Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information in the Government’s first and second reports and in the attached documentation.

1. Article 1(a) of the Convention. Definition of remuneration. The Committee notes that the definition of remuneration in section 14(1) of the Regulation of Wages and Conditions of Employment Act (Chapter 229), which applies to both the private and public sectors, only refers to amounts paid in cash and that section 62(1) of the Labour Institutions Bill, still pending approval, provides a similar definition. Furthermore, section 3 of the draft Employment Bill defines remuneration as "either salary, wages, fees, hourly rate, bonus payment, overtime payment, or any other payment or a combination of two or more of these payments payable by an employer to an employee under a contract of service". The Committee also notes that the draft Employment Bill provides for food and housing allowances but that it is unclear whether these are covered by section 3. The Committee recalls that the notion of remuneration covered by Article 1(a) of the Convention applies to the basic salary as well as any additional emoluments whether they are paid in cash or in kind. It therefore encourages the Government to use the ongoing legislative revision to bring section 62(1) of the Labour Institutions Bill and section 3 of the Employment Bill into conformity with the Convention by expanding the definition of remuneration in both Bills to include allowances and payments in cash and in kind. Please keep the Committee informed of any developments with regard to the adoption of the Bills.

2. Articles 1(b) and 2. Equal remuneration for work of equal value and legislation. The Committee notes that article 43(1) of the draft Constitution prohibits direct and indirect discrimination based on sex, and that article 66(2)(a) provides that every worker has the right to "fair remuneration". The Committee also notes with interest that section 6(3) of the Employment Bill provides for equal remuneration for men and women for work of equal value. The Committee welcomes these provisions and encourages the Government to make progress in the adoption of the abovementioned legislation. In the meantime, the Committee asks the Government to provide information, including relevant court cases, demonstrating that the principle of equal remuneration for work of equal value is being applied in practice.

3. Article 2. Determination of wages - wages orders. The Committee notes that under the Regulation of Wages and Conditions of Employment Act minimum rates of remuneration are set by wages orders published by the Minister upon recommendation by the Wages Council established by the Minister. Noting also the adoption of the Regulation of Wages (General) Amendment Order and the Regulation of Wages (Agricultural Industry) Amendment Order, 2002, pursuant to section 12 of the Act, the Committee asks the Government to indicate whether these orders will remain applicable once the Labour Institutions Bill has been adopted. If so, please provide information on the distribution of men and women in each of the occupational categories covered by the Orders.

4. Article 2. Determination of wages - collective agreements. The Committee notes the Government’s statement that there are no collective bargaining agreements or schemes of services that have differential wage rates for men and women workers and that all employment contracts provide for equal pay for men and women. Noting that the 2002-03 collective bargaining agreement between the Kenya Ports Authority and the Dockworkers’ Union contains a salary structure based on grades and "pay points", the Committee would be grateful if the Government could provide information on the distribution of men and women in the different grades and pay points covered by the agreement. Please also provide copies of recent collective agreements determining wages in those sectors where there are more or less an equal number of men and women employed.

5. Article 2. Determination of wages - public service schemes. The Committee asks the Government to provide information on the criteria and methods used to determine the classification of jobs and their corresponding wage scales in public service schemes, including copies of these schemes. Please also provide copies of the Public Service Commission Act (Chapter 189) and the Public Service Scheme of Service, which were not annexed to the report.

6. Article 3. Job evaluation. The Committee notes the Government’s statement that job evaluations and appraisals form the basis of fixing remuneration and promotion of employees. This is done through expert job evaluation exercises and collective bargaining agreements for private sector workers, while in the public sector through schemes of services. The Committee asks the Government to provide information on the specific job evaluation methods used in the public and private sectors, including information concerning the extent to which employers and workers have embarked upon fixing wages in collective agreements on the basis of job evaluation.

7. Article 4. Cooperation with social partners. Please provide information on the manner in which the National Labour Board and the tripartite wages councils will give effect to the provisions of the Convention, once the Labour Institutions Bill has been adopted.

8. Parts III to V of the report form. The Committee invites the Government to provide information on the manner in which the application of the principle of equal pay, as enshrined in the Convention, is supervised and ensured. Such information could include statistical data disaggregated by sex, reports, guidelines or publications, as well as administrative and judicial decisions, and any other information that may enable the Committee to assess how the principle of equal remuneration for men and women for work of equal value is applied in practice. Please provide information on the number and nature of any contraventions detected by the competent bodies with regard to cases of wage discrimination and the remedial action undertaken in this regard.

9. The Committee understands that the Government has been preparing a "National Policy on Gender and Development" and that a National Commission on Gender and Development was established under Act No. 13 of 2003, which became operational in January 2004. It asks the Government to supply a copy of the national policy and information on measures taken for ensuring equal remuneration for men and women for work of equal value in the public sector and for promoting its application in the private sector, under the abovementioned national policy and by the national commission as well as any other relevant bodies.