Kenya Game Conservancy, Tour & Safari Workers Union v Pollmans Tours and Safaris Ltd; Transport Workers Union Kenya (Objector) (CBA E106 of 2023) [2023] KEELRC 2570 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court paused registration of a contested collective agreement, ruling that no union proved it represented a simple majority of the company's employees.
What this practically means
#Executive summary
#Key legal issues
#Whether the Objector union had lost simple majority to the rival Respondent union
Neither union established the requisite simple majority; the Objector's list of 189 members was unverifiable and the employer failed to avail a list of its unionisable employees.
The Objector claimed 189 members but its acknowledgement forms and payroll code accounted for only about 56 employees. The employer produced records suggesting about 106 employees had joined the Respondent union but did not file a list of all unionisable employees. The court found employees shared between the rival unions, exercising their Article 41(2)(c) freedom of association, and could not determine which union enjoyed a simple majority.
Whether the objection to registration of the CBA dated 24th March 2023 should be sustained
The objection succeeded in part - registration of the CBA was held in abeyance pending determination of the pending suit ELRCC No. E239 of 2023.
The court found the employer had led the Objector union on while secretly negotiating with the Respondent union, contrary to the principle against employer interference in union membership. Further, the Objector's suit filed on 24th March 2023 involving the same CBA was pending, and all parties to the CBA were aware of it. It would be injudicious to register the CBA while that suit was undetermined.
Whether the Objector's existing recognition agreement and CBA barred the employer from negotiating with the Respondent union
The Objector has no exclusive right to represent the employees; the scenario where the Respondent union concluded a CBA while the Objector had a subsisting recognition agreement was analogous to the Objector's own conduct pre-2019.
The Objector's CBA dated 4th August 2019 had a survival clause (Clause 45.2) keeping it in force until another was agreed, so it had not expired as the employer claimed. However, the court found the Objector union had no exclusive representational right, and the real dispute was competition for membership between the two rival unions.
Legal principles established
#- A collective agreement becomes enforceable and implementable only after it is registered by the court.
- An employer should not interfere with trade union membership of its employees or take sides in a rivalry between unions.
- An employer must recognise a trade union for collective bargaining only if that union represents the simple majority of unionisable employees.
Court orders
#- 1.Registration of the CBA dated 24th March, 2023 between Pollmans Tours & Safaris Ltd and the Kenya Game Conservancy, Tours and Safaris Workers Union shall be held in abeyance pending the hearing and determination of ELRCC No. E239 of 2023
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 60 and 61 of the Labour Relations Act, 2007 - the court's statutory power to register or refuse to register collective agreements
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Game Conservancy, Tour & Safari Workers Union v Pollmans Tours and Safaris Ltd; Transport Workers Union Kenya (Objector) (CBA E106 of 2023) [2023] KEELRC 2570 (KLR)", Case Analysis (2023). ELRCCBA E106 of 2023 (Objection to registration of CBA). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2570/eng@2023-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.