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Tuesday, May 23, 2017

Inside the striking doctors’ 2013 collective bargaining agreement

A family takes care of a sick relative outside Kenyatta National Hospital doctors plaza after the operations in the facility was interrupted by the doctors strike on December 19, 2016. The doctors union said the private hospitals will close down on December 22, 2016 in solidarity with the doctors in strike./JACK OWUOR
A family takes care of a sick relative outside Kenyatta National Hospital doctors plaza after the operations in the facility was interrupted by the doctors strike on December 19, 2016. The doctors union said the private hospitals will close down on December 22, 2016 in solidarity with the doctors in strike./JACK OWUOR

The government claims it has met 80 per cent of the CBA, the only contention being salaries and allowances, but doctors disagree.

What else is inside the 2013 collective bargaining agreement that doctors are so ready to die for?

According to Daisy Korir, the treasurer of the Kenya Medical Practitioners and Dentists Union, the 27-page document has been so mystified that a certain Cabinet Secretary winces whenever it is mentioned during negotiations.

“Whenever you mention the CBA on the negotiating table, some people are nearly convulsing. We need to let people know what it is,” she says.

NOT LEGALLY ENFORCEABLE

The current document is not legally enforceable after the Labour Court in October ruled that it must be negotiated afresh.

However, the KMPDU negotiating team chairman, Dr Alex Muturi, says without it the union might just die.

“Any union stands on two things: the membership and the CBA. The CBA is the only reference any union has with the employer,” he says.

Muturi on Tuesday told striking doctors he suspects the government’s unwillingness to implement the agreement is a plan to kill their union.

KMPDU was registered in 2011, when the new constitution was adopted. The new laws gave every Kenyan worker the freedom to join a trade union and compelled every employer to recognise employees’ trade unions.

Their first action was organising the December 2011 strike that lasted only a few days after doctors agreed on a return-to-work formula.

On March 22, 2012, the Health ministry signed recognition agreement with the union and the two formed a team that worked out the collective bargaining agreement.

Negotiations for CBA lasted more than one year, and the document was finally signed by then KMPDU secretary general Sultani Matendechero and chairman Victor Ng’ani on June 27, 2013.

Former PS Mark Bor signed on behalf of the Health ministry.

The agreement suspended the proposed salaries and allowances until the Salaries and Remuneration Commission sets out guidelines for remuneration of doctors in public service.

The ministry was expected to submit the document to SRC for review and then the Labour Court for registration.

The union accuses the ministry officials of using “delay tactics” to frustrate implementation of the agreement for three years.

The union moved to the Labour Court in June 2015, seeking registration of the CBA in its current form or with amendments agreed by both parties.

The union also asked the court to declare the unregistered CBA valid if the Health ministry does not cooperate, and to backdate it to 2013.

COUNTY EMPLOYMENT

Doctors also insisted they are not county employees.

“The county governments are not the employers of doctors and, therefore, have no legal obligation that a collective bargaining agreement be negotiated with them,” KMPDU said.

In response, the ministry said the 2013 CBA was defective because health was devolved on February 1, 2013 (Gazette notice No 16 of 2013) and most doctors are now employed by counties.

“The respective county governments were not involved at the negotiations and signing of the CBA,” the ministry said.

It also claimed the agreement was signed by a former PS illegally. Health PS Fred Segor replaced Bor, now the chairman of Kenyatta National Hospital, on June 25, 2013.

However, Bor signed the agreement two days later, when he was already out of office.

“The CBA has not been implemented because it was signed by a non-officer. It had not been assessed by the SRC and Treasury. The ministry had not approved its signing,” the ministry says.

Dr Muturi says if Bor acted illegally, he should be in jail.

In her ruling on October 6 last year, Lady Justice Monica Mbaru told doctors the 2013 CBA does not comply with the law and cannot be registered.

“Without such registration, the collective bargaining agreement has no legal effect and cannot be enforced,” she said.

She noted the Health ministry acted in bad faith all along to derail the agreement’s registration.

Justice Mbaru also ruled that Bor’s signature on the CBA is valid because the backdated gazette notice that announced a new PS in the ministry was published on June 28, a day after the signing.

She asked doctors to embrace the reality of devolution and the fact that most of them are now employed by county governments.

“It will aid justice, fair labour practice and effective administration of the CBA to include major stakeholders — county governments,” she said.

ORDERED TO NEGOTIATE

She directed the union and the ministry to meet within a month to review the clauses they had not agreed on in the 2013 CBA.

They would then get the input of all other parties and return to the court in 90 days (expiring January 6, 2017) to register a new CBA.

KMPDU secretary general Ouma Oluga complains the ministry did not constitute a negotiation team within the first month.

The union immediately issued a strike notice and disregarded belated attempts by the ministry to start negotiations before expiry of the 90 days.

Labour Court judge Hellen Wasilwa last month declared the strike illegal and ordered doctors to return to negotiations.

The government has since offered the 5,000 doctors in public service an additional Sh4 billion, pushing the monthly salary of an intern to Sh197,000, up from Sh127,000. Public Service Commission chair Prof Margaret Kobia says union proposal for interns to earn Sh325,000 will distort the public service pay structure and burden Kenyans with additional Sh12 billion every year.


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