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ELRCPartially AllowedCause E595 of 2022 (Consolidated with Cause No. E599 of 2022 and Cause No. E840 of 2022)· [2023] KEELRC 2182 (KLR)

Kenya Union of Commercial Food and Allied Workers v Banking Insurance and Finance Union (Kenya) & another (Cause E686 of 2022) [2023] KEELRC 2182 (KLR)

Employment and Labour Relations Court
21 September 2023
2,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a trade union for the commercial sector, held a recognition agreement with Mwalimu National Sacco Society Ltd (2nd Respondent) and had negotiated CBAs, the last expiring on 31st December 2021. When the Claimant sought renewal, the Sacco declined to negotiate. The Claimant then learned that the Banking Insurance Finance Union (1st Respondent) had signed a recognition agreement with the Sacco on 13th August 2021 and was negotiating a CBA, and that the Sacco had sought revocation of the Claimant's recognition agreement. The Claimant sued seeking declarations that the intended revocation and the 1st/2nd Respondents' recognition agreement were null and void, that its own recognition agreement remained valid, and payment of withheld union dues of Ksh.360,500 with interest. The 1st Respondent raised a preliminary objection on prematurity under section 54(6) and (7) of the Labour Relations Act; the 2nd Respondent filed no defence. The court referred the union demarcation dispute to the Labour Commissioner, whose report concluded the 1st Respondent lacked capacity to bargain since the Claimant's recognition agreement subsisted. The court found the Claimant's members never validly resigned - the only evidence was an internal email urging transfer to BIFU, falling short of the written resignation required by section 48 of the Labour Relations Act - and the 1st Respondent failed to prove simple majority membership. The 1st and 2nd Respondents' recognition agreement was declared null and void; the Claimant's agreement held valid; the Sacco directed to resume deduction and remittance of dues; Cause E599 of 2022 terminated; and Cause E840 of 2022 allowed to proceed with directions to negotiate within 60 days. The claim thus substantially succeeded, though no specific monetary award for arrears was made.

Key legal issues

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01

Capacity to enter into a recognition agreement

Holding

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

Reasoning

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.

p. 7
02

Evidence of withdrawal from union membership

Holding

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

Reasoning

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.

p. 7
03

Preliminary objection on jurisdiction under section 54(6) and (7) of the Labour Relations Act

Holding

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

Reasoning

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.

04

Multiplicity of unions per sector and constitutional freedom of association

Holding

The proliferation of multiple unions per sector post-2010 Constitution causes membership scrambles and disruption detrimental to employees

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.That the recognition agreement between the Claimant and the 2nd Respondent is valid and subsisting
  2. 2.That the recognition agreement dated 13th August 2021 between the 1st and 2nd Respondents is null and void
  3. 3.The 2nd Respondent is directed to immediately commence the deduction and remittance of union dues to the Claimant
  4. 4.Cause No. E599 of 2022 filed by the 1st Respondent against the 2nd Respondent is terminated as its substratum is non-existent
  5. 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

Authorities

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Legislation

  • Labour Relations Actsection 54(6) and (7); section 14(d) and (e); section 48(6), (7) and (8)
  • Cooperative Societies Actnull
  • Constitution of Kenya, 2010Articles 36 and 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes under the Labour Relations Act

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 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.