Definitive Report - Report No 399, June 2022

Case No 3396 (Kenya) - Complaint date: 17-DEC-20 - Closed

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

1. 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.
2. 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.
3. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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”.
13. 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.
14. 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.
15. 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.
16. 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

1. 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.
2. 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.
3. 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.
4. 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].
5. 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.
6. 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].
7. 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.
8. 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.
9. 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.
10. 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.
11. 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].
12. 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.
13. 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

1. 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.