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:

Principal legislation
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:

Preliminary – part 1
Conditions of employment – part 2
Foreign contracts of services – part 3
Employment of women and juveniles – part 4
General – part 5
Supplementary – part 6

Part 1 – Preliminary

This Act may be acted as the Employment Act. The provisions of this Act shall not apply to:

The armed forces or the reserve as respectively defined in the Armed Forces Act.
The Kenya Police,
The Kenya Prisons Service or the Administration Police Force.
The National Youth Service
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:

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.
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.
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 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

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:
Into an account at a bank to building society, in his name whether alone or jointly with any other individual.
By cheques, postal order or money order
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.
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.
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:

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.
In the case of casual employee, at the end of the day.
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.
In the case of an employee employed for a period exceeding one month, at the end of each month.
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.
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.

Deductions from Wages

An employer may deduct from the wages of his employee:

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.
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.
Any amount paid to the employee in error as wages in excess amount of wages due to him.
Any amount the deduction of which is authorized by any written law for the time being in force
Any amount in which the employer has no beneficial interest, whether direct or indirect.

Leave, Housing, Health and Welfare

Every employee shall be entitled:

After every 12 consecutive months of service with his employer to not less than twenty-one working days of leave with full pay.
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.
Summary Dismissal

Any of the following constitute justifiable or lawful grounds for the dismissal:

If, without leave or other lawful cause, an employee absents himself from the place of proper and appointed for the performance of his work.
If an employee becomes intoxicated during working hours and renders himself unwilling to perform his work.
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.
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.

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:

That the employee’s consent on the contract has been obtained
That the contract is in a prescribed form
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:

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.
To a Magistrate, he shall have the jurisdiction in all cases arising in his area of jurisdiction to exercise any of the following powers:

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.
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.
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:
- 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.
- 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.
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.
Enter, inspect and examine all latrines and other sanitary arrangements or water supply.
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:

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.
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.
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:

Prescribing anything which under this Act is to be or may be prescribed.
Regulating the case of sick and injured employee
Controlling the conditions under which employees may be housed to employed, including sanitary arrangements and water supply.
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.
Appointing labour supervisors where employees exceed the maximum prescribed.
The registration and employment of casual employees.
Prescribing particulars to be included in a certificate of services
Prescribing the age below which children are not to be employed
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:

Wages advisory boards
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

Minimum wage
Minimum house allowance payable in addition to basic wage 15% of the basic
A provision for the amendment of the same order/proposals 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

For the purpose of contribution to any provident fund or superannuating scheme
In respect of actions supplied to an employee which an employer is charged to provide
Under any provision where law provides that the employer deducts NSSF, NHIF, PAY, cooperatives
At the request in writing by the employee for any purpose for which the employer has no benefit
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.
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 of workers kept by an employer or other persons giving out work to outworkers
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:

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.
Provides for payment by the employer of medical expenses of the employee.

Any employee who contracts or dies as a result of contracting any of certain occupational diseases is also entitled to compensation.

Workman

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

He must have been doing what he’s employed to do.
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
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.
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.
The onus of proof of serious and willful misconduct rests with the employer.

Action to be taken after an accident

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)
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:

Temporary incapacity
Permanent incapacity
Death
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:

Partial incapacity and total incapacity
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.

Permanent partial incapacity is expressed by the doctor treating the workman in percentage and may at least range from 1% to 99%

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:

Expenses in respect of medical surgical and hospital treatment, nursing services and supply of medicines subject to a maximum of Kshs6,000/=
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.

Trade Unions Act

Trade Union defined as per Cap 233 of the Laws of Kenya, it means an combination whether temporary or permanent of more than six persons and must be registered by the registrar of trade unions.

Employees Association: means an association or combination, whether temporary or permanent, of more than six employees who work for the same employer, which has as its principal purpose the regulation of relations between such employees and their employer or between such employees amongst employees.

Employees organization: means an association or combination, whether temporary or permanent of more than six employees who work for different employers, which has as its principal purpose the regulation of relations between such employees and their employers or between such employees and their employers or between such employees amongst themselves.

Staff Association: means an association or combination of more than 6 employees employed in a civilian capacity under the government or local authority and the principal object of which is regulations of relations of employees or government or local authority.

