COLLECTIVE BARGAINING
AGREEMENTS
What is collective
bargaining and agreements?
A collective agreement is defined in the Labour Relations
Act as “a written agreement concerning any term and conditions of
employment made between a trade union and an employer, group of employers
or organisation of employers” A collective bargaining process
precedes this.
The process of collective bargaining is not specifically
provided for in law, but there are prerequisite conditions, which must be
fulfilled before parties may proceed with bargaining process. Such
conditions are contained in the Labour Relations Act, No. 14 of 2007.
In section 54 of the Labour Relations Act, there is a requirement that the
trade union must have legal recognition in law that is duly registered by
having a constitutional jurisdiction.
Must agreements be in
writing?
Yes, all agreements must be reduced to writing and signed by
CEO of any employer, national secretary or any representative of
employers’ organisation that is party to the agreement (section 59(4)).
The agreements become enforceable after registration.
How long does a
collective agreement last?
In general, collective agreements have a duration span of up
to two years before renewal by parties. Collective agreements modify
individual contracts.
Collective bargaining in Kenya is commonly conducted either
on a single establishment or single plant basis or in a multi-employer
approach.
How is a collective
agreement registered?
Section 60 requires that collective agreements be registered
with the Industrial Court. Submission of the agreement to the industrial
court for registration is done by the employer or employers’ organisation,
though submission can be done by a trade union due to failure by the
employer. The Industrial Court may object to the registration if the agreement
either conflicts with the Act that forms it or any other law, or it does
not comply with any guidelines concerning wages, salary and other
conditions of employment issued by the minister.
The Industrial Court may register a collective agreement
within fourteen days of receiving it, unless there is an objection which
has been given.
Can an employer and a
trade union negotiate a Collective Bargaining Agreement without
a Recognition Agreement?
The process of recognising a trade union is provided for in
sections 2 and 54 (1) of the Labour Relations Act, 2007, Laws of
Kenya. A recognition agreement means an agreement in writing made between
a trade union and an employer, a group of employers or employers’
organisation regulating the recognition of the trade union as the
representative of the interests of unionisable employees employed by
the employer or by members of the employers’ organisation.
It is not proper for an employer to engage any trade union
in the process of collective bargaining agreement negotiations without a
signed recognition agreement. These negotiations are usually aimed at
improving fundamental terms and conditions of employment for unionisable
employees.
To enter into a recognition agreement with the employer, the
trade union must have recruited a simple majority of the total number of
unionisable employees of that employer. Without a recognition agreement,
the employer cannot take cognisance of the union for the purposes of
representation of employees of such employer in any capacity on issues of
or relating to terms and conditions of employment.
Can one implement a
collective agreement before the Industrial Court registers it?
No. It is an offence to implement a collective agreement
before the Industrial Court registers it. Once so registered, the
collective agreement binds parties to comply with the commitments made
under it. Failure to perform by either party can give rise to a
trade dispute which will be dealt with in accordance with the provisions
of the Act.
EMPLOYMENT SECURITY
Written Employment
Particulars
Kenyan labour Law requires that contract of employment with
duration of more than 3 months should be in writing and written statement of
particulars should be provided to an employee at the start of employment.
The written particulars of employment must be given to the worker within two
months of the beginning of employment. A written contract of service should
contain “the name, age, permanent address and sex of the employee; the name of
the employer; the job description; (d) the date of commencement of the
employment; the form and duration of the contract; the place of work; the hours
of work; the remuneration, scale or rate of remuneration, the method of
calculating that remuneration and details of any other benefits; the intervals
at which remuneration is paid; and any other prescribed matter. (Section 9-10
of Employment Act, 2007)
Fixed Term Contracts
Kenyan labour Law allows hiring fixed term contract workers
for tasks of permanent nature. No provisions could be located in the Employment
Act on regulating the fixed term contracts (their maximum duration and
renewals).
Probation Period
Probationary period should not be set higher than 6 months;
however it can be extended to one year with the consent of an employee (Section
9-10 of Employment Act, 2007).
Termination of a
Contract
Termination of employment can be initiated by either of the
parties to a contract of employment (Employment Act, section 35 (1)). Lawful
termination of employment under common law includes:
· Termination
of employment by agreement: When the employer and employee agree to bring a
contract of employment to an end in accordance with an agreement. This may be
in case of terminating a contract of apprenticeship; where the period of
training expires then the contract will obviously come to an end.
· Automatic
termination: A contract of employment may be terminated automatically in
circumstances such as death or loss of business of the employer.
· Termination
of employment by the employee/resignation: This happens when an employee due to
material breach of the contract by the employer decides to resign from his/her
employment.
· Termination
of employment by an employer: An employer may also terminate the employment of
an employee but there is a need to comply with the provisions of the law and
contract relating to termination.
On what grounds can a contract of employment be terminated
by an employer?
