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ELRCDismissedNot stated in judgment· [2023] KEELRC 1664 (KLR)

Kenya Shipping Clearing & Warehouses Workers Union v Career Directions Limited (Cause 612 of 2016) [2023] KEELRC 1664 (KLR)

Employment and Labour Relations Court
29 June 2023
MMM. Mbaru
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court confirmed unions can sue without recognition agreements, but dismissed the union's claims because it lacked majority support and proved no underpayment.

What this practically means

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Executive summary

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The claimant trade union sued the respondent, a labour outsourcing company, alleging that despite a recognition agreement enabling recruitment from the respondent's employees, the respondent refused to deduct and remit union dues, and that in June 2016 it reduced the salaries of 43 employees below their contractual rates without written consent, contrary to Section 17 of the Employment Act. The claimant sought reinstatement of the salaries with interest, a penalty of Kshs 100,000, and costs. The respondent denied the claims, asserting that only 87 of over 3,000 employees had joined the union, that all employees were paid per their written one-year fixed-term contracts running from 1 June 2016 to 31 May 2017, and that its labour supply contract with Bollore African Logistics expired and was not renewed, with employees absorbed by Bollore. It also raised a preliminary objection on the union's locus standi for lack of recognition. The court held, applying Section 22 of the ELRC Act and Court of Appeal authority, that a registered union may represent its members in court without recognition. However, recognition could not be ordered because the union's 87 members out of 3,000 employees fell short of the simple-majority threshold under Section 54 of the Labour Relations Act. On underpayment, the court found the fixed-term contracts lawful and the agreed wages paid; there was no evidence of continued employment or of 24 months of underpayment. The claim was dismissed with each party bearing its own costs. Delivered at Mombasa on 29 June 2023 by M. Mbaru, Judge.

Key legal issues

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01

Standing of a non-recognised trade union to sue on behalf of its members

Holding

Standing exists by virtue of Section 22 of the ELRC Act; recognition is unnecessary for representation in court

Reasoning

Section 22 of the Employment and Labour Relations Court Act, 2011 allows a union which has recruited employees in its sector to represent them in court. The Court of Appeal authorities Modern Soap Factor and Cello Thermoware confirm that a registered union whose constitution empowers it may institute claims for its members. Recognition is only for negotiating a CBA.

p. 3
02

Whether recognition could be ordered

Holding

No, as the claimant's 87 members out of 3000 employees fell far short of the simple majority threshold under Section 54 of the Labour Relations Act

Reasoning

The threshold under Section 54 is a simple majority of unionisable employees. With 87 of 3000 members, the claimant did not meet the threshold even at filing in 2016, and did not amend its claim to assert any new developments. Court orders should not issue in vain, and the employment relationship had ceased.

p. 4
03

Alleged unlawful salary reduction

Holding

No underpayment proved; the written fixed-term contracts from 1 June 2016 set the agreed wages, which were higher than May 2016 pay

Reasoning

Under Section 10(3) of the Employment Act an employer may issue fixed-term contracts. The one-year contracts from 1 June 2016 to 31 May 2017 were lawful and the wages paid matched them. There was no evidence of continued employment after lapse, the members having been absorbed by Bollore. The 24-month underpayment claim lacked evidence.

p. 5

Legal principles established

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  • A trade union need not have a recognition agreement to have standing to represent its members in court
  • An employer must recognise a trade union for collective bargaining only if it represents a simple majority of unionisable employees
  • Payment of the agreed wage under a lawful fixed-term contract forecloses a claim of underpayment

Court orders

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  1. 1.The claim is hereby dismissed
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011; Employment Act, 2007; Labour Relations Act, 2007

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 & Warehouses Workers Union v Career Directions Limited (Cause 612 of 2016) [2023] KEELRC 1664 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1664/eng@2023-06-29

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