MOI UNIVERSITY SCHOOL OF LAW

FLB 202 LABOUR LAW

LABOUR LAW INSTITUTIONS

1. LABOUR LAW INSTUTIONS ACT 2007

 The objective is to establish duties , functions, powers and duties
 Look at the definition section such as contract of service and employment agencies
 The Act exempts – armed forces and reserves, NYS, in keeping with International law,
conventions, excludes fully or partially limited categories of employed persons in
respect of whom special problems of substantive nature arises, excludes categories of
workers whose terms and conditions of employment are governed by special
arrangements, that none the less provide equivalent or better protection than the
exclusions
 A. THE NATIONAL LABOUR BOARD SEC 10- it captures diverse inclusive and extensive
players in the labour field: secretary general of the most representative confederation
of eg COTU, of employers (FKE) , 2 nominees of employers, 2 nominees of unions, 2
independent members, director of employment, director of small and micro enterprises
dev, director of occupational health and safety, director of industrial training, rep of
employment court and registrar of trade unions
 Function is to advise minister in all matters concerning employment and labour,
legislation affecting labour relations, trade union issues, conventions, codes of good
practices, issues raised by an international or regional association to which Kenya is a
member, systems of labour inspection and administration of labour law, any aspect of
public employment services, vocational guidance and training, employment of persons
with disabilities, formation and development of policies designed to promote the
granting of paid educational leave for purposes of training, trade union and social and

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 civic education and trade union education, general sate of employment, training and
man power development of the country, productivity measurements and improvements
 Further appointment of wages council and members , setting compensation benefits in
accordance with Work Injuries Benefits, registration, suspension and deregistration of
trade unions and employers organizations and other matters
 Advise minister in issuing if immigration entry permits and work permits to non citizens
 Board has the power to investigate and research into labour , economic and social
policy
 To coopt persons to the board, which determine its own procedures and is paid
remuneration and allowances
 Secretary of the Board is to issue every 3 months on issues such as general sate of the
economy, labour market information and employment trends , strikes and lockouts,
inflationary trends and indices, the number of complaints lodged by employers and
employees relating to labour relations and progress, the settlement of complaints and
disputes, labour inspection services and other issues
 The board has committees- work permit, national man power development, Trade
Disputes, Productivity and others deemed necessary for function of board
B. COMMIITTEE OF INQUIRY-The minister can by gazette notice set up a committee of
Inquiry into any matter connected or relevant to any trade disputes or trade disputes
generally or a particular class or type and he may refer any matter to them
 The composition is of 3 or more people, chair, a public officer or secretary
 It can still operate even if there is a vacancy in their number
 The inquiry report are to be submitted to the minister
C. LABOUR ADMINSTRATION AND INSPECTION
 SUBJECT TO PUBLIC SERVICE COMMISSION LAWS
 Composition is commissioner of labour, director employment and other offcers
necessary for adm of laws of labour
 Minister may designate officers as labour officers, employment officers, medical officers
known as authorized officers
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  Appointment of registrar of trade union, deputies and assistants
 The above powers may be delegated with or without conditions, amended or revoked,
and the decision of the person acting may be set aside
 A certificate of Authority is issued to every authorized officer by the appropriate person,
which should be produced upon request
 Authorized officres have powers of entry into premises, inspection, visit, can produce
notice of visit, or fail to do so ( where notice of visit would be prejudicial to the
performance of his duties or defeat object of the act)
A. LABOUR OFFICERS POWERS- Sec 35 Enforcing compliance with labour laws
 Require production of wage sheets, employment records, payment records,
payment records, records required to be kept by labour laws, seek information,
inspect and copy any materials, examine person believed to be subject to the
wage order or applies to worker, enter buildings, inspect, examine employee
records, seize any register, record book, and order that all buildings and
premises where employee are housed or employed are kept in clean and
sanitary condition, enter and examine the sanitation and water supply
 Institute proceedings in relation to any contravention/offence committed by an
employer
 Take proactive action in any civil proceedings in case of action arising out of the
course of employment
B. EMPLOYMENT OFFICER SEC 36- may exercise powers for collecting labour market data
 Powers are similar to labour officer and work with the secretary of labour
 Examine wage sheets, persons subject to wages order, seize documents etc
 Authorized officer are to keep confidential information and records acquired as
part of their official duties unless disclosed in criminal proceedings and for
purposes of proper administration of the act in accordance with any written law
 Failure to keep records- fine of kes 100000 6mths in prison or both
C. MEDICAL OFFICER-SEC 37-may exercise powers of labour officer
 Similar power as the other officers
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  Can take samples of food, examine water supply, can order sick employee to
keep off work premises not conducive to his quick recovery and at the
employees cost take to hospital
 Condemn food unfit for human consumption and food destroyed in his presence
 Order at employers cost such variety of food as he deems necessary provided
cost remains as normal or ordinarily supplied
 Condemn buildings and structures if unfit for purpose and will not reopen
without certificate from officer
 Order employer to supply blankets to workers and cost can be deducted from
remuneration
 Inspect all drugs and medicines
 Sec 38 obstruction of officer and failure to comply with order is an offence-
100000 or 6 mths or both
 The act applies to body corporate, companies and public bodies, private
companies, associations, body of persons, corporate or incorporate and all
 Sec 39- where the act is committed by negligence or connivance of director,
chairman or secretary etc they shall be deemed to have committed the offence
D. ANNUAL REPORTS- SEC 42 The commissioner of labour and director of employment
shall not later than April each year prepare and publish an annual report of the activities
undertaken in their respective departments. The report should inter alia:
 Developments with regard to relevant laws and regulations
 Statistics of places of work inspected and numbers of employees
 Findings in the course of inspections
 Statistics of industrial accidents and occupational diseases
 Statistics of persons with disabilities and any aids provided by employers
 Statistics of proceedings brought before the employment court and other courts
and their disposal
 Statistics of stoppage of work in various sectors of the industry

