Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 81) sur l'inspection du travail, 1947 - Kenya (Ratification: 1964)

Autre commentaire sur C081

Observation

Demande directe

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With reference to its observation, the Committee would also like to raise the following points.

Articles 2(1), 3(1), 16, 17 and 23 of the Convention. Labour inspection activities in the informal sector. The Committee notes from the ILO labour administration and inspection needs assessment conducted at the request of the Government in 2010 (the “2010 audit”) that both labour inspectors and occupational safety and health (OSH) inspectors carry out visits in the informal sector, which is estimated to account for 70 to 80 per cent of the working population. Inspections of informal enterprises are however estimated to account for less than 10 per cent of all inspections. It further notes from the information in the audit 2010 that in recent years, the National Social Security Fund (NSSF) has embarked on a reform programme intended to enhancing social protection for a greater number of workers, including those in the informal economy through the establishment of a mandatory National Social Insurance Pension Scheme. However, the current legislation in force does not provide a definition of the informal economy or who counts as an informal worker. In light of the above, the Committee notes the recommendation in the audit 2010 that the Ministry of Labour (MOL) should further consider how labour inspection services, including prevention, advice and compliance measures, might be effectively extended to the large informal economy, for example, by instructing inspectors to include a certain number of informal enterprises among their visits to focus inspection activities or campaigns on specific categories of workers often found in the informal economy, such as agricultural workers.

With reference to its previous comments on the scope of workers covered by national labour legislation and the categories exempted, the Committee asks the Government to provide information on the adoption of any laws or regulations in this regard, and to provide a copy of the relevant texts to the ILO.

The Committee further asks the Government to provide information on any measures taken or envisaged to implement the recommendations of the 2010 audit, and to provide information on the activities carried out by the labour inspectorate in the informal economy (number of inspections in the different economic sectors, awareness-raising activities, etc.) and their outcome (such as the number of violations detected, the legal provisions concerned, the measures taken and the sanctions imposed, the cases notified to the social security institutions, etc.).

Articles 3(1), 4 and 5(b). Structure of the labour inspection system, cooperation between inspection services and supervision and control by a central authority. The Committee notes the information in the 2010 audit concerning the absence of an individual or a department with oversight responsibility for the various inspection activities, as well as the absence of institutional cooperation between the Labour Department, the Directorate of Occupational Safety and Health Services (DOSHS) and the NSSF. The two inspection systems under the Labour Department and the DOSHS operate independently, with limited cooperation or collaboration. The two departments use separate inspection forms and do not always share the same premises in the regions, joint visits are rare and there is only an occasional sharing of information and transport facilities. In this regard, the Committee notes the recommendations in the 2010 audit on the improvement of the rules and mechanisms for more effective cooperation between the abovementioned inspection services to facilitate the exchange of workplace and inspection data and to encourage, where appropriate, the consolidation or sharing of resources, such as offices and transportation. Furthermore, the 2010 audit suggests that the Government should consider placing labour inspection under the responsibility of one chief inspector who would be responsible for the overall coordination of the MOL’s inspection services. The Committee asks the Government to take all the necessary measures to ensure the operation of the labour inspection system under the supervision and control of a central authority, and to provide information on the measures taken or envisaged to give effect to the above recommendations, as well as to communicate copies of all relevant texts or documents.

Article 3(2). Additional functions entrusted to labour inspectors. The Committee notes from the 2010 audit that, although all labour officers have the capacity of labour inspectors, they assume the front line responsibility for mediating individual and collective labour disputes, with a large portion of their time devoted to this function, at the expense of carrying out inspection visits. The Committee would like to draw the Government’s attention to paragraph 72 of its 2006 General Survey on labour inspection, in which it emphasized that the time and energy that labour inspectors spend on seeking solutions to collective labour disputes, especially in a situation where resources are scarce, are often at the expense of the performance of their primary duties, as defined in Article 3(1) of the Convention. In this regard, it notes the recommendation in the 2010 audit concerning the establishment of a Conciliation and Mediation Commission, as envisaged in the Labour Relations Act 2007, amongst others to relieve labour officers/inspectors from their responsibility of conciliating disputes. The Committee asks the Government to indicate the measures taken or envisaged to relieve labour inspectors of the conciliation functions entrusted to them, and to provide information on any measures taken or envisaged to establish the Conciliation and Mediation Commission, as recommended in the 2010 audit, so that labour inspectors can assume their primary duties as defined in Article 3(1) of the Convention, and to carry out inspections in the highest possible number of industrial and commercial workplaces liable to inspection.

