Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 5(2) of the Convention. Minimum period of service. The Committee notes that the Government’s report does not contain any reply to its previous comment regarding the period of service required to qualify for an annual holiday with pay. It recalls that section 28(1)(a) of the Employment Act fixes the minimum period of service to qualify for an annual holiday with pay at 12 months, whereas Article 5(2) of the Convention limits this minimum period of service to no more than six months. The Committee requests the Government to take the necessary steps to bring its legislation into conformity with this provision of the Convention.

Article 5(4). Definition of the period of service giving entitlement to an annual holiday with pay. The Committee notes the Government’s indications that the application of this provision of the Convention is ensured by sections 8, 9(2) and 12 of the general regulations on wages. The Committee notes, however, that these sections do not refer to the inclusion of absences from work for reasons beyond the control of the worker concerned in the qualifying period for an annual holiday with pay. With reference to its previous comments, the Committee again requests the Government to insert a provision in its legislation ensuring the implementation of the Convention on this point.

Article 6. Exclusion of public holidays and periods of incapacity for work from the annual holiday with pay. The Committee notes that section 9(2) of the general regulations on wages provides that the annual paid holiday of 21 working days is in addition to public holidays, weekly rest days and additional holidays, whether provided for by law or by an agreement. The Committee requests the Government to state whether the additional holidays referred to in this provision also include days of sick leave, as prescribed by the Convention.

Article 7(2). Payment of remuneration relating to the annual paid holiday. The Committee notes the Government’s indications that, although the legislation does not make the advance payment of remuneration relating to the paid holiday obligatory, as required by the Convention, in practice workers receive this remuneration before the start of their annual holiday. However, the Committee recalls that payment in advance is compulsory, unless otherwise provided for in an agreement between the employer and the worker concerned. In order to ensure uniform application of this rule, the Committee requests the Government to take the necessary steps to insert such an obligation in its legislation.

Article 10. Time at which the holiday is taken. The Committee notes the indications in the Government’s report that the period of annual holiday is determined by the employer in consultation with the worker concerned. It draws the Government’s attention to the fact that Article 10(2) of the Convention provides that, in fixing the time at which the holiday is to be taken, work requirements and the opportunities for rest and relaxation available to the employed person shall be taken into account. In other words, the employer must take account not only of his/her own needs but also of the interests of his/her employees and their families when fixing the period of annual holiday with pay. The Committee therefore requests the Government to take the necessary steps to ensure the implementation of this provision of the Convention.

Article 12. Prohibition of agreements to relinquish the right to the minimum annual holiday with pay. The Committee notes the Government’s reference in its report to section 26 of the Employment Act, which states that the provisions of this Act relating to conditions of employment (especially annual holiday with pay) constitute minimum standards and that if a collective agreement, an agreement between the parties or a court decision establish more favourable conditions, it is these conditions which will be applicable. However, the Committee notes that this provision of the Employment Act does not give effect to Article 12 of the Convention since it does not stipulate that any agreement to relinquish the right to the three-week annual paid holiday or to forgo such a holiday shall be null and void or be prohibited. The Committee therefore requests the Government to insert a provision in the legislation stating explicitly that such agreements shall be null and void or be prohibited.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.