Blow for doctors as State says ‘illegal’ CBA to disrupt public pay structure

The Government will not honour doctors’ demands despite the ongoing strike, The Standard on Sunday has established.

Highly placed sources in the Office of the President and Ministry of Health say a decision has been reached to disregard the Collective Bargaining Agreement (CBA) between doctors and the Government due to “its apparent illegal nature”.

This effectively throws the search for truce between doctors and the Government into unpredictability as the medics dig in.

And as the Government dismissed the Kenya Medical Practitioners and Dentists Union (KMPDU) as an organisation seeking to benefit from an illegal arrangement, the trade union emerged to say it will dictate talks going forward.

“We shall dictate the terms of engagement henceforth. It’s not our fault that for 54 years the Government of Kenya has neglected public healthcare,” said KMPDU Chair Dr Samuel Oroko.

“I want to make it clear that we only have one objective in this strike: CBA implementation in full. Nobody should be allowed to change this.”

Not registered

The Government, according to sources, has established several grounds to disregard the CBA. It argues that the agreement is illegal because it was not registered with the court in accordance with Section 60 of the Labour Relations Act.

The law requires any CBA between an employer and a trade union to be submitted to the national labour court for registration.

The Government holds the view that the agreement itself contains unreasonable and illogical demands. Further, its very implementation, even if it were legal, has already been suspended within it until the Salaries and Remunerations Commission (SRC) has reviewed it.

“Part of the thinking is that we will have to review salaries and allowances payable to intern doctors. There is no way interns at job group L should earn over Sh190,000 yet other confirmed public servants with over 10 years’ service to the Government earn much less. There has to be harmony in the public sector. The said interns also earn unjustifiable allowances. Again, SRC is yet to give a way forward. As a result, we cannot proceed,” a source told The Standard on Sunday.

Confirmed State counsels start at job group L (Sh110,110), but earn Sh30,000 less than medical interns who earn a minimum of Sh140,244 at the same Job group. Resident magistrates earn between Sh123,750 and Sh190,000. KMPDU wants remunerations for intern doctors increased to Sh208,236.

Article 4 (Remuneration) of the doctors’ CBA reads, “Basic salary per job group shall be payable as set out in the appendix. However, implementation of this article on remuneration (basic salary and allowances) remains suspended until such a time when Salaries and Remunerations Commission will have provided clear guidelines on setting of salaries and remunerations of doctors in public service.”

A Government officer, who sought anonymity, said: “We have considered this matter at length and as government we cannot implement an illegality. It will not happen especially when the courts have determined the agreement as illegal and thus not enforceable.”

The other important element is that former Health PS Mark Bor could not legally commit the Government on this matter because there was a new PS who had been sworn in when he signed the CBA.

“As far as we know, the Government did not sign it. Mark Bor did, but not on behalf of the Government because he was not PS,” the source said.

Before the Labour Relations Court, the Health Ministry said, “The collective bargaining agreement was signed by an officer who had since left the ministry as Permanent Secretary and as such the collective bargaining agreement is invalid, has no legal force and cannot be enforced.”

Devolved function

Government has also insisted that health is a devolved function, with only Kenyatta National Hospital and Moi Teaching and Referral Hospital falling under national government.

“Over 80 per cent of medical staff are paid by county governments. You cannot hold the National Government responsible for such salaries,” said an adviser in the Office of the President.

In his ruling with regard to the CBA, Employment and Labor Relations Court Judge M Mbaru said, “It would not help the claimant (KMPDU) to have an empty bargaining agreement as it were. To register a document that will bear no fruits as the health function is devolved and majority of the claimant members or potential members are in counties. It will aid justice, fair labour practice and effective administration of the collective bargaining agreement to include major stake holders -- the counties.”

Doctor’s union officials who had been committed to a one-month jail term for contempt of court but later freed by court of appeal, have sworn that the strike will continue unless the government implements the agreement.