Court Cancels Directive Requiring JSS Teachers to Pay KUPPET Agency Fees

Court Cancels Directive Requiring JSS Teachers to Pay KUPPET Agency Fees

The Employment and Labour Relations Court has cancelled orders requiring the Teachers Service Commission (TSC) to deduct agency fees from junior secondary school (JSS) teachers and remit 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 directives following an application by the Kenya National Union of Teachers (KNUT).

The court found that the original petition through which KUPPET had sought the deductions had been withdrawn and the case file subsequently closed. Justice Mbaru ruled that there was insufficient justification for reopening the proceedings to introduce a fresh dispute over agency fees involving JSS teachers.

The decision overturns an earlier directive that required TSC to deduct and remit September agency fees from the affected teachers.

Why the Court Cancelled KUPPET Agency Fee Orders

KUPPET had sought deductions equivalent to 1.8 per cent of the affected teachers’ basic salaries under an existing ministerial order.

However, Justice Mbaru determined that the dispute could not properly be introduced through proceedings that had already been withdrawn and closed.

The judge also rejected the request for orders against TSC and its chief executive, finding that the relief sought was not justified under the circumstances.

The ruling provides fresh direction on how any future dispute over agency fees involving JSS teachers should be handled.

JSS Teachers Retain Right to Choose Unions

During the proceedings, TSC informed the court that it had 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 fallen within KNUT’s membership constituency while serving in primary schools.

Justice Mbaru emphasised that transferring teachers from primary to junior secondary schools does not remove their constitutional right to choose which trade union they wish to join.

“In effect, where the JSS teachers initially were in primary schools and have now joined secondary schools, they retain their constitutional rights under Article 41 of the Constitution to join and be members of a trade union of choice,” the judge said.

Article 41 of the Constitution guarantees workers the right to fair labour practices, including the right to form, join or participate in the activities of a trade union.

The ruling therefore distinguishes between a teacher’s freedom to choose union membership and the separate question of whether agency fees may legally apply.

Court Explains When Agency Fees May Apply

Justice Mbaru clarified that agency fees may still apply to qualifying teachers who are not union members but benefit from a collective bargaining agreement negotiated by a union.

The judge referred to Legal Notice No. 98 of 2018, as amended by Legal Notice No. 98 of 2022, which provides for agency fees under specified circumstances.

“However, where a TSC teacher is not unionised and benefits from the CBA negotiated and applicable under the shop floor, the Minister’s Order in Legal Notice No. 98 of 2018, as amended by Legal Notice No. 98 of 2022, applies,” the judge added.

The clarification means the court did not rule out agency fees in every circumstance. Instead, it indicated that qualifying claims must be addressed within the applicable legal framework and through appropriate proceedings.

KUPPET Sought Contempt Proceedings Against TSC CEO

During the dispute, KUPPET had also asked the court to summon TSC Chief Executive Officer Evelyn Mitei to explain the commission’s alleged failure to implement the deductions.

The union further sought an order committing Mitei to at least seven days in prison for alleged contempt of court.

However, Justice Mbaru found that the orders sought against the commission and its chief executive were not justified.

The decision leaves the parties to pursue any new dispute over agency fees through separate legal proceedings.

What the Ruling Means for JSS Teachers

The ruling is significant for teachers who moved from primary schools to junior secondary institutions and for unions competing to represent them.

It reinforces their constitutional freedom to choose a union while recognising that agency fees may apply to certain non-unionised employees who benefit from collective bargaining agreements.

For TSC, the decision removes the immediate directive to make the disputed September deductions under the cancelled orders.

Any further attempt to enforce agency fees against affected teachers will need to follow the appropriate legal process and satisfy the relevant statutory requirements.

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Court Cancels Directive Requiring JSS Teachers to Pay KUPPET Agency Fees