Month: April 2024

The government continues to be the biggest spender in terms of procurement of goods, works, and services. The government also remains the main provider of infrastructure and related services including roads, health facilities, sewerage and sanitation infrastructure and services, sports facilities, and residential and commercial facilities among others. All these are funded from public funds which are mostly revenue generated from taxation and national resources. The general inadequacy of public funds to finance the needed public infrastructure and services through public procurement requires an alternative approach to financing the delivery of public infrastructure and services. Public Private Partnership (PPP) arrangements provide the alternative and offer great business opportunities to private sector businesses.

In light of this, the passage of the Public Private Partnership Act, 2020 (Act 1039) (PPP Act) and providing the legal framework for PPPs must not only be welcomed but also be of great interest to private businesses. The PPP Act replaces the National Policy on Public-Private Partnerships, which was adopted in 2011.

What is PPP?

Public Private Partnership (PPP) refers to the broad range of contractual arrangements by which public sector entities pursue economic or commercial activities by partnering with private sector entities usually over a long term. The PPP Act defines PPP as “a form of contractual arrangement or concession between a contracting authority and a private party for the provision of public infrastructure or public services traditionally provided by the public sector, as a result of which the private party performs part or all of the infrastructure or service delivery functions of Government, and assumes the defined risks over a significant period of time;”

The figure below summarises the features of a PPP.

Figure 1: Features of a PPP

For an arrangement to qualify as a PPP arrangement or a project to qualify as a PPP project, the following elements must be present:

• (a) One of the parties must be a public entity or an entity owned by government.
• (b) The public entity must seek to partner with a private entity under a contract.
• (c) The private entity must be responsible for providing infrastructure and related services which ordinarily are provided by a public entity.
• (d) The private party must bear a substantial part of the risks associated with the project.
• (e) The main obligations including design, financing, construction, operation and maintenance of the project is performed by the private party.
• (f) The contract is generally for a long term.
• (g) The following entities are listed under the PPP Act as public entities for which a contractual arrangement with a private sector party that satisfies the above requirement will qualify as PPP:

• (a) The outsourcing of government services without the transfer of financial and operational risks to a private party;
• (b) The grant of a mineral right under the Minerals and Mining Act, 2006 (Act 703) or any other applicable enactment on mining;
• (c) The grant of any right for exploration, development or production under the Petroleum (Exploration and Production) Act, 2016 (Act 919) and any other relevant enactment;
• (d) The divestment of ownership or equity of a state-owned enterprise;
• (e) The procurement of goods, works, and services primarily with the use of public funds by any contracting authority under the Public Procurement Act, 2003 (Act 663); and
• (f) Non-commercial activities that are the exclusive preserve of the security services.

Implementation Process

The PPP Act provides that unless a PPP Contract was executed before December 29, 2020, all PPP projects, including the process of contracting, must be in accordance with the Act. The PPP Act regulates the PPP process from start to finish that is: from project identification to procurement of private partners by the public entity to contracting to project implementation.

All aspects of PPP Projects are regulated by the PPP Act as shown below:

The Act sets out the requirements (including approval requirements) for each stage of the implementation process as summarised in the figure below:

• Project Preparation Stage: PPP Projects by nature are generally complex, which is typical of large infrastructure projects. A critical stage is therefore the preparatory stage which entails scoping and describing the project and conducting studies to determine the technical, legal, financial, and commercial feasibility of the project. In view of the conflicting interests of the government entity and private party, there must be a proper framework at the preparatory stage to ensure compliance with the legal requirements, optimum risk allocation and value for money. While the government entity seeks to ensure there is value to the public, the private party seeks to maximize profit. These two interests must be properly synchronized at each stage of the process. As such, the PPP Act requires various steps to be taken at each phase of the preparation stage. This must be followed in sequence with approval granted on completion of the phase.

The PPP Act requires that upon completion of the preparatory stage, the Finance Minister must issue a Seal of Quality prior to the government entity proceeding to the next phase which is the procurement stage.

