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ELRCAllowedELRC Cause (Statement of Claim dated 5th September 2017)· [2023] KEELRC 2093 (KLR)

Institutes Staff of Kenya (UNRISK) v Pest Control Products Board (Employment and Labour Relations Cause 1812 of 2017) [2023] KEELRC 2093 (KLR)

Employment and Labour Relations Court
27 July 2023
OKOcharo Kebira
3,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered an employer to sign a union recognition agreement and deduct union dues because the union had recruited 76% of staff.

What this practically means

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Executive summary

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This was a first-instance employment and labour relations suit commenced by Statement of Claim dated 5th September 2017 by the trade union UNRISK against the Pest Control Products Board. The Claimant sought a declaration that the Respondent unlawfully refused to effect check-off dues deductions, a determination that with 76% membership it qualified for a Recognition Agreement, an order for instant deduction of check-off dues, an order compelling the Respondent to sign a Recognition Agreement within thirty days, and costs. The matter proceeded on pleadings and submissions by agreement. The Claimant argued it had recruited 57 of 75 employees (76%), exceeding the simple majority threshold under Section 54(1) of the Labour Relations Act, and relied on a Ministerial Order in Gazette Notice No. 1270 of 2011 for check-off deductions. The Respondent contended the suit was premature, that some recruited employees were non-unionisable, that the union lacked an appropriate mandate, and that a specific Ministerial Order and check-off code were required. The court found the Respondent's pleadings admitted willingness to recognise and the 76% membership, disregarding the contradictory witness statement as evidence at variance with pleadings. It held the Respondent, though primarily regulatory, undertook activities within the union's mandate. On deductions, the court held the general Ministerial Order sufficed and that the check-off code conditionality had no statutory foundation. The court allowed the claim in its entirety, declaring the refusal to deduct unlawful, directing instant deductions, signature of a Recognition Agreement within thirty days, and costs against the Respondent.

Key legal issues

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01

Whether the Claimant met the statutory threshold for recognition under Section 54(1) of the Labour Relations Act

Holding

Yes. The Respondent admitted in its pleadings that the Claimant had recruited 76% of its 75 employees; the witness statement contradicting this was disregarded as contrary to the pleadings. The Claimant's mandate covers the Respondent's workers despite the Respondent's regulatory core.

Reasoning

The Respondent's pleadings admitted willingness to sign a Recognition Agreement and, by necessary implication, the 76% membership. The witness statement was radically at variance with the pleadings and was disregarded. The claim that the Claimant was not an appropriate union failed because the Respondent's operational objectives include research-type activities, and the court agreed with the finding in Union of National Research Institutes Staff of Kenya v Kenya Industrial Property Institute.

p. 5
02

Whether the Respondent was obliged to effect check-off deductions and remit union dues

Holding

Yes. The Ministerial Order in Gazette Notice No. 1270 of 2011 was sufficient and no specific order per employer was required; the alleged check-off code requirement had no identified statutory foundation.

Reasoning

Section 48 does not require the Ministerial order to be specific to each employer-union relationship. The Respondent failed to identify any statute or regulation requiring the union to obtain a check-off code before deductions. The court therefore found the refusal to deduct unlawful and ordered instant deduction of the dues.

p. 7

Legal principles established

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  • Once a trade union meets the statutory recognition threshold of 51% of an employer's workers under Section 54(1) of the Labour Relations Act, the employer may not impose additional conditionalities for recognition.
  • Section 48 of the Labour Relations Act does not require a separate Ministerial check-off order specific to each employer-union relationship; a general gazetted order suffices.
  • Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded.

Court orders

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  1. 1.That the Respondent did unlawfully refuse to effect deduction of the Claimant's check-off dues
  2. 2.That with 76% membership out of seventy-five (75) employees, the Claimant is qualified to be accorded Recognition by the Respondent
  3. 3.That the Respondent effects instant deduction of the Claimant's check-off dues
  4. 4.That the Respondent does sign a Recognition Agreement with the Claimant within thirty (30) days from the date of judgment
  5. 5.That costs of the suit be paid by the Respondent

Authorities

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Legislation

  • Labour Relations ActSections 5, 6, 12, 48(1), 48(3), 54(1)
  • Pest Control Products Act, Cap 346Sections 5 and 6
  • Gazette Notice No. 1270 of 2011 (Ministerial Order under Section 48(1) Labour Relations Act)
  • Civil Procedure RulesOrder 21 Rule 1
  • ELRC Rules (Legal Notice No. 146)Rule 29(2)
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (3)

  • Union of National Research Institutes Staff of Kenya v Kenya Industrial Property Institute
    [2022] eKLR; ELRC Cause No. 1239 of 2017 at Nairobi
  • Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union
    [2016] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    Civil Appeal No. 76 of 2014 [2014] eKLR
Jurisdiction invoked
Section 12 of the 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, "Institutes Staff of Kenya (UNRISK) v Pest Control Products Board (Employment and Labour Relations Cause 1812 of 2017) [2023] KEELRC 2093 (KLR)", Case Analysis (2023). ELRC Cause (Statement of Claim dated 5th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2093/eng@2023-07-27

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