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IndustrialAllowedCause 156 of 2005· [2007] KEIC 10 (KLR)

Kenya Engineering Workers’ Union v Athi River Steel Plant Limited (Cause 156 of 2005) (Civ) [2007] KEIC 10 (KLR)

Industrial Court of Kenya
12 June 2007
CCCharles P. ChemmuttutJKJ.M. KilonzoOWO.A. Wafula
1,250 words in judgment
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The bottom line

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Kenya's Industrial Court ordered Athi River Steel Plant to recognise the workers' union because it had signed up a simple majority of eligible employees.

What this practically means

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Executive summary

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This Industrial Court award arose from a dispute referred to the Court on 16th December 2005 by the Minister for Labour & Human Resource Development under Section 8 of the Trade Disputes Act, Cap. 234, concerning the Kenya Engineering Workers' Union's demand for recognition by Athi River Steel Plant Limited. The Union, registered under Section 11 of the Trade Unions Act, recruited all 15 unionisable employees of the Company in 1997 and, there being no rival union, claimed to be the sole and appropriate union for the employees. The Company refused recognition, arguing that the Union had never recruited a simple majority, had only recruited casual workers, that most unionisable employees had left, and that no proper check-off list had been furnished. Following a formal report under Section 4 of the Act, an investigator (Mr J.B. Okwaba) was appointed and the Minister, by findings and recommendation released on 28th July 2003, found that the Company's business was steel manufacturing, that the Union was the appropriate registered union, that 40 workers had joined and were weekly-paid (hence not casuals), that no rival union sought recognition, and that more than 51% of unionisable employees were members; he recommended formal recognition. The Union accepted, the Company rejected the recommendation. After hearing submissions and reviewing the annexures, the Court found the conditions precedent under Section 5(2) of the Act fulfilled in 1997, dismissed the Company's objections as an afterthought, presumed the labour statutes aligned with ILO Conventions 87 and 98, upheld the Minister's findings and recommendation, and awarded that the Company accord formal recognition to the Union forthwith and that the parties sign a recognition agreement within two months for collective bargaining purposes.

Key legal issues

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01

Whether the Union satisfied the statutory conditions for recognition under Section 5(2) of the Trade Disputes Act

Holding

The Union had recruited more than a simple majority of unionisable employees and there was no rival union; the conditions precedent were fulfilled as at 1997, the relevant period for recognition.

Reasoning

The Court relied on the Minister's investigation findings that the Company's business was steel manufacturing, making the Union the appropriate registered union; that 40 workers who had joined the union were weekly-paid and therefore not casuals; that no rival union sought recognition; and that more than 51% of unionisable employees were members. The Court perused the submissions and annexures and found the Company's contrary contentions to be an afterthought.

p. 3
02

Freedom of association as the backdrop to trade union recognition

Holding

The Trade Unions Act and the Trade Disputes Act are presumptively framed in line with ILO Conventions Nos. 87 and 98, particularly the right to organize freely under Article 11 of Convention No. 87.

Reasoning

The Court observed that the employees' right to join a trade union of their own choice underpins the recognition regime, and presumed that the Kenyan labour statutes were drafted keeping in view ILO Conventions 87 and 98, including the Article 11 undertakings on the right to organize freely. This supported upholding the Union's demand despite the Company's resistance.

p. 3

Legal principles established

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  • A trade union fulfils the conditions precedent to recognition where it has in its membership a simple majority of eligible employees in the undertaking and there is no rival union claiming to represent those employees.
  • Where an employer's statutory investigator finds the union has recruited more than 51% of unionisable employees and there is no rival union, the court may uphold the recommendation and order recognition.

Court orders

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  1. 1.The Company is to accord formal recognition to the Union forthwith
  2. 2.The parties must sign a recognition agreement within two (2) months from the date of the award, for purposes of collective bargaining
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour & Human Resource Development)

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 Engineering Workers’ Union v Athi River Steel Plant Limited (Cause 156 of 2005)  (Civ) [2007] KEIC 10 (KLR)", Case Analysis (2007). Cause 156 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2007/10/eng@2007-06-12

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