• Procurement Stage: the next stage upon completion of the preparatory stage is the preparation of relevant procurement documents and launching the procurement process to engage the private partner. A two-step procurement process is recommended under the PPP Act – the pre-qualification stage and the actual proposal stage. At the qualification stage, the government institution will publish invitations for applications to prequalify indicating the minimum qualifications required to shortlist private entities to subsequently submit proposals. If the PPP is to be partly funded by the government entity, the government entity must also obtain written confirmation from the Finance Minister of the availability of funds for the implementation of the project. Upon shortlisting qualified entities, a request for proposal is issued to the shortlisted entities who then are to submit a proposal- both technical and financial- for evaluation. On receipt of proposals, an evaluation committee is set up which evaluates the proposal. The report of the evaluation committee must be approved prior to giving notice of intention to award to the winning bidder
• Contracting Stage: upon approval of the evaluation report, a negotiation committee is set up by the governmental entity to negotiate with the selected bidder on the technical and financial terms of the project agreement (that is the PPP Contract). A negotiation report is prepared by the negotiating committee and submitted to the Finance Minister and the oversight Ministry to enter into the PPP arrangement. Upon accepting the terms, the contract must be submitted for approval by the PPP Approval Committee. Where the conditions in the 1992 Constitution are triggered, the contract must be submitted to Cabinet for approval after which it must be laid before Parliament for parliamentary approval.

The government entity can only execute the contract upon obtaining all required approvals.

• Implementation of Contract: this stage comprises all the post-execution activities undertaken by the parties to the PPP contract including:
• (i) achieving financial close,
• (ii) design of the project,
• (iii) undertaking the construction, testing, and completion,
• (iv) operation and maintenance and
• (v) collection of user charges.

These obligations are generally undertaken by the private party. The government contracting entities also perform obligations imposed under the PPP Contract. This may include providing a guarantee to secure funding, acquisition of the required land, grant of permits, or assisting the private party to obtain permits and others. The contracting entity must also monitor the performance of the obligations of the private entity.

The process provided under the PPP Act may be seen as complex and complicated. This may be due to the very complicated and complex nature of major infrastructure projects. This is in addition to the competing public and private interests involved. It is therefore important that both the public and private entities engage advisors to advise on the project structure, undertake the relevant studies, and provide technical, financial, and legal advice on the contractual and procurement arrangements to ensure compliance with multiple laws and international standards. The engagement of a Transaction Advisor is therefore of utmost importance for a successful PPP process.

Business Opportunities

The opportunities offered by a PPP project are numerous. These cover business opportunities to investors, project sponsors, financial institutions, construction companies, consulting companies, suppliers, employment opportunities, and the general rippling economic effects. All these players must therefore be interested in the implementation of the new PPP arrangement.

The government had earmarked a number of projects including projects in the roads, rail, health, social, and ports sectors for implementation as PPP projects.

Conclusion

The global effect of the pandemic has put more constraints on available resources for the provision of infrastructure and related services by governments, particularly in developing countries like Ghana. The infrastructure gaps keep widening and the alternative solution to close the gap may be through the use of PPP arrangements.

Whilst government embraces this arrangement, the private sector, touted as the engine of growth must proactively prepare to take advantage of the opportunities offered by PPP arrangements.

There have been recent discussions or criticism of public entities in respect of award of contracts through sole source procurement. The loudest voice seem to suggest that the use of “sole” source procurement is “unethical”, “illegal” or at the least geared towards manipulation of the process in favour of a particular contractor, supplier or consultant. It was argued by a panelist on a radio discussion that a major reason for the spate and extent of judgment debts awarded against the state is due to the fact that such contracts are awarded through sole source procurement. In another discussion, a panelist suggested that a clear evidence of corruption in public entities is that about 80% of contracts awarded by public entities are done through sole source procurement.  It must be pointed out that no evidence or basis for these assertions was provided for one to verify.

This article is intended to clear misconceptions created by these discussions on the use of sole source procurement. The article discusses:

1. what is “sole” source procurement
2. justification for sole source procurement
3. procedure for sole source procurement
4. approval required for sole source procurement
5. the role of the procurement entity and the contractors, suppliers or consultant  

It is important to emphasize at this stage that this article relates only to procurement under the scope of the Public Procurement Act, 2003 (Act 663) (the “Act”). Further, it should be clarified that even though the term “sole” source is commonly used, the terminology used under the Act is “single” source procurement. However, the article adopts the common term “sole source”.

What is Sole Source Procurement

The Public Procurement Act prescribes for a number of procurement methods for the procurement of goods, works and services. The Act makes competitive tendering the default procurement method for procurement by entities. Therefore, the use of any procurement method other than competitive tendering is subject to justification and approval. Competitive tendering may either be international or national competitive tendering.

