RELEVANT LABOUR LEGISLATION IN KENYA
PUBLIC HEALTH CAP 242
This Act was first established in 1921. It is an Act of parliament established to safeguard on pubic health. It makes provisions for securing and maintaining health.
Its divided into two:
i) Principal legislation
ii) Subsidiary legislation
i) Principal legislation
a) Notification of infections diseases (Part III)
This provision in the Act requires that all patients of infectious diseases be reported to the nearest medical officer. Examples of infectious diseases include cholera, typhoid, small pox, tuberculosis, whooping cough, plague and sleeping sickness.
b) Prevention and suppression of infectious diseases (Part IV)
This part of the Act empowers the medical officer to inspect infected premises and examine persons suspected from suffering an infectious disease.
c) Venereal diseases
Employers who continue to employ employees/persons suffering from any venereal diseases in a communicable form are guilty of an offense especially if these persons take care of children or handle any food utensils.
d) Sanitation and Housing
– It prohibits the use existence of nuisance in the premises. It also provides for health authorities to maintain cleanliness and nuisance.
– It also provides for health authorities to prevent any danger to health from unsuitable dwellings.
e) Protection of foodstuffs
– It provides for construction and regulation of buildings used for storage of foodstuffs to be approved by the medical officer of health.
f) Public water supplies, meat, milk and other articles of food
– Provides for protection of water supplies against any pollution dangerous to health.
– It sets rules for protection of food and provides powers o municipalities to inspect milk.
ii) Subsidiary Legislation
– These are laws which came later after 1921 through orders, reviews.
– Section 36 of the Act provides for public health rules for sleeping sickness, tsetsefly areas, rats and mice destruction rules and rats viruses.
– Section 73 provides rules for ports, airports and shipping health.
– Section 126 provides rules for drainage of latrines. This section provides for the following:
Construction of drains
Construction of soil pipes
Construction of water closets and urinals
Licensing of plumbers
– Section 134 provides for rules in manufacturing, preparation, packing and re-packing of food stuffs.
In addition, it provides for meat inspection and importation of meat.
THE EMPLOYMENT ACT CAP 226
The employment Act cap 226 is divided into 6 parts:
i) Preliminary – part 1
ii) Conditions of employment – part 2
iii) Foreign contracts of services – part 3
iv) Employment of women and juveniles – part 4
v) General – part 5
vi) Supplementary – part 6
PART 1 – PRELIMINARY
This Act may be acted as the Employment Act. The provisions of this Act shall not apply to
a) The armed forces or the reserve as respectively defined in the Armed Forces Act.
b) The Kenya Police, The Kenya Prisons Service or the Administration Police Force.
c) The National Youth Service
d) Such persons or class of persons, such trade to industry, or such public body, as the minister may, by order, exempt from all or any of those provisions of this Act. But subject to the foregoing shall be binding to the Government.
Labour Advisory Board
– There shall be a Labour Advisory Board whose duty it shall be to advise the Minister upon such matters connected with employment and labour, and answer any question referred to it by the minister.
– The members of the Board shall be appointed by the Minister. Out of the members, the Minister shall appoint a chairman and an officer of the labour department to be the Secretary.
– The following provisions shall have effect with respect to the constitution and proceedings of the Board:
a) The Minister may at any time cancel the appointment of a member of the Board. Unless his appointment is so cancelled, each member of the Board shall hold office for three years.
b) If the chairman of the Board ceases to be a member of the Board, he shall also cease to be the Chairman of the Board.
c) There shall be paid out of moneys provided by Parliament to the members of the Board, including the chairman, in respect of their office as such, and other reasonable allowances in respect of expenses
Questions for Review
1. Explain the provision of the Public Health Act Cap 242 which are relevant to occupational health in organizations.
2. Explain the provisions of the Public Health Act Cap 242 which are applicable/relevant to a hotel business.
properly incurred in the performance of their duties as may be determined by the Minister with the consent of Minister for the time being responsible for finance.
ii) PART II – CONDITIONS OF EMPLOYMENT
1) Protection of Wages
Subject to this Act, the entire amount of the wages earned by or payable to an employee in respect of work done by him in pursuance of a contract of service shall be paid to him directly in the currency of Kenya.
