TSC position on CPG and SOS after 2019 court judgement

SETTING THE RECORD STRAIGHT

1.   Why is the Commission in this situation between TSC and KNUT? Background

The Commission  is committed to continuous improvement of terms and conditions of service for all teachers in the Public Service. In this regard, following the release of the Job Evaluation Report in the Teaching Service by the Salaries and Remuneration Commission (SRC) in 2016, the Commission  signed the 2017- 2021  Collective  Bargaining Agreements (CBA) with the Kenya Union of Post Primary Education Teachers (KUPPET) and the Kenya National Union of Teachers (KNUT) in October, 2016.

The CBAs introduced  a paradigm shift in the remuneration  of teachers which was hitherto not dependent on the worth of the job, as now provided, but on the job group of a teacher.

To fully implement the CBAs, the Commission developed Career Progression Guidelines (CPG) since it realized that the Schemes of Service (SoS) in place were inferior tools in that regard. Under the CPG, the Commission implemented Phases I and II of the CBAs for ALL teachers regardless of their respective unions of affiliation.

However, the KNUT has since agitated against the implementation of the CBA using CPG. Instead it has clamored for the use of Schemes of Service for Teachers. It is worth noting that there are 3

Schemes  of Service for Teachers:  Schemes of Service for Non-Graduate Teachers;  Schemes of Service for Graduate Teachers; and Schemes of Service for Technical Teachers.

KNUTS LEGALITY OF THE STRIKE NOTICE OF 17/12/2018

On  18  December,  2018,  KNUT  served  TSC  with  a “Notice  of critical outstanding  issues” between the KNUT and TSC dated 17 December, 2018. In the said Notice, KNUT DEMANDED that  TSC  implements  the  issues  raised  in  the  said  Notice  before  2 January,  2019  to avoid disruption of learning in public schools.

TSCS ISSUE WITH THE KNUT’S STRIKE NOTICE

1.      TSC filed  a  Petition  at  the  Employment   &  Labour  Relations   Court  on  31/12/2018 challenging  the legality of the strike notice. TSC’s case was that in issuing the Notice of Withdrawal of Labour by teachers in the public service with effect from 2 January, 2019, KNUT acted irregularly,  unfairly,  unprocedurally  and grossly offended  the provisions  of the Labour Relations Act, 2007 and Clauses 12 to 17 of the Recognition Agreement. Hence the Notice was unlawful, null and void.

ii.      In its replying affidavit,  KNUT Secretary General raised issues on:

•    Promotion of Teachers;

•     Transfer of teachers;

•    Performance Contracting System; and

•    Teachers’  Professional Development Modules

iii.      On 2/1/2019, the  Court  issued  restraining  orders  against  the  strike  notice;  promotion; transfer;  PC  tools;  and  TPD  modules.  The  Court  further  directed   parties  to  attend conciliation  at the Ministry of Labour on 3/1/2019. [See Order dated 211/2019].

iv.      KNUT snubbed  the conciliation  meetings  and did not avail themselves  to joint sessions organized by the conciliator.

v.      The conciliator compiled its report based on parties’ written submissions  and filed the same with the Court on 30/1/2019. [See Report dated 30/1/2019].

vi.      The Court directed parties to file their joint memorandum of agreement/disagreement with the court on 8/4/2019. [See Order dated 2/1/2019].

vii.      On 12/7/2019, the Court issued Judgment in the matter. [See Judgment dated 12/7/2019].

viii.    The Commission noted that Order (d) of the Judgment meant to disadvantage  teachers who are members of KNUT. Accordingly, the Commission  instructed its lawyers to seek stay orders from court as it  pursues an appeal  against the entire judgment. On 26/7/2019,  the Court declined to grant stay of its Judgment.

ix.    Following  the Court’s ruling against  stay orders, and in full compliance  with the Court Judgment, the Commission  has reverted members of KNUT to the Schemes of Service as ordered in Order (d) of the Court Judgment.

2.      Why  did  the  Commission separate the  payroll  for KNUT from the  rest or Teachers?

Order (d) of the Judgment directs TSC in part to “undertake teacher promotion in accordance with the relevant provisions of the CORT and the Schemes of Service with respect to all unionisable teachers eligible to join the Respondent trade union…”

In order to comply with this Order. without disadvantaging teachers who are not KNUT members. TSC has been forced to run two parallel  payrolls:  one for members of KNUT under Schemes of Service and the otherfor  non-members of KNUT under CPG.

The payroll  under Schemes  of Service has posed  numerous challenges  which the Commission hoped to side step through stay orders.  Significantly. it  translates overpayment of salaries which the Commission  is bound by the law to detennine  and recover as government liability against the respective teachers.

