Legal Research

download report

Transcript Legal Research

Harrison Okeche

June 2012

1

Definition

Labour law

refers to a body of legal rules which regulates the relationship between:  an employer and a worker  an employer and workers  employer(s) and trade union representing workers  employers’ organization and trade unions  the state, employers, workers, unions and employer organizations 2

SOURCES OF KENYAN LABOUR LAW

 The labour law consists of a number of legal rules based on:  The Constitution of Kenya  Legislation – law laid down by an organ of the state which has power to do so i.e. Parliament { the laws are in writing and known as statutes or acts}  Judicial precedent – (court decisions) - the previous court judgements constitute precedents that court must follow; only ratio decidendi (reason for judgement) creates precedent  Common law – that is the law which is not legislation and law as was applicable in England in 1 st August 1897.

Custom – though playing limited role it is critical  legal writing- views of legal authors are not binding but persuasive to courts 3

THE KENYAN LABOUR LAW

A large variety of laws (more than 20) dealing with labour

matters. The nine (9) c

ore labour legislation are-

Employment Act, 2007 (replaced Employment Act, Cap 226 and Regulation of Wages and Conditions of Employment Act, Chapter 229)

Labour Relations Act, 2007 (replaced the Trade Unions Act, Chapter 233 and the Trade Disputes Act, Chapter 234)

Work Injury Benefits Act, 2007 (replaced the Workmen’s Compensation Act, Chapter 236 )

4

Core Labour Legislation

Occupational Safety and Health Act, 2007 (replaced the Factories and Other Places of Work

Act, Chapter 514) 

Labour Institutions Act, 2007

National Social Security Fund Act, Chapter 258

National Hospital Insurance Fund Act, Chapter 255

Industrial Training Act, Chapter 237 (Revised 2011)

Retirement Benefits Act

5

Development of the labour law

 Kenya embarked on review of its labour legislation form 2001  New legislation consisting of five pieces of statutes were enacted by parliament in 2007  The new legislation consisted of:      Employment Act,2007 Labour Institutions Act,2007 Labour Relations Act,2007 Work Injury Benefits Act,2007 Occupational Safety and Health Act,2007 6

OBJECTIVES OF LABOUR LAW REVIEW

Domesticate ILO conventions ratified by Kenya in fulfillment of the country’s obligation as a member of the ILO.

Ensure that the eight (8) core ILO conventions are adopted within the new labour laws.

Ensure employment legislation are more user friendly.

Harmonize E. Africa Regional Labour Legislation in readiness for the common market

7

THE CORE ILO CONVENTIONS

ILO CON. 29 – Forced labour ratified on 13 th January 1964

ILO CON. 98 – Freedom of Association and Collective Bargaining 13 th January 1964

ILO CON. 100 – Equal remuneration for work of equal value 7 th May 2001

ILO CON. 105 – Abolition of forced labour 13 th May 2001

8

THE CORE ILO CONVENTIONS

ILO CON 111 – Discrimination in employment 7 th May 2001

ILO CON. 138 – Minimum age of employment 9 th April 1979

ILO CON. 182 – Worst forms of child labour 7 th May 2001

Apart from the above the review exercise incorporated a number of ILO standards and conventions relating to human rights.

9

Overview of the core labour legislation

EMPLOYMENT ACT,2007

 Provides the basic terms applicable to all employment contracts  General principles on ;  prohibition against forced labour  Discrimination in employment  Sexual harassment(20 or more employees)  Employment relationship (nature and types of employment)  Rights of employees and obligations of employers 10

Employment Act 2007

cont ..

 Employment separation(termination, resignation, dismissal, redundancy, retirement, death) and benefits upon termination  Protection of children from worst forms of child labour, minimum age of employment and prosecution for contravention  Insolvency, employment records and employment management  Dispute settlement procedure 11

General provisions of Employment Contract

 Employment contract for a period of three months must be in writing[s 9(1)]  Employer is responsible for drawing the contract and ensuring that the employee signify consent to the contract by signing his name or finger print in the presence of a witness[9(2),(3)]  Employer to explain to employee the terms in a language understood by employee.

