Allegations: The complainant organizations denounce the unilateral decision of
the Teaching Service Commission (TSC) to suspend a signed collective bargaining agreement,
as well as its refusal to implement court decisions. The complainants also allege numerous
anti-union acts by the TSC, such as discrimination with regard to promotion and
remuneration, interference with the election of union representatives and refusal to collect
union membership dues
- 164. The complaint is contained in a communication from Education
International (EI) and the Kenya National Union of Teachers (KNUT) dated 17 December
2020. The KNUT also sent a communication received on 31 May 2022.
- 165. Since there has been no reply from the Government, the Committee has
been obliged to postpone its examination of the case twice. At its March 2022 meeting
[see 397th Report, para. 7], the Committee made an urgent appeal to the Government
indicating that, in accordance with the procedural rules set out in paragraph 17 of its
127th Report, approved by the Governing Body, it could present a report on the substance
of this case at its next meeting, even if the requested information or observations had
not been received in time. To date, the Government has not sent any observations.
- 166. Kenya has ratified the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98). It has not ratified the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87).
A. The complainants’ allegations
A. The complainants’ allegations- 167. In a communication dated 17 December 2020, EI and the KNUT indicate
that the KNUT exists since 1957 and is a member of EI. Until May 2019 the KNUT
represented over 187,000 registered members, all drawn from public schools.
- 168. EI and the KNUT indicate that claims were already made to no avail
to urge the Government to address the problematic issues arising from the decisions of
the Teachers Service Commission (TSC), including its failure to collect and remit the
membership dues to the KNUT since May 2019 to asphyxiate the union. The attacks on the
union are in serious violation of ILO Conventions and national law, such as the Labour
Relations Act (2007), the Teachers Service Commission Act (2012) and the Collective
Bargaining Agreement (CBA) for 2017–21. They also contravene court decisions issued by
the Employment and Labour Relations Court.
- 169. EI and the KNUT consider that, in view of the disagreement between
the union and the TSC, the Government should have considered ways to overcome obstacles
through conciliation or mediation mechanisms, or through arbitration by an independent
body trusted by the parties. The complaint focuses on the following points.
- 170. The complainants denounce the unilateral decision by the TSC to
suspend the signed CBA (2017–21) for the teaching profession, signed in October 2016 and
registered in November 2016. According to the complainants, the TSC suspended the CBA in
July 2019 despite the fact that the registration certificate of the CBA has never been
revoked.
- 171. The complainants assert that the TSC developed policies and
programmes without the involvement of the KNUT, which is contrary to the Constitution,
the Code of Regulations for Teachers (CORT) and the CBA. First, the TSC replaced the CBA
with a non-negotiated performance-based system called Teachers Performance Appraisal and
Development (TPAD). The TSC also imposed unilaterally a Career Progression Guidelines
(CPG) as the basis of promotion in the teaching service (circular No. 7 of 2 May 2018).
The decision to introduce the TPAD and circular to impose the CPG were declared null and
void by the Employment and labour Relations Court in a judgment dated 12 July 2019. The
Court nullified the TPAD rolled out by the TSC unless proper regulations are developed
in line with the Statutory Instruments Act (2013) and declared that only the CORT shall
apply in respect of the promotion of teachers since the CPG were not negotiated between
parties. The complainants also denounce the fact that the TSC went ahead to develop two
parallel payrolls, one for members of the KNUT and another for teachers who are not
members of the KNUT.
- 172. The complainants further denounce the fact that the TSC forwarded
its own recommendations to the Salaries and Remuneration Commission of the legislative
body without consulting the parties through a collective bargaining process as provided
for under the Labour Relations Act (section 54-60). The KNUT reacted by addressing a
correspondence to the Salaries and Remuneration Commission. Finally, the KNUT had
allegedly requested on many occasions to initiate negotiations for a new CBA for
2021–23, before the implementation of the Pension Superannuation Scheme affecting
teachers’ benefits in January 2021, to no avail.
