Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Labour Inspection Convention, 1947 (No. 81) - Kenya (Ratification: 1964)

Articles 5(a) and 21(e) of the Convention. Effective cooperation between the labour inspection services and the justice system. The Committee notes that it is envisaged to promote effective cooperation between the labour inspection system and the justice system with a view to encouraging due diligence and attention in the treatment by judicial bodies of violations reported by the labour inspectorate. In this regard, the Government indicates the development of procedural rules and regulations for the industrial court which complete the recently reviewed and adapted labour legislation. The Committee asks the Government to keep the ILO informed of any developments in terms of strengthening the above cooperation and, where applicable, to send a copy of any law or regulation adopted governing the legal procedure of the industrial court.

Article 2, paragraphs 1 and 23, and Article 3, paragraph 1, of the Convention. Scope of labour inspectors. The Committee notes with interest that Legal Notice No. 227/1990, which exempted establishments located in export processing zones (EPZs) from the application of the health and safety legislation, is now null and void and that the provisions of the Occupational Safety and Health (OSH) Act apply to all workplaces, including those in EPZs.

It further notes that the services of the Department of Occupational Safety and Health carried out a total of 4,117 occupational safety and health inspections during the 2008–09 financial year. Although it indicates that the Department monitored the activities of the safety and health committees established under section 9 of the OSH Act and trained 5,150 labour inspectors, the Government explains that it cannot provide information on the number of occupational safety and health committees established in industrial and commercial establishments in EPZs due to the limited capacity of the data-capturing system which does not segregate different workplaces. The Committee would be grateful if the Government would provide a copy of the court ruling which found Legal Notice No. 227/1990 to be null and void and if it would continue to keep the ILO informed of further inspection visits carried out by occupational safety and health officers. It requests the Government to make every effort to improve the data-capturing system with a view, among other objectives, to the disaggregation of data by industrial and commercial establishments, and to communicate the missing information in the near future.

The Committee notes that the categories of workers to be exempted from the scope of the Labour Institutions Act on labour administration and inspection, as provided for by section 4(3) of the Act, are to be specified by relevant rules and regulations. The Committee requests the Government to keep the ILO duly informed in this regard and to communicate a copy of any relevant rules and regulations.

Articles 10, 11 and 16. Adequate means of action and working conditions of labour inspection staff. Having expressed its concern at the persistent lack of labour inspection staff, office equipment and means of available transport facilities, the Committee regrets that, according to the Government, no progress has yet been made in this regard. Although fully aware of the difficulties that the country faces in the ongoing global recession and food crisis, the Committee nevertheless encourages the Government to do its utmost to seek international financial assistance to enable it to ensure sustainable resources for the effective functioning of the labour inspection services and to keep the ILO informed of any measures taken and the results achieved in this respect.

Article 14. Reporting and investigation of occupational accidents and cases of occupational disease. The Committee notes the description by the Government of its investigation procedure with regard to occupational accidents and cases of occupational disease: after reporting to the Director of the Occupational Safety and Health Services (DOSH) through the relevant accident reporting form (DOSH 1), occupational safety and health inspectors are sent to visit the scene of the accident, where they interview witnesses as well as the victim of the accident and collect other necessary evidence. The relevant report drafted following accident investigations constitutes the basis for action such as, where approproate, improvement or prohibition notices, training, advice or prosecution. While the possibility to set up a tribunal to investigate occupational accidents and cases of occupational disease is foreseen in section 128 of the OSH Act, the Government sees no need to constitute such a tribunal as the DOSH has been entrusted with the investigation of these cases. Noting the indication that, in the years 2008 and 2009, a total of 291 accidents were investigated, the Committee would be grateful if the Government would indicate the number of occupational accidents and cases of occupational disease reported in comparison with the number of investigations actually conducted, as well as the action taken following these investigations (improvement or prohibition notices, prosecutions and penalties imposed).

The Committee notes that, according to the Government, the obligation set out in Article 22 of the OSH Act for medical practitioners to notify occupational diseases to the Director of the OSH Services is not functioning in a satisfactory manner in practice as medical practitioners, despite an existing list of 40 occupational diseases in the second schedule to the OSH Act, are not adequately sensitized, bearing in mind the complexity of diagnosing occupational diseases. The Committee urges the Government to take measures to sensitize medical practitioners (e.g. through awareness campaigns, the distribution of brochures or the organization of training sessions). Drawing the Government’s attention to the possibility of ILO technical assistance to this end, the Committee would be grateful if it would indicate any steps taken in this regard and the results achieved.

Articles 20 and 21. Annual report on labour inspection activities. The Committee notes that no annual report has been received, although the Government mentions an annual ministerial report under these Articles. It had noted in its previous report the obligation under Article 42(1) of the Labour Institutions Act for the Commissioner for Labour to prepare and publish, not later than 30 April of each year, a report on the activities undertaken in his/her department. The content of the report, as set out in Article 42(2), includes the information required under Article 21 of the Convention. It also noted that Article 25 of the OSH Act provides for the development and maintenance of an effective programme of the collection, compilation and analysis of occupational safety and health statistics covering occupational accidents and diseases, as well as the existence of an accident database where information sent through the DOSH 1 form is entered. The Committee once again requests the Government to provide information on the progress made in establishing a system to give effect to the requirements of Article 25 of the OSH Act in practice and any difficulties that have been encountered.

It urges the Government to ensure that an annual report, containing all the information and statistics on labour inspection activities required by Article 21 of the Convention, is published and communicated to the ILO.

Labour inspection and child labour. The Committee notes the Government’s indication that it has not yet provided the child labour division with any budgetary allocation due to financial constraints. However, it notes with interest, that under the Time-bound Programme for the elimination of child labour implementation with ILO–IPEC, training sessions have been organized for the labour inspectorate in the area of project management, strategic management, capacity building on child labour issues and the training of trainers. The Committee requests the Government to ensure, where applicable within the framework of international financial cooperation, that adequate resources are rapidly made available. It asks the Government to specify the content of the above training of labour inspectors, the number and function of the participants and the duration of the training, and to provide information on any further training in this regard, as well as on its impact on the level of observance of legal provisions relating to child labour.