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ELRCAllowedCause No. 38 of 1999· [2002] KEELRC 9 (KLR)

KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v NATIONAL WATER CONSERVATION AND PIPELINE CORPORATION [2002] KEELRC 9 (KLR)

Industrial Court of Kenya
8 November 2002
CCCharles P. ChemmuttutSMS.M. MaithyaAKA.K. Kerich
2,413 words in judgment
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The bottom line

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Kenya's Industrial Court ordered a state water corporation to recognise its workers' union after finding seconded civil servants count as employees who can join unions.

What this practically means

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Executive summary

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The Minister for Labour referred a dispute to the Industrial Court under Section 8 of the Trade Disputes Act, Cap. 234, concerning the Union's demand for a recognition agreement with the National Water Conservation and Pipeline Corporation. The Union claimed 1,636 members, comprising 861 seconded civil servants and 775 directly engaged employees, and prayed for formal recognition, asserting simple-majority membership, the absence of any rival union, and its status as the appropriate union. The Corporation resisted, contending that its workforce was 1,530, that 182 direct employees were non-unionisable management staff, and that seconded employees remained civil servants - lacking contracts with the Corporation, subject to the parent Ministry's disciplinary control, retiring under the civil service scheme, and paid and disciplined by the Ministry - and were therefore prohibited from joining a union, leaving the Union short of the 51% majority required by Section 5(2). The Corporation also challenged the reference as defective. The court considered the Minister's investigation report, which found 78.23% overall Union representation, and held that low-paid operational employees of a commercial public corporation - whether seconded or directly engaged - are not persons 'employed in the administration of the State' excluded by Section 3, since the Corporation acts as a separate commercial entity performing non-regal functions. Applying its earlier decision in Cause No. 76 of 2000 and the regal/non-regal functions distinction from the Australian authority, the court upheld the Minister's recommendation and ordered the Corporation to accord formal recognition to the Union forthwith and to sign a recognition agreement within two months. Both members agreed.

Key legal issues

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01

Whether the seconded employees are civil servants excluded from the Act

Holding

The seconded employees are employees of the Corporation and are not excluded; the Minister's recommendation was upheld.

Reasoning

The court applied its earlier reasoning that commercial public corporations are separate legal entities whose functions fall within the connotation of 'industry'. Drawing on Isaacs J.'s regal/non-regal functions distinction, it held that plumbers, fitters, clerks and similar workers connected with water supply cannot by any stretch be deemed employed in the administration of the State. Section 3 excludes only employees of the armed forces, police, prison service and National Youth Service, so seconded and directly employed staff are covered by the definition of 'employee' in Section 2.

p. 4
02

Whether the Union has met the statutory conditions for recognition

Holding

The conditions in Section 5(2) were satisfied: simple majority membership and no rival union.

Reasoning

The Minister's investigation found 628 of 861 seconded employees (about 72%) and 652 of 775 directly engaged employees (84.129%) were Union members, giving 78.23% overall representation, surpassing the 51% simple majority mark. There was no rival union contesting representation. The court accepted the Minister's findings and rejected the Corporation's contention that seconded employees were non-unionisable civil servants, and upheld the Minister's recommendation that a formal recognition agreement be signed.

p. 2

Legal principles established

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  • Seconded employees working for a state corporation, paid through its payroll and given corporation personal numbers, ceased to be civil servants and are employees of the Corporation, and low-paid operational employees of a commercial public corporation are not persons 'employed in the administration of the State' excluded by Section 3 of the Trade Disputes Act.

Court orders

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  1. 1.The Corporation is to accord formal recognition to the Union forthwith
  2. 2.The parties must sign a recognition agreement within two (2) months of the award for purposes of a collective bargaining agreement
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour), with the statutory certificate under Section 14(9)(e)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS v NATIONAL WATER CONSERVATION AND PIPELINE CORPORATION [2002] KEELRC 9 (KLR)", Case Analysis (2002). Cause No. 38 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/9/eng@2002-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.