Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Kenya (Ratification: 1964)

Legislative reform. Further to its previous comments, in which it took note of the ongoing process of amendment of the Work Injury Benefits Act, 2007 (WIBA, 2007) and development of a new legislation that would address current gaps, the Committee notes the indication provided by the Government in its report that a Bill is now before the National Treasury to seek concurrence on the financial implications if enacted. The Committee further notes with interest that the Government has initiated a process to develop the Occupational Diseases Fund established by the Bill into a social insurance-based employment injury scheme, and that the first high-level Social dialogue meeting to address this matter was held on 23 September 2020. The Committee expects that these legislative developments will give full effect to the Convention and that its comments will be duly taken into account for this purpose. The Committee requests the Government to keep it informed of the adoption of the bill and of the establishment of the Occupational Diseases Fund, and of the adoption of any other measures related to their implementation.

Article 5 of the Convention. Payment of compensation for permanent incapacity or death in the form of periodical payments. In its previous comments, the Committee noted that, in accordance with section 30 of the WIBA, 2007, an employee who suffered permanent disablement was entitled to a lump-sum payment equivalent to 96 months’ earnings. It invited the Government to review the WIBA, 2007, so as to compensate victims of occupational accidents suffering permanent incapacity, or their dependants in cases of fatal accidents, with periodical payments and to limit compensation by way of lump sum to cases where the competent authority was satisfied that it would be properly utilized. The Committee notes the indication provided by the Government that the new social insurance-based employment injury scheme “will introduce periodical payments for victims of occupational accidents suffering permanent incapacity or survivors of victims of occupational fatalities”, and that in cases of payment of a lump sum, the Government agency under which the scheme will be administered will ensure that compensation will be paid on assurance that the lump sum will be properly utilized. The Committee hopes that the Government will take the necessary measures to ensure that permanently injured workers or their dependents, as the case may be, are provided with compensation in the form of periodical payments, in accordance with Article 5 of the Convention, under the new employment injury insurance scheme. The Committee also hopes that, in cases where compensation is paid in the form of a lump sum, the Government will put in place the necessary safeguards to ensure that it is properly used by beneficiaries. The Committee requests the Government to provide information on the measures taken for these purposes upon adoption of the new employment injury insurance scheme.

Articles 9 and 10. Provision of medical, surgical and pharmaceutical aid free of charge. In its previous comments, the Committee noted that section 47 of the WIBA, 2007, provides that an employer must defray reasonably incurred medical expenses which occurred after an occupational accident. The Committee further noted the indication by the Government that the term “reasonable expenses” would be defined at the occasion of the review of the WIBA, 2007, so as to include all medical intervention necessary and welcomed the Government’s indication that Clause 55 of the Bill would contain a list of the expenses incurred by an employee as the result of an accident arising out of, and in the course of, the employee’s employment to be defrayed by the employer. The Committee hopes that the Government will take the necessary measures, without further delay, to ensure that injured workers are provided, free of charge, with all the medical, surgical and pharmaceutical aid as well as with the artificial limbs and surgical appliances that are recognized to be necessary in consequence of accidents at work, without limitation of cost, with a view to give full effect to Articles 9 and 10 of the Convention. The Committee requests the Government to provide information on the legislative provisions and other measures adopted or envisaged for that purpose.

Article 11. Compensation of industrial accidents in the event of the insolvency of the employer or insurer. In its previous comments, the Committee noted that the WIBA, 2007, did not provide the necessary arrangements to ensure in all circumstances, in the event of the insolvency of the employer or insurer, the payment of compensation to workers who suffer personal injury due to industrial accidents, as required by Article 11 of the Convention. The Committee hopes that the Government will take advantage of the ongoing legislative reform to address this issue and requests the Government to provide information on the measures taken or envisaged to ensure that victims of occupational accidents and their dependents are provided with the compensation they are entitled to in all circumstances, in line with Article 11 of the Convention.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that member States for which the Convention is in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area, taking opportunity of the ongoing legislative review and of the establishment of an employment injury insurance scheme.