The Labour Institutions Act No.12 of 2007

1. The Labour Institutions Act No.12 of 2007 • An act of parliament to establish labour institutions, to provide for their functions, powers and duties and to provide for other matters connected thereto.

2. The National Labour Board • Appointed by the ninister. • Composed of a chairperson, a general secretary of the most representative federation of trade union, and one from the most representative employers organisation, and two nominees each of such institutions • Shall also include the director of employment, two independent members, director of Small and Medium Enterprises, director of occupational safety and Health services, director of industrial training, registrar of the Industrial court, and registrar of trade unions.

3. Functions of the Labour board • Advise minister on matters relating to labour issues and labour law. • Advise minister on Trade Unions. • Advise minister on labour relations and on codes of good practice. • Advise the minister on the appointment of members to the industrial court. • The appointment members of wage councils. • The registration, suspension and de-registration of trade unions. • Any other matters related to any of the board’s functions.

4. Subcommittees • The board shall have sub-committees dealing with work permits, national manpower development, trade disputes, productivity and other necessary committees. • Remuneration of members may be determined by the minister in consultation with the finance minister. • The commissioner for labour shall be the secretary of the board and may appoint such other officers as are necessary to assist the board

5. THE INDUSTRIAL COURT • Set up under Section 11 of the Act and shall be responsible for the furtherance, securing and maintenance of good industrial or labour relations and employment conditions in the country.

6. COMPOSITION • A principal judge. • As many judges as the president, acting on advice of the judicial service commission. • An Industrial Court shall be constituted by a judge sitting with two members of the Industrial Court. • Appointment of the Principal Judge of the Industrial Court shall be from an advocate of not less than ten years standing and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Kenya. • Appointment of other judges of the court shall be from an advocate of not less than seven years standing and with knowledge and practice of industrial relations and employment in Kenya.

7. The Industrial Court • Jurisdiction -to hear determine and grant appropriate relief in respect of application, claim, or complaint or infringement of any provisions of this Act or other legislation which extends jurisdiction to the Industrial court. • -any matter which may arise at common law between employer and employee in course of employment • Between an employee or employers’ organization and a trade union • Between a trade union, an employer’s organization, a federation and a member thereof. • -an application, claim or complaint may be lodged with the industrial court by or against an employee, an employer, a trade union, an employer’s organisation federation the commissioner for labour or the minister. • Industrial court may consolidate claims for purpose of hearing witness • Grant injunctive relief, prohibition, declaratory order, award of damages, specific performance or reinstatement of an employeee. • In deciding a matter the court may make other order it deems necessary which will promotethe purpose and objects of the Act. • A decision or order by the industrial court shall bhave the same force and effect as a judgement of the high court and a certificate signed by the registrarof industrial court shall be conclusive evidence of the existence of such decision or order. • Any matter of law arising from such decision or issues arising in deciding if the same is a matter of law or martter of fact shall be decided by presiding judge of ythe industrial court provide on all othe matters majority members will be the industrial court’s deciosion. • Make an order for payment of costs • Refuse to hear any dispiute befor e it other than appeal or review if not satisfied of an attempt to resolve it by concilliation. • Unless otherwise expiry of 30 days a concilliation shall be deemed as comncluded. • A cerificate issued after concilliation shall be deemed as sufficient proof of resolving a dispurte by concilliation.

8. Review by industrial court. • Performance or purported performance of any function provided by the law or any Act. • Any decision taken or any act performed by state in its capacity as employer • All matters necessary or incidental to performing its functions in line with the Act or other laws.

9. Tenure of judges • Appointed by the president • Hold office until:-retires resigns by operation of law dies.

10. enforcement • Direct payment or delivery of any property by execution according to the Rules by the Act • Direct performance or non performance of any act enforceable by contempt proceedings.

11. Remedial powers • If Industrial Court finds that a dismissal is unfair, the court may order: • Reinstatement of the employee • Re engage the employee either in the work or other reasonably suitable work. • Pay compensation

12. Review of orders of industrial court • Industrial court has power to review its orders, awards or its judgments. • Any party may appeal to the court of Appeal against any final judgment, award or order of the Industrial court. • Appeals from a judgment, award or decision of the Industrial court shall only lie on matters of law.

13. COMMITTEE OF INQUIRY • The minister by notice to appoint a committee of Inquiry to inquire into any matters that appear to be connected to a trade dispute or trade disputes in general whether reported to the minister or not.

14. Composition of committee • Consists of three or more members:- chairman Secretary of the committee who maybe a public officer. Inquire into and report on any matters referred to it under section 28 and submit report to the minister. Under section 24 the minister may order the publication of any report made by a committee of inquiry in whole or part.

15. Labour administration and inspection • Subject to public service there shall be appointed:- • A commissioner for labour • Director of employment • Other officers necessary for purposes of administration of laws relating to labour and employment.

16. Minister may designate • Labour officers • Employment officers • Medical officers • Registrar of Trade Unions • Deputy registrar of Trade Union • Registrar shall act on the advice of the board.

