NATIONAL EMPLOYMENT AUTHORITY NOTICE OF 26 JUNE 2019

By Sean Omondi,Rainbow Field Tuesday, July 09, 2019
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On Wednesday, 26 June 2019, the National Employment Authority (NEA) published a notice in the Daily Nation directing employers to submit ‘Employment Returns’ and other information on their employees for the period ending December 2018, to the NEA on or before 8 July 2019.

The National Employment Authority Act 3 of 2016 (NEA Act), which establishes the NEA was enacted to give effect to Articles 55 (c) and 56 (c) of the Constitution of Kenya which relate to the State’s responsibility to take affirmative action programs to ensure that youth and marginalised groups can access employment and are provided special opportunities for such access.

Additionally, the NEA Act was enacted to provide a database of all Kenyans seeking employment and a framework to facilitate increased employment in Government, parastatals as well as the private sector.

The notice of 26 June 2019 refers to employers’ obligations outlined in Sections 76 to 81 of the Employment Act, 11 of 2007 (Employment Act). These sections require any employer who employs 25 employees or more to do the following:

  • keep a register with the full name, age, gender, occupation, date of employment, nationality and educational level of each of his or her employees, and send a return of employees for each calendar year, ending on 31 December, containing such information to the Director of Employment (Director) not later than 31 January of the following year (Section 79);
  • notify the Director of every vacancy occurring in his or her establishment, business or work place in a prescribed form (Section 76);
  • notify the employment service office in writing when a post, which has been notified to the Director as vacant, has been filled or has been abolished before being filled within two weeks of the filling of the post or of its abolition, as the case may be (Section 77); and
  • notify the employment service office in writing of the termination of every employment and of each layoff in writing within two weeks of the termination or lay-off (Section 78).

It is notable that the above requirements have generally not been complied with by employers and the Director has not sought to enforce such compliance. Considering the specific requirements of Sections 76 to 79 of the Employment Act, it is clear that the information to be submitted by employers ought to be so submitted to the Director. There is no reference in the aforesaid sections to NEA. The Director nevertheless has the power to delegate to any employment officer any of the Director’s powers, functions and duties. Such delegation has to be in writing.

While the Employment Act does not define the term ‘employment officer’ it is doubtful that a body corporate such as NEA would qualify for consideration as ‘an employment officer’ for purposes of delegation of the Director’s powers, functions and duties. In any event, no reference has been made by NEA to a delegation that has been made to it in writing.

It appears that NEA may have jumped the gun by relying on proposed amendments to the Employment Act. The proposed amendments are contained in the Employment Amendment Bill, 2019. The foregoing Bill proposes, among other things, that all references to the ‘Director’ at Sections 76 to 79 of the Employment Act be replaced with references to the NEA. If the Bill is passed into law then the NEA would be entitled to require employees to submit to it the information requested at Sections 76 to 79 of the Employment Act.

It is important for employers to note that failure to submit returns to the Director is an offence under the Employment Act and an employer shall, on conviction, be liable to a fine not exceeding KES 100 000 or imprisonment not exceeding six months or to both. It is therefore recommended that employers with over 25 employees comply by compiling the requisite documentation and submitting the requisite returns to the Director.