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ELRCOtherCause No E104 of 2022· [2024] KEELRC 365 (KLR)

Kenya Concrete, Structural, Ceramic Tiles, Wood Plys & Interior Design Union Workers v Kelco Aluminium Works Limited (Cause E104 of 2022) [2024] KEELRC 365 (KLR)

Employment and Labour Relations Court
28 February 2024
LNLinnet Ndolo
850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant Union sued the Respondent, a glass manufacturing and supply company, seeking orders that the Respondent deduct and remit union dues, comply with Legal Notice No. 5 of 2022 and Sections 48 and 54 of the Labour Relations Act, sign a Recognition Agreement, commence CBA negotiations within 30 days, and cease intimidating union members. The Union claimed 27 recruited members; the Respondent conceded only 17 members out of a unionisable workforce of 43 and challenged the Union's sectoral competence and the suit's prematurity. The parties agreed to determination on pleadings and submissions without viva voce evidence. Applying Section 54(1) of the Labour Relations Act and the Court of Appeal's decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court distinguished representation (entitling dues collection) from recognition (requiring a simple majority of unionisable employees). Finding the actual membership and workforce figures contested and unproven, the court held that the ends of justice would best be served by a census. It directed the Chief Industrial Relations Officer to designate a Labour Officer to conduct a census at the Respondent's premises to establish all unionisable employees and those belonging to the Claimant Union, with the report to be filed in court within 60 days. The substantive reliefs were therefore neither granted nor refused definitively but deferred pending the census. The court made no order for costs at that stage. Judgment was delivered virtually at Nairobi on 28 February 2024 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant Union is entitled to recognition and deduction/remittance of union dues

Holding

The court declined to grant the orders sought outright because union membership numbers and the size of the unionisable workforce are contested; it directed a census to establish the facts.

Reasoning

The Respondent conceded some employees were recruited but disputed the claimed 27 members and the asserted workforce of 43. No viva voce evidence was tendered. Recognition under Section 54(1) requires a simple majority, which cannot be established on the contested pleadings. A census by a Labour Officer designated by the Chief Industrial Relations Officer was directed to establish the true membership position, with a report to be filed within 60 days.

p. 3
02

Distinction between representation and recognition

Holding

Representation entitles a union to collect dues from its members; recognition for collective bargaining requires a simple majority under Section 54(1).

Reasoning

Following Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court distinguished the two concepts. The Claimant's conceded recruitment of some members supports representation (dues collection), but recognition depends on the simple majority threshold, which remained unproven and required factual inquiry.

p. 2

Legal principles established

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  • There is a distinction between representation of workers by their trade union and recognition of the trade union by an employer for purposes of collective bargaining.
  • An employer shall recognise a trade union for collective bargaining only if it represents a simple majority of unionisable employees (Section 54(1), Labour Relations Act).

Court orders

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  1. 1.The Chief Industrial Relations Officer to designate a Labour Officer to conduct a census at the Respondent's premises to establish the names and designations of all unionisable employees and those who are members of the Claimant Union
  2. 2.The designated Labour Officer to file their report in court within sixty (60) days from the date of the judgment
  3. 3.No order for costs at this stage

Authorities

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Legislation

  • Labour Relations ActSection 48(3)
  • Labour Relations ActSection 4(1)
  • Labour Relations ActSection 54(1)
  • Legal Notice No. 5 of 2022
  • Constitution of KenyaArticle 27(2)
  • Constitution of KenyaArticle 41(2)(c)

Cases cited (1)

  • Modern Soap Factory v Kenya Shoe and Leather Workers Union
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act (trade union dues and recognition dispute)

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 Concrete, Structural, Ceramic Tiles, Wood Plys & Interior Design Union Workers v Kelco Aluminium Works Limited (Cause E104 of 2022) [2024] KEELRC 365 (KLR)", Case Analysis (2024). Cause No E104 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/365/eng@2024-02-28

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