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  DIRECTOR OF EMPLOYMENT- SEC 42(3)-The report shall cover staff productivity
levels, labour market information and employment trends
E. WAGES COUNCIL SEC 43- There is established an agricultural wages council and a
general wages council
 The minister may establish any other sectoral wages council after consultation
with labour board
 The council sets up remuneration and other conditions of employment of any
category of employees in any sector that is not adequately regulated by
collective agreements or where it may be expedient to do so
 Sec 43(3) terms of reference of the wages council include employees in a sector,
in part of a sector, nationally, within a specific area or one or more specified
categories of employees either nationally or within a specific area
 Sec 43(4) council established by way of gazette notice specifying the terms of
reference, persons appointed, period council required to investigate and prepare
a report to the minister and for inviting representations from interested parties
 Sec 43(5) Composition-chairperson, 3 rep of trade unions, 3 rep employers, 3
independent members, all with knowledge and experience in determination of
minimum terms and conditions of employment for a period of 3years
 Sec 44-Functions of wages Council-
 Investigate remuneration and conditions of employment in the sector
 Invite representation written or oral from interested parties
 Make recommendation to the minister on minimum wage remuneration and
conditions of employment
 Council can question any person, inspect any relevant documents or records,
conduct public hearings
 It is an offence to not provide information or answer any questions relevant to
investigation
 Sec 45(5)In performing its duties the council shall take into consideration: needs
of the employees and families, general levels of wages in the country, the cost of
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 living, social security benefits, the relative living standards of other social groups;
economic factors, requirements for economic development, levels of
productivity and the desirability of attaining and maintaining high levels of
employment, and the need to encourage investment; the ability of the
employers to carry out their business successfully; the operation of small,
medium and micro enterprises; cost of living, and the alleviation of poverty, the
minimum subsistence level, the likely impact of any proposed conditions of
employment or current employment, or the creation of employment and other
relevant factors
 Sec 45 publication of the wages ORDER-proposed wages order will be gazzetted
inviting comments within not less than 30 days( reasonable time) published
twice in newspapers of wide circulation and any person can submit written
comments on draft wages order within the specified time. Grounds of objection
should be set out, deletions and additions or modifications proposed. Under sec
45(5) if no objection is received the minister many publish a wage order in
accordance with sec 46. Id objections are received these are to be referred to
the wages council for consideration and to consider and advise on objections
 Sec 46(1) after consideration of any further report of the council, and any further
advise from the board, publish in gazette and lay before national assembly and
advise where the order can be found
 Sec 47 content of the wage order- the order will set out the minimum rates of
remuneration. Sec 48(1) wages order constitutes minimum terms of
employment and cannot be varied by agreement. It is an offence to go below
this standard. If an employer is found guilty he must pay the difference to the
employee in addition to any other penalty. Evidence can be adduced regarding
the offence. In the alternative, the aggrieved person can also institute civil
proceedings on behalf of the employee
 Sec 50 meaning of remuneration-cash paid to the employee clear of deductions
eg provident fund, rations supplied, deductions permissible by law or at the

