9/21/2022
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LABOUR INSTITUTIONS ACT, 2007
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LABOUR INSTITUTIONS ACT, 2007
• An ACT of Parliament to establish
labour institutions, to provide for
their functions, powers and duties
and for other matters connected
thereto.
• There are various important terms to
note in the definitions.
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Some important definitions –
s.3LIA 2007
• “collective agreement” means a
registered agreement concerning
any terms and conditions of
employment made in writing
between a trade union and
employer, group of employers or
employer’s organisation.
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• “employee” means a person who has
been employed for wages or a salary
and includes an apprentice or
indentured learner.
• “employer” means any person,
including the Government, who
employs or has employed an
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• “employers organisation” means any
number of employers associated
together for the purpose … of
regulating relations between
employers and their employees or
the trade unions representing those
employees.”
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• “federation” means a registered
federation of trade unions or
employer’s organisation.
• “labour law” means any Act dealing
with labour matters.
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• “trade union” means an association
of employees whose principal
purpose is to regulate relations
between employees and employers,
including an employer’s
organisation.
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• “redundancy” means the loss of
employment, occupation, job or
career by involuntary means
through no fault of an employee,
involving termination of employment
at the initiative of the employer… .
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Important officials to note
• Commissioner for Labour.
• Registrar of the Employment &
Labour Relations Court.
• Registrar of Trade Unions.
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Scope of the LIA 2007
• The LIA does not apply to:
-> the armed forces or reserve.
-> the National Youth Service.
(S.4 LIA 2007)
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THE NATIONAL LABOUR BOARD
• Established by s.5 LIA.
• S.6 – states the constitution of the
board.
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S.6 LIA
“6. (1) The Board shall consist of the following
members … —
(a) a chairperson who has experience and
expertise in labour relation matters;
(b) the General Secretary of the most
representative federation of trade unions;
(c) the Chief Executive of the most
representative federation of employers’
organisation;
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(d) two persons appointed from nominees of
the most representative federation of
employers’ organisation dealing with labour
matters;
(e) two persons appointed from nominees of
the most representative federation of trade
unions;
(f) not more than two other independent
members;
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(g) the Director of Employment;(h) the Director
of Micro and Small Enterprise Development;
(i) the Director of Occupational Safety and
Health Services;
(j) the Director of Industrial Training;
(k) the Registrar of the ELR Court; and
(l) the Registrar of Trade Unions.
….
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FUNCTIONS OF THE BOARD – S.7
• Advice the Minister on:
“ (a) all matters concerning employment and
labour;
(b) legislation affecting employment and labour;
(c) any matter relating to labour relations and
trade unionism;
(d) any issue arising from the International
Labour Organisation and the International
Labour Organisation Conventions;
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(e) codes of good practice;
(f) any issue raised by an international or
regional association of states of which Kenya is a
member;
(g) systems of labour inspection and the
administration of the labour laws;
(h) any aspect of public employment services,
vocational guidance, vocational training and the
employment of persons with disabilities;
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(i) the formation and development of policies
designed to promote the granting of paid
educational leave to workers for the purpose of
training, trade union social and civic education
and trade union education;
(j) the general state of employment, training and
manpower development in the country;
(k) productivity measurement and
improvement;
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(l) the appointment of wages councils;
(m) the appointment of members of the ELR
Court;
(n) the setting of compensation benefits in
accordance with the provisions of the laws
relating to work injury benefits;
(o) the registration, suspension and
deregistration of trade unions and employers
organisations; and
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(p) any other matter related to any of the
Board’s functions.
2) The Minister shall, in consultation with the
Board advise—
(a) the Government on the issuing of
immigration entry permits and work permits to
non-citizens; and
(b) the Chief Justice on the assignment of judges
to the ELR Court and the Rules of the ELR Court.