12

General provisions of Employment Contract

 Other Terms which may be in the form of statement:  Entitlement to annual leave, public holiday , sick leave , notice period , if fixed term the date of termination of contract. [Sec.10(3) Emp.]  Pension or provident fund where applicable  Collective agreement where applicable 13

General provisions of Employment Contract cont..

 Indication if an employee is expected to work outside Kenya for a period of more than one month and currency of payment, additional payment and terms and conditions on return and while outside the country  The record of the terms must be kept for a minimum of 5 years after termination of employment 14

Fixed term contract

 The fixed term contracts are for specified period of employment or defined work or task.

 It can be for one month or less, two, three months or more.

 Normally used for seasonal employment, project type of work.

 May be terminated on account of misconduct, end of period, by notice or any other lawful reason. 15

   

Casual Employment

Means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for longer period than twenty four hours at a time.

Where casual employee is engaged for continuous period of 1 month or work which can not reasonably be completed in a period amounting to 3 months or more he must be deemed to be on monthly terms.

Is entitled to 1 paid rest day after 6 days continuous work.

Casual employee converted to monthly terms shall enjoy terms and condition of service others after 2 months of engagement.

16

Hours of Work

 Employer to regulate the working hours of each employee  Normal working week to consist of not more than 52 hours a week spread over six days of the week.

 However persons employed on night work may not work for more than 60 hours a week.

 No person under the Age of 16 years may work for more than 6 hours a day.

17

Overtime

 Paid for any time worked in excess of the normal weekly hours at 1.5 times the normal hourly rate.

 For time work on employees rest day or public holiday at 2 times the normal hourly rate.

 Calculated at weekly hours multiplied by 52 weeks divided by 12 months. The resultant monthly hours is divided by the monthly wage to get hourly rate of pay.

18

ANNUAL LEAVE.

 Employee entitled to not less than 21 working days of leave with full pay after every twelve consecutive months service.

 An employee who terminated after completion of 2 or more consecutive months of service in any twelve leave earning period is entitled to pro-rata leave.

 Employer with the consent of an employee may divide the leave to be taken at different intervals provided that one of the parts is for not less than 2 working weeks uninterrupted .

 Any outstanding leave must be taken within 18 months from the end of leave earning period.

19

Maternity Leave

 Female employee entitled to 3 months maternity leave.

 Employee must give notice in writing of at least 7 days or a shorter period to employer as may be reasonable.

 If required by employer an employee shall produce a medical certificate as to her condition to avail the leave from a qualified medical officer or a midwife.

 Employee not to forfeit her annual leave and shall not be disadvantaged on account of maternity leave.

20

PATERNITY LEAVE.

 A male employee entitled to two weeks paternity leave.

21

Sick Leave

 After 2 months’ continuous service with an employer , an employee shall be entitled to maximum 30 days sick leave with full pay and thereafter to a maximum of 15 sick leave days at half pay in each 12 months continuous service.

 Employee must produce certificate of incapacity from a qualified medical practitioner.

 Employee must notify or cause to be notified his employer as soon as reason his absence.

 The 12 consecutive months commence from date of employment and the anniversary thereof. 22

Housing

 Employer obliged to provide reasonable accommodation to employees near place of work or pay sufficient sum as rent in addition to wages.

 Sufficient sum is indicated as 15% of the basic minimum wage of the employee.

 Not applicable where the salary is consolidated.

23

Provision of Water

 Employer obliged to provide sufficient wholesome water at the place of work for use by employees and/ or  within a reasonable distance of housing accommodation provide by the employer.

24

Food

 Where there is agreement to provide food to employee the employer must ensure employee is properly fed is sufficiently supplied with cooking utensils and means of cooking.

