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ELRCDismissedELRC Cause (Nairobi) - memorandum of claim dated 20th November 2019; consent in ELRC 389 of 2016 referenced· [2023] KEELRC 2068 (KLR)

Transport Workers Union (K) v Saudi Arabian Airlines (Employment and Labour Relations Cause 795 of 2019) [2023] KEELRC 2068 (KLR)

Employment and Labour Relations Court
4 August 2023
AMAnna Ngibuini Mwaure
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a union's claim for agency fees because employees had voluntarily resigned and no valid recognition agreement existed.

What this practically means

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Executive summary

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The Transport Workers Union Kenya, a transport sector trade union, filed a memorandum of claim dated 20th November 2019 against Saudi Arabian Airlines seeking, among other prayers, a declaration that it is the only union mandated to represent the respondent's employees and to collect agency fees under a CBA registered on 10th June 2014, and orders compelling the respondent to deduct and remit union dues under the Minister's agency notice No. 130 of 26th June 2018, or alternatively to pay the unremitted dues of about Kshs 504,000 from its own account. The respondent's witness, Agnes Wairimu, denied the existence of a recognition agreement or valid CBA, alleging the CBA was fabricated, and relied on a prior ruling by Justice Radido of 9th December 2019 holding there was no recognition agreement, on a consent in ELRC 389 of 2016 under which the employees voluntarily resigned from the union, and on acceptance letters substituting dollar-based salary arrangements for the CBA. The court framed the principal issue as whether a valid CBA existed. It held that Justice Radido's unrevoked ruling negated the claimant's insistence on a valid CBA; that the employees resigned voluntarily by a consent even appended by their advocates, with no evidence of duress; and that the employees, being neither union members nor covered by any CBA, did not qualify for agency fee deductions under section 49 of the Labour Relations Act. The claim was dismissed and each party was ordered to bear its own costs, dated and delivered virtually at Nairobi on 4th August 2023.

Key legal issues

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01

Existence of a valid collective bargaining agreement

Holding

No valid CBA exists; a prior ruling by Justice Radido on 9th December 2019 held there was no recognition agreement with the respondent and that ruling stands

Reasoning

The court noted the prior ruling had not been set aside or reviewed, so the claimant's insistence on a valid CBA contradicted a binding decision of a court of competent jurisdiction. The claimant relied on a CBA registered as RCA No. 131 of 2014 allegedly dated 27th January 2014, but the respondent's witness averred it was fabricated and there was no recognition agreement.

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02

Eligibility of employees for agency fee deduction under section 49 of the Labour Relations Act

Holding

Employees who voluntarily resigned from the union are not members covered by a CBA and cannot have agency fees deducted

Reasoning

Section 49 permits agency fee deduction only for unionisable employees covered by a registered collective agreement who are not members. Here the employees signed a consent dated 20th October 2015 resigning from the union effective 1st November 2016, appended by their own advocates, with no evidence of duress, and signed letters accepting dollar-based salaries in substitution of the CBA.

p. 3

Legal principles established

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  • Resigned union members who are not covered by a subsisting collective agreement cannot have agency fees deducted under section 49 of the Labour Relations Act
  • A voluntary consent of employees to resign from a union, signed by their advocates, is binding unless shown to have been forced

Court orders

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  1. 1.The claim dismissed; prayers a, b, c & d of the claim declined
  2. 2.Each party to meet their respective costs of the suit

Authorities

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Legislation

  • Labour Relations Actsection 49(5) and section 49(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Union of Kenya Civil Servants vs Kenya Medical Research Institute & Another
    (2021) eKLR
  • Fidelis Omwamba Onsongo & 1648 Other vs Tailors & Textile Workers Union & Another
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade union dues and collective agreements (Labour Relations Act, 2007); not expressly stated

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, "Transport Workers Union (K) v Saudi Arabian Airlines (Employment and Labour Relations Cause 795 of 2019) [2023] KEELRC 2068 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi) - memorandum of claim dated 20th November 2019; consent in ELRC 389 of 2016 referenced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2068/eng@2023-08-04

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