Kenya Glass Workers Union v Kenya Engineering Workers Union; Impala Glass Industries Limited (Interested Party) (Cause E611 of 2021) [2024] KEELRC 2189 (KLR)
The bottom line
#Unions fighting over members must first take the dispute to the Cabinet Secretary for conciliation before going to court, the Employment and Labour Relations Court has ruled.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of internal dispute resolution mechanisms before invoking the Court's jurisdiction
The suit was premature because the trade dispute between the two unions over representation of the Interested Party's employees had not been referred to the Minister for conciliation as required by ss. 62, 67 and 69 of the Labour Relations Act
The court characterised the dispute as a trade dispute under s. 2 of the Labour Relations Act, being a dispute between trade unions and an employer concerning an employment matter including recognition. Since the dispute did not fall within the urgent referrals under s. 74, conciliation under s. 62 had to precede judicial determination. The court invoked the exhaustion principle from its own prior decision and Court of Authority authority.
Whether the employees' constitutional rights under Articles 36 and 41 justified direct court intervention
Although employees have the right to join any union of their choice, the non-participation of the employer in the proceedings justified referral to the Minister to hear all parties
The court acknowledged the employees' freedom of association under the Constitution and s. 4 of the Labour Relations Act but held that the administrative route was more appropriate since the employer had not participated in the proceedings and the Minister could hear all parties and provide a holistic solution.
Sectoral scope of trade union representation under s. 14(1)(e) of the Labour Relations Act
Argued by the Claimant but not determined on the merits; the court declined to rule because the matter was referred to conciliation
The Claimant submitted that the Respondent's constitution, confined to general mechanical engineering and metal allied manufacturing industries, could not cover glass industry workers, and relied on s. 14(1)(e) of the Labour Relations Act. The Respondent countered that the closed-shop limitation contradicted Articles 36 and 41. The court made no finding, deferring the dispute to conciliation.
Legal principles established
#- Where a dispute resolution mechanism exists outside the courts, it must be exhausted before judicial jurisdiction is invoked; courts are fora of last resort
- A trade dispute concerning the allocation or representation of employees must first be reported to the Minister for conciliation under s. 62 of the Labour Relations Act unless it falls within the urgent referrals in s. 74
Court orders
#- 1.The dispute is referred to the Minister to be resolved in 60 days and a report filed before the court for the recording of final orders or other directions
- 2.The matter to be mentioned on November 11, 2024 for further directions
- Jurisdiction invoked
- Labour Relations Act, 2007 (ss. 2, 62, 67, 69, 74); exhaustion under Fair Administrative Action Act s. 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Glass Workers Union v Kenya Engineering Workers Union; Impala Glass Industries Limited (Interested Party) (Cause E611 of 2021) [2024] KEELRC 2189 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2189/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.