 No liability is imposed on the employer to provide when an employee is absent without lawful cause . 25

Medical Attention

 Employer to provide sufficient and proper medicine for its employees during illness and if possible, medical attendance during serious illness.

 Employer to ensure he takes steps to be notified of illness as soon as reasonable practical.

 Not applicable where an employee is absent without lawful cause or excuse, self inflicted illness or injury or medical

Dismissal

 Following reasons may lead to summary dismissal of an employee after the employer has followed proper procedure:-{ S.44}Emp.

 Absenteeism without lawful cause or leave.

 intoxication rendering a worker incapable of performance.

 Willful neglect of duty.

 Use of abusive or insulting language.

27

Dismissal

 Refusal to obey lawful instructions.  Employee arrested for cognizable offence punishable by imprisonment is not within 14 days released.

 Employee commits or on reasonable grounds is suspected to have committed a criminal offence against or to the detriment of his employer or his employers property.

28

UNFAIR GROUNDS OF TERMINATION

 Pregnancy or reasons connected thereto.

 Going on an entitled leave.

 Membership or proposed membership to union.

 Participation in union activities outside working hours or with the permission of employer within working hours.

 Seeking office or becoming an official of a union.

29

Labour Relations Act, 2007

 Provides for freedom of association for both employers and workers, Formation, regulation and dissolution of trade unions and employers organizations and federations  Collection of union dues including agency fees, and subscriptions for employers organizations  Recognition of trade unions and Collective bargaining  Dispute resolution and adjudication through at the parties own level, Ministry of labour , Industrial Court and ADR 30

Labour Relations Act, 2007

cont..

 Strikes and lockouts, including prohibited strikes and lockouts, Essential services (water supply services, hospital services, air traffic control services and civil aviation telecommunication services, fire services of the Government and public institutions, posts authority and local Government authorities, ferry services)  Powers of industrial court to deal with urgent applications

Work Injury Benefits Act, 2007 cont..

 Provides for compensation of all employees for work related injury or occupational diseases  Registration of employers and insurance of all employees against work related injury or occupational diseases, including medical treatment, appliances and travel (recovery of medical expenses prohibited)  Compensation of employees for occupational accidents or diseases resulting in disablement or death 32

Work Injury Benefits Act, 2007 cont..

 Denial of compensation in the case of  injury due to deliberate and willful misconduct(unless injury is serious-more than 40% disability or death)  employee willfully fails to disclose a medical condition that aggravates injury or disease, Employee fails to present himself for medical treatment 33

Work Injury Benefits Act, 2007 cont..

 Employee not to be denied compensation by threats  Compensation not to be alienated, Maximum compensation based on 96 months earnings  Temporary disability up to 12 months  Payment of compensation to Director within 90days from date of assessment and to injured employee or dependants within 30 days.

34

Occupational Safety and Health Act, 2007

 Applies in any place where a person is at work  Purpose of the Act is to:  Secure the safety, health and welfare of persons at work  Protect persons other than persons at work from risks risks arising out of the activities of persons at work  Provides for duties of occupiers (who include employers) workers, self employed people, suppliers, designers, importers, manufacturers  Special provisions for health and welfare of workers, machinery, chemical and safety, 35

Labour Institutions Act, 2007

 Provides for the creation and management of all institutions dealing with labour including  The National Labour Board  Industrial Court  Committee of Inquiry  Appointment of Commissioner for Labour, Director of Employment, Registrar and Deputy Registrars of Industrial Court and Registrar of Trade Unions  Wages Councils and wages orders  Employment Agencies 36

National Social Security Fund Act (cap 258)

Establishes the NSSF a compulsory contributory social security scheme

Provides:

Age benefits

Withdrawal benefits

Invalidity benefits

Survivors’ benefits

Emigration grants

37

National Hospital Insurance Fund Act (cap 255)

Establishes the NHIF, an insurance fund which:

Caters for medical insurance

Pays for expenses incurred by a contributor, and his or her spouse and dependant children

38

Thank you

39