Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes with interest the adoption in October 2007 of the Labour Institutions Act (Act No. 12 of 2007) containing provisions for labour administration and inspection (Part V); the Occupational Safety and Health Act (Act No. 15 of 2007, hereinafter the OSH Act) containing provisions on enforcement by occupational safety and health officers (Part IV); the Work Injury Benefits Act (Act No. 13 of 2007); the Employment Act (Act No. 11 of 2007); and the Labour Relations Act (Act No. 14 of 2007). The Committee would be grateful if the Government would provide detailed information in its next report on the application of the Convention in practice following this in-depth revision of Kenyan labour law. It wishes to draw the Government’s attention in particular to the following points.

Articles 2, paragraph 1, and 23 and Article 3, paragraph 1, of the Convention. Labour inspection and supervision of conditions of work. Scope of labour inspection. Referring to its previous comments on the supervision of occupational safety and health in establishments located in export processing zones (EPZs), the Committee notes the Government’s indication that it is envisaged that Legal Notice No. 227/1990, which exempts these establishments in EPZs from the application of the Factories and Other Places of Work Act (Cap. 514), will be rendered null and void following the entry into force of the new OSH Act. While noting that, following the entry into force of the OSH Act in 2008, the Factories and Other Places of Work Act has now been repealed (section 129(1) of the OSH Act), the Committee observes that, under section 129(2)(b) of the OSH Act, any subsidiary legislation issued before its commencement shall, as long as it is not inconsistent with it, remain in force until repealed or revoked by subsidiary legislation under the provisions of the OSH Act and shall, for all purposes, be deemed to have been made under this Act. The Committee therefore requests the Government to confirm that Legal Notice No. 227/1990 is now null and void and that, as a consequence, the provisions of the OSH Act apply to all workplaces, including establishments located in EPZs. If the Legal Notice is still in force, it requests the Government to take the necessary measures in the near future to repeal or revoke it.

The Government is also requested to provide detailed information and statistics in its next report on the inspections carried out by occupational safety and health officers, in accordance with section 32 of the new OSH Act, as well as on the safety and health committees established under section 9 of the Act in industrial and commercial establishments in EPZs.

With regard to the supervision of general conditions of work, the Committee notes that the 2007 Labour Institutions Act, which contains provisions on labour administration and inspection, applies to all workplaces, with the exception of the armed forces and the national youth service (section 4(1)). However, the Minister may, under certain conditions, exclude from its application “limited categories of employed persons in respect of whom special problems of a substantial nature arise” (section 4(2)) or “categories of employed persons whose terms and conditions of employment are governed by special arrangements” (section 4(3)). The Committee requests the Government to indicate whether any categories of workers have been excluded from the scope of the Labour Institutions Act under the above provisions and, if so, to specify the categories concerned.

Articles 6, 10, 11 and 16. Adequate means of action and the status and conditions of service of labour inspection staff. In its previous comments, the Committee emphasized the need to make budgetary resources available to the labour inspectorate on a sustainable basis to enable it to discharge its functions efficiently and to take appropriate measures to improve the status and conditions of service of labour officers. Referring to the freeze in public employment in the early 1990s, the Government indicates that the Ministry of Labour has requested an increase in its budgetary allocation for the recruitment of staff. In this regard, the Committee observes that, according to the annual report of the Labour Department for 2005 (the most recent report available), 82 posts of labour inspectors (category I) out of 106 were vacant in 2005. These vacancies not only entail fewer inspection activities, but also imply additional work for the labour officers in post, which inevitably affects the discharge of their regular duties.

Expressing concern at the persistent lack of labour inspection staff, the Committee urges the Government to take appropriate measures to recruit qualified staff and accordingly to strengthen the capacity of the labour inspection services. Referring to its previous comments on the office equipment and means of transport available to labour inspection staff, the Committee once again requests the Government to take measures to ensure that these resources are sustainable and to keep the ILO informed of any measures taken or envisaged to collaborate with political and financial decision-makers to that end.

Article 14. Reporting and investigation of occupational accidents and cases of occupational disease. The Committee notes that the notification of occupational accidents is provided for by section 21 of the OSH Act, under which the employer shall notify, in writing, the area occupational safety and health officer of an accident within seven days and inform him/her within 24 hours of the occurrence of a fatal accident. In addition, section 22 of the Work Injury Benefits Act provides that the employer shall report an accident to the Director of Occupational Safety and Health Services within seven days after having received notice of the accident or learned that an employee has been injured in an accident. The Director must also be informed in writing within 24 hours in case of a fatal accident (section 21).