– If an employee requests in writing incase of an agreement made between a trade union and an employer, payment may be made:
a) Into an account at a bank to building society, in his name whether alone or jointly with any other individual.
b) By cheques, postal order or money order
c) In the absence of an employee, to a person other than the employee, if the person is duly authorized by him writing to receive the wages on his behalf.
d) Payment of wages shall be made on a working day and during working hours, at or near to the place of employment or at such other place as may be agreed to between the employer and the employee.
e) Payment of wages shall not be made in any place wherein intoxicating liquor is sold or readily available for supply, except in the case of employees employment to work therein.
– When wages are due – an employee shall be entitled:
a) When a task has not been completed, at the option of his employer to be paid by his employer at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day.
b) In the case of casual employee, at the end of the day.
c) In the case of an employee employed for a period of more than a day but not exceeding month, at the end of that period.
d) In the case of an employee employed for a period exceeding one month, at the end of each month.
e) In the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of such period, whichever date is the earlier, and on the completion of the journey respectively.
f) Where an employee is summarily dismissed for lawful cause, he shall be paid on dismissal all moneys, allowances and benefits due to him up to the date of his dismissal.
2. Deductions from Wages
– An employer may deduct from the wages of his employee:
a) Any amount due from the employee as a contribution to any provident or superannuation scheme or any other scheme approved by the labour commissioner to which an employee has agreed to contribute.
b) A reasonable amount for any damage done to or loss of, any property lawfully in the possession or custody of the employer occasioned by the willful default of the employee.
c) Any amount paid to the employee in error as wages in excess amount of wages due to him.
d) Any amount the deduction of which is authorized by any written law for the time being in force
e) Any amount in which the employer has no beneficial interest, whether direct or indirect.
3. Leave, Housing, Health and Welfare
Every employee shall be entitled:
a) After every 12 consecutive months of service with his employer to not less than twenty-one working days of leave with full pay.
b) Where employment is terminated after the completion of two or more consecutive months of service during any twelve months, leave earning period, to not less than one and three
quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.
– A woman employee shall be entitled to two months maternity leave with full pay. Provided that a woman has taken two months maternity leave shall forfeit her annual leave in that year.
– The leave referred to in subsection 1 shall be additional to all public holidays, weekly rest days and any sick leave, whether fixed by law or agreement, in respect of which as employee is not required to work.
– Every employee shall be entitled to at lest one rest day in every period of 7 days.
– Every employer shall at all times, at his own expense provide reasonable housing accommodation for each of his employees either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, in addition to his wages or salary, as reasonable accommodation.
– Every employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment.
– Every employer shall, where provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that every employee is properly fed and supplied with sufficient proper cooking utensils and means of cooking at the employer’s expense.
4. Summary Dismissal
– Any of the following constitute justifiable or lawful grounds for the dismissal:
a) If, without leave or other lawful cause, an employee absents himself from the place of proper and appointed for the performance of his work.
b) If an employee becomes intoxicated during working hours and renders himself unwilling to perform his work.
c) If an employee uses abusive or uses insulting language or behaves in a manner insulting to his employer or to a person placed in authority over him by his employer.
d) If an employee knowingly fails or refuses to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.
5. Certificate of Service
Every employee shall be given a certificate of service by his employer upon the termination of his employment, unless the employment has continued for a period less than four consecutive weeks.
iii) PART III – FOREIGN CONTRACTS
– This part shall apply in respect of every foreign contract of service, that is to say, a contract of service made within Kenya and to be performed in all or part outside Kenya.
– Every contract of service with a foreign state, except a contract for service entered into with or by behalf of the Government.
– A foreign contract of service shall not be attested unless the labour officer is satisfied:
a) that the employee’s consent on the contract has been obtained
b) that the contract is in a prescribed form
c) that the employee is medically fit for the performance of his duties under the contract
iv) PART IV – EMPLOYMENT OF WOMEN AND JUVENILES
– No person shall employ a child whether gainfully or otherwise, in an industrial undertaking. The provisions of this section shall not apply to the employment of a child in an industrial undertaking under a deed of apprenticeship or indentured learnership lawfully entered into under the provisions of the industrial training Act.
– Subject to sect 29, no woman or juvenile shall be employed between the hours of 6.30 pm and 6.30 am in an industrial undertaking.
– Expect in the following situations:
Women may be so employed in cases where their work is concerned with raw materials, or materials in the course of treatment.
Women holding responsible positions of a managerial or engaged in health and welfare services
– No female shall be employed on underground work in a mine except in the following circumstances:
A woman holding a position of management who does not perform manual works.
