THE EMPLOYMENT ACT (AMENDMENT) BILL, 2019 A Bill For
THE EMPLOYMENT ACT (AMENDMENT) BILL, 2019A Bill for AN ACT of Parliament to amend the Employment Act, 2007 and for connected purposes.ENACTED by the Parliament of Kenya as follows—Short title1. This Act may be cited as the Employment Act (Amendment) Act, 2019.Amendment toSection 2 of No.11 of 20072. The Employment Act, 2007, hereinafter referred to as the “PrincipalAct”, is amended in section 2 by—(a) deleting the words “or medical officer” in the definition of“authorised officer”;(b) inserting at the end of the definition of “casual employee” thewords “but excludes piece rate work”;(c) deleting the word “juveniles” and substituting therefor with theword “children” in the definition of “worst forms of childlabour”;(d) deleting the definition of “disability” and substituting thereforwith the following new definition—No 14 of 2003“disability” has the meaning assigned to it in the Persons withdisability Act, 2003;(e) deleting the definitions of “employee” and substituting thereforwith the following new definition—“employee” means a person works in the service of the employerunder an express or implied contract of service, under which theemployer has right to direct and control the details of workperformance and excludes contract for services.No. 3 of 2016(f) deleting the definition of “labour officer” and substitutingtherefor with the following new definition—“labour officer” means a person appointed as a labour officer”;(g) deleting the definition of “HIV”(h) inserting the following new definitions in their properalphabetical sequence—(i)“Authority” means the National Employment Authorityestablished under the National Employment AuthorityAct, 2016;
(ii)“Contract for service” means contract for a specifiedpiece rate of work;(iii)“piece rate work” means any form of employment inwhich a worker is paid a fixed piece rate for each unit orproduct produced irrespective of the time occupied in itsperformance;(iv)"part-time employee" means an employee whose normalhours of work, are less than the normal hours of work of acomparable full-time employee and who is not a full-timeemployee with reduced hours;(v)“term contract” means contractual relationship betweenan employee and an employer for a specified period; and(vi)"overtime" means any hours of work in excess of thenormal hours of work.Amendment ofNo. 11 of 20073. The principal Act is amended by deleting the word “Minister”wherever it appears and substituting therefor with the expression“Cabinet Secretary”Amendment toSection 3 of No.11 of 20074.Section 3 of the principal Act is amended –(a)in subsection (2) by—(i)deleting paragraph (a) and substituting therefor with thefollowing new paragraph—(a) “Kenya Defence Forces established under Article241(1) of the Constitution;”(ii)deleting paragraph (b) and substituting thereof with thefollowing new paragraph –(b) “National Intelligence Service established under Article242 (1) of the Constitution;(iii) deleting paragraph (c) and substituting thereof with thefollowing new paragraph—(c) “National Police Service” established under Article 243(1) of the Constitution;(iv) inserting the following new paragraph immediately afterparagraph (d)—(e) volunteers.(b) in subsection (4) by deleting the expression “after consultationwith the Board and” appearing immediately after the expression
“Minister may,” and(c) in subsection (5) by deleting the expression “after consultationwith the Board and” appearing immediately after the expression“Minister may”.Amendment toSection 4 of No.11 of 20075. Section 4 of the Principal Act is amended in subsection 3 by deletingthe expression “five hundred thousand shillings or to imprisonment fora term not exceeding two years” and substituting therefor with theexpression “five million shillings or to imprisonment for a term notexceeding five years”.Amendment toSection 5 of No.11 of 20076. Section 5 of the Principal Act is amended—(a) in subsection (1) by—(i) inserting the word “and” immediately after the word “Minister”;and(ii) by deleting the expression “and the industrial court” appearingimmediately after the word “officers”;(b) by introducing the following new subsection (2a) immediately aftersubsection (2)—No. 12 of 2011(2a) An employer shall not employ a foreign national whoseresidency status in the country has not been regularised inaccordance with the Kenya Citizenship and Immigration Act or anyother relevant law.(c) in subsection (3) by deleting paragraph (a) substituting therefor withthe following new paragraph—“(a) On grounds of race, sex, pregnancy, marital status, healthstatus, ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.”Amendment toSection 6 of No.11 of 20077. Section 6 of the Principal Act is amended—(a) in subsection (2) by deleting the word “twenty” and substitutingwith the word “five”;(b) by inserting the following new subsection immediately after subsection (4)—“(5) An employer who contravenes subsection (2) commits anoffence.”Amendment toSection 9 of No.11 of 20078. Section 9 of the Principal Act is amended –(a) in subsection (4) by deleting the expression “is illiterate or”appearing immediately after the word “employee”;(b) by inserting the following new subsections immediately aftersubsection (4)—
