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"speaker_name": "Mr. Muturi",
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"legal_name": "Justin Bedan Njoka Muturi",
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"content": "Mr. Temporary Deputy Speaker, Sir, let me move to Part II of this Bill, which contains the General Principles. Clause 5(5) on page 158 says:- \"An employer who contravenes the provisions of this section commits an offence.\" My only quarrel there--- My advice to the Minister is: Once we identify that a person has committed an offence by not doing any of the acts provided for here, such as promoting equal opportunity of employment, somebody who practises discrimination---- I also wish to welcome the fact that they have recognized affirmative action as not being discrimination. There is need to provide a specific penalty so that we say: An employer who contravenes these provisions, upon conviction, is guilty of an offence and liable to some specified penalty. It is important that, that be provided for. Mr. Temporary Deputy Speaker, Sir, I am moving fast since I had enough time yesterday to cover some of the other provisions. I move on to Clause 18 of the Bill. Looking at Clauses 18 and 19--- They have already addressed the issues that I wanted to raise on the two clauses. It was about making references to Bills that have not been passed by the House. I find some very interesting innovations here. Perhaps, we need to get the Minister's wisdom on how this is going to be implemented. This is on Clause 23, which says:- \"An employer who is not incorporated or resident in Kenya may be required by the Minister, to pay a bond assessed at the equivalent of one month's wages for all employees employed, or to be employed by the employer.\" This is very welcome granted that this country has witnessed some phantom kind of organisations purporting to employ Kenyans. When they wind up, they do not leave any trails behind them. They employ Kenyans who sought employment there. Those Kenyans place a lot of hope on them. Once the fellows flee the country, there is no recourse. It is just about last month that we were discussing a certain issue. I remember raising this issue with regard to some of the companies that executed clearance bonds with the Department of Customs. When they disappeared, they did so without trace. We want to encourage the Minister to develop this into something quite serious, which will show other countries that they cannot just come into Kenya and con Kenyans. Mr. Temporary Deputy Speaker, Sir, there is a Clause that talks about the death of an employee. I quite agree - and it is important - that once an employee dies, within stipulated time- frames, his or her dues must be assessed and paid out to the dependants or next of kin, as the case may be. That is reflected in Clause 24. Certain words have been used repeatedly in this country to the extent that they have assumed some authority. One may want to assume that they are, therefore, legal. Clause 24(1) says:- \"When the death of an employee from any cause whatsoever is brought to the notice or comes to the knowledge of the employee's employer, the employer shall, as soon as practicable, thereafter, give notice of the death in the prescribed form to the labour officer or, if there is no labour officer, to the district commissioner of the district in which the employee was employed.\" Yesterday, when I was making my contribution, I indicated that, because of the heavy requirement placed by Section 74 all through to Section 75 that employers shall keep records--- My point is: Since we have required so many records to be kept, to say that if there is no labour office, that notification should be given to a DC is already admitting that we will not have enough labour officers. The thrust of my argument yesterday was: Given the provisions of this Bill, the Ministry of Labour and Human Resource Development should move with speed and must be given authority 1242 PARLIAMENTARY DEBATES May 9, 2007 to recruit as many labour officers as possible such that, to the lowest level, if it is a division, there must be a labour officer at the divisional level. We are talking about workers and records being kept. If we start making provisions for DCs, we are already assuming that, actually, we will not have labour officers. Of course, one quarrel I have with the reference to the DC, both in Sub- sections (1) and (3) is that, earlier, there is no reference or definition of a DC in the definitions section of the Bill. Mr. Temporary Deputy Speaker, Sir, my plea is that there should be as many labour officers as possible. They should go to the lowest level of administration. If the lowest level possible is the division, let there be a labour officer. We have witnessed workers claims going unattended to or redressed for a long time. This is because in most cases, we do not have enough labour officers in this country. I gave the example that I have the advantage of having worked in many places in the country where there were labour officers. However, I know that there are no labour officers in my district. It is a real problem. It is just not possible to