A contract of employment may be terminated by an employer on
the following grounds:
· By mutual
agreement between the employer and the worker (Industrial Training Act, section
13 (1) (a)).
· By the
employer when the employee dies before the expiration of the period of
employment.
· By the
employer if the worker is found by medical examination to be unfit for
employment. Due to sickness or accident the employee becomes unable to carry
out his or her work (Employment Act, section 41(1)).
· By the
employer on the basis of misconduct of employee (Employment Act, section 44
(3))
What should an employer do if he or she wants to terminate a
contract of employment?
A contract of employment may be terminated at any time by an
employer who must give the employee a period of notice of termination (e.g. at
close of day in case of contract for daily wages, one month or more in case of
monthly pay contracts).
What form of notice
should I give as an employer?
A termination notice shall be in writing. In case the
employee does not understand the notice, the employer is responsible to ensure
that the notice is explained orally to the worker in a language he/she
understands (section 35 (2) (3)).
· If the
employee is employed on a daily wage contract, the notice is given at the close
of any day without notice.
· If the
employee is employed on a weekly pay or two-week basis the notice period shall
be one week or two weeks respectively, given in writing or payment of one
week’s salary in lieu of notice.
· If the
employee is employed on a monthly basis the notice period shall be 28 days and
in writing or payment of one month’s salary in lieu of notice.
· In the
case where a contract of employment provides that the notice of termination be
given for a greater period than one month, then there will be agreement in
writing between employer and employee for a longer notice and the agreed notice
period shall be of equal duration for both employer and the employee (section
35 (2)).
Can an employer terminate an employee immediately without
allowing them to work during the notice period? Does the law allow this?
In event the employer wants to terminate an employee without
allowing her/him to serve the notice period the employer will be required to
pay the employee the amount that an employee would have received if she/he had
worked during the notice period. This is what is usually referred to as payment
in lieu of notice (section 36) also (section 38).
Section 36 provides for payment of equivalent salary in lieu
of notice instead of serving the notice. The length of notice will depend on
the interval at which salary is paid.
Must I, as an
employer, pay for transportation after a contract of employment is terminated?
The law is silent about this kind of payment.
What happens if an employee is terminated but they have
outstanding leave they have not taken?
In the case of accrued leave upon termination the employer
shall pay an employee on a pro rata basis an amount in cash for the accrued
annual leave to which that employee is entitled (section 40 (1) (e)) - provided
that it is taken not later than six months after the end of leave cycle or
twelve months after the end of leave cycle if (if the employee consented or
extension is justified by operational requirements) (section 28(4)).
Can an employer
terminate a contract of employment without notice?
Yes. Either party to a contract of employment may terminate
the contract without notice if that party pays the other party a sum equal to
the amount of remuneration which would have accrued to the worker during the
period of the notice (section 36).
Is a certificate of
service and notice mandatory even when terminated on misconduct?
Yes. Both are mandatory regardless of the reason for
termination, unless the period of service of employee to employer has lasted
less than four weeks (section 51).
Can I terminate an
employee because I do not like her/him?
No. Under the law there are four grounds that may justify
termination of the employment by the employer and these are:
· Misconduct.
· Physical
incapacity.
· Poor
performance.
· Employer’s
operational requirements/retrenchment.
An employer may also terminate an employee due to
participation in an illegal strike. Therefore for an employer to terminate an
employee he/she should have a genuine reason as specified in section 45 (2) and
section 46. An employee cannot be fired because an employer does not like them
- unless the grounds for this dislike are based on the above-mentioned factors.
What amounts to fair
termination of employment?
In order for termination to be fair in the eyes of the law
it has to be both substantively and procedurally fair. The employer needs to
have a valid and fair reason for termination.
Apart from this valid reason of termination the employer
must follow fair procedures for termination as are provided under the
Employment Act, section 45 (2) and section 46.). In any form of termination the
employer is require to prove the reasons for the termination otherwise it will
be termed as unfair (section 45 (2)). The procedures for termination are
different depending on the reason for termination but they all have a common
item - the right of an employee to be heard before a termination decision is
taken against an employee (section 41 (2)).
Am I to follow the
procedure for termination even in cases where an employee is caught red handed
committing a serious misconduct, for example stealing?
Yes. Notwithstanding the serious misconduct of the employee,
and the evidence available, the law requires that procedures outlined under the
law be followed. Failure to follow the procedure will amount to summary
dismissal, meaning an employee is terminated without being availed of an
opportunity to defend herself/himself before a fair disciplinary committee. In
labour laws summary dismissal amounts to unfair termination with consequences
specified in section 47 and 49 (1) & (3).
Can I terminate an
employee who is facing a criminal charge before a court of law?
No one can terminate or take disciplinary action against an
employee who is facing the same charges before a court of law unless the two
charges are different or do not arise in the same cause of action.
What are the likely
consequences of unfair termination for an employer?
