[2007] KEELRC 27 (KLR)

KENYA QUARRY & MINE WORKERS’ UNION ……...............……….Claimants

v.

QUALITY QUARRIES LTD. …………………………………………Respondents.

Issue in Dispute:-

“Refusal to recognize the Union.”

Mr. Josephat Nyoro for the Claimants (hereinafter called the Union).

Mr. Charles K. Chelimo, Administration Manager, for the Respondents (hereinafter called the Company).

A W A R D.

This dispute was referred to the Court for consideration and determination by the Minister for Labour on 28th June, 2006, in accordance with the provisions of Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya, (which is hereinafter referred to as the Act); and 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 29th June, 2006. The dispute was then listed for mention on 0th July, 2006 to fix a suitable date for hearing, and the parties were notified to attend. On this occasion, Messrs. Nyoro and Chelimo, who appeared for the parties respectively, were directed to submit or file their respective memoranda or statements on or before 8th and 23rd August, 2006, and the dispute was fixed for hearing on 13th September, 2006. Mr. Nyoro belatedly submitted his memorandum on 21st August, 2006, and in the circumstances, Mr. Chelimo could not file his reply statement as directed hereinabove. On 13th September, 2006, the matter was rescheduled for hearing on 18th October, 2006, and meanwhile Mr. Chelimo was ordered to file his reply statement on or before 21st September, 2006. He did so on 22nd September, 2006, and the case was heard as aforestated, i.e on 18th October, 2006.

The Union is registered as such under Section 11 of the Trade Union Act, Cap. 233, Laws of Kenya; and under Rule 3 (a) of its constitution, membership thereof is open to all employees engaged in quarrying and mining activities, e.g. extraction, dressing and beneficiating of natural minerals, coal, ore, crude petroleum, pale, furs, including supplementary activities such as crushing, screening washing, cleaning, grading, milling, floating, melting, pelling, topping, concrete blocks, bricks, tiles, sand collecting, clayworks, and lime, e.t.c., provided that such employees are of apparent age of eighteen years (see App.I). On the other hand, the Company whose headquarters is situated in Nairobi but its operations are based at Mlolongo within Mavoko Municipality of Machakos District, was incorporated in Kenya under the Companies Act, Cap. 486, Laws of Kenya, and commended business in 2001.

In August, 2002, the Union sought recognition from the Company on

the following grounds:-

(a) that it had recruited 14 out of 18, or 77%, unionisable

employees, as its members;

(b) that there was no rival union claiming recognition or

representation, and

(c) that it was the right and appropriate union to represent

the interests of unionisable employees in the Company’s

establishment.

Since the recruitment was a continuous process, the Union recuited a further 16, bringing the total to 30 out of 36, or 83. 3%, unionisable employees as its members, between May 2003 and May 2004, but the Company denied it recognition. The Union requested the Registrar of Trade Unions to intervene, and by his letter, dated 24th July, 2002, the Registrar advised the Managing Director of the Company to comply with the provisions of Section 49(1) of the Act. The management of the Company effected the check-off system by remitting the union dues without formally recognizing the Union. On 1st September, 2004, the Union reported a formal trade dispute to the Minister for Labour pursuant to Section 4 of the Act. The Minister took cognizance of and accepted the dispute; and, in accordance with Section 7 of the Act, appointed Mr. J.N. Kinyua of Nyayo House to act as the Investigator. Consequently, the Minister released his report to the parties on 16th February, 2006 wherein he found and recommended as follows:-

“FINDINGS.

……… Kenya Quarry and Mine Workers Union is indeed the right union to represent the employees industrial interest at the company.

………… by September 2002 the union had managed to recruit fourteen (14) out of total 18 unionisable employees whose union dues deductions are being remitted by the employer to the union. The management has however for no apparent reason declined to grant union recognition despite having recruited a simple majority of 77% of the total unionisable staff.

…….. finally… there is no rival union claiming to represent employees of the company. Having fulfilled the basic requirement for recognition, its only legal and fair to grant the union recognition to pave way for Collective Bargaining process.

