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

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

Articles 5, 6, 7, 10 and 12 of the Convention. Scope and conditions of annual leave entitlement. The Committee has been drawing the Government’s attention – practically since the ratification of the Convention – to the need to effect certain amendments to the national legislation in order to ensure full compliance with the requirements of the Convention. The Government has, on numerous occasions, admitted that appropriate legislative measures are necessary and recently indicated that the revision process of the Employment Act (Cap. 226) has given the opportunity to address the concerns raised by the Committee. However, the Committee notes that the new Employment Act 2007 fails to introduce the necessary amendments with the sole exception of section 28(2)–(4), which regulates the possibility of dividing the annual paid leave into parts and guarantees uninterrupted holiday of two weeks, as prescribed by Article 8(2) of the Convention. The Committee is, therefore, once again obliged to observe that several additional provisions would be needed before legislative conformity with the Convention could be attained, in particular regarding the following points: justified absence from work to be counted as part of the qualifying period of service (Article 5(4)); public holidays and periods of incapacity due to sickness or injury not to be counted as part of minimum annual holiday (Article 6); payment of holiday pay in advance (Article 7(2)); considerations to be taken into account when fixing the timing of holidays (Article 10); prohibition of agreements to relinquish the right to annual holiday or forego such holiday for compensation (Article 12). In addition, the Committee draws the Government’s attention to section 28(1)(a) of the new Employment Act which requires twelve months of service for entitlement to any holiday with pay, and therefore is inconsistent with Article 5(2) of the Convention which limits the length of any qualifying period to six months. The Committee hopes that the Government will take active steps without further delay in order to bring its legislation into line with the requirements of the Convention. It also hopes that the Government will not hesitate to avail itself of any technical assistance or advice the Office might be able to offer in the preparation of the necessary amendments to legislation.

[The Government is asked to reply in detail to the present comments in 2010.]