If the labour officer makes the decision that the summary
dismissal or the termination of contract of an employee is unjustified, he may
recommend to the employer to pay the employee any or all of 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 this Act or his contract of service.
· Where
dismissal terminates the contract before the completion of any service upon
which the employee’s wages became due, the proportion of the wage due for the
period of time for which the employee has worked; and any other loss consequent
upon the dismissal and arising between the date of dismissal and the date of
expiry of the period of notice referred to in paragraph (a) which the employee
would have been entitled to by virtue of the contract.
· The
equivalent of a number of months’ wages or salary not exceeding twelve months
based on the gross monthly wage or salary of the employee at the time of
dismissal.
· Alternatively,
the employer may have to reinstate the employee and treat the employee in all
respects as if the employees employment had not been terminated; or
· Re-engage
the employee in work comparable to that in which the employee was employed
prior to his/her dismissal, or other reasonably suitable work, at the same
wage.
FAIR TREATMENT
Equal Pay
In accordance with article 27 of the Constitution of Kenya,
all human being are born equal and are equal before the law. The Constitution
also recognizes the right to fair remuneration (article 41). The Employment Act,
2007 also requires every employer to ensure that men and women workers are paid
equally for work of equal value. It is also a liable offence to discriminate in
remuneration (section 5.4 and 5.5 of the Employment Act).
Non-Discrimination
In accordance with article 27 of the Constitution, there
can't be any discrimination on the basis of race, sex, pregnancy, marital
status, health status, ethnic or social origin, colour, age, disability,
religion, conscience, belief, culture, dress, language or birth. Employment Act
also prohibits discrimination on the basis of race, colour, sex, language,
religion, political or other opinion, nationality, ethnic or social origin,
disability, pregnancy, mental status or HIV status.(section 5). Anti-union discrimination
is also prohibited under section 5 of the Labour Relations Act.
Equal Treatment of
Women at Work
Women are not allowed work in the same industries as men
(especially mining sector) (section 91 of the Employment Act).
CHILDREN AT WORK
Who is a child?
The law under the Employment Act, 2007, and the Children
Act, defines a child in Kenya as a person below the age of 18 years. The
Employment Act, Part VII provides for protection of children including
protection from the worst forms of child labour.
What is the minimum
age for admission to employment?
Section 56 prohibits employing a child below 13 years to any
form of undertaking. However it allows employment of children from the
ages of 13 to 16 years for light work and defines those of 16 to 18 as
employable. The Act does not clearly define the parameters for
this employment. It does not define light work and does not provide
protection for children in such employment, but leaves it at the
discretion of the minister.
In section 58 and 59, the minimum age for employment in an
industrial undertaking is 16, unless he/she is an apprentice under the
Industrial Training Act (Cap. 237, Laws of Kenya). The law also puts a
time limit for a child in an industrial undertaking to between 6.30am
to 6.30pm.
This minimum age restriction does not apply to employees who
belong to the same family as the employer - unless the undertaking is
dangerous to the life, health or morals of the persons
employed. There is no legal minimum working age in the agricultural and
services sectors, or for domestic work
Is there a record of
children in the workplace?
Section 60 compels a child’s employer to have a register
consisting age and date of birth, date of entry into and of leaving the
employment and, such other particulars as may be prescribed.
What is child labour?
Child labour is defined as any situation where a child
provides labour in exchange for payment including:
· Where a
child’s labour is used for gain by any individual or institution whether or not
the child benefits directly or indirectly
· Where a
child provides labour as an assistant to another person and his/her labour is
deemed to be the labour of that other person for the purposes of payment
· Where
there is a written contract of service and the employee is a child.
How are children
protected from child labour?
The law provides for protection from child labour and armed
conflict under The Children Act, No. 8 of 2001. Section 10, provides that
every child shall be protected from:
· Economic
exploitation
· Any work
that interferes with his/ her education, or is harmful to the child’s health
or physical, mental, spiritual, moral or social development
· Recruitment
to hostilities armed conflicts, and where armed conflict occurs
To whom/where can
individuals complain about child labour?
In case a person considers any child to be employed in any
activity which constitutes the worst form of child labour, section 54 of
the Employment Act provides for complaints and directs them to the labour
officer or a police officer of the rank of an inspector
and above. The labour officer or a police officer will then either
carry out an investigation within seven days of reporting and submit the
findings to the minister.
Which legal sanctions
can be applied if compliance is lacking?
Section 64 declares an offence for any person who employs,
engages, or uses a child in an industrial undertaking in contravention of
the provisions of part VII of the Employment Act. Such a person will be
liable to a fine not exceeding KES 200,000 or to an imprisonment of not
more than one year or both.
FORCED LABOUR
Prohibition on Forced
and Compulsory Labour
Article 30 of the Constitution of Kenya prohibits forced
labour. Section 4 of the Employment Act also prohibits all forms of forced or
compulsory labour. A person who contravenes the provisions of 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 two
years or to both.
