Paid Educational Leave Convention, 1974 (No. 140) - Kenya (RATIFICATION: 1979)

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The Committee notes the observations of the Central Organization of Trade Unions of Kenya (COTU-K), received on 1 September 2023. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Formulation of a national policy. Article 2 of the Convention. The Committee notes the information provided in the Government’s report regarding the activities of the National Industrial Training Authority (NITA). The Government indicates that the NITA collects, manages and distributes funds from the industrial training levy, whose main purpose is to support skilling, upskilling and reskilling of workers engaged in industry. It adds that the NITA makes payments from a fund for training and education-related purposes. The Committee notes that the NITA also grants paid study leave to its employees pursuant to the guidelines set out in the Human Resource Policies and Procedures Manual for the Public Service of May 2016 and Guidelines on Managing Training in the Public Service of June 2016. The Government refers to the NITA Human Resource Policy and Procedures Manual of 2015 as the main reference document which guides the award of paid study leave to its employees. The Committee notes that, according to the information provided by the Government, the paid educational leave provided by the NITA is provided for continuing education and training, including higher education. The Committee recalls that Article 2 of the Convention requires Members to formulate and apply a policy designed to promote … the granting of paid educational leave for the purpose of: (a) training at any level; (b) general, social and civic education; and (c) trade union education. Noting that the Government does not fully respond to the Committee’s previous comments, the Committee once again requests that the Government provide information regarding the measures taken to formulate, adopt and apply a national policy to promote paid educational leave for the purposes set out in Article 2 of the Convention, including for the purpose of civic and trade union education (Article 2(b) and (c). The Committee once again invites the Government to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave, in association with the employers’ and workers’ organizations and institutions or bodies providing education and training (Article 6).

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Formulation of a national policy. Article 2 of the Convention. The Committee notes the information provided in the Government’s report regarding the activities of the National Industrial Training Authority (NITA). The Government indicates that the NITA collects, manages and distributes funds from the industrial training levy, whose main purpose is to support skilling, upskilling and reskilling of workers engaged in industry. It adds that the NITA makes payments from a fund for training and education-related purposes. The Committee notes that the NITA also grants paid study leave to its employees pursuant to the guidelines set out in the Human Resource Policies and Procedures Manual for the Public Service of May 2016 and Guidelines on Managing Training in the Public Service of June 2016. The Government refers to the NITA Human Resource Policy and Procedures Manual of 2015 as the main reference document which guides the award of paid study leave to its employees. The Committee notes that, according to the information provided by the Government, the paid educational leave provided by the NITA is provided for continuing education and training, including higher education. The Committee recalls that Article 2 of the Convention requires Members to formulate and apply a policy designed to promote … the granting of paid educational leave for the purpose of: (a) training at any level; (b) general, social and civic education; and (c) trade union education. Noting that the Government does not fully respond to the Committee’s previous comments, the Committee once again requests that the Government provide information regarding the measures taken to formulate, adopt and apply a national policy to promote paid educational leave for the purposes set out in Article 2 of the Convention, including for the purpose of civic and trade union education (Article 2(b) and (c). The Committee once again invites the Government to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave, in association with the employers’ and workers’ organizations and institutions or bodies providing education and training (Article 6).

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2013.

Repetition

Formulation of a national policy. The Committee notes the Government’s report received in September 2013 in reply to the 2008 observation. The Government indicates that there has been no further change in the legislation affecting the practical application of this Convention since the review of the labour laws. It adds that, with regard to the formulation of a national policy, the matter has once again been brought to the attention of the relevant stakeholders before it is resubmitted to the National Labour Board for adoption; an inter-ministerial stakeholder committee will be established to discuss it, as the Government awaits comments from the social partners. Moreover, as of July 2007, employers pay 50 Kenyan shillings per employee per month; the sums are pooled into a Levy Fund. The training costs incurred by registered employers and their workers are approved by the National Industrial Training Authority, and are then reimbursed in whole or in part. The Committee expresses its hope that the Government will soon be in a position to report on the measures adopted with a view to formulating and applying a policy to promote paid educational leave (Article 2). Please provide detailed information on the activities of the National Industrial Training Authority and on other measures taken to give effect to the Convention. The Committee once again invites the Government, in association with the social partners and with the institutions and bodies providing education and training, to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave (Article 6).

