The issue of teachers being denied the right to vote or vie for union positions has caught many educators completely unawares. In Kericho County, more than 400 teachers were barred from participating in union elections because they were not registered members of the union, even though they were paying what is commonly called an “agency fee.”
This deduction, however, is not a membership fee but an agency fee. The problem has exposed a deep misunderstanding among teachers about what the deduction means, and it has raised questions about transparency, communication, and fairness in the education sector.
Martin Sembelo, KNUT Executive Secretary for West Pokot, says the law is clear and unambiguous. He explains that any teacher paying an agency fee is not a union member and therefore has no voting rights. Sembelo also notes that the law disqualifies anyone who has not been a member for three consecutive years, meaning former members who have allowed their membership to lapse for that long are barred from participating in union elections.
His statement underscores the legal basis for the exclusion, emphasizing that the union is bound by its constitution and the Labour Relations Act, which restrict voting and candidature to fully registered members in good standing. While this may be unpopular, it explains why teachers who assumed that paying the fee granted them full membership were shocked when they were denied their democratic rights in Kericho.
Many teachers have always assumed that if money is deducted from their salary for union-related purposes, they automatically become members with full rights. They believe that paying the agency fee means they can vote, vie for leadership positions, and participate fully in union activities. This assumption is understandable because the deduction is often taken without clear explanation, and teachers may not receive adequate information from either the TSC or the unions.
When the Kericho teachers discovered that they were excluded from elections, the shock was real. Some of them had been contributing agency fees for years, believing that the money entitled them to the same rights as union members. The exclusion therefore felt like a betrayal and a violation of their democratic rights.
To understand why this happens, it is important to explain what the agency fee is. The Labour Relations Act, 2007 allows unions to collect an agency fee from non-members who benefit from the outcomes of collective bargaining. When unions negotiate salary increments, allowances, or improvements in working conditions through Collective Bargaining Agreements (CBAs), the benefits extend to all unionisable teachers covered by the agreement, including those who are not members.
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The agency fee is meant to ensure fairness: non-members should contribute to the cost of negotiations because they still enjoy the benefits. However, this fee does not grant the payers membership rights. It simply compensates the union for the services provided through collective bargaining. Therefore, while a teacher may benefit from union negotiations, they do not become a union member by merely paying the agency fee.
The distinction between an agency fee and union membership is critical, but it is not widely understood. The terminology itself creates confusion. Many teachers refer to the deduction as an “urgency fee,” a phrase that suggests something temporary or compulsory, and which does not convey the legal meaning of the deduction. This mislabeling, combined with lack of clear communication, has led to the misunderstanding that paying the fee makes one a member.
In Kericho, the teachers who were barred from voting and vying for positions were not being punished for paying the agency fee. They were simply not members, and union constitutions clearly state that only members may vote or contest leadership positions. Union rules are legally binding, and leadership is elected by members who have voluntarily joined and committed themselves to the union’s constitution.
The Kericho incident also highlights a deeper issue: the problem of inadequate information and awareness among teachers. Many teachers are not sensitized about the legal implications of being an agency-fee payer. They do not know the difference between full membership and paying a fee for collective bargaining benefits. Some teachers may also be unaware of the process of registering as union members, or they may have assumed that the deductions made from their salary automatically made them members. This lack of awareness has created a situation where teachers are effectively excluded from union democracy without having knowingly chosen to opt out. This is why the issue has been so sensitive and why the teachers feel aggrieved.
It is also important to consider the principle of voluntary association, which is at the heart of this issue. Freedom of association is a constitutional right, and teachers cannot be forced to join a union. A union is a member-based organization that must be governed by its constitution. Allowing non-members to vote or vie for leadership positions would undermine the autonomy of the union and dilute the accountability of its leaders.
Leaders must be elected by people who have voluntarily joined the union and accepted its rules and responsibilities. If non-members were allowed to participate in elections, the union would risk becoming a body controlled by people who are not committed to its objectives, values, and discipline. This would weaken the union’s ability to represent its members effectively.
However, while the principle of voluntary association is important, the Kericho case raises the question of fairness. Teachers who pay the agency fee are still contributing to the union financially, yet they are denied the right to participate in union governance. This has led to resentment and feelings of injustice. Some teachers feel that if they are paying money for union services, they should at least be allowed to vote or contest for leadership. The law, however, is clear: the agency fee is not a substitute for membership. It is only a contribution toward the cost of collective bargaining. It does not entitle the payer to membership rights, which are reserved for those who voluntarily join the union.
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The lack of clarity and communication has therefore become a major problem. Teachers must be sensitized about what agency fees mean and what rights they do and do not confer. Unions and the TSC should take responsibility for ensuring that teachers understand the difference between membership and agency fee payment. This can be done through workshops, circulars, and clear communication on payslips. Teachers must be informed in plain language, and not left to assume that deductions automatically make them members. This will help prevent future cases where teachers are caught unaware and excluded from union democracy.
The Kericho experience also calls for better governance and transparency within unions. While the law may be clear, unions have a duty to ensure that their members and those affected by agency fees are properly informed. This includes explaining the benefits of membership, the process of joining, and the rights that members enjoy. Unions should also clarify why agency-fee payers cannot participate in elections. This will help teachers understand that the exclusion is not arbitrary, but is based on legal and constitutional requirements.
Ultimately, the Kericho incident is a wake-up call for teachers and unions alike. It shows that many teachers are not aware of the implications of not being union members, and it highlights the need for proper information and awareness. It also underscores the importance of union democracy and the principle of voluntary association. Teachers must be empowered with knowledge so that they can make informed decisions about union membership and participation. The issue is not only about paying a fee; it is about understanding rights, responsibilities, and the legal framework that governs the teaching profession.
As the education sector continues to evolve, it is important that teachers are not left behind in understanding their rights. The agency fee is a legal deduction that ensures fairness in collective bargaining, but it does not replace union membership. Teachers who wish to participate in union elections must take the initiative to register as members and fulfill the requirements of the union. Unions and TSC should also ensure that teachers are well informed to avoid similar incidents in the future.
The Kericho case has shown that when teachers are not properly informed, they can be excluded from important democratic processes, leading to frustration and mistrust. It is therefore essential that clear communication, transparency, and awareness become a priority in the education sector, so that teachers are not caught unawares again.
By Hillary Muhalya
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