1. A PRESENTATION ON THE BACKGROUND OF THE LABOUR LAWS IN KENYA
BY MR. JAMES OKEYO
Partner & Head of Litigation Department Muthoga Gaturu & Company Advocates Bruce House, 7th Floor Standard Street P.O. Box NAIROBI. Tel: +254 (020) / Fax: +254 (020) Website:

2. INTRODUCTION
Labour law or employment law mediates the relationship between :
workers (employees),
employers,
Trade unions and;
the government.
It is therefore a body of laws and regulations that apply to matters of employment, wages and conditions of work, labour unions and labour management.

3. HISTORICAL DEVELOPMENT
Labour was communal and regulated by the respective customs.
Origin of formal labour law in Kenya is associated with the colonial government’s quests to pass legislation that would ensure adequate and cheap Labour to the emerging agricultural, industrial and service industries.

4. Labour Laws in Kenya
The labour laws of Kenya of 2007 improved the environment for employers, employees and trade unions.
Parliament enacted five labour laws —
the Employment Act,
Labour Institutions Act,
Labour Relations Act,
Occupational Safety and Health Act and
Work Injury Benefits Act.

5. Employment Act No. 11 of 2007
commenced on 2nd June 2008 and replaced the Employment Act and Regulation of Wages and Conditions of Employment Act.
applies to all employees under a contract of service but exempts The Armed Forces, The Kenya Police, Kenya Prison Service, The Administrative Police Force and National Youth Service.
the new Act defines a number of common terms – probationary contract, migrant workers, worst forms of child labour, dependant, forced or compulsory labour and HIV.

6. Employment Act No. 11 of 2007…… CONTD
Repealed and replaced six core labour laws and bring them into conformity with the current challenges and demands of national development and international labour standards.
lt also provides for prohibition against forced labour, discrimination in employment on the basis of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, mental or HIV status and sexual harassment.

7. Employment Act No. 11 of 2007…… CONTD
employer cannot deduct employees wages exceeding two thirds. The previous law provided for deductions up to 50 per cent.
all employees are entitled to itemised payslips or salary statements.
basic conditions of a contract of service  – hours of work and annual, maternity and sick leave, housing, water, food and medical attention. In the new provision, an employee is entitled to three months’ maternity leave. However, the employee shall not forfeit annual leave. The law introduces a 14-day paternity leave.

8. Employment Act No. 11 of 2007…… CONTD
The Act has provisions on termination and dismissal.
Unlike before the law now provides for payment of service pay for every year worked to an employee whose contract has been terminated unless he was a member of NSSF/Registered Pension or gratuity scheme
Labour minister may require an employer to insure his employees against redundancy through an employment insurance scheme.

9. Employment Act No. 11 of 2007…… CONTD
The employers are also required to justify termination of employment. The law introduces the concept of unfair dismissals
Prohibits employment of children in any activity that constitutes child labour. It also sets the minimum age and conditions for employment of a child.
Employers are required to keep records and make them available for inspection. They are also required to notify the Director of Employment of vacancies, termination and abolition of offices.

10. Employment Act No. 11 of 2007…… CONTD
The law also outlines requirements for a foreign contract and sets out complaint procedures and jurisdiction in cases of disputes between the employee and employer.

11. Labour Institutions Act No 12 of 2007
This is an Act of Parliament that establishes labour institutions, provides for their functions, powers and duties, and other connected matters.
Pursuant to section 4 the Act does not apply to the armed forces or to the reserve as respectively defined in the Armed Forces Act; the Kenya Police; the Kenya Prisons Service, or the Administration Police force; and the National Youth Service. Subject to the foregoing, the Act shall bind the government.

12. Labour Institutions Act No 12 of 2007…….CONTD
A. THE NATIONAL LABOUR BOARD established under section 5 of the Act.
The functions of the board are:
a. to advice the minister on all matters concerning,:
employment and labour; legislation affecting employment and labour; any matter relating to labour relations and trade unionism; any issue arising from the International Labour Organization and the International Labour Organization.
codes of good practice; any issues raised by an international or regional association of states of which Kenya is a member; systems of labour inspection and the administration of the Labour Acts; any aspect of public employment services, vocational guidance, vocational training and the employment of persons with disabilities;
Under section 10 the commissioner shall be the secretary to the board.

