[2003] KEELRC 27 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

Cause 68 of 2001

(Before: Charles P. Chemmuttut, J.,

J.M. Kilonzo & A.K. Kerich, Members.)

CAUSE NO.68 OF 2001.

KENYA GAME HUNTING & SAFARISWORKERS’ UNION..........................................Claimants.

v.

MICATO SAFARIS LTD.......................................................................................Respondents.

and

TRANSPORT & ALLIED WORKERS’ UNION....................................................Interested Party.

Issue in Dispute:-

“Refusal by the employer to recognise the union”.

J.M. Ndolo, General Secretary, for the Claimants (hereinafter called the first Union).

L.W. Kariuki, Senior Executive Officer, F.K.E., for the Respondents (hereinafter called the Company).

J.P. Owiti, Deputy General Secretary, for the Interested Party (hereinafter called the second Union).

A W A R D.

This dispute was referred to the Court for consideration and determination by the Minister for Labour on 19th July, 2001, under powers vested in him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya, (which is hereinafter referred to as the Act), consequent upon a refusal by the Company to accord formal recognition to the first Union. The Minister’s reference, together with the statutory certificate from the Labour Commissioner under Section 14(9) (e) of the Act, were received by the Court on 25th July, 2001, and the dispute was listed for mention on 24th August, 2001. On this occasion, Messrs. Leonard Kyalo and L.W. Kariuki, who appeared for the first Union and the Company respectively, were directed to submit or file their respective written memoranda or statements on or before 14th September and 15th October, 2001, and the dispute was fixed for hearing on 19th December, 2001. The first Union submitted its memorandum on 11th September, 2001, but the Company did not file its reply statement as directed. On 19th December, 2001, the dispute was rescheduled for hearing on 23rd April, 2002, to enable the Company and the second Union file their respective reply statement and rejoinder on or before 30th January and 28th February, 2002. The second Union filed its rejoinder on 4th March, 2002, but the Company failed once more to file its reply statement as directed hereinabove. On 23rd April, 2002, the matter was adjourned for hearing on 14th May, 2002, and the Company were ordered to file its reply statement on or before 26th April, 2002, which they belatedly filed on 3rd May, 2002. The dispute was heard as aforestated, i.e. on 14th May, 2002.

In his introductory submission, Mr. Ndolo stated that the Company is a tour operator engaged in the transportation of tourists to hotels and game parks; and the first Union is mandated, under Rule 4 (a) of its Constitution, to represent the industrial interests of the unionisable employees in the Company’s establishment. The rule reads:-

“4. MEMBERSHIP:

(a)Membership of Union shall (be) open to all employees of firm or Companies engaged in Hunting, big and small

Game Safaris photographic, photographic Camping Safaris, Wild Life Game Drive, Ene-m tographic

(Film Safaris), Balloon Safaris, Game Trapping (SANCTUARY). Kenya National Parks, Private Sanctuary, National Reserve Marine, Marine Parks, Kenya Wild Life Service, Tour Operators (Driver Guide) Fishermen and related workers.

(b)………………………………………………………

(c).…………………………………………………….

(d)……………………………………………………….”.

Mr. Ndolo submitted that sometime in 1994/95 the first Union recruited more than a simple majority, i.e. 90%, of the Company’s unionisable employees as members and approached the Company for recognition. But the latter declined to accord the first Union recognition but is to-date remitting the union dues to the first Union pursuant to the provisions of Section 47 of the Act. On 3rd April, 1995, the first Union reported a formal trade dispute to the Minister for Labour in accordance with Section 4 of the Act. The Minister accepted the dispute and appointed Mr. J.A. Oketch of Industrial Area Labour Office to act as the Investigator. On 19th February, 2001, the Minister released to the parties the following findings and recommendation:-

“FINDINGS.

……………Micato Safaris is a Tour Company engaged in the transportation of tourists to hotels and game parks. …….Rule 4(a) of the Constitution of the……… Union mandates the union to represent the employees industrial interests in the particular

undertaking.

…………..the company had signed a recognition agreement with Transport and Allied Workers Union in 1968 and subsequently negotiated CBAs’ until 1993. Thereafter, in December, 1993, the employees revoked their membership with the Transport Union and joined Kenya Game Hunting Union. Attempts by the latter union to obtain recognition from the employer was futile, hence this dispute.

