[2007] KEELRC 23 (KLR)
The Court determined that the central issue was whether the Union had a bona fide simple majority of unionisable employees, which would entitle it to recognition by the employer. Given the conflicting positions of the parties regarding the actual level of union membership, the Court found that the most fair and...
Source-derived case information.
- Citation
- [2007] KEELRC 23 (KLR)
- Parties
- Applicant: Kenya Engineering Workers’ Union; Respondent: Hans Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 82 of 2007
- Procedural Posture
- Trade Dispute / Interim Award
- Outcome
- Interim award; secret ballot ordered to determine union majority before final decision.
- Legal Topics
- Recognition Agreement, Trade Union Membership, Collective Bargaining Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers’ Union
Applicant
Hans Kenya Ltd
Respondent
Procedural Posture
Trade Dispute / Interim Award
Legal Issues
- 1 Whether the employer's refusal to sign the recognition agreement was justified.
- 2 Whether the union has a bona fide simple majority among unionisable employees.
- 3 What is the appropriate method to determine the wishes of unionisable employees regarding union membership.
Ratio Decidendi
The Court determined that the central issue was whether the Union had a bona fide simple majority of unionisable employees, which would entitle it to recognition by the employer. Given the conflicting positions of the parties regarding the actual level of union membership, the Court found that the most fair and objective method to resolve the dispute was to conduct a secret ballot among all unionisable employees (excluding casual workers), in the presence of representatives from both parties, the Court, and the Labour Office. The outcome of this ballot would conclusively establish whether the Union had the requisite majority for recognition. The Court therefore ordered that the secret...
Court Disposition
Interim award; secret ballot ordered to determine union majority before final decision.
Orders
- A secret ballot shall be conducted among all unionisable employees (excluding casual workers) of the Company within one month to determine their wishes regarding union membership and whether the Union has a bona fide simple majority.
- The secret ballot shall be conducted by Mr. Benson Okwayo of the Economic Planning Division, in the presence of representatives of both parties, the Registrar of the Court or his representative, and the Labour Officer, Industrial Area Office, or his/her representative.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA.
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI.
(Before: Charles P. Chemmuttut, J.,
O.A. Wafula & J.M. Kilonzo, Members.)
CAUSE NO. 82 OF 2007.
KENYA ENGINEERING WORKERS’ UNION...........................................Claimants.
v.
HANS KENYA LTD..........................................................................Respondents.
Issue in Dispute:-
“Employers’ refusal to sign Recognition Agreement.”
Mr. Joseph A.N. Omolo, Industrial Relations Officer, for the Claimants (hereinafter called the Union).
Mr. Daniel Irungu Kamau, Human Resource Manager, for the Respondents (hereinafter called the Company).
INTERIM AWARD.
On 19th May, 2007, the Minister for Labour and Human Resource Development referred this dispute to the Court for consideration and determination in exercise of the powers vested in, or conferred upon, him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificate from the Labour Commissioner under Section 14(9)(e) of the Act, were received by the Court on 29th June, 2007. The dispute was then listed for mention on 25th July, 2007, and the parties were notified to attend. On this occasion, Messrs. Omolo and Kamau, who appeared for the parties respectively, were directed to submit or file their respective written memoranda or statements on or before 10th and 24th August, 2007, and the dispute was fixed for hearing on 12th September, 2007. Messrs. Omolo and Kamau submitted their respective memoranda or statements, on behalf of the parties, on 9th and 24th August, 2007. On 12th September, 2007, Messrs. Omolo and Kamau jointly applied for an adjournment of the case to enable them explore the possibility of an amicable settlement out of Court. The application was granted and the matter was postponed for hearing, in the event that the parties failed to resolve it, to 2nd October, 2007.
On the said date, i.e. 2nd October, 2007, Messrs Omolo and Kamau mutually agreed that, in order to find out the exact and true wishes of the unionisable employees of the Company regarding their Union membership and whether or not the Union has a bona fide simple majority of members among them, a secret ballot is necessary and should be conducted in the presence of both parties’ representatives. We agree that the best way to do this is by giving the unionisable employees an opportunity to express their wishes through a secret ballot.
In the circumstances, we direct Mr. Benson Okwayo of the Economic Planning Division (EPD) to undertake this exercise and to find out through a secret ballot, and with reasonable access to all the unionisable employee (excluding casual workers), and in the presence of both parties’ representatives, the Registrar of this Court or his representative and the Labour Officer, Industrial Area Office, or his/her representative, the exact and true wishes of the unionisable employees regarding their Union membership and whether or not the Union has a bona fide simple majority of members among them. The exercise should be completed within one (1) month from the date of this interim award, and the Court will announce or make its final decision immediately on receipt of the results of the secret ballot.
DATED and delivered at Nairobi this 16th day of October, 2007.
Charles P. Chemmuttut, MBS.,
JUDGE.
O.A. Wafula,J.M. Kilonzo,
MEMBER. MEMBER.