The Supreme Court building also houses the Court of Appeal. Photo/ FILE
NAIROBI, Kenya, Oct 6 – The ruling on the appeal by the Teachers Service Commission (TSC) on the 50 to 60 percent teachers pay increase awarded by the Employment and Labour Relations court will be delivered on November 6.
This is after both the commission and teachers’ unions completed making their submissions on the petition at the Court of Appeal on Tuesday morning.
The Kenya Union of Post Primary Education Teachers (KUPPET) lawyer Judith Guserwa took the court through the process leading up to the award by the Labour Court.
“My lords, as at December 31, 2012 the respondent had given the appellant their proposals. The appellant sat on this proposal and did nothing until the year came to an end. On the March 31, 2014 the SRC issued another reminder in the form of a circular. It again gives the details of what the commission requires from anybody doing business with the public sector in terms of employment,” she stated.
She explained that prior to the registration of a Collective Bargaining Agreement, the advice from the Salaries and Remuneration Commission (SRC) was obtained.
“The unions gave their proposals six month earlier and nothing happened until June 2013. This last circular is given in that year, on March 21, 2013. In the month of June 2013, there were no negotiations on this proposal. The unions exercised their rights to issue a strike notice because no negotiations had taken place,” she said.
She observed the strike in July 2013 was occasioned by the lack of response from TSC despite the fact that all necessary steps had been taken by the unions.
“On July 1, 2013 the unions go on strike and the appellant proceed to the Industrial Court then and files two petitions which was to declare the strike by teachers unprotected and to order the teachers to go back to class. That gave the parties an opportunity to engage in a return to work formula and they entered into two sets of agreement,” she said. “In both the petitions, the Teachers Service Commission is the petitioner and the two unions are the respondents.”
She stated that the Salaries and Remuneration Commission joined the petition then as an interested party.
“SRC is a party in those negotiations. SRC is aware we must complete and register a CBA. The months of August, September and October come to pass and 90 days come to an end. Of course, there is no CBA and there is no indication that there is likely to be any. We cross over into the year into 2014 and nothing has happened,” she said.
“In the month August 2014, the first respondent writes to TSC and asks if there is any hope of discussing a CBA and that wakes up the commission. They then write a letter to the SRC addressed to Anne Gitau the Acting Secretary to the commission and is signed by the CEO and it says ‘In July 2013, two unions representing the interests of teachers went on strike. Among the contentious issues cited was the allowances for teachers and a CBA was signed,’” she pointed out.
According to Guserwa, Justice Nduma Nderi was a specialist who was well qualified to adjudicate the matter and that the proper procedure was followed.
The Teachers Service Commission had contended that Justice Nderi had no jurisdiction over the manner and that the award was illegal.
On Monday, the Kenya National Union of Teachers (KNUT) contended that the Employment and Labour Relations Court had jurisdiction to adjudicate over the pay dispute.
READ: KNUT insists Employment Court had authority in pay row
Through Senior Counsel Paul Muite, KNUT stated that the court was fully entitled to the reconciliation process in a bid to resolve the conflict and as such provided a conducive environment for all the parties.
Muite accused the Teachers Service Commission (TSC) of applying double standards in their petition since it had also agreed to the guidance of the court in the whole process.
He further pointed out that the award was initially fronted by TSC and that is what Justice Nderi referred to when awarding the increase.
John Mbaluto who was also appearing on behalf of KNUT described Justice Nderi as a specialist in Labour Law and hence was competent to take all factors into consideration before making a decision.
In his earlier submissions on behalf of the government, Attorney General Githu Muigai had argued that the Employment and Labour Relations Court did not have any jurisdiction whatsoever to award teachers a pay increase of between 50 and 60 percent.
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