THE LABOUR MIGRATION MANAGEMENT BILL, 2023: A COMPREHENSIVE REVIEW

• INTRODUCTION

The Labour Migration Management Act 2023, is a significant piece of legislation proposed by the Parliament of Kenya, designed to address the intricate challenges and concerns surrounding labor migration. This bill seeks to regulate the operations of private employment agencies, ensure the ethical and safe recruitment of Kenyan citizens for work both within Kenya and abroad, and, most notably, protect the rights and welfare of job seekers and migrant workers. Moreover, the bill proposes the establishment of the Kenya Migrant Workers Welfare Fund, aiming to create a robust support system for Kenyan citizens seeking employment outside their home country.

• PRIVATE EMPLOYMENT AGENCIES:

This part of the bill deals with the regulation and oversight of private employment agencies involved in the recruitment of Kenyans for work within and outside Kenya. This part of the bill primarily focuses on regulating the operations of private employment agencies, ensuring that workers are protected when seeking employment abroad, and setting up mechanisms to enforce compliance.

 Below is a summary of the key proposals:

1. Registration of Private Employment Agencies (PEAs): Private employment agencies are required to register with the Director-General of the National Employment Authority. Operating without registration is prohibited and is subject to penalties.
2. Application for Registration: Those seeking to register a PEA must apply to the Director-General, who will submit the application to the Multi-Agency Committee for vetting. The Committee reviews applications, and if approved, a certificate of registration is issued.
3. Conditions for Registration: To be registered as a PEA, the agency must meet specific criteria, including being registered as a limited liability company under the Companies Act, having Kenyan citizen directors, meeting minimum share capital requirements, and more.
4. Contingency Fee: PEAs involved in recruiting workers for foreign employment must pay a contingency fee to the Kenya Migrant Workers Welfare Fund, which is used for repatriation and worker welfare in case of default.
5. Cancellation of Registration: The Committee can cancel the registration of a PEA if it fails to comply with various requirements, including providing false information or violating the conditions of their registration.
6. Branches: PEAs seeking to open branches must apply for branch registration, which is subject to inspection and approval by the Director-General.
7. Change of Office: Any changes to the registered office or branch office must be approved by the Director-General.
8. Job Orders: Job orders, which contain information about job openings and terms of employment, must be submitted to and approved by the Authority.
9. Advertisement of Jobs: Advertisements for job openings must be approved by the Authority and should comply with prescribed regulations.
10. Code of Conduct: The Authority has the power to prescribe a code of conduct for private employment agencies.
11. Obligations: PEAs must keep registers of recruited workers, provide contracts of employment to workers before departure, maintain records, and notify the Authority of workers in distress, among other responsibilities.
12. Pre-Departure Orientation: Any person traveling abroad for employment purposes, unless exempted, must undergo pre-departure orientation.
13. Foreign Contracts of Employment: Employers or PEAs must arrange foreign contracts of employment that adhere to specific requirements, including attestation by a labor officer.
14. Security in Foreign Contracts of Employment: Employers not resident in Kenya may be required to provide a security bond for the performance of the employment contract.
15. Prohibitions: It is an offense to employ or induce migrant workers to work abroad without a valid foreign contract of employment.
16. Registration of Migrant Workers: Persons traveling abroad for employment must apply for registration with the Authority.
17. Enforcement: Inspectors appointed by the Director-General have powers to enter premises, examine documents, and enforce compliance with the bill’s provisions.

• PRE-DEPARTURE PROCEDURE FOR FOREIGN EMPLOYMENT

The procedure to prepare for foreign employment is a crucial step that individuals must follow, unless they fall under specific exemptions. This part also sets out penalties for those who do not comply with the regulations.

Below are the key points to note in this section:

1. For foreign employment by employers who do not reside in Kenya and for private employment agencies, it is mandatory to establish formal employment contracts. These contracts must adhere to a prescribed format and be verified by a labor officer.
2. The process for verifying foreign employment contracts includes various aspects such as registration, associated fees, and ensuring the medical fitness of the employees.
3. To provide additional security measures, security bonds are allowed for employers who are not residents of Kenya or their authorized representatives.
4. It is strictly prohibited to persuade migrant workers to go abroad based on informal contracts, and severe penalties are outlined for those who engage in such practices.
5. Migrant workers are required to register with the relevant authority, and this authority is mandated to maintain a register of all migrant workers.
6. Additionally, specific ports of departure are designated for migrant workers, which must be adhered to as per the regulations.
7. There are exceptions outlined for certain groups of individuals who are exempted from the provisions of Part IV of these regulations.
8. PRE-DEPARTURE PROCEDURE FOR FOREIGN EMPLOYMENT

This part of the bill focuses on regulating the pre-departure procedures for individuals seeking foreign employment. It includes requirements and regulations aimed at protecting the rights and welfare of Kenyan migrant workers.

Below are the key proposals enshrined in this part:

1. Individuals planning to work abroad must undergo pre-departure orientation, unless exempted. The Cabinet Secretary has the authority to specify the categories of employees who must participate in this orientation. Non-compliance is punishable by fines or imprisonment.
2. Employers not residing in Kenya and private employment agencies must establish formal contracts for foreign employment, with specific criteria for these contracts. Government-to-Government arrangements are also included.
3. The Commissioner for Labor is empowered to request a security bond for certain employers. Authorized agents may also be held accountable.
4. The employment or induction of migrant workers without formal foreign contracts of employment is prohibited. Penalties are also established for violations.
5. Individuals ae required to register with the Authority if they intend to work abroad, submitting their foreign employment contracts and proof of Fund payment.
6. The up-to-date register of migrant workers should be maintained by the Authority, which may be in electronic form.

This part serves to ensure that Kenyan workers seeking employment abroad are well-informed, protected, and have their rights upheld, while employers and employment agencies are held accountable for their compliance with the regulations.

• KENYA MIGRANT WORKERS WELFARE FUND:

This is a crucial part of the bill as it establishes the Kenya Migrant Workers Welfare Fund, which aims to protect and assist Kenyan migrant workers throughout their migration journey. The Fund’s objectives are detailed, and it explains the Fund’s composition, including the Board that will manage it. This part also sets up the Chief Executive Officer’s office and outlines the staffing structure of the Fund. Furthermore, it specifies how migrant workers will contribute to the Fund, its various revenue sources, and how its funds can be invested.

The objective of this fund is to: overseeing and controlling private employment agencies, establishing pre-departure programs for migrant workers, supervising the execution of these programs, recognizing and raising awareness about job opportunities in other countries, and assisting migrant workers in accessing these opportunities. The fund also assesses and endorses job orders from private employment agencies, creates a program to facilitate the return and reintegration of migrant workers, as well as receives and investigates complaints from migrant workers, job seekers, private employment agencies, or any individuals.

• CONCLUSION

In summary, the Labour Migration Management Bill, 2023, is a comprehensive piece of legislation aimed at regulating labor migration and protecting the rights and welfare of Kenyan migrant workers. It covers various aspects, including the registration and oversight of private employment agencies, pre-departure procedures, enforcement, the establishment of a welfare fund, and consequential amendments to existing laws.