13. Labour Institutions Act No 12 of 2007…….CONTD
B. COMMITTEE OF INQUIRY
Section 28 allows the Minister by notice in the Gazette, to appoint a Committee of Inquiry to inquire into any matter which appears before the Minister to be connected with or relevant to any trade dispute or to trade disputes in general, or to trade disputes of any type or class, whether or not such dispute has been reported the Minister under this Act.

14. Labour Institutions Act No 12 of 2007…….CONTD
C. LABOUR ADMINISTRATION AND INSPECTION
there shall be appointed under section 30, a Labour Commissioner; a Director of Employment; and such other officers as may be necessary for purposes of administration of laws relating to labour and employment.
The Minister appoints the Registrar of Trade Unions who shall be responsible for, the registration and regulation of trade unions, employers’ organizations and federations

15. Labour Institutions Act No 12 of 2007…….CONTD
labour officer may, for the purpose of monitoring or enforcing compliance with any labour law require the production of wage sheets or other employment records kept by an employer, and records of payments made to outworkers by persons giving out work, and any other such records as are required by any labour law or wages order to be kept by employers, and to inspect and examine those sheets or records and copy any material part thereof;

16. Labour Institutions Act No 12 of 2007…….CONTD
A person who willfully obstructs or hinders an authorized officer, or neglects or fails to comply with any requirement or order made by or given by an authorized officer in pursuance of any power conferred by this Act or any rules made under this Act commits an offence.

17. Labour Institutions Act No 12 of 2007…….CONTD
D. WAGES COUNCIL established under Section 43 establishes a general wages council and an agricultural wages council.
The functions of the wages council under section 44 are to investigate the remuneration and conditions of employment in any sector by inviting and considering written and oral representations, in the prescribed manner, from interested parties and by making recommendations to the Minister on minimum wage remuneration and conditions of employment.

18. Labour Institutions Act No 12 of 2007…….CONTD
E. Employment Agencies
All registrations of employment agencies are done under Section 55 through an application to the Director. Any refusal by the Director to grant an application must be supported by reasons for such decision. He may cancel the registration or vary the terms or conditions of any certificate of registration. Any person aggrieved by the decision of the director under the enabling section may appeal against such decisions to the labour court.

19. EMPLOYMENT AND LABOUR RELATIONS COURT ACT 2011
The Industrial Court of Kenya was renamed the Employment and Labour Relations Court following minor amendments to the Industrial Court Act No 20 of 2011 to align it to Article 162(a) of the Constitution. It has 12 serving judges and operations in Nairobi, Mombasa, Nyeri, Nakuru, Kisumu and Kericho and Eldoret and Malindi.
The Constitution 2010 mandates Parliament to establish a court with the status of a High Court that determines disputes relating to employment and labour relations.

20. EMPLOYMENT AND LABOUR RELATIONS COURT ACT 2011
The Industrial court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya 2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya. Appellate Jurisdiction
The court shall have appellate jurisdiction to hear and determine appeals from:- decisions of the Registrar of trade unions, and any other court, local tribunal or commission and prescribed under any Written Law.

21. EMPLOYMENT AND LABOUR RELATIONS COURT ACT 2011
The court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial Court Act or any other written Law which extends jurisdiction to the court relating to employment and Labour relations

22. EMPLOYMENT AND LABOUR RELATIONS COURT ACT 2011
The court consists of;
(a)   The Principal Judge; and
(b)   Such number of Judges as the President may, acting on the recommendations of the Judicial Service Commission, appoint
A judgement, award, order or decree of the Court shall be enforceable in accordance with the rules made under the Civil Procedure Act.

23. Work Injury Benefits Act 2007 (WIBA)
The law replaced the Workman’s Compensation Act. WIBA is an act of parliament of Kenya that was enacted in 2007 that seeks to provide compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. The WIBA Act 2007 places liability on the employer to compensate employees for work related injuries and illnesses.

24. Work Injury Benefits Act 2007 (WIBA)
It introduces a legal framework compliant with ILO conventions related to compensation of` employees injured at work or who contract diseases and to extend insurance cover. Employers are obligated to obtain an insurance policy to cover the employer’s liability, register with the Director of Work Injuries Benefits and to keep records and make annual returns.
The law also provides for the procedure of reporting accidents during employment. The limitation period for reporting is 12 months alter which the claim lapses.

