THE KENYAN WORKER AND THE LAW - Kituo Cha Sheria

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THE KENYAN WORKERANDTHE LAWAN INFORMATION BOOKLET ONLABOUR LAWThe Kenyan Worker and the Law1

ForewordLabour rights is one of the core thematic areas that Kituo Cha Sheria (Kituo)operates in pursuit of their vision of a just and equitable society. This hasbeen through legal advice and litigation as well as through policy advocacy andeducation. During this period Kituo has received numerous complaints fromworkers regarding their terms and conditions of employment. It is Kituo’sexperience that the ordinary Kenyan worker lacks basic knowledge about hisor her rights as a worker. Similarly employers are equally unaware of theirobligations to their workers. This booklet is designed for workers, employersas well as anyone else who wants to know and understand the law in Kenya asit relates to labour and labour relations.In the year 2007 there was a review of the national labour laws which hadbeen a concern to both the Kenyan public and the Government for a longtime. This arose out of tremendous changes experienced in the local labourmarket such as; structural adjustments, liberalization of the economy andtechnological innovations. The review was aimed at ensuring the laws wereresponsive to contemporary economic and social changes as well as achievea new set of reformed updated labour legislation through a coordinatedconsultative process.The following six (6) core labour statutes were comprehensively reviewedand repealed in that process.1) The Employment Act, Cap 226;2) The Regulation of Wages and Conditions of EmploymentAct, Cap 229;3) The Trade Unions Act, Cap 233;4) The Trade Disputes Act, Cap 234;5) The Factories and Other Places of Work Act, Cap 514; and6) The Workmen’s Compensation Act, Cap 236.After that review exercise, 5 new pieces of legislation were enacted. Thesewere:1) The Employment Act, 20072) The Labour Relations Act, 20072The Kenyan Worker and the Law

3) The Occupational Safety and Health Act, 20074) The Work Injury Benefits Act, 20075) The Labour Institutions Act, 2007Each Act incorporated the principles of the 1998 ILO Declaration onFundamental Principles and Rights at Work; thus ensuring the basic humanvalues that are vital to our social and economic development. The Right toWork is catered for in Kenyan laws.Article 41 in the Constitution of Kenya 2010 on Labour relations and theestablishment of the Industrial Court through the Industrial Court Act No.20 of 2011 with the same status as the high Court, further enforces andguarantees labour rights providing a better environment for pursuing labourCases. Kituo urges for vigilance and implementation of labour laws.It is Kituo’s hope that this booklet will help workers and employers alike tobetter know, understand and protect workers’ rights and labour law.The Kenyan Worker and the Law3

AcknowledgementsWe wish to convey our sincere gratitude to all who have contributed towardsthe compilation of this edition of the labour laws booklet.Our appreciation and special gratitude goes to the Board and Executive Directorof Kituo cha Sheria Priscilla Nyokabi who have tirelessly supported, protectedand promoted the rights of workers across Kenya.Special thanks goes to those who researched, wrote and made inputs to enrichthis booklet namely Sasha Werblin, Annette Mbogoh, Kigen Korir and JacklineMwende. The Research, Communication and Documentation Department(RCD of Kituo cha Sheria and particularly Tobias Mwadime and Otiato Guguyufor their exceptional work in editing and production of the booklet.Special gratitude goes to our volunteer advocates and community paralegalswho validated the content of this booklet.To the entire staff of Kituo cha Sheria in Mombasa and Nairobi offices forreadily offering assistance when needed.Thank you all.4The Kenyan Worker and the Law

