Under rule 5 (4) of the National Transport and
Safety Authority (Operation Of Public Service Vehicles) Regulations, 2014 a
person operating a public service vehicle should comply with labour laws and
regulations including in respect to statutory deductions, health and safety of
the workplace, insurance, statutory leave days and written contracts of
employment for staff.
The labour laws applying to drivers employed in the public transport sector are;
- The Constitution
- The Employment Act
- The Labour Institutions Act
- National Social Security Fund Act
- National Hospital Insurance Act
The Employment Act makes provisions
regarding the wages, housing, leave and rest, health and safety of the
employees. The drivers cannot be simply casual employees. Under section 2 of
the Employment Act a casual employees means a person the terms of whose
engagement provide for his payment at the end of each day and who is not
engaged for a longer period than twenty-four hours at a time. This is however
not a position that is allowed under law for drivers of public service
vehicles. Rues 6 of National Transport and Safety Authority (Operation Of
Public Service Vehicles) Regulations, 2014 provides that a person who wishes to
be issued with a licence for a public service vehicle should among others give
the following documents in application;
- A list of staff it has in its employment, their job descriptions and qualifications
- The contracts of the drivers
- The driving licence, the indentity card and certificate of good conduct of each driver.
This implies that every driver employed should be under a written contract of employment and not
merely “a casual driver not entitled to monthly payment”. Further Section 2 on casual employees provides two conditions
for one to qualify as a casual employee;
- The terms of his engagement provide for payment at the end of each day
- He is not engaged for a longer period than 24hours at a time.
This two conditions ought to be fulfilled for one to be regarded as indeed a casual employee. Where there is a disagreement as to the terms of the agreement and where there is no written
agreement the court in William Onyango
Rubia v Makini Security Services [2016] eKLR observed that Section 9(2) of
the Employment Act places the responsibility of drawing and issuing an
employment contract on the employer and where the employer fails to discharge
this responsibility, Section 10(6) of the Act allows the Court to adopt the
Claimant's testimony on the terms of employment.
Under section 9 of the Employment Act it
is the obligation of the employer to cause the employment contract to be drawn
up, be signed by the employee and the terms of the contract explained to the
employee in a language he understands. Therefore, even in case where the terms
of the employment are agreed upon orally in a verbal engagement between an
employer and employee, it is upon the employer to see to it that those terms
have been reduced to writing and the requirements of section 9 of the Act
followed. Among others, the contract should contain particulars of the
remuneration, scale or rate of remuneration, the method of calculating that
remuneration and details of any other benefits, entitlement to annual leave,
including public holidays, and holiday pay (the particulars given being
sufficient to enable the employee’s entitlement, including any entitlement to
accrued holiday pay on the termination of employment, to be precisely calculated).
The employer is also obligated to give the employee a statement of these
particulars.
Section 19 of the Employment Act
provides that an employer may deduct the wages of an employee for payment of any
amount due from the employee as a contribution to any provident fund or
superannuation scheme or any other scheme approved by the Commissioner for
Labour to which the employee has agreed to contribute and any amount the
deduction of which is authorised by any written law for the time being in force.
Section 19 of the NSSF Act requires an employer to register with the NSSF and
section 20 requires him to remit employees contribution at 6% which he should
then deduct from the employees remuneration. Section 16 of the NHIF Act also
makes it the employer’s responsibility to remit the employees contribution.
It therefore follows that the NTSA Act
requires a public service vehicle employer to;
- Have the contract of employment reduced into writing
- Have the terms of the contract explained to the employee in a language he understands and a copy of the particulars issued to the employee
- To pay the employees in accordance with the guidelines of the employment act with regard to mode and duration
- To register with NSSF and NHIF and remit the employee’s contribution.
- To give the employee leave and housing accommodation or allowance
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