SRC has no powers to set salaries on its own, court rules.
The compensation and Remuneration Commission’s (SRC) authority has once again been reduced following a court ruling that the SRC cannot determine compensation without the involvement of public and governmental officials.
Justice Byrum Ongaya of the Employment and Labour Relations Court (ELRC) determined that the SRC should develop procedures to guarantee gradual stakeholder input a year prior to the next cycle of reviews.
The judge declared that it was unlawful for the commission to establish its own requirements and determine the appropriate salary for a public or state official.
According to Ongaya, the SRC’s action went against both the International Labour Organization’s (ILO) accord on workers’ rights and fair hearing regulations.
Justice Ongaya concluded that the respondent could not act suo moto, or on its own initiative, without first addressing the needs that the county and national governments had indicated to it through suggestions or recommendations.
Stated differently, the response fails to meet its own actual or perceived wants. The judge stated, “It was created and is still in existence to respond to requests made to it by pertinent officials in the federal and local governments in order to exercise and carry out its statutory and constitutional duties and functions.
In addition, Ongaya gave the commission instructions to consult with county public service boards prior to examining the pay and perks of public servants employed by county leaders.
The 47 county public service boards brought the lawsuit. They asserted that the board members were state officers, but the SRC refused to discuss their compensation, sealing their doom.
The board members asserted that their pay was three to four times less than that of their counterparts in the public sector. Furthermore, they asserted that by determining the compensation and perks of its officers, SRC was usurping the authority of the county public service boards.
The commission has been requested by the county boards to examine their pay increases so that they correspond with Public Service Commission (PSC) members’.
SRC, however, stated that it would only assess the pay based on the state of the economy and after two fiscal years.
The 47 county public service boards’ (CPSBs) secretaries sent a unified memorandum to SRC on June 21, 2021, protesting the underpayment and incorrect grading of the secretary position to the board.
SRC did not take any action, although it did say it would investigate.
The boards charged the commission of sticking to a preset course of action and failed to attempt to reevaluate their compensation. The boards participated in SRC between July 2021 and February 2023, according to testimony given to the court, and disputes were not settled amicably.
SRC responded by stating that PSC is a separate and independent organization from CPSBs. The panel stated that PSC could not serve as a standard for county board compensation.
According to SRC, the board members are public officers rather than state officers. It further said that it had the authority to take independent action and provide recommendations about the pay and benefits of public officers.
The decision was made shortly after judges defeated SRC in a drawn-out legal struggle over a car grant.
Judges Chacha Mwita, Patricia Nyaundi, and Lawrence Mugambi of the High Court unanimously concluded that the commission lacked the authority to change or compel the allowance’s withdrawal.
According to the bench chaired by Justice Mwita, SRC’s claim to eliminate the provision constituted interference with the judiciary’s independence.
The former constitution originally allowed for the provision. Judges continued to enjoy this, though, following the 2010 Constitution’s adoption. According to the three judges, it was unclear how or why SRC remained silent throughout, even after new judges were chosen and given the allowance.
They declared that the fund is ring-fenced in the Constitution and, in contrast to SRC’s assertions, cannot be changed or eliminated.
They decided that the taxable car allowance benefit and any follow-up reviews are ring-fenced and protected by Article 160(4) of the Constitution and cannot be removed, changed, or amended to the detriment of judges.
The argument began in 2011 when a circular was released by the head of public service permitting judges to receive automobile grants ranging from Sh5 million to Sh10 million.
SRC has no powers to set salaries on its own, court rules.
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