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{
    "id": 1381013,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1381013/?format=api",
    "text_counter": 168,
    "type": "speech",
    "speaker_name": "Tharaka, UDA",
    "speaker_title": "Hon. George Murugara",
    "speaker": null,
    "content": " Thank you very much, Hon. Temporary Speaker. I have gone through the Bill as presented by the Senate. I have also gone through the Committee's Report as prepared by the Departmental Committee on Labour. Having looked at this Bill, the cardinal principle of legality is that you cannot approbate and reprobate at the same time. There is no way you can confer rights upon persons without corresponding obligations to them. I am not sure where this Bill was lifted from, but it is in contravention of employment laws in the country, especially bearing in mind that employment law is civil but not criminal law. It is based on a contract between two persons: an employer and an employee. There are always arguments about whether this contract is at arm's-length. However, provided that it is supported by consideration, it is a valid contract, and the courts hold so. When you confer a right on the employees to disconnect from their employers, the next question is whether the employers have a right to also disconnect from the employees. It cuts both ways because whatever makes an employer want to connect with an employee outside the working hours may be the same reason that the employee must also connect with the employer. Therefore, one of the reasons I oppose this Bill is because it does not give the right to the employer to disconnect. Let us move on to the element of disconnection, which this Bill criminalises. It states: A person who contravenes this Section commits an offence and is liable, on conviction, to a fine not exceeding Ksh500,000 or imprisonment for a term not exceeding one year or both. A fine run together with a prison term is disproportionate. You cannot be fined Ksh500,000 and if you fail to pay, you are sent to prison for a year. It has to be commensurate. Therefore, the number of years must be slightly more than what is provided here. This is a contract between two parties such that if one party breaches it, the other party should not be taken to court, convicted, fined or sent to prison. The remedy for breach of civil rights is damages. The employee should be entitled to an action and damages if the employer breaches this provision. There is an exemption on essential services listed under the Labour Relations Act. Essential services may not necessarily be what we know in common life. There may be a reason why an employer would want to connect with the employee outside working hours to ensure that an element of the contract being executed is performed. Correspondingly, there may be a reason why the employee would want to connect with the employer during outside hours. For example, when one is sick, one has to get a cover, an ambulance or whatever aid that may be necessary. In contracts of employment, we have working hours. If you work outside those hours of employment, you are entitled to a payment known as overtime. What is the problem with an employer connecting with an employee to work overtime for which there would be a commensurate remuneration? I do not see any, and that is why I oppose this Bill. In essence, this Bill goes towards breaching contracts of employment in both ways. It does not help the modern-day market in employment as per requirements. The employment market has evolved over a period of time. Beginning with the Communal African Societies where there was no employment, all work was communal and nobody expected any remuneration. From there, we went to the ugly scene of slavery where some people felt that they were entitled to labour without paying for it – exploitation – a load. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
}