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ELRCPartially Allowed· [2023] KEELRC 3108 (KLR)

Kenya Union of Commercial Food and Allied Workers v Dadu Hardware Limited (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 3108 (KLR)

Employment and Labour Relations Court
24 November 2023
MOM. ONYANGO
2,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered an Eldoret employer to stop pressuring workers against unionising and to start deducting union dues immediately, pending full trial.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Eldoret (M. Onyango, J) determined two interlocutory applications arising from a dispute between the Bakers Union (Kenya) Branch and Rabiud Services (Kenya) Limited, a hardware business in Eldoret. By the application dated 21st February 2023, the Claimant Union, alleging it had recruited about 72% (15 of 21) of the Respondent's unionisable employees, sought interim orders restraining the Respondent from forcing employees to sign contracts with an outsourcing firm (Rabuid Services (Kenya) Limited), from victimising union members, and sought an order compelling deduction and remittance of union dues and recognition of the union. The Respondent opposed, asserting that no recognition agreement existed, that only five listed members were its employees and that some had renounced membership. By its own application dated 23rd March 2023, the Respondent sought a review, variation or setting aside of the ex parte orders issued on 13th March 2023, alleging they prejudiced it and had been abused. The court found that the Respondent had not denied the intention to force employees onto inferior outsourcing contracts, that the check-off forms referenced Gazette Notice No. 11153 of 8th August 2013 as authority for deduction of dues, and that a union does not require a recognition agreement to represent its members. The Respondent's allegations of insubordination were unsupported by evidence. The court granted interim restraints against forced outsourcing and victimisation of union members, directed the immediate commencement of deduction and remittance of union dues, dismissed the Respondent's application, and ordered costs in the cause. Substantive claims, including recognition, were left for trial.

Key legal issues

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01

Recognition of a trade union under section 54(1) of the Labour Relations Act

Holding

The court found that the Respondent's application was based on a misapprehension of sections 48 and 54 of the Labour Relations Act and that the Claimant's entitlement to recognition flows from recruiting a simple majority; the substantive recognition question was left for the hearing

Reasoning

The court held that the Respondent misapprehended sections 48 and 54 of the Labour Relations Act. A union member is entitled to representation upon enrolment without a recognition agreement, while entitlement to recognition for CBA negotiation arises once a simple majority is recruited. The precise recognition question remains for trial.

p. 6
02

Deduction and remittance of union dues under section 48 of the Labour Relations Act

Holding

The check-off forms referenced Kenya Gazette Notice No. 11153 of 8th August 2013, so the Respondent's claim of lack of authority to deduct union dues was unfounded; the Respondent was ordered to commence deductions

Reasoning

Section 48 of the Labour Relations Act governs deduction and remittance of union dues once a check-off form is served. The check-off forms served on the Respondent cited the Cabinet Secretary's Gazette Notice as authority, so the Respondent's assertion of no authority was unfounded. Deductions were accordingly ordered.

p. 5
03

Respondent's application to review/vacate the ex parte orders of 13th March 2023

Holding

The allegations that the orders restricted disciplinary action and were abused were unsupported by evidence; the application was dismissed

Reasoning

The court found that the Respondent had not specifically denied allegations of intimidation, and indeed its director's affidavit confirmed harassment of employees who signed check-off forms. The claims of insubordination and prejudice were unsupported by any evidence, so the review application lacked merit.

p. 6

Legal principles established

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  • A union member is entitled to representation upon enrolment; a recognition agreement is not required for a union to represent its members
  • Once a union recruits a simple majority of members it becomes entitled to recognition for purposes of negotiating a Collective Bargaining Agreement

Court orders

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  1. 1.The Respondent be and is hereby restrained from forcing its employees into signing contracts of employment with an outsourcing firm known as Rabiud Services (Kenya) Limited or any other outsourced labour offering firm pending hearing and determination of the claim herein
  2. 2.The Respondent be and is hereby restrained from victimizing, intimidating, coercing, harassing, disciplining or terminating the services of the claimant/applicant's members whose names appear on the check off forms on account of their union membership, pending the hearing and determination of the main suit
  3. 3.The Respondent is directed to immediately commence deduction and remittance of union dues to the Claimant's members whose names appear on the check-off forms
  4. 4.The Respondent's application dated 23rd March 2023 is dismissed

Authorities

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Legislation

  • Labour Relations Act, 2007section 54(1)
  • Labour Relations Act, 2007section 48
  • Constitution of Kenya, 2010Article 41(1) and (2)(a) and (b)
  • Employment Actnot specified
  • Labour Institutions Actwages regulations
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; Labour Relations Act, 2007 (sections 48 and 54(1)) and Article 41 of the Constitution

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 Dadu Hardware Limited (Employment and Labour Relations Cause E006 of 2023) [2023] KEELRC 3108 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3108/eng@2023-11-24

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