Five years after a landmark court battle between the Kenya Union of Post Primary Education Teachers (Kuppet) and the Teachers Service Commission, teachers are still suffering losses in an unfair pay regime that allows for unjustifiable discrepancies in the pay for various cadres of Teachers Service Commission (TSC) employees.
The protracted negotiations and the subsequent strike by Kuppet in 2015 were based on the fact that the TSC’s grading systems, while similar for secretariat and teaching staff, give the secretariat staff salaries of between 50 and 60 per cent above that of teachers.
Under the Constitution, the right to equality and nondiscrimination is a basic tenet of the Bill of Rights. Kuppet, thus, moved the employer seeking harmony in employee salaries. The TSC tabled a counter proposal of 50-60 per cent dubbed the ‘working document.’ Then TSC sought advice of the Salaries and Remuneration Commission (SRC) to enable it to table a concrete counter proposal.
Amid bureaucratic malfeasance, the union issued a strike notice, which was followed by another in demand for 100 per cent pay increase for teachers. The TSC then went to court in Petition No 3 of 2015 seeking, inter alia, orders restraining the unions from continuing with the strike. In court, the unions argued that the TSC, being a constitutional commission, was not bound by SRC’s advice.
For the first time in Kenya, the Labour Court agreed with trade unions that a strike was legal, since the unions had fully expressed themselves within the spaces for dialogue. It held that SRC had no role in negotiations and determination of basic pay for teachers, and TSC needed only to seek approval from Treasury, after which the proposed increases would be catered for and allocated by Parliament. On June 30, 2015, the court, therefore, in a consent judgement, awarded teachers increments of basic salary at 50 and 60 per cent to redress discrimination in TSC pay structures.
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TSC appealed the judgement. Justices Githinji, Koome, Mwilu, Azangalala and Odek unanimously held that the Labour court lacked jurisdiction to fix the basic salaries or allowances of public officers, including teachers, and the advice of SRC under Article 230(4) (b) of the Constitution on remuneration and benefits of all public officers is binding on national and county governments salary decisions. The judges held that an effective and valid resolution of the teachers’ claim involves five constitutional institutions, namely: the employer (TSC); SRC, for advice on fiscal sustainability of the claim; Parliament, for approval of budget and appropriations; and the Controller of Budget, for implementation of the budget by authorising withdrawals from public funds. Therefore, the Labour Court could not have had and did not have a basis on which to determine the percentage for the increase of the basic salary of the teacher.
Since that appellate judgement, the government has shown no willingness to address the discrimination in the TSC pay structure. It is, therefore, incumbent upon us to seek constitutional remedies for the government’s inaction. Where a minister or body refuses or neglects to act on court orders, the proper course is for that party to apply to the High Court for an order of mandamus compelling performance of the statutory duty. This precedent was set in the case of Narok County Council vs Transmara County Council (2000). The party could also file a petition in the constitutional court seeking appropriate orders or declarations, or seek a remedy under the Fair Administrative Action Act, No 4 of 2015. As Justice Mwilu, JA, stated, “The union’s legitimate claims must be constitutionally and procedurally processed. The need to retrace all the constitutional and statutory steps to an eventual end of a valid salary increment and a proper negotiated CBA is an urgent one”.
The position was affirmed in Constitutional Petition No 9 of 2018, County Government of Kakamenga and Others vs Salaries and Remuneration Commission of Kenya. Like in Civil Appeal No 196, 195 and 203 of 2015, Teachers Service Commission vs - Kenya Union of Post Primary Teachers and 3 Others, the decision held that determination of matters of the national wage bill must involve the National Treasury, SRC and TSC.
At the same time, it held that SRC cannot negotiate with trade unions as there is a constitutional body in place already catering for them, the TSC. Thus, if aggrieved, the unions have recourse to judicial review, constitutional petition and action under the Fair Administrative Action Act.
Teachers have legitimate expectations to be treated equally with other TSC employees at the secretariat. After Covid-19, the union will use all available resources to challenge the unjustifiable discrepancies in TSC salary structures.
-The writer is Deputy Secretary General of Kuppet