Freedom to Change
Jobs and Right to Quit
Workers have the right to change jobs after serving due
notice on their employer (Section 35-36 of Employment Act, 2007).
Under Employment Act, 2007, forced or compulsory labour is
any work or service that a person does under threat of any penalty, or
work that a person does involuntarily. A threat in this case includes the
loss of one’s rights or privileges.
Is there prohibition
against forced labour?
Under section 4 of Employment Act, 2007, no person shall use
or assist any other person in recruiting, trafficking or using forced
labour. The law defines forced or compulsory labour by excluding the work or
service that should not be included as forced labour. These types of works
include:
· Work in
the military. However, forced or compulsory recruitment of children for use in
armed conflict is deemed to be forced labour
· Work or
service which forms part of the normal civic obligations of the citizens of
Kenya
· Work or
service carried out as a result of a conviction in a court of law, provided
that the work or service is carried out under the supervision and control
of a public authority and that the person is not hired out to or placed at
the disposal of private persons, companies or associations
· Cases of
emergency where a person works in the event of war or disaster or threat
of calamity in any circumstance that would endanger the existence or the
well-being of the whole or part of the population
· Minor
communal services performed by the members of the community in the direct
interest of the said community provided the members of the community or
their representatives are consulted.
What happens if one
contravenes this law?
A person who contravenes the provisions of this section
commits an offence and shall, on conviction be liable to a fine not
exceeding KES 500, 000 or to not more than a two-year jail term or to
both.
PROPERTY RIGHTS IN
KENYA
What does the law say
in relation to property ownership regarding gender?
The law states clearly that both men women have equal rights
to own property in Kenya as enshrined in the constitution. Article 60 (f)
states that “Land in Kenya shall be held, used and managed in a manner that is
equitable, efficient, productive and sustainable and in accordance with the
principle that eliminates gender discrimination in law, customs and practices
related to land and property in land”.dThis is in addition to Article 27 in
which women and men have the right to equal treatment, including the right to
equal opportunities in economic (as well as political, cultural and social)
spheres.
What is the situation
in Kenya?
Though the constitution eliminates gender discrimination in
relation to land and property and gives everyone including women the right to
inheritance and unbiased access to land, still women have a long way to go in
terms of land ownership. The fact that most women in Kenya are still not aware
that there are laws that protect their right to property ownership, encourages
customary practices that deny women their entitlement to own, inherit and
dispose of property.
MINORS AND YOUTH
Minimum Age for
Employment
In accordance with article 53 of the Constitution, every
child has the right to be protected from abuse, neglect, harmful cultural
practices, all forms of violence, inhuman treatment and punishment, and
hazardous or exploitative labour. Under provisions of Employment Act, a child
under the age of 16 years can't be employed. Children between the ages of 13 to
16 years may perform light work only. However, the Industrial Training Act
allows minors under age 15 to apprentice in an industrial undertaking without
setting a minimum age. (Section 56 of the Employment Act).
Minimum Age for
Hazardous Work
Every child (under 18 years) has to be protected from
economic exploitation and any work that is likely to be hazardous or to
interfere with the child’s education, or to be harmful to the child’s health or
physical, mental, spiritual, moral or social development. (Section 10 of the
Children Act 2001). It is prohibited to employ children between the hours of
06:30 p.m. and 06:30 a.m. The minimum age for hazardous work is 18 years
(section 56 of the Employment Act).
Sexual Harassment
Sexual harassment at workplace is prohibited by law and an
employer is supposed to create a policy statement prohibiting sexual harassment
at workplace. However, law does not propose any punishment (section 6 of the
Employment Act). However, under section 28 of the Sexual Offences Act of 2006,
"Any person, who being in a position of authority, or holding a
public office, who persistently makes any sexual advances or requests
which he or she knows, or has reasonable grounds to know, are unwelcome,
is guilty of the offence of sexual harassment and shall be liable
to imprisonment for a term of not less than three years or to a
fine of not less than one hundred thousand shillings or to both".
SEXUAL HARASSMENT
What does the law say
about sexual harassment?
The law denounces any form of sexual harassment in the
workplace as well as any other environment. Section 21(2) of the Public Officer
Ethics Act, and Employment Act, section 6 specifies the kinds of behaviours
that lead to sexual harassment, which an employee can report if affected. The
behaviours are specified as:
· Direct or
indirect requests from an employee for sexual intercourse, sexual contact or
any other form of sexual activity that contains an implied or express:
(i) promise of preferential treatment in employment
(ii) threat of detrimental treatment in employment; or
(iii) threat about the present or future employment status
of the employee;
· Using
language whether written or spoken of a sexual nature
· Using
visual material of a sexual nature
· Showing
physical behaviour of a sexual nature which directly or indirectly subjects the
employee to behaviour that is unwelcome or offensive to that employee, and that
by its nature has a detrimental effect on that employee’s employment, job
performance, or job satisfaction.
