The National Employment Authority (“NEA”) published a notice in the major Kenyan dailies issuing an extended deadline of 8th July 2019 for employers to file certain returns in respect of their employees with it. NEA has stated that all employers need to file returns
indicating the following: Notice of filing or abolishing a post; Notice of termination of employment; notice of vacancy; copy of register with the employee details like age, sex, date of employment, qualifications and education level.
The NEA was created and set up by the National Employment Authority Act of 2016 (“NEA Act”), taking over the functions of the National Employment Bureau (“NEB”), then a department within the State Department of Labour under the Ministry of Labour, Social
Security and Services (“the Ministry”). The NEA Act provides for transition from the NEB to NEA of all functions and roles previously exercised by as follows:
“Upon the commencement of this Act, the functions that were immediately before the commencement of this Act being undertaken by the National Employment Bureau within the Ministry responsible for labour shall be transferred to the Authority.”
The NEA was created and set up by the National Employment Authority Act of 2016 (“NEA Act”), taking over the functions of the National Employment Bureau (“NEB”), then a department within the State Department of Labour under the Ministry of Labour, Social
Security and Services (“the Ministry”). The NEA Act provides for transition from the NEB to NEA of all functions and roles previously exercised by as follows:
“Upon the commencement of this Act, the functions that were immediately before the commencement of this Act being undertaken by the National Employment Bureau within the Ministry responsible for labour shall be transferred to the Authority.”
Is NEA the lawful successor of the Director of Employment?
Under the NEA Act, the NEA has several duties, including to:
– register persons seeking employment;
– maintain an integrated and upto-date database of all persons seeking employment;
– facilitate the employment and placement of job seekers in formal and informal or any other form of employment, locally and internationally;
– circulate in a timely manner job – vacancies advertised to job seekers throughout Kenya through appropriate means including use of social media, internet, and published materials.
The confusion as to whether or not the NEA has the mandate it claims to have as far as requiring employee returns in particular, seemingly stems from the fact that the Employment Act, from which the NEA claims to draw its authority in this regard, is a 2007
legislation- the Employment Act- and to date such returns have not been required of employers under this old law.
Section 76 of the Employment Act, 2007, provides that an employer who employees more than 25 employees is obligated to provide a person referred to as the ‘Director of Employment’ with information on every vacancy occurring in his establishment, business or work place in a prescribed form. Additionally, under Section 79 of the Employment
Act, an employer is required to keep a Register of Employees, with certain employee information (full name, age, sex, occupation, date of employment, nationality and educational level) and further mandates the employer to make an annual return to the ‘Director of Employment’ by 31st January of the following year. Notifications of abolition
of vacancies and of terminations on the other hand are to be made to the ‘employment service office’. Failure by an employer to make the returns to the ‘Director of Employment’,
or providing a false return, or other contraventions in respect of the employment management provisions makes an employer liable, on conviction, to a fine of up to KES 100,000 or imprisonment of up to six months, or both.
Having established that there exists an obligation in the 2007 Employment Act on the part of all employers (subject to the 25 employee minimum) to make annual returns of their employees (among other obligations) to the ‘Director of Employment’, the question is therefore which entity this is and why this has not previously arisen since its enactment.
The position of ‘Director of Employment’ has hitherto been an office and position
within the Ministry. It is a public service position, and whose appointment is
expressly provided for under the Labour Institutions Act, 2007. The holder of the
position has hitherto been the head of the National Employment Bureau.
We surmise that lack of implementation of the employee return provisions in the
Employment Act have been occasioned by capacity constraints at the Ministry
as opposed to absence of enabling legal framework.
Based on the transition provisions of NEA Act, it is arguable that the NEA has the powers and mandate of the former NEB including its then head, the ‘Director of Employment’, and as such, the NEA has the legal powers and mandate to require employers to comply with the matters contained in the Notice. However, the converse could also be argued; that is, that in absence of clear transition provisions providing for transition of the mandate and powers of the office known as the Director of Employment, the NEA cannot purport to usurp the role of that office. And it is perhaps this evident lacuna in the law that the NEA may seek to be filling through proposed amendments to the Employment Act as contained in the draft Employment Bill 2019 which, among others, seek to replace the entity ‘Director of Employment’ with the ‘National Employment Authority’.
In closing, one overlooked but fundamental issue is the current absence of data protection provisions in the Employment Act (though among proposed insertions in the draft Employment Bill). Given the fact that the employee information that the NEA is requiring employers to provide, that is, employees name, sex, age, nationality, job title, terms of employment, is personal identifiable information, there may be a case for a legal challenge to provide employee returns under the current legal framework to the NEA, over and above the seemingly untidy mandate in this regard.