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 request of the employee. Calculations begins when employee present at the
employers premises at employers request
 Sec 52 apprentice or indentured learner are not to pay any premiums to
employer unless of allowable deductions for rations supplied to employee( and
must be authorized by a labour officer
 The order regulates task based work and piece work paid according to the
amount produced, outwork and contract work
 Sets minimum standards of sanitation
 Sec 46(3) order may make different provisions for different classes of employees,
indicate how previous orders can be amended or revoked
 Sec 53 records- employers must keep records for 3 years and must inform
employees of wages applying to them. It is an offence not to comply and under
sec 54 criminal liability can attach
F. EMPLOYMENT AGENCIES- The registrar of employment will keep register of all agencies
and individual persons will not carry out this work or receive payments. Applicants must
apply and the registrar will determine if the applicant will carry out the business as an
agency
 The certificate will have the details of the person, the premises, period
area( including foreign country) where the business will be conducted, class of
persons in respect of which the business can be conducted, and conditions
subject to which business may be conducted
 Certificate may be cancelled for breach of conditions with the holder having
opportunity to make presentations
 Any aggrieved person may appeal to the director of employment
 Agencies must keep records for 3years to be produced upon demand by the
employment officer, and furnish statistical information at such times and in such
manner as may be prescribed
 Fee payment is regulated by the Act

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  The provisions relating to entry, seizure, records, copies etc apply as well as
otherwise it is an offence to obstruct
 Sec 60 regulations are to be made on from of application, fee payable, fees
charged for records kept, qualifications of the proprietor of agencies and
security to be given by proprietor
G. EMPLOYMENT AND LABOUR RELATIONS COURT CAP 234 REVISED 2014 ASSENTED TO
27TYH AUGUST 20111 COMMENCED 30 TH AUGUST 2011-Esrtablished under article
162(2) of the constitution. It is a court with the status of a High Court
 The objective is to establish court to hear and determine disputes on
employment and labour relations, to enable the court to facilitate just,
expeditious, efficient and proportionate resolution of disputes, in interpretation
of rights of individuals and parties the court shall seek to give effect to above,
and the parties shall assist the court to further the principal objective by
participating in the proceedings and comply with the directions and orders of the
court
 The court id composed of the principal judge and such number of judges as
determined by the judicial service commission
 Sec 26 qualified judges must meet requirements of art 166 of the constitution-
law degree, experience, high moral character , integrity and impartiality
 Sec7 tenure- can resign, retire or be removed by a tribunal after receiving
petition
 Jurisdiction-sec 12 exclusive, original and appellate to hear and determine
matters on employee/employer and organizations, employer and trade union,
trade union and members, employer organizations and members, employer and
federation and members, registration and election of trade union officials,
dispute on registration and enforcement of collective agreements etc
 One may lodge a n application, claim or complaint
 Sec 12(3)Powers of the court- interim preservation orders including injunctions
in case of urgency, prohibition order, specific performance, declaratory orders,

