Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Holidays with Pay Convention (Revised), 1970 (No. 132) - Kenya (Ratification: 1979)

The Committee notes the Government’s indication that the revised Employment Bill has addressed the concerns raised by the Committee in its previous comments. The Committee wishes, however, to draw once more the Governments’ attention to the following points.

Article 5, paragraph 4, of the Convention. While noting that draft section 28(1) of the Employment Bill provides for a qualifying period of service, the Committee observes that no provision is made for counting absences from work for such reasons beyond the control of the employed person concerned as illness, injury or maternity, as part of the qualifying period of service.

Article 6. Please clarify how it is ensured that public and customary holidays or periods of incapacity for work resulting from sickness or injury are not counted as part of the minimum annual holiday with pay, as prescribed under this Article of the Convention.

Article 7, paragraph 1. The Committee notes that, under draft section 28(1) of the Employment Bill, the worker qualified for a paid annual leave must receive full pay. Please specify whether by “full pay” the worker is meant to receive his/her normal or average remuneration as required by this Article of the Convention.

Article 7, paragraph 2. The Committee notes that the Employment Bill does not require the holiday remuneration to be paid in advance of the holiday, as laid down in this Article of the Convention.

Article 10. The Committee notes that the Employment Bill is silent on the considerations to be taken into account when fixing the time at which the holiday is to be taken, such as the business requirements and the opportunities for rest and relaxation available to the employed person.

Article 12. The Committee notes that the Employment Bill does not contain provisions expressly prohibiting any agreements to relinquish the right to the annual holiday with pay or to forgo such holiday, for compensation or otherwise.

The Committee recalls that most of these points were also raised in the technical comments that the Office formulated in 2004 upon the Government’s request. It hopes that the revision process will soon be completed and that the Government will not fail to bring its legislation into full conformity with the provisions of the Convention. The Committee requests the Government to keep it informed of any progress made in this regard.