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A paper presented by: GEOFFREY ORAO-OBURA, OGW

CONSTITUTION COMPLIANT LABOUR LEGISLATION (Amendments and Judicial Decisions with Far Reaching Implications). A paper presented by: GEOFFREY ORAO-OBURA, OGW Senior Partner in the firm of Obura Mbeche & Company Advocates. AN OVERVIEW OF LABOUR LAWS IN RELATION TO THE NEW CONSTITUTION.

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A paper presented by: GEOFFREY ORAO-OBURA, OGW

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  1. CONSTITUTION COMPLIANT LABOUR LEGISLATION(Amendments and Judicial Decisions with Far Reaching Implications) A paper presented by: GEOFFREY ORAO-OBURA, OGW Senior Partner in the firm of OburaMbeche & Company Advocates LABOUR LAWS AND THE NEW CONSTITUTION

  2. AN OVERVIEW OF LABOUR LAWS IN RELATION TO THE NEW CONSTITUTION LABOUR LAWS AND THE NEW CONSTITUTION

  3. 1. INTRODUCTION “ A Constitution may be likened to a wide river, whose waters seep into the soil and spread the nutrients of life across the land. While ordinarily it flows down familiar slopes and valleys, it has the power to carve new paths through hills and ,mountains, washing away obstacles that lie in its course. LABOUR LAWS AND THE NEW CONSTITUTION

  4. Men may try to hold back the river’s force by building dams, releasing its energy according to the plan. But always it moves to the sea, bringing its force to bear on the entire world.” (David Zikand, J.D. PHD-Labour Provisions in African Constitutions 1987-Library of Congress Catalogue Number 87-71497) LABOUR LAWS AND THE NEW CONSTITUTION

  5. Constitution Promulgated on 27th August 2010. • Constitution as the Grundnorm and the basis of Legislations. • Constitution defines the systems of governance and establishes the rights and duties of the governed. LABOUR LAWS AND THE NEW CONSTITUTION

  6. Constitutions are embodiments of universal laws on Human rights • In labour relations State constitutions are local embodiments of the ILO Conventions upon which labour Laws are founded. LABOUR LAWS AND THE NEW CONSTITUTION

  7. 2.SALIENT FEATURES OF THE NEW CONSTITUTION 2.1 CHAPTER 2 THE VISION AND MISSION OF THE STATE Article 8- No State Religion A Secular State-But guarantees the individual religions and beliefs of its people. LABOUR LAWS AND THE NEW CONSTITUTION

  8. Article 10(2)- The national values principles of governance (a) patriotism, national unity, sharing and devolution of power. The rule of law, democracy and participation of the people; (b) Human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination and protection of the LABOUR LAWS AND THE NEW CONSTITUTION

  9. Marginalized: (NOTE: The effect of Affirmative Action Section 5(3) of the Employment Act No. 11 of 2007) (c) Good governance, integrity, transparency and accountability; and (d) sustainable development LABOUR LAWS AND THE NEW CONSTITUTION

  10. 2.2 THE BILL OF RIGHTS 2:2:1 Purpose of the Bill of Rights To recognize and protect human rights; fundamental freedoms; dignity of individuals and communities and to promote social justice and realization of the potential of all human beings. LABOUR LAWS AND THE NEW CONSTITUTION

  11. 2:2:2 Fundamental Rights are subject to limitations 2:2:3 Applies to all law and binds all State Organs and all persons. - This is a departure from the traditional belief on application of the bill of rights - Courts expected to promote bill of rights and take a more proactive approach. LABOUR LAWS AND THE NEW CONSTITUTION

  12. 2:2:4 Effect of the State’s inability to apply Bill of Rights (Article 20(2). Onus upon the State to prove inability 2:2:5 The State to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. Article 21(4) LABOUR LAWS AND THE NEW CONSTITUTION

  13. -This is a re-enactment of the 1998 ILO Declaration on Fundamental Principles and Rights at Work. LABOUR LAWS AND THE NEW CONSTITUTION

  14. -ILO Declared that all member states have: “ An obligation from the very fact of its membership of the Organization to respect, promote and realize in good faith and in accordance with the Constitution the principles concerning fundamental rights which are the subject matter of the eight conventions. ” The eight conventions are: *Convention No. 29 on Forced and Compulsory Labour *Convention No. 98 on Application of Principles of the Right to Organize and Bargain Collectively *Convention NOO 100 on Equal Remuneration for Work of Equal value LABOUR LAWS AND THE NEW CONSTITUTION

  15. 2:2:6 Rights Subject to Limitations and Rights not Subject to Limitations (a) Subject to Limitations • Right to Life • Equality and freedom from discrimination • Human dignity • Freedom and Security of the person LABOUR LAWS AND THE NEW CONSTITUTION