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Role of the Secretary of the Board
(s.7 (6) LIA)
“(6) The Secretary to the Board shall brief the
Board at least once in every three months on
the following issues—
(a) the general state of the economy according
to the Government;
(b) labour market information and employment
trends;
(c) reported strikes and lockouts;
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(d) inflationary trends and indices;
(e) the number of complaints and disputes
lodged by employees against employers and by
employers against employees under the law
relating to labour relations and progress in the
settlement of such complaints or disputes;
(f) labour inspection services; and
(g) any other issues determined by the Minister
or the Board.
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• S.10 LIA – the Commissioner for Labour shall
be the secretary of the Board.
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COMMITTEES OF THE BOARD –
S.8(1) LIA
“8. (1) The Board shall, in consultation with the
Minister, establish the following committees—
(a) Work Permits Committee;
(b) National Manpower Development
Committee;
(c) Trade Disputes Committee;
(d) Productivity Committee; and
(e) such other committees ..as are necessary for
the performance of the Board’s functions.
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REMUNERATION OF BOARD
MEMBERS – S.9
“9. There shall be paid to the Chairman and
members of the Board such remuneration, fees
or allowances for expenses as the Minister in
consultation with the Minister in charge of
finance, may determine.”
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s.11-27 – On Industrial Court
• Repealed by No. 20 of 2011
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COMMITTEE OF INQUIRY
• S.28 (1) – The Minister may appoint a
Committee of Inquiry into any matter that is
connected to or appears relevant to any trade
dispute.
• S.28(3) - A Committee of Inquiry shall consist
of three or more persons including a
chairman, as the Minister deems fit to appoint
and the Minister may appoint a public officer
to be the secretary of the Committee of
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Report of the Committee of Inquiry
“29. (1) A Committee of Inquiry shall inquire
into and report on any matter referred to it
under section 28 and shall submit a report on
the matter to the Minister.
(2) Subject to section 24, the Minister may
order the publication of any report made by a
Committee of Inquiry in whole or in part and in
such manner and at such time as the Minister
deems fit.”
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LABOUR ADMINISTRATION AND
INSPECTION
• This part of the LIA deals with:
-> Appointment of Commissioner for Labour,
Director of Employment and other officers.
-> Appointment of Registrar, Deputy Registrar
and Assistant Registrars of trade unions.
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Appointment of Commissioner for Labour,
Director of Employment and other officers.
30. (1) Subject to the laws governing the public
service, there shall be appointed—
(a) a Commissioner for Labour;
(b) a Director of Employment; and
(c) such other officers as may be necessary for
purposes of administration of laws relating to
labour and employment . (These officers may
be designated as labour officers, employment
officers or medical officers).
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Appointment of Registrar, Deputy Registrar and
Assistant Registrars of trade unions.
“31. (1) The Minister shall appoint a Registrar of
Trade Unions who shall be responsible for the
registration and regulation of trade unions,
employer’s organisations and federations.
(2) The Minister may appoint a deputy registrar
of trade unions, assistant registrars of trade
unions and such other officers as may be
required for the purposes of this Act.
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(3) The Registrar of Trade Unions shall, in the
exercise of his powers relating to the
registration and regulation of trade unions, act
on the advice of the Board.”
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DELEGATION – s.32
• The Commissioner for Labour may, in writing,
delegate to any labour officer some of their
functions.
• The Director of Employment: -> any
employment officer.
• The Registrar of Trade Unions: -> the Deputy
Registrar or Assistant Registrar.
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Certificate of Authority – s.33
“33. (1) Every authorised officer shall be issued
with a certificate of authority by—
(a) the Commissioner for Labour, in the case of
a labour officer;
(b) the Director of Employment, in the case of
an employment officer; and
(c) the Director of Medical Services, in the case
of a medical officer.
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“33 (2) When performing duties under this Act,
an authorised officer, if reasonably requested to
do so by any person affected, shall produce his
certificate of appointment to that person.”