RECOMMENDATION.

…….. I recommend that the management accord the union recognition in order to embark on the collective process.”

The Minister finally appealed to the parties to accept the recommendation as a basis of settlement of the dispute. The Union accepted the recommendation but it would appear that the Company rejected it. The Union, therefore, forwarded the Notification of Dispute, Form ‘A’, for the management of the Company to countersign it to enable the Court adjudicate the matter. The Company declined to countersign both the model recognition agreement and the Notification of Dispute, Form ‘A’; and accordingly, the Minister invoked the provisions of Section 8 of the Act as stated at the outset of this case (see Apps. 2 of 16).

Mr. Nyoro finally submitted that the Company has been unco-operative and has persistently disregarded the core labour standards on the freedom of association and ILO Conventions Nos. 87 and 98, and also Section 80 (1) of the Constitution of Kenya.

In the circumstances, Mr. Nyoro prayed that the Company accord formal recognition to the Union.

In reply, Mr. Chelimo submitted that since its inception, the Company has experienced a lot of challenges in terms of operational capacity, e.g., the capital investment required in this type of business is quite enormous, and due to financial constraints the shareholders have had to make do with aging machinery for a start in the hope that the Company would generate its own funds to be used in acquiring new equipment. This, he said, became the most costly mistake because the aging equipment kept breaking down thereby causing a ripple effect on the Company’s performance; and as a result, the Company incurred or posted losses since its inception (see Ann.I).

As regards membership of the Union, Mr. Chelimo averred that from 2002 to 2006, the number fluctuated between 12 and 3 members due to frequent machine breakdowns, and it has been very difficult for the Company to maintain a steady workforce. He pointed out that staff turnover has been quite high because of temporary closures; and hence, the need to engage them on casual basis. In spite of the foregoing, however, the Company has continued to remunerate or pay its employees in terms of the minimum wage guidelines issued annually by the Government, and the wages correspond with what other quarries pay to their employees.

On the status of the Company, Mr. Chelimo submitted that the problems continued to escalate over time, resulting in its closure on 20th May, 2006 and the shareholders are yet to decide on the next course of action. Meanwhile, he stated, there are a few staff doing debt recoveries as well as looking after the Company properties.

In summary, Mr. Chelimo submitted that:-

(a) the number of unionisable employees, who have signed up with the Union and whose deductions the Company remits every month has, remained below the statutory minimum of 51% of total unionisable employees;

(b) the quarry has not been in operation for the past four months and it may take some time for it to be fully operational again because of financial constraints, and

(c) at no time has the Company denied the Union access to the employees at the quarry, in that, it has on several occasions facilitated the Union to carry out its union activities of recruiting union members and selecting its representatives, and also remitting the union deductions to the Union.

Accordingly, Mr. Chelimo prayed that the recognition of the Union by the Company be deferred to enable it (Company) to concentrate on reviving its business.

This is a clear case in which the Company has procrastinated to accord formal recognition to the Union on account of its internal managerial problems and financial constraints. No doubt, the Union has satisfied the three grounds set out at page 4 hereinabove, and the Minister has found that the Union had achieved more than a simple majority of the unionisable employees in the Company’s establishment, and recommended that the Company accord formal recognition to the Union. One, therefore, wonders why the Company is reluctant to formally recognize the Union and yet it is complying with the check-off system.

In the light of the foregoing brief observations, we are satisfied that the Union has fulfilled the requirements under Section 5(2) of the Act for recognition by the Company. We, therefore, uphold the Minister’s findings and recommendation, and award that the Company accord forthwith formal recognition to the Union as the sole and appropriate representative of its unionisable employees. We also order that the parties should sign a formal recognition agreement within two(2) months from the date of this award for purposes of collective bargaining.

DATED and delivered at Nairobi this 20th day of March, 2007.

Charles P. Chemmuttut, MBS.,?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /

JUDGE.

A.O. Wafula,J.M. Kilonzo,

MEMBER.MEMBER.