Unionless Teachers have strongly opposed a move by the Teachers Service Commission (TSC) to deduct them agency fees for an agreement which bore no monetary benefits.

It has emerged that Primary school teachers who are not affiliated to Knut were deducted union agency fee in the just released August salary.

The deduction, which incited some union members to contemplate exiting, shocked over 150000 in primary schools, who quit in June 2019 with hopes of getting promotions and salary increments. The deductions also affected teachers who had never joined the union before.

Currently, Knut membership stands at 15,000 down from 187,000 before June 2019.Knut deputy secretary-general Hesbon Otieno confirmed that deduction of agency fee was effected in last month’s salary.

“Primary school teachers who are not members of the union have been deducted the fee,” said Otieno.

The new KNUT leadership views the release of the agency fee as one of the indicators of a restored relationship with TSC.

Initially, Knut used to receive more than Sh144 million monthly from TSC as union dues. But the money went down to less that Sh20 million causing executive secretaries and union staff to go without salaries for months.

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Knut and TSC had signed an agreement which restricted KNUT membership to primary school classroom teachers.

The agreement also showed that the Kenya Union of Post Primary Teachers (Kuppet) will represent teachers in secondary schools while the Kenya Union of Special Needs Education Teachers (Kusnet) will represent teachers in special needs schools.

The unions 2021-2025 CBAs were deposited in the Labour Relations Court on Friday last week making them legal documents. This comes even as some teachers claim to have been forced to back to Knut without their consent after leaving the union two years ago.

The protesting teachers say they cannot continue paying agency fees and union deductions based on the non-monetary Collective Bargaining Agreement (CBA) signed by unions in June. They have threatened to organize a strike without the input of the unions.

Two teachers have moved to court seeking to stop the Ministry of Labour from gazetting the agency fees from non-unionisable tutors.

The teachers argue that teachers who have not subscribed to a union should not be subjected to payment of agency fees, considering the 2021-2025 non-monetary collective bargaining agreement (CBA) which did not result in a salary increase.

According to the statements filed by Mr. Stephen Onditi and Mr. Paul Nzyathyu, the court should issue an injunction against the Teachers Service Commission (TSC) from effecting any orders from the Ministry of Labour on the fee.

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The respondents listed in this petition are; Kenya National Union of Teachers (Knut), the Kenya Union of Post Primary Education Teachers (Kuppet), the Kenya Union of Special Needs Education Teachers (Kusnet), TSC and the Cabinet Secretary for Labour and Social Protection.

“That no agency fee should be paid on a non-monetary CBA by employees who are not members of first, second and third respondents,” state the court papers.

The petitioners say the intended action by the Labour and Social Protection CS to gazette agency fees will have diverse psychological effects and will be unfair under the circumstances.

Kuppet charges an agency fee of 1.8 per cent, Knut takes two per cent while Kusnet claims 1.45 per cent of basic salary.

If gazetted, over 190,000 teachers who are not affiliated to any union in both primary and secondary schools will be deducted the fee, which will then be forwarded to the bodies.

The Labour Relations Act (2007) provides that employees who are not members of a trade union but are benefiting from terms of employment negotiated in a CBA are deducted an agency fee.

Through an affidavit, Onditi argues that since the unions signed the CBAs, teachers are stressed by the thought of being forced to pay an agency fee yet the maternity and paternity leaves contained in the document are provisions of the law under the Employment Act (2007).

The Labour CS Simon Chelugui intends to gazette the fee to be deducted from non-union members’  salaries based on a non-monetary CBA.

“The conduct of the respondents in hastily planning and signing a non-monetary CBA on which agency fee is to be paid to the first, second and third respondents is quite suspicious and shows that they are willing to go to earn agency fee from employees who are non-members of the unions,” Onditi.

He says the unions should have followed the right process instead of acting hastily to have the CBA signed.

“Such actions by the respondents cannot have the force of law and is illegal, improper, unfair and abusive leaving the petitioners exposed to unfair administrative action which is procedurally unfair,” states the affidavit.

The petitioners also want the CBA signed between TSC and Knut be declared unconstitutional since Knut does not substantially represent employees under the TSC and should not have signed the CBA.

They say TSC and Knut failed to follow the law and procedure as laid out in the Labour Relations Act when signing the CBA.

They allege that the agreement was simply signed to boost Knut financially after thousands of teachers withdrew their membership following constant wrangles with TSC.

Agency fee is money that an employee of a company / government department pays if the institution’s employees are represented by a union and the employee opts not to join that union. Agency fee is deducted from such employees monthly. For agency fee to be deducted from an employee, the employer must have an agency plant. The Teachers Service Commission, TSC for instance has an agency plant and therefore teachers have a choice not to join a union.

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Employees that have joined the union pay union dues monthly. Union dues are very different from agency fees since only registered members of union pay union dues and are liable to benefit from the union. Both union dues and agency fees are paid through a cheque off system.

Teachers are represented by either of the two trade unions, KNUT and KUPPET. Members of KNUT remit 2 % of their basic salaries monthly to the union as their counterparts in KUPPET remit 1.5 %.  Union dues are meant to support union welfares like payment of salaries, payment of rents, travelling costs, payment of legal levies, running of union projects, among others.

Non union members pay agency fees since they are regarded as beneficiaries of a collective bargaining agreement that they are not part of. The agency fee is intended to meet the costs of collective bargaining which non union members benefit from even if they don’t join the unions.

KUPPET enjoys 1.5 % of basic salary as agency fees from non members while KNUT enjoys 2 %. When TSC deducts the agency fees from, non members, it takes a small percentage and submits the rest to the unions.

Why pay agency fees to KNUT and KUPPET when there is an option not to? Agency fees can be rejected from pay slips through a number of ways.

One of the most effective ways of doing this is to join a union. When one joins a union, agency fees are stopped automatically by TSC and replaced with union dues. There is no need of feeding KNUT / KUPPET with your agency fee yet you are a non member. At least by being a member, you can enjoy the services of their lawyers when you are in trouble, services that non members do not enjoy. Membership registration forms can be obtained from the  union offices country wide.