Sexual harassment
policy as a support structure
The law provides for an environment to control and deal with
forms of sexual harassment through a national policy framework. The Employment
Act, Section 6, compels every employer with more than 20 workers to set up a
workplace policy statement on sexual harassment while Sexual Offences Act,
2006, Section 46 empowers the Minister of Labour to a) prepare a national
policy framework to act as a guideline in the implementation, and
administration of the Sexual Offences Act in order to secure acceptable and
uniform treatment of all sexually-related offences including treatment and care
of victims of sexual offences; b) review the policy framework at least once
every five years; and c) when required, amend the policy framework.
Once the policy is in existence it is the duty of the
employer to ensure that all employees are aware of the existence of the policy.
Generally, the policy requires the employer to:
· Create
awareness about sexual harassment by defining it
· Commit
themselves to supporting a working environment that is free from sexual
harassment
· Assure
workers of disciplinary measures against any perpetrator
· Assure
protection to the victim
· Provide an
avenue for complaints of sexual harassment.
How can you file a
complaint?
One of the requirements of the policy on sexual harassment
is to provide the opportunity for victims to make complaints (Employment Act,
Section 6). If an employee believes that he/she has been the victim of
harassment, or knows of another employee who has, they should report it
immediately. Employees should be able to raise concerns and make reports
without fear of reprisal. A supervisor who becomes aware of possible harassment
is also required to promptly advise management, who should handle the matter in
a timely and confidential manner.
Can a victim of
sexual assault press charges?
Yes. The Sexual Offences Act, 2006, Section 23, provides
that a victim of sexual assault can press charges against an alleged
perpetrator. The Act specifies that any person, who being in a position of
authority, or holding public office, who persistently makes any sexual advances
or requests which he or she knows are unwelcome, is guilty of the offence of
sexual harassment and shall be liable to imprisonment for a term of not less
than three years or to a fine of not less than one hundred thousand shillings
or to both. Section 24 of the Sexual Offences Act, 2006 spells out the maximum
penalty of one convicted of sexual harassment.
ANNUAL LEAVE AND
HOLIDAYS
Paid Vacation /
Annual Leave
An employee is entitled to 21 working days paid annual
leave, after completion of 12 months of continuous service. If a workers leaves
work (or is terminated), after completion of two or more consecutive months of
service, he is entitled to at least one and three-quarter days of leave with
full pay for each completed month of service. An employer may split the annual
leave after agreement with the employer however the minimum length of annual
leave, taken at one time, has to be at least two uninterrupted working days.
The total annual leave has to be taken within 18 months of its eligibility. The
employee is entitled to receive his full pay for the period of annual leave.
Full pay includes wages and salary at the basic minimum rate excluding any
deductions from wages made by virtue of the Employment Act. (Section 28
of the Employment Act 2007).
Pay on Public
Holidays
Workers are entitled to paid Festival (public and religious)
holidays. Festival holidays are announced by Kenyan Government at the
start of calendar year (usually 11 in number). The public holidays are
regulated under the Public Holidays Act. Constitution of Kenya also provides
for national days as paid public holidays. (Section 8 of the Regulation of
Wages (General) Order 1982 and Art. 9.3 of Constitution of Kenya). The public
holidays are New Year's Day (January 01), Good Friday (April 18), Easter Monday
(April 21), Labour Day (May 01), Madaraka Day (June 01), Idd – ul – Fitr
(depends on moon sighting), Mashujaa Day (October 20), Jamhuri (Independence)
Day (December 12), Christmas Day (December 25), and Boxing Day (December 26).
Weekly Rest Days
Workers are entitled to at least 1 day of rest per week
(24 consecutive hours). (Section 27.2 of Employment Act 2007)
COMPENSATION
Overtime Compensation
In accordance with the section 27 of Employment Act, 2007,
employees can be required to work 6 days a week. The weekly working hours are
not clearly provided under the Employment Act. The General Wages Order,
however, provides for 52 hours a week. The normal working hours of a worked
employed at night can’t be greater than 60 hours per week. If a worker works
beyond the stipulated working hours, he is entitled to an overtime pay that is
one and a half time (1.5 of X) the rate of his ordinary pay. The Wages Order
also specifies that overtime plus time worked in normal hours per week shall
not exceed 116 hours in total in any period of 2 consecutive weeks. Thus a
worker can work only 6 hours of overtime in a week. For night workers this
limit is 144 hours per week. For night workers, 12 hours of overtime is
allowed. (§5-6 of General Wages Order)
Night Work
Compensation
There is no premium payment for night work.
Compensatory Holidays
/ Rest Days
No provision could be identified in laws to require an
employer to provide compensatory rest day for working on weekly rest day or
public holiday.
