Automated Summary
Key Facts
The case involves a dispute between the Banking, Insurance & Finance Union (Kenya) (claimant) and Citi Bank (respondent) over the deduction and remittance of agency fees. The claimant alleges the bank abolished unionisable positions and failed to deduct agency fees from non-member employees benefiting from the Collective Bargaining Agreement (CBA) with the Kenya Bankers Association (KBA). The respondent denies having unionisable employees and argues the claim lacks legal basis. The court directed an onsite job analysis to determine if unionisable roles exist within the bank.
Issues
- The court was required to determine if the respondent bank, as a member of the Kenya Bankers Association (KBA), had an obligation under the Labour Relations Act and CBA to deduct and remit agency fees from unionisable employees who are not members of the claimant union but benefit from the collective bargaining agreement (CBA) between the claimant and KBA.
- The respondent contended the claim was legally flawed as the claimant failed to identify specific employees for whom agency fees were sought. The court evaluated if the claimant's case met procedural requirements by referencing particular employees and their entitlements under the CBA.
- The claimant alleged the respondent abolished unionisable positions by altering job titles. The court had to assess whether the jobs in question met the criteria for unionisable roles as defined in the CBA's preamble and under the Labour Relations Act, requiring an onsite job analysis to verify this.
- The claimant argued the respondent denied employees the right to join a union of their choice, contravening Article 41 of the Constitution of Kenya and the Labour Relations Act. The court examined if the bank's actions, including job title changes, unlawfully restricted unionization.
Holdings
The court determined that whether a job is unionisable cannot be determined solely by its title and requires an analysis of each job. It directed the Labour Commissioner to appoint a Labour Officer to conduct an onsite job analysis at the respondent's establishment to assess unionisable roles. The respondent was ordered to facilitate access to employment records, and the Labour Officer was instructed to file a report within 60 days.
Remedies
The court directs the Labour Commissioner to appoint a Labour Officer to conduct an onsite job analysis within the respondent's establishment. The Respondent is directed to facilitate the job analysis by allowing the Labour Officer access to the workplace and availing employment records, including contracts and job descriptions. The Labour Officer is required to file a report within 60 days of the judgment.
Legal Principles
The court relied on constitutional provisions (Article 41 of the Constitution of Kenya, 2010) and labor statutes (Labour Relations Act, 2007, Employment Act, 2007) to address the claimant's arguments on agency fees for unionisable employees. It also referenced case law such as Kenya Hotels and Allied Workers Union v Attorney General [2015] eKLR to determine the validity of agency fee deductions. The court emphasized the need for an onsite job analysis to assess whether positions are unionisable, aligning with statutory obligations.
Precedent Name
- Union of Kenya Civil Servants v Kenya Medical Research Institute & another
- Kenya Hotels and Allied Workers Union v Attorney General & 6 others
- Tailors & Textile Workers Union v New Wide Garments Kenya (EPZ) Limited
- Amalgamated Union of Kenya Metal Workers v Total Kenya Limited
Cited Statute
- Labour Relations Act, 2007
- Employment Act, 2007
- Gazette Notice No 924 of February 6, 2009
Judge Name
Linnet Ndoli
Passage Text
- In order to determine the issues in controversy in this case, the court is required to establish whether there are unionisable (not necessarily unionised) employees within the respondent's establishment. On its part, the Respondent maintains that there are no unionisable employees within its ranks. The claimant on the other hand, accuses the Respondent of manipulating job titles in order to deny its employees the opportunity to unionise.
- whether a job is unionisable or not cannot be determined merely by the title of that job. This can only be achieved through an analysis of each job. In light of this, I have formed the opinion that in order for the court to reach a just determination of this dispute, an inspection in the nature of an onsite analysis of the jobs at the respondent Bank is necessary.