[2017] KEELRC 925 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI

CAUSE NO. 222 OF 2017

KENYA PRIVATE UNIVERSITY WORKERS UNION....CLAIMANT

VERSUS

KENYA METHODIST UNIVERSITY.........................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday, 21st July, 2017)

RULING

The claimant trade union filed the memorandum of claim on 20. 06. 2017 challenging the redundancy action against its members by the respondent. The claimant also filed the notice of motion seeking temporary orders about the redundancy action by the respondent.

The respondent has opposed the suit and the application by way of the said notice of motion by filing a preliminary objection on 22. 06. 2017 through Patricks Law Associates. The respondent’s case is that the suit and the application be dismissed with costs upon the grounds that the claimants lack the locus standi to institute a suit against the respondent on behalf of its members as there is no recognition agreement between the parties as provided in section 54(3) of the Labour Relations Act, 2007. The respondent relies upon Communication Workers’ Union –Versus- Safaricom Limited [2014]eKLR where Mbaru J held, thus, “.... Without recognition agreement by an employer, a trade union, even where registered as such, becomes a bystander waiting by the roadside for instructions. Similar to a lawyer though having a first class honours lacks a certificate of practice as an advocate of the High Court of Kenya. Such a lawyer though well versed in law and well suited to give legal advice to various citizens lacks the capacity to stand in court as an advocate representing a client.”

Further, the respondent relies on Kenya Union of Employees of Voluntary and Charitable Organisations (KUEVACO) –Versus- Board of Governors & Maina Wanjigi Secondary School [2015]eKLR where Mbaru J held that the evidence of lack of a recognition agreement and collective bargaining agreement meant the claimants lacked standing before the court.

The respondent has submitted as follows:

a. Under section 62 of the Labour Relations Act, 2007 a trade dispute may be reported by a trade union and conclusion or existence of a recognition agreement or collective agreement between the union and the employer of the members of the union would not be a bar to reporting such a dispute.

b. As per the holding in the ruling in Kenya Shipping, Clearing and Warehouses Workers Union –Versus- Africair Management & Logistics Limited [2016]eKLR, section 54 of the Labour Relations Act, 2007 deals with conclusion of recognition agreements and provides that a trade union which recruits a simple majority of employees eligible to join the union is entitled to be recognised by the relevant employer by concluding the recognition agreement. Further the section has nothing to do with the standing of a trade union in a court in a suit for its members; and as held therein, recognition has nothing to do with the trade union’s locus standi in a court of law because it is not the event which confers the trade union with the authority to file claims in court on behalf of its members and represent its members in prosecution of the claims.

The court has considered the opposing submissions and returns that the recognition of a trade union by an employer is not a precondition to the trade union’s standing in court for the purpose of a suit with respect to employees of such employer who are members of the trade union.

As submitted for the claimant, under section 62 of the Labour Relations Act, 2007 a trade dispute may be reported by a trade union and conclusion or existence of a recognition agreement or collective agreement between the union and the employer of the members of the union would not be a bar to reporting such a dispute. If such reported dispute is not resolved, as it happens like in disputes seeking recognition or conclusion of a collective agreement or like in the present case, the trade union is entitled to refer the dispute to court and its standing is granted as per section 73 of the Act as read with rule 5 of the Employment and Labour Relations Court Rules, 2016. The court says that it is clear that in such suits by the trade union where there is no collective agreement between the trade union and the employer, the rights and obligations of the employer and employee would be determined based on the individual employee’s contract of service and the relevant statutory provisions and the employer’s prevailing human resource policies.

While making that finding the court considers that under section 22 of the Employment and Labour Relations Court Act, 2011, a trade union is entitled to represent its members before the court just like advocates would represent litigants in court. In the present case the union is the claimant as a party and not a representative of its members being the respondent’s employees.

The court returns that the present suit is clearly a referral, by the claimant, to the court, of an unresolved trade dispute as per section 73 of the Labour Relations Act, 2007 as read with rule 5 of the Employment and Labour Relations Court Rules, 2016.

The claimant clearly has the necessary standing.

It is clear that a certificate by the conciliator has been issued in accordance with the provisions of the Act and the claimant was entitled to file the referral by way of the present suit.

Accordingly the preliminary objection filed on 22. 06. 2017 is hereby dismissed with costs and the parties are now invited to take directions on further steps in the suit.

Signed, datedanddeliveredin court atNyerithisFriday, 21st July, 2017.

BYRAM ONGAYA

JUDGE