Harrison Okeche June 2012

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Definition Labour law refers to a body of legal rules which regulates the

relationship between:-

an employer and a worker

an employer and workers

employer(s) and trade union representing workers

employers’ organization and trade unions

the state, employers, workers, unions and employer organizations

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SOURCES OF KENYAN LABOUR LAW The labour law consists of a number of legal rules

based on:- The Constitution of Kenya Legislation – law laid down by an organ of the state which has

power to do so i.e. Parliament { the laws are in writing and known as statutes or acts}

Judicial precedent – (court decisions) - the previous court judgements constitute precedents that court must follow; only ratio decidendi (reason for judgement) creates precedent

Common law – that is the law which is not legislation and law as was applicable in England in 1st August 1897.

Custom – though playing limited role it is critical legal writing- views of legal authors are not binding but

persuasive to courts 3

THE KENYAN LABOUR LAWA large variety of laws (more than 20) dealing with

labour matters. The nine (9) core labour legislation are-

Employment Act, 2007 (replaced Employment Act, Cap

226 and Regulation of Wages and Conditions of

Employment Act, Chapter 229)

Labour Relations Act, 2007 (replaced the Trade Unions

Act, Chapter 233 and the Trade Disputes Act, Chapter

234)

Work Injury Benefits Act, 2007 (replaced the Workmen’s

Compensation Act, Chapter 236) 4

Core Labour Legislation Occupational Safety and Health Act, 2007 (replaced the Factories and Other Places of Work Act, Chapter 514)

Labour Institutions Act, 2007 National Social Security Fund Act, Chapter 258

National Hospital Insurance Fund Act, Chapter 255

Industrial Training Act, Chapter 237 (Revised 2011)

Retirement Benefits Act 5

Development of the labour law Kenya embarked on review of its labour legislation

form 2001 New legislation consisting of five pieces of

statutes were enacted by parliament in 2007 The new legislation consisted of:

Employment Act,2007 Labour Institutions Act,2007 Labour Relations Act,2007 Work Injury Benefits Act,2007 Occupational Safety and Health Act,2007

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OBJECTIVES OF LABOUR LAW REVIEW

Domesticate ILO conventions ratified by Kenya in

fulfillment of the country’s obligation as a member

of the ILO.

Ensure that the eight (8) core ILO conventions are

adopted within the new labour laws.

Ensure employment legislation are more user

friendly.

Harmonize E. Africa Regional Labour Legislation in

readiness for the common market7

THE CORE ILO CONVENTIONS

ILO CON. 29 – Forced labour ratified on 13th

January 1964

ILO CON. 98 – Freedom of Association and

Collective Bargaining 13th January 1964

ILO CON. 100 – Equal remuneration for work of

equal value 7th May 2001

ILO CON. 105 – Abolition of forced labour 13th

May 20018

THE CORE ILO CONVENTIONS

ILO CON 111 – Discrimination in employment 7th

May 2001

ILO CON. 138 – Minimum age of employment 9th

April 1979

ILO CON. 182 – Worst forms of child labour 7th May

2001

Apart from the above the review exercise

incorporated a number of ILO standards and

conventions relating to human rights.9

Overview of the core labour legislation

EMPLOYMENT ACT,2007Provides the basic terms applicable to all

employment contracts General principles on ;

prohibition against forced labourDiscrimination in employmentSexual harassment(20 or more employees)

Employment relationship (nature and types of employment)

Rights of employees and obligations of employers10

Employment Act 2007 cont..

Employment separation(termination, resignation, dismissal, redundancy, retirement, death) and benefits upon termination

Protection of children from worst forms of child labour, minimum age of employment and prosecution for contravention

Insolvency, employment records and employment management

Dispute settlement procedure

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General provisions of Employment Contract

Employment contract for a period of three months

must be in writing[s 9(1)]

Employer is responsible for drawing the contract

and ensuring that the employee signify consent to

the contract by signing his name or finger print in

the presence of a witness[9(2),(3)]

Employer to explain to employee the terms in a

language understood by employee. 12

General provisions of Employment Contract

Other Terms which may be in the form of

statement:

Entitlement to annual leave, public holiday , sick

leave , notice period , if fixed term the date of

termination of contract. [Sec.10(3) Emp.]