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Formulation of a national policy. The Committee notes the Government’s report received in September 2013 in reply to the 2008 observation. The Government indicates that there has been no further change in the legislation affecting the practical application of this Convention since the review of the labour laws. It adds that, with regard to the formulation of a national policy, the matter has once again been brought to the attention of the relevant stakeholders before it is resubmitted to the National Labour Board for adoption; an inter-ministerial stakeholder committee will be established to discuss it, as the Government awaits comments from the social partners. Moreover, as of July 2007, employers pay 50 Kenyan shillings per employee per month; the sums are pooled into a Levy Fund. The training costs incurred by registered employers and their workers are approved by the National Industrial Training Authority, and are then reimbursed in whole or in part. The Committee expresses its hope that the Government will soon be in a position to report on the measures adopted with a view to formulating and applying a policy to promote paid educational leave (Article 2). Please provide detailed information on the activities of the National Industrial Training Authority and on other measures taken to give effect to the Convention. The Committee once again invites the Government, in association with the social partners and with the institutions and bodies providing education and training, to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave (Article 6).

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Formulation of a national policy. The Committee notes the Government’s report received in September 2008, replying to the observation of 2006. The Government states that there is still no national policy framework or specific law governing paid educational leave as the social partners have failed to agree on the matter. However, it will be brought up for discussion in the National Labour Board, the establishment of which is provided for by the Labour Institutions Act of 2007. The Government states that it supports and promotes training at all levels and again indicates that there is no legislation in contradiction with the Convention. The Government further indicates that the Industrial Training Act regulates the training of workers. Although the Act has no specific provisions on paid educational leave, it does provide for the establishment of a National Industrial Training Council and several training committees, in specified industries. Referring to its previous comments, the Committee reminds the Government that the formulation and application of a policy designed to promote the granting of paid educational leave for the purpose of training at all levels of general, social and civic education and trade union education are obligations that derive from ratification of the Convention pursuant to Article 2. It points out in particular that Article 2 also facilitates application of the Convention by allowing methods to promote the granting of paid educational leave to be adapted to national conditions and practice and to be implemented in stages, as necessary. Furthermore, Article 9(b) of the Convention provides that special provisions are to be established, as necessary, for particular categories of workers and undertakings liable to have difficulty in fitting into general arrangements (clauses (a) and (b)). The Committee requests the Government, in association with the social partners and with institutions and bodies providing education and training, to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave (Article 6). Lastly, the Committee invites the Government to send any reports, studies, surveys or statistical data allowing it to assess the extent to which the Convention is applied in practice (Part IV of the report form).

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The Committee notes the Government’s report on the application of the Convention for the period ending on 30 June 2006.

Formulation of a national policy. The Committee notes the Education Statistical Booklet 1999-2004, which covers among other things pre-work basic vocational and technical training. It observes, however, that the Government has still not formulated a national policy or adopted any specific legislation on the grant of paid leave to workers for educational purposes for a specified period during working hours, with adequate financial entitlements. The Government reports that the Task Force set up to revise the labour legislation, which was to examine amendments to meet the requests of the Committee of Experts, failed to reach agreement on the inclusion of paid educational leave in the proposed legislation. According to the Government, there is no legislation contrary to the Convention, paid educational leave being agreed according to operational and individual requirements in both public and private sectors. The public sector has Ministerial Training Committees which review training needs, and in the private sector paid educational leave is negotiated either between the union and management or individuals. The Government specifies that it is unable to provide any reports, studies, surveys or statistics showing the length of leave granted and the financial entitlements of workers who are granted educational leave. The Committee would remind the Government that the formulation and application of a policy designed to promote the granting of paid educational leave for the purpose of training at any level, general, social and civic education and trade union education, are obligations that derive from ratification of the Convention pursuant to Article 2. It points out in particular that Article 2 facilitates application of the Convention by allowing methods to promote the granting of paid educational leave to be adapted to national conditions and practice and to be implemented in stages as necessary, as does Article 9(b), under which special provisions are to be established for particular categories of workers and undertakings liable to have difficulty in fitting into general arrangements (paragraphs (a) and (b)). The Committee asks the Government to take measures rapidly to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave, in association with the social partners and institutions or bodies providing education and training, as prescribed by Article 6, to report on them promptly to the Office and to provide any relevant texts.

