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ELRCDismissedMemorandum of Claim dated 20.04.2022 (Employment and Labour Relations Court)· [2024] KEELRC 1925 (KLR)

Transport Workers Union (K) v Kenya Civil Aviation Authority; Kenya Aviation Workers Union (Interested Party) (Cause E248 of 2022) [2024] KEELRC 1925 (KLR)

Employment and Labour Relations Court
26 July 2024
BOByram Ongaya
1,301 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's bid to force an employer to deduct dues because the union failed to prove most employees supported it.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim dated 20.04.2022 seeking orders compelling the respondent employer to deduct and remit trade union dues from 271 employees it alleged to have recruited in January and March 2022, an enforcement order under section 19(6) of the Employment Act for payment of un-remitted dues from February 2022, and an injunction against intimidation or harassment of employees on account of union membership. The respondent opposed the claim, disputing that 271 employees had been validly recruited, asserting that many named employees held management grades on scales 6, 7 and 8, that some were ineligible to join a union, and that others were already members of the Kenya Aviation Workers' Union, with which a recognition agreement and registered CBA existed. The interested party, holding a recognition agreement of 07.02.2015 and a CBA registered on 21.08.2015 with a survival clause, sought dismissal of the claim, citing pending deregistration litigation stayed by the Court of Appeal and Supreme Court and conciliation proceedings before the Cabinet Secretary. The court found that the dispute over the categorisation of management and unionisable employees made it impossible to find that the claimant had established the statutory simple majority for recognition. It further held that the claimant's relationship with the respondent would become clearer once the interested party's deregistration dispute was determined. The court suggested the parties might be guided by the Industrial Charter. The suit was dismissed with each party bearing its own costs, the parties being in a continuing or anticipated industrial relationship.

Key legal issues

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01

Whether the claimant met the statutory simple majority threshold for union membership at the respondent

Holding

The claimant failed to establish the simple majority because the categorisation of employees as management or unionisable remained disputed

Reasoning

The claimant alleged 271 recruited members, but the respondent contested eligibility, asserting that many were managers on scales 6, 7 and 8, some were members of the Kenya Aviation Workers' Union, and others were not eligible to join a union. With competing categorisations unresolved, the court could not find the statutory simple majority established.

p. 3
02

Whether the interested party's subsisting recognition agreement and CBA barred the claim

Holding

The interested party's recognition and CBA, combined with pending deregistration litigation, left the claimant's status unclear pending resolution

Reasoning

The interested party held a recognition agreement executed on 07.02.2015 and a registered CBA with a survival clause (clause 42). Its deregistration was subject to ongoing proceedings, with stay orders from the Court of Appeal and Supreme Court. The court held the claimant's relationship with the respondent would become clearer once the deregistration dispute was determined.

p. 4
03

Whether a recognition agreement is a prerequisite for deduction of trade union dues

Holding

The claimant argued recognition was not a prerequisite, but the court did not decide this point, resting dismissal on the unresolved membership threshold

Reasoning

The claimant in its reply stated it was not seeking a recognition agreement and that recognition was not a precondition to dues deduction. The court nonetheless found the claim unestablished due to the contested simple majority and the competing union position, making it unnecessary to decide the prerequisite question.

p. 2

Legal principles established

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  • A claimant union must establish a statutory simple majority to qualify for recognition and for orders of dues deduction
  • Where the categorisation of management versus unionisable employees is disputed, a claim for deduction of union dues cannot succeed until that dispute is resolved

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs of the proceedings
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act, 2007 and Employment Act, 2007 (sections 48, 50 and 19(6) invoked in the claim)

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, "Transport Workers Union (K) v Kenya Civil Aviation Authority; Kenya Aviation Workers Union (Interested Party) (Cause E248 of 2022) [2024] KEELRC 1925 (KLR)", Case Analysis (2024). Memorandum of Claim dated 20.04.2022 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1925/eng@2024-07-26

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