Pension or provident fund where applicable

Collective agreement where applicable

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General provisions of Employment Contract cont..

Indication if an employee is expected to work

outside Kenya for a period of more than one

month and currency of payment, additional

payment and terms and conditions on return and

while outside the country

The record of the terms must be kept for a

minimum of 5 years after termination of

employment14

Fixed term contract

The fixed term contracts are for specified period of employment or defined work or task.

It can be for one month or less, two, three months or more.

Normally used for seasonal employment, project type of work.

May be terminated on account of misconduct, end of period, by notice or any other lawful reason.

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Casual Employment Means a person the terms of whose engagement

provide for his payment at the end of each day and who is not engaged for longer period than twenty four hours at a time.

Where casual employee is engaged for continuous period of 1 month or work which can not reasonably be completed in a period amounting to 3 months or more he must be deemed to be on monthly terms.

Is entitled to 1 paid rest day after 6 days continuous work.

Casual employee converted to monthly terms shall enjoy terms and condition of service others after 2 months of engagement.

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Hours of WorkEmployer to regulate the working hours of each

employeeNormal working week to consist of not more than

52 hours a week spread over six days of the week.

However persons employed on night work may not work for more than 60 hours a week.

No person under the Age of 16 years may work for more than 6 hours a day.

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OvertimePaid for any time worked in excess of the normal

weekly hours at 1.5 times the normal hourly rate.

For time work on employees rest day or public

holiday at 2 times the normal hourly rate.

Calculated at weekly hours multiplied by 52 weeks

divided by 12 months. The resultant monthly hours

is divided by the monthly wage to get hourly rate

of pay. 18

ANNUAL LEAVE.Employee entitled to not less than 21 working

days of leave with full pay after every twelve consecutive months service.

An employee who terminated after completion of 2 or more consecutive months of service in any twelve leave earning period is entitled to pro-rata leave.

Employer with the consent of an employee may divide the leave to be taken at different intervals provided that one of the parts is for not less than 2 working weeks uninterrupted .

Any outstanding leave must be taken within 18 months from the end of leave earning period. 19

Maternity LeaveFemale employee entitled to 3 months maternity leave.

Employee must give notice in writing of at least 7 days

or a shorter period to employer as may be reasonable.

If required by employer an employee shall produce a

medical certificate as to her condition to avail the

leave from a qualified medical officer or a midwife.

Employee not to forfeit her annual leave and shall not

be disadvantaged on account of maternity leave. 20

PATERNITY LEAVE.

A male employee entitled to two weeks paternity leave.

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Sick LeaveAfter 2 months’ continuous service with an

employer , an employee shall be entitled to maximum 30 days sick leave with full pay and thereafter to a maximum of 15 sick leave days at half pay in each 12 months continuous service.

Employee must produce certificate of incapacity from a qualified medical practitioner.

Employee must notify or cause to be notified his employer as soon as reason his absence.

The 12 consecutive months commence from date of employment and the anniversary thereof.

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HousingEmployer obliged to provide reasonable

accommodation to employees near place of work or

pay sufficient sum as rent in addition to wages.

Sufficient sum is indicated as 15% of the basic

minimum wage of the employee.

Not applicable where the salary is consolidated.

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Provision of Water

Employer obliged to provide sufficient wholesome water at the place of work for use by employees and/

or

within a reasonable distance of housing accommodation provide by the employer.

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FoodWhere there is agreement to provide food to

employee the employer must ensure employee

is properly fed is sufficiently supplied with

cooking utensils and means of cooking.

No liability is imposed on the employer to

provide when an employee is absent without

lawful cause. 25

Medical AttentionEmployer to provide sufficient and proper medicine for

its employees during illness and if possible, medical

attendance during serious illness.