GlossaryChild - Anyone person under 18 years of age.Collective Agreement - A registered agreement concerning any terms andconditions of employment, apprenticeship, or indentured servitude madein writing between a trade union and an employer, a group of employers oremployers’ organizations.Contract of Service - An oral or written agreement to employ or to serve asan employee for a period of timeDisability - A physical, sensory or mental incapacityEmployee - A person who has been employed for wages or a salary and includesan apprentice or indentured learnerEmployer - Any person, including the Government, who employs or hasemployed an employee and where appropriate includes-(a) an heir, successor,assignee or transferor of an employer; or an agent, director, or any personauthorised to represent an employer.Forced or compulsory labour - All work or service which is exacted from anyperson under the menace of any penalty and for which the said person has notoffered himself or herself voluntarily. It excludes compulsory military service.Redundancy - The loss of employment through no fault of the employee.Typically this termination is due to the employee’s services being unnecessaryas a result of downsizing.Remuneration - Money paid for a work or service.Trade union - An association of employees whose principal purpose is toregulate relations between employees and employers, including an employer’sorganisation.Summary Dismissal - Termination of employment by employer with no priornotice, or with less notice than prescribed by the contract of service or by lawdue to the employee breaking his/her agreement under contract of service.Permanent Disablement - Permanent injury or disfigurement.Temporary Disablement - A temporary condition that took place while atwork, which results in the loss of wage-earning capabilities at the work place.The Kenyan Worker and the Law5

Table of ContentsForeword . . 2Acknowledgements . . .4Glossary . .5Introduction . 7Labour Laws in Kenya . 7International Conventions and Treaties . .9Types of Workers . . .10Underlying Principles of Employment . . .10Legal Duties of Employees .11Discrimination in Employment .11Sexual Harassment .12Prohibition against Forced Labour .14Wages and Salary . .15Deductions from Wages . .16Working Hours . .18Overtime Payment . .18Types of Leave . .19Health and Safety . .21Termination of Employment. . 24Summary Dismissal . .25Redundancy .26Grievance Procedure . .27Certificate of Service . 28Gratuity . . 29The Industrial Court Act No. 20 of 2011 .30Conclusion . 326The Kenyan Worker and the Law

IntroductionLabour law in Kenya is derived from several sources including the Constitution,Acts of Parliament and subsidiary legislation and International Conventions.This booklet will briefly highlight the significant laws as they relate to workers.While we recognize that many questions and issues related to labour are complexand may require further information, it is our belief that basic education aboutone’s rights is the first step toward protecting one’s rights.Labour Laws in Kenya:There are seven major sources of law governing employment laws in Kenya.These are:1.     The ConstitutionArticle 27 provides for the right to equality and freedom from discrimination. Itstates that women and men have the right to equal treatment, including the rightto equal opportunities in political, economic, cultural and social spheres. Article27(4) of the Constitution states that “the State shall not discriminate directlyor indirectly against any person on any ground, including race, sex, pregnancy,marital status, health status, ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.”More specifically, Art 41 provides for labour relations. It states that every personhas the right to fair labour practices. Under the Constitution, every worker hasthe right: To fair remuneration; To reasonable working conditions; To form, join, or participate in the activities and programmes of a tradeunion; and To go on strike.The procedure for going on strike is clear. It is however not provided for in theConstitution. The employees are required to provide due notice to the employeron their intention to go on strike and the reasons behind their such action. Oncethe notice is expired and their grievances have not been met, the employee has aright to proceed with the strike.The Kenyan Worker and the Law7

The Constitution also provides for the rights of employers. Every employerhas the right: To form and join an employers organisation; and To participate in the activities and programmes of an employersorganisation.The rights of a trade union and employer’s organisation have also been laid outas: To determine their own administration, programmes and activities; To organise; and To form and join a federation.2.The Employment Act of 2007This Act establishes the minimum terms and conditions of employment.The Act sets forth the relationship between an employer and a worker.It defines the benefits, duties and obligations of the employer and theworker, which includes: contract of service, prohibition against forcedlabour, discrimination in employment, sexual harassment, payment ofwages, leave, termination, and living amenities.3.      The Labour Institutions Act of 2007This Act establishes the National Labour Board, the Committee ofInquiry, Labour Administration and Inspection, the Wages Council andEmployment Agencies, which work to enhance institutions and bodiesthat establish the regulations that govern Kenyan labour relations. TheAct provides definitions for collective agreement, contract of service,employee, employer, Trade Union, redundancy, and other pertinentterms embedded within the Labour laws.4.      The Work Injury Benefits Act of 2007This Act provides for the International Labour Organizationconvention compliant laws pertaining to employee compensation inthe work place. Following enactment of this Act, many of the sectionswere annulled by the High Courts finding them unconstitutional.8The Kenyan Worker and the Law

