Victory for teachers after TSC is ordered to raise their pay as they wait for ruling

Court of Appeal judges on Thursday directed the teachers’ employer to pay them a 50 to 60 per cent basic salary increase beginning next month.

Judges Mohammed Warsame, Sankale ole Kantai and Jamila Mohammed directed the Teachers Service Commission (TSC) to effect the increase by August 1 and continue paying until an appeal that the commission has filed before them is heard and determined.

TSC has appealed against a June 30 ruling by Mr Justice Nduma Nderi of the Employment and Labour Relations Court, directing the Government to increase the basic salary of teachers by between 50 and 60 per cent over four years. The period to be covered stretches from July 1, 2013 to June 30, 2017. The order meant that TSC has to give teachers an annual salary raise of between 12.5 per cent to 15 per cent.

The government was directed to enforce the order by July 30 but TSC filed the appeal, arguing that there is only a week left to enforce the judgment.

It also said the State was unable to pay the new salaries because the award had not been factored in the 2015/2016 Budget presented in June.

TSC was apprehensive that its officials could be cited for contempt of court if they fail to implement the increase yet the money had not been allocated for in the Budget and is unavailable.

Its lawyers wanted the court to stop the implementation of the judgment until they have argued their case against the award.

In a spirit of give and take, the three judges stopped the implementation of the June 30 judgment but with the condition that TSC, the Salaries and Remuneration Commission (SRC) and the Attorney General, pay the increased basic salary as per that judgment beginning August 1.

The judges said they had observed that the implementation of the judgment as ordered by Mr Justice Nderi was due next week. However, it was within their powers when faced with such a situation, to balance the interest of the parties within the law.

“Upon hearing the counsels for the parties, and considering the circumstances before us. We make an order that a conditional stay of the judgment is hereby granted. This will however be in the following terms. That TSC, SRC and the AG shall implement the increment ordered by Mr Justice Nderi in respect of the basic salary only with immediate effect from August 1, this year,” they directed.

The judges also said that the government will continue to pay the increment ordered above until the hearing and final determination of the appeal.
“A failure to comply with our order will lead to an automatic collapse of the appeal filed by TSC,” they said.

The two teachers unions, the Kenya National Union of Teachers (Knut) and the Kenya Union of Post-Primary Education (Kuppet), have opposed the TSC appeal.

Knut lawyers Paul Muite and John Mbaluto had earlier argued that the 50 to 60 per cent increase was not Mr Justice Nderi’s opinion but was the TSC had tabled during negotiations with the two unions but later withdrew.

“The judge did not pluck the 50-60 per cent from the air. It is TSC which made this offer but withdrew leading to the collapse of the talks which triggered a strike,” Mr Muite told the court.

He said that the unions had called for a nationwide strike on January 5, and the TSC went to court to block it.

At the time of going to court, and during the hearing of the case, the government was aware that the court may make a decision regarding the award either way and so should have planned or made a provision for it.

“Teachers of this country have been treated poorly since independence. Their union officials have been arrested and convicted while pursuing the issue of salary. We urge this court not to deny the teachers a right they have fought for, for so long,” Mr Muite said.

He said that TSC would not suffer any prejudice if Mr Justice Nderi’s award is implemented because as the institution that pay teachers, if its appeal succeeds, it can always recover its money from teachers’ future pay.

Ms Judith Guserwa, representing Kuppet, said there has been no Collective Bargaining Agreement (CBA) signed between TSC and the unions because the commission had decided not to negotiate.

She said there was no room for them to return to the negotiation table because the Minister for Labour had on March 21, 2013, issued a certificate of disagreement confirming that there was no agreement and thus surrendered the matter to be determined by the Labour Court.

Lawyers Stella Rutto and Cavin Anyuor for TSC however declined claims by the two teachers unions through their lawyers, that TSC had tabled an offer.

Mr Anyuor said the letter allegedly authorising the 50-60 per cent basic salary increase, being referred to by the two unions, was a proposal sent to the Treasury and SRC but upon getting the advice that the same was untenable, was withdrawn.

The case will be heard on September 22, 2015.