TOPIC 1: INTRODUCTION TO LAW
1.1 Meaning of law
According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice. Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human.
1.2 Purposes or Functions of Law
(i) Rules of law facilitate administration of justice. It is an instrument used by human beings to achieve justice.
(ii) Law assists in the maintenance of peace and order. Law promotes peaceful co-existence, that is, prevents anarchy.
(iii) Law promotes good governance.
(iv) Law is a standard setting and control mechanism.
(v) Provision of legal remedies, protection of rights and duties.
1.3 Types and Classification of Law
Rules of law may be classified as:
- Written and unwritten
- National and International
- Public and Private
- Substantive and Procedural
- Criminal and Civil
These are rules of law that have been reduced into a written form. They are embodied in a formal document for example The Constitution of Kenya, laws made by parliament (statutes). Such laws prevail over unwritten Law.
These are rules of law that have not been reduced into written form. They are not embodied in any single document for example African Customary Law, Islamic Law, Hindu Law, Common Law, and Equity. Their existence must be proved.
National or Municipal Law
These are rules of law operational within the boundaries of a country. It regulates the relation between citizens and between citizens and the state. It is based on Acts of Parliament, customary and religious practices of the people.
It is a body of rules that regulates relations between countries/states and other international persons eg United Nations. It is based on international agreements of treaties and customary practices of states and general principles.
It consists of those branches of law in which the state has an interest as the sovereign eg criminal law, constitutional law, administrative law. Public law is concerned with the constitution and functions of the various organs of government including local authorities, their relations with each other and with the citizens. Public law asserts state sovereignty/power.
It consists of those fields or branches of law in which the state has no direct interest as the sovereign eg law of contracts, law of tout, law of property, law of succession. Private law is concerned with day to day transactions of legal relationships between persons. It defines the rights and duties of parties.
It is concerned with the rules themselves as opposed to the procedure on how to apply them. It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, and defamation. It defines offences and prescribes punishment.
It consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of justice or in the application of substantive law. e.g. Criminal Procedure code Cap 75
Criminal law has been defined as the law of crimes. A crime has been defined as an act committed or in violation of public law eg murder, manslaughter, robbery, burglary, rape, stealing, and theft. All crimes or offences in Kenya are created by parliament through statutes. Suspects are arrested by the state through the police. However, individuals have the liberty to arrest suspects. Offences are generally prosecuted by the state through the office of the Attorney General.
Civil law is concerned with violations of private rights in their individual or corporate capacity eg breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods.
If a person’s private rights are violated, the person has a cause of action. Causes of action are recognized by statutes and by the common law. The person whose rights have been allegedly violated sues the alleged wrong doer. Hence civil cases are styled as Plaintiff v Defendant. It is his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the plaintiff.
1.4 Sources of Kenyan law
A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase `sources of Kenya law’ therefore means the origin of the legal rules which constitute the law of Kenya.
- The constitution
The Kenyan constitution is a formal document which contains a comprehensive frame-work of rules and principles through which a state operates.
- Legislation (Act of parliament/Statutes)
These are laws passed by the National Assembly. They must be published in the Kenya Gazette before coming in operation. A statute comes into operation either on the date of publication in the Kenya Gazette or on such other dates as may be signified by the minister by a notice in the Kenya Gazette. All statutes enacted by the parliament of Kenya must contain the words ‘Enacted by the parliament of Kenya’. An Act of parliament begins as a bill, which is the draft of the Law the parliament intends to make.’. A bill May be:
(i) A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament.
(ii) A Private Members Bill, if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government.
- Delegated Legislation
Although the constitution rests the legislative power of the public in parliament, parliament delegates its legislative power to other persons and bodies. Delegated legislation is also referred to as subsidiary/subordinate legislation and is the law made by parliament indirectly. e.g.
- Local authorities-make by-law are applicable within their administrative area.
- Government ministries, professional bodies and others make rules, orders, regulations, notices e.t.c.
- Statutes of general application
Kenyan law does not define the phrase ‘statutes of general application’ However, the phrase is used to describe certain statutes enacted by the UK parliament to regulate the inhabitants of UK generally. These statutes are recognised as a source of law of Kenya by section 3(1) of the judicature Act. However, their application is restricted in that they can only be relied upon:
- In the absence of an Act of parliament
- If consistent with the provisions of the Constitution.
iii. If the circumstances of Kenya and its inhabitants permit.
- Case law/Judicial precedent
These are laws made the judges. Judges make law when they formulate principles or propositions where none existed or in doubtful situations, which are relied upon as law in subsequent similar case.
- Common law
Common law means law that was administered in the whole of England. This is different from statutory law/statutes of general application. Common law can be applied where and only when our Kenyan courts find them compatible with the Kenyan situation.
Equity was developed to supplement, not to supplant the common law. It was developed as a modification to the common law, hence it is described as a ‘gloss on the common law’. In the ordinary sense, equity means fairness, justice, morality, fairplay, equality e.t.c. But in legal sense equity is a branch of law which, before the judicature Act of 1873 came in force, was applied and administered by the court of chancery (was a court of equity in England developed to eliminate the inequity of the common law).In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law.
- Subsidiary sources
These are sources of law which regulate certain categories of people in Kenya in relation to certain matters and include: Islamic law, Hindu law and African customary law.
- Islamic law-It is based on the Muslim holy book, the Quran and the teaching of prophet Mohammed contained in his says Known has Hadith. It is recognised as a source of law by section 66(5) of the constitution and section 5 of the Kadhi’s Court and only applies in the determination of civil cases relating t marriage, divorce, succession or personal status in preceding in which all parties profess Muslim faith.
- Hindu law-it is based on the Hindu faith and philosophy. It is a subsidiary source of law of Kenya. it is recognised as a source of law by the Hindu marriage and divorce Act and the Hindu succession Act. It only applies in the determination of civil cases relating to marriage, divorce succession or personal status in proceeding in which all parties profess Hindu faith.
- Africa Customary Law-It is base on the customs and practices of the various ethnic groups in Kenya. A custom embodies a principle of utility or justice.
TOPIC 2: INTRODUCTION TO LABOUR LAW AND INDUSTRIAL RELATIONS
- i) Labour law (or “labor”, or “employment” law) is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees.
- ii) Industrial Relations: Industrial relations can be regarded as a system or web of rules regulating employment and the ways in which people behave at work.
The genesis of labour law and practice can be traced to the 19th century when need arose for the colonial government to pass legislation to ensure adequate supply of cheap labour to service the emerging enterprises in agriculture, industry and in the service sector. Terms and conditions of employment were regulated by statutes and the common law. The law of contract in Kenya was originally based on the Contract Act, 1872, of India, which applied on contracts made or entered into before 1st of January 1961. The Indian Contract Act applied to the three countries Kenya, Tanzania and Uganda . Since then the Kenyan law of contract has been based on the English common law of contract, under the Kenyan Law of Contract Act (Cap. 23), section 2 (1). With industrialization, towards the middle of the 20th century, an organized trade union movement was well established. The first wage earners’ associations in Kenya can be traced back to the early 1940s and soon after the Second World War.
The first trade union regulation was made in the introduction of Ordinance No. 35 of 1939 that required all crafts organizations to apply for registration which they could be granted or denied depending on whether they had legitimate dealings consistent with government policy. The Ordinance also permitted any group of seven people to form a trade union and operate as one upon registration. Cancellation of registration under the Ordinance was not subject to appeal or open to question in a court of law (Aluchio 1998, 3).
In 1948, in order to gain complete hold on the wage earners organizations the government brought in a Trade Union Labour Officer, to be attached to the Labour Department with the duty to foster “responsible” unionism (Ananaba 1979, 3). In 1952 a more detailed piece of legislation was enacted for Trade Unions but again with significant omissions. It lacked necessary provisions for effective operation of trade unions. It did not legalize peaceful picketing or provide immunity against damages as a result of strikes. On the other hand, the government encouraged creation of staff associations and works committees since they fitted in its interests to confining workers’ organization to economic imperative alone and also lacked strike powers.
This rigid control of trade unions was maintained by the colonial government until the end. This notwithstanding, the movement was able to grow both in numerical strength and power. At independence the total number of following was about 155,000, 52 trade unions, with four centres formed and registered, namely, East African Trade Union Congress (EATUC), Kenya Federation of Registered Trade Unions (KFRTU), Kenya Federation of Labour (KFL) and Kenya Africa Workers Congress (KAWC).
Industrial confrontation arose not merely from traditional trade union activities, but also from the movement’s political role in the struggle for freedom from colonial domination, particularly after individual political leaders had been arrested and placed in detention. On the threshold of independence however, both employers and trade unions, felt that it was vital for the infant nation to make economic process, that capital and labour should work together in harmony: the incidence of strikes and lockouts had to be drastically reduced.
As a result, in October 1962, a landmark was established with the signing of the Industrial Relations Charter by the government of Kenya, the Federation of Kenya Employers and the Kenya Federation of Labour, the forerunner of COTU (K), the Central Organisation Of Trade Unions (Kenya).
The Industrial Relations Charter spelt out the agreed responsibilities of management and unions and their respective obligations in the field of industrial relations, it defined a model recognition agreement as a guide to parties involved, and it set up a joint Dispute Commission.
The Industrial Relations Charter has been revised twice since then, but remained the basis for social dialogue and labour relations in Kenya throughout the years. Currently the “Charter” is under review again; the parties have already produced a draft Charter in 2001 that might be signed in the context of the overall Labour Law review. With the set up of an Industrial Court in 1964, one additional basic cornerstone was laid for the development of amicable conflict resolution in Kenya.
TOPIC 3: CONTRACT OF EMPLOYMENT THEORY
3.1 Meaning of contract of service/Contract of employment
Employment contract means an agreement, whether oral or written to employ an employee for a period of time
Laws governing contract of employment include:
In Kenya employment is governed by the general law of contract . Thus employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. A number of laws have been passed specifically dealing with different aspects of the employer-employee relationship. These laws defined the terms and conditions of employment and consist mainly of four Acts of parliament:
- The employment Act (cap.226)
- The regulation of wages and conditions of employment Act(cap.229)-Makes rules governing wages, leaves and rest, health and safety and special position of children and women and termination of employment)
- The Factories Act(cap 514)-Deals with the health, safety and welfare of an employee who works in a factory.
- The work injury benefit Act(cap.253)
3.2 Types of employment contract
- Contract of an unspecified period of time
An employment contract which does not specify a fixed period of duration, but can be terminated by notice of either party.
- Contract for specified period of time.
Here the contract term is specified. The contractual relationship is automatically terminated at the end of the term, without being considered ad resignation or dismissal.
- Contract for a specified task (piece employment)
Once the task is completed the contract comes to an end.
- Contract for casual employment
Here are individual is paid at the end of everyday and who is not engaged for a longer than 24hours at a time.
