[2017] KEELRC 962 (KLR)
The court found that recognition of a trade union is mandatory once it is demonstrated that the union has attained a simple majority of unionisable employees. The claimant provided check-off forms for 17 employees, which it claimed constituted 62% of the workforce. The respondent's assertion that 5 of these...
Source-derived case information.
- Citation
- [2017] KEELRC 962 (KLR)
- Parties
- Applicant: Kenya Building Construction Timber and Furniture Industries Employees Union; Respondent: Ekotech Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1386 of 2016
- Procedural Posture
- Labour Claim / Judgment
- Outcome
- Claim allowed. Respondent ordered to recognize claimant union for collective bargaining.
- Judges
- DI Wasike
- Legal Topics
- Trade Union Recognition, Collective Bargaining, Union Membership Threshold
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Building Construction Timber and Furniture Industries Employees Union
Applicant
Ekotech Limited
Respondent
Procedural Posture
Labour Claim / Judgment
Legal Issues
- 1 Whether the claimant union met the legal threshold for recognition by the respondent under section 54 of the Labour Relations Act.
- 2 Whether the respondent was justified in refusing to recognize the claimant union based on its objections to the membership list and sector representation.
- 3 Whether the dispute was prematurely brought before the court without exhausting conciliation procedures.
Ratio Decidendi
The court found that recognition of a trade union is mandatory once it is demonstrated that the union has attained a simple majority of unionisable employees. The claimant provided check-off forms for 17 employees, which it claimed constituted 62% of the workforce. The respondent's assertion that 5 of these employees were no longer employed was unsubstantiated, as it failed to identify the specific individuals. The court held that the respondent did not prove its allegations and accepted the claimant's evidence. Consequently, the court ordered the respondent to recognize the claimant union for purposes of collective bargaining as required by section 54 of the Labour Relations Act.
Court Disposition
Claim allowed. Respondent ordered to recognize claimant union for collective bargaining.
Orders
- The respondent is ordered to recognize the claimant for purposes of collective bargaining as required by section 54 of the Labour Relations Act.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
JUDGEMENT 1386 OF 2016
KENYA BUILDING CONSTRUCTION TIMBER AND
FURNITURE INDUSTRIES EMPLOYEES UNION…………..……CLAIMANT
VERSUS
EKOTECH LIMITED..................................................................RESPONDENT
JUDGMENT
1. By a memorandum of claim dated 28th August, 2013 the claimant averred that it was the rightful union to represent the unionisable employees of the respondent. If further averred that it recruited 17 employees of the respondent into its membership representing about 62% of the respondent’s whole workforce. The claimant then sent signed check off forms to the respondent requiring the respondent to commence deductions of union dues from the said member’s salary. The claimant further averred that it sent an invitation to the respondent with intent to commence negotiations leading to signing recognition agreement but the respondent declined both.
2. The claimant therefore reported the dispute to the Minister for conciliation and a conciliator was appointed. According to the claimant the respondent attended the conciliation meeting only once forcing the conciliator to record a statement and refer the matter to court for adjudication.
3. The respondent on its part averred that the claimant had not fulfilled the legal requirements for recognition and that any purported recruitment was inordinate, premature and illegal for lack of a recognition agreement. The respondent further averred that the purported recruitment of 17 employees of the respondent included 5 employees whose contracts had expired in December, 2012 and were no longer on the respondent’s payroll.
4. According to the respondent therefore, the list of 17 employees provided by the claimant was incorrect and did not form the alleged 62% of the employees in the respondent’s employment.
5. The respondent further averred that the claimant was not the right union to represent employees in the Industrial Waste Recycling Sector which the respondent was in.
6. Concerning conciliations, the respondent averred that it attended one conciliation meeting but asked for the second one to be rescheduled as it had visitors from overseas. The respondent thus contended that the suit was brought prematurely before exhaustion of procedures laid down in section 67 of the Labour Relations Act.
7. Section 54(1) of the Labour Relations Act provides in paraphrase that an employer shall recognize a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
8. My understanding of this section is that recognition is mandatory once there is proof that the union concerned has attained the simple majority of unionisable employees in the employer’s employment. The claimant averred that it recruited 17 of the respondent’s employees which it regarded as constituting 62% of the respondent’s workforce. The respondent on its part which contended that it had a workforce of 25 employees, 5 of the 17 named in the claimant’s list of members had their contracts expired in December, 2012. The respondent however, did not single out the said five employees.
9. The right to join a trade union is a constitutional right and the court must do everything within its power to protect that right. As said earlier recognition is not negotiable once the union concerned has sufficiently demonstrated that it has attained a simple majority of unionisable employees in a particular workforce. The claimant herein has attached with this claim check off forms containing names of 17 employees it claimed to have recruited. The respondent on its part averred that 5 out of the 17 had their contracts expired at the time of signing the check off forms. The respondent has however not singled out the said five employees implying they did not prove their allegations. The court therefore believes the claimants.
10. In the circumstances, the court hereby orders the respondent to recognize the claimant for purposes of collective bargaining as required by section 54 of the Labour Relations Act.
11. It is so ordered.
Dated at Nairobi this 14th day of July 2017
Abuodha J. N.
Judge
Delivered this 14th day of July 2017
In the presence of:-
.……………………………………………… for the Claimant
……………….………………………….. for the Respondent
Abuodha J. N.
Judge