The other methods of procurement that may be adopted subject to justification and approval are:

1. Two-stage tendering
2. Restricted tendering
3. Single–source procurement
4. Request for quotation.

Sole source procurement is, therefore, one of the methods of procurement provided for under the Act for the procurement of goods, works, and services. It is a method of procurement where goods, works or services are procured from a single source (without a competitive process).

The Act permits and provides for the use of sole source procurement subject to conditions or circumstances prescribed under the Act. The use of sole source procurement per se is, therefore, not illegal, and does not necessarily imply any unethical or corrupt activity on the part of the entity employing such method.

However, it is admitted that sole source procurement is more likely to be abused (in comparison to competitive procurement methods) because of the absence of competition. There are, however, measures provided under the Act to minimize the occurrence of such abuse. These safeguards are the prescription of:

1. clear circumstances or criteria where the use of sole source is permitted.
2. procedures to follow
3. approval required for the use of sole source.

Criteria For The Use Of Sole Source Procurement

The Act prescribes seven (7) circumstances where an entity may employ the sole source procurement method. These are:

• Availability of goods, works or services from one source – an entity is permitted to engage in sole source procurement under this circumstance if two conditions are satisfied:
• The goods, works or services are available from only one particular supplier or contractor, or only one particular supplier or contractor has exclusive rights over the goods, works or services; and
• (There are no reasonable alternatives or substitutes available.

If these two conditions are satisfied, the entity is permitted under the Act to employ the sole source procurement method to procure the goods, works or services. Illustration: a public entity seeks to purchase decoders that broadcasts cartoon network for all nursery schools in Ghana. If the decoder is available from only one entity or only one entity has the exclusive right over the decoder with a cartoon network channel, then the first condition is satisfied. The second condition that must be satisfied is whether there are reasonable alternatives or substitutes to a decoder with cartoon network channel. In this case, if there is another supplier of decoders with channels that broadcast animated videos, (example; boomerang, cartoonito) then the question of the second condition must be considered. In that case what is reasonable alternative or substitute is a question of fact (not law) depending on each particular circumstance.

(2) Urgent Need of Goods, works or services – under this circumstance, three conditions must be satisfied:

• There must be a pressing need for the goods, works or services;
• The urgency must not be as a result of acts/omissions on the part of the entity; and
• The use of any other tendering process is not practicable due to unforeseen circumstances giving rise to the urgent need.

Illustration: where the Republic is sued in Court, and the Attorney-General’s Department has no capacity and intends to engage a private law firm to defend the country, that may qualify as urgent need for the services under this criterion.

(3) Urgent Need Due to Catastrophic Event – this circumstance is closely related to (2) above. However, under this circumstance, the following conditions must exist:

• There must be a catastrophic event;
• Due to that event, the goods, works or services are urgently needed;
• No other method of procurement can be employed due to the time involved in using those other methods.

The main difference between (2) and (3) above is that the circumstance under (3) is restricted to catastrophic events and there is no requirement as to whether the act/omission of the entity contributed to the urgency. This situation permits the procurement of goods, services, or works in the event of a disaster. Illustration: where there is a devastating flood that requires an urgent supply of necessaries to a community, that may be done under sole source procurement under this criterion.

• where the entity determines that additional supplies need to be procured from that supplier or contractor because of standardization;
• where the entity determines that there is a need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the entity;
• where the entity determines that the limited size of the proposed procurement in comparison with the original procurement justifies.

• Balance of payments position and foreign exchange reserves.
• Countertrade arrangements offered by suppliers or contractors.
• Local content
• Economic – development potential
• Encouragement of employment and reservation of certain production for domestic suppliers
• Transfer of technology
• Development of managerial, scientific and operational skills

Where sole source procurement is adopted to promote any of the above policies, the Act requires that there should be a public notice and time for comment prior to the entity procuring goods, works or services using sole source procurement.

The above circumstances are the instances where the Act permits the use of sole source procurement. The use of sole source procurement is, therefore, only permitted if one of the above circumstances exists. For that reason, it is advised, that a private entity seeking to secure a contract under a sole source procurement method satisfies itself of the existence of any of the above circumstances. Even though it is the responsibility of the procurement entity to ensure that one of the above circumstances exists, the private entity entering into such a contract must also ensure the Act is complied with. This is because of the general principle under Ghanaian law that a contract tainted by illegality may be set aside by the court or declared void.

