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ELRCAllowedELD ELRC NO 4 OF 2019· [2023] KEELRC 3017 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Amritlals Wholesalers Limited (Cause 4 of 2019) [2023] KEELRC 3017 (KLR)

Employment and Labour Relations Court
24 November 2023
MOM. Onyango
2,832 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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Kenya's Employment Court ruled that once a union signs up most employees, an employer must sign a recognition agreement and cannot stall by investigating membership.

What this practically means

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Executive summary

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The Claimant, a trade union registered under the Labour Relations Act for the retail and wholesale sector, sued the Respondent, a wholesale company in Eldoret, after the Respondent refused to sign a recognition agreement and to deduct and remit union dues. The Claimant alleged it recruited 68 of 83 employees (56.3%) between May and September 2017 and forwarded a draft recognition agreement on 12th September 2017. A trade dispute was reported to the Minister for Labour, a conciliator was appointed, and a certificate of unresolved dispute issued. In an interim ruling on 17th October 2019 the court referred the dispute to the Labour Office for ascertainment of membership and restrained the Respondent from victimising union members. The Labour Officer's headcount found only five confirmed members, which the Claimant rejected for departing from agreed verification modalities, leaving the court to determine the suit. The sole issue was whether the Claimant had recruited a simple majority of unionisable employees. Applying section 54 of the Labour Relations Act and its earlier decision in Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited, the court held that recognition is mandatory once a simple majority is achieved, that the date of the recognition request is the determinate date, and that an employer may not verify check-off signatures since section 48 obliges mere compliance. The claim was allowed: the Respondent was ordered to sign a recognition agreement within 30 days, to deduct and remit union dues, and to commence collective bargaining, with costs assessed at Kshs. 80,000.

Key legal issues

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01

Whether the Claimant had recruited a simple majority of unionisable employees entitling it to recognition under section 54 of the Labour Relations Act

Holding

Yes - the Claimant had acquired a simple majority on the date it sought recognition and the Respondent was obligated to recognise it for purposes of a CBA.

Reasoning

The Respondent did not dispute the Claimant's claim that it recruited 68 of 83 unionisable employees when recognition was sought on 12th September 2017. The allegation of coercion was unproved; the two employee affidavits confirmed recruitment, and discharge vouchers dated 2018 further proved membership at the relevant date. Membership is a shifting target, so the date of the recognition request is determinative.

p. 6
02

Whether the Respondent was entitled to verify signatures on the check-off forms

Holding

No - an employer served with Form S must comply by deducting and remitting dues; investigating signatures causes fear of retaliation and would intimidate employees.

Reasoning

Section 48 of the Labour Relations Act requires an employer to deduct dues from employees who have signed check-off forms and remit them to the union. Verification of the list is not mandated and any such investigation would instil fear of retaliation and deter employees from expressing interest in union membership.

p. 5

Legal principles established

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  • Section 48 of the Labour Relations Act does not mandate an employer to verify the names in a check-off list; the employer's role upon service of Form S is to deduct and remit union dues.
  • Recognition for purposes of collective bargaining is a mandatory requirement once a union recruits a simple majority of unionisable employees.
  • The date a union seeks recognition is the determinate date for assessing whether it had a simple majority.

Court orders

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  1. 1.The Respondent to sign a recognition agreement with the Claimant within 30 days
  2. 2.The Respondent to deduct and remit union dues from employees who have acknowledged their membership through signing the check off forms
  3. 3.Parties to thereafter commence collective bargaining in the manner provided in the law
  4. 4.Respondent to pay the Claimant costs of the Claim assessed at Kshs. 80,000 inclusive of reasonable costs and necessary disbursements

Authorities

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Legislation

  • Labour Relations ActSection 48(2) and (3)
  • Labour Relations ActSection 54(1) and (2)
  • Labour Relations ActForm S, Third/Second Schedule
  • Employment ActSection 19(1)(f) and 19(1)(g)
  • Constitution of KenyaArticle 41(2)(c), 41(4) and (5)
  • Companies Actincorporation of Respondent (referenced)

Cases cited (1)

  • Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited
    [2020] eKLR
Jurisdiction invoked
Jurisdiction under the Labour Relations Act following an unresolved trade dispute reported to the Minister for Labour and a certificate of unresolved dispute; Article 41 of the Constitution of Kenya

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 Amritlals Wholesalers Limited (Cause 4 of 2019) [2023] KEELRC 3017 (KLR)", Case Analysis (2023). ELD ELRC NO 4 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3017/eng@2023-11-24

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