Note: An employer should within two months after the beginning of employment contract furnish the worker with a written statement of the particulars of the main terms of the contract of employment. (Employment Act, section.10)
3.3 Formation of contract of employment
A contract of service is formed for a period or a number of working days which amount in the aggregated to the equivalent of 3 months or more. It provides for the performance of nay specified work which could not reasonably be expected to be completed within a period or a number of working days and should be in writing. An employer shall be responsible for drawing up the contract stating particulars of employment and ensuring that the contract is signed by the employee. Where an employee is illiterate or cannot understand the language in which the contract is written, the employer shall have the contract explained to the employee in a language that the employee understands.
3.4 Content of contract of employment
A written contract of employment should have the following:
- Name, age, permanent address, sex of the employee.
- Name of the employer
- Job description of the employment
- The form and duration of contract.
- The place of work
- Hours of work
- Remuneration benefits
- The scale of remuneration, the method of calculating the remuneration and details of intervals at which remuneration is paid.
- Any other prescribed matter e.g. annual leave, holiday pay, Pension schemes, sick leaves, termination basis e.t.c.
3.4 Content of Employment Act
The employment Act cap 226 is divided into 6 parts:
- i) Preliminary – part 1
- ii) Conditions of employment – part 2
iii) Foreign contracts of services – part 3
- iv) Employment of women and juveniles – part 4
- v) General – part 5
- vi) Supplementary – part 6
PART 1 – PRELIMINARY
This Act may be acted as the Employment Act. The provisions of this Act shall not apply to
- a) The armed forces or the reserve as respectively defined in the Armed Forces Act.
- b) The Kenya Police, The Kenya Prisons Service or the Administration Police Force.
- c) The National Youth Service
Labour Advisory Board – There shall be a Labour Advisory Board whose duty it shall be to advise the Minister upon such matters connected with employment and labour, and answer any question referred to it by the minister. – The members of the Board shall be appointed by the Minister. Out of the members, the Minister shall appoint a chairman and an officer of the labour department to be the Secretary. – The following provisions shall have effect with respect to the constitution and proceedings of the Board:
- a) The Minister may at any time cancel the appointment of a member of the Board. Unless his appointment is so cancelled, each member of the Board shall hold office for three years.
- b) If the chairman of the Board ceases to be a member of the Board, he shall also cease to be the Chairman of the Board.
- c) There shall be paid out of moneys provided by Parliament to the members of the Board, including the chairman, in respect of their office as such, and other reasonable allowances in respect of expenses properly incurred in the performance of their duties as may be determined by the Minister with the consent of Minister for the time being responsible for finance.
PART II – CONDITIONS OF EMPLOYMENT
1) Protection of Wages
Subject to this Act, the entire amount of the wages earned by or payable to an employee in respect of work done by him in pursuance of a contract of service shall be paid to him directly in the currency of Kenya.
-If an employee requests in writing incase of an agreement made between a trade union and an employer, payment may be made:
- a) Into an account at a bank , in his name whether alone or jointly with any other individual.
- b) By cheques, postal order or money order
- c) In the absence of an employee, to a person other than the employee, if the person is duly authorized by him writing to receive the wages on his behalf.
- d) Payment of wages shall be made on a working day and during working hours, at or near to the place of employment or at such other place as may be agreed to between the employer and the employee.
- e) Payment of wages shall not be made in any place wherein intoxicating liquor is sold or readily available for supply, except in the case of employees employment to work therein.
– When wages are due – an employee shall be entitled:
- a) When a task has not been completed, at the option of his employer to be paid by his employer at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day.
- b) In the case of casual employee, at the end of the day.
- c) In the case of an employee employed for a period of more than a day but not exceeding month, at the end of that period.
- d) In the case of an employee employed for a period exceeding one month, at the end of each month.
- e) Where an employee is summarily dismissed for lawful cause, he shall be paid on dismissal all moneys, allowances and benefits due to him up to the date of his dismissal.
- Deductions from Wages
An employer may deduct from the wages of his employee:
- a) Any amount due from the employee as a contribution to any provident or superannuation scheme or any other scheme approved by the labour commissioner to which an employee has agreed to contribute.
- b) A reasonable amount for any damage done to or loss of, any property lawfully in the possession or custody of the employer occasioned by the willful default of the employee.
- c) Any amount paid to the employee in error as wages in excess amount of wages due to him.
- d) Any amount the deduction of which is authorized by any written law for the time being in force
- e) Any amount in which the employer has no beneficial interest, whether direct or indirect.
Every employee shall be entitled:
a) After every 12 consecutive months of service with his employer to not less than twenty-one working days of leave with full pay.
– A woman employee shall be entitled to two months maternity leave with full pay. Provided that a woman has taken two months maternity leave shall forfeit her annual leave in that year.
– The leave referred to in subsection 1 shall be additional to all public holidays, weekly rest days and any sick leave, whether fixed by law or agreement, in respect of which as employee is not required to work.
– Every employee shall be entitled to at least one rest day in every period of 7 days.
– Every employer shall at all times, at his own expense provide reasonable housing accommodation for each of his employees either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, in addition to his wages or salary, as reasonable accommodation.
– Every employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment.
– Every employer shall, where provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that every employee is properly fed and supplied with sufficient proper cooking utensils and means of cooking at the employer’s expense.
- Summary Dismissal
Any of the following constitute justifiable or lawful grounds for the dismissal:
- a) If, without leave or other lawful cause, an employee absents himself from the place of proper and appointed for the performance of his work.
- b) If an employee becomes intoxicated during working hours and renders himself unwilling to perform his work.
- c) If an employee uses abusive or insulting language or behaves in a manner insulting to his employer or to a person placed in authority over him by his employer. d) If an employee knowingly fails or refuses to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.
- Certificate of Service Every employee shall be given a certificate of service by his employer upon the termination of his employment.“`
PART III FOREIGN CONTRACTS This part shall apply in respect of every foreign contract of service, that is to say, a contract of service made within Kenya and to be performed in all or part outside Kenya. – Every contract of service with a foreign state, except a contract for service entered into with or by behalf of the Government.
– A foreign contract of service shall not be attested unless the labour officer is satisfied:
a) that the employee’s consent on the contract has been obtained
b) that the contract is in a prescribed form
c) that the employee is medically fit for the performance of his duties under the contract
PART IV – EMPLOYMENT OF WOMEN AND JUVENILES
– No person shall employee a child whether gainfully or otherwise, in an industrial undertaking. The provisions of this section shall not apply to the employment of a child in an industrial undertaking under a deed of apprenticeship or indentured learnership lawfully entered into under the provisions of the industrial training Act.
– Subject to sect 29, no woman or juvenile shall be employed between the hours of 6.30 pm and 6.30 am in an industrial undertaking.
– Expect in the following situations:
- i) Women may be so employed in cases where their work is concerned with raw materials, or materials in the course of treatment.
- ii) Women holding responsible positions of a managerial or engaged in health and welfare services
– No female shall be employed on underground work in a mine except in the following circumstances:
- i) A woman holding a position of management who does not perform manual works.
- ii) A woman engaged in health or welfare services
iii) A woman who in the course for her studies spends a period of training in the underground parts of a mine
– Every employer who employs any Juvenile shall keep and maintain a register containing the following particulars of every Juvenile employed:
- i) Age or date of birth
- ii) Date of entry into and of learning the employment
iii) Such other particulars a may be prescribed
PART V – GENERAL
– Every employer shall keep a written record of all employees employed by him with whom he has entered into contracts under this Act.
– This shall contain such particulars as may be prescribed and the employer shall permit the record to be examined by an authorized officer who may require an employer to produce for inspection that record for any period relating to the preceding twelve months.
PART VI – SUPPLEMENTARY
– Every authorized officer shall be furnished by the Labour Commissioner with a certificate of his appointment. – With the issuance and production of the certificate to the employer the Labour Officer has the following duties:
- i) Enter, inspect and examine all reasonable times by day and night any land or building or other structure whether permanent or temporary on or in which he has reasonable ground for believing that an employee is living, residing or employed and may make such inquiries and inspection or examination as may be necessary to enable him to determine whether the provisions of this Act are being compiled with.
- ii) At all reasonable times require an employer to produce an employee employed by him and a document relating to the employment of any employee and may require an employee to produce any document elating to his employment.
iii) Examine and take copies of a register, record, book or other document relating or appearing to relate to employment, whether produced to him or not, and take possession of that register, record, book or other ground for believing to be or to contain evidence of an offence under this Act.
- iv) Enter, inspect and examine all latrines and other sanitary arrangements or water supply.
- v) Order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition.
3.5 Termination of contract of employment.
Before any termination a notice should be offered depending on the policy of the organization. an employee who does not understand the notice shall be explained the whole notice to him orally, in a language the employee understands. Each and every employee is entitled to lawful and fair termination.
- a) Expiry of contract
A contract is terminated when the period expressed in it expires, if the employee is engaged on a journey, the employer may extend the period of service for a sufficient period, which shall not exceed one month, to enable the employee to complete the journey.
- b) Termination on account of redundancy
An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions;
-Where the employee is a member of a trade union, the employer notifies the union and the labour officer in charge of the area of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination.
-Where the employee is not a member of a trade union, the employer notifies the employee personally in writing and labour officer.
-The employer has to pay off in cash any leave due to an employee who is declared redundant.
- c) Termination on grounds of misconduct
An employer shall before terminating the employment of an employee, on grounds of misconduct, poor performance or physical incapability explain to the employee, in a language the employee understands, the reason for termination in presence of another employee or a union representative of his own. Before terminating the employment of an employee or summarily dismissing an employee, an employer shall hear and consider any representation which the employee and the person chosen but the employee may make on grounds of misconduct or poor performance.
Procedure for handling a termination in case of displinary:
- Informal warming-A verbal/informal warming is given to the employee in the 1st instance of a minor offence the warning is administered by the employees supervisor.
- Formal warming-A written formal warning is given to the employee in the 1st instance of more serious offence or after repeated instance of minor offences. It is done by the immediate manager.
-It should state the extent nature of offence and indicate any future displinary action which will be taken against the employee if the offence is repeated within a specified time limit.
– A copy of the written warning is placed in the employee’s personal file but it is destroyed 12 months after the date of when it was given if no other offence has been committed.
-The employee is expected to read and sign the formal warming and has the right to appeal to the higher management if he/she thinks that the warning is unjustified.
-The H.R managers should be asked to advise on the text of the written warming.
- Further displinary action
If despite previous warnings an employee fails to reach the required standards in a reasonable period of time it may be adequate to consider further displinary action. The action may be suspension or dismissal.
- d) Termination of probationary contract
No employer shall employee under probationary contract for more than a period of twelve months. The employer should issue a 7 days notice prior termination.
- e) Summary dismissal
This is when an employer terminates the employment without any notice or with less notice than the employee is entitled to. The following are some of the matters that may amount to gross misconduct so as to justify the summary dismissal of an employee. But this does not prevent an employer or employee from respectively disputing whether the facts giving rise to the dismissal are justifiable or of lawful grounds:
- Without leave or lawful cause an employee absents himself from his/her appointed work place.
- During working hours an employee becomes intoxicated hence rendering himself incapable to perform his duties.
- An employee willfully neglects to perform any work which it was his duty to perform or carelessly or improperly performs it.
