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"speaker_name": "Mr. Wetangula",
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"content": " Thank you, Mr. Minister, for clarifying that position. We just want to have the record straight. Mr. Temporary Deputy Speaker, Sir, before I move on to Clause 6 of the Bill, I want also to join my colleagues who have said that the series of Bills being brought from the Ministry of Labour and Human Resource Development are long overdue. They are Bills that we welcome and are likely to make the working life of workers in this country better. Clause 6(1)(b) is on the composition of the Board. We all know that there is the Central Organization of Trade Unions (COTU) and the Federation of Kenyan Employers (FKE). When we say the Board shall consist of the General Secretary of the most representative federation of trade unions, we are leaving room for mischief. When we say it shall consist of the Chief Executive Officer (CEO) of the most representative federation of employers in this organization, we are also leaving room for mischief. The Minister can decide to by-pass COTU and FKE and pick some innocuous representatives of organization. He can say they are the most representative federation of trade unions. I would like specifically we say \"COTU\" and \"FKE\", so that we do not leave room for discretion to be possibly abused. We have seen it happen in many places where those appointing people in positions of authority simply use the law to by-pass the most representative organization. They pick some small organization that nobody knows and say that it is also a workers organization and move on with it. I urge the Minister to change that. Mr. Temporary Deputy Speaker Sir, it is good that the Board will be able to advise the Minister. I would also want to see the Bill providing for the value that the Minister puts to that advice. We are saying that the Board will have a duty to advise the Minister. However, there is no provision in the Bill that tells us what the Minister will do with that advice. He can be advised, ignore it and move on. I would want to see the law clear on that. Mr. Temporary Deputy Speaker, Sir, we are in an era of democracy and when we set up institutions, we have a duty to give them democratic space to operate. We cannot set up a Board that will perform such fundamental functions in the labour arena and then not give it a simple authority even to hire their own Board secretary. I would like Clause 10 to be changed, so that the secretary to this Board is appointed by the Board. We can set the criteria and the qualification, so that they can advertise competitively and hire persons of competence to give services to the Board. When we say that the Minister shall appoint a secretary to the Board who shall be an officer in the department of labour with experience in labour administration and who holds a post of or at least equivalent to that of the Deputy Commission for Labour, we are just making this Board become a 1468 PARLIAMENTARY DEBATES May 17, 2007 small tool for manipulation by the Minister. We want this Board to have effective authority, so that when they give the Minister advice, it is a reasoned advice that would make things better for the workers of this country. I urge the Minister that he should not be the one to appoint the secretary to the Board. Let the Board hire and fire their officers. Equally, this Board appears to have more or less full-time functions. It should have the capacity to hire their own staff and have their own terms of service, so that they can effectively support the Minister in the discharge of his duties. Mr. Temporary Deputy Speaker, Sir, I welcome the establishment of the labour court. I think that is a wonderful idea. We will now have the labour court operating at the national level like a High Court and subordinate courts to it and with the national court having appellate jurisdiction. I would like to see that after the passage of the Bill, we have at least a minimum of a labour court in every district or every cluster of districts depending on how the jurisdiction will be crafted. Issues of labour dispute do not have to be centralised in Nairobi alone. I would also want to see that the national labour court has some circuit arrangement like the way the Court of Appeal does, so that they can hear cases at least, in every provincial centre. They should not just stick in Nairobi and people have to pay money to come all the way to them. They should be able to go to the people and dispense justice. I would also want to see that the courts are run professionally with a registry and professional staff, so that they can develop labour laws. Labour law in this country is very under-developed. This is because we have always looked at the Industrial Court as a small outfit that settles industrial disputes. We want it to develop, so that even students studying labour law at the University of Nairobi or any other university, that want to do research on labour matters access materials, library and everything from the National Labour Court. We want to develop the labour law in this country. Mr. Temporary Deputy Speaker, Sir, I would like to see in Clause 15, the members of the National Labour Court, those who are not the judge or the judges, their qualifications be defined. If we do not do so, the Minister may just wake up and fill up the courts with persons without qualification because the Act does not say who should sit in that court. It is important that Clause 15(1, 2, 3 and 4) be looked at, so that we have qualifications of persons to be appointed. More importantly, Clause 15(3) is dangerous. That the Minister can, after consultation with the board, and for good cause, revoke the appointment of a member. What is \"good cause?\" This is dangerous because if you put somebody in a labour court, they will discharge quasi-judicial functions. They need protection of the law. We cannot have a situation where, for example, when the courts want to make an unpleasant decision, then the Minister says, \"it is for a good cause to revoke the appointment of this fellow.\" By so doing, he will throw everything in disarray. I think it is important that this be changed. We want to see whoever is appointed to sit in that court enjoys protection of the law. We should also set out a criteria on how the appointment should be revoked. For example bankruptcy, lunacy, gross misconduct, unethical behaviour and so on, but not \"good cause\" which is subjective to the Minister and not somebody else. That is dangerous and will not be good law. There is a provision for appointment of assessors under Clause 16, which is good. In certain cases, you need assessors to assist in guiding the court. But I would want to urge the Minister that he broadens this Clause, so that if you have a dispute and you say that of the assessors to be appointed, one will be acceptable to the complainant and one will be acceptable to the defendant, then you are just causing a stalemate. If I bring my assessor and Muturi brings his, each one will be supporting our points of view. I think, if you want to have assessors, I would want to urge the Minister to leave it to the court itself, and simply set the criteria on who qualifies to be an assessor, so that when they are appointed, they discharge a function that is judicial, impartial and just. But if the parties are the ones to bring the assessors, it is just a furtherance of their views; it is just a protection of their interests, and it will not be able to discharge the function properly. I hope my good friend, the Minister, will see the need to adjust Clause 16. May 17, 2007 PARLIAMENTARY DEBATES 1469 Mr. Temporary Deputy Speaker, Sir, Clause 17 deals with the Registrar of the National Labour Court. When you say a Registrar of the National Labour Court shall be a person of experience in labour law and administration of labour, this, again, is not good. A Registrar of a court that is a High Court should be a person qualified in law. We should be looking for a serious person whom either the Court can hire, or since there are some services that the High Court is going to give to this court, they can ask the High Court to second a magistrate at the Principal Magistrate's level, or at the Deputy Registrar's level, to function as a Registrar, so that records are well kept, procedures are well guided, decisions are reached properly, judgements and rulings are written well, and when they are written, they are able to be kept together and compiled into reports, so that we do not have a court which today says this and tomorrow says that. If these records are properly kept by a qualified person, then they will build precedent that can guide the court in making decisions in the future. I hope the Minister will look at Clause 17. Mr. Temporary Deputy Speaker, Sir, Clause 19, I think this is not a critique, but the Minister should look at the flow of the Clause and see that there is definitely something wrong. This is because we always say that in law, you must say what you mean and mean what you say. When you read that Clause 19, it does not flow. It says: \"The National Labour Court, in both its original and appellate jurisdiction, has all the powers of a Subordinate National Labour Court under this Act and in addition to those powers may---\" This means that all the other listed issues flow from what is set out in Clause 19 (1). It continues to state thus: \"(a) may make any appropriate order--- (b) may---\" Then you see, \"the Registrar of the National Labour Court is---\". It does not flow, because that \"may\" must relate to the following clauses. I hope that those who drafted this Bill will look at that. Mr. Temporary Deputy Speaker, Sir, when you move on to (c), it states that: \"The Office of the Registrar of the National Labour Court is vacant\". It neither follows nor flows."
}