Employers oppose bill that seeks to prevent them from calling workers outside of working hours

by MMC
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The Federation of Kenya Employers (FKE) has opposed a bill to ban employers from calling their employees beyond stipulated working hours, saying if passed it would lead to discord and indiscipline on The places of work.

The federation says the bill sponsored by Senator Nandi Samson Cherargei, if passed, will create two centers of management powers within workplaces, between employers and employees.

FKE Executive Director Jacqueline Mugo said the International Labor Organization (ILO) has provided instruments for managing working hours and paying overtime which have so far been successful.

“These proposed changes deny the essence of freedom and the realities of the labor market. The administrative prerogative of employers should not be limited by legislation. In our view, the changes infringe on the employer’s right to run the business on a day-to-day basis,” Ms Mugo said.

“If the nature of the business requires a shift system or extension of working hours to meet business requirements, then such laws, which are prescriptive in nature, will hamper flexibility in working arrangements,” she added.

The Employment (Amendment) Bill, 2022 currently before the Senate prevents employers from interfering with employees’ personal time by limiting contact after stipulated official working hours.

The proposed legislation seeks to amend section 27 of the Employment Act 2007 to introduce “the right to disconnect” for employees, allowing workers to ignore calls, messages and e-mails. work-related emails outside of working hours.

The bill states that an employee shall not be reprimanded, punished, or subject to disciplinary action for disregarding work-related communications outside of work hours.

It provides that this contact must be intended to respond to an emergency falling within the responsibility of the employee.

The bill also provides that, in the event that an employer does not have specific working hours with the employee, if the employer contacts an employee, the employee will not be obliged to respond and, if he so wishes, he will be entitled to compensation.

The federation, however, affirms that an employee has the right to keep his phone on or off if it is a personal phone, but if it is an official phone, the employee has the obligation to use it as required by the entity concerned.

According to the bill, any employer who violates the law will be fined Sh500,000 or one year in prison, or both.

Ms Mugo stressed, however, that flexibility is important in the work sector today and that the employer and employee should be allowed to agree on the arrangements that suit them best.

“This bill will make it difficult for both employer and employee to respond effectively to emerging challenges such as those presented by Covid-19 and new workplace realities,” Ms Mugo said.

The FKE boss explained that overtime payment is already provided for by law, within the framework of the General Wage Ordinance, which addresses the concerns of any employee who works the stipulated hours.

“Most collective agreements provide for flexibility in the management and regulation of working time. To our knowledge, no union or employee has raised concerns warranting the adoption of this law,” Ms. Mugo said.

Ms Mugo argues that an engagement between an employer and employee during and outside working hours is a matter of management and should not be the subject of law.

“This issue should be addressed through Collective Bargaining Agreements (CBAs) and workplace human resource policy manuals, based on the unique operational requirements and needs of specific companies,” Ms Mugo said.

“I want to call on policymakers to abandon piecemeal amendments to the Employment Act and labor law. We need to think about a comprehensive review of labor law, as we did in 2007. This will give us the opportunity to better address most emerging problems,” added the FKE boss.

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