- An employee uses abusive or insulting language to his employer or to a person placed in authority over him/her.
- An employee commits or on sufficient grounds is suspected of having committed a criminal offence against his employer of his employer’s property.
Unfair reasons for termination:
- A female worker’s pregnancy or any person connected within her pregnancy.
- An employee’s refusal to join or withdrawal from a trade union.
- An employee’s membership of a trade union.
- An employee seeking of a office in a trade union.
- An employee’s participation in a lawful strike.
- An employee’s race, tribe, sex, religion, political, nationality, social origin, marital status, HIV status.
Remedies for wrongful dismissal and unfair termination:
When in the opinion of a labour officer the termination of a contract is unjustified, the labour officer may recommend to the employer to pay the employee the following:
- The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under his contract of service.
When in the opinion of a labour officer an employee’s dismissal or termination of employment was unfair, the labour officer may recommend to the employer to:
- a) Reinstate the employee and treat the employee as if the employee’s employment had not been terminated.
- b) Re-engage the employee in work compatible to that in which the employee was employed prior to his dismissal or other suitable work, at the same wage.
3.6 Certificate of service
- An employer shall issue to an employee a certificate of service upon termination of employment unless the employment has continued for a period of less than four consecutive weeks.
- A certificate of service issued shall address:
- a) Name of the employer and his postal address.
- b) Name of the employee
- c) Date when the employment of the employee commenced.
- d) Nature and usual place of employment of the employee
- e) Date when the employment of the employee ceased and any other particulars e.g. position
Note: An employer who by neglect fails to give an employee a certificate of service or who knowingly includes a false statement in a certificate of service, commits an offence and shall be on conviction be liable to a fine not exceeding ksh.100,000 or to imprisonment for a term not exceeding 6 months or both.
TOPIC 4: LAWS RELATING TO TRADE DISPUTES
4.1 Trade disputes concept
An industrial dispute/trade dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
4.2 Trade dispute Act
- a) Board of inquiry – means a Board of inquiry appointed by the Minister under section 19.
- b) Collective agreement – means an agreement made between a trade union and an employer or organization of employers which relates to terms and conditions of employment, whether or not enforceable in law and whether or not concluded under machinery for negotiation.
- c) Recognition agreement means an agreement in writing made between a trade union and an employer or organization of employers which provides for the recognition of the trade union as the body entitled to represent the interests of those of its members who are specified in the agreement and who are or have been employed by the employer or any of the employers compromising that organization.
Persons to whom Act does not apply: a) the armed forces or any reserve force b) police force, administrative police force to prison service or in the National Youth Service.
Reporting, conciliation and investigation of disputes
Subject to subsection any trade dispute, whether existing or apprehended, may be reported to the Minister by or on behalf of any party to the dispute. Every report of a trade dispute shall be made in writing and shall sufficiently specify:
- a) the employers and employees or the categories of the parties to the dispute.
- b) The party or parties by whom or on whose behalf the report is made.
- c) The nature of the authorization given by the party or parties desiring the dispute to be reported on their behalf
- d) Each and every matter over which the dispute has arisen or is apprehended (arrested)
– Every person reporting a trade dispute shall, without delay, furnish a copy of the report thereof to each party to the dispute.
Consideration and action by the Minister:
- a) Inform the parties that any of the matters over which the trade dispute has arisen or is apprehended is not suitable to be dealt with under this section.
- b) Refuse to accept the report of the trade dispute where the Minister is of the opinion that any matter in dispute is barred from negotiation under the terms of a recognition or collective agreement in force between any of the parties to the dispute.
- c) Inform the parties that he accepts or rejects the report of the trade dispute
- d) Refer the matter back to the parties and if he thinks fit, make proposals to the parties or any of them upon which a settlement of the trade dispute may be negotiated.
- e) Recommend to the parties that the trade dispute be referred to the industrial court.
Methods of Conciliation The Minister may, in relation to a trade dispute so reported take any one of the following steps:
- a) Appoint any person (who may be a public officer or any other person considered by the Minister to suitable) to act as a conciliator.
- b) Appoint a conciliation panel consisting of an independent chairman and of one or more persons selected by the Minister as being representatives of employers and an equal number of persons selected by him as being representative of employees.
- c) Refer any matter, with the consent of the parties, to a conciliation of panel composed in accordance with the wishes of the parties.
- d) Withdraw or temporarily suspend the operation of any of the already said conciliation measures.
Investigation of matters related to trade disputes:
– Where the Minister is satisfied that any trade dispute exists, whether or not the dispute has been reported to him, he may appoint an investigator or a committee of investigation.
– The investigation shall be a person who appears to be an independent and qualified person.
Registration of collective agreements
– The industrial court shall maintain a register of collective agreements that have been accepted by the court for registration.
– A collective agreement shall not take effect until it has been accepted for registration by the industrial court.
Powers of Industrial Court:
– The Industrial court shall not accept a collective agreement for registration unless the court is satisfied that the agreement complies with all relevant guidelines.
Reference of dispute for settlement
– For the purpose of the settlement of trade disputes and of matters relating thereto the president may by order establish an Industrial court consisting of: a) 2 Judges as may be determined by the President b) 8 other members, who shall be appointed for terms not less than 3 years by the Minister after consultation with the Central Organization Trade Unions and the Federation of Kenya Employers.
4.3 Legal provisions governing industrial Action
- A strike or lockout shall be unlawful:
Unless a report in writing of a trade dispute has been made on which the dispute and 21days have elapsed since the date on which the dispute was reported and the period of notice specified in any registered collective agreement relevant to that trade dispute.
If the minister has writhin the period of 21days refused to accept the report of the trade dispute because the minister is of the opinion that any matter in dispute is barred from negotiation under the terms of a recognition agreement or collective agreement in force between any of the parties to the dispute.
Offences connected with unlawful strikes and lockout.
- Any person who is connected with any strike or lock-out declared by this Act in any unlawful if he/she:
- Incites others to take part in any strike or lockout.
- Takes part in any such strike or lockout shall be guilty of an offence and in case of an offense under section(a) shall be liable to a fine not exceeding ksh 5000 or to imprisonment for a term not exceeding 12 months or both. In case of an offense under paragraph (b) shall be liable to a fine not exceeding ksh 5000 or to imprisonment for a term not exceeding 3 months or both.
TOPIC 4: INDUSTRIAL COURT
4.1 Meaning of industrial court
The Industrial Court is probably the most important feature of labour relations in Kenya. The Industrial Court was established under the Trade Disputes Act (Cap 234) of Laws of Kenya. Until January, 1989, the Court had only one judge, assisted by members of the Court, however another position for the second judge was created so as to ease the workload of the court.
The main objective was and still is the settlement of trade disputes which are referred to it by either parties (employer and employees) or the Minister for Labour when all other procedures have failed. The Court is empowered to make award (s) to the aggrieved party of parties. The award is final and there is no provision for appeal; the decisions are binding. When making decisions, the Court takes into consideration the national economic conditions, the financial position of the employers and the existing collective bargaining agreement.
Presentation of a case to the Court involves the employer represented by the FKE, the employee(s) represented by a union and the Industrial Court Judge presiding and assisted by members of the Court. The procedures are different from those found in the Courts of Law, although order must be maintained. Some of the matters settled through the Court are wrongful dismissal which leads to reinstatement (not all the time), salary/wage disputes, redundancy and any other disputes unresolved by voluntary negotiating machinery so long as they are within the existing CBA. In this respect, the Industrial Court acts as a bridge between the employer and employees in settling disputes and ensuring that industrial peace prevails in the county.
Tripartite Committee – means a committee consisting of a representative of the Minister, who shall be the chairman, and two other members appointed by the Minister, one from a panel of persons nominated by or on behalf of organizations of employers, and the other from a panel of persons nominated by or on behalf of organizations of employees.
4.2 Composition of industrial court
- i) Judges
– The court consists of 2 judges of the High court appointed by the President of the Republic of Kenya for a term of not less than 5 yrs.
– The qualifications of the persons appointed are the same as those of High Court Judges and has also been an advocate of a high court for not less than 7 years.
- ii) Members
– There are 8 members of IC appointed by the Minister of Labour after consultation with FKE and COTU. – Appointments is for a term of not less than 3 years.
– One of the members is the Deputy appointed to the Judge by the Minister for Labour.
– Where expedient (useful) the Judge may appoint two accessors one representing the employers and the other representing employees.
– Where members are unable to agree as to the award or decision in any matter, the matter is decided by the Judge of the Court acting with full powers of the Umpire.
– The award is final and there is no provision for appeal – the decision is binding.
– When making decisions, the court takes into consideration the national economic conditions, the financial position of the employees and the existing collective bargaining agreements
– Presentation of the case to the court involves the employer represented by the FKE, the employees represented by a union and the industrial court judge presiding and assisted by the other members of a court.
– The judges and other members are eligible to re-appointment.
– The appointments are notified in Kenya Gazette which also states terms for which such appointments are made .
– The IC is not part of Kenya Judiciary Court. It is a special court created under the T.D Act and is entirely from the vote of the minister for labour
– The decisions taken by the industrial court are not necessarily based on legal arguments and technicalities alone. They go beyond the legal rights of the parties and stretch deeply into the spheres of economic, social human relations and political necessities which keep changing.
– The success and the ad justification of the courts lies in the fact that it is not too regulastic in awards of decisions.
– Although the court is financed by the Ministry of labour it is very independent hence is under no influence whatsoever either of the Ministers for labour or any other development except to the extend that the court has to take into consideration wages guidelines issued by the Minister for Finance.
– The Judges are of the same status as High Court Judges.
4.3 Establishment of the Court
The first industrial court was established in June 1964 by virtue of Trade Disputes Act of 1964 was later repeated on June 8th 1965. Section 14 of Trade Disputes Act gives powers to the President to establish an Industrial Court: Today we have two industrial courts in Kenya:
The first court was filled with disputes which was making them to take long. This called for an establishment of a second court.
4.4 Qualifications of appointment of judges of the Court
A person shall be qualified for appointment as a Judge of the Court if the person ;
(a) has at least ten years’ experience as a superior court judge or a professionally qualified magistrate; or
(b) has at least ten years, experience as a distinguished academic or legal practitioner with considerable knowledge and experience in the law and practice of employment and labour relations in Kenya; or
(c) holds the qualifications specified in paragraph (a) and (b) for a period amounting in the aggregate, to ten years.
4.5 Tenure of office of judges of the Court
(1) A Judge of the Court shall hold office until the Judge;
(a) retires from office in accordance with Article 167(1) of the Constitution;
(b) resigns from office in accordance with Article 167(5) of the Constitution; or
(c) is removed from office by a tribunal appointed by the President in accordance with Article 168(5) of the Constitution.
(2) Subject to provisions of the Constitution, the Principal Judge may elect either to retire from office or to continue serving as Judge of the Court upon expiry of the Principal Judge’s term.
4.6 Functions of I.C.
– The I.C. adjudicates in Trade Disputes which have complex questions and issues of economic social & political nature.
