REPUBLIC OF KENYA.
IN THE INDUSTRIAL COURT OF KENYA
(Before: Charles P. Chemmuttut, J.,
O.A. Wafula & J.M. Kilonzo, Members.)
CAUSE NO. 82 OF 2007.
KENYA ENGINEERING WORKERS’ UNION...........................................Claimants.
HANS KENYA LTD..........................................................................Respondents.
Issue in Dispute:-
“Employers’ refusal to sign Recognition Agreement.”
Mr. Joseph A.N. Omolo, Industrial Relations Officer, for the Claimants (hereinafter called the Union).
Mr. Daniel Irungu Kamau, Human Resource Manager, for the Respondents (hereinafter called the Company).
On 19th May, 2007, the Minister for Labour and Human Resource Development referred this dispute to the Court for consideration and determination in exercise of the powers vested in, or conferred upon, him by Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); and his reference, together with the statutory certificate from the Labour Commissioner under Section 14(9)(e) of the Act, were received by the Court on 29th June, 2007. The dispute was then listed for mention on 25th July, 2007, and the parties were notified to attend. On this occasion, Messrs. Omolo and Kamau, who appeared for the parties respectively, were directed to submit or file their respective written memoranda or statements on or before 10th and 24th August, 2007, and the dispute was fixed for hearing on 12th September, 2007. Messrs. Omolo and Kamau submitted their respective memoranda or statements, on behalf of the parties, on 9th and 24th August, 2007. On 12th September, 2007, Messrs. Omolo and Kamau jointly applied for an adjournment of the case to enable them explore the possibility of an amicable settlement out of Court. The application was granted and the matter was postponed for hearing, in the event that the parties failed to resolve it, to 2nd October, 2007.
On the said date, i.e. 2nd October, 2007, Messrs Omolo and Kamau mutually agreed that, in order to find out the exact and true wishes of the unionisable employees of the Company regarding their Union membership and whether or not the Union has a bona fide simple majority of members among them, a secret ballot is necessary and should be conducted in the presence of both parties’ representatives. We agree that the best way to do this is by giving the unionisable employees an opportunity to express their wishes through a secret ballot.
In the circumstances, we direct Mr. Benson Okwayo of the Economic Planning Division (EPD) to undertake this exercise and to find out through a secret ballot, and with reasonable access to all the unionisable employee (excluding casual workers), and in the presence of both parties’ representatives, the Registrar of this Court or his representative and the Labour Officer, Industrial Area Office, or his/her representative, the exact and true wishes of the unionisable employees regarding their Union membership and whether or not the Union has a bona fide simple majority of members among them. The exercise should be completed within one (1) month from the date of this interim award, and the Court will announce or make its final decision immediately on receipt of the results of the secret ballot.
DATED and delivered at Nairobi this 16th day of October, 2007.
Charles P. Chemmuttut, MBS.,
O.A. Wafula, J.M. Kilonzo,