Labour court stops SRC bid to scrap medics’ allowance

Lyn Mengich

Salaries and Remuneration Commission Chairperson Lyn Mengich.

Photo credit: Lucy Wanjiru | Nation Media Group

It is a win for the medical fraternity after a court prohibited the Salaries and Remuneration Commission (SRC) from enforcing a circular scrapping of the non-practice allowance.

Justice Stellar Rutto of the Employment and Labour Relations Court in Nairobi stopped the SRC from enforcing a circular dated November 25, 2022.

“An order is hereby issued declaring the circular on the proposal to abolish non-practice allowance unconstitutional and in conflict with Article 41 and 234 (2) of the Constitution of Kenya, 2010,” says the ruling.

Through the circular, addressed to all County Public Service Boards and relevant County Executive Committee members, the Commission asked for written submissions on the allowances for review, setting, and advice.

The circular was titled, ‘Proposed review, setting, and advice on retreat, task force, non-practice, meal, extraneous, entertainment allowances, and sitting allowances for institutional internal committees in the public service. Of relevance to the dispute was the proposal by the SRC to abolish the payment of non-practice allowances in public service. This did not augur well with the Kenya Medical Practitioners and Dentists Union (KMPDU).

Secretary-general Davji Atellah on January 17, 2023, moved to court to challenge the SRC circular.

The union said its members in the public sector have always been earning a non-practice allowance as part of their remuneration. This is to compensate them for what they would have earned had they opted to remain in private practice.

In its filings, the union said under Article 5 of the current collective bargaining agreement (CBA), non-practice allowance constitutes the union members’ remuneration.

CBA negotiations

According to the KMPDU, the circular denies them the right to freely bargain with employers. The circular set the stage for a gridlock during the next phase of CBA negotiations, denying them the right to freely engage in collective bargaining, the KMPDU argued.

The union termed the advisory discriminatory for targeting county staff as their national government counterparts continued to draw the allowances.

The union argued that by taking away the allowance as proposed, its members will not only be prejudiced through a reduction in remuneration, but they will also be indiscriminately deprived of property, contrary to Article 40(2)(a) of the Constitution.

In defence, the SRC, through chief executive Anne Gitau, opposed the petitions, arguing they did not reveal cause of action as the circular was a draft and had not gone through public participation.

The Public Service Board chief executive, Dr Simon Rotich, said the SRC is overstepping its mandate, veering into the employment role of State organs concerning public officers, encroaching on the roles of other constitutional bodies responsible for reviewing conditions of service for public officers under them.

Dr Kahura Mundia, who said he was a facial surgeon, a lawyer, a public servant and a member of the KMPDU, indicated in his affidavit that the circular was done with offensive prejudice, with a predetermined course and "without public participation from key stakeholders given its impact.

The Public Service Board chief executive, Dr Simon Rotich, said the SRC is overstepping its mandate and veering into the employment role of State organs with respect to public officers and encroaching on the roles of other constitutional bodies responsible for reviewing conditions of service for public officers under them.

“The parties to a CBA are the trade union, the employer's organisation and the employer. The SRC in the instant case is exceeding its mandate by trying to advise on the Non-Practicing Allowance. SRC cannot be a third party in an employer-employee relationship to clear negotiated agreements and even to monitor implementation of the advice it has given,” says Dr Rotich.

He asserts that the payment of the non-practice allowance is in line with the Conflict of Interest Bill, 2023 which, if passed into law will bar a public officer serving on a full-term basis from participating in any other employment that amounts to privately practising the same profession for which the official is engaged.

According to Dr Rotich, the court should safeguard and ensure that workers' standards of living improve and do not go down by among other things, restoring the loss of purchasing power that they might suffer by among other things, increasing their real income.

In defence, the SRC through the chief executive SRC contended that the dispute presented was therefore speculative as the issues raised were premature and anticipatory.

She stated that in accordance with Article 10 of the Constitution, it first invited select key stakeholders to provide written submissions on the five allowances proposed for review.

“Seeking the views of stakeholders is normally done in a phased manner and in the instant case, the national and county governments, being the employers, were invited to give their views in the first place,” Ms Gitau indicated.

Whether SRC overstepped its mandate in proposing to abolish payment of non-practice allowance in the public service, the court indicated that one of the key terms of employment negotiated and agreed upon during the collective bargaining process is remuneration and benefits.

“Non-practice Allowance is a form of financial compensation paid by the government to certain categories of professionals who cannot practice due to their engagement in the public service. Ideally, it is compensation for their sacrifice of private practice after joining the government service,” the court ruled.

Further, SRC cannot dictate to employers how to negotiate with trade unions in the process of collective bargaining, as it proposes to do in this case. Therefore, the proposal by SRC to the effect that payment of the non-practising allowance ceases to be payable upon lapse of existing CBAs is contrary to the spirit of the collective bargaining process as envisaged under Article 41(5) of the Constitution,” it ruled.

“I reiterate that SRC only performs its advisory role once parties (employers and trade unions) have negotiated and agreed on the terms and conditions of service of the employment. Certainly, this cannot happen before such terms are set by the key players in the employment relationship,” Justice Rutto ruled, adding that SRC could not propose to abolish a key term of service that had already been negotiated and agreed upon.