The majoritarianism rationale in section 54(1) of the Labour Relations Act is not inconsistent with the freedom of association and right to fair labour practices in regard to joining a trade union and collective bargaining

Kenya Union of Commercial, Food& Allied Workers v Attorney General & another; Central Organisation of Trade Unions (Interested Party) [2020] eKLR

Petition No. 175 of 2019

Employment and Labour Relations Court at Nairobi

Radido Stephen, J

April 7, 2021

Reported by Kakai Toili

Statutes – interpretation of statutes – interpretation of section 54(1) of the Labour Relations Act – where section 54(1) provided that an employer would recognise a trade union for purposes of collective bargaining if that trade union represented the simple majority of unionisable employees - what was the rationale of the statutory principle of simple majority in recognising a trade union for purposes of collective bargaining - whether the majoritarianism rationale in section 54(1) was inconsistent with the freedom of association and right to fair labour practices – Labour Relations Act, 2007, sections 54(1) and 56.

Brief facts

The petitioner, Kenya Union of Commercial, Food and Allied Workers (the union) instituted the instant proceedings contending that section 54(1) of the Labour Relations Act violated the right to fair labour practices. The union challenged the constitutionality of section 54(1) of the Labour Relations Act on the premises that it did not guarantee and/or provide for a right of access to an employer’s premises, thus limiting employees right to associate and fair labour practices and that the requirement of a simple majority threshold to get recognition from an employer was not proportionate and or reasonable within the context of article 24 of the Constitution of Kenya, 2010 (Constitution).

After the court indicated that it would deliver judgment on notice, the advocate on record for the 2^nd respondent filed an application seeking leave to cease acting. On December 16, 2020, apart from the union, the other parties were not represented. In the absence of the 2^nd respondent, the court declined to grant leave to the advocate to cease from acting. The respondents were directed to file and serve their submissions before January 18, 2021. The 2^nd respondent’s advocates filed a motion seeking that the court recuses itself from further presiding over the petition.

Issues

1. Whether the rule in section 54(1) of the Labour Relations Act which provided that an employer would recognise a trade union for purposes of collective bargaining if that trade union represented the simple majority of unionisable employees was inconsistent with the freedom of association and right to fair labour practices in regard to joining a trade union and collective bargaining.
2. What was the rationale of the statutory principle of simple majority of unionisable employees before recognising a trade union for purposes of collective bargaining?

Relevant provisions of the law

Labour Relations Act, 2007

Section 54 - Recognition of a trade union by the employer

1. An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.

Held

1. Section 54(1) of the Labour Relations Act did not regulate the right of a trade union to access an employer’s premises for purposes of recruitment or other official trade union activities.
2. Section 56 of the Labour Relations Act gave a trade union a statutory right to access an employer’s premises for purposes of promoting its activities and programs. The union did not challenge the adequacy or otherwise of section 56 in any express way. The import of section 56 was to secure a right to trade unions, which right could be enforced through the court adjudicatory system on a case-by-case basis.
3. The challenge to the constitutionality of section 54(1) of the Labour Relations Act within the context of the right of access to employers’ premises was misplaced. The union, without expressly arguing so, was seeking the nod of the court to introduce minority unions in the workplace, on the basis that the majoritarianism rationale in section 54(1) was inconsistent with the freedom of association and right to fair labour practices (joining a trade union and collective bargaining).
4. One of the principal objectives for the establishment of the court was to further secure and maintain good employment and labour relations in Kenya. The statutory principle of simple majority was not without purpose. It facilitated the orderly conduct of collective bargaining within the industry. It reduced the risk of the proliferation of trade unions in the workplace and enhanced industrial peace.
5. Allowing multiple unions to be recognised by an employer would be a recipe for chaos. The requirement in section 54(1) of the Labour Relations Act was reasonable and proportionate and not antithetical to the constitutional norms of freedom of association, the right to organise, the right to collective bargaining and the employee’s right to join and participate in the activities of a trade union.

Petition dismissed; motion for recusal dismissed; respondents to pay the costs of the petition.