- 173. The complainants assert that, in a bid to weaken the KNUT further,
the TSC introduced a digital validation of union membership on the web portal with a
prominent button dubbed “exit union” and issued a circular in June 2019
(TSC/IPPD/UN/20/VOL III/47) requiring members of the KNUT to validate their union
membership by September 2019. As a result of the said requirement to validate union
membership, the KNUT has lost a substantial number of members in an illegal and an
unprocedural manner contrary to the provisions of section 48 of the Labour Relations
Act. The complainants recall that the Act provides that where a member of a union wants
to cease being a member, he/she does so by a written notice to the employer who shall
then forward a copy of such notice of resignation to the trade union. The resignation
would take effect a month after notice. The complainants allege that, in September 2019,
over 86,000 primary and post-primary teachers were unlawfully stripped of their KNUT
membership by virtue of not validating their union membership within three months, among
them some elected KNUT officials.
- 174. The complainants further allege that the TSC also rolled out a
countrywide campaign urging teachers to quit the KNUT if they wanted to benefit from the
CBA, this despite the fact that the KNUT still meets the requirement of “representing a
simple majority of teachers” to warrant recognition.
- 175. According to the complainants, KNUT membership has dropped from over
187,000 in 2019 to 28,015 in November 2020, crippling the KNUT’s operations and services
to its members. The union was financially starved to an extent that it could no longer
pay salaries to its staff, monthly remittance to its 110 branches, loans, funding of
various programmes and projects and other administrative expenses of the union.
- 176. The complainants denounce the fact that, despite a court directive
and the willingness of the Ministry of Labour, the TSC had retained agency fees for the
KNUT but at the same time it continued to remit agency fees to other education
unions.
- 177. According to the complainants, the TSC endeavoured to exclude
members of the KNUT from benefiting from the 2017–21 CBA, still in force, and locked out
all KNUT members from any form of promotional rights. Teachers have been denied
upgrading after acquiring higher qualifications or after meeting prerequisite
requirements because of their union membership.
- 178. In the complainants’ view, one of the obvious biases against the
KNUT is evidenced by the fact that the TSC has been running two parallel payrolls in the
Public Teaching Service, whereby non-KNUT members have been paid enhanced
salaries/allowances and some promoted using the CPG, while KNUT members have been
discriminated against. It is also documented that KNUT teachers have been denied
promotion and upgrade. The complainants allege that a growing number of KNUT teachers
and staff without full salary for months are blacklisted by the Credit Reference Bureau
as defaulters. The introduction of two parallel payrolls in the Public Teaching Service
is punitive and amounts to discrimination. It is also designed to forcefully remove
teachers from the KNUT membership register. By doing so the TSC is in violation of its
own rules and regulations, as section 16 of the CORT provides that “the Commission shall
not discriminate on any ground against any person in respect of employment”. The TSC
action to remunerate differently teachers of the same grade and qualification is also a
violation of section 19 of the CBA 2017–21 under which “parties to the agreement shall
be bound by the provisions under regulation 16 of the CORT on non-discrimination”.
- 179. In a petition against the KNUT (petition 151 of 2018), the TSC
argued that principals and head teachers are not “unionizable” and that should the court
find that they can join unions, they should remain ordinary members and should not hold
elective positions in the union. The complainants maintain that all teachers can join
unions as per the Constitution of Kenya, the Labour Relations Act and the CORT. The
complainants also recall that the court has held that administrators enjoy equal rights
to unionization.