NB: It is worth noting that only requested trade unions can bargain/negotiate for wages.

Appointment of Registrar and other officers

The Minister shall appoint a Registrar of Trade Unions, who shall be responsible for the due performance of the duties and functions assigned to him as Register under this Act.
The Minister may also appoint a Deputy Registrar of Trade Unions and one or more Assistant Registrars of Trade Unions and such other officers as may from time to time be required for the purposes of this Act. Section 7 of Cap 233 says that no suit shall be brought against any of the officers for anything done to omitted to be done by him in good faith and without negligence.
The trade union registration is to be done within 28 days. Any trade union which fails to register within 28 days can be fined 5000 or jailed.

Registration

Every application for registration shall be made to the Registrar in the prescribed form, and shall be signed by at least seven members of the union.
In case of association of trade unions, the prescribed form shall be signed by the chairman and general secretary of each of the member trade unions.
Every application for registration shall be accompanied by the prescribed fee and a copy of the rules of the unions and statement of the following particulars namely:

The names, occupations and addresses of members making the application (or in case of an association of trade unions)
The names and addresses of the registered office of each members trade union

The name of the union and the address of its registered office

Titles, names, ages, addresses and occupations of the officers of the union.
When it was cancelled/suspended
Date of registration or dissolution

Reasons for Registration of a Trade Union:

The Registrar may refuse to register a trade union and defer its registration and notify it accordingly.
Upon that deferment the trade union shall become a probationary trade union
After the expiration of 3 months and before the expiration of 12 months from the date of deferment of registration of a trade union under section 11, the registrar, either in the application of the probationary trade union of his own motion, shall if satisfied that none of the grounds on which, under section 16, registration may be refused exists, register the probationary trade union as a trade union in the manner prescribed.
The Registrar, on registering a trade union under section 11 or section 12, shall issue to the union a certificate of registration in the prescribed form, and that certificate, unless proved to have been cancelled or withdrawn, shall be conclusive evidence for all purposes that this trade union has been duly registered under this Act.
The Registrar may call for further information for the purpose of satisfying himself that any application complies with the provisions of section 10 or that the trade union is entitled to registration under this Act.
The Registrar has the power to alter the name of a trade union – if the name proposed to be registered is identical with that by which any other existing trade union has been registered.
Or if in the opinion of the Registrar the name proposed resembles or may mislead the members of the Public the Registrar may alter the name proposed for the trade union.

The Registrar may refuse to register any trade union or probationary trade union if he is satisfied that:

The union has not complied with the provisions of this Act or any regulations made thereunder or
Any of the objects of the constitution of the union is unlawful or conflicts with any such provision or
The union is used for unlawful purposes
Any other trade union already registered is;
- In the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration
- In the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof.
The principal purpose of the trade union registration are not in accord with those set out in the definition of trade union” contained in section 2
The trade union (not being an association of trade union) seeking registration is an organization consisting of persons engaged in or working at more than one trade or calling and that its constitution does not contain suitable provision for the protection and promotion of their respective sectional industrial interests
The funds of the union are being applied unlawful
The accounts of the union are not being properly kept
The secretary or treasurer of the union is in his opinion incapable by reason of not being sufficiently literate in English or Swahili language of carrying out adequately the duties of secretary or treasurer.

Cancellation of registration of a trade union

The registration and the certificate of registration of a registered trade union may be cancelled by the registrar

At the request of the trade union upon its dissolution, to be verified in such manner as the registrar may require

If he is satisfied that the trade union has ceased to exist

The registration and the certificate of registration of a registered trade union may be cancelled or suspended by the registrar if he is satisfied:

That the registration was obtained by fraud, misrepresentation or mistake
That the objects of the trade union is unlawful
That the constitution of the trade union or of its executive is unlawful
That the trade union is being used for unlawful purpose
That the trade union has willfully and after notice from the registrar contravened any provisions of Act or any regulations made there under or any les of the trade union
That the funds of the trade union are expended in an unlawful manner or on an unlawful object or on an object not authorized by this Act and any regulations made there under
The accounts of the union are not being properly kept

The secretary or treasurer of the union is in his opinion incapable by reason of not being sufficiently literate in the English or Swahili language of carrying out adequately the duties of secretary or treasurer as the case may be