(5) A provision in a contract of service whose effect is torestrain an employee from exercising a lawful profession oroccupation or use of knowledge and skills gained duringemployment upon termination of such contract of service isvoid.(6) Despite of subsection (5), a contract of service may limit anemployee from disclosing any confidential information or tradesecrets acquiring in the course of engagement for a reasonableperiod.Amendment toSection 10 of No.11 of 20079. Section 10 of the Principal Act is amended—(a) in subsection (2) paragraph (a) by—(i) deleting the word “permanent” and substituting therefor with theword “contact”; and(ii) deleting the word “age” and words “and sex”;(b) in subsection (3)—(i) in paragraph (a) by inserting the following new subparagraphimmediately after subparagraph (iii) —“(iv) Education leave”; and(ii) in paragraph (f) by deleting the word “Kenya” wherever itappears in the paragraph and substituting therefor with theexpression “East Africa Community”.Amendment ofsection 11 of No.11 of 200710. Section 11 of the Principal Act is amended in subsection (5) by deletingthe word “Kenya” wherever it appears in the subsection and substitutingthereof with the expression “East Africa Community”.Amendment ofsection 12 of No.11 of 2007Amendment ofsection 13 of No.11 of 200711. Section 12 of the Principal Act is amended by deleting subsection (3).Amendment ofsection 15 of No.11 of 200713. The Principal Act is amended by inserting the following new sectionsimmediately after section 15 —12. Section 13 of the Principal Act is amended in subsection (3) paragraph(b) by deleting the word “Kenya” and substituting thereof with theexpression “East Africa Community”.Transferofundertakings15A. (1) In this section —“affected employee” means any employee of thetransferor who may be affected by a transfer of anundertaking or any measures taken in connection withsuch a transfer;
“transfer” means disposition of an undertaking as agoing concern and effected through a sale, merger, oroperation of law; and“undertaking” includes any trade or business(2) If an undertaking or part of an undertaking istransferred from one person to another —(a) such transfer shall not operate to terminate thecontract of service of any employee employedby the transferor in the undertaking;(b) the contract of service shall have effect after thetransfer as if such contract was originally madebetween the employee and the transferee withthe same terms and conditions of service; and(c) the transfer shall not break the continuity of theperiod of employment.(3) Without prejudice to subsection (2), on completionof a transfer—(a) all the transferor’s rights, powers, duties andliabilities in connection with any contract ofservice shall be transferred by virtue of thissection to the transferee;(b) any act or omission done before the transfer bythe transferor in respect of that contract ofservice shall be taken to have been done by thetransferee; and(c) any act or omission done before the transfer byan employee of the undertaking in relation tothe transferor shall be deemed to have beendone in relation to the transferee.(4) As soon as it is reasonable and before a transfer ofan undertaking takes place, to enable consultationsbetween transferor and affected employees or theirrepresentatives if any, the transferor shall notify theaffected employees of the —(a) fact that the transfer is to take place, theapproximate date on which it is to take placeand the reasons for the transfer;(b) implications of the transfer and the measuresthat the transferor envisages will be taken in
relation to the employees, if any; and(c) measures that the transferee envisages to take inrelation to employees if any.(5) Any recognition or collective agreement enteredinto between the transferor and the trade union ofthe affected employees and in force immediatelybefore the transfer shall continue in force betweenthe transferee and the trade union of the affectedemployees for a period of 12 months after the dateof the transfer or until the date of its expiry,whichever is the earlier.No 18 of 2015(6) This Section shall not apply to any transfer of anundertaking where the transferor is the subject ofany insolvency proceedings.(7) If either before or after the transfer, an employee ofthe transferor is dismissed, it will amount to unfairdismissal if the principal reason for such dismissalis in connection with the transfer.(8) The Cabinet Secretary may make regulations togive effect to this section.Death ofemployer15(B) (1) Where the employer’s personal positionformed the basis of the employment relationship withthe employee, the contract of service with the employeeshall terminate upon death of the employer.(2) Despite of subsection (1), employee’s right ofitemised pay statements, wages, leave and any otherright shall be claimed against the personalrepresentatives of the deceased employer.(3) Where the contract of service was in relation to abusiness, and such business does not carry on after thedeath of the employer, the employee shall be taken tohave been dismissed for reason of redundancy and willentitled to appropriate payment from a personalrepresentative.(4) If on death of the employer the business carries on,the employee shall continue to be employed by thepersonal representatives and continuity of employmentis preserved.Amendment ofsection 16 of No.14. The Principal Act is amended by repealing Section 16 and substitutingthereof with the following new section—
