By: Patrick Mugalula
The Government of Uganda has gazetted the Employment (Amendment) Bill 2019 (hereinafter ‘the Bill’) to amend various aspects of the Employment Act 2006.
At a very high level, the process of passing a law in Uganda commences with a Bill being presented to the Parliament, debated by the Members of Parliament and later passed as an Act of Parliament, which then goes before the President for his assent. It is therefore important to comprehend the clauses of a Bill because in principle it contains the proposals for the law that will affect us all.
The Bill seeks to amend the Employment Act 2006 (“the Act”), the primary law that establishes the employment eco-system in Uganda and sets the context for the entire sector and other laws. For its part, the Bill is a relevant piece of legal drafting with a few welcome developments.
In general, the Bill addresses three major areas:
(i) shoring up protections for special classes of employees not protected under the Act, for instance casual employees, volunteers, breast feeding working mothers, domestic workers and migrant workers;
(ii) enhancing the anti-sexual harassment provisions in the Act; and
(iii) expanding the instances in which severance allowance is payable by an employer to an employee.
The changes proposed by the Bill are briefly discussed hereunder.
Contract of service:
In order to provide clarity to a matter that has been contentious since the Act came into force, to wit, whether domestic workers (typically called ‘housemaids’, ‘househelps’, ‘maids’, ‘shamba-boys’) and casual workers are employees, the Bill resolves this question with a resounding yes. It expands the definition of a contract of service to include “domestic work” and “casual work”.
The Bill defines domestic work as work performed in or for a household or households.
A domestic worker is defined as a person employed to do domestic work for remuneration for one or more employers by staying at the household or otherwise and includes casual, temporary, contractual or migrant domestic workers.
In order to better incorporate domestic workers and casual workers in to the law, the Bill also augments the definition of an employee to include any person employed by or for a household.
The Bill also redefines the term “employer” in line with the changes.
A household employee is defined in the Bill as an individual who is paid to provide service within their employer’s residence.
Migrant workers are defined as people who migrate to Uganda to be employed.
These are defined as any agency, bureau, contractor or person registered which provides or engages in employment of workers or which facilitates the placement of workers for prospective employers and includes an agency or person offering services through any print, electronic or any form of communication.
Uganda migrant worker:
The Bill defines a Uganda migrant worker as a citizen of Uganda who decides to seek employment outside Uganda.
The Bill defines a volunteer as a person who provides their services without express or implied promise of remuneration.
The Bill defines a workplace as a place of work and all its sites where work is carried out including not only the permanent, indoor, factory, industries, household, stationary places of work such as offices and shops but also temporary places of work such as civil engineering sites, open air places such as fields, forests, roads, oil refineries and mobile places of work such as cabs of trucks, seats of tractors and excavators, ships, galleys, freight decks of aircraft and without exception, places where workers are found as a consequence of their work.
Enlarging the scope of the Act’s applicability:
The Bill seeks to enlarge the applicability of the Act under Section 3(1) by including domestic workers and casual employees to those categories of employment covered by the Act.
Additionally, the Bill removes the protection given to family undertakings which have only five dependent relatives as their employees.
The Act under Section 3(2)(a) excludes such family undertakings and their employees from rights and obligations under the Act, but the Bill seeks to bring such undertakings under the Act by removing that protection.
Anti-Sexual Harassment Provisions:
(i) Anti-sexual harassment measures:
Whereas the Act under Section 7(4) left it up to employers with more than twenty-five employees to put in place measures to prevent sexual harassment, the Bill gives the Minister of Gender, Labour and Social Development (‘the Minister’) the duty to determine these measures.
At the bare minimum the Bill prescribes that these measures should cover procedures for lodging and handling sexual harassment complaints by labour officers, penalties for offenders as well as measures to protect whistleblowers and victims.
(ii) Application of anti-sexual harassment measures and when sexual harassment will be considered to have occurred.
