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"speaker_name": "Mr. Muturi",
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"legal_name": "Justin Bedan Njoka Muturi",
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"content": "Mr. Deputy Speaker, Sir, in the case of our public transport system, it has always baffled me that we keep blaming the police, and yet, we have not quite found out whether the people who are engaged in handling our public transport vehicles are actually fit health-wise to handle those vehicles and whether the conditions of their health at all times, could not be a contributor to the numerous accidents that occur on our roads. It is important that, as we debate this Bill, we actually extend the definition of the responsibilities. This is captured in Part II of this Bill; the duties of the employer or occupier. I believe that whoever is referred to as \"occupier\" that definition should extend to any such employer as the employer of a matatu or bus driver. Mr. Deputy Speaker, Sir, like in the Employment Bill, which we have already discussed, I welcome the requirement for registration. Employers and occupiers, as defined here, are supposed to keep general registers. I only hope that those registers will be documents to which the Ministry and their staff will have regular recourse to, especially when giving instructions and giving inspection reports; so that a mere fact that there is requirement to keep a register is not taken by any employer or occupier, as the case maybe, as a mere requirement which is not regularly used. I would like to make a case about some of the provisions, not all of them, because I want to give time to my good brother and junior counsel, Mr. Mungatana to say a few other things. I will only cover a few of the parts in the beginning because I just began reading a few minutes ago. It is important that, when we are making these provisions, we bear in mind that the documents that we are requiring that they be kept, will be kept as a matter of law. It must be a 1500 PARLIAMENTARY DEBATES May 22, 2007 statutory requirement, so that if a person does not keep such records, there will be recourse to the justice system. I find that the definition about who an owner is, a bit interesting. The occupier is defined as \"the person or persons in actual occupation of a workplace, whether as the owner or not.\" I am not too sure that if we go by this definition, then those who are in the transport business will be captured by it. In light of my proposal that they too be required to keep those records on safety of their workers, there will be need to re-look at this definition so that it captures as many people as possible. The owner is defined as:- \"The person for the time being, receiving the rent or proceeds of premises whether on his own account, as an agent or trustee of another person.\" To me, this definition is very narrow. The owner is not just a person receiving profits or rent. The owner must the one owning. If I am the owner of a bus, I may not just be described as a person who is receiving profits. I think we need to extend it to include many more people so that all manner of employers are captured. Mr. Deputy Speaker, Sir, I move on to Clause 3, Sub-clause (2) which provides that:- \"The purpose of this Act is to:- (a) secure the safety, health and welfare of premises at work; and, (b) protect persons other than persons at work against risks to safety and health, arising out of, or in connection with the activities of persons at work.\" I will not pick any quarrel with that, especially with regard to the provision of safety, health and welfare of persons at work. It seems to protect even those who are not necessarily employed in a place of work. Clause 4(1), states:- \"For the purposes of providing practical guidance with respect to any provisions of this Act and of safety and health regulations, the Director may approve and issue codes of practice as are in his opinion suitable for that purpose.\" The only thing that I would like to add is that the Director may not act on his own volition. To avoid caprice setting in certain situations, the Director should be compelled to consult with the relevant discipline so that whatever safety regulations he may propose, have the acceptance of the particular discipline. Where he thinks that they may not serve the purpose, he can withdraw them. Mr. Deputy Speaker, Sir, moving on to Part 2 of the Bill - General Duties, it is the most critical part of this Bill. Every occupier is required to ensure that there is safety, health and welfare at work of all persons working in his workplace. Mr. Deputy Speaker, Sir, I only have a small issue to raise with regards to Clause 6. Sub- clause 3 says:- \"Every occupier shall carry out appropriate risk assessments in relation to the safety and health of persons employed and, on the basis of these results, adopt preventive and protective measures to ensure that under all conditions of their intended use, all chemicals, machinery, equipment, tools and processes under the control of the occupier are safe and without risk to health and comply with the requirements of safety and health provisions made in this Act.