[2003] KEELRC 19 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

M.A. Warrakah & M.M.M. Jahazi, Members.)

CAUSE NO.8 OF 2003.

KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONALINSTITUTIONS, HOSPITALS & ALLIED WORKERS.......Claimants.

v.

KENYA ASSOCIATION OF HOTELKEEPERS& CATERERERS..........................................................................Respondents.

and

KENYA HOTELS & ALLIED WORKERS’ UNION............................................................................................Interested Party.

Issue in Dispute:-

“Terms and conditions of service – Twenty Seven(27) Issues”.

Court’s Version:-

“Refusal by the Kenya Association of Hotelkeepersand Caterers to negotiate a collective

bargainingagreement with the first Union”.

G. Orao-Obura, Advocate, of M/S. Obura & Co., Advocates, for the Claimants (hereinafter called the first Union).

J.N. Namasake, Principal Executive Officer, F.K.E., for the Respondents(hereinafter called the Association).

Jared A. Onyari, Secretary General, for the Interested Party (hereinafter called the second Union).

A W A R D.

The Minister for Labour referred this dispute to the Court for consideration and determination on 18th March, 2003, under powers conferred upon him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificate from the Labour Commissioner under Section 14(9)(e) of the Act, were received by the Court on 20th March, 2003. The learned counsel, Mr. Orao-Obura, for the first Union submitted his memorandum on 22nd May, 2003, and Mr. Namasake for the Association filed his reply statement on 30th June 2003, while Mr. Onyari for the second Union presented his re-joinder on 4th July, 2003. However, Mr. Namasake submitted a substituted reply statement on 7th July 2003; and the dispute was heard on 27th August, 2003, and further hearing and final submissions were made on 3rd October, 2003.

It is stated that the Association was established in 1944 to represent the interests of hotels, restaurants, lodges, country and golf clubs, caterers and fast food providers, particularly in the maintenance of sound industrial relations between its members and their employees. The Association entered into a valid recognition agreement with the first Union in 1969, and the parties have also negotiated and concluded several collective agreements to regulate the terms and conditions of employment of the unionisable employees of its members, the latest of which expired on 31st December, 2000. Clause I of the recognition agreement provides, inter alia,as follows:-

“The Association …… accords full recognition to the Union provided it is and for so long as it remains reasonably representative of the workers employed by members of the Association. The Union shall be the sole body representing such employees who are bona fide (in good faith) members of the Union”.

On 5th February, 2002, the first Union forwarded its proposals to the Association for negotiation of a collective agreement, but there was no response from the latter. The first Union sent two reminders, dated 5th April and 16th May, 2002, but the Association declined to negotiate. On 11th July, 2002 the first Union reported a formal trade dispute to the Minister for Labour and Human Resource Development in accordance with Section 4 of the Act. The Minister accepted the dispute and appointed Mr. S.M. Mbae of Nyayo House Labour Office to act as the Conciliator; but during their conciliation meeting held on 19th September, 2002, the parties were unable to agree. The Association also refused or declined to sign the Notification of Dispute, Form ‘A’, for adjudication and determination of this dispute by the Court. Under the circumstances, the Minister invoked Section 8 of the Act as stated at the outset of this award (see first Union Apps. I to 9).

Meanwhile, the second Union was registered as such on 3rd November, 1999, through a Court Order arising from Civil Appeal No.10 of 1999, to specifically represent “all employees engaged in Hotels, Restaurants, Casinos, Catering and similar establishments providing lodging, food, beverages or both and any further categories of related establishment providing tourism services, clubs, guest houses, camping sites, golf clubs and all other institutions and projects associated with them provided that such employees are of apparent age of eighteen years” (see second Union Anns. I to 4). Consequently, the second Union embarked on a recruitment drive of union members in all the establishments under the purview of the Association; and on attaining a simple majority of members, i.e. 51%, of the unionisable employees, the second Union approached the Association for recognition, but it was denied. Accordingly, the second Union reported several trade disputes on recognition to the Minister for Labour and Human Resource Development, but the same are to-date still being processed through the normal pre-Industrial Court procedures (see second Union, Anns. 5 to 14).

In a nutshell, Mr. Orao-Obura submitted that the first Union and the Association should have by now negotiated two collective agreements for the period 1st January, 2001 to 31st December, 2002 and 1st January 2003 to 31st December 2004, and in the absence of these agreements, the employees have not been compensated for four consecutive years. In the circumstances, he said, the members of the Association have exploited the rivalry between the two Unions, and yet the second Union has no recognition agreement with the Association. Accordingly, Mr. Orao-Obura prayed that the Association be ordered to forthwith negotiate new terms and conditions of employment for the employees of its members.

Mr. Namasake for the Association submitted that the first Union lost its representative capacity when the second Union was registered as stated hereinabove, and the two unions engaged in a bitter jurisdictional dispute. The matter was referred to a Demarcation Committee, but unfortunately it did not resolve the issue as to which union would represent the employees of the Association’s members. On 30th May, 2002, a joint consultative meeting between the two unions and the Association was held with a view to finding a lasting solution, without compromising industrial peace, and a memorandum of understanding was reached, but the two unions disowned it.This, he said, jeopardized any negotiations with either union and heightened fears of the Association’s members regarding the credibility of such negotiations. The Association appealed to the Ministry of Labour and Human Resource Development to intervene and resolve the matter, and to ensure that when new terms and conditions of service are concluded, industrial peace will prevail. Mr. Namasake submitted further that the Ministry’s demarcation report was unhelpful because it recommended that if the second Union recruited a majority in any hotel within the Association, then it should negotiate a separate collective agreement with that hotel, but the Association would like to negotiate one collective agreement for its members with only one appropriate union. He averred that in some cases the employees are hostile to the first Union and any terms and conditions of service negotiated by it will not be acceptable to them. He pointed out that neither union has the mandatory 51% simple majority of members to merit recognition by the Association, otherwise the latter is willing and ready to negotiate new terms and conditions of service for its members’ employees. In any case, the Association has advised its members to increase, which they did, the salaries of the employees while the issue of negotiation is being addressed.