– Trade dispute is a dispute or a difference between employers and employees, employees & employees.
– The dispute must be connected with employment or no employment.
– It may also be concerned with conditions of employment.
4.9 Powers of the Industrial Court
(1) The Court shall have exclusive original and jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
(a) disputes relating to or arising out of employment between an employer and an employee;
(b) disputes between an employer and a trade union;
(c) disputes between an employers’ organisation and a trade unions organisation;
(d) disputes between trade unions;
(e) disputes between employer organizations;
(f) disputes between an employers’ organisation and a trade union;
(g) disputes between a trade union and a member thereof;
(h) disputes concerning the registration and election of trade union officials; and
(j)disputes relating to the registration and enforcement of collective agreements.
(2) An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer’s organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.
(3) In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders:
(i) a prohibitory order
(ii) an order for specific performance
(iii) a declaratory order
(iv) an award of compensation in any circumstances contemplated under this Act or any written law
(v) an award of damages in any circumstances contemplated under this Act or any written law;
(vi) an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or
(vii) any other appropriate relief as the Court may deem fit to grant.
(4) In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.
(5) The court shall have power to summon witnesses, to administer oaths and affirmations and to require any person who appears to it to have special knowledge of any relevant matter.
TOPIC 5: LAWS RELATING TO TRADE UNIONS
5.1 Trade union concept
Trade Union defined as per Cap 233 of the Laws of Kenya, it means an combination whether temporary or permanent of more than six employees and must be registered by the registrar of trade unions, who come together to ensure that their interests are protected.
Advantages of trade union membership
- There is strength in numbers
- Improved conditions of employment
- Improved workplace environment/working conditions.
- Improved sickness benefits, pensions and retrenchment benefits, fringe benefits e.t.c.
- Improved job satisfaction and encourage training
- Advice and financial support e.g. redundancy.
Reasons why employees join trade unions
Reasons why employees join trade unions
The important forces that make the employees join a union are as follows:
- Greater Bargaining Power
The individual employee possesses very little bargaining power as compared to that of his employer. If he is not satisfied with the wage and other conditions of employment, he can leave the job. It is not practicable to continually resign from one job after another when he is dissatisfied. This imposes a great financial and emotional burden upon the worker. The better course for him is to join a union that can take concerted action against the employer. The threat or actuality of a strike by a union is a powerful tool that often causes the employer to accept the demands of the workers for better conditions of employment.
- Minimize Discrimination
The decisions regarding pay, work, transfer, promotion, etc. are highly subjective in nature. The personal relationships existing between the supervisor and each of his subordinates may influence the management. Thus, there are chances of favoritisms and discriminations. A trade union can compel the management to formulate personnel policies that press for equality of treatment to the workers. All the labor decisions of the management are under close scrutiny of the labor union. This has the effect of minimizing favoritism and discrimination.
- Sense of Security
The employees may join the unions because of their belief that it is an effective way to secure adequate protection from various types of hazards and income insecurity such as accident, injury, illness, unemployment, etc. The trade union secure retirement benefits of the workers and compel the management to invest in welfare services for the benefit of the workers.
- Sense of Participation
The employees can participate in management of matters affecting their interests only if they join trade unions. They can influence the decisions that are taken as a result of collective bargaining between the union and the management.
- Sense of Belongingness
Many employees join a union because their co-workers are the members of the union. At times, an employee joins a union under group pressure; if he does not, he often has a very difficult time at work. On the other hand, those who are members of a union feel that they gain respect in the eyes of their fellow workers. They can also discuss their problem with’ the trade union leaders.
- Platform for self expression
The desire for self-expression is a fundamental human drive for most people. All of us wish to share our feelings, ideas and opinions with others. Similarly the workers also want the management to listen to them. A trade union provides such a forum where the feelings, ideas and opinions of the workers could be discussed. It can also transmit the feelings, ideas, opinions and complaints of the workers to the management.
- Betterment of relationships
Another reason for employees joining unions is that employees feel that unions can fulfill the important need for adequate machinery for proper maintenance of employer-employee relations. Unions help in betterment of industrial relations among management and workers by solving the problems peacefully.
5.2 Provision of Trade Union Act (Laws of Kenya)
Trade Union defined as per Cap 233 of the Laws of Kenya, it means an combination whether temporary or permanent of more than six persons and must be registered by the registrar of trade unions.
Employees Association means an association or combination, whether temporary or permanent, of more than six employees who work for the same employer, which has as its principal purpose the regulation of relations between such employees and their employer or between such employees amongst employees.
Employees organization means an association or combination, whether temporary or permanent of more than six employees who work for different employers, which has as its principal purpose the regulation of relations between such employees and their employers or between such employees and their employers or between such employees amongst themselves.
Staff Association means an association or combination of more than 6 employees employed in a civilian capacity under the government or local authority and the principal object of which is regulations of relations of employees or government or local authority.
NB: It is worth noting that only registered trade unions can bargain/negotiate for wages.
Provision of Trade Union Act Includes:
- Appointment of Registrar and other officers:
– The Minister shall appoint a Registrar of Trade Unions, who shall be responsible for the due performance of the duties and functions assigned to him as Register under this Act.
– The Minister may also appoint a Deputy Registrar of Trade Unions and one or more Assistant Registrars of Trade Unions and such other officers as may from time to time be required for the purposes of this Act. Section 7 of Cap 233 says that no suit shall be brought against any of the officers for anything done or omitted to be done by him in good faith and without negligence.
– The trade union registration is to be done within 28 days. Any trade union which fails to register within 28 days can be fined 5000 or jailed.
– Every application for registration shall be made to the Registrar in the prescribed form, and shall be signed by at least seven members of the union.
– In case of association of trade unions, the prescribed form shall be signed by the chairman and general secretary of each of the member trade unions.
– Every application for registration shall be accompanied by the prescribed fee and a copy of the rules of the unions and statement of the following particulars namely:
- a) The names, occupations and addresses of members making the application (or in case of an association of trade unions)
- b) The names and addresses of the registered office of each members trade union
- c) The name of the union and the address of its registered office
- d) Titles, names, ages, addresses and occupations of the officers of the union. e) When it was cancelled/suspended.
- f) Date of registration or dissolution
– The Registrar may refuse to register a trade union and defer its registration and notify it accordingly.
– Upon that deferment the trade union shall become a probationary trade union
– The Registrar, on registering a trade union under section 11 or section 12, shall issue to the union a certificate of registration in the prescribed form, and that certificate, unless proved to have been cancelled or withdrawn, shall be conclusive evidence for all purposes that this trade union has been duly registered under this Act.
– The Registrar may call for further information for the purpose of satisfying himself that any application complies with the provisions of section 10 or that the trade union is entitled to registration under this Act.
– The Registrar has the power to alter the name of a trade union – if the name proposed to be registered is identical with that by which any other existing trade union has been registered.
– Or if in the opinion of the Registrar the name proposed resembles or may mislead the members of the Public the Registrar may alter the name proposed for the trade union.
- The Registrar may refuse to register any trade union or probationary trade union if he is satisfied that:
- a) The union has not complied with the provisions of this Act or any regulations made there under or
- b) Any of the objects of the constitution of the union is unlawful or conflicts with any such provision or
- c) The union is used for unlawful purposes
- d) Any other trade union already registered is;
- i) In the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration
- ii) In the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof.
- e) The principal purpose of the trade union registration are not in accord with those set out in the definition of trade union‛ contained in section 2
- f) The funds of the union are being applied unlawful
- g) The accounts of the union are not being properly kept
- h) The secretary or treasurer of the union is in his opinion incapable by reason of not being sufficiently literate in English or Swahili language of carrying out adequately the duties of secretary or treasurer
- a) At the request of the trade union upon its dissolution, to be verified in such manner as the registrar may require
- b) If he is satisfied that the trade union has ceased to exist
Registration of branches of trade unions – Application for registration of a branch of a trade union shall be made by the secretary of the trade union concerned within 28 days form the date of its formation and shall be signed by the secretary.
– It shall be accompanied by the prescribed fee (if any) and shall contain the following particulars:
- a) The name of the union concerned, the name of the branch, the postal address of the branch office or of the place of meeting for carrying out the business of the branch
- b) The titles, names, ages, addresses and occupations of all the officers of the branch
– Whenever any branch of a trade union is dissolved, notice of dissolution shall be given by the secretary of the union concerned to the registrar who shall subject to subsection (3) and subsection (4) there upon cancel the registration of that branch
– Before registering a branch of a trade union or canceling the registration of a branch of a trade union, the registrar may require the production of a such evidence relating to the formation or dissolution of the branch as the deems necessary
Dissolution of a trade union
- When a trade union, employer’s organization or federation is dissolved, it shall give notice of the dissolution which;
- shall be submitted to the registrar within fourteen days of the resolution to dissolve and
- shall be signed;
- i) By authorized representative
- ii) By seven members of a trade union or three members of employer’s organization or federation.
- The registrar shall;
- issue a certificate of dissolution
- register the dissolution if satisfied that the dissolution complies with the applicable constitution.
- The dissolution of a trade union, employer’s organization or federation takes effect from the date of its registration.
- Any person aggrieved by a decision of the registrar made under this Act may appeal to the industrial court against that decision within thirty days of the decision.
Provisions regarding trade union funds
The funds of a trade union, employers’ organization or federation may be used only for the following purposes:
- Payment of salaries, allowances and expenses to its officials.
- The payments of expenses for the administration of the trade union, employers’ organization or federation including auditing of its accounts.
- The prosecution o defense of any legal proceedings to which the trade union, employers organization or federation or any member thereof is a party.
- The conduct of trade disputes on its behalf or on behalf of any member thereof.
- The compensation of members for loss arising out of trade disputes.
- the payment of allowances to members or to their dependants on account of death, old age, sickness, accidents or unemployment of those members.
- Payment of subscriptions and fees to any registered federation to which it is affiliated.
Deduction of trade union dues
Trade union dues means a regular subscription to be paid to a trade union by a member of the trade union a condition of membership. A trade union may, in the prescribed form, request the minister to issue an order directing an employer to;
- Deduct trade union dues from the wages of its members
- pay monies so deducted into a specified account of the trade union
An employer in respect of whom the minister has issued an order shall commence deducting the trade union dues from an employee’s wages within thirty days of the trade union serving a notice signed by the employees in respect of whom the employer is required to make a deduction.
An employer may not make any deduction from an employee who has notified the employer in writing that the employee has resigned from the union.
TOPIC 6: LAW RELATING TO HEALTH AND SAFETY AT WORK
Under the statutes such as the Factories Act (cap 514),the occupational safety and health Act,2007,the Employment Act(cap 226) and the Regulation of wages and conditions of employment Act(Cap 229) employers have a duty to provide safe working conditions and to take reasonable care to ensure the health and safety of employees. In the course of their employment, employees can be subject to various dangers that can cause injury, disease or death. These include factory or workplace accidents which can arise from tools, equipments or machinery that can injure, explosions and fires, occupational diseases and motor vehicle accidents.
