A newcomer to Kenya’s trade union scene has been trying to have a more established trade union elbowed out of the way by the high court. The Kenya Export, Floriculture, Horticulture and Allied Workers Union says it should be the only union recognised by management. As a result, it said, the court should order that the cabinet secretary for labour must approve no further collective bargaining agreements related to floriculture and horticulture between the employer association and the established union.
Perhaps it was because they are newcomers to the organised labour scene, but the new Kenya Export, Floriculture, Horticulture and Allied Workers Union (KEFHAWU) has made some strong demands for court action – all without the legal basis to do so.
After fighting for recognition over a number of years, KEFHAWU was finally confirmed as a trade union in the floriculture and horticulture industry by a judgment of the supreme court in 2018. Since then, as Judge James Rika put it, it appears to have ‘encountered headwinds’ in dislodging the previous sole union in the sector – the Kenya Plantation and Agricultural Workers Union (KPAWU) – and thus enjoying exclusive representation.
As a result of these problems, the union asked the court to declare that it is the sole union allowed to work in the export floriculture and export vegetables industry, and that KPAWU has to quit the field. The union also asked the court to order that the cabinet secretary for labour should refuse to approve any further collective bargaining agreements between KPAWU and the Agricultural Employers’ Association (AEA).
According to KEFHAWU, it was granted registration by the supreme court and this in turn meant that the courts had ‘bestowed the floriculture and horticulture industry’ on it. The union also argued that KPAWU wasn’t sufficiently representative of the floriculture and horticulture industry. However, to the obvious chagrin of the new union, the old one has ‘continued to operate in the industry, ‘negotiating and concluding illegitimate CBA’s’.
One result of the older union refusing to quit the field is that certain agreements made between the new union and employers’ organisations were ‘of no effect’, said KEFHAWU. But KPAWU continued to insist that it acts for workers in the industry.
By its ‘continued presence’ in the field, KPAWU was ‘causing confusion and inhibiting [KEFHAWU] from representing an area ‘bestowed on it’.
Justifying its stance, the new union said that the law only allowed a trade union to recruit and represent employees ‘who work in clearly specified industries’. While KEFHAWU clearly worked in floriculture and horticulture, the older union was ‘nebulous’ and operated in multiple industries and sectors. Only KEFHAWU represented floriculture and horticulture workers. The other union’s operation was ‘not based on a valid recognition agreement’ and it should be ‘ordered to vacate these industries’.
KPAWU, for its part, said that it has a constitutional right to work with employees in the two industries, and that the bargaining agreements it has concluded with employers are valid. The newer union, on the other hand, was trying to use ‘the coercive hand of the court’ to disrupt contractual obligations between KPAWU and employers.
In response to the dispute, the position of the cabinet secretary for labour was that both unions were operating legally and that workers were free to choose between them.
The court agreed. It was not persuaded that the older union had ‘encroached’ on the territory of the newer one. The constitutions of both unions used terms such as ‘and allied workers’ which answered the KEFHAWU argument about specifically demarcated areas of representation.
‘Once a trade union adopts the term, “allied workers/industries”, it ceases to focus on a specialised area, weakening its argument’ about specialisation and general orientation.
Judge Rika said it was not ‘helpful’ for the newer union to ‘regurgitate’ the arguments it advanced in gaining recognition by the courts. While the arguments were found persuasive in that process, the same factors were no longer involved in deciding whether the older union ‘encroached’ onto the territory of the newer one.
When the courts approved recognition of the new union it was not because workers in that area were unrepresented. Rather, it was because of the view that there was space for a second union. Representation by the older union ‘was not outlawed’ by the registration of the newer one and freedom of association had to be protected.
Should the older union be elbowed out of the way by the courts? Having considered other decisions on related issues, Judge Rika said: ‘Going by the current judicial trends, it is the view of the court that it would not be proper to order that the [older union] ceases further engagement with the flower growers’ group, which is a member of the relevant employer body.’
The judge explained to KEFHAWU that it first had to recruit a simply majority of the flower and vegetable growers if it wanted to claim sole organisational rights.
All that the earlier court judgments did was to confirm that KEFHAWU merited registration as a union. But there was ‘no basis whatsoever’ to order the cabinet secretary to decline registration of a bargaining agreement negotiated between a recognised union and its partner employers’ association.
If the recognition agreement between employers and the older union were invalidated, it would ‘leave thousands of employees … in limbo and unrepresented’.
The court added, ‘Employees are not prevented from changing union membership. … Labour is dynamic and volatile and employees do not stay with one employer forever.’
The new union ‘must go beyond its registration and recruit sufficient members from [the employer organisation]. Registration on its own, does not afford recognition.’