…………… the company has a total workforce of 52 unionisable staff, the union on the other hand, had recruited

30 employees. The level of union representation was found

to be 57% which is above 51% simple majority required for recognition.

In view of the above, there is no valid legal reason as to why the union should not be accorded recognition.

RECOMMENDATION.

……….. I recommend that the union be accorded formal recognition to pave way for Collective Bargaining process”.

The Minister finally appealed to the parties to accept the recommendation as a basis of settlement of the matter. The first Union accepted the recommendation but the Company rejected it. Hence this dispute for consideration and determination (see first Union Apps. 1 to 7).

Mr. Ndolo finally submitted that the first Union had satisfied the requirements of Section 5(2) of the Act before approaching the Company for recognition; and in the circumstances, he prayed that the Company be directed to accord formal recognition to the first Union.

In reply, Mr. Kariuki submitted that the Company is actually a tour operator, engaged in the transportation of tourists to hotels and game parks; and has had a valid recognition agreement with the second Union since 22nd April, 1968, and the parties have also entered into several collective agreements to regulate the terms and conditions of service of the unionisable employees. He pointed out that, on careful perusal of the

check-off list, the Company found that only 17 out of a total labour force of 52 employees appended their signatures thereon, and these cannot constitute a simple majority.

Accordingly, Mr. Kariuki prayed that the demand for recognition by the first Union be rejected as inconsistent and untenable.

In his rejoinder, Mr. Owiti submitted in a nutshell that the Company has had a valid recognition agreement, and has also entered into several collective agreements as aforestated with the second Union, whose Constitution covers, under Rule 3(a), the unionisable employees thereof. This rule reads as hereunder:-

“Rule 3 OBJECTS:

The objects for which the Union is established are as follows:-

(a)To secure complete organisation in the Union of allworkers in the employment of Tour Operators, Tour Agents, Petrol Filling and Service Stations, transportation of Fuel, Petrol and Oil, Driving Schools, Cyclemarts, Road and Air Transport,Workers manning Aerodromes, Airports and landing strips, Transport Hauliage, Balloon Safaris, Ferry Services, Freight Forwarders, Coach and Body Builders, Horticultural Exporters, General transporters, General Cargo at the Airports, Air Travel Agents, road Passengers Transport (Buses, Matatus, Taxis, Private Car Hire), Travel Agents and any other related activities e.g. Garages in the Republic of Kenya.

(b)…………………………………………………………

(c)…………………………………………………………

(d)…………………………………………………………

(e)………………………………………………………..”.

He accused the General Secretary of the first Union of interfering and meddling with the cordial relationship which existed for a long time between the second Union and the Company, and also for poaching its (second Union’s) members and distabilising its representation of the employees of the Company.

For the foregoing reasons, Mr. Owiti prayed that the demand by the first Union for recognition be rejected.

I now proceed to determine which of the two Unions is rightfully entitled to represent the interests of the unionisable employees of the Company. The second Union has had a valid recognition agreement since 1968, and also entered into several collective agreements with the Company until 1993, when the employees revoked their membership with it (second Union) and joined the first Union in 1994/95. Consequently, the first Union approached the Company for recognition but the latter refused. The first Union, therefore, reported a trade dispute to the Minister for Labour, who accepted, fully investigated and found that the first Union had recruited 30 out of 52, or 57%, unionisable employees as members of its Union; and in the circumstances, the Minister recommended that the Company accord formal recognition to the first Union.

It is not denied that the Company is to-date paying union dues to the first Union, and this means that it (Company) has in principle recognised the first Union. The second Union lost its representative character as a collective bargaining agent when it refused or neglected to represent theindustrial interests of the employees since 1993. Hence the Minister’s recommendation for the first Union’s recognition by the Company. It is, therefore, the first Union, namely, Kenya Game Hunting & Safaris Workers’ Union, which has the right to represent the employees of the Company. After all, the Company is to-date remitting union dues to the first Union.

In the light of the above discussion, I uphold the Minister’s findings and recommendation and award that the Company accord formal recognition to the first Union, namely, Kenya Game Hunting & Safaris Workers’ Union, as the sole, rightful and legitimate representative of its unionisable employees; and direct that the parties must sign a recognition agreement within two(2) months from the date of this award.

Both members of the Court concur with this decision.

DATED and delivered at Nairobi this 28th day of March, 2003.

Charles P. Chemmuttut,

JUDGE.