5.      The Labour Relations Act of 2007This Act is primarily concerned with the freedom of association ofemployees and employers, and the right to collective bargaining. TheAct provides legal guidelines for the establishment of trade unionsand employer’s organizations and their functions.6.      The Occupational Safety and Health Act of 2007The objective of this Act is to provide the legal framework foremployers to maintain healthy working conditions and environmentfor their workers. The Act makes provisions for the safety and healthof all workers in Kenyan workplaces and establishes the NationalCouncil for Occupational Safety and Health.7. The Industrial Court Act No. 20 of 2011The Act establishes a revamped Industrial Court that is the same statusof the High Court as espoused in the Constitution of Kenya. TheIndustrial Court is established as a court of superior record. The Courtis given powers to adjudicate over cases of employment and labourrelations. It describes the qualifications, remuneration and security oftenure of the judges of the Industrial Court. It further establishes anEmployment and Labour Relations Rules Committee for purposes ofmaking rules for the Court in consultation with the Chief Justice.Note: Copies of all of these Acts can be purchased from the GovernmentPress. The Government Press is located on Haile Selassie Avenue next toKenya Polytechnic in Nairobi. P. 0. Box 30128 (Telephone No. 226596).They can also be accessed online at the Kenya Law Reports websitewww.kenyalaw.orgInternational Conventions and Treaties:Kenya as a member of the International Labour Organization has ratified anumber of important Conventions related to the rights of all workers. As asignatory to these conventions, the Kenyan government is legally obligated toensure that these rights are protected and applied in Kenya.These fundamental rights include:The right to form and join a trade union and participate in its activities. Thisincludes the right to wages and the conditions of employment to a standard setby law and/or a collective bargaining agreement. (Convention Nos. 87 and 98)The Kenyan Worker and the Law9

The right to be free from forced labour including the right to be free fromslavery, forced bondage and forced labour without pay. Convention Nos. 29and 105)Types of WorkersWorkers may be classified into three main categories.1.        Permanent worker:Is a person who signs a written employment contract that identifies he or sheas a permanent worker. It also includes a person who does not have a writtencontract but who is paid at the end of thirty days.Is expected to work for a probation period, generally from one to three months,before he or she is confirmed and can claim benefits.Is required, in the event of resignation, to give at least one month’s notice orone month’s salary in lieu of notice.In the event of termination, is entitled to one month’s notice or one month’ssalary in lieu of notice unless the worker is dismissed summarily.2.        Casual worker:Is a person who works for a short period of time generally not more thantwenty-four hours at a time and is paid at the end of each day.Has no guarantee of being employed more than twenty-four hours and can bedismissed at only one day’s notice.3.         Fixed-term contract workers:Is a person employed for one determined fixed period of time which is morethan one day. Entitlements are determined by the terms of the contract enteredinto with the employer or a collective bargain agreement.Any employment of three months or longer should have his or her contractin writing.Underlying Principles of EmploymentThe relationship between a worker and the employer is based on a contract.Both the worker and the employer should agree upon the terms of employment10 The Kenyan Worker and the Law

