BAKERY, CONFECTIONERY, MANUFACTURING & ALLIED WORKERS’ UNION v MILL BAKERS LTD [2007] KEELRC 13 (KLR)
The bottom line
#Kenya's Industrial Court ordered Mill Bakers to recognise a union representing a simple majority of its employees, ruling casual-worker arguments and Minister findings could not defeat workers' freedom of association.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Union had recruited a simple majority (at least 51%) of the Company's unionisable employees so as to warrant recognition under Section 5(2) of the Trade Disputes Act
- 2.Whether casual employees recruited by the Union should be counted in determining the majority
- 3.Whether the Company violated ILO Conventions Nos. 87 and 98, the ILO Declaration on Fundamental Principles and Rights at Work, the Industrial Relations Charter and Section 80(1) of the Constitution
- 4.What should be the effective date of the recognition agreement
Key legal issues
#Whether the Union had recruited a simple majority of the Company's unionisable employees
The Court held the Union had recruited 26 of 50 employees, exceeding the simple majority, and rejected the Minister's finding that 16 of the recruits were casuals.
The Court noted the Minister denied recognition because 16 of the 26 recruits were said to be casual workers. However, the Company's own submission to the Investigator described its labour force as 50 permanent employees. On that material, the 26 recruits were permanent employees and the Minister's finding was erroneous.
Whether the Company's refusal to recognise the Union breached international labour standards and the Constitution
The Court found the Company's refusal violated ILO Conventions Nos. 87 and 98, the ILO Declaration, the Industrial Relations Charter and Section 80(1) of the Constitution.
The Court accepted the Union's submissions founded on freedom of association guarantees, including the protection against anti-union discrimination in ILO Convention No. 98 and Section 80(1) of the Constitution guaranteeing freedom to form or belong to trade unions, and found the Company in violation.
Legal principles established
#- Casual workers recruited by a union must be counted where the employer's own workforce figures show the employees were permanent, and a union that has recruited a simple majority of unionisable employees is entitled to recognition.
- An employer's refusal to recognise a union enjoying majority membership violates ILO Conventions Nos. 87 and 98, the ILO Declaration on Fundamental Principles and Rights at Work, the Industrial Relations Charter and Section 80(1) of the Constitution of Kenya.
Court orders
#- 1.The Company to accord forthwith formal recognition to the Union as the sole and appropriate representative of the unionisable employees in its establishment
- 2.The parties to sign a recognition agreement within one month from the date of the award
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234 - reference of the dispute to the Court by the Minister for Labour
Relief refused
#Declaration that the effective date of the recognition agreement be 27th November 2003
The Court did not grant the Union's prayer for a retrospective effective date; the award directed signature of a recognition agreement within one month without fixing a retrospective date.
Costs
No costs order made in the award.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, we are satisfied that the Union has fulfilled the requirements for recognition under Section 5(2) of the Act; and accordingly we order that the Company accord forthwith formal recognition to the Union as the sole and appropriate representative of the unionisable employees in its establishment. We also direct that the parties must sign a recognition agreement within one (1) month from the date of this award.
In the circumstances, it is clear that the 26 out of 50 employees, who were recruited by the Union as its members, were actually permanent employees. We, therefore, take great exception to the Minister’s findings and recommendation, and find that the Union had satisfied ground (i) hereinabove as well
the contention by the Company that the Union did not recruit a simple majority of the unionisable employees of the Company as union members is devoid of force and untenable
Issues in the judgment
#The award appears to order recognition on the basis that 26 of 50 permanent employees were union members, while the Company's evidence was that only 3-7 permanent employees remained union members at hearing; the Court did not expressly resolve this later change in membership.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BAKERY, CONFECTIONERY, MANUFACTURING & ALLIED WORKERS’ UNION v MILL BAKERS LTD [2007] KEELRC 13 (KLR)", Case Analysis (2007). Cause No. 29 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/13/eng@2007-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.