[2023] KEELRC 2872 (KLR)

Kenya Union of Commercial Food and Allied Workers v Satnam Enterprises Hardware Limited (Cause E005 of 2023) [2023] KEELRC 2872 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2872 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Cause E005 of 2023

MA Onyango, J

November 10, 2023

Between

Kenya Union of Commercial Food and Allied Workers

Claimant

and

Satnam Enterprises Hardware Limited

Respondent

Judgment

1. The Claimant is a trade union registered under the Labour Relations Act to represent employees in the commercial sector as more specifically stated in the union’s registered constitution. The Respondent is a registered business operating a hardware shop in Eldoret. The Claimant is therefore the appropriate union for the employees of the Respondent.

2. It is the Claimant’s case that it approached the employees of the Respondent on various dates between October 2020 and August 2022 and recruited 8 members out of a possible 10 unionisable employees who voluntarily signed check off forms. That this translates to about 98% of the Respondent’s unionisable employees.

3. The Claimant contends that it wrote to the Respondent forwarding the check off forms and a standard recognition agreement for purposes of effecting trade union deductions and signing the recognition agreement but the respondent refused.

4. It is further the Claimant’s averment that the Respondent also refused to deduct and remit union dues.

5. By a Statement of Claim dated 14th February 2023 and filed in court on 21st February 2023, the Claimant seeks the following orders against the Respondent:i.That the honorable court award in favor of the Claimant union and order the Respondent to recognize the Claimant union with immediate effect,ii.The Respondent to deduct and remit union dues,iii.That union arrears from April 2022 be remitted by the Respondent from his own account plus the interest accrued,iv.That parties do engage in a collective bargaining within 30 days upon signing of the Recognition Agreement,v.Cost of the suit is awarded to the Claimant,vi.Any other remedy that the honorable court may deem fit.

6. The Claimant framed the issues in dispute to be the refusal by the Respondent to sign a Recognition Agreement and the Respondent’s failure to deduct and remit trade union dues.

7. Contemporaneously with the claim, the Claimant filed a Notice of Motion brought under Section 12 of the Employment and Labour Relations Court Act and section 87 of the Employment Act seeking the following orders:a.That this Application be certified urgent, and same be heard ex parte in the first instance.b.That service of this Application upon Respondent be dispensed withc.That the claim filed herein be certified urgent and be heard on priority basis.d.That this Honourable court do issue interim orders restraining the Respondent form victimizing, intimidating, coercing, harassing, disciplining or terminating the services of the Claimant/Applicant members who contribute through the check-off system and whose names appear on the check-off forms on account of their union, pending hearing and determination of the main suit.

8. The Respondent filed a replying affidavit and a response to the Statement of Claim on 10th March 2023 denying the allegations of the Claimant.

9. The application and the suit were disposed of together by way of written submissions.

Claimant’s submissions 10. The Claimant in its submissions filed in court on 8th September 2023 framed the issues for determination to be:i.Whether the Respondent should recognize the Claimant union,ii.Whether the Respondent should deduct and remit union dues.

11. On the first issue, it was submitted that the Respondent’s employees’ rights of freedom of association and the right to join a trade union is guaranteed under Articles 36 and 41 of the Constitution and that section 54 of the Labour Relations Act is very clear on the issue of recognition if a trade union that has attained a simple majority of the unionisable employees of an employer.

12. The Claimant submitted that it recruited 8 employees out of a possible 10 unionisable employees who voluntarily enrolled into the Claimant’s membership. That this translate to 98% of the Respondent’s employees.

13. According to the Claimant, the employees were forced by the Respondent to sign the affidavits annexed to the Respondent’s Replying Affidavit with threats that their employment would be terminated should they refuse to sign. The Claimant submits that this is an action which this court should declare as unlawful and unfair labour practices.

14. On the second issue the Claimant submitted that it recruited members from the Respondent’s workforce and forwarded the check-off forms to the Respondent for purposes of deduction and remittance of union dues.

15. It is the Claimant’s case that payment of union dues by members is an obligation that goes hand in hand with the right to join a trade union. That section 48(3) of the Labour Relations Act is couched in mandatory terms and the Respondent is therefore under an obligation to effect deduction of union dues from the Claimant’s members and remit the same to the Claimant’s designated bank account.

Respondent’s submissions 16. The Respondent filed its submissions on 15th September 2023 and identified the issues for determination to be:i.Whether the Respondent ought to recognize the Claimant unionii.Whether the Respondent should deduct and remit union duesiii.What orders should issue.

