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ELRCDismissedELRC Cause No. E006 of 2023 (Nakuru), with consolidated Miscellaneous Application No. 161 of 2023 (Nairobi)

Kenya Export Floriculture and Allied Workers Union v Bohemian Flowers Ltd; Kenya Plantation & Agricultural Workers Union (Interested Party) (Employment and Labour Relations Cause E006 of 2023 & Miscellaneous Application E161 (NRB) of 2023 (Consolidated)) [2024] KEELRC 1055 (KLR)

Employment and Labour Relations Court of Kenya
23 April 2024
7,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant union sued by memorandum of claim seeking orders that the Respondent employer commence deduction and remittance of union dues, pay un-deducted dues from its own funds, and sign a recognition agreement, contending it had recruited 2507 of about 3200 unionisable employees in December 2022 and submitted check-off forms (Form S). The Respondent denied receipt of the forms, denied the majority claim, and argued that no Ministerial order under section 48 of the Labour Relations Act had been issued, and that it had already signed a recognition agreement with the Interested Party, KPAWU, pursuant to a consent in ELRC Cause No. E009 of 2022. KPAWU supported the Respondent, showing a recognition agreement and a CBA dated 15th June 2023 pending registration. The claimant sought conservatory orders restraining registration of that CBA and raised a preliminary objection battle over the consolidated Miscellaneous Application No. 161 of 2023. The Court framed three issues: whether the Claimant recruited a simple majority; whether the absence of a Ministerial order under section 48 defeated the claim; and whether the Interested Party had signed a recognition agreement. It held section 48(2) is not mandatory, found some recruitment was proved (supported by the conciliator's report), but held that the Respondent's later recognition agreement with the Interested Party had overtaken the Claimant's gains. Revocation of a recognition agreement lies only with the National Labour Board under section 54(5), and the Court had no jurisdiction to revoke it. The claim was dismissed with no order of costs.

Questions the Court framed

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

  1. 1.Whether the Claimant recruited a simple majority of the Respondent's employees.
  2. 2.Whether the failure of the Minister to issue an order of deduction of union dues in favour of the Claimant defeated the claim.
  3. 3.Whether the Interested Party has signed a recognition agreement with the Respondent.

Key legal issues

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01

Whether the Claimant recruited a simple majority of the Respondent's unionisable employees

Holding

Some recruitment was proved, but the Claimant's gains were overtaken by the Respondent's later recognition of the Interested Party

Reasoning

The Court found the check-off forms lacked dates, but the Respondent produced no evidence that recruited members reneged on membership. The conciliator's report of 19th June 2023 confirmed the Claimant had recruited a simple majority. However, the Respondent had meanwhile entered a recognition agreement with the Interested Party, so whatever recruitment the Claimant achieved was overtaken by events.

p. 13
02

Whether a Ministerial order under section 48 of the Labour Relations Act is a precondition to deduction of union dues

Holding

No - section 48(2) is permissive, not mandatory

Reasoning

The Respondent argued that without a Ministerial order it had no power to deduct dues. The Court read section 48(2) and held the provision is not couched in mandatory terms; the insistence on a Ministerial order was not backed by the law. This removed the Respondent's principal procedural defence but did not save the claim.

p. 13
03

Whether the Court could revoke the recognition agreement between the Respondent and the Interested Party

Holding

No - only the National Labour Board may terminate or revoke a recognition agreement under section 54(5)

Reasoning

Having found that the Respondent and Interested Party had signed a recognition agreement (and a CBA dated 15th June 2023), the Court held that any attempt to reverse that position lies before the National Labour Board under section 54(5) of the Labour Relations Act. The Court accordingly lacked jurisdiction to revoke the agreement, and the claim was overtaken by events and dismissed.

p. 14

Legal principles established

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  • Section 48(2) of the Labour Relations Act is not couched in mandatory terms, so a Ministerial order is not a strict precondition to a demand for check-off deductions
  • Only the National Labour Board has power to terminate or revoke a recognition agreement, and the Employment and Labour Relations Court cannot revoke one

Court orders

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  1. 1.The claim is dismissed.
  2. 2.No order of costs (no order as to costs).

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act and Employment Act; matters referred following conciliation under the Labour Relations Act
Consolidated with
Miscellaneous Application No. 161 of 2023 (Nairobi)

Relief refused

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Order compelling the Respondent to immediately commence deduction and remittance of union dues to the Claimant's specified account

The Claimant's recruitment gains were overtaken by events when the Interested Party signed a recognition agreement with the Respondent, and only the National Labour Board can revoke a recognition agreement

p. 14

Order directing the Respondent to pay un-deducted union dues from its own funds

The claim failed in its entirety, so no dues could be ordered from the Respondent's own funds

p. 14

Order compelling the Respondent to sign a recognition agreement with the Claimant within 30 days of judgment

A recognition agreement already exists between the Respondent and the Interested Party and revocation lies with the National Labour Board under section 54(5) of the Labour Relations Act

p. 14

Costs

The claim is dismissed with no order of costs.

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.

My reading of this section show that the provision is not couched in mandatory terms and so the insistence that the Minister must issue the order is not backed by the law.
p. 13Ministerial order under section 48 LRA not mandatory
From my finding above, I find that the Interested Party and the Respondent having signed a recognition agreement; I don't have jurisdiction to revoke it and the issues herein have been overtaken by events.
p. 14Court lacks jurisdiction to revoke a recognition agreement
The claim cannot therefore stand. The claim is therefore dismissed with no order of costs.
p. 14Final orders - dismissal and costs

Issues in the judgment

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minor

Judgment internally conflicts on the date the consent in ELRC Cause No. E009 of 2022 was adopted by the Court

material

The judgment inconsistently states the recognition agreement between the Respondent and Interested Party was signed on 6th February 2023 and on 15th June 2023

minor

The CBA relied on by the Interested Party is described as dated 15th June 2023 in one passage and 15th June 2015 in another

minor

The ruling on the conservatory application dated 27th June 2023 (and the preliminary objection to the Miscellaneous Application) is not separately pronounced in the final orders; the disposition addresses only the main claim

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 Export Floriculture and Allied Workers Union v Bohemian Flowers Ltd; Kenya Plantation & Agricultural Workers Union (Interested Party) (Employment and Labour Relations Cause E006 of 2023 & Miscellaneous Application E161 (NRB) of 2023 (Consolidated)) [2024] KEELRC 1055 (KLR)", Case Analysis (2024). ELRC Cause No. E006 of 2023 (Nakuru), with consolidated Miscellaneous Application No. 161 of 2023 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1055/eng@2024-04-23

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