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ELRCAllowedCause No. 5 of 2004

KENYA UNION OF PRINTING, PUBLISHING, PAPER MANUFACTURERS & ALLIED WORKERS v NEW WORLD PRINTERS LTD [2006] KEELRC 5 (KLR)

Industrial Court of Kenya
24 January 2006
1,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ordered New World Printers to recognise and sign a recognition agreement with the workers' union because a simple majority had joined it.

What this practically means

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Executive summary

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The Minister for Labour referred to the Industrial Court a dispute over New World Printers Ltd.'s refusal to sign a recognition agreement with KUPRIPUPA, under Section 8 of the Trade Disputes Act (Cap. 234). The Union claimed it had recruited over 99% of the Company's unionisable employees, had forwarded check-off forms and a draft recognition agreement in February 1997 and again in 2002, and that the Company refused to sign or implement the check-off. A formal dispute reported in March 1998 was investigated, and the Investigator recommended recognition, finding the Union to be the appropriate union, facing no rival, and that employee withdrawal letters were management-inspired. The Union accepted the recommendation; the Company rejected it, asserting employees denied membership, that withdrawals were genuine, and that no simple majority existed. The Company also denied threatening employees over union membership. The Court set out the two conditions precedent under Section 5(2): simple majority membership and no rival union. It found the Company never disputed the Union's appropriateness or the absence of a rival union. On the majority issue, the Court held it unbelievable that employees who had joined would withdraw a year later alleging forged signatures, and concluded the Company had used threats, coercion, intimidation and victimization to dissuade employees and frustrate recruitment. On the balance of probabilities, the Union was found to have fulfilled the Section 5(2) requirements. The Court upheld the Minister's findings and recommendation and awarded that the Company accord formal recognition to the Union and sign a recognition agreement within two months. Both Members concurred. No costs order was recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Union is the right or appropriate union to represent the Company's unionisable employees
  2. 2.Whether the Union had attained a simple majority of the unionisable employees as members for purposes of recognition under Section 5(2) of the Trade Disputes Act
  3. 3.Whether there is any rival union claiming representation of the employees
  4. 4.Whether the employee withdrawals from the Union were genuine or induced by the Company's interference

Key legal issues

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01

Whether the Union satisfied the statutory conditions for recognition under Section 5(2) of the Trade Disputes Act

Holding

The Court found the Union had fulfilled the requirements: it was the appropriate union, faced no rival union, and had secured a simple majority despite the withdrawals.

Reasoning

The Court set out the two conditions precedent under Section 5(2): simple majority membership and absence of a rival union. The Company did not dispute the Union's appropriateness or the absence of a rival union. On majority, the Court rejected the withdrawals as genuine, finding the Company had used threats, coercion, intimidation and victimization to dissuade employees, and was satisfied on a balance of probabilities that a simple majority existed.

p. 3
02

Whether the employee withdrawal letters invalidated the Union's claimed majority

Holding

The withdrawals were found to have been initiated by the management to frustrate the Union's recognition efforts, and did not defeat the majority claim.

Reasoning

The Court found it unbelievable that employees would join and then withdraw a year later alleging forged signatures. Adopting the Investigator's findings, it concluded the withdrawals did not reflect the workers' feelings and were engineered by management, which had engaged in threats, coercion, intimidation and victimization to dissuade union membership and frustrate recruitment.

p. 3

Legal principles established

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  • An employer must recognise a trade union that has recruited a simple majority of unionisable employees and faces no rival union, as required by Section 5(2) of the Trade Disputes Act.
  • Employee withdrawals from a union shortly after recruitment, unexplained and following check-off and meetings, may be treated as employer-induced and do not disprove simple majority membership.

Court orders

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  1. 1.The Company is to accord formal recognition to the Union
  2. 2.The Company is to sign a recognition agreement with the Union within two (2) months from the date of the award

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

JO
majority
PO
majority
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (reference by the Minister for Labour)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The conditions precedent for recognition of a union by an employer under Section 5(2) of the Act are:(i) that the trade union has in its membership a simple majority of the employees eligible by virtue of its constitution to join that particular union in a particular undertaking or a group of undertakings, and (ii) that there is no rival union claiming to represent such employees.
p. 2Statutory conditions for union recognition
In the result, and on the balance of probabilities, l am satisfied that the Union has fulfilled the requirements under Section 5(2) of the Act for recognition by the Company.
p. 3Standard of proof and finding on recognition
Accordingly, l uphold the Minister’s findings and recommendation, and award that the Company accord formal recognition to the Union and sign a recognition agreement with it (Union) within two (2) monthsfrom the date of this award.
p. 3Final orders and disposition

Issues in the judgment

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minor

The Investigator's findings refer to 'First World Printers Ltd.' while the respondent is 'New World Printers Ltd.', an apparent internal inconsistency in the quoted report.

minor

The judgment refers to a check-off form signed 'in February 2002' per the Company's submissions, while the Union's submission dates it 4th March, 2002; the dates are inconsistent within the judgment.

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 PRINTING, PUBLISHING, PAPER MANUFACTURERS & ALLIED WORKERS v NEW WORLD PRINTERS LTD [2006] KEELRC 5 (KLR)", Case Analysis (2006). Cause No. 5 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2006/5/eng@2006-01-24

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