Recent events indicate that the Jubilee Government has and will continue to have a rocky relationship with unions representing public officers.
From the outset it would appear the government had no intentions of engaging unions in any way. Many in government appear to have resolved engaging with trade unions is a waste of time, and needs to be outsourced in order to allow government a free hand in running its affairs.
Over the past four years, the Jubilee Government identified the Salaries and Remuneration Commission (SRC) as the ideal agency to quell all industrial unrest in the public sector.
They engineered the reinterpretation of the role of the commission in terms of public officer remuneration from one of “advising” to one of “setting”, eliminating the clear difference between State Officers and other Public Officers as delineated in the Constitution.
The SRC is currently involved in a process of setting the pay and benefits of all public officers, and all indications are that from July, they will issue a circular providing for this.
Due to the existence of the uncontested Appeal Court ruling that SRC advice is mandatory and “binding”, it follows that whatever the Commission will say in July will acquire the force of law. This, in my view, will mark the beginning of the end for trade union activity in this country.
MOVE TO COURT
Unless the unions move to court to seek an interpretation of the SRC mandate of setting State Officers’ pay and “advising” on the pay of all other public officers, from July this year they will be reduced to welfare associations.
They will be more involved in contributing to help members clear hospital bills and arranging funerals for them and loved ones, since the Collective Bargaining Agreement (CBA) process provided for in the Constitution will have been defeated.
No public sector employer will spend any amount of time negotiating salary and other emoluments with unions. Any time the unions make offers for revision of their Collective Bargaining Agreements they will be shown the SRC “advice” and informed the advice is binding.
The employers will claim their hands are tied and they cannot vary the figures without further “advice” from the SRC. On their part, SRC will wring their hands and argue that they are not mandated to negotiate with the unions. This will leave unions without a clear partner to negotiate with, and the workers will be at the mercy of periodic advisories from the SRC.
One, therefore, wonders why the unions have not made any noise about the elimination of this key right that is guaranteed in the Constitution! One would have expected they would have rushed to the Supreme Court after the Court of Appeal ruling against the teachers’ union. The very soul of trade unionism is under threat, and it is a matter of great irony that the trade union movement is actually represented in the SRC!
NO MEANINGFUL NEGOTIATIONS
Currently, the government intends to continue stalling the unions, offering piecemeal tiny payrises in the hope that these will be “harmonised” after July when the SRC issues its public officer pay advisory.
There will be no meaningful negotiations before then due to the absence of SRC advice. Lawyers will tell us that no legal instrument can rise above the provisions of the constitution, thereby annulling all CBAs signed before the SRC advisory.
What is unclear to most observers is whether the trade unions can see this manoeuvring and are not bothered by it, or whether they are blind to the existential threat facing them. If they are not bothered by these developments for whatever reason, then perhaps they have a hidden plan to address it, and it may be useful to activate it now before it is too late.
If, on the other hand, they are oblivious to the threat facing them, then the problem is bigger than anyone may think.
The industrial relations landscape in this country has changed and, unless the trade unions change to match it, they will be swept away in the ensuing avalanche.
Atwoli is associate professor of psychiatry and dean, School of Medicine, Moi University. [email protected]