"The law is an ass"

Who said, “the law is an ass”? In my quest for the answer, I turned to Google, my favorite search engine. The search reveals that several sources attribute the phrase to Charles Dickens, who popularized it in Oliver Twist (1838). The phrase is also found in an earlier work by English dramatist George Chapman, Revenge for Honour (1654). Below is a quote from Oliver Twist:

When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that ‘…the law supposes that your wife acts under your direction,’ replies:

‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass - a idiot’.

Mr. Bumble cannot understand how the law can possibly hold him responsible for the theft committed by his wife. Yet, the law holds him responsible!

Indeed, there are times when the application of law seems to defy logic, if not common sense. I am reminded of the stand-off between the Judicial Service Commission (JSC), and the Salaries and Remuneration Commission (SRC), over sitting allowances for the members of the JSC. The JSC Secretary argued, correctly, that the SRC had overstepped its mandate in encroaching on a matter that did not concern it.

What if the strikes that continue to disrupt the public sector are caused by the SRC overstepping its mandate? What if the SRC’s intervention in compensation matters is the cause of the disruptions currently being witnessed? What we know is that the SRC conducted job evaluation exercises for the public sector with the objective of setting up compensation structures. Unfortunately, besides applying these incorrectly, the exercises were conducted using systems designed for factory and operatives’ jobs.

Teachers in primary and secondary schools in Kenya went on strike to force the employer to honour a CBA of 1997. The doctors have been on strike for nearly two months, now, over what they consider the employer’s retreat from a CBA entered into in 2013. And that is not all. We now have the public universities’ employees on strike over a CBA that they accuse the employer of not honouring. It would be unfortunate if the employers are relying on the SRC’s advice, regardless of its flaws, to override earlier CBA commitments. Such an ostrich approach can only lead to further escalation of the crisis in the public sector.

It is important to note that the Salaries and Remuneration Commission was created by the Constitution of Kenya 2010 with a mandate to:

a.      “set and regularly review the remuneration and benefits of all State officers; and

b.     advise the national and county governments on the remuneration and benefits of all other public officers.”

From the outset, the SRC has made every possible mistake in the book. Its first mistake was an attempt to execute its first mandate through job evaluation exercises. What should have been obvious to the Commission, and also to employers in the public sector, was that setting pay levels is a matter of economic considerations, prevailing community pay levels, the employer’s fiscal policies, and the employer’s ability to implement and sustain a manageable compensation structure. Job evaluation exercises, which the SRC undertook as the starting point, were not designed for setting remuneration and benefits levels. These exercises were meant for different purposes, the most important among them being to minimize or remove inequalities in a pay structure.

Is it likely that the SRC’s activities, whether they make sense, or not, have some bearing on recent court decisions touching on Collective Bargaining Agreements in the public sector? Well, regardless of how unreasonable court decisions may appear, litigants are forced to obey them! And until the incongruences arising from the premises on which a law is applied are debunked by learned lawyers, litigants will often be compelled to obey such rulings. At times, indeed, “The law is an ass”.  

Pay structure for Magistrates and Judges

The salary scales for magistrates and judges appeared in the media early in 2013. The then Minister for Finance, Mr. Githae, alluded to, without elaborating, the apparent disparities in the proposed pay structure. 

In an unpublished article of April 13, 2013, I made my own observations on the same as follows:

The basic salary scales proposed by the Salaries and Remuneration Commission (SRC) for magistrates and judges, show differences between different grade levels, that are hard to comprehend. The proposed basic salaries vary irregularly between successive job grades. Clearly, a difference of thirteen percent (13%) between the lowest job grade and the second lowest job grade; a difference of fifty-six percent (56%) between job grade level 2 and level 3; eleven percent (11%) between level 3 and level 4, and a difference of thirty-nine percent (39%) between level 4 and level 5, cannot be explained. Such an irregular pattern in the pay structure signifies a problem, either in the organizational structure, or inequalities in the salary structure itself, or both.

A graphical representation highlights these differences clearly. The graph is constructed using the data in table 1, below, of the recommended base pay. In addition, a new row is inserted to indicate what would be expected to be the maximum pay for each job grade level.

Table 1: Judiciary salary for levels 1 to 9 (from the lowest to the highest job grade)

The projected maximum pay is inserted by assuming that a single factor could be used to determine the range of pay for each job grade. In this case the highest job grade, level 9 (Chief Justice) is used as the reference point. The difference between the minimum base pay for this grade, at KES 1 million, and the maximum pay at KES 1.3 million, is thirty percent (30%). Assuming that the same mark-up of 30% can be applied to all the other job grade levels, we can obtain the maximum pay for each job grade as shown in table 1. It is not uncommon to find business organizations applying a 40% to 60% mark-up between the minimum and the maximum pay for job grades at managerial and executive levels.