25. Work Injury Benefits Act 2007 (WIBA)
The law provides for employers to provide medical aid to employees.This includes first aid facilities, taking employees to and from medical facility and payment of medical expenses.
The Work Injury Benefits Act, 2007 requires all employers to obtain and maintain an insurance policy to cover them against any liability that they may incur under The Work Injury Benefits Act, 2007 to any of their employee.

26. Work Injury Benefits Act 2007 (WIBA)
The Act has provided for the following benefits/compensation:-
Temporary Total Disability
Temporary Partial Disablement
Permanent Total Disablement
Death
Funeral Expenses
Expenses for constant assistance
Medical Expenses

27. Work Injury Benefits Act 2007 (WIBA)
This Act applies to all employees either employed permanently or under contract, within Kenya. It does not cover casual employees, members of the armed forces or Kenyans working outside Kenya.

28. LABOUR RELATIONS ACT 2007
This is an Act of Parliament that is meant to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes.

29. LABOUR RELATIONS ACT 2007
The Act does not apply to any person in respect of his employment or service in the armed forces, Kenya Police, the Administrative Police Force, the Kenya Prison Service and the National Youth Service.
Section 4 grants every employee the right to participate in forming a trade union or federation of trade unions; and join a trade union.

30. LABOUR RELATIONS ACT 2007
Section 5 protects employees from discrimination, as result of ex
It is the right of every employer, under section 6, to participate in forming an employers’ organization or a federation of employers’ organization; and subject to its constitutions, join an employer’s organization or a federations of employers’ organizations. ercising this right conferred in this Act.

31. LABOUR RELATIONS ACT 2007
Section 8 provides for every trade union, employers’ organization or federation, has the right to determine its own constitutions and rules; and hold elections to elect its officers; plan and organize its administration and lawful activities; participate in the forming of a federation of trade unions or a federation of employers’ organizations; join a federation of trade unions or a federation of employers organizations, subject to its constitution and participate in its lawful activities; affiliate with, and to participate in the affairs of any international workers organization

32. LABOUR RELATIONS ACT 2007
Section 12 of the Act prohibits any person from recruiting members into a trade union or employers’ organization without obtaining a certificate from the Registrar issued under this section.
The application for registration is within six months of receiving a certificate issued under section 12.

33. LABOUR RELATIONS ACT 2007
Under section 31, the officials of a trade union or employers’ organization shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organization is registered. No person shall be an official of more than one trade union or employers’ organization. An official of a trade union may also be an official of a federation of a trade union to which the trade union is affiliated.
Section 32 provides that minors who have not attained eighteen years and appears to be above the apparent age of sixteen years may be a member.

34. LABOUR RELATIONS ACT 2007
Property, Funds and Accounts of Trade Unions, Employers’ Organizations and Federations
Section 36 states that the constitution of a trade union, employers’ organization and federation shall provide for the appointment or elections of at least three trustees; and for the filling of a vacancy in the office of a trustee to ensure that there are at least three trustees at all times. All the property is to be vested to the trustees on behalf of the membership. 

35. LABOUR RELATIONS ACT 2007
Trade Unions Dues, Agency Fees and Employers’ Organizations Fees
Under section 48 (2) a trade union may, in the prescribed form, request the Minister to issue an order directing an employer of more than five employees belonging to the union, deduct trade union dues from the wages of its members; and pay monies so deducted, into a specified account of the trade union, or in specified proportions into specified accounts of a trade union and a federation of trade unions.

36. LABOUR RELATIONS ACT 2007
Recognition of Trade Unions and Collective Agreements
Section 54 provides that, an employer, group of employers or an organization of employers in the public sector shall recognize a Trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers’ organization.

37. LABOUR RELATIONS ACT 2007
Should there be a dispute as to the right of the trade union to be recognized for the purpose of collective bargaining in accordance with this section or cancellation of the recognition agreement; the trade union may refer the dispute for conciliation.
If the dispute is not settled in the conciliation, the trade union may refer the matter to The Industrial Court under the certificate of urgency which shall take into account the sector in which the employee operates and the model recognition agreement published by the Minister.

38. LABOUR RELATIONS ACT 2007 Strikes and Lockouts
A person may participate in a strike or lockout if the trade dispute that forms the subject of the strike or lockout concerns terms and conditions of employment or the recognition of a trade union; the trade dispute is unresolved after conciliation; a seven days written notice of the strike or lockout has been given to the other parties and to the Minister by the authorized representatives.

