By Kibe Mungai
Lawyers are certainly not miracle workers yet the Government of Kenya seems to hinge the solution to the teachers salary dispute on the hope that its lawyers will fare better in the Court of Appeal than they did in the Employment and Labour Relations Court. As I demonstrate, below anyone who has read the remarkable 282 paragraphs judgement of Justice Mathews Nderi Nduma may wonder whether the Teachers Service Commission is realistic to expect a different result in the Court of Appeal after squandering a golden opportunity to present a better case before the Labour Court.
In my reading of Justice Nduma’s contentious judgement the Kenya government was the real successful party but it seems to lack the wisdom to acknowledge and celebrate its victory perhaps because it succeeded by default as I will explain shortly. To my mind, the appeal against the Labour Court Judgement is tragic for Kenya because the Appellants have simply assumed that the government lost the case probably because the Cabinet may not have read and understood the contentious Judgement. There are three reasons why I think the government was the true victor in the judgement.
The first reason is a no brainer because the Labour Court judgement is a culmination of three years negotiations between TSC and the teachers unions. In September 2014, these negotiations collapsed after the teachers’ unions rejected TSC’s proposal for a 50-60 per cent salary increment and instead demanded an increment of 100-150 per cent. Accordingly, the unions could not have won the case when the Court simply confirmed that they should be paid what they rejected two years earlier and effectively dismissed their counter-proposal.
The second reason is a little bit technical and it relates to the fact that there is no convincing reason why the teachers did not get a higher increment than the 50 – 60 per cent awarded given the serious abdication of responsibility by the government during the trial. Look at it this way. Section 57(1) of the Labour Relation Act requires every employer who has recognized a union to conclude a collective agreement setting out terms and conditions of service for all unionisable employees covered by the Recognition Agreement. Section 13 of the Teachers Service Commission Act, 2012 provides for the establishment of committees for the better carrying out by TSC of its functions pursuant to which the Consultative Committee of Terms and Conditions of Service of Teachers employed by TSC was formed.
On 4th July, 2012, the Salaries and Remuneration Commission issued a circular titled “Determination and Review of Remuneration in the Public Service” in which it set out several Guidelines to the Public Sector three of which are worth noting. First, the “Public Service adopts a four (4) year review cycle applicable to all Public Service Organizations with effect from 1st July, 2013”. Secondly, “all the current collective Bargaining Agreements expire on 30th June, 2013 to allow room for new collective Bargaining Agreements with four (4) year review cycle”. Thirdly, “in compliance with Section 13 of the Salaries and Remuneration Commission Act, 2011, all Public Service Organizations should submit annual remuneration and benefits data by December, 2013, regardless of whether they are seeking review”. The envisaged negotiations between the two teachers unions and TSC commenced on 18th October, 2012 and by December, 2014 the parties convened twenty six (26) sessions without being able to conclude a CBA as per the consent orders they had recorded in Court on 17th July, 2013.
Following the breakdown of negotiations mandated by law the two unions declared a strike on 5th January, 2015 which precipitated the filing of a Petition by TSC challenging the legality of the strike. On 14th January, 2015 the parties entered into a consent which, inter-alia, compromised the Petition filed by TSC and replaced it by the Economic Dispute in which the unions became the Claimants whilst the TSC being the employer became the Respondent. The SRC remained an interested party in the economic dispute. Subsequently, the Attorney General applied to be joined in the Economic Dispute as an interested party to represent the National Government.