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 award of compensation, damages, reinstatement within 3years of dismissal
where court sees fit, any other appropriate relief and orders as to cost
 Sec 12(50 appeals jurisdiction- from decision of registrar of unions on
registration, from other local tribunal
 Sec 13 enforcement of court orders- judgment, order, award decree shall be
enforceable in accordance with the civil procedure act
 Sec 15 Alternative dispute resolution- the court can adopt and implement on its
own motion, request of the parties any appropriate means of dispute resolution
including internal methods, conciliation, mediation and traditional dispute
resolution mechanisms, and this can be done at any stage of the proceedings
 The court shall be bound by the national wages guidelines on minimum wages
and standard of employment and other terms and conditions of employment
that may be issued from time to time
 Sec 16 court may review its orders
 Sec 17 appeals lie to the court of appeal
 Sec 20(7) failure to comply is an offence fine not exceeding one million and 2yrs
prison and applies to body corporate, union, employer organizations, federation
and every director, official etc unless they can show that it not committed
without their consent or connivance and they exercised due diligence to prevent
the commission of the offence
 Sec 21(1)quorum one judge, where there are substantial question of law an
uneven number not less than 3 assigned by the Chief Justice
 Representation before the court can be in person, by advocate, any office
bearer, official of union, employer organization, juristic person, director or
employee specifically authorized for that purpose
 Sec 23 rules committee-made of principal judge, person appointed by chief
justice, one judge of the court, one practicing advocate, one none lawyer with
expertise in labour relations, two nominees of employer and employee

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 organization, two workers rep, one from Ag office and 2 members appointed by
chief Justice. Quorum is 7 and registrar is secretary/
 Sec 27 Access to Justice- the court shall ensure reasonable, equitable access to
judicial services in all counties and certain magistrates may preside over cases in
respect to their areas

H. THE NATIONAL EMPLOYMENT AGENCY- ACT 2016 – Creates the National employment
authority for employment management, to enhance employment promotion
interventions, and enhance employment for youths, minorities and marginalized groups
 Further Objects are to enhance employment in both public and private sectors,
facilitate equity and diversity and eliminate discrimination in employment and to
give effect to constitutional values and principles in matters of employment. It
applies to national, private and informal sectors
 Sec 8-9 The employment authority is established with headquarters in Nairobi
whose functions is to advise on formulation of policies on employment,
methodologies for employment measurement, management and promotion,
conduct periodic surveys on labour market skills and advise training institutions
and job seekers appropriately to ensure training and skills match the job market
requirements, monitor implementation of employment policies. Facilitate
cooperation of all sectors and foreign governments to increase employment,
facilitate continuous training, register persons seeking employment, maintain
database of all persons seeking employment, facilitate employment and
placement of job seekers in formal, informal and internationally, circulate timely
advertisement of job vacancies through all means including social media, provide
counseling for the unemployed, facilitate implementation of national policies,
encourage equal opportunities employment practices, advise minister on
matters related to the Act, conduct studies, obtain relevant information, take
steps to protect unemployed against any form of abuse or exploitation, become

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 member of relevant associations, establish appropriate relations and employ
officers to discharge duties as required
 Sec 10 creates a board of the authority with stakeholder representation from
labour sector, foreign affairs, public service, commission on university education,
technical training, youth representatives, and a Director general as secretary.
The Board members are to be remunerated, and hold office for 3yr period, and
can from committees, co-opt members as appropriate as well as delegate its
powers. It shall operate under the supervision of the cabinet secretary and
 Sec 18 shall have suitably qualified staff as may be necessary for the efficient
performance of its functions, and in the appointment of the staff shall ensure
values and principles in constitution upheld, afford adequate opportunities for
appointment and advancement at all levels of youth, men, women, members of
all ethnic groups, gender and persons with disabilities, ensure transparency in
recruitment process and ensure competitive recruitment and selection on the
basis of personal integrity, competence and suitability
 Sec 20- Registration- employment seekers can register at no fee but must be
citizens of Kenya ordinarily resident and shall give all relevant factual information
to the authority which has a duty to continuously update the data,. And will not
be responsible for any inaccurate information provided. Any applicant who gives
false information is liable to fine not exceeding kes 50000 pr 3momths
imprisonment or both
 Sec 24-the authority shall keep and maintain an up to date register of all job
seekers with information such as particulars, academic qualifications, work
experience, contact details, county, ethnicity, tribe, details of life such as
disability, gender, area of specialization, interest, qualifications, other relevant
details
 Sec 25- the authority shall seek authorization from job seeker to use information
for purpose of seeking employment and internship opportunities and in event of

