LEGISLATION GOVERNING TRAINING AND DEVELOPMENT IN KENYA.

THE INDUSTRIAL TRAINING ACT

CHAPTER 237

Government of Kenya, The Industrial Training Act Chapter 237, (Government Printer, Nairobi), Revised Edition 1983

Specific Objectives

At the end of the topic, the trainee should be able to: –

Explain the provisions of the Industrial Training Act.
Apply the provisions of the Act to practical situations.

Introduction

The Act has 32 sections[1]. These notes will attempt to highlight the main aspects in the Act.

The following is a summary of the main features or requirements of the Act.

An Apprentice

The Act defines an apprentice as a person who is bound by a written contract to serve an employer for a determined period of not less than four years, or such lesser period as the council shall determine under section (2) of sec. 20 with a view to acquiring knowledge, including theory and practice, of a trade in which the employer is reciprocally bound to instruct that person (p.3)

An Indentured Learner

Means a person, other than an apprentice, who is bund by a written contract to serve an employer for a determined period less than four years with a view to acquiring knowledge of trade in which the employer is reciprocally bound to instruct that person (p.3

The Act also goes on to define a “minor” as a person under the age of 15 years (p3). The Act stipulates that there shall be a Director, and such members of Deputy Directors and Assistant Directors of Industrial training. (p.4). Te Act also talks of a National Industrial Training Council consisting of a chairman and not less that 18 other members (6 representing employers; 6 representing employees and 6 chosen to represent other interests), all appointed by the Minister. (p.4).

No person shall be appointed as a member if he:-

Is insolvent
Is of unsounded mind
Has been sentenced by a court for a term of 6 months or more within the preceding 5 years (p5)

The Minister may revoke the appointment of a member subject to conditions (a), (b) and (c) above and also if the member is incapacitated physically or mentally, has been absent for 3 consecutive meetings of the council or is unfit or unable to discharge his functions. (p.5. Section 3, sub-sec II).

DUTIES OF THE COUNCIL

(Section 5, pgs 6-7)

Secure the greatest possible improvement in the quality and efficiency of the training of personnel engaged in industry.
Ensure an adequate supply of properly trained manpower at all levels in industry.
Share the cost of all industrial training undertaken in pursuance of the Act as evenly as possible between employers.
Advice the Minister from time to time concerning the institution, review and maintenance of a system of holding tests, the granting of certificates and making of reports.
Investigate any dispute or other matter arising out of a contract of apprenticeship or indentured learnership.
Perform such duties and functions in regard to any other matter concerning apprenticeship or indentured learnership.
Investigate and make recommendations to the Minister on any matters connected with the Act.

TRAINING LEVIES

(Section 5B, p.8)

The Minister may make a training levy order for the purpose of giving effect to proposals submitted by the Council and approved by him. Such an order may provide for the amendment of a previous training levy order and make different provisions in relation to different classes or description or employer.

The order may contain provisions as to the evidence by which a person’s liability to the levy may be established. A sum equal to 5% is to be added to any amount that has not been paid n within the time prescribed.

Disbursement of the Training Levy Funds

(Section 5C, pgs. 8-9)

All money, collected as training levy, shall be payable into a Training Levy Fund. The Director. On the advice of he Council, may make payments out of the fund for any of the following purposes: –

Payment of maintenance and travelling allowances to persons attending training courses.
Making of grants or loans to persons proving courses to training facilities.
Making of fees to persons providing further education in respect of persons who receive it in association with their training.
Reimbursement of an employer for all or part of his training costs including fees, instruction costs, material costs and wages of apprentices/indentured learners while attending training courses.
Payment of sitting allowances and travelling, accommodation and entertainment expenses for committee and sub-committee members on duty.
Payment of examiners fees for setting, moderating, invigilating and marking tests for learners and their travel and accommodation expenses.
Payment of honoraria to instructors for conducting evening courses.
Other expenditure related to training and approved by the Minister.

In cases where the Council or Director withholds approval for payment of any money, the case will be referred to the Minister whose ruling will be final.

