The Private Security Regulatory Authority (PSRA) issued a stern directive to private security companies this week, which, despite being forceful, was deemed illegal. Established under the Private Security Regulation Act, 2016, the PSRA ordered these companies to immediately cease deducting and remitting trade union fees of private security officers to the Central Organisation of Trade Unions (COTU). The directive constituted a threat to private security companies that their failure to stop remitting fees to COTU would result in a statutory review of its registration and licensing status.

The directive follows an alleged investigation by PSRA into COTU’s persistent disregard for and decline to advocate for the right of private security officers to be paid minimum wage and to advance their general welfare. PSRA claimed that their directive was to protect the private security officers whose contributions to COTU were significant.

Mischief can be read in the recent directive issued as in the past two months, the PSRA had issued a legal notice that made it mandatory for all private security companies to pay their employees a minimum wage of Kshs.30,000 per month. Failure by the private security companies to comply with the legal notice, a penalty of kshs.2,000,000 had been so ordered. This legal notice was challenged in court as the Regulations of Wage (General) (Amendment) Order, 2022, published vide Legal Notice No. 125, set out the minimum wages for a day and night watchman at Kshs. 15,201 and Kshs. 16,959, respectively. This Order is still in force.

The Constitution of Kenya guarantees the right of every worker to fair remuneration and to join or participate in the activities and programmes of a trade union. Additionally, it also guarantees the right of every trade union to its own administration programmes and activities. Further, the Labour Relations Act emphasises and enhances the constitutional right of the worker to join or leave a trade union. The Labour Relations Act has also emphasised the right of the trade union to determine its own constitution and rules and plan and organise its administration and lawful activities.

The Labour Relations Act provides for the deduction of trade union dues, which the trade union, through a request to the Cabinet Secretary, issues an order directing an employer to deduct trade union dues wages of its employees. An employer who deducts trade union dues is prohibited against the failure to remit the funds to the trade union, which under the Labour Relations Act is an offence.

As mentioned earlier, the employee has the right to leave a union, and as such, the employee is required to notify the employer in writing of their resignation from the union for the employer to stop deducting trade union dues. To this end, the employer under the Labour Relations Act is protected against any person who does or threatens to prevent an employer from exercising any right conferred by the Act. This includes the obligation to remit the deducted trade union dues to the trade union.

While PSRA alleges that COTU, despite receiving billions of shillings from private security officers, has failed to advocate for their rights, the law provides that COTU has the right to determine its own rules and lawful activities. Further, the Labour Relations Act provides that neither the trade union nor any person shall use the money deducted from employees for any purpose other than the lawful activities of a trade union.

Therefore, the PSRA lacks a legal basis to require the private security companies to immediately stop deducting and remitting trade union dues from the private security officers. Companies complying with such a directive will be committing an offence under the Labour Relations Act.  After all, the private security officers have a right under the Labour Relations Act to leave a union should they feel that their rights are not well advocated for by the trade union.