In this article we present some highlights of the recently gazetted Employment (Amendment) Bill, 2019 (the “Bill”). The Bill seeks to amend the 2006 Employment Act (the “Act”) and captures some of the current issues of concern in employment matters.
Protection of domestic and casual workers
The Bill seeks to regulate the employment of domestic workers and casual employees in Uganda. The Act did not apply to employers and their dependent relatives where the dependent relatives were the only employees in a family undertaking and did not exceed five. This would ordinarily include domestic workers and casual employees who do not fall under the dependent relatives category. The Bill seeks to remove the dependent relatives exception so that the Act applies to all domestic workers and casual employees regardless of their number and relationship to the employer.
While the Act defines a casual employee it does not provide any detail on what terms would apply to them, as separate from the terms that apply to a full time/regular employee. The Employment Regulations, 2011 attempted to correct this by providing that a casual employee who is engaged continuously for four months is entitled to a written contract and will be entitled to all rights and benefits enjoyed by other employees. This, however, did not address the rights of a casual employee.
The Bill, if passed, will reduce the period within which a person can be a casual employee from four months to one month and will provide for the protection of the health and safety of the casual worker, among other rights.
The Bill seeks to ensure that domestic workers (defined as workers in households) are fully entitled to all usual employee rights including overtime pay, leave days and so on. It is not clear how overtime will work for domestic workers and a lot of education will be required given the noted vulnerability and susceptibility to exploitation of domestic workers.
The Act allows an employer and employee to negotiate and agree on the severance pay calculation. It also provides criteria for when severance pay applies. The Bill seeks to fix severance as one month’s pay for each year of service where the employment has been for more than one year, and the employee has not been dismissed for gross misconduct.
Sexual harassment, abuse and other forms of harassment
The Bill seeks to provide for the scope of sexual harassment in employment, and seeks to ensure that all employers have in place a policy to prevent sexual harassment, regardless of the number of employees. Currently, the Act only requires a sexual harassment policy for employers with more than 25 employees.
The Bill prescribes the places where sexual harassment may be considered to have taken place to include during work trips, training or social activities.
The Bill also introduces an aspect of prohibition of abuse, harassment (other than sexual harassment) or violence against an employee.
Protection of working breastfeeding mothers
The Bill seeks to introduce an entitlement for breastfeeding employees to one or more daily breaks or a reduction in hours of work to allow them to breastfeed their babies. This entitlement will last for at least three months from the end of maternity leave. An employer is also required to provide a breastfeeding room under adequate hygienic conditions within or near the workplace for purposes of breastfeeding or bottle feeding or expressing milk. This seems to imply that a breastfeeding mother may also have her baby at work with her.
The Bill additionally provides for the employment of volunteers as the Act does not cater for this. Volunteers are stated in the Bill to be entitled to have all costs and expenses arising out of an injury or occupational disease acquired in the course of employment as a volunteer to be met by the employer. Volunteers may also only work up to six hours a day, unlike the eight hours a day average for a regular paid employee.
Under the Bill, the requirement for an employer to repatriate an employee following termination of a contract has been lowered so that an employee who was recruited more than 50km away from the work place (as opposed to the 100km in the Act), must be repatriated to their home. The calculation of the repatriation amount is also provided.
The Bill provides for recruitment and employment of migrant workers in Uganda and Ugandan migrant workers abroad and for compulsory registration and licensing of recruitment agencies for domestic workers and non-manual labourers. The recruitment of labour for employment outside Uganda is a rapidly growing industry and has been subject to controversy.
The Act, was due for amendment both to address some drafting issues as well as to keep abreast with developments and for this reason, the Bill is welcome.
While the Bill addresses some loopholes in the Act, such as the severance allowance question, and introduces some beneficial provisions such as protection of domestic workers, breastfeeding mothers, migrant workers, it falls short in addressing some big challenges faced in the courts, starting with whether the prescribed limits on the award of damages for unfair termination apply to the Industrial Court. Several provisions of the Act also need to be redrafted in order to help with their interpretation, the clauses on the rate at which annual leave accrues and entitlement of sick pay being examples of such clauses.
As a word of caution, the Bill has been presented by a private member and is substantially different in approach and content from a draft bill prepared by Uganda Law Reform Commission as part of its recent study on employment laws. The priority task will be reconciliation of this Bill with the far more comprehensive amendments being considered by Government.