Division 1 of Part VII of the Employment Act (Chapter 373) regulates recruiting — the practice of engaging workers, usually away from the place of employment, for an employer.
Section 106 — who may recruit
A person who (a) is not a worker-recruiter, or (b) is not an employer acting on his own behalf, and who engages in or assists a person who engages in recruiting, is guilty of an offence.
Penalty: a fine not exceeding K500.00 or imprisonment for a term not exceeding two years, or both.
This is the only offence in the Employment Act carrying a term of imprisonment. Everything else in the statute is punishable by fine. That tells you how seriously unauthorised recruiting is treated — it is the point at which workers are most vulnerable, often far from home and with no independent information.
Note that the offence catches assisting a person who recruits, not only recruiting. A middleman who introduces workers to an unauthorised recruiter is within it.
Section 107 — the recruiter’s authority
(1) Each worker-recruiter shall be furnished with an authority in a form approved by the Secretary, signed by his employer, which he shall produce on demand to a labour officer.
(2) A worker-recruiter shall not be authorised simultaneously by more than one employer to recruit labour.
(3) Where a worker-recruiter is convicted of an offence under this Division, his employer must (a) withdraw the authority and (b) cease employing the worker-recruiter in any recruiting. Penalty: a fine not exceeding K200.00.
Three practical points:
- The authority is signed by the employer, in a form approved by the Secretary. A recruiter working for himself is not a worker-recruiter within the Division.
- The one-employer rule in subsection (2) prevents a recruiter operating as an independent labour broker across several employers.
- Subsection (3) puts the obligation on the employer after a conviction, and imposes a penalty on the employer for failing to act.
The authority must be produced on demand to a labour officer. A worker approached by a recruiter is entitled to ask which employer signed the authority, and to check the name against the contract offered. Take a photograph of it.
Section 108 — prohibited recruiting areas
(1) The Minister may, by notice in the National Gazette, declare an area to be an area in which recruiting is prohibited.
(2) A worker-recruiter, or an employer recruiting on his own behalf, who recruits in such an area is guilty of an offence. Penalty: a fine not exceeding K500.00.
The power exists so that areas under population, food security or public health pressure can be closed to recruitment. Where an area is said to be closed, the answer is in the National Gazette.
Section 109 — advances are subject to section 87
Where a worker-recruiter, or an employer recruiting on his own behalf, makes an advance to a recruited employee, that advance is subject to section 87.
So the full advance regime applies at the point of recruitment:
- no advance exceeding 50% of one month’s wages without a labour officer’s approval obtained first;
- any excess advanced without that approval is not recoverable;
- recovery is capped at 25% of net wages per pay period; and
- section 91 forbids any discount, interest or similar charge on the advance, or any charge as a reward for providing or retaining employment.
A large advance at recruitment — for travel, for a family obligation, for goods — is the classic mechanism of debt-based control over a worker far from home. Section 109 removes the ability to create that debt lawfully, and section 87(2) makes the unapproved excess irrecoverable.
Other duties that bind recruiters
| Section | Duty |
|---|---|
| 14 | Must inform the worker of the eight particulars — employer, place(s), location, occupation, nature of work, period, total wage and deductions, manner of payment |
| 40, 42 | Where the recruiter brought the worker (or dependants) to the place of employment, the employer owes repatriation |
| 135 | Offence to fail to take all reasonable steps to ensure the person who proceeds to the place of employment is the person engaged — fine up to K200.00 |
| 133 | Offence of fraud, misrepresentation, intimidation, coercion or undue influence for employment purposes — fine up to K500.00 |
| 103(2) | The age rules apply — medical certificate and written parental consent for 11 to 15 year olds |
| 36(2)(a)(i) | A worker induced by force, fraud or a materially misleading statement may leave without notice |
If you are being recruited
- Ask to see the section 107 authority, and note which employer signed it.
- Ask for the section 14 particulars in writing before you agree to travel — especially the total wage and every deduction.
- Ask who pays the journey home, and confirm that the employer or the recruiter is bringing you (which is what triggers section 40).
- Be careful with advances. Above 50% of a month’s wages, a labour officer must approve first; without approval, the excess is not recoverable from you.
- Keep the paperwork — the offer, any messages, and the name and contact details of the recruiter.
- Tell someone at home where you are going, for whom, and on what terms.
- On arrival, check the contract matches what you were told. If it does not, say so in writing and speak to a labour officer.
- If the contract is attested, the labour officer must be satisfied you consented freely, without mistake, and that you understand your rights and duties.
Sources
- Employment Act (Chapter 373) — ss 14, 23, 36, 40, 42, 87, 91, 103, 106–109, 133, 135; Part VII Division 1
- Criminal Code Act (Chapter 262)
- Industrial Relations Act — PacLII 1986 Revised Edition
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.