[2020] KEELRC 313 (KLR)
The court held that the claimant had not complied with the statutory requirement under section 49 of the Labour Relations Act, 2007, which mandates that a request must be made to the Minister for an order authorising the deduction of agency fees from non-union members benefiting from a collective bargaining...
Source-derived case information.
- Citation
- [2020] KEELRC 313 (KLR)
- Parties
- Applicant: Kenya Quarry and Mine Workers Union; Respondent: Kenya Builders & Concrete Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 250 of 2020
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed
- Judges
- B Ongaya
- Legal Topics
- Collective Bargaining Agreements, Agency Fees, Union Dues, Unionisable Employees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Quarry and Mine Workers Union
Applicant
Kenya Builders & Concrete Co. Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent is obligated to deduct and remit agency fees for non-union members benefiting from the CBA.
- 2 Whether the claimant complied with statutory requirements under section 49 of the Labour Relations Act for deduction of agency fees.
- 3 Whether the employees in question are unionisable under the relevant statutes and agreements.
Ratio Decidendi
The court held that the claimant had not complied with the statutory requirement under section 49 of the Labour Relations Act, 2007, which mandates that a request must be made to the Minister for an order authorising the deduction of agency fees from non-union members benefiting from a collective bargaining agreement. The claimant failed to demonstrate that such a request was made and that an order was obtained. Consequently, the respondent could not be compelled to deduct agency fees in the absence of the Minister's order. Furthermore, the court noted that clause 22 of the CBA must be interpreted in line with statutory requirements, meaning agency fees are only deductible upon compliance...
Court Disposition
suit dismissed
Orders
- The suit is dismissed.
- Each party to bear own costs of the suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 250 OF 2020
KENYA QUARRY AND MINE WORKERS UNION..............................CLAIMANT
- VERSUS -
KENYA BUILDERS & CONCRETE CO. LTD...................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 23rd October, 2020)
JUDGMENT
The memorandum of claim was filed through Wafula Musamia, National General Secretary. The claimant prays for judgment against the respondent for:
1) The respondent to remit agency fees of all employees who benefited from the collective bargaining agreement (CBA) of 2018-2020.
2) The respondent to honour the agreement signed and registered by the Employment and Labour Relations Court.
3) The respondent to pay costs of the suit plus interest.
The respondent relies on the replying affidavit of Jeremiah Nzioka filed on 09. 06. 2020 (through Okwach & Company Advocates) to oppose the application filed together with the memorandum of claim and seeking prayers similar to those in the memorandum of claim. The parties consented that the main suit be determined upon the material on record.
There is no dispute that parties are in a recognition agreement and a CBA.
The claimant’s case is as follows:
a) The last CBA expired on 31. 05. 2018.
b) On 06. 08. 2018 the claimant noted that for some non-members the respondent was not deducting agency fees.
c) On 04. 12. 2018 the respondent provided a list of employees who benefited from the CBA but were not union members. The claimant forwarded the list to the Minister for labour.
d) The matter went for conciliation, and the respondent replied that the matter was covered under clause 22 of the CBA.
e) The new CBA was registered in Court on 29. 01. 2020. Clause 22(a) provides that every member of this group shall operate the agency fees for those unionisable employees who are not members of the union but are benefiting from the CBA.
f) The CBA was signed between the claimant and the Concrete Quarry Owners Group of FKE of which the respondent is a member.
g) On that basis the claimant claims and prays for deduction of union dues.
The respondent’s case is as follows:
a) The prayers sought are contrary to labour statutes. Under section 48(1) of the Labour Relations Act, 2007 union dues which include agency fees are payable by members of the trade union.
b) The employees in issue are not unionisable. They are excluded from union membership by reason of Appendix C of the Industrial Charter. The 30 employees in issue form part of management of the respondent and cannot be unionisable. Their job description particularly places them in management.
Parties filed their respective submissions. The Court has considered all the material on record.
The main issue for determination is whether the claimant has established the case for the respondent to deduct agency fees as prayed for. Deduction of agency fees is governed by section 49 of the Labour Relations Act, 2007. The section requires the claimant to request the Minister to issue an order requiring the respondent to deduct agency fees from wages of each unionisable employee covered by the collective agreement who is not a member of the union. Agency fees will then be deductible from the employees named in the Minister’s notice within 30 days of receiving the Minister’s notice. The Court finds that the claimant has not shown that it requested for the Minister’s order and obtained the same. The Court returns that the claimant has not satisfied the statutory requirement for deduction of agency fees. For that reason alone, the suit must fail. While making that finding the Court considers that clause 22 of the CBA must be construed to mean that agency fees will be deductible but subject to compliance with section 49 of the Act.
Parties being in a continuing relationship, each will bear own costs of the suit.
In conclusion the suit is hereby dismissed with orders each party to bear own costs of the suit.
Signed, dated and delivered by the court at Nairobi by video-link this Friday 23rd October, 2020.
BYRAM ONGAYA
JUDGE