Procedure For Sole Source Procurement

The Act provides that to use sole source procurement method, the entity must:

1. Invite proposal from the service provider; or
2. Request for quotation from the single contractor or supplier.

This implies that the entity must be satisfied with the proposal or quotation provided by the single service provider, or contractor or supplier respectively. This further implies that the proposal must be evaluated, and if required, there must be a negotiation with the supplier or contractor prior to execution of contract. In order to ensure these are done, the Public Procurement Authority (PPA) requires the entity to undertake a value for money assessment and ensure that the entity will get value for the money to be expended on the procurement of the goods, works or services.

The Guidelines issued by the Ministry of Finance and Economic Planning to guide the use of sole source procurement to procure goods, works or services requires institutions to provide information that satisfy the following:

1. Capability and qualification of the proposed firm; and
2. Conditions of contract and financial proposal.

On the capability and qualification of the proposed firm, the institution must provide detailed information and demonstrate that the proposed supplier, consultant or contractor possesses the required experience and capability to carry out the work. The information should include the following:

1. Name of the proposed firm
2. Professional and technical qualifications and competence
3. Financial resources
4. Equipment and other physical facilities
5. Managerial capability, reliability, experience in the procurement object, and reputation
6. The personnel to perform the procurement contract
7. Evidence that the firm has the capacity to enter into the contract
8. Evidence that the firm/entity is solvent, not in receivership, bankrupt or in the process of being wound up, does not have its business activities suspended or is not a subject of legal proceedings that would materially affect its capacity to enter into a contract.
9. Evidence that the firm/entity has fulfilled its obligations to pay tax and social security contributions and paid compensation due for damage caused to property by pollution.
10. The corporate entity has no director or officer who has in any country been;

• Convicted of any criminal offence relating to their professional conduct or making false statements or misrepresentations as to their qualifications to enter into a procurement contract within the last ten years; or
• Disqualified pursuant to administrative suspension or disbarment proceedings.

Even though the Guidelines require the evidence to be provided by the procurement entity to the PPA, it is for the entity, based on information made available by the supplier, contractor or consultant, to satisfy itself of the capability and qualification of the firm prior to submission of such evidence to the PPA for approval.

The submission of conditions of contract and financial proposal is to ensure cost effectiveness, and favorable contractual terms and conditions under the procurement contract. This requires that information is provided on:

1. Detailed cost of the proposed procurement
2. Demonstration that the proposed cost represents value for money. The Guidelines providethat this can be done by comparing the proposed cost with recent similar projects carried out through competition, or by comparing the proposed cost with available national and international standards.

Proposed draft terms and conditions of contract, which as much as possible must be consistent with agreed international terms.

The entity procuring under the sole source procurement method must therefore request for, obtain and evaluate the financial proposal of the supplier, contractor or consultant. The parties (procurement entity and supplier, contractor or consultant) must agree on the terms and conditions of contract which must be consistent with terms generally included in contracts of that nature. Above all, in the evaluation of the proposed cost, the procurement entity must undertake value for money assessment. A proper value for money assessment will ensure that the entity obtains the maximum value or benefit from the procured goods, works or services in comparison to the resources to be expended.

The essence of this procedure is to ensure that:

1. The firm is qualified to perform the contract
2. The firm has the capacity to enter and perform the contract
3. The firm has the resources required to perform the contract
4. The firm is in compliance with relevant laws
5. The terms and conditions of the contract are favorable to the procurement entity.
6. There is cost effectiveness and the use of sole source procurement does not result in higher cost than would have been incurred under other methods.

Approval

The PPA is established under the Act to ensure compliance with the Act. As part of its function, the PPA is to play the gateway–keeping function to ensure that sole source procurement is used in accordance with the Act. The use of sole source procurement method is therefore subject to the express approval of the PPA. It is in the light of this that the Guidelines issued on sole source procurement require the entity to submit information or evidence to the PPA on the following:

1. Justification under the Act for use of sole source procurement method
2. Capability and qualification of the proposed firm
3. Conditions of contract and financial proposal

The PPA must therefore ensure that one of the circumstances described above exists to warrant the use of sole source procurement method. It must also ensure that the prescribed procedure is followed or has been followed. This involves evaluating the evidence submitted to ensure that the proposed firm is qualified and has the capacity to perform the procurement contract. In addition, the PPA must vet the financial proposal to ensure that it demonstrates value for money.