HEALTH AND SAFETY
Employer Cares
In accordance with section 6 of the Occupational Safety and
Health Act, 2007 it is obligatory on the employer to ensure health, safety and
welfare of persons at workplace.
Free Protection
In accordance with section 101 of the Occupational Safety
and Health Act, 2007, it is the responsibility of employer to provide free
protective equipment including clothing to the worker whose work involves
exposure to wet or injurious substances.
Training
In accordance with section 99 of the Occupational Safety and
Health Act, 2007, it is the responsibility of an employer to provide
instruction, training and supervision as is necessary to ensure health and
safety at work of his employees.
Labour Inspection
System
Labour inspection system is present in Kenya. However,
labour inspectors do not have recourse to fines or other penalties if they come
across a workplace violation while inspecting an establishment.
Regulations on Health and Safety
· The
Occupational Safety and Health Act, 2007
Maternity and Work
Maternity Leave
Female employees are entitled to a 3 months (91 days) of
maternity leave with full pay. There is also a possibility of extension with
the consent of an employer (Section 29 of the Employment Act, 2007).
Income
The maternity leave is awarded with full pay and is financed
by the employer. (Section 29 of the Employment Act, 2007).
Free Medical Care
Section 34 of the Employment Act requires that an employer
has to ensure that sufficient and proper medicine are provided to a worker
during illness and, if possible, medical attendance should also be provided
during serious illness. The employees covered under the National Hospital
Insurance Fund Act are entitled to medical benefits in the case of
hospitalization. Pregnancy specific benefits are not provided under the Act.
Regulations on Maternity and Work
· Employment
Act, 2007
Sick Leave
Income
Every worker certified by a medical practitioner is entitled
to paid sick leave (sickness benefit) for a period of 14 days (in a 12 month
period). For the first 07 days, full wages are paid and for the remaining 07
days, only half wages are paid (section 30 of Employment Act 2007).
Medical Care
Medical benefits are available for insured workers and these
include general medical care, specialist care, medicine, hospitalization, and
transportation.
Job Security
According to section 46 of Employment Act 2007, an employer
can't dismiss a worker during his/her period of sick leave,
pregnancy or disability. Such a dismissal would be unfair.
Regulations on Sick Leave
· Employment
Act, 2007
Social Security
Pension Rights
Members are eligible for old age benefit (pension) when they
reach the age of 55 years, or when they ultimately retire from regular paid
employment. The benefit is paid as a lump sum of the total employee and
employer contributions plus interest (Section 19-20 of National Social Security
Fund Act, 1965)
Dependents' / Survivors' Benefit
"The above laws provide for survivor benefit (these
include dependents including widow, widower, children and even parents of the
deceased worker). The benefit is paid as a lump sum of the total employee and
employer contributions plus interest (Section 19 & 21 of National Social
Security Fund Act, 1965)"
Invalidity Benefit
"The National Social Security Fund Act, 1965 provides
for invalidity benefit in the case of non-occupational accident/injury/disease
resulting into permanent invalidity. The benefit is paid as a lump sum of the
total employee and employer contributions plus interest (Section 19 & 22 of
National Social Security Fund Act, 1965)"
TRADE UNIONS
Freedom to Join and
Form a Union
Article 41 of the Constitution provides for Freedom of
Association while section 4 of Labour Relations Act allows the workers and
employer to establish, join unions. Moreover workers are allowed to participate
in union activities outside working hours.
Freedom of Collective
Bargaining
Article 41 of the Constitution provides for freedom of
association and the right to bargain collectively. Labour Relations Act, 2007
(section 54) allows for collective bargaining in all enterprises.
Right to Strike
Right to strike is recognized by constitution and is a
fundamental worker right (art. 41 of the Constitution of Kenya). Compulsory
recourse to arbitration, long and complex conciliation and mediation procedures
prior to strike actions restrict the right to strike (Section 76-81 of Labour
Relations Act, 2007)
Regulations on Trade
Unions
· The Labour
Institutions Act, No.12 of 2007
Work and Wages
Minimum Wage
The minimum wage rate ranges between KSH 4,854.35 (unskilled
employee in Agriculture) to 22,070.95 for Artisan Grade I. The wage rates are
determined by Wage Boards constituted in accordance with Labour Institutions
Act 2007. Wages are determined for agriculture as well as general sector
workers by the Agricultural and General Wage Councils constituted under the
Labour Institutions Act. On the recommendation of these Councils, the Minister
may issue Wages Order setting minimum rates of remuneration. Minimum wages vary
by occupational sectors, skill levels and geopgraphical areas. Minimum wages
were last revised on May 01, 2013. While determining the minimum wage, the Wage
Council should take into account the following factors: the needs of employees
and their families, taking into account the general level of wages in the
country, the cost of living, social security benefits and the relative living
standards of other social groups; economic factors, including the requirements
of economic development, levels of productivity and the desirability of
attaining and maintaining a high level of employment and the need to encourage
investment; the ability of employers to carry on their business successfully;
the operation of small, medium and micro enterprises; the alleviation of
poverty; the minimum subsistence level; the likely impact of any proposed
conditions of employment on current employment or the creation of employment;
and any other relevant factor. (Section 43-47 of Labour Institutions Act)
Regular Pay
The Employment Act 2007 regulates the payment of wages to
all classes of workers. According to Section 18 of the Act, wages can be
calculated on hourly, daily, weekly or monthly basis. Section 17 of the Act
requires the employer to pay an employee his wages during the working hours at
the place of work on agreed pay day in cash, cheque, money order or directly
deposit the amount in that worker's bank account.
