Kenya Union of Commercial Food and Allied Workers v Banking Insurance and Finance Union (Kenya) & another (Cause E686 of 2022) [2023] KEELRC 2182 (KLR)
The bottom line
#An employer cannot switch unions: Mwalimu Sacco's deal with a rival union was void because its existing recognition agreement with KUCFAW was still valid.
What this practically means
#Executive summary
#Key legal issues
#Capacity to enter into a recognition agreement
The recognition agreement between the 1st and 2nd Respondents was a nullity as it was entered into while a subsisting recognition agreement with the Claimant was in force
The court found that a recognition agreement with the Claimant had neither been revoked nor terminated. Section 54 of the Labour Relations Act conditions recognition on an employer concluding an agreement with a union representing a simple majority of employees. The 1st Respondent failed to prove majority membership, and there was no evidence of employees resigning from the Claimant or joining the 1st Respondent.
Evidence of withdrawal from union membership
An internal email encouraging members to move membership does not constitute valid resignation under section 48(6), (7) and (8) of the Labour Relations Act
Section 48 requires written notice of resignation by the employee, taking effect the following month, with the employer forwarding a copy to the union. The only evidence was an email from the Chief Shopsteward/Trust Secretary urging transfer to BIFU. No employee wrote a withdrawal letter to the employer or the Claimant, and no proof of joining the 1st Respondent was adduced.
Preliminary objection on jurisdiction under section 54(6) and (7) of the Labour Relations Act
Effectively not upheld; the court proceeded to determine the dispute after referring the demarcation question to the Labour Commissioner, whose report found the 1st Respondent lacked capacity
The 1st Respondent's preliminary objection that the claim was premature was not sustained. The court referred the demarcation dispute to the Labour Commissioner, who concluded the 1st Respondent lacked capacity to commence collective bargaining negotiations since the Claimant's recognition agreement had not been revoked. The court adopted that conclusion.
Multiplicity of unions per sector and constitutional freedom of association
The proliferation of multiple unions per sector post-2010 Constitution causes membership scrambles and disruption detrimental to employees
Although the Labour Relations Act provides for single sector trade unions under section 14(d) and (e), following the Constitution 2010 multiple unions now exist in almost every sector, enabling disputes like the present and allowing employers to exploit feuding unions. The unresolved dispute stultified renewal of the expired CBA.
Legal principles established
#- An employer cannot validly enter into a recognition agreement with a second union while a recognition agreement with another union is subsisting and has not been revoked or terminated
- A union claiming a simple majority must prove it; resignation from union membership must be by written notice forwarded to the union under section 48 of the Labour Relations Act
Court orders
#- 1.That the recognition agreement between the Claimant and the 2nd Respondent is valid and subsisting
- 2.That the recognition agreement dated 13th August 2021 between the 1st and 2nd Respondents is null and void
- 3.The 2nd Respondent is directed to immediately commence the deduction and remittance of union dues to the Claimant
- 4.Cause No. E599 of 2022 filed by the 1st Respondent against the 2nd Respondent is terminated as its substratum is non-existent
- 5.Cause No. E840 of 2022 shall proceed to conclusion and the parties are directed to meet and negotiate within the next 60 days to narrow down the issues in dispute
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade disputes under the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Banking Insurance and Finance Union (Kenya) & another (Cause E686 of 2022) [2023] KEELRC 2182 (KLR)", Case Analysis (2023). Cause E595 of 2022 (Consolidated with Cause No. E599 of 2022 and Cause No. E840 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2182/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.