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ELRCPartially AllowedELRCCBA E106 of 2023 (Objection to registration of CBA)· [2023] KEELRC 2570 (KLR)

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)

Employment and Labour Relations Court
23 October 2023
3,969 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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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

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Executive summary

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Before the Employment and Labour Relations Court at Nairobi was the Objector union's (Transport Workers Union, Kenya) Notice of Motion dated 11th May 2023 seeking to set aside or decline the registration of a CBA dated 24th March 2023 between Pollmans Tours & Safaris Ltd and the rival Kenya Game Conservancy, Tours and Safaris Workers Union, pending determination of the Objector's suit under Cause No. E239 of 2023. The Objector contended it had a subsisting recognition agreement (1995) and a CBA dated 4th August 2019 with a survival clause, retained a simple majority of the employer's unionisable employees, and that the new CBA was a scheme to deprive employees of 24 months' salary arrears. The employer and Respondent union maintained the Objector's CBA had lapsed on 31st December 2020, that employees had freely decamped to the Respondent union in exercise of their freedom of association, and that the new CBA was validly negotiated and approved by the Ministry of Labour. The court framed two issues: whether the Objector had lost simple majority, and whether the objection was sustainable. It found the Objector's evidence of 189 members unverifiable and the employer failed to supply a list of unionisable employees, so neither union proved simple majority. However, the court censured the employer for negotiating in bad faith and interfering in union membership, and held that since the Objector's suit over the same CBA was pending and all parties were aware of it, it would be injudicious to register the CBA. The court held registration in abeyance pending determination of Cause E239 of 2023, with no orders as to costs.

Key legal issues

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01

Whether the Objector union had lost simple majority to the rival Respondent union

Holding

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.

Reasoning

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.

p. 6
02

Whether the objection to registration of the CBA dated 24th March 2023 should be sustained

Holding

The objection succeeded in part - registration of the CBA was held in abeyance pending determination of the pending suit ELRCC No. E239 of 2023.

Reasoning

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.

p. 9
03

Whether the Objector's existing recognition agreement and CBA barred the employer from negotiating with the Respondent union

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.No orders as to costs

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54(1)
  • Labour Relations Act, 2007Section 54(2)
  • Labour Relations Act, 2007Section 54(5)
  • Labour Relations Act, 2007Section 57(1)
  • Labour Relations Act, 2007Section 48(1) and (2)
  • Labour Relations Act, 2007Section 59(1) and (2)
  • Labour Relations Act, 2007Section 60(6)
  • Labour Relations Act, 2007Section 60
  • Labour Institutions Act, 2007not specified
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (6)

  • Micato Safaris V Kenya Game, Hunting Safari Workers Union
    (2017) eKLR
  • Kenya Jockey and Betting Workers Union V Resort Kenya Ltd
    (2014) eKLR
  • Kenya Plantations & Agricultural Workers Union V Kenya Chemical & Allied Workers Union & 2 others
    (2018) eKLR
  • Kenya National Private Security Workers Union V Wells Fargo Ltd
    (2020) eKLR
  • Nairobi City County Government V Kenya County Government Workers Union; Salaries and Remuneration Commission (Interested Party/Applicant)
    (2019) eKLR
  • Social Service League M.P. Shah Hospital V KUDHEIHA
    (2018) eKLR
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

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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 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.