With regard to the investigation of accidents, in response to the Committee’s previous request concerning the reasons for the disparity between the number of occupational accidents and the number of investigations conducted, the Government explains that this is due to the delay between the occurrence of accidents and their notification, which takes place through regional offices, with the result that it becomes impossible to investigate them. In order to enable its officers to investigate accidents without delay, the Labour Department has come up with its own accident reporting form (DOSH 1) to be completed by the employer and sent directly to the Department. The Government adds that the data on occupational accidents in the new forms are entered into an accident database and the compilation of statistics on occupational accidents by the Department, undertaken by its Information Centre, will enable it to identify high risk occupations and enterprises and therefore to prioritize its inspection activities. The Committee notes this information with interest.

It further notes that the Work Injury Benefits Act requires the Director of the OSH Services, once notified, to make such inquiries “as are necessary” to decide upon any claim or liability (section 23). According to the OSH Act, the Minister may appoint a tribunal of competent persons to carry out a formal investigation of occupational accidents and diseases (section 128). The Committee would be grateful if the Government would describe in detail the investigation procedure with a view to identifying and eliminating occupational hazards that have caused accidents, and if it would indicate, inter alia, the “competent persons” responsible for such investigations, the action taken following investigations and their results.

With regard to occupational diseases, the Committee notes that, in accordance with section 22 of the OSH Act, such cases must be notified by medical practitioners to the Director of OSH Services. It would be grateful if the Government would supply practical information on the functioning of this notification system, as well as on the action taken thereon. It also asks it to indicate whether medical practitioners have at their disposal a list of occupational diseases and, if so, to send a copy to the ILO.

The Committee would also be grateful if the Government would ensure that the data compiled by the reporting system on occupational accidents and cases of occupational disease and their impact on the number of investigations conducted are reflected in the next annual report of the Labour Department, in accordance with Article 21(f) and (g) of the Convention.

Articles 20 and 21. Annual report on labour inspection activities. The Committee notes with interest that, under section 42(1) of the Labour Institutions Act, the Commissioner for Labour shall, no later than 30 April of each year, prepare and publish an annual report of the activities undertaken in his/her department. Furthermore, it also notes with interest that this report shall contain at the least information on developments with regard to relevant laws and regulations, staff under his/her jurisdiction, statistics of places of work to be inspected and number of persons employed therein, findings in the course of inspection, statistics of industrial accidents and occupational diseases, statistics of persons with disabilities in workplaces and any aids being provided by the employer, statistics of proceedings brought before the industrial court or other courts, and statistics of stoppages of work in the various sectors of industry (section 42(2)).

Noting also with interest that section 25 of the OSH Act provides for the development and maintenance of an effective programme of collection, compilation and analysis of occupational safety and health statistics covering occupational accidents and diseases, the Committee requests the Government to keep the ILO informed of the progress made in establishing this system in practice and any difficulties that have been encountered. The Committee trusts that the next annual report of the Labour Department will contain all the above information and statistics on labour inspection activities as envisaged by the law and required by Article 21 of the Convention, including separate data on the inspections carried out in industrial and commercial establishments located in EPZs, if any.

Labour inspection and child labour. The Committee notes that the Government is currently implementing the Time-bound Programme for the elimination of child labour with ILO/IPEC and that, as of March 2007, a total of 7,000 children had been prevented from being engaged in or withdrawn from child labour in ten districts and five towns. The Committee further notes that the elimination of the worst forms of child labour is one of the priorities set by the Decent Work Country Programme (DWCP) approved in August 2007. However, it observes the Government’s indication that it has not made any budgetary allocation to the Child Labour Division to maintain it beyond the Time-bound Programme. The Committee trusts that the Government will ensure the allocation of adequate resources for this purpose. It also trusts that ILO technical assistance within the framework of the DWCP will enable the Government to strengthen the capacity of labour inspectors to deal with this issue and combat effectively the worst forms of child labour. Emphasizing the role that labour inspectors can play in the protection of the health, safety and welfare of children, the Committee requests the Government to provide information on the training of labour inspectors on child labour issues, and particularly its worst forms, the activities undertaken and the results achieved. It would be grateful if the Government would also indicate the measures taken or envisaged to ensure effective collaboration between the labour inspection services and the Child Labour Division so as to enable a more rational use of the human and material resources available.