SRC has no powers to set salaries on its own, court rules

Salaries and Remuneration Commission (SRC) Chairperson Lyn Mengich. [Elvis Ogina, Standard] Powers of the Salaries and Remuneration Commission (SRC) have yet again been clipped after a court found that it cannot set salaries without public and state officers' participation. Employment and Labour Relations Court (ELRC) Justice Byrum Ongaya ruled that a year before the next cycle of reviews, SRC should come up with regulations to ensure step-by-step stakeholder involvement. The judge said it was illegal for the commission to come up with its own criteria of needs and decide what a public or state officer should earn. Ongaya was of the view that the move by SRC not only violates fair hearing rules but was also against International Labour Organisation (ILO) agreement on workers rights. "The respondent cannot act suo moto (on its own motion) without responding to proposed or communicated needs of the national and county governments as submitted to it by way of proposals or recommendations," ruled Justice Ongaya. "In other words, the respondent does not serve its own created real or perceived needs. It is established and exists to address requests presented to it by relevant authorities in the national and county governments towards exercising and discharging its constitutional and statutory powers and functions," the judge said. Ongaya also directed the commission to engage county public service boards before reviewing salaries and benefits of public officers working in counties executives. The case was filed by the 47 county public service boards. They claimed that that members of the boards were state officers but the SRC had sealed their fate and declined to engage on them on their remuneration. The boards claimed that they were being paid three to four times lower than their peers in in the public sector. They also claimed that SRC was usurping the mandate of the county public service boards by setting the remuneration and benefits of their officers. The county boards has asked the commission to review their salaries upwards in order to mirror those of members of the Public Service Commission (PSC). SRC, however, said that it would only review the salaries after two fiscal years and based on the status of the economy. On June 21, 2021 the secretaries of the 47 county public service boards (CPSBs) submitted a joint memorandum to SRC complaining against the underpayment and mis-grading of the position of secretary to the board. SRC indicated that it would look into the issue but did not act. The boards accused the commission of failing to make an effort to re-evaluate their remuneration and maintaining a pre-determined position. The court heard that the boards engaged SRC between July 2021 and February 2023 and there was no amicable resolution of issues. In its reply, SRC claimed that PSC is an independent and different body from CPSBs. According to the commission, PSC could not be used as a benchmark for county board salaries. SRC asserted that the members of the boards are not state officers but are public officers. It also argued that it can act on its own motion and advise on the salaries of public officers wages and benefits. The ruling comes soon after judges won a protracted court battle against SRC over car grant. High Court judges Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi unanimously agreed that the commission had no powers to either alter or order for the removal of the allowance. The bench headed by Justice Mwita ruled that SRC was interfering with the independence of the judiciary by purporting to scrap the allowance. The allowance was initially provided for in the old constitution. However, after the transition to the 2010 Constitution, judges continued enjoying the same. The three judges were of the view that it was unclear how and why SRC kept quiet all along even after new judges were appointed and granted the allowance. They stated that contrary to SRC's claims, the fund is ring-fenced in the Constitution and therefore cannot be either altered or scrapped. "The taxable car allowance benefit and subsequent reviews is ring fenced and protected under Article 160 (4) of the Constitution and cannot, therefore, be taken away, altered or varied to the disadvantage of judges," they ruled. The dispute dates back to 2011 when the head of public service issued a circular allowing judges to access car grants of between Sh5 million and Sh10 million.

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