When the registrar refuses to register a trade union he shall notify the applicants in writing of the grounds of that refusal and the following shall appear:
- If a trade union before it became a trade union or applied for registration as trade union was a staff association employees association or employees organization it may within one month notification by the registrar or if an appeal is taken under section 18 within one month from the dismissal of the appeal elect to revert to its former status as such association or organization and in default of such election within the time aforesaid, it shall be dissolved
- If the trade union before it became a trade union or applied for registration as a trade union was not such an association or organization as aforesaid the trade union shall be dissolved within one month of the notification by the registrar if an appeal is taken as aforesaid and dismissed within one month of dismissal of the appeal

It is therefore liable to an offense if officials of trade unions continue to operate even after dismissal or dissolution. They are liable to a fine not exceeding 5000 shillings or an imprisonment of not less than 5 months

Registration of branches of trade unions

Application for registration of a branch of a trade union shall be made by the secretary of the trade union concerned within 28 days form the date of its formation and shall be signed by the secretary

It shall be accompanied by the prescribed fee (if any) and shall contain the following particulars:

The name of the union concerned, the name of the branch, the postal address of the branch office or of the place of meeting for carrying out the business of the branch
The titles, names, ages, addresses and occupations of all the officers of the branch

Whenever any branch of a trade union is dissolved, notice of dissolution shall be given by the secretary of the union concerned to the registrar who shall subject to subsection (3) and subsection (4) there upon cancel the registration of that branch

Before registering a branch of a trade union or canceling the registration of a branch of a trade union, the registrar may require the production of a such evidence relating to the formation or dissolution of the branch as the deems necessary

If after such inquiry as he deems necessary, the registrar is not satisfied as to the validity or propriety of the purported formation or dissolution of a branch of a trade union, he may refer the matter to a Trade Union Tribunal composed of one or more independent persons appointed by the minister and that Tribunal shall inquire into the matter and make it’s recommendation thereon to the Registrar who shall thereupon register or refuse to register the branch or cancel the registration of the branch as the case may be in accordance with such recommendations

In case of an appeal the branches should do so within one month of the date of refusal or cancellation

Rights and liabilities

Once a trade union has been registered, it enjoys certain rights, immunities and privileges

i) Right to inspect the books of Trade Union.

According to Sect 48 Cap 233 it provides that the accounts books and list of members of registered trade union shall be opened for inspection by an officer or members of the trade union

ii) Immunity from civil suit in certain cases (Section 23 Cap 233):

No suit or legal proceedings is maintainable in any civil court against any registered trade union in respect of any act done in contemplation or in furtherance of trade dispute to which a member of the trade union is a party on the ground only that the act induces some other persons to break a contract of business or the act interferes with the rights of some persons or other persons to dispose of its capital or labour as he will.

iii) Liability in tort

A suit against a registered trade union or against any member or officer thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any court

iv) Liability in contract

Every trade union shall be liable on any contract entered into by it or by an agent acting on its behalf. The Act provides that no office bearer or members of a registered trade union will be liable if the following conditions are fulfilled:

Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such union shall or shall not sell their goods, transact business, employ or be employed
Any agreement for the payment by any person of any subscription or penalty to a trade union
Any agreement for the application of the funds of a trade union
- To provide benefits to members
- To furnish contributions to any employer or employee not a member of such trade union, in consideration of such employer or employee acting in conformity with the rules or resolution of such trade union
Any agreement made between one trade union and another
Any bond to secure the performance of any of the agreements referred to in paragraphs (a) to (d)
Objects in restraint of trade not unlawful. The objects of a registered trade union shall not by reason only that they are in restraint of trade
- Be deemed to be unlawful so as to render any member of the trade union liable to criminal prosecution for conspiracy
- Be unlawful so as to render void or voidable any agreement or trust
- Trust to amalgamate
- Right to own property
- Rights of minors to be member
- Immunity from trade union conspiracy

Overall Health and Safety Legislation

Health and Safety

Health and safety programmes

This is concerned with programmes for protecting employees and other people by what the company procedures does against hazards arising to of their employment

