Mandatory Provisions of a Foreign Contract of Service

In our previous article, we looked at what a foreign contract of service is under the Employment Act, 2007 (the Act) and key considerations to make before entering into one. In this article, we break down the mandatory provisions every foreign contract of service must contain to be valid and enforceable under the Sixth Schedule to the Employment (General) Rules (the Rules). 

1. Names and addresses of the parties: For identification purposes, the contract must state the names of the parties and their physical addresses. Note that the contract may include more than one employee. In that case, the contract must include a list of all employees and their details. 
2. Nature of work and place of employment: The contract must describe the type of work the employee(s) will be engaged in, and the country of employment and town or area where they will work. 
3. Period of service: The contract must specify the period of engagement, which commences from the date on which the employee(s) leave the Republic of Kenya. 
4. Wages: The contract must indicate the wages payable to the employee. If there are several employees, the wages must be indicated opposite their names in the attached list of employees. The employer must pay a minimum of one-third of an employee’s wages either into a local bank account nominated by the employee, or to a person in Kenya nominated by the employee. 
5. Transport: The employer must provide free transport, by road, rail, air, or ship, for each employee to and from the place of work. 
6. Medical attention: The employer is required to provide adequate free medical attention and hospital accommodation for each employee when necessary. 
7. Relatives are not required to work for the employer: When an employee’s family accompanies them to their deployment abroad, their family members, including their spouse, child, or other relative, cannot be compelled to work for the employer unless there is a separate, paid contract of employment with them. 
8. Leave with pay: Every employee is entitled to a minimum of twenty-one days of paid annual leave for every completed year of service, as provided under Section 28 of the Employment Act, 2007. 
9. Accommodation: The employer must provide reasonable accommodation for every employee, or pay them a housing allowance, or a consolidated wage intended to include rent. 
10. Death, desertion, or serious injury: The employer must immediately report any of these three circumstances to the Labour Officer in Kenya. In case of death of an employee, the employer must remit any monies due and any property belonging to the deceased employee to the Labour Officer, who shall pay the same to the deceased’s beneficiaries. Where an employee deserts his duties, the employer will pay any sums due and remit any property belonging to the employee one month after the date of desertion. 
11. Termination of contract: The contract may be terminated in accordance with the law of the foreign country where the employee works. However, the terms of termination should not be less favourable than those provided under Kenyan labour laws, as foreign contracts of service must comply with the Act (see Section 83(d) of the Act). 
12. Extension of contract: An employee cannot renew or extend his employment contract without the prior consent of the Labour Officer. Such renewal or extension shall be under the same terms of the prescribed foreign contract of service, unless otherwise directed by the Labour Officer. 
13. Repatriation: Upon the lapse of the period of service, the employer must repatriate the employee to the place in Kenya where he was engaged. If the Government of Kenya repatriates the employee, the employer may be required to reimburse the Government the cost of the repatriation. 
14. Agreement of employee: Every employee must indicate their express agreement to serve the employer in accordance with the conditions of the contract. 
15. Attestation: The contract is not valid or enforceable against the employee unless it is attested by the Labour Officer in Kenya. The contract should also be signed in the presence of an independent witness. 
16. Medical certificate: Under Section 37 of the Rules, the contract cannot be valid or enforceable against or in respect of an employee unless and until a medical certificate has been given to the attesting Labour Officer in respect of that employee. The medical certificate must be in the prescribed form under the Eighth Schedule of the Rules. 

Conclusion 

A foreign contract of service is not a document you can improvise from a standard local template. Each of the provisions above is prescribed, and missing even one can leave the contract vulnerable to being declared invalid or unenforceable, with the consequences we discussed in our previous article. 

Getting the contract right from the outset is far more efficient than discovering a defect after the employee has already left the country. 

If your organisation is planning to send employees to work outside Kenya, our team can help you draft a compliant foreign contract of service from the outset. Get in touch with us at info@hrfleek.com to book a consultation.