Teachers Service Commission has suffered yet another setback after the Employment and Labour Relations Court declined to stop the ongoing teachers strike.
Labour Court judge Monicah Mbaru did not declare the strike illegal as had been applied by TSC under a certificate of urgency on Thursday nor did she issue interim orders barring the the same.
Instead, the Labour Court declared that the ongoing teachers strike was not protected by law.
The judge, in her declaration yesterday, noted that the teachers unions did not issue a notice before downing their tools as required by law.
“The strike by the respondents is unprotected by law,” the judge said.
The gist about unprotected strike surrounds pay and action by the employer. On one end there is a protected strike in which an employee is supposed to issue a seven-day strike notice to his employer.
The employer may not take any disciplinary action against him or her and will remunerate him for the period of go-slow.
On the other hand, in unprotected go slow, an employee is not entitled to any pay for the time he or she stays away from duty and an employer can take any disciplinary action against the individual.
Kenya National Union of Teachers (KNUT) and Kenya Union of Post Primary Education Teachers (KUPPET) lawyers had already raised objections about issuance of notices, saying that the 2007 Act was drafted before the new Constitution was promulgated and has been amended to be sync with the new law.
Never been interpreted
According to lawyer Paul Muite, the Labour Relations Act, 2007 cannot be used in employment disputes, as it has never been interpreted to be in harmony with the new Constitution.
“The constitutional validity of a notice should be placed under judicial scrutiny. The Act predates the new Constitution and it has to be interpreted by the court in order to be in harmony with the new Constitution. We will need a bench of more than two judges to hear the application. This will in effect affect all workers,” Mr Muite said.
Justice Mbaru ordered that the unions should file their objection and appear before a duty judge next week for hearing.
TSC maintains that the strike is illegal but teachers say the commission’s case cannot be heard when it defaulted court orders.
KNUT had already filed a contempt case through lawyer John Mbaluto seeking to have the commission’s chairperson Lydia Nzomo jailed for failing to honour court orders and effect the 50-60 per cent pay increment. The union also wants Cabinet Secretaries Jacob Kaimenyi (Education), Henry Rotich (Treasury) and Rachel Omamo (acting Labour CS) and their Permanent Secretaries to be sent to civil jail for failing to honour the court orders.
“The respondents are in blatant and wilful contempt of this honourable court’s judgement which required the TSC to pay a 50-60 per cent increment in basic salary,” the teachers said.
Lawyer Mbaluto argued that the current teachers’ go slow is as a result of the Government failure to fulfil its end of bargain. “Teachers must be paid. As a result of the respondent’s refusal to pay teachers their fair and just remuneration as awarded by this court. The industrial unrest is likely to grip the entire nation,” he said. The case will be heard on September 10.
And, KNUT Chairman Mudzo Nzili has said the Sh17 billion increment should be paid progressively rather than a wholesome payment.
While addressing teachers outside the KNUT Office in Kisumu, Mr Nzili said the Salaries and Remuneration Commission (SRC) indicated in July 2012 that the 50-60 per cent salary increment was to be effected as from July 21, 2013 to June 30, 2017.
“Teachers don’t want to be paid Sh17 billion at a go. Kenyans should not be misinformed that we want this money at once. In fact, what we want is for the Government to release Sh1.4 billion every month,” he said.
The KNUT chairman said the Government was in a position to remit the money and should not pretend to be broke because the budget exceeds Sh2 trillion.
“If the government allocates Sh6 billion for flowers in the budget, can’t they pay Sh1.4 billion per month to teachers? Before the court’s ruling, TSC was ready to pay Sh9.3 billion as teachers’ allowances but the court told them to pay salaries instead. If the Sh9.3 billion is divided by Sh1.4 billion, this can pay teachers salary increment for up to six months. The government has money,” he said.
He said the fact that Parliament was on recess should not be an excuse to deny teachers their right of getting a salary increment.
“When Parliament is in recess, the State is allowed to spend money and when it resumes, there will be an arrangement of a supplementary budget. When Treasury says it has no money, it is only a gimmick, it has money,” he said.
“Why is the law selective, now that some are getting away with contempt? Patriotism must also compel the Government to respect the rule of law. No amount of threats will break the strike. We are not just a force that can be pushed aside. Those threats are illegal,” he said.
He assured teachers that their August salaries were going to be paid since the National Executive Council met and released it. “People have started receiving their salaries,” he said.
Meanwhile, KNUT Nyeri branch wants the Government to respect the rule of law and effect the teachers’ pay hike as ordered by the court.
The branch secretary general Kahiga Mutahi, castigated the State for violating the Constitution and purporting to be above law. He said the strike would continue until teachers got the 50-60 per cent salary increment. “Threats to sack us leave us unfazed. They are a boring song which we have become familiar with,” said Mr Mutahi at his office yesterday.
Additional reporting by Dennis Mbae and Maureen Odiwour