In addition,  the Commission  is mandated  under the law to ensure prudent  utilization of public finance.

3.   What  is  the  difference  between  Schemes  of  Service  and  Career  Progression Guidelines (CPG)?

•    Schemes of service  were guidelines  used to promote  teachers  before signing  of the CBA.

•    The Commission adopted CPO in 2017 to enable implementation of the Job Evaluation (JE) and the CBA that were signed in 2016. The guidelines outline the descriptions. specifications, and competencies for each job.

•      It is worth noting that prior  to the implementations  of CPGs, the Commission  was promoting  teachers using three schemes of service (certificate, degree and Diploma) based on qualification and experience;  this caused stagnation in one job group.

•    The  Job  evaluation  introduced  a  paradigm  shift  in  the  grading  and  remuneration structure for teachers.  The focus shifted to responsibility and Job worth (amount of responsibility assigned to a teacher) as opposed to experience and qualification alone. This was also observed by the judge in the second limb of Order (d) which provided:

“…parties may  within the CBA and Recognition Agreement consider reviewing the prevailing Schemes of Service  with a view of bringing them into alignment  with the prevailing CBA pay structure and related matters as will be necessary and without derogating from the provisions of the CORT on teacher promotion – as the policy of 02.05.2018 on Career Progression Guidelines and  purporting   to  abolish  and  replace  prevailing  three  Schemes  of Service  will  not  apply accordingly.”

4.   Does the CPG have to be approved by Parliament?

No. CPG are tools for the implementation  of the CBA. The CBA does not need to go through Parliament so are its tools of implementation. The CPG, which is the progressive name for the Schemes of Service, are enshrined in the CORT which was developed in accordance with the Statutory Instruments Act, 2013.

5.   What is the relationship  between Collective  Bargaining  Agreement  (CBA) and the Career Progression Guidelines?

•    CBA is a detailed  agreement  on how the Commission  will promote  teachers  in its payroll within a period of four years. The Government of Kenya ring fenced Ksh. 54 Billion for this purpose.

•    CPO are clear modalities designed to enable the Commission implement the CBA.

6.   What are the benefits of CPG in relation to promotion of Teachers?

The CPGs have taken into account the new system and addressed the issues of stagnation. Key gains under this include;

•    Promotion  to the  next  grade after  entry  is  automatic  for Certificate,  Diploma  and Degree holders thus creating parity of treatment for all the groups.  NB: all teachers were promoted w.e.f 1st July 2017 when CBA implementation  begun.

•     Teacher promotion can be accelerated without the requisite three years as was the case in the Schemes of Service. For instance; in the next financial year (2020/2021), 96,000 teachers currently in BS will automatically move to Cl. This implies that these teachers are moving two job groups (G -J), which is not tenable under the Schemes of Service.

•     The CPO elongated the salary grades by introducing more salary ‘bands’ within a job group.

7.   Were ALL the Teachers promoted during the CBA implementation?

Yes. The salaries were immediately adjusted to reflect the promotions. The Commission  has also been issuing promotion  letters to the effect.  The  table below demonstrates  the promotions effected during the CBA for primary school  teachers and administrators.

CATEGORYPREVIOUS JOB GROUPNEW GRADEEQUIVALENT JOB GROUPNUMBER OF BENEFICIARIES
Primary   School teachersGB5H85,611
Primary School teachersHCIJ21,347
Senior TeachersG-KC2K21,042
Deputy      Head TeachersG-LC4M17,911
Head TeachersG-LC5N22,049
 Head TeachersM-NDIp2,797

Note:

•     All Teachers who were in job group G were moved to B5 equivalent to job group H.

•    All Teachers who were in job group H were moved to C1 equivalent to job group J.

•    All Senior Teachers who were between job group G-K were moved to C2 an equivalent to job group K.

•    All Deputy Head Teachers in G-L were moved to C4 equivalent to job group M.

•    All Head Teachers who were in G-L moved to C5 equivalent of job group N.

•   All Head Teachers in Mand N moved to DI equivalent of job group P.       

8.   Why is the Commission not promoting teachers based on Higher Qualification?

•       Higher   qualification   is  just  but  one   criterion   among   others   such   as   satisfactory performance, attainment of prerequisite qualifications of a mean grade of C+ in KCSE, and C+ in two teaching subjects.

•     Promotions  are  guided  by the  CORT,  which  states  that  upward  mobility  is  based  on availability of vacancies.

