[2013] KEELRC 649 (KLR)
The court found that the Claimant Union did not controvert the Respondent's evidence that 61 employees had resigned from the Union, thereby losing the simple majority required for recognition under Section 54(1) of the Labour Relations Act, 2007. The court also noted that the issue of recognition had already been...
Source-derived case information.
- Citation
- [2013] KEELRC 649 (KLR)
- Parties
- Applicant: Kenya Union of Entertainment and Music Industry Employees; Respondent: Sports Stadia Management Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 625 of 2013
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Trade Union Recognition, Collective Bargaining Agreements, Agency Fees, Union Membership Majority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Entertainment and Music Industry Employees
Applicant
Sports Stadia Management Board
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Claimant Union is entitled to recognition for purposes of collective bargaining with the Respondent.
- 2 Whether the Respondent should be compelled to sign the Collective Bargaining Agreement (CBA) for 2011/2013.
- 3 Whether the Claimant is entitled to agency fees under the Ministerial Order.
Ratio Decidendi
The court found that the Claimant Union did not controvert the Respondent's evidence that 61 employees had resigned from the Union, thereby losing the simple majority required for recognition under Section 54(1) of the Labour Relations Act, 2007. The court also noted that the issue of recognition had already been conclusively determined in a previous case (Cause No 1390 of 2011) between the same parties, with no evidence of a change in the Union's membership status. Consequently, there was no basis to compel the Respondent to sign the CBA. Additionally, the claim for agency fees failed because such fees are contingent on the existence of a valid CBA, which was absent in this case.
Court Disposition
application dismissed
Orders
- The Claimant's application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLICOF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 625 OF 2013
KENYA UNION OF ENTERTAINMENT AND
MUSIC INDUSTRY EMPLOYEES........................CLAIMANT/APPLICANT
VS
SPORTS STADIA MANAGEMENT BOARD.........................RESPONDENT
RULING
Introduction
1. On 6th May 2013, the Claimant/Applicant filed a Memorandum of Claimant together with a Notice of Motion under Certificate of Urgency seeking orders that the Respondent be compelled to sign a Collective Bargaining Agreement (CBA) for the period 2011/2013.
2. The Notice of Motion was supported by the affidavit of Mucuha Job Wainaina, the Claimant/Applicant's Secretary General. Mr Mucuha deponed that the parties had agreed on all outstanding issues in the CBA but the Respondent had declined to sign the said CBA.
3. When the matter came before me on 7th May 2013, I certified it urgent and directed the Claimant to serve the Respondent. The Respondent filed a Replying Affidavit on 29th May 2013 and the matter was heard inter partes on 31st May 2013.
The Claimant's Submissions
4. Mr. Mucuha submitted that the parties had a Recognition Agreement in place and had concluded a Collective Bargaining Agreement (CBA) before a conciliator but the Respondent had declined to sign it. The CBA was due to expire in September 2013.
5. Mr. Mucuha further submitted that pursuant to a Ministerial Order, the Claimant was entitled to agency fees.
The Respondent's Submissions
6. Mr. Mwaniki for the Respondent told the Court that the errors in the Replying Affidavit, which were inadvertent, did not affect the core of the Respondent's response. He submitted that 61 of the Respondent's employees had resigned from the Claimant Union, thus undermining the simple majority status of the Union. The Respondent had written to the Union on this development. Counsel further submitted that the issue of recognition had also been canvassed in Cause No 1390 of 2011.
Ruling by the Court
7. The main issue for determination in this application has to do with recognition of the Claimant Union for purposes of collective bargaining with the Respondent.
8. Section 54(1) of the Labour Relations Act, 2007 provides that:
An employer, including an employer in the public sector shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
9. The Respondent submitted that 61 of its employees had resigned from the Claimant Union and that consequently, the Union no longer represented a simple majority of the Respondent's unionisable employees. The Respondent attached the resignation letters to the Replying Affidavit sworn by Gabriel Komora on 28th May 2013. The Respondent also produced its letter dated 29th July 2011 notifying the Claimant Union of the resignations.
10. The Claimant did not controvert the Respondent’s assertion in this regard and did not render any evidence as to the number of the Respondent's unionisable employees who were still its members. The Court had occasion to peruse the ruling in Cause Number 1390 of 2011 between the same parties and found that the issue of recognition of the Claimant was dealt with conclusively.
11. There is no evidence that the Claimant's status in terms of number of members from the Respondent's unionisable establishment has changed. I therefore find no basis on which the Respondent could be directed to sign the CBA.
12. In its submissions, the Claimant also sought to stake a claim for agency fees as per Ministerial Order dated 26th July 2011. Agency fees is premised on the fact that unionisable employees who are not members of a trade union are benefiting from a CBA negotiated by the trade union. Agency fees therefore hangs on an existing CBA. It cannot be levied where there is no CBA as in the current case. In the circumstances the claim for agency fees also fails.
In the final analysis, the Claimant's application is dismissed with no order for costs.
DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 27TH DAY OF JUNE 2013
LINNET NDOLO
JUDGE
In the Presence of:
…........................................................................................................................Claimant
…........................................................................................................................Respondent