  16. Privacy • Freedom of conscience, religion, belief and opinion • Freedom of expression • Freedom of the Media • Access to information • Freedom of association • Freedom to Assemble, Demonstrate, Picket and Petition • Political Rights LABOUR LAWS AND THE NEW CONSTITUTION

  17. Movement and residence • Protection of Property • Labour Relations • Environmental Rights\Economic and Social Rights • Language and Culture • Family • Consumer Rights • Fair Administrative action • Access to Justice LABOUR LAWS AND THE NEW CONSTITUTION

  18. COURT CASES WHICH HAVE TOUCHED ON LIMITATION OF BILL OF RIGHTS • Kenya Airways Limited versus Aviation and Allied Workers Union Cause No. 1234 of 2010 “ It could not have been the intention of parliament and the people of Kenya when they passed the new constitution to licence wild cat strikes that are staged outside the legal machinery. The notion that the new constitution gives workers an unlimited right to strike is in the view misguided, fallacious and a result of misinterpretation of the constitution. LABOUR LAWS AND THE NEW CONSTITUTION

  19. Strikes or lock outs that are not undertaken in compliance with the provisions of the Labour Relations Act 2007 are unprotected strikes or lock-outs. In respect of trade unions can lead to any of the following consequences. LABOUR LAWS AND THE NEW CONSTITUTION

  20. Firstly the employer is entitled to sue for an injunction against the strike as the claimant did in this case. • Secondly the employer may be able to dismiss striking employees fairly and lawfully on grounds of misconduct or operational requirements LABOUR LAWS AND THE NEW CONSTITUTION

  21. Thirdly the employer may be entitled to claim for damages or compensation for losses sustained as a result of the strike. The employees are not entitled to pay for the period of the strike. • When your enjoyment of your fundamental rights affect the enjoyment of fundamental rights of others, then your enjoyment of such rights may be curtailed in the public interest.” LABOUR LAWS AND THE NEW CONSTITUTION

  22. CONTRAST WITH… • In the matter of Registration of the Kenya Police Union: Nicky Njuguna and others versus Registrar of Trade Unions Appeal No. 1of 2007 • Samuel G. Momanyi versus The Attorney General and SDV Transami Kenya Limited- Petition No. 341 of 2011 LABOUR LAWS AND THE NEW CONSTITUTION

  23. (b) Not Subject to Limitations • Freedom from torture and cruel, inhuman or degrading treatment or punishment • Freedom from slavery or servitude • Right to a fair trial • Right to an order of habeas corpus LABOUR LAWS AND THE NEW CONSTITUTION

  24. POSSIBLE CHALLENGES WITH FREEDOM FROM SLAVERY AND SERVITUDE • Article 30 of the Constitution • Sammy Muliro Versus Kenya Power & Lighting Company Limited (No. 2) (2004)eKLR • Telkom Kenya Limited versus Industrial Court of Kenya. • Section 12 (3)(vii) Industrial Court Act LABOUR LAWS AND THE NEW CONSTITUTION

  25. 3. THE CONSTITUTION AND EXISTING LABOUR LEGISLATIONS • The Labour Institutions Act of Kenya,2007 • The Employment Act of Kenya,2007 • The Work Injury Benefits Act • The Labour Relations Act,2007 • The Occupational Health and Safety Health Act, 2007 LABOUR LAWS AND THE NEW CONSTITUTION

  26. 3.1 ADJUDICATION OF LABOUR DISPUTESTHE LABOUR INSTITUTIONS ACT • An Act of Parliament to establish labour institutions to provide for their functions, powers and duties and to provide for other matters connected thereto. • It provided for establishment of the Industrial Court under section 11. - Article 162(2) states : “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to- (a) employment and labour relations;” LABOUR LAWS AND THE NEW CONSTITUTION

  27. THE INDUSTRIAL COURT ACT 2012 The status of the Industrial Court Article 162(2) “… Court with the status of the High Court to hear and determine disputes relating to:- (a) Employment and labour relations;” LABOUR LAWS AND THE NEW CONSTITUTION

  28. United States International University versus The Attorney General (2012)eKLR • Wrigley Company (East Africa) Limited versus the Honourable Attorney General Petition No. 22 of 2012. • Constitutional Court review of the previous decision of the Industrial Court (Tribunal) LABOUR LAWS AND THE NEW CONSTITUTION

  29. Appeals Industrial Court decisions are now appealable to the Court of Appeal pursuant to Article 164(3) of the Constitution read together with section 17 of the Industrial Court Act. • Appeals are on matters of law. LABOUR LAWS AND THE NEW CONSTITUTION

  30. THE CONSTITUTION AND LABOUR INSTITUTION ACT • Section 4 (1) (a) of the Labour Institution Act provides that the act does not apply to the “armed forces” • This should be amended to read “Kenya Defence Forces” as provided in Article 241 (2) of the Constitution. LABOUR LAWS AND THE NEW CONSTITUTION