A woman engaged in health or welfare services
A woman who in the course for her studies spends a period of training in the underground parts of a mine
– Every employer who employs any Juvenile shall keep and maintain a register containing the following particulars of every Juvenile employed:
Age or date of birth
Date of entry into and of learning the employment
Such other particulars a may be prescribed
v) PART V – GENERAL
– Every employer shall keep a written record of all employees employed by him with whom he has entered into contracts under this Act.
– This shall contain such particulars as may be prescribed and the employer shall permit the record to be examined by an authorized officer who may require an employer to produce for inspection that record for any period relating to the preceding twelve months.
– Subject to section 77 of the Constitution, whenever a complaint is made under subsection (1) of this section:
a) To a Labour Officer, he shall use his best endeavours, by the taking of such lawful steps as may seen to him to be expedient, to affect a settlement between the parties.
b) To a Magistrate, he shall have the jurisdiction in all cases arising in his area of jurisdiction to exercise any of the following powers:
i) He may adjust and set off one against the other all the claims on the part of either of the employer or of the employee arising out of or incidental to, the relation between them as the magistrate may find to be subsisting, whether claims are liquidated or unliquidated, and are for wages, damages or otherwise, and he may direct the payment of such sum as he find due by one party to the other party.
ii) He may assess the amount of compensation due to an employer for the loss or damage to his property occasioned by the wrongful act or neglect of his employee.
iii) He may decide the relative rights of the employer and employee, and may make such directions as in his opinion meets the justice of the case.
vi) PART VI – SUPPLEMENTARY
– Every authorized officer shall be furnished by the Labour Commissioner with a certificate of his appointment.
– With the issuance and production of the certificate to the employer the Labour Officer has the following duties:
i) Enter, inspect and examine all reasonable times by day and night any land or building or other structure whether permanent or temporary on or in which he has reasonable ground for believing that an employee is living, residing or employed and may make such inquiries and inspection or examination as may be necessary to enable him to determine whether the provisions of this Act are being compiled with.
ii) At all reasonable times require an employer to produce an employee employed by him and a document relating to the employment of any employee and may require an employee to produce any document elating to his employment.
iii) Examine and take copies of a register, record, book or other document relating or appearing to relate to employment, whether
produced to him or not, and take possession of that register, record, book or other ground for believing to be or to contain evidence of an offence under this Act.
iv) Enter, inspect and examine all latrines and other sanitary arrangements or water supply.
v) Order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition.
POWERS OF MEDICAL OFFICER
– A medical offer may for the purposes of this Act exercise the powers conferred upon an authorized offer by paragraphs (a) to (f) inclusive of section 50, and may in addition do all or any of the following:
a) Order an employee ho, in his opinion, is sick and for whom the conditions prevailing at the place of employment are not conduciveness to the rapid recovery of his health or strength to return to the place of his engagement, or to proceed to a hospital, an din that case the employer shall at the earliest opportunity and at his own place of his engagement.
b) Condemn any food provided for employee which, in his opinion, is unfit for human consumption, and all food so condemned shall be destroyed forthwith in the presence of a medical officer.
c) Order at the expense of the employer such variety of food for an employee as he may deem necessary
– Any person who willfully obstructs or hinder an authorized offer or medical officer in the exercise of any power conferred by this Act or any rules made thereunder shall be guilty of an offence and liable to a fine not exceeding 4,000/= or imprisonment for a term not exceeding 6 months or both.
THE POWERS OF THE MINISTER
– The Minister, after consultation with the Board, may make rule providing for all or any of the purposes, whether general may in additional perform the following:
a) Prescribing anything which under this Act is to be or may be prescribed.
b) Regulating the case of sick and injured employee
c) Controlling the conditions under which employees may be housed to employed, including sanitary arrangements and water supply.
d) Controlling the feeding of employees in cases where food is to be supplied by the employer under the contract of service, including the quantity, variety and kind of food to be supplied.
e) Appointing labour supervisors where employees exceed the maximum prescribed.
f) The registration and employment of casual employees.
g) Prescribing particulars to be included in a certificate of services
h) Prescribing the age below which children are not to be employed
i) Requiring employers of children to furnish information and returns to any specified officer in respect of such children or their employment or the conditions of their employment.
