning

The exhibited constitution (of a differently named union) covered import, export, clearing, forwarding and warehousing. Had the claimant been the same union, warehousing would be a shared recruitment sphere governed by freedom of association rather than the one-sector-one-union principle. Given the discrepancies between the named claimant and the union that purportedly recruited the employees, ordering dues deduction would be unjust.

p. 3

Legal principles established

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  • Section 54(1) of the Labour Relations Act, 2007 obliges an employer to recognise a trade union for collective bargaining purposes only if the union represents a simple majority of the unionisable employees, and the union bears the burden of establishing that majority.
  • A claimant union must adduce evidence of service of check-off forms and reconcile any discrepancy between its registered name and the name appearing on recruitment documents; absent this, recognition cannot be compelled.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Labour Relations Actsections 54(1), 54(8), 48(2), 69, 74(a)
  • Constitution of Kenya, 2010Articles 36, 41(2)(a)(b)(c)
  • Employment and Labour Relations Court Actsection 12
Jurisdiction invoked
Sections 74(a), 54(1) and (8) of the Labour Relations Act, 2007; Articles 36 and 41(2)(a)(b)(c) of the Constitution; section 12 of the Employment and Labour Relations Court Act

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 Shipping Clearing Freight Logistics and Warehouses Workers Union v Vegpro (K) Limited – VP Group; Kenya Union of Commercial Food and Allied Workers (Interested Party) (Cause 1422 of 2018) [2023] KEELRC 1515 (KLR)", Case Analysis (2023). Cause No 1422 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1515/eng@2023-06-16

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