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ELRCDismissedCause No E916 of 2022· [2024] KEELRC 1983 (KLR)

Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Tropical Heat Limited (Cause E916 of 2022) [2024] KEELRC 1983 (KLR)

Employment and Labour Relations Court
30 July 2024
JGJacob Gakeri
4,429 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed both sides' claims, ruling a valid recognition agreement cannot force CBA negotiations where a union has no members.

What this practically means

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Executive summary

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The Claimant union sued the Respondent employer seeking orders to compel conclusion of a new collective bargaining agreement, an injunction against victimisation of union members, and a declaration that the Respondent's actions infringed its constitutional right to fair labour relations. The Respondent counter-claimed for declarations that the union no longer represented a simple majority and that the recognition agreement of 13th September, 2016 was invalid, null, void and unenforceable, plus a permanent injunction. The court framed three issues: validity of the recognition agreement when the suit was filed, entitlement to the claimed reliefs, and the merit of the counter-claim. On evidence, the court found the union's claimed membership figures exaggerated and unsupported; a cheque of 4th June, 2019 indicated only six paying members, and by hearing the union had zero members at the enterprise. Nonetheless, the court held the recognition agreement subsisted and was valid, because the National Labour Board had declined the Respondent's application to revoke it and that decision was never challenged; a subsisting recognition agreement cannot be terminated unilaterally, and unilateral de-recognition would be a breach of contract. However, since the union had no members, the agreement lacked its foundation and could not support CBA negotiations. The court held that a collective agreement is consensual and courts cannot compel parties to conclude one. All reliefs sought by the Claimant were declined and the suit was dismissed. The counter-claim also failed: the majority declaration was unnecessary (a fact admitted), the invalidity declaration contradicted the finding of validity, and the injunction was unproven. Both suit and counter-claim were dismissed, each party bearing own costs.

Key legal issues

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01

Validity of the Recognition Agreement as at the filing of the suit

Holding

The recognition agreement was valid when the suit was filed because the NLB declined to revoke it and that decision was never challenged.

Reasoning

The Respondent applied to the NLB under Section 54(5) of the Labour Relations Act to terminate or revoke the recognition agreement. The NLB declined and the Respondent did not challenge that decision in court or resolve the issue differently. Since a subsisting recognition agreement can only be ended by the parties or by the prescribed statutory procedure, unilateral de-recognition would amount to breach of contract, and the agreement remained valid on 8th November, 2022.

p. 8
02

Whether a recognition agreement can support CBA negotiations where the union has no members

Holding

Although the agreement subsists, it cannot be relied upon for collective bargaining as the union has zero members at the enterprise.

Reasoning

The court found the union had no members employed by the Respondent. While the law does not expressly require maintenance of the simple majority, it does not envision a union with no members, which would render recognition a temporary formality. The agreement therefore lacks its foundation - union membership of the employer's employees - and the union has no basis on which to negotiate a CBA.

p. 8
03

Whether the court can compel conclusion of a CBA

Holding

No - a collective agreement is consensual and courts seldom interfere with CBA negotiations, even on deadlock.

Reasoning

Relying on the statutory definitions of a Collective Agreement in Section 2 of the Labour Institutions Act and Section 2 of the Employment Act, the court held that a CBA is consensually concluded. Compelling parties to conclude one would produce a court-mandated document, not an agreement. Conciliation remains the best way out of a deadlock.

p. 9

Legal principles established

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  • Section 54(1) of the Labour Relations Act is mandatory and conditional upon the union attaining the simple-majority threshold; once attained, the employer must recognize the union.
  • A subsisting recognition agreement cannot be terminated unilaterally; only the parties thereto or the procedure in Section 54(5) of the Labour Relations Act can end it, and unilateral de-recognition is a breach of contract.
  • Courts cannot compel parties to conclude a CBA; collective agreements are consensual instruments.
  • A recognition agreement, though valid, cannot found CBA negotiations where the union has no members employed by the employer, as the agreement lacks its foundation in union membership.

Court orders

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  1. 1.Dismissal of the Claimant's suit with no orders as to costs
  2. 2.Dismissal of the declaration sought on the Counter-claim that the union does not represent a simple majority
  3. 3.Dismissal of the declaration sought that the recognition agreement dated 13th September, 2016 is invalid, null and void and unenforceable
  4. 4.Dismissal of the permanent injunction sought on the Counter-claim
  5. 5.Dismissal of the Respondent's Counter-claim in its entirety with no orders as to costs
  6. 6.Order that parties shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Labour Relations ActSection 54 (incl. 54(1), 54(3), 54(5), 54(6))
  • Labour Relations ActSection 57(1)
  • Labour Institutions Act, 2007Section 2 (definition of Collective Agreement)
  • Employment Act, 2007Section 2 (definition of Collective Agreement)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • ILO Convention 154

Cases cited (9)

  • Micato Safaris v Kenya Game Hunting & Safaris Workers Union
    (2017) eKLR
  • Kenya Petroleum Oil Workers Union v Petro Oil Kenya Ltd
    (2023) KEELRC 2558
  • Kenya Tertiary and Schools Workers Union (KETASWU) v Heltz Institute of Advanced Driving
    (2020) eKLR
  • Kenya Export, Floriculture, Horticulture and Allied Workers v Kenya Plantation & Agricultural Workers Union & 2 others
    (2021) eKLR
  • Bakery, Confectionery, Food Manufacturing and Allied Workers Union (Kenya) v Protor & Allan (E.A) Ltd
    (2015) eKLR
  • Kenya Shoe and Leather Workers Union v Crown Industries Ltd & another
    (2017) eKLR
  • Kenya Chemical & Allied Workers Union v Strategic Industries Ltd
  • Kenya Electrical Traders & Allied Workers Union v Kenya Electricity Transmissions Company Ltd
    (2021) eKLR
  • Aviation & Allied Workers Union v Air Kenya Express Ltd & another
    (2013) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court); dispute referred following conciliation under the Labour Relations Act, 2007

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, "Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Tropical Heat Limited (Cause E916 of 2022) [2024] KEELRC 1983 (KLR)", Case Analysis (2024). Cause No E916 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1983/eng@2024-07-30

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