The Labour Institutions Act 2007, Sec. 35 gives the labour officer powers to enforce any Labour Law and to:

  1. request production of wage sheets,
  2. require employer to give any information with respect to names and addresses of his workers,
  • inspect and copy any material part of any list of employees,
  1. examine any person whom a wage order has been applied,
  2. inspect and examine any land or building where an employee resides or is employed to confirm compliance with labour law,
  3. require an employee to produce an employee and documents relating to employment,
  • examine and make copies of any document relating to employment that he has reasonable ground to believe to contain evidence of an offence under any labour law,
  • inspect all latrines and other sanitary arrangement or water supply,
  1. inspect all food provided to employees and take samples,
  2. order all buildings where employees are housed to be kept in a clean and sanitary condition,
  3. institute proceedings in respect of any contravention of any provision,
  • institute and appeal on behalf of any employee in any civil proceedings and
  • to return to any parent/ guardian a minor employed in contravention of the Act.

Additionally, the Employment Act 2007, Sec. 74 (1) specifies records to be kept by the employer with respect to his employees namely;

  1. contract of service,
  2. annual leave entitlement,
  3. public holidays treatment,
  4. provision for sick off with pay and pension schemes,
  5. pay statement containing statutory deductions,
  6. any amendments to pay statement originally issued as per contract of service,
  7. working hours,
  8. maternity and paternity leave entitlement,
  9. sick leave guidelines and
  10. registers of any child in employment.

Further, the Employment Act 2007, Sec. 74 (2) states that an employer shall permit an authorized officer who may require an employer to produce for inspection the record for any period relating to the preceding thirty six months to examine the record.

Sec. 75 of the same Act states that a person who makes, causes to be made or knowingly allows to be made an entry in a register, record, book or other document whatsoever, required by this Act to be kept, which that person knows to be false in a material particular, or produces, furnishes, causes, or knowingly allows to be produced or furnished, to an authorized officer, a register, record, book or other document which he knows to be false in a material particular, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

Most employers when caught on the wrong side of the law will feign ignorance and sometimes end up using unconventional means to fend off labour officers who are waiting to pounce on them.

However, with full knowledge of the requirements of the law, compliance with the same is the easiest part. Other employers will cite the huge costs incurred in complying with these labour provisions for which no labour officer will take notice and ignorantly cite examples of businesses that are thriving despite non-compliance.

When the proverbial forty days are over for such businesses, they are faced with imminent closure because the instant outlay required for immediate compliance is unsustainable , whereas such a cost could have been spread over the entire life of the business had they complied with the labour laws.

Another major area that employers err is in the minimum wage payment.

Every year on May 1st, workers flock Uhuru Park grounds and other County headquarters’ grounds to listen to the speech by the Labour Minister. The COTU Secretary General in his trademark animated style will tell everyone that Labour Day is a day to celebrate workers.

In truth, the day has become synonymous with the day that the Labour Minister reviews the minimum wage brackets. The latest such review happened on 1st May 2017 which was published in the Kenya Gazette Supplement No. 107 dated 14th July 2017.

It is, therefore, of paramount importance that every employer familiarises themselves with the provisions of the Basic Minimum Monthly Wages which specify the minimum wages for various cadres of staff and implements them to the letter.

And as we all know, ignorance of the law is no defense.

 

Lee Ngugi, MBA-HR, HND-HR, Member IHRM

(The author currently works as HR manager for one of the leading hospitals in Kenya).