Permission to Employ Apprentices or Indentured Learners

To employ such a learner one must first obtain the written permission of the director; which shall specify the maximum number of learners one may employ at any given time. For the permission to be granted, the director must be satisfied that the establishment offers reasonable opportunities for the proper training of the learners. One shall be guilty of an offence if:

Employs a learner without first obtaining the written permission of the director to employ
Employs learners in excess of the maximum number allowed in the written permission obtained (section 6 and 7, pages 10 and 11)

Requirements for One to Become a Learner (Section 8 Pages 11)

Must have attained the apparent age of 15 years.
Has completed any period of compulsory education required by Law.
Has in the case of a trade or occupation in respect of which a scheme has been made, the qualifications prescribed under the scheme.
Hs been certified fit as provided in Section 10 (Having been medically examined, at the expense of the employer, by a medical practitioner and a medical certificate issued.

Registration of Contracts (Section II)

Every contract of Apprenticeship or indentured learnership must be in he prescribed form, or where no form has been prescribed, in a form approved by the Director. An employer entering into such a contract shall within 14 days lodge with the Director, for registration.

The contract
A duplicate copy
A further copy for filing by the Director
The medical certificate (Section 10)

A contract is not binding unless it is registered by the Director. The Director may refuse to register a contract if:-

In his opinion, it is not in the interest of the learner.
It is not made in accordance with the provisions of a scheme
He may in coming to a decision see that the learner’s prospects of obtaining employment after expiry of contract in that particular occupation are slim.

The Act allows for the transfer of the rights and obligations under a contract of learning, with the consent of the learner and with the Directors approval, from one employer to another. The Director may withhold his approval if in his opinion the transfer is not in the interests of the learner. (Section 12, p.13). No transfer of the rights and obligations of an employer shall take place until the instrument of transfer:-

Is in writing
Is signed by the employer transferring the rights and obligations, the employer receiving these right and obligations and the learner (or in case of a minor, signed by the guardian parent, or if not available the DO or labour officer).
Is registered by the Director as earlier prescribed.

Termination & Extension of Contracts

Section 13, p.14-15

A contract of learning may be terminated or extended:-

By mutual agreement of the parties
By the Director at the instance of any party and if he is satisfied it’s expedient to do so.
By the Director at the instance of the Council.

A notice of one month for termination or extension shall be given by the employer to the Director. The Director shall only exercise his powers in (b) above after listening to both parties.

A person who induces or attempts to induce a learner to quit the service of his employer, and who is bound by a contract, shall be guilty of an offence. (Section 14, p.15)

Probation

The first 6 months of every contract of learning shall be a period of probation, during and at the expiry of which the contract may be terminated by either party. (Section 15 (i), p.15)

Suspension

If a learner, bound by a contract, commits a serious breach of the terms of the contract, the employer may suspend him. This shall be reported Director within 3 days, and the Director will investigate the matter, set aside or confirm the suspension, or vary the terms of the suspension. (Section 16, p.15).

Whether or not a complaint has been lodged by the employer, he Director may order suspension, pending investigate and shall report his action to the Council.

Where the Director sets aside suspension of a learner, the employer shall pay to the learner all such wages as may have been withheld during the period of suspension. Failure by the employer to report suspension of learner makes him guilty of an offence. (Section 16 (4&5) p.16)

Records To Be Kept By the Employer

Records kept by an employer on learners will include:-

Remuneration paid
Time worked
Every learner
Any other particulars (Section 17(i), p.16)

The records shall be kept in a manner prescribed by the Director. Such records must be retained by the employer for a period of 3 years after the last entry in the record.

Limitations in Regard to Method of Payment & Overtime

Wages of the learner shall not be based upon the quantity of work done, or overtime for a learner under 17 years of age (section 18 pages 16)

An employer shall on successful completion of a contract, make out a certificate of apprenticeship or indentured learnership in the prescribed form and manner and submit to the director for counter signature and later give if to the apprentice (section 19 pages 16 – 17).

