During the hearing proceedings of the TSC Appeal case against its own proposed pay hike, the award of the 50-60% was put to test. On November 6 2015, it will be known whether the 50-60% salary hike will see the light of dawn. It is now time to put probes on what may become of this salary hike.
Based on submissions by the parties and the questions that the judges asked, an objective look into the most likely Court on teacher’s salary case is hereby presented. Before Judge Abuodha gave the 25th September 2015 ruling that led to the suspension of the strike, apparently there have been relatively weak submissions by the teachers’ lawyers. Sadly, the same situation happened at the Appeal Court; the unions’ lawyer failed to put up a strong case defense.
The weightiest submission by TSC that has the potential to undercut the 50-60% salary hike is the submission that Judge Nderi who awarded the 50-60% made himself a conciliator. Under the law, the TSC lawyer submitted, a judge of the Industrial Court cannot become a conciliator as the law that could have allowed for such a move was repealed in August 2011. What did the union’s lawyer do to counter this hard hitting submission? Well, the unions’ lawyers clearly slept on the job. The unions’ lawyers told the chamber that judge Nderi is a specialist judge of a special court. The lawyer for the unions further submitted that judge Nderi was appointed as a judge of the Industrial Court due to his specialization in labour law.
Now, where is the link between a judge who makes himself a conciliator without the blessings of any piece of legislation and the qualification of such a judge as a specialist? In other word, the unions’ lawyers were trying to tell the Court that Judge Nderi did not err in making himself a conciliator because he has specialization in labour law. Do you see how such a submission is so weak?
Based on this issue of Judge Nderi making himself a conciliator, it will take more than a miracle for the chamber to rule in favour of teachers. TSC’s request that was tied to this conciliator issue was that all the Court proceedings from 14 January 2015 that eventually resulted in the 30 June award ought to be considered null under the law. Due to the weak submissions by the unions’ lawyers over this matter, there is a clear likelihood that the chamber may grant TSC its pleas and hence render the 30 June award null. This will be the ultimate nail on the 50-60% salary increment.
The unions on their part made strong submissions on the involvement of SRC on the teachers’ pay dispute. Now, a fundamental question ought to be paused here. Can the extensive submissions by the unions over the involvement of SRC be the straw that will be sufficiently strong to break the camel’s back and rescue the 50-60% from doom? The answer to this question paints an informative picture from the unions’ point of view.
As Kilukumi (Representing KNUT) was making his submissions on 5 Monday 2015, one of the Judges asked a very pertinent question on the guiding principles under which SRC operates. So let as look keenly at this SRC’s issue.
Kilukumi brought the chamber’s attention to the the powers and functions of the Salaries and Remuneration Commission under article 230 (4) of the constitution. The article states that SRC’s functions and powers shall be;
To set and regularly review the remuneration and benefits of all State officers; and
To advise the national and county governments on the remuneration and benefits of all other public officers.”
Kilukumi elaborated on the second function because teachers are public servants and not state officers. As stated, SRC’s mandate on the remuneration of state officers is only to give advice. The lawyer further took the Court through the issue of whether the SRC’s advice as stated in point 2 is binding. In summary, the lawyer told the Court that the advice is not binding.
Let’s now get back to the question that the judge asked Lawyer kilukumi on the guiding principles under which SRC operates. The judge asked Kilukumi to explain how SRC will exercise its mandate to ensure fiscal sustainability, retention of skills and fairness as provided for under its guiding principles in the context of teachers.
Let’s look at the SRC’s guiding principles first. Article 230 (5) of the constitution sets out the guiding principles under which SRC operates; which are:-
The need to ensure that the public wage bill is fiscally sustainable.
The need to ensure that the public services are able to attract and retain the skills required to execute their functions.
The need to recognize productivity and performance and;
Transparency and fairness.
How did the lawyer respond to the question from the judge? Mmmh, the response, sorry to say, was not direct to the question that was paused. This presents a clear risk. The lawyer responded by saying that those who take the lion’s share are state officers and not teachers. Hence, the lawyer said, if SRC wants to make the wage bill sustainable then it is critical to look at the entire public sectors and not teachers only. He further responded by saying that a responsible SRC should ask whether the wage bill is unsustainable because of funds paid to teachers or to MPs and other state officers.
What is Obvious?
The Court will throw itself into unnecessary controversy if it rules against the following facts that are clearly provided for by the Constitution.
TSC is mandated exclusively to employ and remunerate teachers (As stated in Article 237 (2) of the Constitution).
TSC is mandated exclusively to carry out job evaluation of teachers. SRC has no place on teachers job evaluation not unless it wants to go against the written supreme law of the land.
Conclusion
In the absence of the Court’s indulgence of its wisdom over the dispute by basing its verdict exclusively on the submissions by the parties, the 50-60% stands on a very thin line of hope. The Court might nullify the 50-60% to the great disappointment of teachers and public servants at large. If the Court indulges its wisdom then it will strike a compromise verdict that will be fair to both parties. It is therefore important for teachers to prepare in all aspects whether financially, physically and emotionally to have a verdict that will not solve their perennial pay tussle with their employer (TSC).[ATTACH=full]17360[/ATTACH]