\" I just wanted to add the following and I hope the Minister will take it into account. It is a very good obligation placed on the occupier. But experience has shown that, if the occupier is the one to make the assessment in relation to his own premises, without the report of such assessment being filed with a relevant Government body established under this Act or this law, we run the risk that when an accident occurs at a work place, or an employee working at a particular place suffers injury or harm to his health or person--- When a complaint is raised, that is when the owner or the occupier will rush to provide some assessment report. Then, they will argue that they had already provided that. I think there is a need to put a rider that such assessment report by the occupier must May 22, 2007 PARLIAMENTARY DEBATES 1501 be filed with the relevant department or arm of the Government. In that way, when an injury occurs to a worker, if there is a labour inspector or an officer appointed under the Workmen's Compensation Act, they go to the place. They carry the assessment report made by the occupier, which he had filed with the department. If somebody complains that he or she has been injured and he or she is an employee of the Kenya National Assembly, the Parliamentary Service Commission will have filed a report saying: \"This is an assessment report of our area. We have provided this to our employee.\" The labour department or whatever office would have something. So, by the time they come to asses the complaints, it is not something that is been made after the accident has occurred. That is becoming wise after the fact! So, what I am proposing is that there should be a requirement that, that assessment, for purposes of safety and security of workers, be filed and kept so that workers can feel safe and secure. It should be displayed at the work place. Assuming that it is a factory, it must display those safety measures. Indeed, it says, and let me read it once again:- \"---appropriate risk assessment in relation to the safety and health of persons employed---\" That safety assessment and health of the persons working there should be displayed in a conspicuous place within the work place, and be filed with the department in a manner that I have already proposed, so that it is not changed after an accident has occurred. Mr. Deputy Speaker, Sir, this duty, in my opinion, is a very serious and onerous one on the occupier to the extent that, in Clause 6, Sub-clause 6, I think we should provide for a specific penalty for failure to undertake that. That is because the way it is now, it reads:- \"It shall be an offence for a person on whom a duty is imposed under this section to fail to carry out such a duty.\" That is a very good deterrent, but it is not good enough! That is because it will await the operation of Section 109, Sub-section (1), which provides for general penalties for violations of the entire Act, for which no specific penalty is provided. What I am saying is that, because of the importance of this duty imposed on the occupier, I am appealing to the Ministry to consider providing for a specific penalty so that, even as the occupier makes the assessment and files with the Ministry and displays there, they will know that the penalties for not doing that are A, B, C, D. We do not need to leave it for the general penalty clause, which is Clause 109 of the Bill. I hope the Ministry will consider that. I am appealing for something which is similar to Clause 8, Sub-clause 2, where we have provided a penalty for the offence. It reads:- \"An occupier who contravenes the provisions of this section 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 three months or to both.\" That is what I am say about Clause 6, Sub-clause 6. We should have something specific for that particular offence, which is not general to the other Clauses. Mr. Deputy Speaker, Sir, with regard to Clause 9, I find that a welcome provision. It reads:- \"Every occupier shall establish a safety and health committee at the work place in accordance with regulations prescribed by the Minister if- (a) there are twenty or more persons employed at the work place---\" Those are the kind of new provisions in our laws that we want to encourage. I think it is good. But I think the Ministry will look at the merits or demerits of providing for the composition of that Committee. I think the Committee should comprise both the occupier's representative and the worker's representative. It should go ahead and provide that nothing done by an employee, who is a member of such a committee, in furtherance of the objects of that section, shall be held against him or her by the occupier. I think we need to get something like that. When workers in a place are 20 and above, they need to feel that they are involved in the way their conditions of work are 1502 PARLIAMENTARY DEBATES May 22, 2007 formulated. In Sub-clause 2, I seem to pick an issue with a small thing. \"The Minister may make regulations to provide for the organisation, functions and activities of the safety and health committees, including the election of safety representatives, their rights and duties, and for the training of the members of the safety and health committees and safety and health representatives.\" I think that is the kind of composition I was referring to. But since we are making it merely permissive, what happens if the Minister does not make those regulations? It means, therefore, that a work place, where the Minister has not made any regulations, can remain hazardous to the workers. I think we should provide that, in all situations, where there are 20 or more employee, the Minister shall make regulations to provide for the organisation, functions and activities of the safety and health committees. We are looking at the safety of workers in this country. I have seen recent trends where even when we quote the figure of 20, some employers--- I am no racist. However, it is unfortunate that this trend is mainly traceable to the caucasian race. They have developed very interesting methods of ensuring that they continue to exploit workers in this country. Mr. Speaker, Sir, in some instances, they have devised methods whereby they give you work for five days and then you are told the work is finished. The next five days you have no work and they tell you that they may recruit after about one week. After one week, you will be employed for another five or seven