before the worker begins his or her term of service.If a worker joins a union, the terms of employment may be negotiated as partof a collective bargaining agreement.It is important to know that an employer cannot impose terms of employmenton a worker that are less than the minimum terms required by law.Every worker hired for a sum of three months or more must be given a writtencontract of employment by the employer. It is the legal obligation of theemployer to draw up the contract. To signify the workers consent, both theworker and the employer must sign the employment agreement or imprint animpression of his/her thumb, or any finger, in front of someone other thanthe employer.Every worker MUST make certain that he/she receives the writtenterms of his/her employment. A worker who does not have a letter ofappointment or a written employment contract will find it difficult toprove a right to benefits in the event he/she pursues court proceedings.Legal Duties of Every WorkerEvery worker must adhere to the following rules. A worker who fails tofollow these rules may be dismissed.1. Arrive at work on time and carry out his/her assigned work fully andresponsibly.2. Perform all lawful tasks or assignments that are within the scope of theworker’s job description.3. Not drink alcohol or other intoxicating and illicit drugs during workinghours.4. Not use abusive language or behaviour at the workplace.Discrimination in EmploymentPart II, Section 5, of the Employment Act states that no employer may directlyor indirectly discriminate against an employee or potential employee or harassan employee or potential employee on the grounds of: race; colour; sex;language; religion; political or other opinion; nationality; ethnic or social origin;disability; pregnancy; mental status or HIV status. This may be with respectto: recruitment; training; promotion; terms of conditions of employment;The Kenyan Worker and the Law11

termination of employment or other matters arising out of employment.Sexual HarassmentThe law states that every employee is entitled to employment that is free ofsexual harassment. An employee is sexually harassed if their employer, arepresentative of their employer or a co-worker commits any of the following: Directly or indirectly requests sexual intercourse, sexual contactor any additional form of sexual activity that contains and impliedor expressed promise of special or detrimental treatment in theworkplace, or threatens the current of future working status ofan employee; Uses either written or spoken sexual language; Uses visual material of a sexual nature;12 The Kenyan Worker and the Law

Jeopardises the job performance, job satisfaction or generalwellbeing of the employee in the work place by displayingdirect or indirect physical sexual behaviour that is unwanted andinsulting.If more than 19 employees reside in a single work place, the employer mustconsult with employees or their representatives if they exist and issue a policystatement on sexual harassment in the work place. This document must bebrought to the attention of each employee and must include the followinginformation: The definition of sexual harassment as specified in Part II, Section6, subsection (1) of the Employment Act (also stated above); A statement explaining:o Every employees right to a sexual-harassment-freeThe Kenyan Worker and the Law13

workplace, with an assurance that the employer will takeall necessary steps to make certain that no employee issubjected to sexual harassment in the work facility;o In the event that an employee is subject to sexualharassment, the employer will take disciplinary action asdeemed appropriate;o How to bring issues of sexual harassment in the workplaceto the attention of the employer;o That the employer will keep all names included in reportsof possible sexual harassment confidential, unlessdisclose is necessary for the purpose of investigating acomplaint or taking disciplinary measures.Prohibition Against Forced Labour14 The Kenyan Worker and the Law

The law states that it is illegal to use or assist any person in the recruitment,purchase and sale or use of forced labour. This includes the recruitment orcompulsory employment of children.Wages and SalaryUnder the law, every worker is entitled to receive full payment for work done.Full pay includes wages, which are payments made on an hourly, daily, weeklyor piecemeal basis. Full pay may also be in the form of a salary, which is a fixedpayment made on a monthly basis for professional or office work.The amount of full pay cannot be less than the standard minimum rate whichis set forth in the Employment Act. On the date of payment, the employermust give each worker a pay slip stating all earnings due and any deductionsmade for that pay period. All wages must be paid in Kenyan shillings. However,a worker can request in writing that the employer pay wages either by chequeor by crediting the wages to the worker’s bank account. When a worker isabsent, the employer with permission from the worker may pay the wages toanother person appointed by the worker. Generally, payment of wages is ona working day and during working hours. Wages must be paid at or near theplace of employment, or at a place agreed between both parties. This place ofpayment cannot be in a place where intoxicating liquor is sold or available forsupply, except for partie

7. The Industrial Court Act No. 20 of 2011 The Act establishes a revamped Industrial Court that is the same status of the High Court as espoused in the Constitution of Kenya. The Industrial Court is established as a court of superior record. The Court is given powers to adjudicate over cases of employment and labour relations.

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