REGULATIONS OF WAGES AND CONDITIONS OF EMPLOYMENT ACT CAP 229
– This Act is an act of Parliament which provides for establishment of:
i) Wages advisory boards
ii) Wages councils
– These two are put in place to regulate remunerations and other conditions of employment.
Definition of terms:
Statutory minimum remuneration – these are fixed by the wages regulation order.
A wages council order – is an order made under sub-section 1 of section 7 which establishes a wages council
Wages regulations order applies to: Employers by or under the government except for: armed forces, policies, youth service, persons in the employment of UK.
How to appoint a wages advisory boards?
– Advises Minister on matters related to employment.
– The Minister may appoint a general wages advisory board and agricultural wages council.
Functions of General Wages Advisory Board?
– Makes inquiry and recommendation specifying the basic minimum wage which should be paid to employees coming within the terms of reference.
– Recommendations for the regulation of wages and other conditions of employment of all or any such employees in the industry
– A recommendation or proposal made by the board is deemed to be a wages regulation proposal
Functions of Agriculture Wages Advisory Board and Area Agriculture Wages Committees:
– The board inquires and submits a report containing the following: –
A recommendation specifying the basic minimum wage which should be paid to employee who fall under the terms of reference
The report must contain proposals for the regulation of wages and other conditions of employment of all or any of such employees
A recommendation that a wages council be established in respect of such employees
The minister may also appoint such area agricultural wages committee as he considers necessary to assist the board to inquire into any matters referred to it. Establishment of wages council
The minister in pursuance of a recommendation by the General Wages Advisory Board made under section 6 (2) if he is of the opinion that no adequate machinery exists for the affective regulation of the remuneration or other conditions of employment of the
employees in any trade industry or occupation, may by order establish a wages council.
Establishment of wages council
– According to sect 8 of this Act, before mailing a wages council. Order, the minister has to publish in the gazette twice within an interval of at least 7 days but more than 14 days between each publication in newspaper published and circulated in Kenya.
– A notice of his intention to make such order, specifying the place where copies of draft thereof may be inspired and a time which shall not be less than 30 days from the 1st date of such publication within which any objection of such draft order shall be sent to the minister.
– The minister might amend such objections. Its then published in the
Abolition of wages council or variation
– The minister can decide to abolish the wages council or he may also vary the limits of its jurisdiction
Constitution, offers and proceedings of wages council
– A wages council shall consist of such number of members representing employers and such number of members representing employees as the minister directs
– The number of independent members representing employers and such number of members representing employees as the minister directs
– The number of independent members shall be an odd number
– The number of members representing employers shall be the same as the number of members representing employees
– The minister shall appoint the peruses to be members of a wage council, and shall appoint one of the independent members to be chairman of the wages council and another of the independent members to be deputy chairman to act in the absence of the chairman from any meeting
– Before making any appointment of persons representing employers or employee to be members of a wages council, the minister shall consult any organization appearing to him adequately to represent employers or as the case may be employees concerned
– The minister may appoint a secretary and such other officers as he thinks fit of a wages council
– A wages council may delegate any of its powers under this Act (except the power to submit wages regulation proposals) to a committee or as the case may be subcommittee consisting of such number of persons being members of the council as the council thinks fit
– The term for which a member of a wages council shall hold office shall be three years.
Contents of the wages regulation proposal or order
i) Minimum wage
ii) Minimum house allowance payable in addition to basic wage 15% of the basic
iii) A provision for the amendment of the same order/proposals
iv) No. of hours
Meaning of remuneration
– Refers to the amount paid or to be paid to the employee by the employer in cash clear of any deductions expect authorized deductions (lawful deductions)for example
a) For the purpose of contribution to any provident fund or superannuating scheme
b) In respect of actions supplied to an employee which an employer is charged to provide
c) Under any provision where law provides that the employer deducts NSSF, NHIF, PAY, cooperatives
d) At the request in writing by the employee for any purpose for which the employer has no benefit
e) Ina situation where there’s no council order, the general wages order is assumed to be in effect. Failure to comply is an offence. If an employer fails to pay an employee to whom a wages regulation order remuneration less than the statutory minimum or fails to provide the employment prescribed in that order, he shall be guilty of an offence and liable to a fine not exceeding 400 shillings.
f) In case of underpayment the employer can pay the arrears.
Powers of officers to institute proceedings
– A labour officer / inspector may on behalf of an employee sue the employer and recover the arrears.