The Bill emphatically proposes that these measures should apply to all work places, sectors (whether private or public, formal or informal, urban or rural) and that sexual harassment would be considered to occur in the workplace, rest places, sanitary or change places, on work related travel, social events, through work related communications, when commuting to and from work and in employer provided accommodations.
Prohibition of abuse, harassment or violence against employees:
The Bill introduces a clause 7A, that outlaws the abuse of employees. Under 7A(2) the Bill defines this to include; physical abuse, intimidation, any actions likely to cause injury to health or safety of a worker, neglecting or leaving an employee in circumstances which cause or are likely to cause injury to health or safety of the employee, acts which are detrimental to the welfare of the employee, causing grievous harm to the employee, wrongful confinement of the employee, insulting the modesty of the employee, withholding food or other basic necessities to the employee where applicable.
Permission to labour officers to enter households to ensure domestic workers or household employees are being employed in accordance with the provisions of the law:
The Bill authorizes a labour officer to enter and inspect a household where a domestic or household employee is employed in the presence of a police officer and subject to rules that will be put in place the Minister.
Special dispute resolution procedures:
The Bill also proposes that the Minister be given powers to put in place a simplified complaint handling mechanism for employees with disabilities, domestic workers, casual employees and any other category of employee he/she deems fit.
Labour Officer’s dispute resolution powers:
Under the Act, a labour officer is entitled to receive complaints from employees/employers, attempt to settle such complaints by conciliation, arbitration, adjudication or any other procedure acceptable to the parties.
The Bill, memorializing the position of the Industrial Court at present, based on the principles of fairness and impartiality now requires any labour officer to apply only one method of dispute resolution from the available options.
Outsourcing of services:
The Bill proposes that where a company outsources to another company, the first company must ensure that the employees used to fulfill those duties are employed in accordance with the Act.
Migrant Workers, Recruitment Agencies and Recruitment Permits:
A significant part of the Bill relates to the establishment of a framework for the protection and regulation of employment emigration and immigration out of and into Uganda. These are the fundamental features of the proposed framework:
(i) Conditions before employing migrant workers:
All employers that employ migrant workers shall be required to ensure that the migrant workers are employed in accordance with the Act and the law, must provide orientation for the employee especially on the terms and conditions of employment, must ensure that the employee has a valid work permit, must keep a register of all migrant workers, file annual returns to the labour officer showing the details of all migrant workers and must repatriate the migrant workers at the end of their employment.
The Bill further proposes to make it an offence to omit any of the above punishable upon conviction by imprisonment of up to three years or the imposition of a fine of UGX 20,000,000 or both.
(ii) Recruitment permit:
The Bill puts in place a recruitment permit for recruitment agencies and recruiters for the foreign or internal labour markets. It is expressly provided that certain classes of persons are not eligible to participate in the recruitment and placement of Uganda migrant workers business:
(a) Travel agencies or sales agents of an airline
(b) Officers or members of the board of any company or partner in a partnership engaged in the business of a travel agency.
(c) A company whose members of the Board are engaged in the business of a travel agency.
(d) A partnership whose partners are engaged in the business of a travel agency
(e) A political, religious or tribal organisation
(f) An individual who is not registered under a company.
(g) A former licensed entity whose license was cancelled.
(h) A person once convicted of trafficking in persons.
(iii) Protection of wages of a worker:
The Bill also protects the wages of workers by ensuring that the recruitment fee paid to a recruitment agency is not deducted from the wages of workers.
(iv) Keeping of records by recruitment agencies:
Finally, the Bill proposes that recruitment agencies be mandated to maintain records of all their activities including but not limited to details about the employer to whom they have sent employees and the employees that they have connected to employers. For the employees connected and recruited outside Uganda the recruitment agencies will be required to put in place systems to get quarterly updates from the employers about the employees.
The Bill further proposes to make it an offence to omit any of the above punishable upon conviction by imprisonment of up to five years or the imposition of a fine of UGX 200,000,000 or both.
