Demande directe (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

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

Autre commentaire sur C081

Observation

Demande directe

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Referring to its observation, the Committee wishes to raise the following additional points.

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee previously noted that, according to the labour administration and inspection needs assessment conducted in 2010 by the ILO (2010 audit), 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 2010 audit recommended the establishment of a Conciliation and Mediation Commission, as envisaged in the Labour Relations Act 2007, among others, to relieve labour officers/inspectors from the responsibility of conciliating disputes. The Committee notes the information in the Labour Commissioner’s Annual Report of 2012 that 913 industrial trade disputes were settled by the Department of Labour during the year under review, but this report does not indicate which staff were involved in this mediation. With reference to paragraph 72 of its 2006 General Survey on labour inspection, the Committee emphasizes 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. The Committee asks that the Government indicate the measures taken or envisaged to ensure that the conciliation functions entrusted to them do not interfere with their primary duties, and to provide information on any measures taken or envisaged to establish the Conciliation and Mediation Commission.

Article 5(b). Collaboration between labour inspectors and employers and workers. The Committee previously noted the information in 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. The 2010 audit recommended that the Ministry of Labour 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 occupational safety and health (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 notes the information in the Labour Commissioner’s Annual Report of 2012 that the National Labour Board held two meetings in 2012. The Committee asks that the Government provide information on any activities of the National Labour Board related to labour inspection, and to provide any relevant reports or documents in this regard. The Committee also asks that the Government provide information on any measures taken or envisaged to promote collaboration between the labour inspection services and the social partners at the enterprise level.

Article 6. Conditions of service of labour inspectors. The Committee previously noted that according to the 2010 audit, the salaries of labour officers are very low and often barely adequate to meet the cost of living requirements. The audit also indicated that there is no clear career path for labour officers, with limited professional development and promotion. The Committee notes the information in the Labour Commissioner’s Annual Report of 2012 that the Department has yet to recruit staff for a significant number of vacant positions – it has only 94 technical officers against an authorized establishment of 298 technical staff. With reference to paragraph 204 of its 2006 General Survey on labour inspection, the Committee recalls 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. Taking note of the budgetary restraints referenced in the Government’s report, the Committee asks that the Government indicate the steps taken or envisaged to gradually improve on the conditions of service of labour inspectors, including their remuneration levels and conditions for career advancement.

Article 7. Recruitment and training of labour inspectors. The Committee notes the statement in the Labour Commissioner’s Annual Report of 2012 that the staff of the Department of Labour need training to meet the new challenges in respect of the public’s expectation of services following the promulgation of a new constitution in 2010. It also notes the indication in the Annual Report for 2012–13 of the Directorate of Occupational Safety and Health Services that there is a need for continuous technical skill development for OSH officers. This report indicates that, in the absence of government funding, officers have to cover the costs of this training themselves and that many officers have had to take on loans for this purpose. The Committee asks that the Government take measures to ensure that the necessary training is provided to labour inspectors, and to provide information on the activities undertaken in this regard (including the frequency, duration, number of participants and subjects covered). It also asks that the Government provide information on any measures taken or envisaged pursuant to the recommendations of the 2010 audit with regard to the recruitment of inspectors.

Article 14. Reporting and investigation of occupational accidents and cases of occupational disease. The Committee notes the statement in the Annual Report for 2012–13 of the Directorate of Occupational Safety and Health Services that, while reporting an accident is a requirement under the Occupational Safety and Health Act, this reporting remains poor and in most cases is not done within the stipulated time. This contributes to the difficulty in investigating such accidents. With respect to the reporting of occupational diseases, the Committee notes that while the Labour Commissioner’s Annual Report of 2012 indicates that there was no data available for the number of occupational diseases, the Annual Report of the Directorate of Occupational Safety and Health Services indicates that 1,011 workers were diagnosed with occupational diseases during the year. The Committee encourages the Government to strengthen its efforts to improve information sharing between the Department of Labour and the Directorate of Occupational Safety and Health Services with respect to occupational accidents and diseases. The Committee also asks that the Government take the necessary measures to improve the reporting of occupational accidents and diseases, and to provide information on progress achieved in this regard.

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 that the Industrial Court Act, adopted in 2011, established the Industrial Court. The Committee also notes the information in the Labour Commissioner’s Annual Report of 2012 that a total number of 75 cases were referred directly to court by the Department of Labour in 2012. Fifty of these cases were finalized and 25 cases were pending in court. It also notes the information in the Annual Report for 2012–13 of the Directorate of Occupational Safety and Health Services that 68 prosecutions were initiated against owners of premises who failed to comply with the provisions of the Occupational Safety and Health Act. The Committee asks that the Government provide statistical information in its next report on the violations giving rise to these cases, the legal provisions to which the cases relate, as well as outcome of these cases (including the specific penalties applied). It also requests that the Government provide information on any measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities.

Articles 5(1), 20 and 21. Annual report on labour inspection activities. The Committee notes that the Labour Commissioner’s Annual Report of 2012 contains information on a number of subjects required under Article 21(a)–(g) of the Convention, including the number of inspections undertaken, the number of labour inspectors, and the number of industrial accidents, but it does not contain information on the number of workplaces liable to inspection and the number of workers employed therein, or the number of violations detected and penalties imposed. The Committee also notes the Government’s statement that there has been no improvement in the data capture system and collection of OSH statistics. The Government further indicates that there is a need for technical assistance from the ILO for the development of an integrated system of labour inspection data collection and storage system cutting across all the agencies engaged in labour inspection. With reference to the recommendations of the 2010 audit, the Committee requests that the Government pursue its efforts towards the improvement of the data capture system, including through inter-institutional cooperation with other government bodies and public or private institutions with a view to the establishment of a register of enterprises. It encourages the Government to make a formal request to the Office for technical assistance in this regard. The Committee also requests that the Government take measures towards ensuring that future annual reports contain complete information on all the subjects listed in Article 21(a)–(g), including the number of workplaces liable to inspection and the number of workers employed therein, as well as data on the violations detected and the number and nature of the penalties imposed.