11 of 200716. Where an employer does not give an employee a statement asrequired by section 10, 12, 13, and 20, or the employee is dissatisfiedwith any decision by the employer, the employee may refer theirgrievance as a dispute for settlement in accordance with themechanisms established under Part XII of this Act.Amendment ofsection 17 of No.11 of 200715. Section 17 of the Principal Act is amended—(1) in subsection (1)—(a) by deleting the word “of” appearing immediately after the wordcurrency and substituting thereof with the expression“recognised in”; and(b) in paragraph (c) by deleting the expression “cheque, postal orderor money order” and substituting thereof with the expression“any payment instrument recognised under the NationalPayment Systems Act”(2) by deleting subsection (9)Amendment ofSection 18 of No.11 of 200716. Section 18 of the Principal Act is amended in subsection (3) by deletingthe expression “an order, judgement or award of the industrial court or”Amendment ofsection 19 of No.11 of 200717. Section 19 of the Principal Act is amended by deleting subsection (6)and substituting therefor with the following new subsection—(6) Where proceedings are brought in respect of failure by theemployer to remit deductions from an employee’s remuneration, thecourt may in addition to fining the employer order the employer to —(a) refund the employee the money deducted from the employee’swages; or(b) to pay the intended beneficiary on behalf of the employee with theemployer’s own funds.”Amendment ofsection 22 of No.11 of 200718. Section 22 of the Principal Act is amended by deleting the expression“on the advise of the Board”Amendment toSection 24 of No.11 of 200719. Section 24 of the principal Act is amended by deleting the expression“district commissioner” wherever it appears in the section andsubstituting thereof the expression “county commissioner”Amendment ofsection 24 of No.11 of 200720. Section 25 of the Principal Act is amended by deleting the expression“one hundred thousand shillings” and substituting thereof withexpression “one million”.Amendment toSection 27 of No.11 of 200721. The Principal Act is amended by inserting the following new sectionsimmediately after section 27—
Overtime27A (1) An employer shall not require an employee towork overtime except in accordance with an agreement.(2)An agreement shall not require an employee towork more than twelve hours on any day.(3)An employer shall pay an employee at least oneand one-half times the employee’s normal wage forovertime worked.(4)Overtime shall be payable at the following rates (a) for time worked in excess of the normalnumber of hours per week at one and one-halftimes the normal hourly rate; and(b) for time worked on the employees normal restday or public holiday at twice the normal hourlyrate.Night work27B (1) In this section, night work means workperformed between 10:00 pm and 06:00 am.(2) An employer may only require an employeeto perform night work, if so agreed, and if—(a) the employee is compensated by the paymentof an allowance, which may be a shift allowance,or by a reduction of working hours; and(b) transportation is available between theemployee’s place of residence and the workplaceat the commencement and conclusion of theemployee’s shift.(3) An employer who requires an employee toperform night work on regular basis must—(a) inform the employee—(i)of any health and safety hazardsassociated with the work that theemployee is required to perform;and(ii)of the employee’s right to undergoa medical examination in terms ofparagraph (b);(b) at the request of the employee, enable theemployee to undergo a medical examination, forthe account of the employer, concerning thosehazards—(i)before the employee starts, or
