By Kevin Mugwe Njuguna
Discussions relating to collective bargaining agreements (CBAs) have boldly, yet not surprisingly, rivalled political debates in capturing media attention over the recent months in Kenya. The Kenya National Union of Teachers (Knut), which has been the Achilles Heel to successive governments over the years, proclaimed in October 2016 that they had signed a CBA with the Teachers Service Commission (TSC).
The CBA was hailed as one that would bring an end to the unending menace of teacher’s strikes and, importantly for government, enable them to focus on 2017 elections without being distracted or derailed by the hue and cry of professional bodies. However, the ghosts of another CBA previously signed, have returned to haunt them. This came in the form of the determined doctors’ strike.
The Kenya Medical Practitioners and Dentists Union (KMPDU), which has spearheaded the strike, has done so with enviable zeal and impetus. Their bone of contention has been the blatant failure to implement a CBA signed in 2013. The daring and contemptuous doctors have disregarded court order terming the strike illegal and further rejected alternative proposals, even one offered by the highest office on the land. They have maintained in no uncertain terms that they shall only be placated by the implementation of the CBA.
Even as the government, both the national and county, grapple with how to deal with and please the stubborn doctors, the Universities staff academic union (UASU) and Kenya University Staff Union (KUSU) have also mobilised their members to go on strike. This one is also predicated upon another CBA.
This unfolding turn of events has brought into sharp focus the significance and operation and implementation structures of CBAs. CBAs are of great significance and are enshrined in law. The Labour Relations Act provides under Section 57 that an employer, group of employers or an employers’ organisation that has recognised a trade union shall conclude a collective agreement with the recognised trade union, setting out terms and conditions of service for all unionisable employees covered by the recognition agreement. It is, therefore, the preserve of a trade union to initiate and reach a collective agreement on behalf of its members.
A CBA enjoys similar status as an ordinary contract. Section 59 categorically states that a collective agreement binds, for the period of the agreement, (a) the parties to the agreement; (b) all unionisable employees employed by the employer, group of employers or members of the employers’ organisation party to the agreement; or (c) the employers who are or become members of an employers’ organisation party to the agreement, to the extent that the agreement relates to their employees. All the terms are also expected to incorporated into the terms of the employee’s contract. The CBA should, upon conclusion, be deposited with the Industrial court, now the Employment and Labour Relations Court, by dint of Section 60 of the Act.
The law on CBAs is anything but complex as demonstrated in the foregoing. However, despite this, the prevalence of strikes arising out of unimplemented CBAs has become the norm. The government has repeatedly come up with unbelievable reasons why a particular CBA cannot be implemented. For instance, in relation to the most recent doctors strike, it has been claimed that the Principal Secretary who signed the CBA in 2013 had no authority to do so, thus rendering the agreement invalid. This argument is continuously peddled yet no disciplinary proceedings have been initiated against the alleged “rogue” official. More importantly, the CBA was not registered at the Employment and Labour Relations Act, yet the Act demands that this ought to be done fourteen days after its completion. This inaction by the Ministry of Health, coupled with its feeble defence of non est factum with regard to the signed agreement, act as an impediment to the implementation of the CBA.
The defence that an agreement was not the current government’s deed was also proclaimed during the teachers strike back in 2013 when the Jubilee government ascended into power. This is an unfortunate illusion since Section 59(2) of the Act safeguards the continuity of a CBA as long as the parties were parties to it during its commencement. A government is perpetual in nature and a CBA signed by a previous ruling class does not preclude the successive governments from being bound to it.
The Government of Kenya is therefore a great hindrance in the implementation of CBAs. They have perfected the art of delaying registration and denying that they are parties of the said agreement. It is, however, of essence to note that a reconciliation between the roles to be played by the national government and the county government in relation to CBAs be well set out in law when doctors issues are the subject of conflict. The devolution of health had had the effect of mandating devolved units to play a major role.
The Employment and Labour Relations Court has, in recent times, declared most strikes illegal. The Court has had to delicately balance the mischievous nature of the government when dealing with CBAs, as well as the manner in which leaders of trade unions treat with disdain court orders that are issued. The court ought to exercise wisdom and be authoritative in resolving CBA conflicts since they are Kenyans hope in bringing the two ever-antagonistic parties to CBAs. ^
Author is a development practitioner and a part time lecturer of International Relations; @lennWanyama