CONTENT OF EMPLOYMENT ACT
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
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.
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:
- Into an account at a bank , 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.
- 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.
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.
- 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 least 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 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.
- Certificate of Service Every employee shall be given a certificate of service by his employer upon the termination of his employment.
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
PART IV – EMPLOYMENT OF WOMEN AND JUVENILES
- No person shall employee 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
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.
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.