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 other purposes seek individual consent from job seeker. The authority is to take
all measures to protect the data and is prohibited from unauthorized use
 Sec 28-information on vacancies should be given priority to registered job
seekers before opening up to those not registered through circulation and will
similarly liaise with private sector towards same end. It is the responsibility of
the applicant to or prospective employee to make and tender their application
upon receipt of notification of a vacancy. Upon successful interview and securing
of employment, the successful applicant shall inform the Authority who shall
remove the successful applicant from data base and maintain a record of
successful applicants
 Sec 32 the Authority shall take measures to maintain good working relationship
with all prospective employers and undertake due diligence to ensure that that
they do not collaborate with any prospective employer who engages in
employment malpractices or violation of laws of Kenya
 Sec 34-shall facilitate through community initiative and other for a training to job
seekers, career progression, choice of career and counseling services in
institutions, educate on employment trends and other factors that influence
employment
 Sec 36- facilitate placement of students At tertiary institutions in positions of
internship and attachment during and after completion of study, shall keep all
relevant data, monitor placement to ensure there is no exploitation or violation
of rights
 Sec 37- affirmative action- encourage all prospective employers to employ
Kenyans in all positions including those of leadership and management, and
come up with an award system for employer who employ Kenyans within
6months of completion of study and who do not possess more than five years
work experience. The government shall take affirmative action to ensure
employment of Kenyans in management and other levels of employment
regardless of their years of experience

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 i. SALARIES AND REMUNERATION COMMISSION- ACT NO 10 OF 2011-sets up the SRC
as a body corporate with a chair person whose qualifications are stated as well as
members who should have expertise in labour matters, economics, finance and
administration, labour laws, public management, human resource management and
can nominate members following laid down procedure and can establish
committees of the SRC. It has a secretary and appointed and seconded staff
 Sec 11 sets out the functions of the SRC
 Sec 11 Functions of the SRC
a) Inquire into and advise on the salaries and remuneration to b e paid out
of public funds
b) Keep under review all matters relating to the salaries and remuneration
of public officers
c) Advise the national and county government on the harmonization equity
and fairness of remuneration for the attraction and retention of requisite
skills in the public sector
d) Conduct comparative surveys on the labour markets and trends in
remuneration to determine the monetary worth of the jobs of public
offices
e) Determine the cycle of salaries and remuneration review upon which
Parliament may allocate adequate funds for implementation
f) Make recommendations on matters relating to the salary and
remuneration of a particular state or public officer
g) Make recommendations on the review of pensions payable to holders of
public offices and
h) Perform such other functions as may be provided for by the constitution
and any other written law
 Sec 12- guiding principles for the SRC-art 230(5) of the
constitution the following principles

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  The need to ensure that the total public compensation bill is
fiscally sustainable
 The need to ensure that the public services are able to attract and
retain the skills required to execute their functions
 The need to recognize productivity and performance
 Transparency and fairness
 The principle of equal remuneration to persons for work of equal
value
 The recommendation of previous commissions established to
inquire into the matters of remuneration in the public services
 Sec 13-powers of the SRC-
 To gather by any means appropriate any information it considers
relevant including requisition of reports, records documents or
any information from any source including governmental
authorities
 Interview any individual group or members of organizations or
institutions and at the commissions discretion conduct such
interviews
 Hold inquiries for the purposes of performing its functions under
this Act
 Take any measures it considers necessary to ensure that in
harmonization of salaries and remuneration , equity and fairness
is achieved in the public sector
 In the performance of its functions the commission may inform
itself in such matters as it thinks fit, receive written and oral
statements from any person governmental or non governmental
agency and shall not be bound by the strict rules of evidence

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NB THE SALARIES AND REMUNERATION SUBSISIARY LEGISLATION (REMUNERATION AND
BENEFITS OF STATE AND PUBLIC OFFICERS) REGULATIONS 2013 IS CRUCIAL IN ITS ENTERITY
AND YOU SHOULD HAVE A COPY

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