Right of employer to recognize employees’ trade unions.

Every employer has a duty to recognize employees’ trade unions. Section 54 of the Labour Relations Act is concerned with the recognition of trade unions by the employer, and provides that;  “An employer, including an employer in the public sector, shall recognize a trade union for purposes of collective bargaining, if that trade union represents the simple majority of unionizable employees.’’ Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union [2016] eKLR .
The matter concerned a trade dispute between Abyssinia and Kenya Engineering Workers Union, (the Union) the 1st respondent, where, the Union’s case was that at all times they were the recognized union to represent the labour interests of the unionisable employees of Abyssinia. The Union claimed that despite attempts to enter into a recognition agreement with Abyssinia, their efforts were repeatedly thwarted, so that the agreement was never signed. In opposition to the Union’s claims, it was Abyssinia’s contention that they have not prevented any employees from joining the Union. The only reservation they expressed was that they had outsourced all their employees to Jokali, and as such they no longer had employees for which a recognition agreement would require to be signed. The crux of the dispute as we understand it is whether, for reasons that the workers were outsourced, the employer was entitled to decline to recognize a trade union as the employees’ representative.  It goes without saying that save for the limitations specified under Article 24 of the Constitution, it is a constitutional right for every worker, even those who are outsourced, to be part of a union, and in view of the circumstances of the instant case, an employer is obliged to recognize a union where it represents a simple majority of the unionisable employees of the person or entity in question.

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