•      In  a joint  meeting  between TSC  and KNUT on  January,  2019,  it was resolved  that promotions  based  on higher  qualification  was  no  longer tenable.  There  is  no  way  an employer  would  promote  employees  based  on  submission  of  certificates  that  are  not relevant  to the job  they  are  undertaking.  Therefore,  with  effect  from  the  date  of  that resolution, all promotions based on attainment of higher qualifications were stopped.

•     Job Evaluation was conducted where all the stakeholders  were involved. These were the KNUT, KUPPET,  KESSHA,  KEPSHA and the Parents Association.  Implementation  of the job evaluation report stopped any further promotion of teachers on attainment of higher qualifications.

9.    What is the impact of the court Judgment on promotion of teachers?

•     The immediate consequence of the Court judgment with regard to teacher promotion is that some major promotional benefits that had been achieved through the CPO have been lost. Specifically, under the CPG, teachers formerly designated as Pl  and who were promoted to B5 with effect from  l· July 2017  will not be promoted under common cadre to CI on

1 ..  July 2020.  This is because promotion of teachers who are members of the KNUT shall strictly be as per the provisions of the Schemes of Service.

•   Teachers  who  are  members  of  the  KNUT  shall  be  selected  to  undertake  Teachers Proficiency  Courses  (TPC)  upon payment  of requisite  fee  so as  to be considered  for promotion from P 1    to ATS IV as was the case prior to l /7/2017.

10.    What are the implications of the Judgment on teachers in reference to the SoS and CPG?

•   The Commission will revert the affected  teachers to the old teaching grades provided  for in the Scheme of Service, e.g. Pl, ATS IV, ATS III, etc. This will automatically  lead to teachers  losing  all the benefits embedded  in the CPG as an implementation  tool for the CBA. In addition, full reversion of the previously enhanced  salaries  shall subsequently follow by recovering the salary overpayments due to the affected teachers.

•   Upon implementation of the CBA, it was no longer tenable to apply the SoS as the grading and designation structure  had completely  changed. The CBA had upgraded  teachers  to higher levels and salaries. It therefore became necessary to develop new guidelines to align with the new structure and guide promotions, going forward.

•   The promotion  to the next job  group was based on successful completion  of TPC in the case of certificate holders or attainment of higher qualifications, subject to availability of vacancies  in  the establishment  and meeting  the  minimum  requirements.  Diploma  and degree holders were being promoted using common cadre and competitive selection based on the available vacancies and budgetary allocation.

11.       Has the Commission recovered CBA funds from Teachers?

No. The Commission has not recovered any funds from the Teachers. It is important to note that in the normal course of its business, the Commission recovers erroneous payments as and when the same are detected e.g. allowances paid for a teacher who was transferred after the payroll is run. The Commission is currently analyzing the extent of the resultant overpayment.

12.     What is the effect of the Judgment on the teaching service?

The current stalemate has divided the teaching service into two with two parallel payrolls.

13.     When will the judgment be implemented and for which period will it affect?

The judgment takes effect from 12/7/2019 to perpetuity.

14.       Will the Commission appeal the Judgment of the High Court?

Yes. Meanwhile. the Commission shall obey all the court orders in the course of discharging  its mandate.

15.       How can the situation be reverted to help all teachers benefit from the Third phase?

This can only be possible if the court judgment is overturned.

16.       Why has the Commission  issued a notice to remove  Mr. Wilson Sossion  from  the register of teachers with effect from 29/7/2019?

•   He breached the provisions of clause (f) of the Third Schedule to the TSC Act, 2012  as read   together  with  Regulation   141  (f)  of  the  CORT  by  causing  paralysis  of  the Competency Based Curriculum (CBC) training on 23/4/2019  in  11  Counties.

•   He breached the provisions of clause (f) of the Third Schedule to the TSC Act,  2012  as read together with section  16 of the Public Officer Ethics, Act 2003; and regulation  141 (f) of the CORT by failing to act with impartiality  and loyalty; honesty and objectivity regardless of his political  views when he accepted nomination of the Orange Democratic Party (ODM-Kenya)  as a Member of Parliament  in 2017. This was in contravention  of Regulation  187( 1) and (2) of the CORT;  Regulation  16 of the TSC Code of Conduct and Ethics for Teachers.

17.       When will the Commission meet the union as per the court Judgment?

•    The Commission is ready to meet the union (s) under the normal industrial relations.

•    The Commission has also convened a meeting to validate the appraisal tools as ordered by the Court.

Finally,  the Commission  wishes to inform  all teachers and other stakeholders that the CBA is of great benefit to ALL teachers.

Leave a Reply

error: Content is protected !!