Labor law in Kenya is related to the employment law that is guarding all the Kenya citizens and these laws are regulated from several sources which include the Constitution framework, Acts of Parliament (Labour legislations framework), Judicial Right, or the Common Law, Contract Law, and the International Conventions. The sources of employment law in Kenya were derived from different sources for putting in place fundamental rights of workers, for the equality and freedom right of the workers, legal rights, the employers, and civil liabilities.
The labor law is the relationship that is evolving between the workers, employers, the trade unions, and also the government entity and they are the certain conditions that must be considered and applied by the workers.
This article will be focusing on the purpose of the Labour law in Kenya and also the Labour Law sources that are relating to only the Kenya workers.
The purpose for the Labour Law in Kenya
The Labor laws are derived from different sources but they all have the same purpose which is to protect the employee’s rights and also to establish the employer’s obligations, legal rights, and responsibilities towards their employees. The laws help to protect employees and intending employees against any form of discrimination, improper treatment from employers, and harassment in their workplace. The main purpose of the labor law is to provide equal opportunity and wages without discrimination, to protect the employee well-being and safety around the workplace, and also regulate and governs the relationship that an employee should be expecting from the employers and also what the employer can expect from the employee, the employee knows his roles already and he is aware of his rights and duties at the workplace even before the employer orders him to do so.
Different Labour Law sources that guide the Kenyans
- The Constitution
The constitution is the highest law of the Kenyans law and it consists of some specific provisions to help the workers. The constitution is made of the fundamental right of the laborers under Article 41 paragraph 2 which says that every person be it woman or man or from any level of labor has a right to fair labor practices. The bill of rights given by the constitution provides that every worker has a reasonable;
- Right to remuneration,
- Working conditions,
- Has the right to form a trade union, to join a trade union, or participate in any activities and programmes organized for the trade union,
- And also to go on strike.
The constitution also contains the right of freedom and equality of labor. It is stated under Article 27 that, there is a right to equality and freedom from discrimination. The law states that all men and women workers have the right to the same treatment, including the right to the same opportunities in political, social, cultural, and economic spheres in the country. Paragraph 4 of the same Article 27 talks about freedom from discrimination of the workers that the State shall not discriminate anybody directly or indirectly against any form that involves their sex, pregnancy, race, marital or health status, ethnic or social origin, skin color, workers age, any disability, religion practice, conscience, the belief, culture, dress method, language or birth of the individuals.
The constitution of Kenya also provides for protection from slavery, human dignity, servitude, and forced labor under Articles 28 and 30. The law stated in those articles is the most important part of the labor law in Kenya.
The Constitution also established the rights of Employment and the labor relations court. This is stated under Article 162 paragraph 2 that the provisions of the employment and the labor relations court should be with exclusive jurisdiction to resolve and settle all the labor disputes that may arise.
2. The Employment Act, 2007
Even though there were some labor legislation or statutes that existed way before 2007 but some major changes were made in 2007 which resulted in the enactment of some new laws to govern the laborers and one of those laws is the employment act.
The employment law was established to provide the conditions of employment, the fundamental rights, and the general principles of the workers, it states the relationship between the employer and the employee and also contains the legal right and the form of duties and obligations of the employers and the employees which include: contract of employment service, the prohibition against any forced labor, discrimination in employment, sexual harassment, payment of wages of an employee, leave and living amenities, and termination of employment. The employment Act also regulates the adoption and employment of children and provides for every necessary thing relating to the issue.
Amendments to the employment act, 2007 was done by the employment (amendment) Act, 2021 on the 30th of march, 2021 which now provides that an adoptive employee are entitled to leave of one month which is going to take effect before the adoption with full wage from the date of placement of the child in their care. The employee must give the employer a notice of nothing less than 14days in writing of the intention of the adoption society to put the child in the custody of the employee and the notice must be with proof from the adoption society to adopt the child and also the agreement signed between the employee and the adoption society and an exit certificate of the child.
3. The Employment and Labour Relations Court Act
The ELRC was previously known as the Industrial Court Act of 2011 which was established as a court of supreme record over cases of employment and labor relations. The Industrial Court Act was renamed the Employment and Labour Court Act to the statute law (The Amendment Act of 2014, Article 18). The Act was given by Article 162 paragraph 2 of the constitution as the exclusive and appellate jurisdiction, composition, and the procedures to determine and make orders to all disputes of the ELRC.
4. The Labour Institution Act, 2007
This Act provides the regulation to establish labor institutions, with their functions and duties. The labor institutions include the;
- National Labour Board,
- Committee of Inquiry
- Wages Council and the Employment Agencies
- Labour Administration and Inspection Officers
They all work together to enhance institutions that govern Kenyan labor relations.
5. The Labour Relations Act, 2007
This Act helps to consolidate the law relating to the trade unions and trade disputes, its major concern is to provide the freedom of association between the employers and the employees and also to create sound labor relations and the right to a collective effort that promotes and protects the freedom of association. The Act provides for the legal guidelines for the registration, management, functions, and regulations of trade unions and employers federations or organizations.
6. Occupational Safety and Health Act, 2007
The reason for this Act is to provide safe working conditions and an environment for all the workers. The Act ensures the safety, welfare, and good health of any workers that are lawfully present at workplaces at any particular time and also makes the proper establishment of the NCOSH (National Council of Occupational Safety and Health).
7. Common Law and Customs
This is an important source of labor law and they are laws developed from judicial decisions, precedents, and considerations on the interpretation of any legal doctrine of stare decisis and statutory provisions. The common law also provides laws such as the employer’s liabilities which states that any employers will be held responsible for the actions of their workers or any wrongful act by them.
With the common law, there are civil liabilities for strikes and other industrial actions of any kind.
8. International Law and Conventions
This is another relevant source of the labor law of Kenya. Kenya is a member of the International Labour Organization (ILO) and because of this, they ratified several relevant laws related to the rights of all workers. Kenya became part of the international laws relating to workers as a partly monist state under Article 2 paragraphs 5 & 6 of the constitution. Under these international laws and conventions, the Kenyan government is legally indebted that all the laws are applied by the Kenyan workers.
The Kenya government ratified about 49 conventions of the ILO which are the fundamental right of the Kenya workers. Some of them include:
- The right to form, join and participate in trade unions.
- Compulsory Labour (Convention No. 29)
- Equal Remuneration for the same work value (Convention No. 100)
- Right to wages and all the necessary conditions relating to employment to a standard set made by law or a collective bargaining agreement. (Convention No. 87 and No. 98)
- Discrimination of Employment (Convention No. 111)
- Minimum Age of Employment of any level (Convention No. 138)
- To Eradicate any form of unnecessary child labour (Convention No. 182)
- Freedom from forced labour including slavery, forced bondage and labour without pay (Convention Nos. 29 and No. 105).
You can contact Shikana Group to know more about the labor laws in Kenya and their implications. Both the employers and employees can be well educated about their legal rights and responsibilities required at the workplace from the Shikana’s Law Group.
Shikana Group is an independent law firm founded in Tanzania. Our firm specializes in both commercial and business law all over the Africa countries. We advise any business clients either an employer or employee operating in Africa on legal issues.