The Employment and Labour Relations Court has cancelled orders that required the Teachers Service Commission (TSC) to deduct agency fees from junior secondary school (JSS) teachers and send the money to the Kenya Union of Post-Primary Education Teachers (KUPPET).
In a ruling delivered on Thursday, October 29, Justice Monica Mbaru set aside the interim orders following an application by the Kenya National Union of Teachers (KNUT).
The judge said the original petition filed by KUPPET had already been withdrawn and the court file closed. She found no sufficient reason to reopen the case to introduce the dispute over agency fees for JSS teachers.
The ruling effectively vacates an earlier order issued on October 17, which had directed TSC to deduct and remit September agency fees to KUPPET from the affected teachers.
KUPPET had moved to court arguing that JSS teachers fell under its mandate because they were teaching at the post-primary level.
The union also argued that teachers who were not its members but benefited from its collective bargaining agreement (CBA) were required to pay agency fees.
It had asked the court to allow deductions equivalent to 1.8 per cent of the affected teachers’ basic salaries under an existing ministerial order.
However, the court pointed out that teachers transferred from primary schools to junior secondary schools retained their constitutional right to belong to a union of their choice.
Justice Mbaru cited Article 41 of the Constitution, which protects workers’ rights to join and participate in trade unions.
TSC had previously informed the court that it deployed 9,830 primary school teachers to junior secondary schools after assessing their qualifications and staffing requirements. The commission noted that the teachers had previously belonged to KNUT’s constituency.
The judge, however, clarified that agency fees could still apply to teachers who were not members of a union but benefited from a collective bargaining agreement covering their workplace.
She referred to Legal Notice No. 98 of 2018, as amended by Legal Notice No. 98 of 2022, which provides for the payment of agency fees by qualifying non-unionised employees.
Any fresh dispute over the deductions, the judge directed, should be filed through separate court proceedings.
KUPPET had also asked the court to summon TSC Chief Executive Officer Evelyn Mitei over the commission’s alleged failure to implement the earlier deductions. The union wanted her jailed for at least seven days for contempt of court.
Justice Mbaru declined to grant the orders, finding that the requests against TSC and its chief executive were not justified.
The ruling now brings the interim deductions directive to an end, although the question of agency fees for qualifying non-unionised teachers remains subject to the applicable law.