Types of programmes

Occupational Health Programme – these relate more to working environment than the system of work
Safety programmes – are concerned with prevention of employees against accidents and minimizes the resulting loss and damage to persons and property

Elements of a health and safety programme

Analysis of health and safety performance
Health and safety policy
Health and safety organization
Health and safety arrangements
Evaluating safety performance

i) Health and safety performance

Health and safety performance programmes must be based on an analysis of the facts about the organization of health and safety as it exists and concerning the procedures and results obtained

The facts should be analyzed under the following headings:

Policies
Organization
Systems and procedures

ii) Occupational Health and Safety Policies

Written H and S polices are required to demonstrate that top management is concerned about the protection of the organization employees form hazards at work and to indicate how the protection will be provided

The policy statement should consist of three parts.

General policy statement (GPS): The GPS should be a declaration of the intention of the employer to safe guard the Health safety of employees
Description of the organization of Health and Safety
Details of arrangements of implementing policy

Role of management

To develop Health and Safety procedure / policy with the help of medical and safety advisors
To advise on policies and see that they are carried out. In large organization there should be a specialized Health and Safety advisor. Smaller companies should allocate responsibility to a suitable line manager who should be given special training in his duties
Top management must make department mangers accountable for H and S matters in their areas.

Role of team leaders (Supervisors and Line managers)

Team leaders are n immediate control and therefore should keep a watch on unsafe practices and conditions
They must also emphasize the accountability for H and S and must take priority over output and cost considerations.

Role of medical advisors

Medical advisors have two functions:

Preventive
Clinical

The preventive function is concerned with occupational health matters while the clinical function deals with industrial injuries and diseases and advice on the necessary steps to recover for injury or disease arising from works

Role of the safety committee

Are concerned with the renewing of safe practices and conditions and making suggestions on improving health and safety performance.

Role of safety advisors (managers)

To advice on H and S policy and procedures
Advice on aspects of design and operation
Advice on the use of safety equipment and protective clothing
Conduct H and S investigations into causes of accidents
Maintain H and S records or statistics

Role of employees

House keeping
Reporting of accidents
Getting engaged in better working practice

Health and safety hazards

A hazard is a risk that is likely to cause danger
Occupational Health hazards will include risks affecting employees and others who are affected by what the company does (e.g. neighbors, costumers)
Safety hazards will include risks as a result of work practice in the organization

Identify Health and Safety Hazards

Heat/cold
Stress/fatigue
Noise/vibration
Lightning
Blindness
Fire explosions

Health and Safety Arrangements

Can be divided into two:

Occupational Heath Programmes
Accidents prevention programme

i) Occupational Health Programmes

The effective management of health people at work provides a major contribution to improving performance and gaining competition advantage

The control of occupational health and hygiene problems can be achieved by:

Eliminating the hazard at source by means of design and process engineering
Isolate hazardous processes and substances so that others cannot come into contact with them
Changing the process or substance used to promote better protection
By training workers to avoid risks

ii) Accident prevention programmes

Accidents are mishaps that are unexpected and do happen in the course of our working life.

Types of accidents

Minor accidents – not serious and requires 1-3 days of duty
Loss time accidents – more than 3 days off and requires compensation
Fatal accidents – one becomes incapable of going back to work. It could lead to death or permanent injuries.

Underlying causes of accidents

The immediate cause may be carelessness, fatigue, inexperience, inadequate training or poor supervision. All the above however are caused by system of work factors
System of work factors are as follows
Unsafely designed machinery, plant or process
Congested layouts
Poor housekeeping
Overloading of machines

From the above classes of factors, immediate factors are people created whereas system of work factors are not.

Accident prevention programmes

The prevention of accidents is achieved by:

Identifying the cause of accidents and conditions under which they are most likely to occur
Carrying out regular audits, inspections and checks and taking action to eliminate risks

Accident reporting and investigation

A standard system for reporting accidents should be used which clarifies all accidents under appropriate headings, indicate the likely causes of that accident and suggest any remedial action which should be taken.
The form is taken H and S Advisors/manager allocated for safety responsibilities for record keeping and analysis
The form is completed by the immediate supervisor and then it is forwarded to H and S advisors or manager allocated to H and S responsibility

Building safety into the system

A safety inspection is a systematic approach to identifying and locating safety hazards. Safety inspections are normally carried out by the immediate supervisors/managers or team leaders.