Regulations on Work
and Wages
· The Labour
Institutions Act, No.12 of 2007
What is a contract of
employment?
The key question in determining whether or not a person is
an employee is the following - what is a contract of employment?
The term "contract of employment" has not been
comprehensively defined either in legislation or case law. Over the years, the
courts have adopted various tests in order to determine whether or not a
certain relationship amounts to a relationship of employment. The modern
approach adopted by the courts is to consider all the factors relevant to the
issue of employment and to weigh up those factors that point towards the
existence of a contract of employment and those that point away from such a
contract.
The presence or absence of any one factor is not conclusive,
as the decision depends on the combined effect of all the relevant information.
The factors given should not be treated as a checklist to identify those
factors that appear to point one way and those which point the other, from
which a result can be calculated It is the overall effect of the relationship
between the parties involved that will lead a court to decide whether or not a
person is employed.
You should be aware that a "contract of
employment" is also known as a "contract of service". However, a
contract for services is a contract whereby a person is merely under an
obligation to perform some work or service for another person, without an
employment relationship being created between the two. People working under a
"contract for services" are usually contractors or self-employed.
When examining the factors relevant to whether there is a
contract of employment, you should be concerned not only with the written terms
(if a written contract exists) but also with the practical circumstances of the
relationship between the parties. This is because the terms of the contract can
be express (e.g. written or orally agreed) or implied (e.g. from actual
practice).
RELEVANT FACTORS IN
RELATION TO CONTRACT OF EMPLOYMENT
The degree of control
exercised over the worker
The relationship of employment was traditionally known as
the "master and servant" relationship. This implies a right for the
employer to give the orders and the employee to carry them out. An employee is
therefore subject to a significantly greater degree of control than an
independent contractor/self-employed person.
The following question is therefore important: who is
entitled to give the orders as to how the work should be done? The
greater the amount of control exercised over the details of the work to be
done, the more likely the relationship is to be one of employment
Generally, a self-employed person is told what to do, but
not how to do it. In one case it was considered important that the
`employer determined "the thing to be done, the way in which it is done,
the means to be employed in doing it, the time when and the place
Even so, it should be noted that the question of control
will carry less weight in relation to professional and skilled employees as
such employees often have the discretion to decide how their work should be
done.
Whether the worker can properly be regarded as part of the
employer's organisation
An employee is normally part and parcel of the employer's
organisation and does their work as an integral part of the business whereas an
independent contractor is not usually integrated into the organization but is
accessory to it. A question to consider is whether the worker is
performing services as a person in business on their own account
Also relevant is:
· whether
the person performing the services provide their own equipment;
· whether
they hire their own helpers;
· what
degree of financial risk they take;
· what
degree of responsibility for investment and management they have;
· whether
they have an opportunity of profiting from the management of the task.
The question of whether or not a person is in business on
their own account is particularly important when you are considering the status
of professional and skilled employees.
Whether the `employer' has the power to select and appoint
the individuals doing the work?
The fact that the `employer' has the power to select and
appoint the individuals to do the work is an indication of a contract of
employment.
Whether the `employer' has the power to dismiss or suspend
the worker
The power of dismissal or suspension indicates a
relationship of employment. If the `employer' can dispense with the worker's
services by giving a certain period of notice, this points to a contract of
employment as an independent contractor cannot be "dismissed
Whether wages/salary/holiday pay are paid
The way in which a worker is paid is a useful indication of
whether that person is employed. Normally an employee is paid a regular, fixed
sum although this is not always the case (e.g. where commission is payable).
Where a person receives holiday pay and sick pay, it can indicate the
likelihood of an employment relationship. On the other hand, payment by the job
i.e. in relation to a complete task, may point away from employment, depending
on the other factors / tests.
Supplier of equipment
If one party to the contract in question supplies the tools,
machines or equipment used by the other party, this points to a contract of
employment. contractors or self-employed people normally provide such equipment
for themselves.
The person who fixes the times and place of work
The power to fix hours and/or times when is a person is to
work is suggestive of a contract of employment. The power to direct where
the person is to work can also indicate a contract of employment.
