Even as teachers await another court ruling, the central dispute in the ongoing stand-off arose from a judgement by justice Mathews Nduma Nderi, the Principal Judge of the Employment and Labour Relations Court.
Justice Nderi, alumnus of Nairobi School, Â was admitted to the Bar as an advocate of the High Court in December 1988 after graduating from the University of Nairobi with a law degree in 1987, and a diploma in law from the Kenya School of Law in 1988.
He Mastered in International Trade Law from the University of Stellenbosch, South Africa, where he majored in Commercial Arbitration.
He previously worked Â at the Industrial Court of Swaziland, the East African Community in Arusha and the Federation of Kenya Employers (FKE).
Six Facts about Teachers’ pay increase and Court Decision:
1. TSC Proposed the Award
From the court proceedings, Justice Nduma Nderi found that it was the Teachers Service Commission (TSC) that came up with the proposal during a consultative meeting with the teachers held on September 9, 2014.
Teachersâ€™ unions made a counter proposal of between 100 â€“ 150% increase leading to collapse of the negotiations.
2. TSC is independent
Court faulted the TSC for later withdrawing the offer only on the basis that Salaries and Remuneration Commission (SRC) had commanded it to do so.
TSC is the employer of the unionisable teachers and it has the sole mandate to bargain with the recognized unions; it only needed to budget for the salaries and seek approval from the treasury, Nduma Nderi said.
â€œTherefore, SRC had no role whatsoever in the negotiations and determination of the basic salary for teachersâ€¦ That SRC had no business intervening in collective bargaining between TSC and the unions,â€ the judgement reads.
Once the annual budget was approved by parliament, that could have been the end of the matter.
3. TSC Allocation
Expenditure towards TSC Secretariat increased from KSh 1.7 billion in 2009 to KSh 3.3 billion in 2014 representing an increase of 94.2% over the six (6) years period due to significant improvement in terms and conditions of the secretariat staff.
According to the documents presented in court, allocation and expenditure on teachers increased by an average of 11.3% and 11.6% per annum respectively.
â€œThese are indeed significant revelations which go further to show the disparity in revenue allocations to the TSC Secretariat vis a vis the revenue allocation to the teachers,â€ judge
The core business of TSC is to provide quality education. Therefore, the core staff of TSC are the teachers and should therefore be given the highest priority in revenue allocation, he said.
4. TSC not bound to wait for job evaluation
The judge found that SRC had no mandate to conduct job evaluation for teachers and TSC was not bound to await completions of the exercise.
No evidence has been tendered by TSC that it had considered even mildly the necessity of a job evaluation exercise to precede the negotiations and conclusion of a CBA, he ruled.
Since 1997, TSC had not negotiated basic salary increase with the teachers unions as per their Recognition Agreements.
The court determined that the last basic salary increase for the teachers (whether negotiated or not) was in 2009.
The government budgeted for an automatic 4% salary increase cushion against inflation for all civil servants but it was not automatically paid to the teachers for the period 1997 to 2013.
The court noted that the 4% automatic inflation cushion spread between 1997 â€“ 2009 would have translated to a 64% cumulative salary increase to the teachers for the period had it been
6. Avoid arbitrary remuneration awards
Court hoped that the judgment would bring to an end the era of arbitrary remuneration awards to the teachers.
â€œThe court desires, that the era of acrimony and regular national wide strikes by the teachers will be replaced by an era of guided collective bargaining in a four (4) year cycle,â€ he said.
Justice Nderi acknowledged the constraints in implementing the award but said its pain would be repaid many fold by the peace and harmony to be experienced in the education sector.
Good labour relations translating into national peace and harmony is a trophy worth investing in today, curt concluded