The pay rates for levels 6, 7 and 8 are not shown in the SRC’s pay structure. We can insert the values by using extrapolation for the purpose of constructing Table 1. The salary curves constructed from Table 1 data are shown below as Graph 1.

Graph 1: Salary Curves for the Judiciary based on Table 1 data 

From Series 1 (0 – 12) on the Graph we can see grade levels 1 to 9(Resident Magistrate to Chief Justice).

Series 2 line represents the SRC’s proposed pay rates, and

Series 3 represents possible maximum pay, which is set at 30% above the base pay rate for each grade level.

 As can be seen from the graph, the series 1 curve highlights the irregularities in the base pay rates for different job grades in the judiciary. The judgments and policy decisions taken in arriving at the base pay may have contributed to this anomaly. But more likely, the distortions are the result of superimposing the results of a shoddy job evaluation exercise onto a bad salary structure.

The same information can be used, depending on policy decisions, to construct a salary structure that takes into consideration the concept of equity. An example of this is shown in Graph 2, constructed using Table 2, which is a modified version of Table 1. 

Table 2

Graph 2: Salary structure using SRC’s pay rates after reducing disparities                                                                                                                      Series 1 represents the proposed base pay, and series 2, the maximum pay at 30% mark-up

Although the resulting salary curves are not perfectly smooth, at least most of the inequities in the pay structure, shown in Graph 1, are removed. The remaining inequities can easily be resolved by making the necessary pay adjustments. 

The above are only illustrations of how inequities in a pay structure may be highlighted. It is important to note that, in many cases, it is the inequities in pay, whether perceived, real or imagined, that are the source of dissatisfaction in organizations rather than the actual pay per se. It is important to emphasize that setting pay levels, and removing pay disparities in the resulting salary structures are two distinctly different activities.

It is often the case, that after the pay structure has been established through fiscal policy decisions and judgments, inequities emerge in the pay structure. The effective solution to eliminating such inequities is to conduct a thorough job analysis, write job descriptions (usually job guides for senior level jobs), followed by a job evaluation exercise. The success of such an exercise will often depend on the expertise of the job analyst(s), the extent to which the key stakeholders are involved in the process of conducting the exercise, and the preparedness of the organization for the exercise. It is important to note that, a job evaluation exercise must be conducted within the entity that wishes to eliminate internal inequities in pay, and cannot be conducted across different entities as the SRC has attempted doing for the public sector.  

In conclusion, if what is reflected by the pay structure and the salary curves for the magistrates and judges in the judiciary is anything to go by, then the SRC has some homework waiting to be done. Otherwise there will be murmurs over ‘inequities’ in pay. But when all is done, the public sector, and by extension, the country as a whole, will be the beneficiaries, and confidence in the Commission will be its reward.

Hopefully, the pay structure for the judiciary has since been corrected - although I have my doubts that this has been done. It is instructive to note a report appearing in the media toward the end of 2016,, of a stand-off between the SRC and the Judicial Service Commission (JSC) over the latter’s sitting allowances. And, I am in full agreement with Ms. Anne Amadi – JSC Secretary – that the SRC has overstepped (and has been overstepping) its mandate – indeed, perhaps in more than one area.  

Ending Doctors' strike calls for employer's commitment

I am compelled, once again, to contribute to a topic I understand only too well- compensation structuring and job evaluation.

As I have suggested before, let me start by reiterating that: job evaluation exercises are not meant for setting salary levels. They are designed for minimizing or removing pay disparities in a remuneration structure.

Since 2012, I have made several suggestions on the subject whenever I felt that the SRC could benefit from professional input - for free. I have also made it clear that my interest is mainly to contribute in an area of organization development I know to be complex and often mistaken as a domain for the Human Resource professional. Though a commonly held belief, – nothing personal - nothing could be farther from the truth.

If there was one thing that I have found rather perplexing, is the fact that there has been a lack of energy – or, put differently, a lack of curiosity – on the part of the key players in the public sector. The fact that the public sector in Kenya has one of the best trained, as well as a well-educated young population, one would have anticipated, and indeed, expected, some energetic reaction to many suggestions and professional input I have contributed to the thorny issue of the public sector’s wage bill.

At this time, I am more concerned about the published doctors’ pay structure for jobs grade L to T. I am particularly concerned about the idea that the structure derives from a job evaluation exercise. If it does, then it is horrifying to see a defective system being applied to an already defective public sector’s remuneration structure.

Unfortunately, the SRC appears determined to proceed along the same path in its efforts to set pay structures for the public universities, and other public institutions. The use of the same defective methods and systems will, without a doubt, continue to cause disruptive labor disputes of unprecedented proportions within the public sector.