Aims of Safety Inspections

To help to identify and locate health and safety hazards.
To provide a basis fro developing accident prevention measures or strategies.

The Systematic Approach to carrying out safety inspection:

Safety Inspections need to be carried out in a systematic manner for them to be effective. The systematic approach to safety inspection follows the following steps:

Prepare checklists for safety points to be covered by the safety inspection.
Divide the safety areas to be covered by the inspection
Develop a safety inspection form including all areas identified in the checklist above.

Areas to be covered by a safety check

Check supervisory levels
Check job descriptions to identify dangerous jobs
Check health and safety requirements
Check the accident register

Safety Equipment

The factories and other places of Work Act Cap 514 requires, employees to provide adequate safety equipment to employees who work in hazards work environments.

Some examples of safety equipment that may be required in a manufacturing environment may include the following:

Firefighting equipment
First Aid boxes
Protective clothing
Safety belts

Fire and Explosions:

Causes of fires:

Faulty cables
Poor maintenance of equipments, plants and machinery
Equipment outlines its life
Carelessness/negligence
Ga leaks/explosions

Measures

Fire drills
Fire emergency evacuation procedures
Regular maintenance of equipment, plant & machinery
Carrying out regular safety/audit and checks inspections
Creating awareness among employees
Provision of fire fighting equipments

v) Measuring Safety Performance

Types of measuring safety performance

Incidence rate which is the numbers of reportable injuries per 1000 employees
Severity rate which is the days lost through accidents per/million hours worked
Total loss control approach which covers the cost of accidents to the company under such headings as pay to the people, damage cost to plant or equipment and loss of production.

Health and Safety Training

Health and safety training needs should be identified by an analysis of hazards generally present at work and any particular hazard associated with organizations and individual jobs.

Managers, team leaders, health and safety representatives should be trainee in the techniques of identifying potential hazards, conducting inspections and investigations, analysis of health and safety performance data.

Employees should be provided with:

Induction training – should be given to new employees a general understanding of what they should do to avoid risks. The induction training should cover:
Health and safety policies
Duties of employees work safety
Main hazards they may face and what to do with them
Methods of working to minimize health and safety issues
The unsafe practices to avoid.
Job Safety Training – should be based on analysis of the special hazards presented by the job.
Health and Safety Training Programme.

Objectives of H & S Training Programmes

To enhance ability of employee to recognize and analyse and safety hazards.
To induce awareness and improve ability to implement legal recommendations in respect of factory inspection.

The context of Health and Safety Training Programmes will vary depending on the type of programme, employees to be covered & nature of the operations.

However they will generally cover the following areas:

Role of supervisor and employees in the promotion of Health and Safety
Safety and Health legislation
Health and Safety policies
Health and safety hazards for example machinery, electrical
Fire prevention and control

Types of Health and Safety Training Programme

Fire drills and fire fighting
First Aid training
Safety induction training
Health and safety seminars and workshops

Review Questions

Identify and analyse Health and safety hazards and problems in a manufacturing environment

Highlight the roles of various parties in a Health and Safety organizations?

What is the need for investing in adequate occupational Health and Safety programmes?

Health and Safety in sometimes regarded as a luxury by senior management (a) what action should be taken on the initiative of the HR department to change these view?

Trade Disputes Act Cap 234

This Trade Disputes Act may be divided into eight parts:

Part I – Preliminary
Part II – Reporting, conciliation and investigation of Disputes
Part III – Registration of collection agreements
Part IV – Reference of Disputes for settlement or inquiry
Part V – Adherence to agreement and awards
Part VI – Protection of Essentials services, life and Property
Part VII – Collection of Trade Union Dues
Part VIII – Miscellaneous Provisions

Part I – PRELIMINARY

Board of inquiry – means a Board of inquiry appointed by the Minister under section 19.

Collective agreement – means an agreement made between a trade union and an employer or organization of employers which relates to terms and conditions of employment, whether or not enforceable in law and whether or not concluded under machinery for negotiation.

Recognition agreement means an agreement in writing made between a trade union and an employer or organization of employers which provides for the recognition of the trade union as the body entitled to represent the interests of those of its members who are specified in the agreement and who are or have been employed by the employer or any of the employers compromising that organization.