39. LABOUR RELATIONS ACT 2007
Under section 77 a party to the dispute that has received notice of a strike or lockout may apply to the Industrial Court to prohibit the strike or lockout as a matter of urgency if the strike or lockout is prohibited under this part; or the party that issued the notice has failed to participate in conciliation in good faith with a view to resolving the dispute.

40. THE OCCUPATIONAL SAFETY AND HEALTH ACT 2007 (OSHA)
The responsibilities of the employer are provided for in section 6
Obligations of the employee
Employees have a duty to ensure his own safety, cooperate with his employer and or any other person in ensuring their safety and report any dangers. An employer shall not be liable for injury suffered if it is established that the injury is as a result of non-compliance by the worker.

41. THE OCCUPATIONAL SAFETY AND HEALTH ACT 2007 (OSHA)
Obligations of the employer
It is the responsibility of every employer to ensure the safety, health and welfare of all employees at work working in his/her workplace.
The Occupational Safety and Health Act, No. 15 of 2007 and revised in 2010, provides for the safety, health and welfare of workers and all persons lawfully present at workplaces. It covers workers and other people who are at workplaces lawfully eg clients and licensees.

42. THE OCCUPATIONAL SAFETY AND HEALTH ACT 2007 (OSHA)
Section 101 requires that in workplaces where employees are exposed to wet or to any injurious or offensive substances, the employers must provide and maintain clothing and appliances that are adequate, effective and suitably protective, including, where necessary, suitable gloves, footwear, goggles and head coverings.
An employer who fails to comply with a duty imposed on him under the Act commits an offence and shall on conviction be liable to a fine not exceeding KES 500,000 or to imprisonment for a term not exceeding six months or to both.

43. THE OCCUPATIONAL SAFETY AND HEALTH ACT 2007 (OSHA)
training
Section 99 of the Occupational Safety and Health Act, specifies that a worker shall not be employed at any machine or in any process liable to cause ill health or bodily injury, unless he/she has been fully instructed as to the dangers likely to arise in connection therewith and  has received sufficient training in work at the machine or in the process; or is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.

44. THE OCCUPATIONAL SAFETY AND HEALTH ACT 2007 (OSHA)
Compensation
Under the right to compensation (Part III) of Work Injury Benefits Act, an employee who is involved in an accident resulting in the employee’s disablement subject to the provisions of this Act, is entitled to the benefits provided for under this Act.

45. CONSTITUTION
Articles 70 to 86 of the current Constitution deal with fundamental rights. Basically the Constitution guarantees fundamental rights and freedoms of the individual. Among these fundamental rights, a range of general principles underpinning labor rights are anchored in the Constitution itself. The Constitution provides for principles, such as the prohibition of inhuman treatment (Art. 74) and the protection from slavery and forced labor (Art. 73).

46. CONSTITUTION
Freedom of Association is guaranteed in the Constitution under Art. 80. This constitutional provision under Article 80 (2) (d) already regulates in detail procedures for the registration of trade unions and associations of trade unions. Under this provision reasonable conditions relating to the requirements for entry on a register of trade unions include conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or members necessary to constitute an association of trade unions qualified for registration.

47. CONSTITUTION
The right to strike is not mentioned explicitly, but Art. 80 (1) protects not only the right to organize, but explicitly activities serving the purpose of the union, such as all activities designed to protect the individuals’ interests.
Related are also the protection of right to personal liberty (Art. 72), his or her freedom of movement (Art. 81), and the protection from discrimination (Art. 82). Art. 82 (3) specifies the anti-discriminatory provision prohibiting different treatment on the enumerative grounds of race, tribe, place of origin or other local connection, political opinions, color, creed or sex.

48. CONSTITUTION
The Constitution contains Bill of Rights in its Chapter Six. This Bill lays down the principle of equality (Article 35, 37), the freedom from discrimination (Article36), the freedom from slavery and forced labor (Article 46) and the freedom of association (Article 52).

49. CONSTITUTION
Article 41 on Labor relations provides that every person has a right to fair labour practices, fair remuneration, the right to reasonable working conditions, the right to join a trade union or employer’s organization, the right to strike and the right to engage in collective bargaining.

50. CONSTITUTION
Under the Article, every employer has the right to form and join an employers organisation and to participate in the activities and programmes of an employers organisation.
Every trade union and every employers organisation has the right to determine its own administartion, programmes and activities, to organise and to form or join a federation.

51. QUESTION AND ANSWER SESSION