Employer to ensure he takes steps to be notified of illness

as soon as reasonable practical.

Not applicable where an employee is absent without

lawful cause or excuse, self inflicted illness or injury or

medical treatment is provided free at Government

hospital or centre. 26

DismissalFollowing reasons may lead to summary

dismissal of an employee after the employer has followed proper procedure:-{ S.44}Emp.Absenteeism without lawful cause or leave.

intoxication rendering a worker incapable of performance.

Willful neglect of duty.

Use of abusive or insulting language.27

DismissalRefusal to obey lawful instructions.

Employee arrested for cognizable offence punishable

by imprisonment is not within 14 days released.

Employee commits or on reasonable grounds is

suspected to have committed a criminal offence

against or to the detriment of his employer or his

employers property.

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UNFAIR GROUNDS OF TERMINATION Pregnancy or reasons connected thereto.

Going on an entitled leave.

Membership or proposed membership to union.

Participation in union activities outside working

hours or with the permission of employer within

working hours.

Seeking office or becoming an official of a union.29

Labour Relations Act, 2007Provides for freedom of association for both employers and

workers, Formation, regulation and dissolution of trade

unions and employers organizations and federations

Collection of union dues including agency fees, and

subscriptions for employers organizations

Recognition of trade unions and Collective bargaining

Dispute resolution and adjudication through at the parties

own level, Ministry of labour , Industrial Court and ADR

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Labour Relations Act, 2007 cont..

Strikes and lockouts, including prohibited strikes and

lockouts, Essential services (water supply services,

hospital services, air traffic control services and civil

aviation telecommunication services, fire services of the

Government and public institutions, posts authority and

local Government authorities, ferry services)

Powers of industrial court to deal with urgent

applications (recognition, redundancy without notice,

essential services) 31

Work Injury Benefits Act, 2007 cont..Provides for compensation of all employees for work

related injury or occupational diseases

Registration of employers and insurance of all

employees against work related injury or occupational

diseases, including medical treatment, appliances and

travel (recovery of medical expenses prohibited)

Compensation of employees for occupational accidents

or diseases resulting in disablement or death

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Work Injury Benefits Act, 2007 cont..

Denial of compensation in the case of

injury due to deliberate and willful

misconduct(unless injury is serious-more than 40%

disability or death)

employee willfully fails to disclose a medical

condition that aggravates injury or disease,

Employee fails to present himself for medical

treatment33

Work Injury Benefits Act, 2007 cont..

Employee not to be denied compensation by

threats

Compensation not to be alienated, Maximum

compensation based on 96 months earningsTemporary disability up to 12 monthsPayment of compensation to Director within

90days from date of assessment and to injured employee or dependants within 30 days.

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Occupational Safety and Health Act, 2007Applies in any place where a person is at workPurpose of the Act is to:

Secure the safety, health and welfare of persons at work

Protect persons other than persons at work from risks risks arising out of the activities of persons at work

Provides for duties of occupiers (who include employers) workers, self employed people, suppliers, designers, importers, manufacturers

Special provisions for health and welfare of workers, machinery, chemical and safety, 35

Labour Institutions Act, 2007

Provides for the creation and management of all institutions dealing with labour including The National Labour BoardIndustrial CourtCommittee of InquiryAppointment of Commissioner for Labour, Director of

Employment, Registrar and Deputy Registrars of Industrial Court and Registrar of Trade Unions

Wages Councils and wages ordersEmployment Agencies

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National Social Security Fund Act (cap 258)Establishes the NSSF a compulsory contributory social security scheme

Provides:Age benefitsWithdrawal benefitsInvalidity benefitsSurvivors’ benefitsEmigration grants

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National Hospital Insurance Fund Act (cap 255)Establishes the NHIF, an insurance fund which:Caters for medical insurancePays for expenses incurred by a contributor, and his or her spouse and dependant children

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