The Bill also proposes a change to the Act as far as it relates to repatriation allowance.
At present, the law provides that where an employer recruits an employee from a place that is more than 100km from their home and one of the following conditions applies; (i) the employee’s contract expires, or the employee is terminated by reason of an accident or sickness, or the employee is terminated by agreement with his/her employer or that the employee’s contract is terminated by order of the labour officer or the Industrial Court, then the employer must pay the employee a repatriation allowance for them to travel back to their home.
The Bill proposes to reduce the distance from 100km to 50km and eliminates all the other conditionalities that currently qualify and restrict this obligation.
Additionally, the Bill reduces the period for mandatory repatriation regardless of the place of recruitment from 10 years to 5 years so that all employees who have been employed for 5 years must be repatriated at the expense of the employer regardless of the place of recruitment.
Finally, the Bill also amends the main shortfall of repatriation in the Act by providing a rate and formula for the payment of repatriation allowance. The Bill proposes a rate of 7km to one litre of fuel from work town to home town plus a sum of UGX 500,000 from home town to home village.
Protection of breast-feeding working mothers.
An innovation that the Bill introduces that is very timely, necessary and no doubt a result of some industry leaders and public bodies recognizing the need for it and paving the way for it by putting in place systems to protect this special category of employees is the protection of breast-feeding working mothers.
The protections proposed are summarized hereunder:
(i) The Bill out-laws discrimination against a female employee on the basis of breast-feeding.
(ii) It creates a duty on an employer to either provide daily breaks or a daily reduction of working hours following maternity leave of up to one hour for a consecutive period of three months.
(iii) An employer must provide a breast-feeding room.
(iv) These breaks or reduced hours are deemed to have been worked and must be paid for as such by the employer with no reduction in remuneration.
Written particulars of a contract of service with domestic workers
The Bill augments the duty of an employer to provide written particulars of the terms and conditions of employment specifically for the category of domestic workers. These terms are:
(i) The provision of food and accommodation, where applicable.
(ii) The use of basic utilities for normal domestic use.
Under the Bill, it is further prohibited for an employer to retain or withhold the original personal or professional documents of the employee.
Special provision relating to domestic workers, volunteers and casual employers:
The Bill also proposes the following provisions for the protection of domestic workers, volunteers and casual employers.
The Bill tasks the Minister with putting in place measures to provide for:
(i) Unionization: The freedom of association of domestic workers and effective recognition off their right to collective bargaining.
(ii) The elimination of forced labour.
(iii) The abolition of child domestic workers.
(iv) The elimination of discrimination in respect to employment and occupation of domestic workers.
(v) Protection from abuse, harassment and violence.
(vi) Fair terms of employment and decent working conditions.
Rights of domestic workers and casual employees
The Bill provides that domestic workers and casual employees have the following rights:
(i) A safe and health working environment in accordance with the Occupational Safety and Health Act 2006.
(ii) Work and earn livelihood, free from forced labour.
(iii) Earn wages and overtime pay.
(iv) Access to appropriate benefits under social protections.
(v) Redress to grievances
(vi) Right to practice their religion.
(vii) The right to organize and bargain collectively through associations, co-operatives and unions.
Conversion of casual employment to term contracts:
The Employment Regulations 2011 provide that casual employment must be converted into full time term employment after a period of four months as a casual employee.
The Bill proposes a framework for that conversion as summarized hereunder:
(i) Change from daily payments to monthly payments:
A casual worker who works for a continuous period of one month or performs work that will necessarily need him/her to be engaged for an aggregate period of more than three months shall be deemed to be one where wages are paid monthly.
Upon conversion from casual employment to a term contract, the employer would be bound to provide a written contract under the provisions of the Act.
(iii) The Bill exempts Qualified Professionals from being employed as casual employees.
This is another critical issue the Bill seems to address. The Bill has the following provisions:
(i) A volunteer may only work five days a week for no more than 6 hours a day.