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Granting of paid education leave. In reply to the Committee’s 1995 and 2000 direct requests, the Government states in a brief report received in September 2003 that it has not yet formulated a policy on the granting of paid educational leave. Due to opposition by employers’ organizations, the intended amendment to section 7 of the Employment Act has not yet been adopted. The Government also indicates that all amendments to comply with the requests of the Committee of Experts will be reviewed in the framework of the comprehensive labour law revision that is ongoing with the technical assistance of the Office and in consultation with the social partners and stakeholders. The Committee expresses its firm hope that the Government will be able to indicate in its next report that legislative or other appropriate practical measures may have been adopted with a view to formulating and applying a policy to promote paid educational leave in accordance with Articles 2, 3, 6 and 10 of the Convention. Please also provide any extracts of reports, studies, surveys or statistics that will enable the Committee to ascertain how the Convention is applied in practice (Part V of the report form).

[The Government is asked to reply in detail to the present comments in 2006.]

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The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which reads as follows:

The Committee notes the Government’s report and the information in it answering its previous direct request. It notes that the amendment of section 7 of the above Act which as to establish paid educational leave for trade union education, referred to by the Government in its report of 1987 and 1990 on this Convention, has not yet come into force. The Committee invites the Government to indicate in its next report any legislative or other measures taken or envisaged to formulate and apply a policy to promote paid educational leave in accordance with Articles 2 and 6 of the Convention.

The Government states that the length of leave and the level of financial entitlements vary according to the course organizer. The Committee would be grateful if, in its next report, the Government would provide examples of paid educational leave, indicating the modalities according to which such leave is granted, in accordance with Articles 3 and 10 of the Convention. Please provide any extracts of reports, studies, surveys or statistics that will enable the Committee to ascertain how the Convention is applied in practice (Part V of the report form).

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The Committee notes the Government's report and the information in it answering its previous direct request. It notes that the amendment of section 7 of the above Act which was to establish paid educational leave for trade union education, referred to by the Government in its reports of 1987 and 1990 on this Convention, has not yet come into force. The Committee invites the Government to indicate in its next report any legislative or other measures taken or envisaged to formulate and apply a policy to promote paid educational leave in accordance with Articles 2 and 6 of the Convention.

The Government states that the length of leave and the level of financial entitlements vary according to the course organizer. The Committee would be grateful if, in its next report, the Government would provide examples of paid educational leave, indicating the modalities according to which such leave is granted, in accordance with Articles 3 and 10 of the Convention. Please provide any extracts of reports, studies, surveys or statistics that will enable the Committee to ascertain how the Convention is applied in practice (Part V of the report form).

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Articles 2 and 6 of the Convention. Further to its previous comments, the Committee notes that in practice employers willingly grant paid educational leave; and that new legislation is to provide for paid educational leave for trade union education in particular. Please indicate in future reports information on further steps taken, for instance through the tripartite Labour Advisory Board, to formulate and apply a policy to promote paid educational leave in the terms of this Article.

Article 3. Please describe the terms on which educational leave is in practice granted, as regards, for example, conditions, length of service, financial arrangements.

Article 8. Please describe the measures taken to ensure that there is equal treatment in respect of paid educational leave as provided in this Article.

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Further to its previous comments the Committee notes from the Government's report that the draft amendment to the Employment Act providing for paid educational leave for the purpose of trade union education has been submitted to the National Tripartite Labour Advisory Board. It hopes that the Government will be able to indicate soon that the proposed text has been adopted and will provide a copy thereof.

The Committee also notes that the Government's report contains no information on the measures taken or contemplated with a view to promoting the granting of paid educational leave for the purpose of general, social or civic education as provided for in Article 2(b) of the Convention. It reiterates the hope that the Government will provide such information in the next report.

Article 6. With reference to its previous comments, the Committee notes the Government's statement that both the employers' and workers' organisations are fully consulted, and hence associated, with the formulation and application of the policy for the promotion of paid educational leave. Please describe the manner in which these organisations and also the public authorities and institutions and bodies providing education or training are associated with this policy.