Kenya Aviation Workers Union v KLM Royal Dutch Airlines / Air France; Transport Workers Union Kenya (Interested Party) (Cause 45 of 2020) [2024] KEELRC 1434 (KLR)
The bottom line
#A Kenyan court refused to recognize a second union at KLM, confirming only one union can hold collective bargaining rights over the same workers at a time.
What this practically means
#Executive summary
#Key legal issues
#Recognition of a second Trade Union where an existing RA is subsisting
Recognition was refused; the subsisting RA confers exclusive agency rights that must first be revoked before a newcomer Union can be recognized
Recognition under Section 54 of the Labour Relations Act depends on simple majority, but the law does not countenance two RAs covering the same bargaining unit. Granting recognition to two unions would negate exclusive agency rights and open the workplace to competing CBAs, breeding industrial chaos. Accrued rights under the 2003 RA can end only through revocation via the National Labour Board.
Whether the Claimant should first seek revocation of the existing RA from the National Labour Board
The Interested Party's contention that the Claimant should have first gone to the National Labour Board was incorrect, since Section 54(5) confers that right on Employers, not rival unions
Section 54(5) grants an Employer the right to apply to terminate a RA but this does not extend to unions claiming recognition in place of recognized unions. Recognition disputes go to conciliation and, if unresolved, to the Court under Section 54(7). However, the Claimant still failed to ask the Court to revoke the RA before claiming recognition.
Whether recruitment of a simple majority alone establishes entitlement to recognition
No; even a proven simple majority does not entitle a newcomer union to recognition while a valid RA subsists
The Court held that numbers are not conclusive; under Section 54(8) the sector must also be considered. The Claimant's evidence on membership was inconsistent and unreconcilable, no Employee testified, and the presumption of validity of the existing RA was not rebutted. Recognition while the RA stands would treat the matter as if no existing recognition existed.
Permanent injunction against interference with recruitment
Refused; no evidence of anti-union activity by the Respondent
No Employee was presented to attest to anti-union conduct. The Respondent testified it was willing to deduct and remit dues for members of either union. The Claimant has a right to recruit, which the Respondent never obstructed.
Best method of resolving competing recognition claims
Shop floor balloting by Employees themselves is the best approach
Employees are the best witnesses in recognition disputes. Balloting would resolve dual membership and shifting loyalties democratically. The Conciliator relied instead on competing documents and gave no specific figures, producing an unsatisfactory recommendation.
Legal principles established
#- There can only be one recognized Trade Union with one RA and undivided collective bargaining agency rights over a bargaining unit at a time
- An existing RA is presumed valid and can only be displaced by cogent evidence such as resignation notices from Employees
- Section 54(5) of the Labour Relations Act allows an Employer to apply to the National Labour Board to terminate a RA, but that right is not extended to rival Trade Unions seeking recognition
Court orders
#- 1.The Claim is declined
- 2.Costs to the Respondent and the Interested Party, to be borne by the Claimant
- Jurisdiction invoked
- Labour Relations Act, Section 54(7) – reference of unresolved recognition dispute to this Court after conciliation by the Cabinet Secretary for Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v KLM Royal Dutch Airlines / Air France; Transport Workers Union Kenya (Interested Party) (Cause 45 of 2020) [2024] KEELRC 1434 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1434/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.