INTRODUCTION:
On or about 12th April 2024, the members of Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU) decided to take it to the streets with a number of demands from the government.[1]First and foremost, they wanted the government to pay their salary arrears, secondly, they wanted the government to post and increase the salaries for medical interns, thirdly, they wanted a comprehensive medical cover for the doctors, lastly and most importantly, they wanted the government to honour the promises they laid down in the Collective Bargaining Agreement (CBA) of 2017. This quest is still ongoing three months later.
I think it’s safe to say that the medical practitioners could not be patient with the government anymore. Therefore, this blog tries to highlight the problems arising in labour disputes, especially the ones relating to essential services such as the health sector and how alternative dispute resolution (ADR) mechanisms can be employed to achieve sustainable solutions therein.
ESSENTIAL SERVICES RIGHT TO STRIKE: LEGAL PRESCRIPTIONS
The living document that breathes justice, equity and fairness accords every worker in Kenya the right to fair labour practices including the right to go to a strike.[2] This provision is very critical as it ensures public safety and welfare considerations at large are taken care of. The right to strike has also been reiterated by Section 76 of the Labour Relations Act of 2007 which allows employees to strike if the dispute concerns the terms and conditions of the employment.[3]
Unfortunately, the right to strike comes with its limitations as it is not an absolute right. Among the limitations include the prohibition of essential services workers from striking.[4] Essential services means, a service whose interruption would endanger the life of others.[5] They include water supply services, hospital services, air traffic control services and fire services. This has left the healthcare workers in a dilemma since on one hand, their strike involves terms and conditions of their employment and on the other hand, they are essential to the lives of Kenyans.
A BRIEF DIAGNOSIS OF THE 2017 COLLECTIVE BARGAINING AGREEMENT
A collective bargaining agreement is a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers’ organization.[6] Section 54 of the Labour Relations Act recognizes the need and enforceability of CBAs.[7] Section 14 of the Employment Act, 2007 similarly allows employers and employees to create collective agreements.[8]
In 2017, the KMPDU made good on their notice to strike.[9] This strike marked one of the longest strikes in the healthcare sector that lasted for over 100 days.[10] The strike not only put the lives of Kenyans at risk, but also paralyzed the economy of the country. Thus, on 1st July 2017, the government signed a CBA with the union.[11] Accordingly, the strike came to an end under the conditions laid down in the CBA.[12]
Noteworthy is the duration of the CBA, Article I(A)(1) of the CBA provided that the agreement was to take effect as from 1st July 2027 and expire after 4 years.[13] KMPDU has alleged that the government refused to make a counter to their 2021-2025 CBA proposal and delayed the implementation of the 2017 CBA.[14]
Further, the terms of Article IV of the CBA outlined the remuneration for the members of KMPDU. It was agreed therein that medical interns shall be earning at the rate commensurate with the entry level group for medical officers. Accordingly, the expected remunerations (basic salary plus allowances) for the post internship engagement were supposed to add up to Kshs.200,000, give or take. This has not been actualized by the government. Furthermore, the government has been withholding salaries for most members of the Union without any reasonable cause.
IMPLEMENTATION AILMENTS: THE GOVERNMENT’S CBA CHALLENGES
Several hurdles impede the fulfilment of the CBA provisions by the government, they include the following:
Firstly, the differences in definition of Collective Agreement in the text of law. The definitions of the collective agreement provided for under the Employment Act and the Labour Relations Act have always been the bone of contention in the corridors of justice. This was witnessed in the case of Said Ndege vs Steel Makers Ltd [2014] eKLR and Kenafric Industries Limited vs Bakery Confectionary Food Manufacturing and Allied Workers Union [2014] eKLR where two judges held contradictory judgments on when a collective agreement comes into force.[15]
Secondly, the confusion in interpreting the point when CBA comes into force. The aforementioned Acts once again present a conundrum to parties involved in CBAs. Rule 36 (5) of the Employment and Labour Relations Court (Procedure) Rules, 2016 provides that a CBA only takes effect after it has been registered by the Employment and Labour Relations Court.[16] However, Section 59 (5) of the Labour Relations Act states that a CBA can be implemented upon registration by the Industrial Court and it becomes effective from the date agreed by the parties therein.[17] This gives room for parties to deliberately delay registration of a concluded a CBA too undermine its validity or delay implementation of its terms.
Lastly, CBA has been turned into a litigation process neglecting the need for parties to negotiate their interests. Parties to CBAs have lost their good faith in resolving their disputes, thus, it has become a long court-ordered dispute resolution mechanism devoid of mutual co-operation. Often, CBA is a court-mandated process that arise when one party fails to honour the terms of the agreement.
THE ROLE OF ADR IN RESOLVING LABOR DISPUTES
As the name suggests, ADR are alternatives to litigation. They include mediation, conciliation and arbitration. They are often less adversarial than litigation. Part VII of the Labour Relations Act provides that parties can notify the minister about their disputes and the minister would then appoint a conciliator to mitigate the trade dispute.[18] The conciliator is expected to resolve the matter after 30 days of his appointment.[19] Conciliation is seen as the first viable option for parties in a trade dispute. [20]
Additionally, Section 58 of the said Act allows parties to conclude CBAs through arbitration of any category of trade disputes identified in the collective agreement by an independent and impartial arbitrator appointed by the agreement between the parties.[21] This means that arbitration could be employed in literally every type of trade dispute.