- 180. The complainants consider that the TSC must strictly respect and
observe the right of teachers as enshrined in the CORT, the CBA 2017–22, the Teachers
Service Commission Act of 2012, the Labour Relations Act of 2007, the Constitution of
2010 and all international treaties and Conventions ratified by the country, including
ILO Convention No. 98, ratified in 1964. The complainants denounce the fact that the TSC
has, however, systematically refused to obey and or implement the following court
decisions:
- the Employment and Labour Relations Court’s petition No. 151 of 12
July 2019 whereby the Court ordered that: (i) the TSC shall undertake transfer of
teachers being members but non-officials of the KNUT in accordance with the
provisions of the Code of Regulations for Teachers (CORT) and teachers being
non-institutional administrators and being KNUT officials shall be transferred
within respective geographical areas they are elected as such to represent; (ii) the
TSC will undertake teacher promotion in accordance with the relevant provisions of
the CORT and the schemes of service with respect to all “unionizable” teachers
eligible to join the respondent trade union as the policy circular of 2 May 2018 on
the CPG and purporting to abolish and replace the prevailing three schemes of
service will not apply accordingly; (iii) the TSC shall consult with the KNUT in the
development and implementation of the Teachers Performance Appraisal and Development
(TPAD) Tool; and (iv) the Teacher Professional Development modules in dispute shall
not be implemented as they fall short of professional development programmes as may
be prescribed by the petitioner by regulation and pursuant to section 35(2) (a) of
the Teachers Service Commission Act, 2012;
- The Employment and Labour
relations Court’s petition No. 158 of 20 August 2019 whereby the Court ordered
(pending the hearing determination of the main suit): (i) the TSC is directed to
deduct and remit to the KNUT dues from its members for the month of August 2019; and
(ii) the TSC circular referenced as TSC/IPPD/UN/20/VOL III/47 dated 10 June 2019 is
suspended pending further orders of the court.
- 181. Finally, the complainants denounce that the TSC has often openly
expressed the view that the conflict with the KNUT would be resolved if the General
Secretary of the KNUT was replaced, putting pressure on union members and leaders to
appoint a different person, thereby interfering gravely in the administration of
internal union affairs. While the KNUT delegates assembly is due to take place in April
2021, a media and social media campaign is being carried out detrimental to the current
union leadership. The complainants recall that the right of workers’ organizations to
freely elect their own representatives is an indispensable condition for them to be able
to act in full freedom and to effectively promote the interests of their members. For
this right to be fully acknowledged, it is essential that the public authorities refrain
from any intervention which might impair the exercise of this right. They also recall
the views of the Committee on Freedom of Association, that remarks by a public employer
questioning the integrity of trade union leaders through sweeping statements is not at
all conducive to the development of harmonious labour relations and infringes the right
to elect trade union leaders in full freedom.
- 182. In conclusion, by this complaint, EI and the KNUT wish to remind the
Government of its responsibility to uphold international labour standards and fulfil its
obligations to respect and ensure freedom of association and the right to collective
bargaining.
B. The Committee’s conclusions
B. The Committee’s conclusions- 183. The Committee deeply regrets the fact that, despite the time that
has elapsed since the presentation of the complaint, the Government has not provided the
requested observations and information in time, even though it has been asked to do so
several times, including through an urgent appeal made at its March 2022 meeting. Hence,
in accordance with the applicable procedural rules [see 127th Report, para. 17, approved
by the Governing Body at its 184th Session (1972)], the Committee is obliged to present
a report on the substance of the case without being able to take account of the
information which it had hoped to receive from the Government.
- 184. The Committee reminds the Government that the purpose of the whole
procedure established by the International Labour Organization for the examination of
allegations of violations of freedom of association is to ensure respect for trade union
rights in law and in practice. While this procedure protects governments against
unreasonable accusations, they must recognize the importance of formulating, for
objective examination, detailed replies concerning allegations brought against them [see
First Report of the Committee, 1952, para. 31]. The Committee urges the Government to
demonstrate greater cooperation in the future.
- 185. The Committee notes the serious allegations by EI and the KNUT
concerning problematic issues arising from decisions taken by the TSC, including its
decision to suspend a signed collective agreement with the KNUT in July 2019 and its
failure to collect and remit membership dues to the KNUT since then with a view to
asphyxiating the union. Additional allegations concern anti-union acts by the TSC, such
as discrimination with regard to the promotion and remuneration of KNUT members and
interference with the election of union representatives.