According to Mr. Namasake, Clause I of the recognition agreement between the first Union and the Association would mean that the former can only represent its members and not all the unionisable employees engaged in the establishments of the Association’s members. Therefore, Mr. Namasake urged the Court to make an order which would give only one union an exclusive right to negotiate with the Association, on behalf of its members, in the spirit of the Industrial Relations Charter of “one union one industry”; or, in the alternative, and after a survey by the Ministry of Labour and Human Resource Development, the Court should give an equivocal order as to which union should negotiate with the Association in accordance with the provisions of the Act and the Industrial Relations Charter.

In his brief submission, Mr. Onyari for the second Union concurred fully with the submissions advanced by Mr. Namasake, and strongly maintained that the first Union has indeed lost its representative capacity in this sector because majority of the employees have revoked their membership with it and joined the second Union, which is a specific union that was registered to cater for the interests of the employees in the hotel industry. As such, its (first Union’s) insistence to continue representing the unionisable employees in this industry is a threat to industrial peace and harmony. In the circumstances, Mr. Onyari prayed that this dispute be rejected, and the Association be directed to recognise and negotiate, on behalf of its member, with the second Union as the appropriate union to represent the interests of the unionisable employees in this sector.

Admittedly, the Association has not refused to negotiate with either union on terms and conditions of service of its members’ employees, but Mr. Namasake has urged the Court to determine which one of the two unions should enter into negotiation with the Association. Therefore, the short question that arises for determination is: which one of the two unions is entitled to negotiate with the Association, on behalf of its members. The first Union has a valid recognition agreement with the Association which was entered into in 1969, while the second Union has none, but it alleges that it has recruited most or majority of the unionisable employees as its members. The intention of the Legislature in enacting the Act, i.e. Trade Disputes Act, Cap.234, Laws of Kenya, was to completely merge the identity of the individual employees into the trade unions, which are for all intents and purposes “collective bargaining agents”. Thus, in order to strengthen the trade unions, the Legislature took away the right of an individual employee and entrusted the same to the trade unions whose responsibilities are, inter alia, to:-

(a)undertake the collective bargaining with the employer or group of employers on matters connected with the employment, non-employment and the terms and conditions of employment;

(b)represent all or any of the employees in any proceedings, and

(c)give notice of, and declare, a strike in accordance with the provisions of the Act, e.t.c.

The Act was, therefore, promulgated to regulate the relations between the employers and the employees, through their respective trade unions, and the avoidance and settlement of any differences or disputes arising between them; and the Industrial Court was established under Section 14 of the said Act to adjudicate and determine disputes relating to the rights of the employers and the employees and its jurisdiction is exclusive. Therefore, the purpose of the Act, the functions of the Industrial Court and the nature of the disputes referred to it, all point to the Act being a special law relating to a special class of persons for the investigation and settlement of industrial or trade disputes and matters connected therewith; and the paramount object of the Act is to promote harmonious relationship and industrial peace between the employers and the employees, i.e. between capital and labour.

The two disputing unions are duly registered under Section II of the Trade Unions Act, Cap.233, Laws of Kenya, but as stated hereinabove, the first Union has a valid recognition agreement with the Association, while the second Union has none, although it alleges that it has recruited most or majority of the unionisable employees as its members. The Industrial Relations Charter envisages one and only one trade union, or a collective bargaining agent, in an establishment or a group of establishments, and guarantees a right to an employer or a group of employers, as in this case, that he or it shall deal with only one union, or a collective bargaining agent. I, therefore, agree with Mr. Namasake for the Association that more than one union, or a collective bargaining agent, in the establishments of each of the Association’s members will be prejudicial to their interests and legal rights. As to which of the two unions should represent the interests of the unionisable employees in the establishments of the Association’s members, I am persuaded in the circumstances that the first Union, i.e. the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, is for the time being the right and appropriate union to enter into negotiation with the Association for purposes of collective bargaining agreement. It has a valid recognition agreement, though Clause I thereof is badly worded, with the Association, and the parties have previously negotiated and concluded several collective agreements pertaining to the terms and conditions of service of the unionisable employees in this sector, while the second Union is still pursuing its case to gain recognition from the Association and/or its members. The latter union might have enrolled most or majority of the unionisable employees in this industry as its members, but this is not enough in a dispute like this at hand because the Act and the Industrial Relations Charter require or enjoin us to strictly observe the tenets of “industrial trade unionism” (see Cause No.86 of 1989 between Kenya Union of Entertainment & Music Industry Employees and Springfield Properties Ltd.). However, if and when the second Union will secure a simple majority of the unionisable employees of the Association’s members, either collectively or individually, then its representative capacity will be decided on its own circumstances and merits.

In the result, I AWARD and ORDER that the Association should negotiate forthwith with the first Union, i.e. the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, new terms and conditions of employment or service for the unionisable employees of its members.

The two Members of the Court who sat with me in this case were unable to furnish me with their opinion or advice.

DATED and delivered at Nairobi this 27th day of November, 2003.

Charles P. Chemmuttut,

JUDGE.