17. On the 1st issue the Respondent submitted that the Claimant lured the Respondent’s employees into signing blank documents which are now used by the Claimant. The Respondent further submitted that the Claimant did not notify the Respondent that its employees had joined the union for purposes of trade union representation. It was the Respondent’s further submission that the Claimant has not demonstrated to this court that indeed check off forms and a standard Recognition Agreement were served upon the Respondent.

18. On the second issue, the Respondent submitted that the question of deduction of union dues and that of recognition of a trade union by an employer are separate in law, relying on the decision in KUDHEIHA vs British Army Training Unit Kenya (2015) eKLR.

19. On the third issue the Respondent submitted that the Claimant had not met the requirements of section 54 of the Labour Relations Act and prayed that the court to dismisses the Claimant’s claim with costs.

Determination 20. From the pleadings and the submissions before court the issues for determination are whether the Respondent should be directed to recognize the Claimant and whether the Respondent should be directed to deduct and remit union dues.

21. Article 36 (1) of the Constitution of Kenya provides;“Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”

22. Article 41 of the Constitution further provides that every employee has a right to form, join or participate in the activities and programmes of a trade union and that Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

23. Section 4 of the Labour Relations Act echoes the provisions of the Constitution and provides that:4. (1)Every employee has the right to –(a)participate in forming a trade union of federation of trade unions;(b)join a trade union; or(c)leave a trade union.(2)Every member of a trade union has the right, subject to the constitution of that trade union to –(a)participate in its lawful activities;(b)participate in the election of its officials and representatives; (c) stand for election and be eligible for appointment as an officer or official and, if elected or appointed, to hold office; and(c)stand for election or seek for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in accordance with the provisions of this Act or a collective agreement.(3)Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation to –(a)participate in its lawful activities;(b)participate in the election of any of its office bearers or officials, and(c)stand for election or seek for appointment as an office bearer or official and, if elected or appointed, to hold office.

24. Section 5 provides for protection of employees as follows:5. (1)No person shall discriminate against an employee or any person seeking employment for exercising any right conferred in this Act.

25. Section 54(1) of the Labour Relations Act further provides that:“An employer, including an employee in the public sector, shall recognize a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionizable employees.”

26. From the above provisions of the law, it is clear that recognition for purposes of collective bargaining is mandatory where a trade union has recruited a simple majority of unionisable employees in the organization into its membership.

27. In the case of Kenya Hotels and Allied Workers Union v Attorney General & 6 others [2015] eKLR the Court of Appeal held:“...For the Claimant to qualify for recognition by the 2nd Respondent, it must prove that it has achieved a simple majority of either 50% of the 2nd Respondent’s member organisations or of the employees of the 2nd Respondent’s members. The Court cannot hand the Claimant recognition without it proving that it has achieved a simple majority as this would contravene both Article 41 of the Constitution and Section 54 of the Act.”

28. In the instant case, the Respondent has not disputed that the Claimant recruited 8 out of a possible 10 unionisable employees of the Respondent. This therefore means that the Claimant attained the required threshold of the simple majority and that the Respondent is obligated to recognize the Claimant for purposes of Collective Bargaining as stipulated by Section 54(1) of the Labour Relations Act, 2007.

29. The allegation by the Respondent that the Claimant coerced the Respondent’s employees into signing blank documents was not proved. Further, in the affidavits of Moris Otunga, Julius Kiprotich Kosgei and Meshak Mburu Mwashi, they all admit that they were recruited into membership of the Claimant. None of them states that they have resigned after being recruited. The averments in the affidavits seem to be contradictory. The affidavits also contain matters that are not in the knowledge of the affiants without disclosing sources f the information. The matters deponed in the affidavits are also not relevant to the issues in dispute.

30. Further, the affidavits are drawn by the advocates of the Respondent and the information therein is not convincing evidence of employees who did not want to join membership of the Respondent. It is further instructive that section 48 of the Labour Relations Act does not give the employer any role of supervising recruitment of employees into membership of a trade union.

31. On the evidence on record, I find that the claimant has proved that it has recruited a simple majority of the Respondent’s unionisable employees into its membership and the prayers in the Statement of Claim are therefore merited. I therefore enter judgement in favour of the Claimant against the Respondent in the following terms:a.The Respondent is hereby ordered to recognize the Claimant.b.The Respondent is hereby ordered to deduct and remit union dues to the Claimant in accordance with the check off forms received from the Claimant.c.The parties to engage in collective bargaining in the manner provided for by law.d.There shall be no order for costs.e.The Prayer that union arrears from April 2022 be remitted by the Respondent from its own account is declined.Orders accordingly.

DATED, DELIVERED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER, 2023. M. ONYANGOJUDGE