- 186. From the information provided by the complainants, the Committee
notes the following chronology of events. The TSC and the KNUT signed in October 2016 a
CBA (2017–21) for the teaching profession. During 2018, the TSC allegedly replaced the
CBA with policies and programmes developed without the full involvement of the KNUT,
including a performance-based system called Teachers Performance Appraisal and
Development (TPAD) and unilaterally imposed a CPG as the basis of promotion in the
teaching service. In respect of the alleged unilateral alteration of the CBA and the
lack of consultation with the KNUT on the proposed new schemes, the Committee firmly
recalls that agreements should be binding on the parties and that mutual respect for the
commitment undertaken in collective agreements is an important element of the right to
bargain collectively and should be upheld in order to establish labour relations on
stable and firm ground. The Committee further recalls the importance of consulting all
trade union organizations concerned on matters affecting their interests or that of
their members. [see Compilation of decisions of the Committee on Freedom of Association,
sixth edition, 2018, paras 1334, 1336 and 1521].
- 187. These actions, according to the complainants, led to a notice of
withdrawal of labour from the KNUT in December 2018. The TSC filed a petition to the
Employment and Labour Relations Court on 31 December 2018. On 2 January 2019, the Court
delivered a first ruling on the petitioner’s interlocutory application. The Employment
and Labour relations Court issued its final ruling on 12 July 2019 (petition No. 151)
whereby it nullified the TPAD rolled out by the TSC unless proper regulations are
developed in line with the Statutory Instruments Act (2013) and declared that only the
CORT shall apply in promotion of teachers since the CPG were not negotiated between
parties. The Committee notes with concern the allegation that the TSC refused to obey
the court rulings.
- 188. The Committee notes the allegation that, following the court ruling,
the TSC went ahead to develop two parallel payrolls, one for members of the KNUT under
the Schemes of Service and the other for non-members of the KNUT under the CPG.
According to the complainants, the introduction of two parallel payrolls in the Public
Teaching Service is punitive and amounts to discrimination, as non-KNUT members have
been paid enhanced salaries/allowances and some promoted using the CPG compared to KNUT
members who were allegedly locked out from any form of promotional rights. In the
complainants’ view, this is also designed to forcefully remove teachers from the KNUT
membership register. The Committee notes the assertion that TSC action to remunerate
differently teachers of the same grade and qualification is also a violation of section
19 of the CBA 2017–21 under which “parties to the agreement shall be bound by the
provisions under section 16 of the CORT relating to non-discrimination”. In this regard,
the Committee firmly recalls that no person shall be prejudiced in employment by reason
of trade union membership or legitimate trade union activities, whether past or present
[see Compilation, para. 1074].
- 189. The Committee further notes the allegation that, in a bid to weaken
the KNUT, the TSC introduced a digital validation of union membership on the web portal
with a prominent button dubbed “exit union” and issued a circular in June 2019 requiring
members of the KNUT to validate their union membership by September 2019. According to
the complainants, as a result of this requirement to validate union membership, the KNUT
lost a substantial number of members. The complainants recalled that under the Labour
Relations Act, where a member of a union wants to cease being a member, he/she does so
by a written notice to the employer that shall forward a copy of such notice of
resignation to the trade union. The resignation would take effect a month after notice.
The complainants alleged that due to the online validation system, in September 2019,
over 86,000 primary and post-primary teachers were unlawfully stripped of their KNUT
membership simply by virtue of not validating their union membership within three
months, among them some elected KNUT officials. The Committee notes with concern the
allegation that at the same time the TSC also rolled out a countrywide campaign urging
teachers to quit the KNUT.
- 190. The Committee notes that the KNUT filed a petition to the Employment
and Labour Relations Court against the TSC’s unilateral decision to suspend collection
and remittance to the KNUT of its membership dues. It notes that on 20 August 2019 by an
urgent ruling pending the hearing determination of the main suit (petition No. 158), the
Court ordered the TSC to deduct and remit to the KNUT dues from its members for the
month of august 2019 and suspended the TSC circular on the online validation of
membership dated 10 June 2019. The Committee is aware from publicly available
information that, by ruling dated 7 August 2020, the Court dismissed the application
from the KNUT on the ground that it was satisfied with the explanation and the good will
of the TSC on the remittance of union dues, save for the month of December 2019 which
has been attributed to technical hitches. The Court refused to grant the payment of the
sum of 599,082,312 Kenyan Shillings requested by the KNUT as it considered that the
prayer was not anchored in the prayers in the initial petition or in the orders that are
subject matter of the application.
