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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1 of the Convention. Implementing legislation. Following up on its previous comments, the Committee notes the Government’s indication that the implementation gaps identified by the Committee have been referred for further consideration to the newly constituted Legal Department of the Ministry of Labour, Social Security and Services, with a view to bringing the Employment Act, 2007 into conformity with the Convention. It is further indicated that the National Labour Board is reviewing the Regulation of Wages (General) Order, which also contains provisions on paid annual leave. The Committee hopes that the revision process will be completed shortly and that the Government will introduce the necessary amendments to ensure compliance with the following requirements: the length of any qualifying period required for entitlement to annual holiday with pay to be limited to six months (Article 5(2)); 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 the minimum annual holiday (Article 6); payment of holiday pay in advance (Article 7(2)); prohibition of agreements to relinquish the right to annual holiday or forgo such holiday for compensation (Article 12). The Committee once more requests the Government to take appropriate action without further delay to ensure that the national legislation gives full effect to the specific provisions of the Convention highlighted above and to keep the Office informed of any progress made in this respect.

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

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.

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

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.]

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

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.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee recalls that the Employment Act (Cap. 226) was to undergo a comprehensive revision in a process involving social partners and stakeholders. The Committee requests the Government to provide an update on this process.

The Committee further requests the Government to ensure in its revision of the Employment Act to give effect, as previously requested, to Article 5, paragraph 4, of the Convention, counting absences from work due to illness, injury or maternity leave as part of the period of service for the purposes of determining entitlement to holiday; Article 7, paragraph 2, payment of remuneration due in advance of the holiday; Article 8, guaranteeing uninterrupted holiday of two weeks in the event of division of holiday; and Article 12, prohibiting any agreement to relinquish the right to the annual holiday with pay or to forgo such holiday.

[The Government is asked to report in detail in 2006.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to its previous comments, the Committee notes the Government's statement in its last report that the Employment Act, 1976 (section 7) is currently being amended to give effect to Article 8 (the guarantee of an uninterrupted holiday of two weeks in the event of division of the holiday), Article 12 (prohibition of any agreement to relinquish the right to the annual holiday with pay or to forgo such a holiday), Article 5, paragraph 4 (counting absences from work due to illness, injury or maternity leave as part of the period of service for the purposes of determining entitlement to holiday) and Article 7, paragraph 2, of the Convention (payment of the remuneration due in advance of the holiday unless provided to the contrary in an agreement applicable to the worker and the employer).

The Committee hopes that the text in question will soon be amended in order to bring it into conformity with the provisions of the Convention. The Committee requests the Government to indicate in its next report the progress achieved in this respect and to supply a copy of the relevant text when it is adopted.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's statement in its report for the period ending 30 June 1990 that it is necessary to effect certain amendments to Kenyan legislation (i.e. the Employment Act, cap. 226) in order to ensure full compliance with the requirements of the Convention as pointed out by the Committee. Specifically, the Committee has previously commented on the application of Article 8 of the Convention (the guarantee of an uninterrupted holiday of two weeks in the event of division of the holiday), Article 12 (prohibition of any agreement to relinquish the right to the annual holiday with pay or to forgo such a holiday), Article 5(4) (counting absences from work due to illness, injury or maternity leave as part of the period of service for the purpose of determining entitlement to holiday) and Article 7(2) (payment of the remuneration due in advance of the holiday unless provided to the contrary in an agreement applicable to the worker and the employer).

The Committee hopes that the Government will soon be in a position to report that the necessary legislative amendments have been made. 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.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

With reference to its previous comments, the Committee notes the Government's statement to the effect that it is necessary to take the appropriate legislative measures in order to give effect to Article 8 (the guarantee of an uninterrupted holiday of two weeks in the event of division of the holiday) and Article 12 of the Convention (prohibition of any agreement to relinquish the right to the annual holiday with pay or to forego such a holiday).

The Committee trusts that these measures will be taken in the near future. It hopes that on this occasion in order to enshrine current practice in the national legislation, provisions could also be introduced to give effect to Article 5, paragraph 4 (counting absences from work due to illness, injury or maternity leave as part of the period of service for the purposes of determining entitlement to holiday) and Article 7, paragraph 2 (payment of the remuneration due in advance of the holiday unless provided to the contrary in an agreement applicable to the worker and the employer).