within a reasonable period of theemployee starting, such work; and(ii)at appropriate intervals while theemployee continues to performsuch work; and(c) transfer the employee to suitable day workwithin a reasonable time if—(i)the employee suffers from a healthcondition associated with theperformance of night work; and(ii)it is practicable for the employer todo so.(4) The Cabinet Secretary may make regulationson performance of night work.Flexible working time27C (1) Despite of Section 13 of this Act, anemployee may apply to the employer for a changein terms and conditions of employment relatingto—(a) the times when the employee is requiredto work;(b) where, as between employee’s home and aplace of business of the employer, theemployee required to work, or(c) such other aspect the Cabinet Secretarymay prescribe.(2) An application under this section shall specifythe change applied for and the date on whichit is proposed to become effective;(3) An employer to whom an application is madeunder this Section shall—(a) notify the employee of the decision onthe application within reasonable period;and(b) only refuse the application on one or moreof the following grounds—(i) the burden of additional costs;(ii) detrimental effect on ability to meetcustomer demand;(iii) inability to re-organise work amongexisting staff;(iv)inability to recruit additional staff;(v)detrimental impact on quality;(vi)detrimental impact on performance;(vii) insufficiency of work during the
periods the employee proposes to work,(viii)planned structural changes; and(ix)such other grounds as may beprescribed.(4) The Cabinet Secretary may prescribeguidelines on flexible working hoursAmendment toSection 29 of No.11 of 200722. Section 29 of the principal Act is amended by—(a) deleting subsection 8 and substituting thereof with the followingnew subsection—(8) In the event where a female employee who has been granted aleave under this section suffers a stillbirth, such employee shall beentitled to one month leave.(b) introducing new sections 29A, 29B and 29C immediately aftersection 29, as follows—Paternity Leave29A. (1) A male employee shall, immediately after thedelivery of his child, have a right to a paternityleave for a period of 14 days with full pay.(2) The leave under subsection (1) shall be grantedonly upon production of a notification of birthissued in accordance with law relating toregistration of births.Adoption Leave29B. (1) An employee who is an adoptive parent of achild who is below the age of two, is entitled to anadoption leave of one month.(2) An employee may commence adoption leave onthe date—(a)the adoption order is granted; or(b) a child is placed in the care of a prospectiveadoptive parent by a competent court, pending thefinalisation of an adoption order in respect of thatchild, whichever date occurs first.(3) An employee shall notify an employer inwriting, unless the employee is unable to do so, ofthe date on which the employee intends to—(a)commence adoption leave; and(b)return to work after adoption leave.(4) Notification in terms of subsection (3) must begiven—
(a)at least one month before the date referred to insubsection (2); or(b) as soon as it is reasonably practicable.(5) Despite of subsection (1), where a child is bornas a result of a surrogate motherhood agreement,an employee who is a commissioning parent shallbe entitled to parental leave of two months fromthe date a child is born.Compassionate leaveAmendment toSection 30 of No.11 of 200729C (1) An employee who has exhausted their annualleave may be granted compassionate leave for up to fivedays with full pay in a leave year in case of death of aparent, spouse, child or sibling.23. Section 30 of the Principal Act is amended by deleting subsection (1)section and substituting therefor with the following new subsection–(1) An employee shall be entitled to a sick leave of up to amaximum of 30 days with full pay and thereafter to up to amaximum of 15 days sick leave with half pay in each period of 12consecutive months of service.Amendment ofsection 31 of No.11 of 2007Amendment ofsection 34 of No.11 of 2007.24. Section 31 of the Principal Act is amended in subsection (2) by deletingthe expression “on the recommendation of the Board”25. The principal Act is amended by introducing a new section immediatelyafter section 34, as follows—Education LeaveAmendment toSection 35 of No.11 of 200734A. An employee who is enrolled for a course in arecognised learning institution, which the employee hasnotified the employer, shall be entitled to an educationleave of up a maximum of ten days in a leave cycle withfull pay, for purpose of enabling such employee take anycourse evaluations.26. Section 35 of the principal Act is amended—(1) in subsection (4) by inserting the following new paragraph immediatelyafter paragraph (b)—(c) of an employee to be provided by the employer with writtenstatement giving particulars of the reasons for dismissal.(2) in subsection (5) by—(a) deleting the expression “the terms of which shall be fixed”;(b) inserting the following new subsections immediately aftersubsection (5) —
“(5a)Upon termination of contract of service, an employee shallbe entitled to gratuity as provided in the contract it is not lessthan equivalent to 15 days pay for each completed year ofservice;(5b) Where an employee who works on a contract, has workedfor an aggregate of 1 year,
THE EMPLOYMENT ACT (AMENDMENT) BILL, 2019 A Bill for - AN ACT of Parliament to amend the Employment Act, 2007 and for connected purposes. ENACTED by the Parliament of Kenya as follows— Short title 1. This Act may be cited as the Employment Act (Amendment ) Act , 201 9.
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