Conclusion

The use of the sole source procurement method is prescribed under the Act. Its use is subject to justifications prescribed and procedures stated under the Act as well as approval of the PPA. The use of such procurement method, in accordance with the Act, is not illegal or unethical and does not connote corrupt activity on the part of the entity employing the method.

However, like any other procurement method prescribed under the Act, the process may be abused. It is therefore important that all the relevant stakeholders, including the procurement entity, the contractor, supplier or consultant being engaged, the PPA, and the public at large, have an interest in ensuring the circumstances justify the use, the procedures prescribed under the Act are followed, and the relevant approval is obtained.

More importantly, it is for the private entity (contractor, consultant, or supplier) to ensure the use is justified, the procedure followed, and approval obtained since the procurement contract can be set aside for breach of the law. Procurement entities and private parties must therefore ensure the three (3) main criteria are satisfied and if necessary seek legal advice on the satisfaction to avoid abuse of the law.

Further to our earlier legal alert issued on 16th December 2020 on “Understanding Digital Tax and its Implementation in Kenya,” we wish to inform and remind all digital service providers operating in the digital marketplace in Kenya of the mandatory requirement to file DST returns and make payment for the tax due, by 20th February 2021.

This is pursuant to Regulation 10 (2) of the Income Tax (Digital Service Tax) Regulation, 2020 which requires all digital service providers to file their DST returns every 20th day of the following month that the digital service was offered. Non-compliance with the requirement shall attract penalties and sanctions as prescribed under the Tax Procedures Act, 2015.

 

It is with deep sorrow that we announce the passing of Nana Serwah Godson-Amamoo which incident occurred on March 28, 2024.

Nana Serwah was the lead partner in the firm’s Natural Resources and Extractive Industries Practice Group and a key member of the Public Sector Advisory and Government Business Practice Group. She had over nineteen (19) years’ practice experience and represented our clients on many deals and related sectors.

Nana also served on the Technical Advisory Committee of the Nuclear Regulatory Authority and on the board of United Way Ghana.

A book of condolence will be open at the firm’s Accra offices from Wednesday April 3, 2024, between 9:00 am and 4:00 pm each weekday for friends and sympathizers to pay tribute to Nana.

We will communicate the funeral arrangements as soon as the family provides the details. In the meantime, we request that her family is accorded the privacy needed in this time of grief.

AB and David Africa joins the family and sympathizers the world over in mourning her loss. Nana Serwah will always be in our hearts.

The upsurge in the number of strikes called in recent times by various cadres of workers, including teachers, doctors, nurses, and lecturers, has witnessed a common thread – an outcry for the implementation of Collective Bargaining Agreements (CBAs) between the workers and their respective employers. This has caused a natural spike in the Kenyan public’s interest in the concept of a CBA – what it is, what it entails, and what its implementation means for both the workers and the employers.

What is a CBA?

The concept of collective bargaining is entrenched in the Constitution of Kenya under Article 41 which provides for rights relating to labour relations, including the right to fair labour practices, the right to reasonable working conditions, the right to join and participate in the activities of a trade union and the right to go on strike. Article 4(d) specifically provides for collective bargaining on terms that, “every trade union, employers’ organisation, and the employer has the right to engage in collective bargaining.”

Section 2 of the Labour Relations Act, 2007 (the Act) defines a “collective agreement” as a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers, or organisation of employers. On the other hand, a “recognition agreement” is defined as an agreement in writing made between a trade union and an employer, group of employers or employers’ organisation regulating the recognition of the trade union as the representative of the interests of unionisable employees, employed by the employer or by members of an employers’ organisation.

Ordinarily, the employer first enters into a recognition agreement with the trade union to recognise the trade union for purposes of collective bargaining. The recognition agreement has to be in writing, in line with the provisions of section 54(3) of the Act and it sets out the terms upon which the employer recognises a trade union. Thereafter, the employer and the trade union may negotiate and enter into a CBA which sets out the terms and conditions of employment of the workers.

Simply put, the recognition agreement is the initiating document that provides the enabling environment for trade unions and employers to enter into a CBA. A CBA covers a number of issues affecting the employees concerned, including; hours of work, salaries payable percentages of salary increments, promotions of the employees and the process to be followed in case of termination of their services including redundancy.

