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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 1434 (KLR)

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)

Employment and Labour Relations Court
14 June 2024
3,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a trade union registered for the aviation industry, sued the Respondent airline seeking three orders: that the Respondent be permanently restrained from interfering with its recruitment of Employees, that the Respondent be compelled to recognize the Claimant, and that the Respondent be compelled to collectively bargain with it. The Respondent and the Interested Party, a general transport-sector union, opposed the Claim, relying on a Recognition Agreement executed on 28th November 2003 and a subsisting registered CBA. A Conciliator appointed by the Cabinet Secretary for Labour had recommended recognition of the Claimant without regard to the existing RA, prompting this reference to the Court. The Court found no evidence of anti-union activity by the Respondent to justify a permanent injunction. On recognition, it held that RAs confer exclusive collective bargaining agency rights; the law does not countenance two RAs over the same bargaining unit, and double recognition would breed industrial chaos. Accrued rights under the 2003 RA could end only through revocation, and the Claimant did not even ask the Court to revoke the subsisting RA. The Claimant's membership figures were changeful and unreconcilable, no Employee testified, and the presumption of validity of the existing RA was not rebutted. Applying its earlier decision in the Kenya Export Union case, the Court observed that judicial authority protects existing RAs against newcomer unions. Recognition and collective bargaining were refused, and costs were awarded to the Respondent and the Interested Party, borne by the Claimant. The Claimant remains free to recruit members and receive check-off dues.

Key legal issues

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01

Recognition of a second Trade Union where an existing RA is subsisting

Holding

Recognition was refused; the subsisting RA confers exclusive agency rights that must first be revoked before a newcomer Union can be recognized

Reasoning

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.

p. 5
02

Whether the Claimant should first seek revocation of the existing RA from the National Labour Board

Holding

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

Reasoning

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.

p. 4
03

Whether recruitment of a simple majority alone establishes entitlement to recognition

Holding

No; even a proven simple majority does not entitle a newcomer union to recognition while a valid RA subsists

Reasoning

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.

p. 6
04

Permanent injunction against interference with recruitment

Holding

Refused; no evidence of anti-union activity by the Respondent

Reasoning

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.

p. 4
05

Best method of resolving competing recognition claims

Holding

Shop floor balloting by Employees themselves is the best approach

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Claim is declined
  2. 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

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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 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.