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ELRCDismissedNot stated in judgment· [2023] KEELRC 2135 (KLR)

Kenya Union of Road Contractors and Civil Engineering Works v China Road & Bridge Corporation; Kenya Building Construction Timber & Furniture Employees Union (Interested Party) (Cause E117 of 2022) [2023] KEELRC 2135 (KLR)

Employment and Labour Relations Court
22 September 2023
1,164 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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A Kenyan court dismissed a union's recognition claim because it lacked proof that employees had formally resigned from the existing union.

What this practically means

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Executive summary

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The claimant trade union filed a memorandum of claim dated February 16, 2022 seeking orders compelling the respondent employer to remit monthly union dues per check-off forms, to pay all unremitted dues from February 2020 from its own account, and to sign a recognition agreement with the claimant and commence CBA negotiations, revoking any recognition of a union without members. The claimant alleged it had recruited 728 of the respondent's unionisable employees, that the respondent refused to deduct and remit dues, and that a conciliator had recommended remittance. The respondent denied refusing to comply with the Labour Relations Act, asserting it had no resignation letters from its employees and had recognised the Interested Party since April 5, 1987 with several CBAs. The Interested Party likewise relied on its long-standing recognition, a CBA running 2021 to 2023 and a Union Agency Fee Order under Legal Notice No. 176 of 2021. The court held that recognition under section 54(1) of the Labour Relations Act requires documentary proof of simple majority membership, that a unionisable employee cannot belong to more than one union, and that the claimant could not validly recruit members of the Interested Party without resignation letters. Finding the claim devoid of merit, the court dismissed it with no order as to costs, terming the question of which union best represents the employees one of mutual interest for all parties and the wider industrial relations.

Key legal issues

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01

Recognition of a trade union under section 54(1) of the Labour Relations Act

Holding

Recognition requires documentary evidence that the union has recruited a simple majority of the unionisable employees; the claimant did not discharge this evidential burden.

Reasoning

The court applied section 54(1) and the case law holding that simple majority is a matter of evidence. The claimant relied on Form S listing 728 employees, but the Interested Party held a recognition agreement since 1987 and a running CBA, and no resignation letters from its members were produced. Without proof of resignation, membership transfers to the claimant were not validly established.

p. 2
02

Deduction and remittance of union dues under section 48 of the Labour Relations Act

Holding

An employer shall not deduct dues from an employee who has notified the employer in writing of resignation from a union; absent such resignation, the respondent was not obliged to remit dues to the claimant.

Reasoning

Section 48 protects employees who resign in writing from a union. Since no resignation letters were produced showing the respondent's employees had left the Interested Party, the claimant's demand for deduction and remittance of dues, and payment of unremitted dues from the respondent's own account, failed.

p. 2
03

Competition between unions for membership

Holding

A new union may lawfully compete for and recruit members, but recruitment must comply with the Labour Relations Act.

Reasoning

The court acknowledged the claimant's right to campaign and persuade unionisable employees in establishments previously dominated by older unions, but stressed that such recruitment must follow the statutory requirement of resignation from an existing union before joining another.

p. 3

Legal principles established

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  • Attainment of a simple majority under section 54(1) of the Labour Relations Act is a matter of evidence, and a trade union may lose accrued recognition if its numbers drop below the simple majority threshold
  • One establishment cannot have two unions representing its workers and a unionisable employee cannot belong to more than one union
  • A union may not validly recruit employees who are members of a union holding recognition and a running CBA without evidence of their resignation from that union

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Jurisdiction over the trade union dispute under the Labour Relations Act (dispute referred under section 62 following conciliation); not expressly cited as a constitutional provision

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 Union of Road Contractors and Civil Engineering Works v China Road & Bridge Corporation; Kenya Building Construction Timber & Furniture Employees Union (Interested Party) (Cause E117 of 2022) [2023] KEELRC 2135 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2135/eng@2023-09-22

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