[2016] KEELRC 331 (KLR)
The court found that the existence of a recognition agreement between the claimant union and the respondent employer was undisputed and not under challenge. As such, the claimant union retained the right to represent its members and any other unionizable staff who pay agency fees, regardless of the current number of...
Source-derived case information.
- Citation
- [2016] KEELRC 331 (KLR)
- Parties
- Applicant: Transport Workers’ Union of Kenya; Respondent: Three Ways Shipping Services [K] Ltd.
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 263 of 2015
- Procedural Posture
- Cause / Ruling on Notice of Motion to Strike Out Suit
- Outcome
- notice of motion dismissed
- Judges
- AN Makau
- Legal Topics
- Trade Union Recognition, Collective Bargaining Agreements, Agency Fee, Union Membership Threshold
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transport Workers’ Union of Kenya
Applicant
Three Ways Shipping Services [K] Ltd.
Respondent
Procedural Posture
Cause / Ruling on Notice of Motion to Strike Out Suit
Legal Issues
- 1 Whether the claimant union lacked locus standi to file the suit for collective bargaining due to insufficient recruitment of unionizable staff.
- 2 Whether the existence of a recognition agreement precludes striking out the suit as an abuse of court process.
Ratio Decidendi
The court found that the existence of a recognition agreement between the claimant union and the respondent employer was undisputed and not under challenge. As such, the claimant union retained the right to represent its members and any other unionizable staff who pay agency fees, regardless of the current number of recruited members. The court held that the suit was properly before it, well-founded in law, and not an abuse of the court process. The respondent's motion to strike out or dismiss the suit for lack of majority recruitment was therefore without merit and dismissed.
Court Disposition
notice of motion dismissed
Orders
- The Notice of Motion dated 2.2.2016 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 263 OF 2015
TRANSPORT WORKERS’ UNION OF KENYA..............CLAIMANT
VERSUS
THREE WAYS SHIPPING SERVICES [K] LTD.….…RESPONDENT
RULING
Introduction
1. The Respondent has brought the Notice of Motion dated 2. 2.2016 seeking for an order to dismiss or strike out the Claimant’s Suit for being bad in Law and an abuse of the Court process. The Grounds upon which the Motion stands are that the Claimant has only recruited 22 out of 158 Unionizable staff and as such it lacks authority to represent the said workers for purposes of collective bargaining. The Motion is supported sworn by the Affidavit of Fredrick Opot on 2. 2.2016.
2. The Motion has not been opposed by the Claimant despite her Counsel being served with the same and hearing Notice as per the affidavits of service filed.
Analysis & Determination
3. After careful consideration of the Pleadings, Motion and Supporting Affidavit, it is clear that the parties herein have in force a Recognition Agreement for purposes of negotiating terms and conditions of service for all the unionizable staff of the Respondent. The issue for determination herein is whether the Suit is bad in Law and an abuse of the process of the Court.
4. The reason why the applicant believes that the Suit is bad in law and an abuse of Court process is that the Claimant has not recruited a simple majority of her Unionizable Staff. According to her, only 22 out of 158 unionisable workforce have one members of the Claimant and as such she lacks the legal mandate under section 54 of the Labour Relations Act to represent the Respondent’s unionisable staff for purposes of collective bargaining.
5. After careful considerations of the Claimant’s Pleadings, I do not agree with the applicant that the Suit is bad in Law or otherwise an abuse of the process of the Court. On the contrary, I find that the Suit is properly drafted and well founded in Law. It has not been disputed that the Parties herein have a Recognition Agreement in force. That the said Agreement is not the subject of challenge herein or elsewhere. Consequently, I see nothing wrong in the Claimant filing this Suit to agitate for CBA in favour of her members and any other unionizable staff who will pay Agency fee under the law. It is trite law that once a Trade Union is given recognition by an Employer, the Union so recognized continues to agitate for the interests of her members in the establishment until the said recognition is extinguished. I therefore see no merits in the Motion.
Disposition
6. For the reasons stated above, the Notice of Motion dated 2. 2.2016 is dismissed. No order as to costs.
Dated, Signed and delivered this 18th day of November 2016.
O. N. MAKAU
Judge