Article 5(b). Collaboration between labour inspectors and employers and workers. The Committee notes from the 2010 audit that labour inspectors do not work regularly with workers and employers or their organizations, whether in terms of policy planning, programming or awareness raising. In this regard, it notes the recommendation in the 2010 audit that the MOL should make appropriate arrangements to promote such collaboration, for instance by using the National Labour Board as a consultative body to discuss matters related to labour and OSH inspection, or to encourage the social partners to collaborate between themselves at the enterprise level to improve voluntary labour law compliance at the workplace. The Committee would be grateful if the Government would provide information on any measures taken or envisaged to promote such collaboration between the labour inspection services and the social partners, including through the National Labour Board and the National Council for OSH, in light of the recommendations in the 2010 audit.

Article 6. Conditions of service of labour inspectors. The Committee notes the information in the 2010 audit that within the MOL, the salaries of labour officers are very low and often barely adequate to meet cost of living requirements. Quarterly appraisal reports of staff members are routinely prepared and submitted to the labour department, but have little bearing on the promotion or advancement of officials. In fact, there is no clear career path for labour officers, with limited professional development and promotion. The Committee reminds the Government that, in accordance with Article 6 of the Convention, the inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. It wishes to emphasize, with reference to paragraph 204 of the 2006 General Survey on labour inspection, that it is vital that the levels of remuneration and career prospects of inspectors are such that high quality staff are attracted and retained in the profession, and protected from any improper influence. The Committee requests the Government to indicate the steps taken or envisaged to gradually improve on the conditions of service of labour inspectors, including their remuneration and wage levels, so that they are independent of improper external influences and enjoy the required neutrality for the proper discharge of their duties.

Article 7. Training of labour inspectors. The Committee notes the information in the 2010 audit that general labour inspectors do not typically have a relevant educational background, and that the absence of adequate initial and subsequent training hinders the development of the necessary skills and competencies to fulfil their role. The Committee notes however that OSH inspectors in Kenya generally have a specific technical background in their area of expertise (occupational medicine, engineering, etc.). The Committee notes the recommendation in the 2010 audit that the MOL should take steps to identify and prioritize the training needs of existing inspection staff and discuss further steps to strengthen the training capacity, for example, through the adoption and implementation of a training plan with the technical assistance of the ILO and the ILO Turin Centre. Such training should include the content of the new 2007 legislation to enable labour inspectors to enforce the law properly and to advise workers and employers about its requirements. Accompanying regulations or codes of practice should be developed for labour officers. Furthermore, when considering future recruitment, the MOL should ensure that inspectors have some level of technical background in their respective areas of specialization based on standard qualification requirements. The Committee asks the Government to provide information on any follow-up measures taken with regard to the above recommendations and to provide information on the training activities provided to labour inspectors during the period covered by its next report (frequency, duration, number of participants, subjects covered, etc.).

Articles 10, 11 and 16. Human and material resources of the labour inspectorate and efficiency of inspections. The Committee notes the information in the annual report of the Commissioner for Labour for 2011 on the number of staff in the Labour Department. It understands that the total number of labour inspectors/officers has increased from 82 in 2005 to 95 in 2011, and that there are 203 vacancies (106 vacancies in 2005), which means that some of the 49 county labour offices are staffed by one officer, while others still do not have any officers/inspectors at all. It further notes from the 2010 audit that the DOSHS has 58 technical officers and 21 specialists and technicians. The Committee notes that the findings of the 2010 audit show that resource challenges, including the lack of labour inspection staff, office equipment and transport facilities persist, and that there is little promise of improvement in the near future. With regard to particular means of transport, the Committee notes that almost all county labour offices have no vehicles and that workplaces are spread over large areas in remote zones outside the metropolitan centres. Furthermore, it notes that where there are no government vehicles, inspectors sometimes visit enterprises on foot or rely on public transport, but are not reimbursed for so doing. The Government notes however the information in the 2010 audit that the DOSHS expect that an OSH fund will be approved by Parliament, which is expected to greatly improve the resources available for the proper functioning of OSH services in Kenya. Furthermore, it notes the recommendations relating to the strategic allocation of resources for computers and vehicles to achieve the greatest impact. It should consider formalizing a policy on the sharing of resources, and on reimbursing labour officers who use public transport in the course of their work. With reference to its observation, the Committee asks the Government to make every effort to provide the labour inspection services with the necessary budgetary means for their effective functioning and to keep the ILO informed of any measures taken and the results achieved in this respect.

It also asks the Government to provide information on whether the above OSH fund has been approved, and if so, its impact on the functioning of the OSH services (improvement of human and material resources including transport facilities, number and quality of inspections, etc.).