APPLICABILITY OF ADR TO THE DOCTORS' STRIKE
In the present case of the doctors’ strike, the most viable cure to resolve their dispute at this stage is through ADR. The ADR mechanisms that will be applicable include conciliation and arbitration. However, mediation is not completely out of the question either.
It’s quite important to note that conciliation is less rigid as compared to arbitration, thus, KMPDU members should first seek the intervention of a conciliator, an arbitrator then if no solution is found, they can take the matter to court.
A HEALTHIER CHOICE: BENEFITS OF ADR OVER LITIGATION
ADR blankets several benefits for not only the medical practitioners who slept outside the Ministry of Health’s premises in protest of the status quo of their working conditions, but also the government. First, ADR offers the parties a method to resolve their dispute in accordance with the formalities as agreed upon by the parties.[22] It also provides the parties with a fair process and reduces the long drawn out process involved in litigation. It is trite that litigation is full of formalities which ends up defeating justice through delays involved, but as stated earlier, ADR mechanisms need not drag for over 100 days. This can help the government save the costs of a dragged-out case.
Additionally, the ADR practitioners involved in these type of disputes are usually professionals who understand the position of each party through their vast knowledge, skills and expertise. This is unlike the litigation process involving a single judge or a panel of judges who have no empathetical abilities to understand the ailment of each party.
CONCLUSION
In conclusion, the adoption of Alternative Dispute Resolution (ADR) mechanisms such as mediation, conciliation and arbitration pose the best cure to the ongoing doctors’ strike. As such, all the parties involved need to dance to the tunes of peace by choosing ADR. The government, having vowed to provide the highest attainable standard of health is utterly breaking this promise by prolonging the dispute. Therefore, it should put on its prescription glasses and see that ADR not only provides an expeditious avenue to dispute resolution but will also help preserve the relationship subsisting between them and the doctors.
AUTHOR’S BIOGRAPHY
Raphael Okochil is a young lawyer with a fervent passion for legal research, especially in Alternative Dispute Resolution. He is the founder of ADR & The Law and currently serves as an editor at Embellish Network. He can be reached via raphaelokochil@gmail.com .
[1] Sharon Wanga, ‘Labour CS Bore Tells Striking Doctors to give Dialogue a Chance ‘ The Standard Media (Nairobi, 12 April 2024) < https://www.standardmedia.co.ke/health/national/article/2001493080/labour-cs-bore-tells-striking-doctors-to-give-dialogue-a-chance > accessed 16 April 2024
[2] Constitution of Kenya, 2010, art 41(2)(d)
[3] Labour Relations Act 2007, Laws of Kenya, s 76
[4] Labour Relations Act 2007, Laws of Kenya, s 81(3)
[5] Labour Relations Act 2007, Laws of Kenya, s 81(1)
[6] Labour Relations Act 2007, Laws of Kenya, s 2
[7] Labour Relations Act 2007, Laws of Kenya, s 54
[8] Employment Act 2007, Laws of Kenya, s 14
[9] Basillioh Rukanga, ‘Kenya doctor strike: The public caught between the medics and the government’ BBC News (Nairobi, 16 April 2024) <https://www.bbc.com/news/world-africa-68769839 > accessed 17 April 2024
[10] Basillioh Rukanga, ‘Kenya doctor strike: The public caught between the medics and the government’ BBC News (Nairobi, 16 April 2024) <https://www.bbc.com/news/world-africa-68769839 > accessed 17 April 2024
[11] Eric Owenga, ‘Doctors' Strike: Governors warn gov't against implementing contentious 2017 CBA’ Citizen Digital (Nairobi, 16 April 2024) < https://www.citizen.digital/news/doctors-strike-governors-warn-govt-against-implementing-contentious-2017-cba-n340491 > accessed 17 April 2024
[12] Eric Owenga, ‘Doctors' Strike: Governors warn gov't against implementing contentious 2017 CBA’ Citizen Digital (Nairobi, 16 April 2024) < https://www.citizen.digital/news/doctors-strike-governors-warn-govt-against-implementing-contentious-2017-cba-n340491 > accessed 17 April 2024
[13] Musikali Advocates LLP, ‘Doctor’s Strike: The place of collective bargaining agreement in Kenya’ LinkedIn (Nairobi, 15 March 2024) < https://www.linkedin.com/pulse/doctors-strike-place-collective-bargaining-agreements-3bmif > accessed 16 April 2024
[14] Musikali Advocates LLP, ‘Doctor’s Strike: The place of collective bargaining agreement in Kenya’ LinkedIn (Nairobi, 15 March 2024) < https://www.linkedin.com/pulse/doctors-strike-place-collective-bargaining-agreements-3bmif > accessed 16 April 2024
[15] Said Ndege vs Steel Makers Ltd [2014] eKLR and Kenafric Industries Limited vs Bakery Confectionary Food Manufacturing and Allied Workers Union [2014] eKLR
[16] Employment and Labour Relations Court (Procedure) Rules, 2016, rule 36(5)
[17] Labour Relations Act 2007, Laws of Kenya, s 59(5)
[18] Labour Relations Act 2007, Laws of Kenya, s 65
[19] Labour Relations Act 2007, Laws of Kenya, s 67(1)(a)
[20] Labour Relations Act 2007, Laws of Kenya, s 65
[21] Labour Relations Act 2007, Laws of Kenya, s 58
[22] Abdul Hamid, Tuan Raja, Norazia Wahab, Siti Noor, Roslinda Ramli, ‘Advantages of alternative dispute resolution (ADR) over litigation in dispute resolution’ (2018) 30 Science International
