The Labour Court in Nairobi has quashed a decision to transfer some 4,000 teachers from the Teachers Service Commission (TSC) payroll to the Public Service Commission (PSC).
Justice Nelson Aboudha yesterday ruled that TSC is the only mandated employer of teachers and cannot transfer its mandate to any other institution.
The decision is a major blow to Technical and Vocational Education and Training (TVET) and TSC. State Department of Vocational and Technical Training Principal Secretary Kevit Desai wanted the teachers moved to PSC as the State creates a new service scheme for technical institutions.
Tutors were to shift from TSC to PSC on July 1 last year under a new scheme hinged on competency-based training.
In its circular number 17 of 2018, TSC transferred technical training functions to the Ministry of Education.
New remuneration regime
The circular stated that the transfers would affect tutors in polytechnics, technical institutes and vocational training colleges.
Dr Desai said flexible recruitment and promotion criteria for trainers is part of the ministry’s effort to create independent structures to promote quality training. This meant the trainers would fall under a new remuneration regime. A diploma holder hired by TVET would join job group J with a salary of between Sh27,680 and Sh32,920.
Degree holders would join job group K, attracting a salary of between Sh34,110 and Sh44,750.
Under the new scheme, TVET trainers would only be required to present their highest qualifications to be hired or promoted.
At the heart of the discord was a failure by TSC to allegedly recognise TVET training qualifications. Teachers who wanted to progress in their careers would be locked out of teaching practice. It was claimed that a trainer who scored C- in KCSE and enrolled in TVET for higher diploma could not be in the TSC payroll.
The case now settles the row in favour of the Kenya Union of Post Primary Education (Kuppet), which was also contesting the decision by Desai.
Kuppet argued that the transfers would deny teachers the opportunity to decide whether they wished to shift or remain under TSC.
The union claimed that the unilateral decision did not consider education stakeholders’ input. Kuppet further argued that under the law, TVET had no powers to employ, instead it was TSC which had the sole authority to train and hire teachers.
The union wanted the court to determine whether the transfers effected last year were legal, and whether TSC had powers to donate its responsibilities to other institutions.
The union also demanded that the process be subjected to public participation and structured negotiations.
Kuppet national secretary in charge of secondary schools, Edward Obwocha, demanded a proper Memorandum of Understanding before the transfer is implemented.
In his reply, Desai argued that the transfers were part of high-level reforms being undertaken by the Ministry of Education to promote quality assurance and governance of the institutions, and to link graduates to small and medium entrepreneurship.
Justice Abuodha agreed with Kuppet and ruled that the circular by the PS, allowing the transfers, was null and void, as TVET had no role in teachers’ welfare.
“It is a common ground that TSC is the only institution mandated to register and deal with matters concerning teachers. TSC is therefore the exclusive concern of teachers’ affairs,” he ruled.
“These concerns have been expressly excluded from the functions and powers of the Public Service Commission by virtue of Article 234(3),” ruled Justice Abuodha.
According to the judge, TSC enjoys the same status as the Judicial Service Commission (JSC) and National Police Service Commission (NPSC), hence cannot delegate its authority and independence to other bodies. The judge observed that teachers are not public officers, hence cannot serve under PSC.
“A reading of the TSC Act and the Constitution does not seem to raise an interpretation that authorises TSC to relinquish or transfer its mandate over teachers to any other person or body. Just as the JSC and NPSC, teachers have unique needs and role to play in the education sector.
“The centralisation of their issues under TSC must have been intended to nurture a culture of teaching profession and create uniformity on issues concerning teachers. The same logic applies to judges and magistrates and police officers,” the judge ruled.
If the ministry had got its way, all trainers currently teaching in vocational and technical training institutions would no longer have been recruited by TSC.
The trainers are currently sourced, retained and promoted by TSC. The PS said the ministry had already engaged the Kenya Technical Training Institutes (KATTI) leadership to develop a scheme of service, but the judgement by the court means the efforts are in vain.
The judge found that the TVET Act does not define who is a trainer, but those joining TSC have to be registered after training. “The TVET Act does not seem to concern itself with how one acquires the skills of a trainer. All it says is that for one to be considered a trainer, they must be registered. The role of the authority would seem to be the registration of persons who qualify to be trainers. However, the Act does not prevent or bar the authority from registering non-teacher trainers.
“To this extent, the court holds and finds that secular number 17 of 2018, dated July 27, 2018 and issued by the first respondent, is unconstitutional, null and void,” Abuodha ruled.
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