Whether personal service is provided
A person will not normally be an employee if they are
entitled to delegate the entire performance of the work to another person.
The extent of the obligation to work and mutual obligations
If the contract entitles a person to the full-time services
of another, this indicates a contract of employment. However, if it is
left entirely to one party to the contract to choose whether or not to do any
work, it is unlikely to be a contract of employment.
The courts have said that it is possible to have a
continuing (`global') contract of employment linking up intermittent periods of
employment. This will only apply where there is a degree of continuing mutual
obligation on the employer to offer employment and on the employee to accept
it.
The court found such a situation where there was regular
course of dealing for years between the parties under which the `employer'
supplied work daily to homeworkers, and collected and paid for finished work
The length of the relationship (three years) and the
continuity and regularity of the dealings between the parties were important
factors in reaching this decision. These principles are particularly relevant
in considering whether casual workers are employees (see below).
Payment of income tax and National Insurance contributions
Where the `employer' deducts income tax and social security
contributions under the PAYE system, this indicates that the parties themselves
view their relationship as one of employment. As with all the factors, this (or
the failure to deduct) is not conclusive as to the true nature of the
relationship.
An arrangement to pay income tax and social security
contributions outside the PAYE system does not, in itself, indicate that the
payee is self-employed.
The intention of the parties
The intention of the parties as to the contract that they
intend to create is a relevant factor to consider but, as with all other
factors, is not conclusive as to the true nature of the contract.
Safety at Work:
Lane v Shire Roofing
Company Oxford Ltd [1995] IRLR 493
A good example of a case relating to health and safety at
work is Lane v Shire Roofing Company Oxford Ltd. Mr. Lane was a
builder/roofer/carpenter who traded as a one-man firm. He was categorized as
self-employed for tax purposes. He initially was contracted directly by clients
but this work dried up and he usually worked for other
contractors.
Shire Roofing was a new company who hired Mr Lane at a daily
rate in relation to a specific roofing job. The new company did not want to
take on many long-term employees and therefore mostly hired men for individual
jobs. When the roofing work was nearly complete Mr Lane was asked to re-roof a
porch at a private house.
Shire Roofing agreed a price of £389 with the householders
and then agreed an all-in-fee of £200 with Mr. Lane following a site visit
where plant and equipment were discussed. The hire of scaffolding would have
made the job unprofitable and Mr Lane was offered a trestle-type platform or
tower scaffold to work from. Mr Lane refused, stating that he preferred to work
from his own ladder.
Whilst carrying out the work Mr Lane fell from the ladder
and sustained serious brain damage. He claimed damages from Shire Roofing on
the basis that they failed to comply with their duty of care as his employer.
The key question for the Court of Appeal was whether Mr Lane
was an employee of Shire Roofing or whether he was self-employed/an independent
contractor. The Court noted that there are perceived advantages for workers and
employers in the relationship between them not being one of employment (for the
worker tax advantages; for the employer the avoidance of legal duties to
employees).
There were therefore good policy reasons in the field of
safety at work to ensure that the law properly categorises between employees
and independent contractors.
The Court recognised that there are many factors to take
into account depending on the facts of each case. The Court identified a number
of questions/principles, relevant to this particular case that could be used to
determine whether a person was an employee or an independent contractor. These
were:
Who had control?
· the
element of control: who lays down what is to be done, the way in which it is to
be done, the means by which it is done and the time when it is done? Who
provides (i.e. hires and fires) the team by which it is done, and who provides
the material, plant and machinery and tools used?
Whose business was it?
· the
control test may not be decisive particularly in the case of skilled employees
who have the discretion to decide how their work should be done. In such cases
the question is broadened to whose business was it? Was the workman carrying on
his own business, or was he carrying on that of his employers? This will also
involve similar factors to the control test (e.g. who provides the equipment)
but may include looking to see where the financial risk lies, and whether and
how far the worker has an opportunity of profiting from sound management in the
performance of the task;
Who had overall responsibility for safety?
· the above
questions must be considered in the context of who is responsible for the
overall safety of the men doing the work in question.
On this basis the Court of Appeal decided the Mr Lane was an
employee of Shire Roofing. The court considered that although the degree of
control by the company would depend on the need to supervise and direct Mr
Lane, it was quite clear that the job at the house was the business of the
company and not Mr Lane's. The Court felt that the factual situation was much
closer to the situation where an employer engages men simply to do labouring
work than where a specialist sub-contractor is employed to perform some part of
a general building contract.
It can be seen from this decision that where a court is
considering the issue of whether or not a person is an employee in the context
of health and safety at work, they may take a wide view of what constitutes
employment. As stated in the Lane v Shire Roofing judgment, "When it comes
to the question of safety at work, there is a real public interest in
recognising the employer/employee relationship when it exists, because of the
responsibilities that the common law and statutes place on the employer".
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