The Employment (Amendment) Bill, 2023 (2)

SPECIALISSUE

Kenya Gazette Supplement No.I86(National Assembly Bills No.62)

REPUBLICOFKENYA

KENYA GAZETTESUPPLEMENT

NATIONALASSEMBLYBILLS,2023

NAIROBI,12th October,2023

CONTENT

| Bill for Introduction into the National Assembly- | PAGE | |-----------------------------------------------------|--------| | The Employment (Amendment)Bill.2023 | 1737 |

THEEMPLOYMENT(AMENDMENT)BILL,2023

ABill for

AN ACTofParliament to amend the Employment Act,

• 2007and for connected purposes.

ENACTED by theParliament ofKenya,asfollows-

• 1.This Act may be cited as the Employment Short bille. (Amendment)Act,2023.
• 2.The Employment Act,2007 is amended by insertingthe following new section immediately after
• section15-

Transfer of employees Insertion ofnew section 15A in No.11 of2007.

15A(1) In this section

"transfer"means the deployment of an

employee from one duty station to another.

• (2)An employeemay be transferred to anotherplaceofworkat theirownrequest or asrequired by an employer subject to
• subsection (4).
• (3)Subjecttosubsection(2).an
• employee who wishes to transfer to another place of work,shall notify the employer in writingof theintention tomove to another place of work and such request shall be considered in accordance with subsection (5).
• (4)Wherean employee istobe transferred,the employer shall
• (a)give the employee the reasons for the intended transfer;
• (b) informthe employeeofthe implications of the transfer on the employee's contract of service;
• (c) notifytheemployeeofthe measures that employer envisages shall be taken in relation
• to the employee,if any;
• ofthe employee before effecting the
• (d) require the consent transfer,and

• (e) where applicable,facilitate the employee to move to thenewplace
• ofworkby-
• providing reasonable transport for the movement of the employee and his or her personaleffects;or
• () providing a salary advance to enable the employee to move, which would be recoverable
• in reasonable instalments,

Provided such facilitation shall not be provided where the employee was transferred at their ownrequest.

• (5)Ineffectingat transfer,the
• employer shall be taken into account-
• (a)the requirement for compliance with the transfer policy of the
• employer,
• (b) the requirement for compliance with the criteria of transfer set by theemployer,
• (c)
• the interests of the employer;
• (d) the duration of transfer.whether permanent or temporary:
• (e) the length and frequency of the transfer;
• the skills and competencies of the employee:
• (g) the interests of the employee in terms of promotion,sickness and otherextenuating factors;
• (h) the efficiency and effectiveness of
• the workof the employer:
• (i) the existing skills and competencies in the place of work where the employeeis being

• transferred to SO as notto disadvantage the employee or the employer;
• the requirement that the transfer shall not be arbitrary;and
• (k) the requirement that the transfer is notused to punish employees.
• (7)An employee who is the subject of disciplinary proceedings,shallnot be transferred untilsuch proceedings concluded and all mechanisms for appeal under the Constitution or any other written law have been exhausted.
• (8)Where a transfer is made contrary tosubsection (7),such transfer shall not preclude the employer from conducting disciplinary proceedings or taking
• disciplinary action against the employee.
• (9)Where it is considered necessary.
• notwithstanding subsection (7).an employee who is the subject ofan investigation may be transferred pending the investigation and determinationof allegations ofunlawful conduct made against that employee.
• (10) Unless otherwise provided in an agreement between anemployee and an employer,the transfer of an employee shall not break the continuity of the period of employment or terminate or vary the contract ofservice ofany employee.
• (11)Each employer should develop and
• implement a transferpolicyfor its employees.
• (12)An employer who contravenes the provisions of this section commits an offence
• and shall,on conviction beliable-
• (a)in the case of a natural person,to a fine not exceeding five hundred

• thousand shillings or to imprisonmentforat termnot exceeding twelve monthsor to both:and
• (b) in the case of a juristic person,to a fine not exceeding five hundred thousand shillings.
• (13)The Cabinet Secretary may prescribe policies,regulations,measures and redress mechanisms to give effect to this section.

MEMORANDUMOFOBJECTSANDREASONS

Statement of the Objects and Reasons for the Bill

The principal objective of this Bill is to amend the provisions of the

Employment Act,2007 toregulate the transferofemployees by employers from oneplace ofwork to another.

The process and practice of transfer of employees has been arbitrary

and has been misused to the detriment of employees especially those in the public service.Transfers have become a tool used by employers topunish certain employeeswhich contravenes Article 4l of the Constitution on the right to fair labour practices.

This Bill therefore seeks to provide clarity on the modalities of

transfer of employees in good faith and in a fair,meritorious,rational manner that will benefit both the employee and the employer by preventing demoralization,dissatisfaction and family disintegration and disorientation on thepart ofemployees.

Statement on the delegation of legislative powers and limitation of fundamentalrightsand freedoms

The Bill delegates legislative powers to Cabinet Secretary but it does not doeslimit fundamental rights and freedoms.

Statement on whether the Bill concerns County Governments

The Bill does not concern county governments in terms of Article 110(l)(a)of the Constitution.

Statement that the Bill is not a money Bill within the meaning of Article ll4ofthe Constitution

This Bill is not amoney Bill within the meaning of Article 1l4of the Constitution.

Dated the 2nd October.2023.

DIDMUSWEKESABARASA,

MemberofParliament.

Section 15ofNo.1lof2007which it isproposed to amend

15.Informingemployeesoftheirrights

An employer shall display a statement in the prescribed form of the employee's rights under this Act in a conspicuous place,which is accessible toall the employees.