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ELRCOtherCause No. 120 of 2005· [2006] KEELRC 8 (KLR)

KENYA HOTELS & ALLIED WORKERS’ UNION v SOUTHERN PALMS BEACH RESORT. [2006] KEELRC 8 (KLR)

Industrial Court of Kenya
13 July 2006
CCCharles P. ChemmuttutOWO.A. WafulaJKJ.M. Kilonzo
777 words in judgment
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The bottom line

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Kenya's Industrial Court threw out a flawed union recognition ballot and ordered a fresh vote, confirming only unionisable employees may vote.

What this practically means

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Executive summary

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This is an amended order of the Industrial Court of Kenya at Nairobi in Cause No. 120 of 2005, arising from the Court's award of 16th December 2005 in a dispute over the Resort's refusal to sign a Recognition Agreement. The original award directed a supervised secret ballot of all unionisable employees of the Resort, including permanent, seasonal and casual workers, to be conducted by 30th March 2006. The ballot was held on 9th March 2006 under the supervision of Mr. Benson Okwayo of the Economic Planning Division, and his report of 16th March 2006 declared the second Union (the interested party) the appropriate union to represent the employees. Before the results, the first Union (the claimant) filed a notice of motion dated 21st February 2006 alleging unfair labour practices, undue influence and duress by the Resort designed to keep employees members of the second Union, thereby vitiating the poll. Hearing the parties and reviewing the EPD report, the Court found both the original order and the report seriously defective on two grounds: the ballot impermissibly included non-unionisable seasonal and casual workers, contrary to industrial relations practice as reflected in the ILO Workers Educational Manual (1960); and the Provincial Labour Officer or his representative was absent from the ballot, a fatal omission. The Court directed a fresh secret ballot restricted to unionisable employees, with both unions having reasonable access, in the presence of the parties' representatives, the Registrar or his representative, and the Provincial Labour Officer or his representative, to be completed within one month, with the final decision reserved pending the results. Both members agreed. No costs order was made.

Key legal issues

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01

Validity of the secret ballot conducted pursuant to the Court's order of 16th December 2005

Holding

The order and the resulting EPD report were seriously defective because they included non-unionisable (seasonal and casual) employees and because the Provincial Labour Officer or his representative was absent

Reasoning

The Court held that recognition ballots must be confined to unionisable employees, since recognition concerns collective bargaining for the unionisable workforce. The participation of seasonal and casual workers contradicted established industrial relations practice as reflected in the ILO Workers Educational Manual. The absence of the Provincial Labour Officer's representation undermined the supervision required for a valid ballot.

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02

Remedy for the defective ballot

Holding

A fresh secret ballot restricted to unionisable employees, with proper supervision and access, to be held within one month, with the final decision reserved pending the results

Reasoning

Rather than declare either union the winner or uphold the first Union's allegation of unfair labour practices, the Court decided that the true wishes of the unionisable employees could only be ascertained by repeating the poll under proper conditions: exclusion of non-unionisable workers, access for both unions, and presence of the Registrar and the Provincial Labour Officer or their representatives.

p. 2

Legal principles established

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  • A recognition ballot must be confined to unionisable employees; inclusion of seasonal and casual workers contravenes industrial relations practice
  • The purpose of a recognition poll is to ascertain which union commands the largest support among unionisable employees
  • The presence of the Provincial Labour Officer or his representative is essential to the validity of a supervised ballot

Court orders

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  1. 1.The Court's earlier order and the EPD ballot report were found seriously defective
  2. 2.Mr. Benson Okwayo of the EPD to conduct a fresh secret ballot of unionisable employees only, excluding seasonal and casual workers
  3. 3.The fresh ballot to be conducted with reasonable access to employees, in the presence of both parties' representatives, the Registrar of the Court or his representative, and the Provincial Labour Officer or his representative
  4. 4.The exercise to be completed within one month from the date of the amended order
  5. 5.The Court to make its final decision immediately on receipt of the results of the fresh secret ballot
Jurisdiction invoked
Original jurisdiction of the Industrial Court over the issue in dispute - refusal to sign a Recognition Agreement; amended order arising from the award of Murtaza Jaffer, J., P.M. Osero & J.G. Ngolo, Members

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 HOTELS & ALLIED WORKERS’ UNION v SOUTHERN PALMS BEACH RESORT. [2006] KEELRC 8 (KLR)", Case Analysis (2006). Cause No. 120 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2006/8/eng@2006-07-13

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