As the salary curves for the doctors’ indicate, here below, something is seriously wrong. Even if one were to accept that a job evaluation exercise could be conducted for the purpose of setting pay levels in an organization – something it is not designed to do – still, it would be prudent to use acceptable systems, and rules. Otherwise it would be double tragedy to superimpose the results derived from a faulty system onto a defective compensation structure. And this is precisely what the SRC has attempted to do for the public sector. 

If the SRC, and the doctors’ employers - the Ministry of Health and the Public Service Commission (PSC) - understand and are comfortable with the above salary curves, then, the health sector in this country may be disrupted for a long time to come.

Let me conclude by suggesting that, perhaps a little research on what has been done in this area since the 1990s could give a glimpse of what to expect for the public sector in Kenya, if we choose to continue on the wrong path.

My suggestion is, for anyone interested, to check out the results of job evaluation exercises conducted for:

·                 Malawi

·                 Tanzania

·                 Uganda Revenue Authority, and may I suggest, here in Kenya:

·                 The Kenya Wild Service (KWS)

·                 KPCU, and let me throw in a private university in the mix:

·                 United States International University-A (USIU-A)

For any qualified job analyst, the shocking revelation is that they all relied on job evaluation systems that were designed for factory and operatives’ jobs. The public sector in Kenya is being subjected to the same systems, but this time, for the wrong purposes. This does NOT, and WILL NOT work.

Teachers' strike over pay

When Kenya Union of Teachers (KNUT) called its members on strike in 2012, it was hoped that the Salaries and Remuneration Commission (SRC) would step-in quickly and help resolve the teachers’ grievances, thus, bringing the strike to a quick end. I didn't think that this was realistic, or even possible. As it turned out, the SRC did not bring the teachers’ strike to a quick end.

In an unpublished article of January 11, 2013, I noted:

It is not clear whether the Salaries and Remuneration Commission (SRC) has a role to play, or even understands its role in the ongoing teachers’ strike over pay. The Commission’s activities so far do not point to the possibility of its ability to resolve issues pertaining to the levels of remuneration within the public sector. 

The ongoing, and the planned Job evaluation exercises, will not determine levels of compensation for the public sector. The basic pay, or the total wage bill in any organization is arrived at using economic considerations such as the cost of living, community wage levels, fiscal policies, and the organization’s ability to pay and sustain the wage bill level over time. After this, a job evaluation exercise may follow.

The purpose of a job evaluation exercise is to remove inequities in a compensation structure after the structure has been installed in an organization. The exercise uses well established methods of comparing the relative weights/worth of jobs within the organization with the intention of ensuring fairness and equity in the compensation structure. The process begins with a thorough job analysis, writing job descriptions, and sometimes may require the job analyst to construct a job evaluation manual for the exercise. The stakeholders must be involved in this process at every stage for it to earn credibility.

Back to the teachers’ grievances: were the teachers to expect the SRC to come up with a solution to their grievances, then they would have to wait for a long time before their demands could be met. It is unlikely that their demands could possibly be met through a job evaluation exercise. 

As the matters stand, the SRC is attempting to have job evaluation exercises conducted across different organizations. Supposedly, the teachers’ salaries will be determined through such an exercise. Unfortunately, this will not work. It is not possible to conduct a job evaluation exercise, comparing, say, jobs in the Judiciary, Parliament, government ministries and departments, teachers’ jobs, jobs in the counties - that do not exist as yet - and other institutions in the public sector, all in a single exercise. Each one of them is set up and structured uniquely - each, for clearly defined unique purposes. Any attempt to undertake a single job evaluation exercise across such organizations would be an exercise in futility.

Indeed, the results of the ongoing job evaluation exercise for the State Officers’ jobs, for instance, may be difficult to justify, since a State Officer’s job can be evaluated only within the entity it is a part of. It should be obvious to any competent job analyst that psychometric measurements, such as job evaluations, can be conducted only within the parameters of the organization being subjected to such measurements, and not across two or more organizations. The premise on which the current exercise is based cannot be justified.  

If studies (since the era of Civil Service Reforms and re-structuring programmes) of this elusive area of organizational development are indicative of the kind of results to expect from the ongoing, and similar planned exercises, then the teachers and others in the same situation, may have to brace up for a long wait before credible and defensible compensation structures for the jobs they perform can be established.

The SRC can draw lessons from earlier attempts on job evaluation exercises that were generally ill-designed, besides being inappropriate for the jobs at hand.

It is important to mention that the teachers’ strike was triggered by the failure of the government to honour a collective bargaining agreement of 1997.

If we fast forward to 2016: the teachers went on strike again over the same issue. Thankfully, as the year-end approached, the teachers called off their strike. According to media reports, the teachers’ pay would be “untouched as agreed in the CBA”!