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ELRCPartially AllowedPetition No. 3 of 2015 (as converted into an Economic dispute by consent order of 14th January 2015)· [2015] KEELRC 863 (KLR)

Teachers Service Commission v Kenya National Union of Teachers (KNUT) & 3 others [2015] KEELRC 863 (KLR)

Employment and Labour Relations Court (Industrial Court)
30 June 2015
MNMathews Nderi Nduma
18,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~76 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ordered TSC to pay teachers a 50-60% salary increase and held it must sign a collective agreement, with SRC playing only an advisory role.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court resolved the 2015 nationwide teachers' strike dispute. TSC filed Petition No. 3 of 2015 with a Notice of Motion of 7th January 2015 seeking a prohibitory injunction against the KNUT and KUPPET strike. After a Section 15 conciliation under Article 159(2)(c), the parties recorded a consent on 14th January 2015 calling off the strike and converting the Petition into an Economic dispute. TSC's later application to set aside the consent was refused: no ground justifying setting aside a contract was established, and TSC was estopped from reneging. The Court framed five issues: entitlement to conclude a CBA, the role of SRC, entitlement to a basic salary increment, review of allowances, and the effective date of the CBA. It held that under Article 41(5) of the Constitution and section 57(1) of the Labour Relations Act, TSC was bound to conclude a CBA with the recognised Unions for all unionisable teachers. On the contested role of SRC, the Court held that both SRC and TSC are independent commissions; TSC must consult SRC but is not bound by its advice, and TSC alone holds the mandate to conduct job evaluation of teachers. Evidence revealed the last negotiated salary increase was in 1997, lower-cadre teachers' wages had fallen below CPI by up to 8.56%, and the 4% annual inflation cushion was never paid to teachers. The Court awarded a basic salary increase of 50 - 60% over four years, confirmed the already-awarded allowances, fixed the CBA period as 1st July 2013 to 30th June 2017, and ordered its registration within 30 days, the judgment taking effect immediately. No costs order was made.

Key legal issues

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01

Whether the Unions are entitled to conclude a CBA with TSC for all unionisable teachers

Holding

Yes. TSC has recognition agreements with both Unions and is constitutionally and statutorily bound to bargain collectively and conclude a CBA.

Reasoning

Article 41(5) grants every trade union and employer the right to engage in collective bargaining. Section 57(1) of the Labour Relations Act, 2007, mandatorily requires an employer that has recognised a union to conclude a collective agreement covering all unionisable employees. TSC did not dispute the recognition agreements dated 1968 (KNUT) and 2010 (KUPPET). The Court therefore found TSC bound to conclude a CBA with the Unions.

p. 6
02

Role of SRC in negotiations and conclusion of the CBA

Holding

SRC's role is advisory only. TSC must consult SRC but is not bound by its advice in the final determination of teachers' remuneration.

Reasoning

A holistic construction of Articles 230(4), 237(1)(b), 249 and 259(11) shows both SRC and TSC are independent commissions. TSC is the constitutional employer of teachers under Article 237, with mandate to negotiate and determine remuneration under Article 41(5) and section 57 of the RLA. SRC advises on remuneration of other public officers under Article 230(4)(b). Section 13(5) of the TSC Act requires consultation with SRC, not compliance. The Court found the advice of SRC not binding on TSC, and that TSC alone holds the mandate to conduct job evaluation of teachers.

p. 31
03

Entitlement to a basic salary increment

Holding

Yes. A basic salary increase of between 50 - 60% over four years awarded, translating to 12.5% - 15% annually.

Reasoning

TSC's own working document of 9th September 2014 tabled an offer of 50 - 60% to bridge disparity between the lowest and highest paid teachers; the Court found TSC made that offer and could not repudiate it. Applying wage-review criteria (cost of living, comparisons, ability to pay, fiscal sustainability), the Court found the lower cadre of teachers' salaries had fallen below CPI by up to 8.56%, that no negotiated increase had occurred since 1997, and that the 4% annual inflation cushion was never paid to teachers between 1997 and 2013, which would have cumulatively yielded 64%.

p. 33
04

Effect of the consent of 14th January 2015 on the Petition

Holding

The consent compromised the Petition, which was replaced by the Economic dispute; TSC's attempt to set it aside was refused.

Reasoning

The consent was crafted through a Section 15 conciliation under Article 159(2)(c), resulting in the strike being called off and teachers resuming work. Applying Charity Kemama v East African Building Society and Flora N. Wasike v Destimo Wamboko, a consent may only be set aside on grounds justifying setting aside a contract. None existed; TSC participated fully and benefited, and was estopped.

p. 4
05

Effective date of the CBA

Holding

The CBA runs from 1st July 2013 to 30th June 2017, in line with SRC's four-year review cycle circular.

Reasoning

SRC's circular of 4th July 2012 established a four-year review cycle effective 1st July 2013 with all current CBAs expiring 30th June 2013. The Court adopted this cycle for the awarded CBA and ordered its registration within 30 days under section 60(1) of the Labour Relations Act.

p. 33

Legal principles established

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  • Under Article 41(5) of the Constitution and section 57(1) of the Labour Relations Act, an employer that has recognised a union is bound in mandatory terms to conclude a collective agreement with it setting out terms and conditions of service for all unionisable employees covered by the recognition agreement
  • SRC's role regarding remuneration of teachers (other public officers) is advisory; TSC, as the independent constitutional employer of teachers, is bound to consult SRC but is not bound by SRC's advice in the final determination of teachers' remuneration, which ought to be an outcome of collective bargaining
  • A consent judgment may only be reviewed or set aside on grounds that would justify setting aside a contract: fraud, collusion, agreement contrary to public policy, lack of sufficient material facts, misapprehension or ignorance of material facts, or other reason enabling the Court to set aside an agreement
  • Both SRC and TSC are independent commissions under Article 249, not subject to direction or control of any person or authority, and must be read harmoniously under the holistic interpretation of the Constitution

Court orders

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  1. 1.The consent orders of 14th January 2015 stand; the Petition was compromised and replaced by the Economic dispute between the Unions as Claimants and TSC as Respondent
  2. 2.TSC's application dated 22nd January 2015 to set aside the consent was refused and referred to the hearing of the Economic dispute
  3. 3.A basic salary increase of between 50% - 60% for four (4) years awarded to the teachers, translating to an annual award of between 12.5% - 15%
  4. 4.The CBA containing the 50 - 60% basic wage increase is effective from 1st July 2013 and expires on 30th June 2017
  5. 5.Confirmed as awarded: house allowance, leave allowance, hardship allowance, advance for motor vehicle purchase and mortgage facility, to be reflected in the CBA
  6. 6.All other allowances and benefits (responsibility, hazard, disturbance, accommodation and night out allowance, mileage claims, study leave, sabbatical leave and any other negotiable items) to be reflected in the CBA in their current status
  7. 7.The CBA, duly signed by the parties, to be registered with the Court in terms of Section 60(1) of the Labour Relations Act, 2007 within thirty (30) days from the date of the judgment
  8. 8.The judgment takes effect immediately notwithstanding any delay in preparation and registration of the CBA
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour disputes, including Section 15 of the Industrial Court Act, 2011 / Employment and Labour Relations Court Act (ADR, conciliation and mediation in accordance with Article 159(2)(c) of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Teachers Service Commission v Kenya National Union of Teachers (KNUT) & 3 others [2015] KEELRC 863 (KLR)", Case Analysis (2015). Petition No. 3 of 2015 (as converted into an Economic dispute by consent order of 14th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/863/eng@2015-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.