Most of the legal provisions regarding health and safety at work are covered in the Factories Act(cap 514) of 1951 which is an act of parliament to make provision for the health, safety and welfare of persons employed in factories and welfare of persons employed in factories and other places and for matters incidental thereto and connection therewith. The act was repealed by the occupational safety and Health (OSHA) 2007 which is defined as an act of parliament to provide for the safety, health and welfare of workers and all persons lawfully present at workplace, to provide for the establishment of the national council for occupational safety and health and for connected purposes.
Meaning of factory
Factory means any premises in which persons are employed in manual labour.
6.1 Duties of employers and employees in a workplace Part 11
Duties of employers /occupiers (Section6)
(1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace.
(2) Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes—
(a) the provision and maintenance of plant and systems and procedures of work that are safe and without risks to health;
(b) arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed
(d) the maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks to health;
(e) the provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employees welfare at work;
(f) informing all persons employed of——
(i) any risks from new technologies; and
(ii) imminent danger;
(g) ensuring that every person employed participates in the application and review of safety and health measures.
(3) Every occupier shall carry out appropriate risk assessments in relation to the safety and health of persons employed and, on the basis of these results, adopt preventive and protective measures to ensure that under all conditions of their intended use, all chemicals, machinery, equipment, tools and process under the control of the occupier are safe and without risk to health and comply with the requirements of safety and health provisions in this Act.
(4) Every occupier shall send a copy of a report of risk assessment carried out under this section to the area occupational safety and health officer;
(5) Every occupier shall take immediate steps to stop any operation or activity where there is an imminent and serious danger to safety and health and to evacuate all persons employed as appropriate.
(6) It is the duty of every occupier to register his workplace unless such workplace is excepted from registration under this Act.
(7) An occupier who fails to comply with a duty imposed on him under this section commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding six months or to both
Duties of employee (Section 13)
(1) Every employee shall, while at the workplace—
(a) ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace;
(b) co-operate with his employer or any other person in the discharge of any duty or requirement imposed on the employer or that other person by this Act or any regulation made hereunder;
(c) at all times wear or use any protective equipment or clothing provided by the employer for the purpose of preventing risks to his safety and health;
(d) comply with the safety and health procedures, requirements and instructions given by a person having authority over him for his own or any other person‘s safety;
(e) report to the supervisor, any situation which he has reason to believe would present a hazard and which he cannot correct;
(f) report to his supervisor any accident or injury that arises in the course of or in connection with his work;
(g) with regard to any duty or requirement imposed on his employer or any other person by or under any other relevant statutory provision, co-operate with the employer or other person to enable that duty or requirement to be performed or complied with.
(2) A employee who contravenes the provisions of this section commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months or to both.
Notice of accidents and dangerous occurrences (Section 21)
(1) An employer or self-employed person shall notify the area occupational safety and health officer of any accident, dangerous occurrence, or occupational poisoning which has occurred at the workplace.
(2) Where an accident in a workplace, causes the death of a person therein, the employer or self employed person shall—
(a) Inform the area occupational safety and health officer within twenty-four hours of the occurrence of the accident;
(b) Send a written notice of the accident in the prescribed form to the area occupational safety and health officer within seven days of the occurrence of the accident.
(3) Where an accident in a workplace causes non-fatal injuries to a person therein, the employer shall send to the area occupational safety and health officer, a written notice of the accident in the prescribed form within seven days of the occurrence of the accident.
(4) In the case of death due to a workplace accident, non- fatal injuries arising from a workplace accident, an occupational disease or a dangerous occurrence at the workplace, involving a self-employed person incapable of submitting notification, such notification shall be submitted to the area occupational safety and health officer by the occupier.
(5) An employer shall cause all workplace injuries to be entered in the general register specified in section 122.
(6) Where a person injured in an accident dies after the accident is notified under this section, the employer shall send a notice of the death in writing, to the area occupational safety and health officer as soon as he is informed of the death.
(7) Where an accident to which this section applies occurs to an employee and the occupier of the workplace is not the employer of the person injured or killed, the employer of that employee, shall, immediately report the accident to the occupier or, the Director and the area occupational safety and health officer.
(8) The provisions of this section shall extend and apply to the dangerous occurrences specified in the First Schedule
(9) The Minister may, on the advice of the Council, by notice in the Gazette amend the First Schedule.
(10) A person who fails to notify an accident or a dangerous occurrence as required under this section commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.
Notification of occupational diseases (Section 22)
(1) A medical practitioner attending a patient who he believes to be suffering from any disease specified in the Second Schedule, contracted in any workplace, shall within seven days of attending the patient unless such a notice has been previously sent, send to the Director, a notice stating the name and full postal address of the patient, the disease from which, in the opinion of the medical practitioner, the patient is suffering, and the name and address of the workplace in which the patient was last employed.
(2) A medical practitioner who fails to send a notice in as required by subsection (1), commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand shillings.
(3) An occupier shall send a written notice of any disease, specified in the Second Schedule, occurring in a workplace to the Director and the provisions of section 21 with respect to the notification of accidents shall mutatis mutandis apply to any notification of diseases.
(4) The Minister may, by rules apply the provisions of this section to all workplaces or any class or description of workplace to any disease other not specified in the Second Schedule.
6.2 Powers of the occupational safety and health officer Part III Section 32
(1) An occupational safety and health officer shall, for the purpose of the execution of this Act, have power to do all or any of the following things—
(a) to enter, inspect and examine, by day or by night, a workplace, and every part thereof, when he has reasonable cause to believe that any person is employed therein, and to enter, inspect and examine, by day, any place which he has reasonable cause to believe to be a workplace and any part of any building of which a workplace forms part and in which he has reasonable cause to believe that explosive, highly inflammable or any other hazardous materials are stored or used:
(i) an occupational safety and health officer shall, whenever it is practicable so to do and will not in his opinion defeat the object of his inspection, notify the occupier or some other person in authority at a workplace of his arrival at the workplace for the purpose of inspecting it;
(ii) when an occupational safety and health officer has inspected a workplace without having first given the notification referred to in paragraph (i) of this proviso, he shall, within a reasonable time after such inspection, inform the occupier and the Director in writing of the reason why no notification was given;
(b) with regard to any place of work which he has power to enter, to direct that those premises or any part of them or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purposes of any examination or investigation;
(c) to take such measurements and photographs and making such recordings as he may consider necessary for the purposes of any examinations or investigation under this Act;
- d) to develop and print photographs of scenes of occupational accidents;
(e) take and remove samples of any articles or substances found at any place of work which he has power to enter and of the atmosphere in or in the vicinity of such a place of work subject to the employer being notified of any sample so taken;
(f) to take with him a police officer if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;
(g) to require the production of the registers, certificates notices and documents kept in pursuance of this Act and to inspect, examine and copy any of them;
(h) to make such examination and inquiry as may be necessary to ascertain whether the provisions of this Act, and of the enactments for the time being is force relating to public health, are complied with, so far as respects a workplace and any persons employed in a workplace;
(i) to require any person whom he finds in a workplace to give such information as it is in his power to give as to who is the occupier of the workplace;
(j) to examine, either alone or in the presence of any other person, as he thinks fit, with respect to matters under this Act, every person whom he finds in a workplace, or whom he has reasonable cause to believe to be or to have been within the preceding six months employed in a workplace, and to require every such person to be so examined and to sign a declaration of the truth of the matters respecting which he is so examined; so, however, that no one shall be required under this provision to answer any question or to give any evidence tending to incriminate himself;
(k) in the case of an occupational safety and health officer who is a medical practitioner, to carry out such medical examinations as may be necessary for the purposes of his duties under this Act; and
(l) to exercise such other powers as may be necessary for the purposes of this Act.
(2) The occupier of every workplace, and his agents and servants, shall furnish the means required by an occupational safety and health officer as necessary for an entry, inspection, examination or inquiry, or the taking of samples, or otherwise for the exercise of his powers, under
(3) An occupational safety and health officer shall in the case of any article found in any premises which he has power to enter, being an article or substance which appears to him to have caused or is likely to cause danger to safety or health, cause it to be dismantled or subjected to any process or test but not to damage or destroy it unless this is in the circumstances necessary. (4) In the case of any article or substance specified in subsection (3) an occupational safety and health officer may take possession of it and detain it for so long as is necessary for any of the following purposes —
(a) to examine it and do to it anything which he has power to do under this Act;
(b) to ensure that it is not tampered with before his examination of it is completed;
(c) to ensure that it is available for evidence in any proceedings for an offence under this Act;
(d) to summon in writing any person whom he has reasonable cause to believe to be able to give any information relevant to any inspection, examination or investigation, to attend at a time and place specified and to give such information or to produce any relevant document. this Act in relation to that workplace.
6.3 Health General Provisions Part VI
Cleanliness (Section 47)
(1) Every workplace shall be kept in a clean state, and free from effluvia arising from any drain, sanitary convenience or nuisance, and, without prejudice to the generality of subsection (1)—
(a) accumulations of dirt and refuse shall be removed daily by a suitable method from the floors and benches of workrooms, and from the staircases and passages;
(b) the floor of every workroom shall be cleaned at least once in every week by washing or, if it is effective and suitable, by sweeping or by any other method;
(c) all inside walls and partitions, and all ceilings or tops of rooms, and all walls, sides and tops of passages and staircase, shall——
(i) where they have a smooth impervious surface, at least once in every period of twelve months, be washed with hot water and soap or cleaned by other suitable method;
(ii) where they are kept painted with oil paint or varnished, be repainted or varnished at least once in every period of five years.
(1) An occupier shall ensure that his workplace shall not, while work is carried on, be so overcrowded as to cause risk of injury to the health of the persons employed therein.
(2) Without prejudice to the generality of subsection (1) a workplace shall be of sufficient size for work to be carried out with ease and shall further have the necessary free space and , having regard to the nature of the work ,an adequate amount of air for each
Ventilation (Section 49)
(1) An occupier shall ensure that effective and suitable provision is made for securing and maintaining, by the circulation of fresh air in each workroom, the adequate ventilation of the room.
Lighting (Section 50)
(1) An occupier shall ensure that effective provision is made for securing and maintaining sufficient and suitable lighting, whether natural or artificial, in every part of his workplace in which persons are working or passing.
(2) All glazed windows and skylights used for the lighting of workrooms shall, so far as practicable be kept clean on both the inner and outer surface and free from obstruction
Drainage of floors (Section 51)
Where any process is carried on which renders the floor liable to be wet to such an extent that the wet is capable of being removed by drainage, effective means shall be provided and maintained for draining off the wet.
Sanitary conveniences (Section 51)
(1) Sufficient and suitable sanitary conveniences for the persons employed in the workplace shall be provided, maintained and kept clean, and effective provision shall be made for lighting the conveniences; and, where persons of both sexes are or are intended to be employed (except in the case of workplaces where the only persons employed are members of the same family dwelling there), such conveniences shall afford proper separate accommodation for persons of each sex.
6.4 Safety general provisions
Vessels containing dangerous liquids
(1) Every fixed vessel, structure, sump or pit containing corrosive or poisonous liquid, either be securely covered or be securely fenced to at least that height to prevent any person from falling into the vessel, structure, sump or pit.
