Labor PS Peter Tum. PHOTO | LUCY WANJIRU | NMG
Kenya is reviewing the labour laws to guide employers on how to impose unpaid leave, salary cuts and remote working.
This follows shifts in the jobs market in the wake of Covid-19 economic hardships, which triggered pay cuts and unpaid leave.
The Labour Ministry says the country's three pieces of legislation that govern the conduct of employers and employees do not cover forced pay cuts, unpaid leave policies as well as remote and hybrid work models.
"While the labour laws provide for what people should do, they did not anticipate this kind of situation. So there’s a need now to relook into the same laws to factor in the emergence of such challenges," said Labour PS Peter Tum.
The job market is guided by the Employment Act, the Labour Institutions Act and the Labour Relations Act, all enacted in 2007.
Industries and other businesses cut down on their activities in response to the infectious disease, leading to layoffs as well as unpaid leave and salary cuts for retained staff as profitable firms move into losses.
But this happens after consultation and obtaining consent from the employees or where a worker has been demoted. The labour laws allow employers to cut workers’ salaries in periods of financial crisis like the one brought home by Covid-19.
The law also provides that an employee aggrieved by salary deductions can file a complaint with the labour office or sue within three years after the pay cut.
The Employment Act is silent on how employers can provide unpaid leave. But it allows employees to access unpaid leave.
Legal experts say the proposed law will seek to clarify the period when the pay cuts remain in force as well as conditions for unpaid leave and salary deductions.
At the height of the pandemic, the Labour ministry entered into a memorandum of understanding with employers’ and workers’ lobbies in a deal that allowed pay reductions and unpaid leave to keep firms afloat.
The deal reached with the Federation of Kenya Employers (FKE) and the Central Organisation of Trade Unions (Cotu) was, at the time, seen as temporary.
Although a significant number of firms have vacated pandemic-induced pay cuts, some are yet to reinstate workers’ salaries to pre-Covid levels.
"What we had in mind was that these become temporary measures to ensure that employees don’t suffer during the time of the pandemic. We were doing that under an environment that was not put together in law," said Mr Tum.
"We have to undertake some form of research — which we have started — where we are describing a work environment. This will help us to come up with a concept, which we can generate into a draft law that will go to Parliament for the changes. That might take six months."
Remote working is here to stay while companies are set to leave the options of pay cuts and unpaid leaves open if they struggle to lift profits and sales.
With the rise of technology, work from home has been a steadily growing trend for many years.
Remote working has exploded with quarantines, workplace closures and lockdowns due to the Covid-19 pandemic.
Research shows that the majority of employees want their organisation to offer a mix of remote work and in-office time, and many see the hybrid workweek model as a path to better work-life balance.
This has seen several countries, including Russia, Spain, Taiwan and Belgium, review their labour laws to accommodate a hybrid working model.
The common thread running through the legislation is that remote working should be allowed for the entire duration of the employment contract and employers to provide work tools and bear installation, repair and maintenance costs.
Employees working remotely enjoy the same rights as on-site employees.
"The future of work that we talked about is here. We expect a generally more agile way of working and communicating with colleagues," said Jacqueline Mugo, executive director at Federation of Kenya Employers.
cmunda@ke.nationmedia.com
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