Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

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

The Committee notes the Government’s report, the information in reply to its previous comments, the recently adopted legislative texts on working conditions and the annual reports for 2004 of the Labour Department and the occupational health and safety services as well as of the Labour Department for 2005, containing information and statistics on the labour inspection activities along with their results.

1. Availability of resources and efficiency of labour inspection activities. The Committee notes with interest that the equipment provided to the Ministry of Labour under the project on Strengthening Labour Relations in East Africa (SLAREA) by the acquisition of nine motorcycles, 12 computers, six printers, three fax machines and a photocopier have improved substantially the working environment of the inspection services. According to the Government, the motorcycles in particular were very useful for carrying out follow-up visits following complaints on child labour, while the office equipment (computers, printers and fax machines) have helped the provincial labour offices in preparing periodic inspection reports, management of correspondence related to contraventions and exchange of information with the Labour Department. In addition, the modern, multi-function photocopier machine installed at the head office has reduced costs in production of print work, especially inspection forms.

The Government indicates, furthermore, that the trainings conducted have also enhanced the level of awareness of inspectorate staff, thus improving their credibility.

Although these improvements appear to respond to financial concerns expressed in the abovementioned annual reports, they do so only partially and provisionally. For optimum use to be made, they must be reinforced by measures to make them permanent along with making resources available to the labour inspectorate to allow it to develop on the basis of needs. The establishment and input for an operational fund for maintaining road vehicles and office equipment and the acquisition of consumables (fuel, paper, ink cartridges, etc.) is highly desirable. Similarly, in order to strengthen the credibility of the labour inspectorate in general, measures to improve the status and conditions of service of labour inspectorate staff should be taken in order to attract and retain qualified and sufficiently motivated staff, shielded from any undue external influences. The implementation of such measures necessarily entails cooperation at the highest level between the labour inspection authorities and the political and financial decision-makers so that the budget allocated to labour inspection is fixed on the basis of the socio-economic objectives assigned to it, taking account of the extent and economic field to be covered, resources already available, and also, especially, the findings and needs shown in annual reports. The Committee trusts that the Government will soon be in a position to inform the Office of any measures taken or envisaged in this regard, as well as any difficulty encountered.

2. Labour inspection and child labour. The Committee notes with interest the establishment of a national databank on child labour accessible to all interested persons. According to the Government, 1,500 children have already been withdrawn from the labour market in eight districts and the issue of child labour has been incorporated into the development plan on economic recovery strategy for wealth and employment creation. The Committee notes with interest that the Government has undertaken to eradicate child labour and the employment of young persons in dangerous work by radical measures, such as schooling, readmission to school and the extension of the legal period of compulsory, free schooling, with efforts being directed particularly towards the identification of child heads of family and the implementation for them of measures on health, well-being, education and training, in both urban and rural areas.

The increase in unemployment of young people (16-39 years) during the economic depression, exacerbated by the lack of qualifications, resources and access to loans, has resulted, according to the Government, in turning some of these people to delinquency, begging and drugs. To remedy this situation, the Government states it has initiated collaboration with other actors and various programmes in the framework of the strategic plan, such as the creation of funds for the integration of young people, the promotion of self-employed work and other measures aimed at preparation for the move from school to work, vocational guidance, etc., and the supply of counselling and advice for running businesses.

The Government also indicates in its report that the Child Labour Division should, in the next financial year, receive resources to sustain its services beyond the Time-bound Programme. The Committee would be grateful if the Government could indicate the role played by the labour inspectorate in carrying out this programme and could supply information on the human, material and logistical resources made available for this purpose; the actions the labour inspectorate has conducted in this framework and the results; and the difficulties encountered.

3. Labour inspection and supervision of working conditions. Referring to its previous comments in which the Committee noted that many jobs had been created in the export processing zones (EPZs) and requested information on the real scope of labour inspectors’ powers in establishments in these zones, the Committee notes that, while the Labour Department is not barred from carrying out inspections, establishments in the EPZs are nevertheless exempt, under Ministerial Order Legal Notice No. 227/1990, from the application of the provisions of the Factories and Other Places of Work Act (CAP 514). Noting furthermore that enterprises in the EPZs are individually approaching the enforcing authority in pursuit of compliance certificates with the safety and health legislative provisions, the Committee requests the Government to keep the ILO informed of progress in the project to repeal the abovementioned Legal Notice No. 227/1990 and, in addition, to supply details and clarification on the fields of competence of the labour inspectorate in enterprises in the EPZs and the scope of the powers exercised in practice there by labour inspectors and to supply a copy of any text governing the working conditions and protection of workers employed there.

The Committee notes that, according to Legal Notice No. 31 of 2004 issuing rules on the Factories and Other Places of Work Act, employers are compelled to establish a safety and health committee at any factory or workplace which regularly employs 20 or more workers. The Committee requests the Government to indicate the line of division between the responsibilities of the labour officers and of the safety and health committees concerning labour inspection, in regard to the exercise of powers of examination and follow-up of contraventions as provided in Articles 12, 13 and 17 of the Convention.

The Committee also requests the Government to supply information on the practical scope of this rule, to specify whether it is intended or envisaged to subject employers operating in the EPZs to a requirement to establish safety committees and, if so, to supply copies of the relevant texts.

4. Activities and results of the labour inspection services. The Committee notes with interest the progress made in the presentation and analysis of information and statistics on inspection activities and their results by the Labour Department and the Directorate of Occupational Health and Safety Services. The Committee notes that, whereas the report concerning inspection on occupational health and safety contains figures relating to the establishments liable to inspection, information of this type is lacking in the report concerning the inspection of general labour conditions. It seems, in fact, that a considerable proportion of inspection activities for the latter focus on labour conflicts and their outcome. According to the Labour Department’s annual report, strikes and social conflict are most often unleashed through failure by the employers to fulfil their obligations in regard to payment of wages, dismissal conditions, employment conditions and wage conditions, and recognition of trade union rights in particular. The occupational health and safety inspection shows that in 2004, out of 2,382 workplaces inspected, out of which 751 were visited more than once, only one prohibition notice was issued, 41 improvements notices were served and some 30 were subject to legal proceedings. Yet, over the same period, 1,387 occupational accidents were reported, including 95 fatal accidents; according to the report, these figures reflect the situation only partially, and the number of victims is not given. The annual reports of the two competent administrations reveal the ineffectual nature of an essentially educational and teaching approach by the inspectorate and suggest, for greater efficiency, that the repressive function of supervising the relevant legislation should be given greater importance.

The occupational accident statistics show that no investigation has been carried out in the central region following 85 occupational accidents, including one fatal, or in the eastern region where 26 accidents were reported, including 19 fatal accidents, or again in the western region, despite there being 98 accidents, including four fatal ones. It is noted, furthermore, that 19 investigations were held on 103 accidents, including 19 fatal accidents in Nairobi, 13 for 132 accidents, including eight fatal ones in the Rift Valley, and 15 for 126 accidents, including 42 fatal accidents in the coast region. The Committee would be grateful if the Government would indicate the reasons for the disparity between the large number of accidents, including fatal ones, and the number of investigations conducted to establish their cause. It also requests the Government to indicate the measures taken or envisaged, on the one hand, to identify high-risk occupations and enterprises and, on the other hand, to carry out supervision of legal provisions relating to occupational health and security in them.

The Committee also requests the Government to communicate information on the follow-up given by the central inspection authority and by the other competent authorities to the findings and recommendations contained in the annual labour inspection reports.