(2) A plant referred to in subsection (1) shall have a warning notice, indicating the nature of the danger, in a form readily understood by the persons in the workplace and shall be marked on or attached to the plant or, if this is not practicable, be posted in a conspicuous location near the plant.
(1) All goods, articles and substances stored in a workplace shall be stored or stacked—
(a) in such manner as will ensure their stability and prevent any fall or collapse of the stack;
(b) in such manner as not to interfere with the adequate distribution of natural or artificial light, the natural ventilation systems, the proper operation of machines or other equipment, the unobstructed use of passageways, gangways or traffic lanes, and the efficient functioning of sprinkler systems, the unobstructed access to other fire extinguishing equipments within the workplace;
(c) on firm foundations not liable to overload any floor.
(2) No goods, articles or substances shall be stored or stacked against a wall or partition unless the wall or partition is of sufficient strength to withstand any pressure caused thereby.
(1) Every ladder to be issued in workplace shall be of good construction, sound material adequate strength and suitable for the purpose for which it is used and shall be properly maintained.
(2) No ladder shall be used unless—
(a) it is securely fixed in a position to prevent it from slipping or falling, except that when this is impracticable, a person shall be stationed at the base of the ladder to prevent it from slipping or falling;
(b) it stands on a firm and level footing except in the case of suspended ladder;
(c) it is secured where necessary to prevent sagging;
Ergonomics at the workplace (Section76)
(1) Machinery, equipment, personal protective equipment, appliances and hand tools used in all workplaces shall comply with the prescribed safety and health standards and be appropriately installed, maintained and safe guarded.
(2) Every employer shall take necessary steps to ensure that workstations, equipment and work tasks are adapted to fit the employee and the employee‘s ability including protection against mental strain.
(3) Every manufacturer, importer and supplier or an agent of a manufacturer, importer and supplier of the machinery and equipment referred to in paragraph (1) shall ensure that the equipment complies with the safety and health standards prescribed under this Act and shall provide adequate and appropriate information including hazard warning signs.
(4) An employer shall not require or permit any of his employees to engage in the manual handling or transportation of a load which by reason of its weight is likely to cause the employee to suffer bodily injury.
(1)All stocks of highly inflammable substances shall be kept either in a fire-resisting store or in a safe place outside any occupied building.
(2)Where highly flammable liquids are to be conveyed within a workplace they shall, where it is practicable so to do, be conveyed through a totally enclosed system incorporating pipe-lines and pumps or similar appliances but where conveyance of highly flammable liquids within a workplace through such a totally enclosed system is not practicable, they shall be conveyed in vessels which are so designed and constructed as to avoid so far as practicable, the risk of spilling.
(3)Where in any process or operation any highly flammable liquid is liable to be spilled or to leak, all reasonably practicable steps shall be taken to ensure that any highly flammable liquid, which is spilt, or leaks shall be contained or immediately drained off to a suitable container or to a safe place, or otherwise treated to make it safe.
(4) No means likely to ignite vapours from highly flammable liquids shall be present where a dangerous concentration of vapours from flammable liquids may reasonably be expected to be present.
(5) No person shall smoke, light or carry matches, lighters or other flame producing articles, or smoking materials, in any place in which explosive, highly flammable or highly combustible substances, are manufactured, used, handled or stored. at or as near as possible to every place in
Safety provisions in case of fire (Section 81)
(1) In every workplace or workroom there shall be——
(a) provided and maintained, and conspicuously displayed and free from any obstruction so as to be readily accessible, means for extinguishing fire, which shall be adequate and suitable having regard to the circumstances of each case; and
(b) present, persons trained in the correct use of such means of extinguishing fire during all working hours.
(2) Every workplace shall be provided with adequate means of escape, in case of fire, for the persons employed therein, having regard to the circumstances of each case.
(3) All the means of escape referred to in subsection (2) shall be properly maintained and kept free from obstruction.
(4) The contents of any room in which persons are employed shall be so arranged that there is a free passageway for all persons working in the room to a means of escape in case of fire.
(5)All doors affording a means of exit from the workplace for the persons employed therein shall, except in the case of sliding doors, be constructed to open outwards.
(6)While any person is within a workplace for the purpose of employment or meals, the doors of the workplace, and of any room therein in which the person is, and any doors which afford a means of exit for persons employed in the workplace from any building or from any enclosure in which the workplace is situated, shall not be locked or fastened in such manner that they cannot be easily and immediately opened from the inside.
(7) Every, window, door or other exit affording means of escape in case of fire or giving access thereto, other than the means of exit in ordinary use, shall be distinctively and conspicuously marked by a notice printed in red letters of an adequate size.
(8)There shall be marked on the floor of every workroom gangways to facilitate proper arrangement of the contents of the workroom with a view to keeping all fire extinguisher points and fire exits free from obstruction and for ensuring proper housekeeping.
(9) Every occupier of a workplace shall take effective steps to ensure that all the persons employed therein are familiar with the means of escape in case of fire, and with the routine to be followed in case of fire.
6.5 Welfare general provisions
Supply of drinking water (Section 91)
(1) Every occupier shall provide and maintain an adequate supply of wholesome drinking water at suitable points conveniently accessible to all persons employed.
Washing facilities (Section 92)
(1) Every occupier shall provide and maintain for the use of persons employed, adequate and suitable facilities for washing, which shall be conveniently accessible and shall be kept in a clean and orderly condition.
Accommodation for clothing (Section 93)
Every occupier shall provide and maintain for the use of a person employed, adequate and suitable accommodation for clothing not worn during working hours.
Facilities for sitting (Section 94)
Every occupier shall provide and maintain, for the use of a person employed whose work is done standing, suitable facilities for sitting, sufficient to enable the person employed to take advantage of any opportunities for resting which may occur in the course of his employment.
First-aid (Section 95)
Every occupier shall be provide and maintain so as to be readily accessible, a first-aid box or cupboard of the prescribed standard.
TOPIC 7: LAWS RELATING TO TRAINING OF WORKERS
7.1 Meaning and history of Industrial training
In the context of preparation for occupational roles, ‘education’ meaning instruction and learning broadly relevant to performance in all or a considerable number of occupational roles. ‘Training’, on the other hand is instruction and learning concerned with good performance of a specific task or set of tasks making up a job occupation. Training in the public sector and private industry can be institutional or internal, formal or informal, or a variety of combinations of these formats.
In June 1968 a plan of operation for a National Industrial Vocational Training Centre (NIVTC) was signed by the Kenya Government with the ILO. This began Phase 1 of an ILO project to assist Kenya in the establishment of national programs of industrial training. In 1970 the Kenya Government enacted the Industrial Training Act (ITA) which provided for the regulation of the training of apprentices and the establishment of training schemes under a Directorate of Industrial Training in order to ‘encourage and assist industries in their training efforts’. In 1971,the National Industrial Training Council(NITC) was created under the Act and an Industrial Training Levy was established. The council was created as a tripartite authority (employers, employees and government) responsible for establishing training committees for each industry incorporated in the levy and training schemes. In 1971, the building and civil engineering industry became the first to be officially registered and levied under the Act. The purpose of the Act was to provide a means of standardization and coordination of training for the private sector.
Industrial Training Act
Industrial training in Kenya falls within the purview of the Industrial Training Act, Chapter 237 Which is an Act of parliament to make provisions for the regulation of the training of persons engaged in industry. The Act was enacted in 1960 and has been revised several times including 1983 and recently 2012.the Act is administered by the Director of Industrial Training(Now Director General) in the Ministry of Labour and Human Resource Development under the general guidance of the National Industrial Training Council(Currently National Industrial Training Authority) which is a tripartite body which consisting of six members each representing employers, and workers and not less than six members chosen to represent the Government and others interests.
Terms in Industrial Training Act (ITA)
“apprentice” means a person who is bound by a written contract to serve an employer for such period as the Board shall determine with a view to acquiring knowledge, including theory and practice, of a trade in which the employer is reciprocally bound to instruct that person; “Authority” means the National Industrial Training Authority established under section 3; “Board” means The National Industrial Training Board established under section 4;
“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to labour;
“Committee” means a Training Committee established under ITA
“Director-General” means the Director-General of the Authority
“employee” means a person employed for wages or salary and includes an apprentice, indentured learner, temporary, seasonal and casual worker;
“employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any person, and includes— an agent, foreman or manager; and an heir, successor, assignee or transferee of that person, public body, firm, corporation or company;
“indentured learner” means a person, other than an apprentice, who is bound by a written contract to serve an employer for a determined period of not more than two years with a view to acquiring knowledge of a trade in which the employer is reciprocally bound to instruct that person;
“Industrial attachment” means the placement of a person in a workplace for the purpose of gaining knowledge and practical skills;
“Industrial training” means training for a specified industry;
“Industry” means a trade, occupation, profession or an economic sector for which a training committee has been established for purposes of this Act;
“Inspector” means an inspector appointed by the Minister
“Minor” means a person under the age of eighteen years;
“The minister” means the minister for the time being responsible for matters relating to labour; “trade” means a skilled occupation;
“Trainer” means any person, firm, or institution registered under this Act
7.2 Legal provisions regarding National Industrial Training Authority (NITA)
Establishment of the Authority (Section 3)
(1) There is established an Authority to be known as the National Industrial Training Authority. (2) The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name be capable of—
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
(c) borrowing or lending money;
(d) entering into contracts; and
(e) doing or performing all other things or acts for the proper performance of its functions under this Act, which may be lawfully done or performed by a body corporate
Powers and functions of the Authority
The Authority shall be responsible for—
(a) Industrial training;
(b) Assessing and collecting industrial training levy and fees;
(c) Regulating registered trainers
(d) Developing industrial training curricula;
(e) Integrating labour market information into skills development;
(f) Harmonizing curricula and certificates of competence;
(g) Assessing industrial training, testing occupational skills and awarding certificates including Government trade test certificates;
(h) Equating certificates;
(i) Accrediting institutions engaged in skills training for industry;
(j) Associating or collaborating with any other body or organization within or outside Kenya as the Board may consider desirable or appropriate and in furtherance of the purposes for which the Authority is established;
(k) Charging for goods and services offered by the Authority; and
(l) Performing any other duties and functions as may be conferred on it by this Act or by any other written law.
(m) Establish, manage and promote industrial training centres in the countries.
(1) The headquarters of the Authority shall be in Nairobi, or such other place as the Board may, with the approval of the Cabinet Secretary
Establishment of National Industrial Training Board (section 4)
(1) There shall be a Board to be known as the National Industrial Training Board which shall consist of—
(a) a chairperson appointed by the Cabinet Secretary;
(b) the Principal Secretary of the Ministry for the time being responsible for matters relating to labour or a representative duly appointed in writing;
(c) the Principal Secretary of the Ministry for the time being responsible for matters relating to science and technology or a representative duly appointed in writing;
(d) the Principal Secretary of the Ministry for the time being responsible for matters relating to finance or a representative duly appointed in writing;
(e) members nominated as follows and appointed by the Cabinet Secretary—
(i) three persons nominated by the Federation of Kenya Employers; and
(ii) three persons nominated by the Central Organisation of Trade Unions; and
(f) one other member appointed by the Cabinet Secretary.