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Powers of entry to premises – s.34
• “34. (1) - An authorised officer may, either
alone or in the presence of another person,
enter any premises …. for the purpose of
performing his duties as specified under…
labour law.
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• S.34 (2) An authorised officer shall, on the
occasion of an inspection… notify the
employer or his representative of his presence
for that purpose at the first practicable
opportunity, unless it is considered …
prejudicial to the performance of his duties.
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Powers of labour officer – s.35
• A labour officer may for the purpose of
monitoring or enforcing compliance:
- Require the production of wage sheets or
other employment records.
- Require information with respect to the
names and addresses of employees and
workers.
- Inspect and copy any material kept by an
employer.
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- Examine any person the labour officer has
reasonable cause to believe has been an
employee.
- At all reasonable times, enter, inspect and
examine any land or building… where the
labour officer believes an employee is residing.
- At all reasonable times require an employer to
produce an employee employed by him.
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- Examine and make copies of a register, record
or book or other document relating to
employment.
- Seize any register, record or book which he
reasonably believes to contain evidence of an
offence. (a receipt needs to be given by labour
officer for this).
- Enter and inspect all latrines and other
sanitary arrangements.
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- Inspect and examine all food provided for
employees.
- Order that all buildings and premises where
employees are houses are kept in a clean and
sanitary condition.
- Institution proceedings in respect of
contravention of any provision of LIA 2007.
- Take into custody any child he reasonably
suspects to be employed in contravention of
employment law.
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Powers of Employment officer –
s.36
• An employment officer may for the purposes
of collecting labour market data:
- Require the production of wage sheets or other
employment records.
- Require information with respect to the names
and addresses of employees and workers.
- Inspect and copy any material kept by an
employer.
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- At all reasonable times require an employer to
produce an employee employed by him.
- Examine and make copies of a register, record
or book or other document relating to
employment.
- Where an employment officers seizes a register,
record or book, a receipt shall be given.
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Powers of a medical officer - 37
• A medical officer may:
- At all reasonable times, enter, inspect and
examine any land or building… where the labour
officer believes an employee is residing.
- At all reasonable times require an employer to
produce an employee employed by him.
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- Examine and make copies of a register, record
or book or other document relating to
employment.
- Seize any register, record or book which he
reasonably believes to contain evidence of an
offence. (a receipt needs to be given by labour
officer for this).
- Enter and inspect all latrines and other sanitary
arrangements.
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- Inspect and examine all food provided for
employees.
- Order an employee who in the opinion of the
medical officer is sick… to proceed to hospital.
- Condemn any food provided for employees
which is unfit for human consumption.
- Order at the expense of the employer , such
variety of food as he may deem necessary.
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- Condemn any building or structure in which
an employee is residing , if it is not fit for
purpose.
- Order an employer to supply an employee
under a written contract of service with
blankets or clothing the reasonable cost to be
deducted from the employee’s wages.
- Inspect all drugs and medicine provided for
the use of employees.
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Obstructing an authorised officer –
s.38
• This is an offence.
• On conviction, liable to a fine not exceeding
one hundred thousand shillings (Kshs.
100,000/-) or to imprisonment of a term not
exceeding six months or both.
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Offences by companies – s.39
• A personal liability approach is taken.
• “39. (1) Where an offence under this Act
is committed by a company, association or
body of persons, corporate or incorporate or
by a public body, and the offence is proved to
have been committed with the consent or
connivance, or to have been facilitated by any
neglect on the part, of any director, chairman,
manager, secretary or other officer employed
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by such company or association or body of
persons or public body, that director, chairman,
manager, secretary or other officer shall be
deemed to have committed an offence.”
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Confidentiality – s.41
• Officers are under a duty of confidentiality to
officers and can only disclose information on
employers for the purposes of exercising their
functions or when required to do so by a court.
• Breach of this rule results in liability to a fine
not exceeding Kshs. 100,000 or to
imprisonment for a term not exceeding 6
months or both.