Legal Effect of a CBA

Section 59(5) of the Act provides that a CBA becomes enforceable and shall be implemented upon registration by the Employment and Labour Relations Court (ELRC) and shall be effective from the date agreed upon by the parties. Registration of a CBA with the ELRC is therefore a mandatory requirement for it to be legally valid and enforceable. This is the main issue that plagued the 2016/2017 doctors’ strike where doctors in the public sector were seeking a three hundred percent (300%) pay increase pursuant to a CBA between the doctors’ union and the Ministry of Health on behalf of the Kenyan Government. The Government’s position was that the CBA had never been registered with the ELRC and was therefore unenforceable.

The Act further provides that once a CBA is signed, it becomes binding on the parties to the agreement, for the period of the agreement, while the terms of the CBA are incorporated into the employment contracts pursuant to the provisions of section 59(3) of the Act.

For example, during the recent doctors’ and nurses’ strikes, issues of promotions and allowances took center stage and the case advanced in support by the unions was that these were matters covered under the respective CBAs and ought therefore to be implemented as part and parcel of the employment contracts.

Applicability and Relevance

Due to changing circumstances in the world of business and financial constraints in the current world economy, many private companies have been re-structuring their businesses and cutting back on the number of employees that they maintain. As a result, there is a marked increase in the number of terminations of employment, on account of redundancy.

The challenge that these companies are facing in carrying out the redundancy processes is that whether out of omission or commission, they often times do not comply with the prescribed procedures set out in the CBA. Matters such as giving the concerned union at least one (1) month’s notice before effecting a redundancy process and the fact that the company usually has to consider compensating the employees for the number of years served for example, are issues that companies do not always take into consideration.

The concerned employees end up suing the company, whether as individuals or through their unions and the ELRC has not hesitated to apply the provisions of the Act, by finding that the terms of the CBA are binding and ought to be implemented.

Court Decisions

There have been several key decisions handed down by the ELRC in connection with CBAs. In the case of Kenya Plantation & Agriculture Workers Union v Coffee Research Foundation (2014) eKLR the Union brought that claim on behalf of ten (10) Claimants who were the Respondent’s security guards. Here, the ten (10) Claimants had worked for the Respondent for periods exceeding five (5) years, during which the Respondent had concluded a CBA with the Union. The CBA contained a thirteen percent (13%) wage increment for each year and benefits including termination benefits under the retrenchment clause, which the Respondent chose to ignore when it terminated the Claimants’ services. The ELRC found that the Respondent had discriminated against the Claimants and ordered the implementation of the CBA with respect to pay in arrears underpayment of wages and pay of redundancy benefits.

In Kenya Union of Commercial Food and Allied Workers v Kenya National Library Service (2016) eKLR, the Respondent had concluded a CBA with the Claimant union but the Respondent had partly implemented the CBA by paying new salaries, allowances, and part of the arrears. The balance that was left unpaid, it was argued by the Respondent, was an amount that had been factored into the Respondent’s 2014/2015 budget submitted to the parent Ministry, but no funds had been availed to enable the Respondent to implement the CBA. It was the Respondent’s defence therefore that they had not refused to fully implement the CBA but that its hands were tied by the unavailability of funds from the National Treasury.

The ELRC was unimpressed and held that once a CBA has been registered, as was the case in the claim before it, section 59(5) of the Act had already taken effect and therefore the CBA was binding and enforceable and failure to implement any part of the CBA gave the wronged party a remedy of specific performance. The ELRC further held the view that since the Respondent was claiming inability to pay due to acts of a third party, nothing prevented it from joining any such party/parties to the case for them to bear responsibility for the owing dues. In the upshot of its decision, the ELRC entered Judgment for the Claimant against the Respondent for specific performance of the terms of the CBA.

Cases such as the above set strong precedents for the notion that there are no shortcuts to implementing a CBA.

Way Forward?

Public bodies and private entities alike ought to appreciate that collective bargaining is a constitutionally guaranteed right, duly entrenched under the Bill of Rights and that there can be no avoiding of CBAs. All parties ought to be keen at the negotiation table of CBAs so that they fully understand what they are binding themselves to. If any terms seem complex or difficult to decipher, it is advisable to consider seeking legal advice on the same so that those provisions are well interpreted and understood by the parties prior to agreeing to the same.

Employers also need to consider the long-term financial effects of CBAs before negotiation and execution, as it is no defense to blame a third party for non-compliance with a CBA. Unions also need to be aware of the necessary steps to be taken to ensure that a CBA is legally valid and enforceable, so as not to become unstuck at the crucial time of agitating for implementation of the CBA.