Articles 5(a), 17 and 18. Enforcement of legal provisions relating to the conditions of work and the protection of workers. Effective cooperation between the labour inspection services and the justice system. The Committee notes the reference in the Government’s report to a number of developments which the Committee understands are likely to improve the enforcement of labour legislation and the prosecution of violations of labour law through improved accessibility to courts. In this regard, the Committee notes that the industrial court, which is currently one of the departments at the MOL, is expected to be established as part of the judiciary system. In addition to the industrial court, County Chief Magistrates Courts throughout the country have been entrusted with the competence to hear and determine all employment and labour relations cases within their respective jurisdictions. According to the information in the annual report of the Commissioner for Labour for 2011, a total of 11,297 inspections were conducted, and a total number of 50 cases were referred directly to the Industrial Court by the Department of Labour, of which 38 have been finalized and 21 are still pending. Furthermore, 53 cases were referred to the County Chief Magistrates Courts by labour prosecutors. However, more detailed information on the number of violations detected, the follow-up measures taken and their outcome is needed by the Committee to be in a position to make an informed assessment of the functioning of the system for the enforcement of sanctions for the violation of labour legislation.

Furthermore, with regard to the question raised previously by the Committee concerning the preparation of procedural rules and regulations for the Industrial Court, which the Government referred to in its last report as a means of encouraging due diligence and attention in the treatment by judicial bodies of violations reported by the labour inspectorate, it notes from the 2010 audit that these rules are currently being prepared by a committee of the National Labour Board.

The Committee asks the Government to provide statistical information on the number of violations detected, the legal provisions to which they relate, the number of cases submitted to the Industrial Court and the County Chief Magistrate Courts and their outcome (nature of the sanctions applied, amount of the fines imposed, etc.).

The Committee asks the Government to indicate any measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities (such as training provided to labour inspectors, public prosecutors and judges on the procedural and material aspects of labour law and inspection procedures, joint meetings to discuss practical aspects of cooperation, etc.).

It also once again asks the Government to provide a copy of any law or regulation governing the legal procedure of the industrial court, once these texts have been adopted.

Articles 5(1), 20 and 21. Annual report on labour inspection activities. The Committee notes that the annual report of the Labour Commissioner for 2011 has been published on the website of the Ministry of Labour (the last report related to 2005). This report contains information on the number of labour inspectors/officers, the number of labour inspections carried out in the different counties, the number of industrial accidents reported and aggregated by economic sector, and the total number of cases referred to the Industrial Court and the County Chief Magistrate Courts. However, the report does not contain statistics of workplaces liable to inspection and the number of workers employed therein, or statistics of occupational diseases. In this regard, the Committee notes that, according to the information in the 2010 audit, enterprise information is sent to the Ministry by labour officers who carry out inspections, but is not systematically organized, registered and used as a tool for planning inspection visits and monitoring progress in a given workplace. The Committee notes the recent review of the current data collection form (LD101), of which the Government has attached samples to its report, with a view to the more effective collection of statistics and data on the situation in workplaces. It also notes that the 2010 audit found that the introduction of an electronic system would be necessary for faster and easier access to information than the current paper-based system. The Committee finally notes the Government’s commitment, with reference to its general observations of 2009 and 2010 to make efforts to ensure inter-institutional cooperation between the labour inspection services and other government bodies and public or private institutions in possession of relevant data with a view to the establishment of a register of enterprises and the timely publication and communication of annual reports to the ILO.

With reference to the respective recommendations of the 2010 audit, the Committee asks the Government to provide further information on the efforts made to update the system for capturing data, including through inter-institutional cooperation with other government bodies and public or private institutions in possession of relevant data (such as the DOSHS, NSSF, the Directorate of Industrial Training, the tax authorities, chambers of commerce, local administrations, etc.) with a view, among other objectives, to the disaggregation of data by industrial and commercial establishments.

It also asks the Government to report on the measures taken to ensure that the annual reports on the work of the labour inspectorate contain all the information and statistics on labour inspection activities required by Article 21 (a) to (g) of the Convention, including the missing statistics of workplaces liable to inspection and the number of workers employed therein, statistics of violations and penalties imposed, and statistics of cases of occupational disease, and that they are published regularly and communicated to the ILO.

Articles 2(1), 3(1), 16, 17 and 23. Labour inspection and child labour. The Committee notes that the annual report of the Labour Commissioner for 2011 contains some information on activities by the labour inspectorate relating to child labour, although only for eight of the 49 counties. The Committee also notes the reference in the Government’s report to the training on project management of four officers from the child labour division of the Labour Department at the Kenya Institute of Administration, and various courses at the International Training Centre in Turin in the field of child labour for 17 government officials, of whom five were from the Ministry of Labour. Further to its previous comment in this regard, it asks the Government whether the child labour division has been provided with the necessary budgetary means to fulfil its mission.

In more general terms, the Committee asks the Government to describe the measures taken by the labour inspectorate with a view to securing the enforcement of the legal provisions relating to the employment of children and young persons (number and type of inspections and awareness-raising activities) and to provide information on their outcome (infringements detected, investigations, prosecutions, convictions and penal sanctions applied, remedies identified, etc.).