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Annual Report – s.42
• “42. (1) The Commissioner for Labour and the
Director of Employment shall, not later than
the thirtieth of April in each year, prepare
and publish an annual report of the activities
undertaken in their respective departments.
(2) Without limiting what may be included in the
report of the Commissioner for Labour, the
report shall cover the following matters—
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(a) development with regard to relevant laws
and regulations;
(b) the staff under the jurisdiction of the
Commissioner for Labour;
(c) statistics of places of work to be inspected
and number of workers employed therein;
(d) findings in the course of inspection;
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(e) statistics of industrial accidents and
occupational diseases;
(f) statistics of persons with disabilities in work
places and any aids being provided by the
employer;
(g) statistics of proceedings brought before the
ELR Court or other courts and their disposal; and
(h) statistics of stoppages of work in various
sectors of the industry.
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3) Without limiting what may be included in the
report of the Director, the report shall cover the
following issues—
(a) the staff under the jurisdiction of the
Director;
(b) productivity level; and
(c) labour market information and employment
trends.”
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Wage Councils –s.43
• 43. (1) The Minister, shall establish—
(a) a general wages council; and
(b) an agricultural wages council.
• Part of the role of the wage council is to
recommend the minimum wage and
conditions of employment.
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Functions of the wages council –
s.44 (1)
• To:
(a) investigate the remuneration and conditions
of employment in any sector;
(b) invite and consider written and oral
representations, in the prescribed manner,
from interested parties; and
(c) make recommendations to the Minister on
minimum wage remuneration and conditions
of employment.
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s.44(5)
“(5) In the performance of its functions under
this section, a wages council shall take into
consideration—
(a) the needs of employees and their families,
taking into account the general level of wages in
the country, the cost of living, social security
benefits and the relative living standards of
other social groups;
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(b) economic factors, including the
requirements of economic development, levels
of productivity and the desirability of attaining
and maintaining a high level of employment and
the need to encourage investment;
(c) the ability of employers to carry on their
business successfully;
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(d) the operation of small, medium and micro
enterprises;
(e) the cost of living;
(f) the alleviation of poverty;
(g) the minimum subsistence level;
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(h) the likely impact of any proposed conditions
of employment on current employment or the
creation of employment; and
(i) any other relevant factor.”
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Publication of wages order
• The Minister may publish a wages order (s.46)
• Contents of a wages order include (S.47):
- Minimum rate of remuneration;
- Specify when an employer may make
deductions from employees wages and specify
maximum amount of deductions;
- Specify maximum amount of deductions to be
made in respect of rations.
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- Provide that an employer may only make a
deduction in respect of rations supplied if
authorised in writing by a labour officer;
- regulate task based work and piece work;
- regulate outwork, casual work and contract
work;
- set minimum standards for sanitation for
employees who reside on the premises of
their employer; and
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- Regulate any matter concerning remuneration
or conditions of employment.
*** The Wages Order is to constitute minimum
terms of conditions of employment (s.48).
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• An employer who fails to pay minimum wage
commits an offence.
• If found liable, in addition to any other
penalty, the court may pay the employee the
difference between the amount which ought
to have been paid in terms of the wages
order and the amount which was actually
paid.
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Power of officers to institute
proceedings
• A labour officer may institute proceedings on
behalf of an employee for the recovery of a
sum due from an employer to an
employee.(s.49)
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Employment agencies
• An agent is considered an employer for the
purposes of this Act (s.54 (1)
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PART 4
THE EMPLOYMENT & LABOUR
RELATIONS COURT ACT
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THE ELR COURT
• The ELR Court is a specialist court established
to deal with employment and labour
relations matters.
• In USIU v Attorney General & 2 Others (2012)
it was held that the ELR Court has the status
of a High Court and is competent to interpret
the Constitution and enforce matters relating
to breach of fundamental rights and
freedoms relating to labour and employment.
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35