If an employer fails to give a certificate himself. Failure to give a certificate or giving one which is untrue makes one guilty of an offence

TRAINING SCHEMES

SECTION 21 PAGES 17 – 19

The director after consulting the council may make a scheme or schemes for regulating the training of apprentices or indentured learners in any trade or occupation. A scheme may in respect of any trade or occupation. A scheme may in respect of any trade or occupation to which it relates, specify: –

The qualifications, including age and educational standard required for the learners in that trade or occupation
Period of apprenticeship or indentured learnership (not exceeding 7 years for apprentices and les than 4 years for indentured learnership)
The practical training which employers shall provide for the learners in their employment.
The theoretical training which employers shall provide for the learners, at the expense of the employer, and the manner in which such training shall be provided.
The proficiency tests or examinations, which the learners in that trade or occupation shall undergo from time to time.
Maximum number of ordinary working hours the learners in that trade or occupation may be required to work during any week, day and the day, hours or intervals when they will not be required to work.
Maximum period of overtime the learners will be permitted to work in any given day or week.
Minimum number of paid holidays to be allowed to the learners during any year.
The remuneration and other conditions which shall apply in respect of any period during which the leaner is unable by reason of any condition to render service to his employer during ordinary working hours.
Any other matter which in the opinion of the Director is necessary for the effective operation of the scheme.

A scheme may be amended by a subsequent scheme or by an order made by the director on advice of the council.

Procedure for Making of Schemes

Before making a scheme the director shall publish once in the Gazette and twice (with interval of between 7 – 14 days) between each publication in a newspaper published and circulated in Kenya, a notice of his intention to make a scheme specifying a place where copies of a draft may be inspected. (Section 22 pages 19).

An objection made shall in writing and will state the specific grounds for objection and the deletions, additions or modifications to the scheme. These should be done within 30 days from the date of publication of the notice.

The director after expiring of the 30 days will consider the issues raised and may withdraw the draft scheme or make the scheme as it is in the draft or make the scheme subject to deletions, additions or modifications suggested.

Where the director makes a scheme, he shall publish a notice of intention to make the scheme specifying a place where copies of the scheme may be inspected.

Supervision of the Apprentices or Indentured Learners

(Section 22A Pages 20 – 21)

Every employer of apprentices or indentured learners shall appoint by name form among employee: –

A person responsible for supervising generally the learners under this Act
At every premise or worksite, where learners are regularly employed for a period of not less than 3 months an apprentice or indentured learner master, who shall be responsible for the day to day guidance of the learners in matters concerning the trade or occupation.

The director may not approve the appointment of the apprentice / indentured learner master he deems not competent and may specify the kind of training to be given to the master before the appointment is re-approved.

Where 25 or more learners are employed at any premise or worksite the master shall devote the whole of his time during normal working hours to learner guidance. Where the number is less than 25, the master shall devote that proportion of his time to learner guidance.

Appointment of an Inspector

The minister, by notice in the Gazette, ma, appoint nay person appointed to the public service as a senior training office or levy inspector, to be an inspector for all or any purposes of the Act (section 23) p.21

Powers of the Inspector

An inspector may: –

At any time, enter premises in which he believes a learner is or has within the previous 6 months been employed and take with him and interpreter or other assistant or a police officer
Examine any person whom he finds on the premises entered whom he believes ahs been employment within the proceeding 6 months and require him to be examined
Require any learner to appear before him at a time and place fixed by the inspector and question the learner
Require the production or delivery of any records required to be kept under this Act or any document relating to the business of any person whom the inspector has reason to believe is or was within the last 6 months the employer of a learner
Examine and make extracts from and copies of nay such documents provided

Failure to comply or obstruction of the inspector makes one guilty of an offence. The inspector seeking to exercise his powers and one being required to do so shall produce written evidence of his appointment.

Penalties

Section 28, pages 23

A person who commits an offence under this Act of which no penalty is provided shall be liable to a fine not exceeding Ksh. 6,000 or imprisonment not exceeding 6 months or both.

RULES

Section 29, pages 23

The minister may make rules for carrying into effect this Act. The following maybe some of the rules.

Form of a contract of learning
Manner in which educational standards or birth may be proved
Nature of returns which employers may be required to furnish to the director and period within which such returns should be made
Procedure for registration and transfer of contracts and notification of the expiry or termination of contracts
Form and manner in which certificates of learning are to be issued by employers
Form and manner in which tests to assess ones skills be conducted
Form of certificate reports and other documentary evidence to be granted by the employer
All or any matter which by this Act are required and permitted

Exemptions

Section 30 pages 24

The director with approval from the council may in the case of a particular contract exempt any person form any provisions of this Act or any rule made in a scheme.

The director with approval of the council may withdraw such exemption.

This Act shall bind the government

It is recommended that each student acquire a copy of the Act for learning purposes.

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