17. delegation • Commissioner for labour may in writing delegate to any of the commissioners powers, functions and duties • Director of employment may in writing delegate to any employment officer any of the Director’s powers, functions and duties • Registrar of trade unions may in writing to the deputy registrar or assistant registrars any of the registrar’s powers, functions and duties • Commissioner for labour, the director of employment and the registrar of trade unions may revoke a delegation at any time or attach conditions and vary or set aside any decision made by a person acting on delegation. • Every authorized officer shall be issued with a certificate of authority which may be produced on request.

18. Powers of labour officers Entry into premises or places where persons are or maybe employed for purposes of performing his duties Notify the employer of his/her presence for that purpose. Require production of wages sheet or employment records. Names and addresses of persons whom work has been assigned. Inspect and copy any material part of any list of outworkers kept by an employer. Examine any person whom a wages order applies or applied or the employer of such a person. Require to be produced any document relating to any employment of any employee. Examine and make copies of a register, record book or other documents relating or appearing to relate to employment. Enter inspect and examine latrines and other sanitary arrangements or water supply. Inspect and examine all foods provided or appearing to be provided for the employees and take samples in duplicate in the presence of the employer. Order that buildings and premises be kept in clean and sanitary condition. Without prejudice to the AG institute proceedings in respect of contravention of any provisions of this Act. Institute appeal on behalf of any employee in any civil proceedings by an employee against his employer in respect of any matter arising out of employment. Without prejudice to the institution of proceedings in respect of any offence, to take into custody and return to his parent or guardian or other person he is satisfied has charge of any child he reasonably suspects to be employed in contravention of the law. Any labour officer who seizes a register, record or book shall issue a receipt in respect of such document in the prescribed form. Powers Of The Medical Officers

19. Examine an employee and order whether to go for further medical treatment or go back to work. Condemn any food provided to employees as unfit for consumption. Order for the employ special food to be provided for by the employer. Condemning any building that is unfit for the purpose to which it is put. Order an employer to supply an employee with blankets or clothing at the cost of the employee. Inspect all drugs and medicine provided for use to the employees. Power of Medical Officer

20. A person who obstructs an authorized officer from conducting his duties shall be guilty of an offence punishable by conviction to Kshs 100,000 or imprisonment for a term of six months or below. Obstructing an Authorized officer

21. Offences By Companies • Where an offence is committed by a company or corporation and it is proved that it was done under the connivance of the director, or chairman then they will be held liable for such offence.

22. The commissioner for labour and the Director of employment shall prepare and publish an annual report of activities carried out in their respective departments. The report is to cover among others the development of labour law in the country, staff under their jurisdictions, statistics of places of work inspected and number of workers there, findings after inspection, statistics of industrial accidents, statistics of persons with disabilities, statistics of proceedings brought before the industrial court, and statistics of stoppages of work in various sectors of the industry. Annual report

23. Part vi of the act establishes the wages council. There are two councils created: The general wages council and the agricultural wages council. The minister may create other sectoral councils on the opinion that the two councils do not apply to certain classes of employees and that it may be expedient to set minimum wages and other conditions in respect of employees in those sectors. The minister shall establish the wages council by gazette notice and specify the terms of reference for the council, the names of persons appointed as members of the wages council, and stipulating the period in which the council is required to investigate and prepare the report for the minister, and invite representation from interested parties. The wages council shall consist of a chairperson, not more than three members nominated to represent the trade unions, three nominated members to represent the employers, and not more than three independent members. Such nominated members shall have knowledge in the experience in the determination of minimum terms of employment. WAGES COUNCIL

24. Functions of the wages council • Investigate the remuneration and conditions of employment. • Invite and consider representations on the same • Make recommendations on desired changes to the minimum wages and conditions of employment.

25. Publication Of Draft Wages Order • Upon the recommendation of the wages council the minister shall publish in the Kenya Gazette specifying that he proposes to make a wages order, and specify where the copies of the draft wages order can be obtained and inviting comments on the same. • Objection to the order can be made in writing. • The minister may request the board to reconsider the terms. • Where there is no objection the minister may then publish the order. • Upon publication in the Kenya Gazette it shall be laid before the National assembly within twenty one days for debate. • The wages order shall set out the minimum rates of remuneration and specify deductions to be made from the remuneration, regulate tasks based work and piece of work, and regulate any other conditions of employment, among other requirements. • The wages order is to constitute the minimum terms of conditions of employment and the minimum rates of remuneration. • Any employer who fails to meet the minimum pay and terms commits an offence. • The labour officer may institute proceedings to recover sums due to the employee by reason of underpayment contrary to the order. • An employer is to keep records to show that he is complying with the order.

26. Employment Agencies • The director shall keep a register of employment agencies registered under the act. • All employment agencies to be registered with the director. • An employment agency shall keep and retain documents that are required under the act for at least three years, and upon request by an employment officer produce the documents for inspection

27. The act creates a general penalty for any breach of the provisions of the act not specifically provided for which shall be made up of a fine not exceeding Ksh 50,000, or to imprisonment for a term not exceeding three months or both. The minister shall make rules in consultation with the board to actualize the act The act repeals the Regulation of Wages and Conditions of Employment Act. Miscellaneous Provisions