(1A) A person shall not be eligible for appointment as the chairperson or member of the Board, other than an ex-officio member unless that person—
(a) has at least five years experience in matters relating to technical education, industrial training, technology, finance, law, human resource management, financial management, public administration, public policy, advocacy or education administration; and
(b) has a proven record of personal integrity, competency and accountability.
(1B) In appointing the members of the Board, the Cabinet Secretary shall ensure that not more than two thirds of the members are of one gender and at least one member represents persons with disabilities.
(2) No person shall be appointed as a member if he—
(a) is insolvent or has conveyed or assigned his property or has made a composition or arrangement for the benefit of his creditors; or
(b) is of unsound mind; or
(c) has been sentenced by a court to imprisonment for a term of six months or more within the preceding five years.
Powers of the Board
The Board shall exercise all powers necessary for the proper performance of its functions under this Act and in particular but without prejudice to the generality of the foregoing, the Board shall have power to—
(a) control, supervise and administer the assets of the Authority in a manner that best promotes the purposes for which the Authority is established;
(b) determine the provision to be made for capital and recurrent expenditure and for reserves of the Authority;
(c) receive any grants, gifts, donations or endowments on behalf of the Authority and make legitimate disbursements therefrom;
(d) open a bank account or bank accounts for the funds of the Authority;
(e) administer training levy funds;
(f) invest any funds of the Authority not immediately required for the purposes of the Authority; and
(g) Appointing directors and other officers and staff as may be necessary for the purpose of this Act on such terms and conditions of service as the board may determine i.e set terms and conditions of service for employees of the Authority.
Remuneration of members
The Authority shall pay members of the Board such remuneration, fees, or allowances and other expenses as the Board may, with the approval of the Minister.
Duties and functions of the Board
The Act provides that the Board shall perform the following duties and functions;
- Secure the greatest possible improvement in the quality and efficiency of the training of personnel engaged in the industry.
- Ensure an adequate supply of properly trained manpower at all levels in the industry.
- Share the cost of all industrial training training undertaken in pursuance of this Act as evenly as possible.
- Review and maintain a system or systems for the holding of tests in respect of trades and occupations generally or any particular trades and occupation.
5.investigate any dispute or other matter arising out of a contract of apprenticeship referred to it by the Director-General and to settle the dispute amicably.
- Perform such duties and functions in regard to any other matter concerning apprenceship as may be prescribed.
- Investigate any matters connected with this Act and take the necessary action.
7.3 Functions of the Directorate of Industrial Training
(1) The Director- General of the Authority is the chief executive of the Authority, and secretary to the Board and the Committees.
(2) The Director-General is appointed by the Board on such terms and conditions of service as the Board may determine.
(3) The Director-General will hold office for one term of five years and shall be eligible for re-appointment for one further term of five years.
(4) A person shall not be appointed Director-General unless that person—
(a) is a holder of a degree in the field of engineering, technology, administration, finance, technical or industrial education, from a recognized university; and
(b) has at least fifteen years working experience in a related field, five of which shall be in matters relating to industrial training.
(5) The Director General subject to the directions of the Board, is responsible for the day to day management of the Authority.
7.4 Training Committees
(1) The Board may establish training committees to exercise functions of the Board in relation to training in specified industries.
(2) A Committee shall consist of such number of persons appointed in writing as the Board may determine, to represent—
(a) employers in the industry concerned;
(b) employees in the industry concerned; and
(c) other interests, and the Board shall appoint a chairperson and vice-chairperson of such Committee from amongst the members.
(3) The chairman and other members of a Committee shall hold office for such period not exceeding three years as may be specified at the time of appointment, and a retiring member shall be eligible for reappointment.
Duties and functions of Committees
(1) A Committee shall from time to time and whenever so directed by the Board submit to the Board proposals for the raising and collection of a training levy on employers
7.5 Employment of apprentices and indentured learners
Permission to employ apprentices
(1) No person shall employ an apprentice without having first obtained the written permission of the Director-General so to do; and the Director-General’s permission shall specify the maximum number of apprentices who may be employed at any one time by the person to whom the permission is given.
(2) No permission shall be given under this section unless the person applying therefor satisfies the Director-General that his establishment offers reasonable opportunities for the proper training of the apprentice or the number of apprentices proposed to be employed by him.
Permission to employ indentured learners
(1) No person shall employ an indentured learner without having first obtained the written permission of the Director-General so to do; and the Director-General’s permission shall specify the maximum number of indentured learners who may be employed at any one time by the person to whom the permission is given.
(2) No permission shall be given under this section unless the person applying therefor satisfies the Director-General that his establishment offers reasonable opportunities for the proper training of the indentured learner or the number of indentured learners proposed to be employed by him.
7.6 Legal provisions regarding Industrial attachment
(1) A person who—
(a) has attained the age of eighteen years;
(b) is undergoing training in a programme requiring industrial attachment; and
(c) is a lecturer or instructor in a training institution registered under this Act, or
(e) has applied for industrial attachment and in the opinion of the Director- General may benefit from skills acquired in industry, may be admitted for industrial attachment.
(2) A minor shall not be admitted for industrial attachment except with the consent of his parent or guardian or if there is no parent or guardian, with the consent of the Director-General.
(3) An employer who wishes to admit any person for industrial attachment under this Act shall first obtain the written permission of the Director-General.
(4) No permission shall be granted unless the employer satisfies the Director-General that the establishment to be used for industrial attachment offers reasonable opportunity for the proper training of the person or number of persons proposed for industrial attachment.
Registration of trainers
(1) A person who wishes to be registered as a trainer under this Act shall apply for registration to the Director- General in the prescribed form.
(2) No person shall be registered unless the trainer satisfies the Director-General that he offers reasonable facilities and opportunities for proper training in the field specified in the application.
(3) For purposes of registration under this section, the Director-General may conduct such inspection or carry out such investigations as he may consider necessary.
(4) A person who—
(a) having been registered as a trainer under this section contravenes any conditions subject to which the registration was granted;
(b) uses any unqualified persons for purposes of training under this Act;
(c) issues a certificate to any person who has not completed training under this Act; or
(d) issues any receipt, invoice or other document in respect of any training under this Act which contains any false particulars, shall be guilty of an offence.
(5) The Director-General may deregister a trainer who contravenes the provisions of this section.
Medical examination of apprentices and indentured learners
Every person before entering into a contract of apprenticeship or indentured learnership shall be medically examined at the expense of the employer by a medical practitioner; and a medical certificate to the effect that the person is fit to be employed in the trade concerned shall be obtained by the employer.
TOPIC 9: WORKMAN’S COMPENSATION ACT (LAWS OF KENYA)
It has been in force in Kenya since 1949. Objectives of Workman’s compensation Act:
- to provide for compensation for loss of caring capacity suffered by workmen injured or who meet death in accident arising out of an in he course of employment.
- Provides for payment by the employer of medical expenses of the employee.
- Any employee who contracts or dies as a result of contracting any of certain occupational diseases is also entitled to compensation.
Workman refers to any person who has entered into or works under a contract of service, apprenticeship or learnership with employer.
Accident – unexpected event which is not designed or desired by the injured workman.
Entitlement to compensation:
- a) He must have been doing what he’s employed to do.
- b) The accident must have taken place when the person was in actual discharge of his duties not before start of or after cessation of employment
- c) The injury caused permanent disability or death to the workman or temporarily disable him for at least three consecutive days form earning full wages from the work at which he was employed.
- d) Negligence on the part of the employee doesn’t disentitle him to compensation but serious and willful misconduct may, depending on the nature of the injury to preclude payment.
- e) The onus of proof of serious and willful misconduct rests with the employer.
Action to be taken after an accident:
- a) Immediately an accident occurs the law requires that a report if the accident is made to the labour officer of the area or to the District Commissioner (where there’s no labour officer)
- b) Any workmen who suspects that the employer hasn’t made such a report should immediately report the matter directly to the appropriate authority.
Compensation takes the form of monetary payment for which the employer is liable and is paid in respect of one or more of the following heads:
- Temporary incapacity
- Permanent incapacity
- Injury to health
– Assessed by the Labour Officer to whom the accident was reported.
– The amount is normally the periodical payment of not less than half of the workmen’s basic wage at the time of the accident covering the period of temporary disablement as certified by the doctor treating the injured workmen subject to a maximum of 96 months
– These periodical payments cease to be payable as soon as final award of permanent disability (if any) has been made.
Compensation for permanent incapacity Compensation for permanent incapacity falls under two headings:
- a) Partial incapacity and total incapacity
- b) The workman must have suffered partial loss of his earnings capacity as a result of the loss of a part of the use of a part of the body thus decreasing his ability to earn full wages.
- c) Permanent partial incapacity is expressed by the doctor treating the workman in percentage and may at least range from 1% to 99%
- d) Compensation in respect of permanent partial incapacity is assessed as percentage of 60 months earnings being percentage specified by the medical practitioner as the disability suffered by the workman subject to a minimum of Kshs 35,000 and a maximum of Kshs 240,000.
Compensation for Permanent total incapacity
– In fatal cases, a lump sum of 60 months earnings subject to a maximum of Kshs 240,000 payable where the deceased leaves a person o persons wholly, or partially dependent upon his earnings at the time of his death.
– The amount payable is distributed, between the surviving dependants in accordance with the respective degree to which they were dependent upon the deceased
– A widow who remarries before payment of compensation is still entitled to her share
– Where the dead man leaves behind no dependants reasonable expenses of the burial of the deceased workman subject to a maximum of Kshs 500 is payable by the employer.
Compensation for injury or health
– If a workmen is certified by a doctor to be suffering from a scheduled occupational disease occasioning his disablement or death and if such disease is proved to have been caused by the nature of the workman having contracted the disease within 24 months previous to the date of which disablement or death. Compensation shall be payable in the same manner as if the disablement or death were caused by an accident.
Medical Aid – Employer is liable to pay reasonable expenses incurred by a workman as a result of an accident which would entitle the workman to compensation. These include:-
- i) Expenses in respect of medical surgical and hospital treatment, nursing services and supply of medicines subject to a maximum of Kshs6,000/=
- ii) Expenses in respect of transportation of the injured workman to and from the place where treatment is available subject to a maximum of Kshs1,000/=
NB: Workman compensation cannot be assigned or attached and no claim shall be made upon such payment.
TOPIC 10: LAWS RELATING TO REMUNERATION OF WORKERS
10.1 Legal provisions governing employee remuneration (Regulations of wages and conditions of employment act cap 229)
Meaning of remuneration – Refers to the amount paid or to be paid to the employee by the employer in cash clear of any deductions expect authorized deductions (lawful deductions) for example.
- a) For the purpose of contribution to any provident fund or superannuating scheme
- b) In respect of actions supplied to an employee which an employer is charged to provide
- c) Under any provision where law provides that the employer deducts NSSF, NHIF, PAY, cooperatives.