- 191. The Committee notes however with concern the allegation that these
manoeuvrers from the TSC resulted in a drop of the KNUT membership from over 187,000 in
June 2019 to 28,015 in November 2020, crippling the union’s operations and services to
its members. It notes in particular, from correspondence of the KNUT to the Ministry of
Labour that the TSC had failed to remit membership dues to the union in July, August and
December 2019, and for the remaining months, it remitted dues based on steadily
declining membership. Consequently, the union could no longer pay salaries to its staff,
monthly remittance to its 110 branches, loans, funding of various programmes and
projects and other administrative expenses of the union.
- 192. While recalling that the requirement of written consent for dues
check-off would not be contrary to the principles of freedom of association [see
Compilation, para. 693], the Committee observes with concern that in this case, as
alleged by the union, the implementation of the online membership confirmation system
without proper consultation with the union and the resulting conflict led to the
withdrawal of the facility during a number of months, and would appear to have
contributed to the drastic drop in union membership and the serious financial
difficulties suffered by the union. The union found itself in the impossible situation
of conducting its activities for the benefit of its members; a situation which is hardly
conducive to the development of harmonious industrial relations and should have been
avoided.
- 193. The Committee further notes with grave concern the allegation that
the TSC has often openly expressed the view that the conflict with the KNUT would be
resolved if the General Secretary of the KNUT was replaced, putting pressure on union
members and leaders to appoint a different leader, and thereby interfering gravely in
the administration of internal union affairs. In this regard, the Committee firmly
recalls that any intervention by the public authorities in trade union or employers
organizations’ elections runs the risk of appearing to be arbitrary and thus
constituting interference in the functioning of these organizations, which is
incompatible with the principle of freedom of association which recognizes their right
to elect their representatives in full freedom. When the authorities intervene during
the election proceedings of a union, expressing their opinion of the candidates and the
consequences of the election, this seriously challenges the principle that trade union
organizations have the right to elect their representatives in full freedom.
Furthermore, remarks by a public employer questioning the integrity of trade union
leaders through sweeping statements concerning failure to show respect for laws and
regulations is not at all conducive to the development of harmonious labour relations
and infringes the right to elect trade union leaders in full freedom [see Compilation,
paras 640 and 642].
- 194. Overall, the Committee must express its deep concern in this case on
the fact that, despite its unilateral decision to call off a CBA and to refuse to
implement Court rulings nullifying its various initiatives challenged by the KNUT, no
information has been provided by the Government as to the measures taken to ensure that
the TSC fully respects the freedom of association and collective bargaining rights of
the KNUT. This has resulted in the diminishing of the capacity of the union to organize
its activities and formulate its programmes, and undermined its ability to engage in
meaningful negotiation for a new CBA.
- 195. Finally, the Committee is aware, from publicly available
information, of developments regarding the KNUT, including a change of leadership in
2021. The Committee further notes a communication received from the KNUT on 31 May 2022
indicating that it has worked tirelessly with the TSC to restore harmonious industrial
relations that existed prior to the turbulent year of 2019 and have managed to resolve
all pending issues. The KNUT adds that all relevant court cases were terminated and the
issues thereunder submitted for negotiations and therefore considers that the complaint
may be considered as settled. In light of this latest information, the Committee
considers that this case does not call for further examination and is closed.
The Committee’s recommendations
The Committee’s recommendations- 196. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee deeply
regrets the fact that, despite the time that has elapsed since the presentation of
the complaint, the Government has not provided the requested observations and
information in time, even though it has been asked to do so several times. The
Committee urges the Government to demonstrate greater cooperation in the
future.
- (b) In light of the latest information provided by the KNUT, the
Committee considers that this case does not call for further examination and is
closed.