expect the District Labour Officer based in Embu District to take care of workers' problems in Mbeere District. It is almost like tempting the heavens! The amount of work and area that he will have to cover is so huge. There will be nobody to inspect even the records we are calling upon employers to keep. There will be nobody to say this and that employer has not kept records or practises discrimination. It is important that once we enact this Bill, progressive as it is, we see it implemented. Mr. Temporary Deputy Speaker, Sir, I see a job that looks to me like is meant for public relations. It is in Clause 34(3), page 187. It is very interesting. It says:- \"It shall be a defence to a prosecution for an offence under sub-section (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill\" Then, sub-section (4)(a) says:- \"This section shall not apply where the illness or injury to the employee was contracted during a period when the employee was absent from his employment without lawful cause or excuse; or (b) the illness or injury was self inflicted\". I hope these kind of injuries do not include, but not limited to having hangover, or serious severe headaches resulting from over consumption of alcoholic beverages. That will not be deemed to be a self-inflicted illness. Mr. Temporary Deputy Speaker, Sir, to me, it looks like this is something meant for public relations. The other parts have to do with the various institutions that I made reference to. They are covered by my early argument regarding Bills which have not been enacted. Mr. Temporary Deputy Speaker, Sir, when you look at the memorandum of objects and reasons, Part VIII deals with the protection of workers in the event of insolvency of an employer. It says:- \"The Minister is empowered to require certain employers to insure their employees for purposes of paying the employees redundancy benefits.\" Part VIII relate to Clauses 66 to 73, both inclusive. I have gone through those clauses. Clause 66 merely talks about what happens during insolvency. The only thing that is relevant is that. \"--- subject to Clause 70, the Ministry shall pay the employee out of the National Social Security Fund (NSSF) the amount which, in the opinion of the Minister, the employee is entitled to in respect of the debts.\" The contradiction I find in this is that if the debt exceeds Kshs10,000, then the Minister does not May 9, 2007 PARLIAMENTARY DEBATES 1243 deal with it. I wonder whether we are saying that the Minister will just make an application straight to the NSSF for monies to be paid to an employee without any reference to any form of arbitration. Clause 70 says:- \"Where a relevant officer has been or is required to be appointed in connection with an employer's insolvency, the Minister shall not make a payment under section 66 in respect of a debt until the Minister has received a statement from the relevant officer on the amount of that debt which appears to have been owed to the employee on the appropriate date and to remain unpaid\". Mr. Temporary Deputy Speaker, Sir, that brings me to the point I wanted to raise with regard to this clause. A claim is made by an officer of the Ministry, but within this clause, we have not put any time frame. This is one of the reasons many employees or former employees of various organisation in Kenya are poor. They make their complaints to the labour officers. However, because the officers are too few or a majority are tired, they do not work. They do not pursue the employee's claims. Mr. Temporary Deputy Speaker, Sir, the officers to whom a claim is made must make a report to a superior officer that he has investigated the claim within a given period and found \"a\", \"b\", \"c\" and \"d.\" Between seven days, 14 days, 21 days or whatever period, an employee should know whether his or her claim is acknowledged. We are in the era of performance contracting. Everybody is required to give their output to show why they receive periodic wage or allowance. In this Bill, we must have a time frame within which an officer to whom a claim is made must make a report to his superior with a copy to the employee who made the claim. In so doing, people will stop visiting labour offices day in, day out, without any response. Mr. Temporary Deputy Speaker, Sir, as I wind up, I looked at Part V of this Bill. It is welcome. It provides for the basic conditions of employment in relation to working time, weekly rest, leave, water, housing, food and medical attention. This is welcome, however, my only plea is that I hope we will match it with compulsory enforcement. Unless we enforce some of these things, we may just have them on paper and they will mean nothing to employees. Mr. Temporary Deputy Speaker, Sir, I did indicate that I do not think it is, really, fair that the Minister, on his own, should have the power to exempt any employer, or any category of industry or sector, from the provisions of any of the parts of this Bill, as provided for under Clause 80. I saw the good Minister nod in acknowledgement that he would want to consult, or to be advised by a body or any group of persons to be specified in the law. With those few remarks, I beg to support."
}