Both types of employment are defined in article 2 of the Labour Code. “Casual worker” means “a person whose terms and conditions of employment provide for payment at the end of each day and who is employed for not more than twenty-four consecutive hours” and piecework “means any work for which wages are estimated on the basis of the amount of work involved, regardless of the time spent performing it”. In principle, these categories of workers enjoy broadly the same rights as other workers, but may be excluded from many benefits such as holidays, health insurance or housing. The individual employee has two basic rights: severance pay and severance pay. Rates of pay may depend on the agreement, but many vary from fifteen to thirty days` base pay for each completed year of service. According to the case law of the Labour Court, it has been accepted that an employer whose situation improves and who wishes to be hired after a financial crisis must give priority to previously dismissed employees. Courts were generally reluctant to enforce contracts restricting trade. The courts have held that contracts restricting trade are generally invalid because they are contrary to public policy and are not illegal; However, a partial restriction in a contract may be applied if it is reasonable in the mutual interest. SUMMARY OF LABOUR LEGISLATION IN KENYA The legal framework for industrial relations in Kenya includes: The Constitution of Kenya Labour Code Industrial Relations Act Labour Institutions Act Occupational Health and Safety Act There is no full-fledged system of labour courts in Kenya. As already mentioned, individual labour disputes are dealt with by the ordinary courts.
May Day is an international holiday for workers` rights. Under Article 14(1) of the Labour Code, the law requires certain employment contracts to be concluded in writing. These are contracts: a worker is a person who works. This usually means a person doing manual labor, such as making goods. There are three factors of production in the economy. These are labor (workers` labor), land (usually people need space to produce something) and capital (it costs resources or money to produce something). Under the Industrial Disputes Act, the employment contract is suspended if an employee participates in a lawful strike or is affected by a legal lockout. Therefore, the employee does not violate his contractual obligations to his employer when he participates in a strike.
Similarly, lockouts do not terminate the employment relationship. If the employment contract is suspended by the participation of employees in a strike, the employer is not obliged to pay the wage because no work has been done. In the decisions of the Labour Court, it has been stated that an employer is not obliged to pay wages if the employment contract is suspended due to a strike. Section 4 of the Act prohibits the use of forced labour and criminalizes the use or assistance of another person in recruiting, trafficking in persons or forced labour. It defines forced labour as work that is not voluntary and is performed under the threat of punishment. The Industrial Relations Charter has since been revised twice, but it has remained the basis for social dialogue and industrial relations in Kenya over the years. The “Charter” is currently being reviewed; The parties presented a draft charter as early as 2001, which could be signed as part of the general revision of labour law. Part V of the Trade Union Act expressly grants trade unions, their officers and members immunity without distinction from civil proceedings or actions relating to acts contemplated or committed in connection with an industrial dispute. You are liable in tort and contract. Probationary unions enjoy all the rights and privileges accorded to registered unions, except that they do not have the right to amalgamate. THE CONSTITUTION OF KENYAArticle 41 gives every worker the right to fair labour practices and guarantees every worker the right to; i. Equitable remuneration; ii.
Decent working conditions; iii. to establish, join or participate in it; and iv. Strikes The above-mentioned Industrial Relations Bill provides for alternative means of settling disputes through a collective agreement. It provides that a collective agreement may provide for conciliation or conciliation of any class of commercial disputes contemplated in the collective agreement by an independent and impartial conciliator or arbitrator appointed by mutual agreement between the parties. In the case of conciliation, it is not necessary to refer the dispute to the Minister. In the case of arbitration, the award is final and binding. It cannot be challenged in court, but it can be reviewed and enforced by the National Labour Court. However, this text remains for the moment a draft and still needs to be adopted to have legal effect.
Thus, a significant number of employment cases in the broad sense are dealt with by the ordinary courts, i.dem.e. the High Court, either at first instance or, in some cases, on appeal. As part of the ongoing comprehensive reform of labour law, a task force on labour law review has adopted a draft law on labour institutions, establishing a national labour court with the same powers as the Supreme Court in labour law. (For more details, see the paragraph on labour law reform.) Kil encouraging employment agencies to provide all necessary legal and psychological support for the repatriation of migrant workers who have been ill-treated or ill-treated abroad; There are many rights that an employee may have under the contract, such as vacation (annual, maternity, sickness or education), allowances (vacation, travel, exchange, service or other), medical and overtime payments, bonuses and many others. They become relevant when the employment ends. Their monetary equivalent is calculated and paid to the employee as part of the dismissal rights. Better understand the obligation of companies to respect human rights A lawful strike will only take place if the procedure provided for in Part V of the Trade Disputes Act has been exhausted. This procedure includes the report, the Minister`s decision, conciliation, inquiry and commission of inquiry, as well as the labour court procedure described above.
Indeed, legal industrial action in Kenya is difficult to achieve under these regulations. The complex regulations and requirements of the Trade Disputes Act and the jurisdiction of the Labour Court make it difficult to think of a situation that could justify a legal strike in Kenya. The system was deliberately transformed – on the basis of the Tripartite Industrial Relations Charter of 1963 – into a complex system of arbitration and arbitration aimed essentially at avoiding industrial disputes in Kenya. In general, both fixed-term and fixed-term workers enjoy all the rights of a worker working on a permanent basis, except those which are explicitly excluded (e.g. pension entitlement) or because of the nature of a short-term posting (e.g. annual leave). However, this anti-discrimination law is addressed directly only to the public authority and does not create legal claims between private entities. Although the Constitution recognizes historical differences between men and women, employers are not obliged to achieve equality in the workplace or to take positive measures to promote women`s participation more quickly. In terms of numbers, workers in the province of what the law calls essential services represent a significant proportion of the unionized population in the country.
What`s more, these companies have the most skilled (and probably politically aware) workforce. Certain procedures must be followed when such dismissal is contemplated. First of all, the employee must be informed of claims for serious misconduct. Second, the employee must be challenged and given the opportunity to defend against it. Finally, he must be informed in reasonable detail of the decision once it has been taken and the reasons for it. The decision must be made honestly and in good faith. There should be no victimization or unfair work practices. Kenyan labour law and Kenyan labour law and industrial relations support workers` demands and are considered “employee-friendly”.
While the current law is strong, it still has gaps and does not address issues such as constructive dismissal or the impact of a business acquisition on employees. However, the proposed reforms suggest that change is underway. Current legislative reforms include: The emergence of labour law and labour practice can date back to the 19th century. This was the first time that the colonial government had to pass laws to ensure an adequate supply of cheap labor for the emerging agricultural, industrial and service industries. Working conditions are governed by statute and common law. Contract law in Kenya was originally based on the Indian Contracts Act 1872, which applied to contracts entered into or concluded before 1 January 1961. The Indian Contracts Act applied to the three countries of Kenya, Tanzania and Uganda. Since then, Kenyan contract law has been based on English common contract law under section 2 (1) of the Kenya Contract Law Act (chap. 23).
In September 2002, the Kenya Constitution Review Commission of the National Constitutional Conference, established by Parliament and the President, introduced a draft law on the Constitution of the Republic of Kenya.