– Employers are not supposed to receive any premiums f
i) tworkers kept by an employer or other persons giving out work to outworkers
ii) To examine, either alone, or in presence of any other person the wages of employee and there after sign a declaration of the truth of the matters n respect of which he is so examined
LEGISLATION GOVERNING HEALTH AND SAFETY ISSUES
WORKMEN’S COMPENSATION ACT (CAP 236)
It has been in force in Kenya since 1949.
Objectives of Workman’s compensation Act:
i) to provide for compensation for loss of caring capacity suffered by workmen injured or who meet death in accident arising out of an in he course of employment.
ii) Provides for payment by the employer of medical expenses of the employee.
iii) Any employee who contracts or dies as a result of contracting any of certain occupational diseases is also entitled to compensation.
– Refers to any person who has entered into or works under a contract of service, apprenticeship or learnership with employer.
– Classes of employees examined from the definition of workman non-manual labour workers whose
Accident
– Denotes an unlooked for mishap or an unexpected event which not designed or desired by the injured workman.
Entitlement to compensation
a) He must have been doing what he’s employed to do.
b) The accident must have taken place when the person was in actual discharge of his duties not before start of or after cessation of employment
c) The injury caused permanent disability or death to the workman or temporarily disable him for at lest three consecutive days form earning full wages from the work at which he was employed.
d) Negligence on the part of the employee doesn’t disentitle him to compensation but serious and willful misconduct may, depending on the nature of the injury to preclude payment.
e) The onus of proof of serious and willful misconduct rests with the employer.
Action to be taken after an accident
a) Immediately an accident occurs the law requires that a report if the accident is made to the labour officer of the area or to the District Commissioner (where there’s no labour officer)
b) Any workmen who suspects that the employer hasn’t made such a report should immediately report the matter directly to the appropriate authority.
Compensation
– Compensation takes the form of monetary payment for which the employer is liable and is paid in respect of one or more of the following heads:
i) Temporary incapacity
ii) Permanent incapacity
iii) Death
iv) Injury to health
– Assessed by the Labour Officer to whom the accident was reported.
– The amount is normally the periodical payment of not less than half of the workmen’s basic wage at the time of the accident covering the period of temporary disablement as certified by the doctor treating the injured workmen subject to a maximum of 96 months
– These periodical payments cease to be payable as soon as final award of permanent disability (if any) has been made.
Compensation for permanent incapacity
Compensation for permanent incapacity falls under two headings:
a) Partial incapacity and total incapacity
b) The workman must have suffered partial loss of his earnings capacity as a result of the loss of a part of the use of a part of the body thus decreasing his ability to earn full wages.
c) Permanent partial incapacity is expressed by the doctor treating the workman in percentage and may at least range from 1% to 99%
d) Compensation in respect of permanent partial incapacity is assessed as percentage of 60 months earnings being percentage specified by the medical practitioner as the disability suffered by the workman subject to a minimum of Kshs 35,000 and a maximum of Kshs 240,000
Compensation for Permanent total incapacity
– In fatal cases, a lump sum of 60 months earnings subject to a maximum of Kshs 240,000 payable where the deceased leaves a person o persons wholly, or partially dependent upon his earnings at the time of his death.
– The amount payable is distributed , between the surviving dependants in accordance with the respective degree to which they were dependent upon the deceased
– A widow who remarries before payment of compensation is still entitled to her share
– Where the dead man leaves behind no dependants reasonable expenses of the burial of the deceased workman subject to a maximum of Kshs 500 is payable by the employer.
Compensation for injury or health
– If a workmen is certified by a doctor to be suffering from a scheduled occupational disease occasioning his disablement or death and if such disease is proved to have been caused by the nature of the workman having contracted the disease within 24 months previous to the date of which disablement or death. Compensation shall be payable in the same manner as if the disablement or death were caused by an accident.
Medical
Medical Aid – Employer is liable to pay reasonable expenses incurred by a workman as a result of an accident which would entitle the workman to compensation.
These include:-
i) Expenses in respect of medical surgical and hospital treatment, nursing services and supply of medicines subject to a maximum of Kshs6,000/=
ii) Expenses in respect of transportation of the injured workman to and from the place where treatment is available subject to a maximum of Kshs1,000/=
NB: Workman compensation cannot be assigned or attached and no claim shall be made upon such payment.