Persons to whom Act does not apply:

The armed forces or any reserve force
Police force, administrative police force to prison service or in the National Youth Service.

Part II – Reporting, Conciliation and Investigation of Disputes

Subject to subsection any trade dispute, whether existing or apprehended, may be reported to the Minister by or on behalf of any party to the dispute.

Every report of a trade dispute shall be made in writing and shall sufficiently specify:

The employers and employees or the classes and categories of the parties to the dispute.
The party or parties by whom or on whose behalf the report is made.
The nature of the authorization given by the party or parties desiring the dispute to be reported on their behalf
Each and every matter over which the dispute has arisen or is apprehended (arrested)

Every person reporting a trade dispute shall, without delay, furnish by hand or by registered post a copy of the report thereof to each part to the dispute.

However, in situations where parties to the dispute belong to he same organization of employers or organization of employee the furnishing of a copy of the report to such organization shall be a sufficient compliance to subsection 4.

Consideration and action by the Minister:

Inform the parties that any of the matters over which the trade dispute has arisen or is apprehended is not suitable to be dealt with under this section.
Refuse to accept the report of the trade dispute where the Minister is of the opinion that any matter in dispute is barred from negotiation under the terms of a recognition or collective agreement in force between any of the parties to the dispute.
Inform the parties that he accepts or rejects the report of the trade dispute
Refer the matter back to the parties and if he thinks fit, make proposals to the parties or any of them upon which a settlement of the trade dispute may be negotiated.
Recommend to the parties that the trade dispute be referred to the industrial court.

Methods of Conciliation

The Minister may, in relation to a trade dispute so reported take any one of the following steps:

Appoint any person (who may be a public officer or any other person considered by the Minister to suitable) to act as a conciliator.
Appoint a conciliation panel consisting of an independent chairman and of one or more persons selected by the Minister as being representatives of employers and an equal number of persons selected by him as being representative of employees.
Refer any matter, with the consent of the parties, to a conciliation of panel composed in accordance with the wishes of the parties.
Withdraw or temporarily suspend the operation of any of the already said conciliation measures.

Investigation of matters related to trade disputes:

Where the Minister is satisfied that any trade dispute exists, whether or not the dispute has been reported to him, he may appoint an investigator or a committee of investigation.
The investigation shall be a person who appears to be an independent and qualified person.

Part III – Registration of Collective Agreements

The industrial court shall maintain a register of collective agreements that have been accepted by the court for registration.
A collective agreement shall not take effect until it has been accepted for registration by the industrial court.

Powers of Industrial Court: The Industrial court shall not accept a collective agreement fro registration unless the court is satisfied that the agreement compiles with all relevant directives and guidelines issued pursuant to section 14 (10).

Part IV: Reference of Dispute for Settlement

For the purpose of the settlement of trade disputes and of matters relating thereto the president may by order establish an Industrial court consisting of:

2 Judges as may be determined by the President
8 other members, who shall be appointed for terms not less than 3 yeas by the Minister after consultation with the Central Organization Trade Unions and the Federation of Kenya Employers.

Qualifications of the Judge:

Should be an advocate of the High Court of Kenya.
Not less than seven years standing every appointment made under the section shall be notified in the Gazettee and the notice thereof shall state the term for which shall such appointment is made.

Part V – Adherence to Agreements and Awards

This part deals with the following:

Unlawful strikes and lock-outs
The public sector
Adherence to agreed procedures
Prohibition of sympathetic strikes and lock-outs

Part VI – Protection of Essential Services Life and Property

It deals with:

Breach and procurement of breach of contract by employee an offence.
Breach of employer’s contract not unlawful in certain circumstances.
Reference of disputes to industrial court
Minister may declare subsequent notice void.

Part VII – Collection of Trade Union Dues

Application of check-off system
Union to serve notice on employer
Employers to comply with order
Unions and Federations to acknowledge payments

Part Viii – Miscellaneous Provision

Prevention of intimidation
Certain offences to be cognizable
Consent of Attorney General
Rules of Industrial court

Relevant Labour Legislation in Kenya

Written by PDF Education Editorial

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