(ii) A volunteer who is later employed shall not be subjected to probation.
(iii) A volunteer must be given incentives.
(iv) A volunteer is entitled to a certificate of service at the end of the volunteering period.
(v) An employer must meet all costs and expenses resulting from a work place injury or illness to a volunteer in the course of their employment as a volunteer.
The Bill expands the entitlement to severance allowance by removing all qualifications to severance allowance and replacing them with a single qualification of working with the employer for a continuous period of one year or more.
However, an employee terminated for gross misconduct is deemed to have forfeited his entitlement to severance allowance.
The Bill memorializes the practice of the Industrial Court in proposing a formula for the computation of severance allowance, of a minimum of one month’s gross salary per year worked with and for the employer.
The Bill presents more of a supplement to the Act than an overhaul since it leaves most of the critical aspects of the employment eco-system established by the 2006 laws (the Employment Act 2006, the Labour Unions Act 2006, the Labour Disputes (Arbitration and Settlement) Act 2006 and the Occupational Safety and Health Act 2006) largely intact. It addresses a number of shortfalls in the Act, essentially shoring up protection for special categories of employees that had been omitted from the law as well as redressing some gaps in the law such as the formulae for repatriation and severance allowances.
This is perhaps the most consequential proposal in the Bill simply because of the sheer number of domestic and household workers in Uganda. The legal recognition of domestic work, rights of domestic workers [especially the right to unionize] and the other obligations to domestic workers will definitely have serious repercussions which remain to be seen. Whereas this will definitely increase the costs of domestic work for the average person, these interventions are welcome developments if they will lead to the formalization of a notoriously gray area of Ugandan life and the protection of a vast number of previously unprotected employees.
Volunteers, casual workers and breast-feeding mothers;
This too is a welcome addition to the law and will have a serious impact on the process of employee retention and management. Causal workers are usually a significant part of construction projects while volunteers and breast-feeding mothers cut across the board and as such their protection in the workplace is a significant step.
If passed into law the provisions in the Bill on outsourcing will definitely provide impetus on employers to ensure compliance by their contractors as well.
The augmentation of the rules against sexual harassment is a welcome move to protect employees in places of work and ultimately ensure a safer and ideally more productive work place.
The Bill takes away the exemption given to family establishments with five or less dependent relatives from complying with the law. These provisions were susceptible to abuse and their removal is a step in the right direction.
We have all been privy to the various horror stories relating predominantly to recruitment agencies externalizing Ugandan labour to some foreign nations where Ugandans are treated in a deplorable manner, with no concern for their safety whilst there. These provisions of the Bill likely seek to address these and other regulatory gaps over the supervision and licensing of these agencies as well provide protection for expatriate (immigrant) migrant workers into Uganda.
Conflation of home and village from repatriation allowance; On the negative side, the repatriation allowance provisions appear to conflate home village and home town in that an employer is supposed to provide repatriation allowance to transport an employee to their home and then thereafter to their village. This is unfortunate since it is unlikely that an employee would be returning to their village as distinct from their home. The saving grace in this clause is that whereas the amount to travel back to one’s home varies, the amount to travel to one’s village is fixed at UGX 500,000. This sum is significant and may increase the already significant costs of employee separations.
The Bill is a laudable piece of draft legislation in tune with the needs of employees, especially the categories being brought under the protection of the law, while keeping the costs of employment incurred by an employer relatively reasonable.
The President, who will have the final say on whether this Bill becomes law even if it is passed by Parliament tends to be reluctant to sign off on laws that have the effect of increasing employment costs, since they are a disincentive to investors to invest in Uganda in favour of other countries with lower employment costs. It therefore remains to be seen whether this Bill will be passed into law in its current form.
Should you require more information on this Bill or any other Employment Law matters, please do not hesitate to contact Patrick.
This Employment law alert provides general information only. It is not intended to provide advice with respect to any specific set of facts, nor is it intended to advise on all developments in the law.