  31. If the Act is not applying to the “Kenya Defence Force” then it should equally not apply to the National Police Service as established under Article 243 • The Original Draft of the Labour Institutions bill was not to apply to the Police Force and some forces who have an interest in unionizing the Police Force colluded to delete the word “Police Force’ from the Bill. • Add National Intelligence service. LABOUR LAWS AND THE NEW CONSTITUTION

  32. Delete the word “Minister” and replace with “Cabinet Secretary” in both the definition and throughout the Act. LABOUR LAWS AND THE NEW CONSTITUTION

  33. Section 4(2) - Can the Cabinet Secretary whether in consultation with the Board exclude any category of employees from being subject to the Act? - If the exclusion is to the employees prejudice would that amount to discrimination? LABOUR LAWS AND THE NEW CONSTITUTION

  34. To exclude any person from the Application of the Act can only be done upon Fair Administrative hearing as per Article 47 LABOUR LAWS AND THE NEW CONSTITUTION

  35. Section 6(1)- National Labour Board created for the purpose of tripartite consultation -Tripartite Consultation is necessary pursuant to Convention no. 144 -Convention No. 144 is ratified by Kenya LABOUR LAWS AND THE NEW CONSTITUTION

  36. It forms part of the Labour Law courtesy of Article 2(6) of the Constitution of Kenya. • There ought to be equality in representation otherwise employers and workers are being discriminated against. - Membership is skewed in favour of Government LABOUR LAWS AND THE NEW CONSTITUTION

  37. Membership-there should be only three members appointed by the Government - The rest of the Government officials should be co-opted non voting members LABOUR LAWS AND THE NEW CONSTITUTION

  38. There is need for observance of national Values and Principles of Governance by the Board Members. Gender representation ought to be observed as per Article 27(8) of the Constitution. LABOUR LAWS AND THE NEW CONSTITUTION

  39. - Section 37(c)- As worded purports to create an obligation on the employer to provide food to employees. No such obligation should exsist its unconstitutional. LABOUR LAWS AND THE NEW CONSTITUTION

  40. Section 63 of the Labour Institutions Act has been rendered obsolete. Appointment of Industrial Court Judges and supporting staff done by the Judicial Service Commission. LABOUR LAWS AND THE NEW CONSTITUTION

  41. 3.3 THE CONSTITUTION AND THE EMPLOYMENT ACT -Section 3(2)- the “armed forces” should be referred to as “the Kenya Defence Forces”. - the “Kenya Police” should be referred to as the “National Police Service” LABOUR LAWS AND THE NEW CONSTITUTION

  42. - Include the National Intelligence Service as one of the organs exempted from the Application of the Act. LABOUR LAWS AND THE NEW CONSTITUTION

  43. - Section 19(6) - A person convicted of deducting an employees wages and not remitting it to the relevant authorities should upon being fined be ordered to refund the deducted sum to the employee or pay the amount to the relevant authorities using the same amount he would have refunded. To ask such a LABOUR LAWS AND THE NEW CONSTITUTION

  44. person to refund the amount to the employee and use his own money to pay the relevant authorities may amount to double jeopardy contrary to Article 50(2)(o) of the Constitution. -Section 24- provides that an employer gives the Labour Officer or District Commissioner notice of an employee’s death as soon as practicable. LABOUR LAWS AND THE NEW CONSTITUTION

  45. - The word “District Commissioner” should be deleted and replaced with ‘County Governor” in line with the principle of devolved governed provided in Article 174 and 175 of the Constitution. NEW LABOUR LAWS AND THE NEW CONSTITUTION

  46. -Section 29(1) – Maternity Leave - There is need to debate whether the granting of three months maternity leave and non forfeiture of annual leave in the same year is not an excessive benefit given to female employees to the detriment of employers who get nothing in return. - Is it a discriminative provision against male employees? LABOUR LAWS AND THE NEW CONSTITUTION

  47. - Is the provision compatible with national values of rule of law, human dignity, equality, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized? - Is the provision compatible with sustainable development? (See Article 10 of the Constitution) LABOUR LAWS AND THE NEW CONSTITUTION

  48. - Also note that under Article 21(3) women are listed amongst the vulnerable groups who need special protection from the State. Is the benefit being afforded under the Maternity leave provision a reasonable provision? - Note further under Article 27(1) every person is equal before the law and has a right to equal benefit of the Law; Article 27(2)-equality is said NEW LABOUR LAWS AND THE NEW CONSTITUTION

  49. - To include full and equal enjoyment of all rights and fundamental freedoms. - Article 27(3)-Women and men are entitled to equal treatment including the right to equal opportunities, political, economic, cultural and social spheres NEW LABOUR LAWS AND THE NEW CONSTITUTION

  50. - Note - Under Article 43(1)(a) every person is entitled to the highest attainable standard of health which includes the right to health care services including reproductive health care. NEW LABOUR LAWS AND THE NEW CONSTITUTION

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