- d) At the request in writing by the employee for any purpose for which the employer has no benefit
- e) Ina situation where there’s no council order, the general wages order is assumed to be in effect. Failure to comply is an offence. If an employer fails to pay an employee to whom a wages regulation order remuneration less than the statutory minimum or fails to provide the employment prescribed in that order, he shall be guilty of an offence and liable to a fine not exceeding 400 shillings.
- f) In case of underpayment the employer can pay the arrears.
Powers of officers – A labour officer or labour inspector shall have power for the performance of his duties
- To require the production of wage sheets or other records of wages kept by an employer and records of payments made to .
- At all reasonable times to enter any premises at which an employer to whom a wages regulation order applies carries on his business including any place need in connection with that business for giving out work.
- To inspect and copy any material part of any list of outworkers kept by an employer
- To examine, either alone, or in presence of any other person the wages of employee and there after sign a declaration of the truth of the matters n respect of which he is so examined
Determination of Wages and Salaries
- Minimum wages and conditions of employment for certain industries are imposed by the Government under the Regulation of Wages and Conditions of Employment Act (Cap 229)
- Employees are entitled to these minimum wages and conditions of employment even if their contacts of employment state otherwise
- Failing to adhere to guidelines on minimum wages and conditions of employment is a criminal offence. Penalty is Ksh 400/= and payment of the amount that is due the employee (difference between minimum wage and the actual wages)
- Employees are entitled to moneys, allowances and benefits earned while in employment, e.g. salary, accrued leave payments, bonuses, retirement benefits, e.t.c.
- Certificates of Service (testimonials) should be given if asked for
- Does not apply for casual workers whose engagement ends at the end of each day
Pay As You Earn (PAYE)
- The Income Tax Act places on employers an obligation to deduct and remit monthly, income tax for resident employees earning above Ksh 10,164/= per month. Employers are required also to tax benefits such as use of company vehicles
- Annual income tax returns should be made by employers for ALL employees whether subject to PAYE or not
10.2: Legal provision governing employee social security (NSSF, NHIF, PENSIONS)
It is mandatory under the industrial law of Kenya for employers to offer social security to employees. This is because employees get sick and need to seek treatment. Their nuclear families also need to be protected and assisted in paying hospital bills through their health insurance fund. In addition, the employee will retire at one time due to different reasons and hence permanent employees need to have a pension scheme or NSSF if they are not permanent.
National Social Security Fund (NSSF)
The national social security fund Act (cap226) establishes the NSSF as a compulsory social security scheme whose objective is to receive contributions for employers and employees as well as make payments to employees when they leave the organization. The employer is expected to contribute fifty percent of the contribution while the employee contributes the other fifty percent. Standard NSSF (currently under review) contribution is Ksh 200 deducted from employee’s salary, with employer contributing an equal amount. Failure to comply is a criminal offence subject to a penalty equal to five per cent of the amount payable and a fine of up to ksh 15,000.
The contributions are intended to benefit an employee. There are five main benefits paid to contributors by NSSF which are: Age benefits, Withdrawal benefits, Invalidity benefits, Survivor’s benefits and Emigration grants. Age benefits are paid to beneficiaries or dependants of deceased members such as their spouses or children but where none of them exist, the parents, brother, sister or dependent relative receive the benefits which may e divided amongst them according to the wishes of the deceased.
Invalidity benefits are paid to nay members who suffer permanent or partial incapacity or mental disability while withdrawal benefits are paid to persons who reach the age of fifty five. Emigration benefits is payable to a member who is moving from Kenya to reside in another country. However such, as an employee cannot be given his benefits if he will ever come back and his money transferred to the host country. All these payments are given by the director of the fund in cheque and are paid in lumpsum.
NSSF applies to all employees whether in public or private sector as long as they become contributors except: people working in universities or colleges which have their own social security schemes, non-civilian employees such as those employed in armed forces; people who do not reside in Kenya; and persons undergoing full time education.
National Hospital Insurance Fund (NHIF)
The NHIF Act (Cap 255) establishes the NHIF, which is an insurance fund, which caters for medical insurance and pays for expenses incurred by a contributor, and his or her spouse and dependant children. From 1990 onwards, all employers are given a legal notice requiring them to deduct NHIF contribution from employee’s salary. Failure to comply is a criminal offence subject to a penalty equal to five times the amount of that contribution.
NHIF is therefore the primary provider of health insurance in Kenya with a mandate to enable all Kenyans to access quality and affordable health services. Membership is mandatory for all Kenyans above 18 years of age.
The benefits package includes comprehensive medical coverage for all diseases(NHIF Act, section 22).This means that NHIF members, whose majority is from the formal sector can be fully treated at the cost to the NHIF without making additional payments.
Pension is the amount of money paid to a retiree who is employed on permanent and pensionable basis. It is paid regularly until the retiree dies. Section 9 and 10 of the employment Act, 2007 specifies that an employee shall be employed under a contract of service which shall include pensions and pension schemes in which the employee is involved. Section 17 of the pensions Act , provides for the payment of pension benefits to dependants upon the death of an employee in service or on retirement on condition that the employee has worked for ten or more years service.
The pensions Act cap 189,provides for the granting and regulating of pensions, gratuities and other allowances in respect of the public service of officers under the Government of Kenya. In addition there are allowances in respect of the public service of officers under the government of Kenya. In addition there are private retirement benefits schemes governed by the Retirement Benefits Act, 1997(Revised2010). Through which private employers and their employees as members make contributions towards retirement.
The Retirement benefits Act
The retirement Benefit Act was enacted to provide a regulatory framework for the retirement benefits industry. This framework was needed to streamline the industry and gain the required confidence from stakeholders and employees to enable them save more for retirement and contribute towards the national effort of raising the domestic savings rate. The Act created the retirement Benefits Authority to oversee the industry’s management and development in a prudent and appropriate manner.
TOPIC 11: EMERGING ISSUES AND TRENDS IN LABOUR LAW AND INDUSTRIAL RELATIONS
11.1 Emerging trends and issues
- Minimum Wages: In countries which have a legal minimum wage three concerns are evident. The first is that minimum wage levels sometimes tend to be fixed on extraneous considerations (e.g. political), or on inadequate data needed to define the level of wages. The second concern is that such instances have an adverse effect on competitiveness in the global market and on employment creation where the minimum wage is fixed above a certain level (much of the controversy relates to what that level is). Therefore many employers prefer to see the minimum wage, if there is to be one at all, as a ‘safety net’ measure to uplift those living below the poverty line. The third concern relates to increases in minimum wages not being matched by productivity gains which help to offset increased labour costs.
- Flexible/Performance Pay: Many employers, and even some governments, have expressed a wish to review traditional criteria to determine pay levels such as the cost of living and seniority. Pay systems which are flexible (i.e. based on profitability or productivity) so as to be able to absorb business downturns and also reward performance, are receiving considerable attention. One major problem in this regard is how employees and their organizations can be persuaded to negotiate on pay reform. The objectives of pay reform will not be achieved unless reforms are the result of consensual agreement and are part of a larger human resource management strategy and change in human resource management systems.
- Cross-Cultural Management: Due to substantial increases in investment from both Asian and Western investors, many employers and unions are dealing with workers and employers from backgrounds and cultures different to their own. Many of the resulting problems and issues (reflected for instance in the proliferation of disputes due to cross cultural ‘mismanagement’) fall within the concept of cross-cultural management. The problems arise due to differences in industrial relations systems, attitudes to and of unions, work ethics, motivational systems and leadership styles, negotiating techniques, inappropriate communication, consultation and participation procedures and mechanisms, values (the basic beliefs that underpin the way we think, feel and respond), expectations of workers and interpersonal relationships.
- Dispute Prevention: Most countries (other than those in transition to a market economy) have long-standing dispute settlement procedures at the national level (conciliation, arbitration, industrial or labour courts). Essential as these are, they operate only when a dispute arises. Equally important are dispute prevention through communication, consultation and negotiation procedures and mechanisms which operate largely at the enterprise level. Their importance has increased in the current decade when changes in the way organizations are structured and managed have created the potential for workplace conflict. A more positive movement from personnel management to strategic human resource management is called for.
- Industrial Relations/Human Resource Management Training: Not many developing countries have facilities for training in labour law and industrial relations – negotiation, wage determination, dispute prevention and settlement, the several aspects of the contract of employment, and other related subjects such as safety and health. More facilities are probably available in human resource management (the distinction is becoming increasingly thin). Since industrial relations have assumed a particularly important role in the context of globalization, structural adjustment and in the transition to a market economy, employers in each country would need to identify what aspects of industrial relations and human resource management should be accorded priority, how training in them could be delivered, and what concrete role is expected from the employers’ organization.
- Freedom of Association, Labour Rights: Currently, unions are moving towards a concentration on their core industrial relations functions and issues. The need for employees and their representatives to be involved in change and in transition, and the willingness of employers to involve them, is an emerging issue in many countries.
- Changing Patterns of Work: Changing patterns of work (e.g. more homework, part-time work, sub-contracting) have created concerns for unions in particular. Job insecurity, social security and minimum conditions of work are some of them. Traditional industrial relations systems based on the concept of a full-time employee working within an enterprise is increasingly inapplicable to the many categories of people working outside the enterprise. In some countries in terms of numbers they are likely in the future to exceed those working within an organization.
- Women: The increasing influx of women into workforces has raised issues relating to gender discrimination, better opportunities for them in relation to training and higher-income jobs and welfare facilities.
First, the increasing decentralization of IR (resulting from the need for enterprises to become more flexible, productive and competitive in the face of globalization) implies that governments must devolve more power and responsibility to managers and workers at industry and enterprise level to enable them to resolve issues of direct concern at the workplace. It will also place much greater demands on the people involved in individual enterprises, and reinforce the requirement for strong and effective workers’ and employers’ organizations which have the capacity to respond to members’ needs.
Secondly, not only will the roles of the “actors” in the IR system be subject to closer scrutiny in the future, so will their underlying values. Equity and stability in IR can only be delivered by the parties themselves. In particular, there will need to be a re-affirmation of freedom of association, the rights of workers, and pluralism. This will require increased attention in some countries to promote the role and legitimacy of trade unions and other workers’ representatives. Other issues, such as eliminating forced and child labour, and reducing (and, eventually, eliminating) discrimination in the workplace, will also have to be given much higher priority. In this context, the role of international labour standards in guiding the parties towards appropriate policies and strategies will continue to be significant.
Thirdly, it will be necessary for IR legislation and supporting rules and institutions to be reviewed, on a continuing basis. The labour legislation in many countries in the region reflects a now outdated approach based on minimisation of industrial conflict. Greater priority should be given to how legislation can be used to establish a framework for managers, workers and trade unions to pursue improved productivity and flexibility on a participative basis, while still providing appropriate protections for workers and a share in the benefits of growth, and emphasing prevention of industrial disputes through greater workplace cooperation. Dispute settlement machinery (including processes and administration) also needs to be made more effective in a number of countries.