days. Again, you are terminated. I do not know what we will do. I am saying this because I have seen it, particularly in road construction companies. They do this because they want to avoid paying certain dues. Mr. Deputy Speaker, Sir, I hope that keeping of records will not be defeated by that kind of practice. In the end, it makes absolute nonsense of the whole concept of employment. Mr. Deputy Speaker, Sir, I find Clause 12 welcome. I must commend the Ministry for the provisions of Clause 11 too. It is a very good clause. Clause 11(1) says:- \"The occupier of a workplace shall cause a thorough safety and health audit of his workplace to be carried out at least once in every period of 12 months by a safety and health advisor, who shall issue a report of such an audit containing the prescribed particulars to the occupier on payment of a prescribed fee and shall send a copy of the report to the Director\" I think this Clause is very good. However, again, if you remember what I said when talking about drivers; the period of 12 months becomes irrelevant. I believe that this can be carried by omnibus general penalty clause. A person who contravenes any provisions of this Act shall be liable to pay a fine of, upon conviction, Kshs100,000 or imprisonment for a term of three months. I will leave it to the Ministry to see the wisdom of leaving it as a general penalty clause as opposed to providing specifically for it. Mr. Deputy Speaker, Sir, I have a comment on Clause 12. It says:- \"Every self employed person shall:- (a) take all necessary precautions to ensure his own safety and health and that of any other person in his work place or within the environs of his work place\". What does it provide for failure to comply with that? \"A self employed person who contravenes the provision of this section, commits an offence\" So, the penalty is not prescribed. I was just thinking loudly about this clause. How about if a self employed person fails to take such precautions to ensure his own safety and health and as a consequence of that, death results? Will he have committed a crime? The clause says:- \"A self employed person who contravenes the provision of this section commits an offence.\" May 22, 2007 PARLIAMENTARY DEBATES 1503 If he or she will have died, what becomes of him or her? I think we should go ahead and say, \"he commits an offence if, as a consequence, injury does not arise upon him that results into his death.\" If he is dead, whether he has committed a crime or not, he will be punished by his maker and not ordinary mortals like ourselves. Mr. Deputy Speaker, Sir, I will move on to Part III on Adminstration, page 440, Clause 28. This looks to me like the council will be the size of the Kenyan Parliament today. The council is described as:- \"There shall be established a National Council for Occupational Safety and Health.\" Who comprises it? \"The Council shall consist of a Chairman and members specified in Subsection II which shall be appointed by the Minister by a notice in the gazette. The members of the Councils shall be:- (a) One representative from each of the following Ministries:- (i) health; (ii) agriculture; (iii) livestock development; (iv) industry; (v) water development; (vi) local authorities; and, (vii) education; (b) one representative from each of the following organisations and Government departments: (i) the Government chemist; (ii) the Kenya Bureau of Standards; (iii) the Central Bureau of Statistic; (iv) the commissioner of Insurance; (v) the Association of Kenya Insurers; (vi) the public universities; (vii) the National Environmental Management Authority; (viii) the National Council for Science and Technology---\" Mr. Deputy Speaker, Sir, these are 11 members and the others were seven members. Those are 18 persons plus the Chairman. \"three persons with the relevant qualification and experience in occupational safety and health who shall not be public officers\". I do not know! How will the Minister determine a representative of the public universities? I imagine that, at some point, there will be so many public universities in this country. Will it be right for the Minister to just pick one person to represent them? How will he or she be chosen and, or, nominated? That gives us some food for thought. I think we need to guide the Minister in the manner that he would appoint that representative. The others are well specified and I think it is clear. Mr. Deputy Speaker, Sir, we should also give the Minister some latitude to co-opt such \"other persons of high moral integrity as will in the opinion of the Minister, help in the furtherance of the work of the Council.\" I think this is important. The Minister should be able to get a few more people from outside the Government to help in the running, or even adding value to the work of the council. Generally, as I said earlier, I welcome this Bill and wholly support it. I hope that when it gets to the Committee Stage, we will see some amendments. Some will go to address the issue of typographical errors. 1504 PARLIAMENTARY DEBATES May 22, 2007 We are tired of having to point this out. We have just pointed out that there is no clause--- As we always say, the enactment of this Bill will occasion expenditure of public resources, or will not occasion any additional expenditure of public resources. It is always good to provide for it. So, I hope that when we get to the Committee Stage, because this is the fourth of these Bills which have come here for debate without the benefit of a report from the departmental Committee concerned, indicating what the Members of that Committee may have thought of the Bill - although I believe that whatever the Departmental Committee may have found - this is a welcome Bill. It updates our law, and is in keeping with modern trends. With those few remarks, I beg to support."
}