Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Equal Remuneration Convention, 1951 (No. 100) - Kenya (Ratification: 2001)

Article 2 of the Convention. Application of the principle. The Committee notes that section 5 of the Employment Act 2007, which addresses discrimination in employment, includes a specific provision providing for equal remuneration for work of equal value (section 5(4)). However, pursuant to section 3(2), certain groups of workers, including the police, prison service, armed forces, national youth service and employers’ dependants, are excluded from the scope of the Act. The Committee also notes that under section 5(1) of the Employment Act, the Minister of Labour, labour officers and the Industrial Court have an obligation to promote equality of opportunity in order to eliminate discrimination in employment. The Committee asks the Government to provide information regarding how the groups of workers excluded from the scope of the Employment Act are guaranteed the right of equal remuneration for men and women for work of equal value, and whether any other categories of workers have been excluded from the application of section 5(4) pursuant to section 3(4) or (5). The Committee also asks the Government to provide information on any measures taken pursuant to section 5(1) to promote the principle of the Convention.

Minimum wages. The Committee notes that the Labour Institutions Act 2007, provides for the establishment of wage councils charged with investigating remuneration and making recommendations to the Minister of Labour on minimum wage remuneration and conditions of employment. The Committee notes that the principle of equal remuneration for work of equal value is not included in section 44(5), among the criteria that should be taken into consideration by wage councils when discharging their functions. The Committee also notes the Government’s statement that the principle of the Convention will be taken into account in setting minimum wages, as the principle is covered by the Constitution, the Employment Act and the Gender Policy. The Committee asks the Government to supply information on the wage orders published pursuant to section 46, and the manner in which the principle of equal remuneration for work of equal value is ensured in the determination of minimum wage rates.

Collective agreements. Further to its previous request concerning the promotion of the principle of the Convention in the context of collective bargaining, the Committee notes the Government’s indication that it regularly encourages the social partners to promote the principle of equal remuneration through tripartite meetings organized in connection with the collective bargaining process. The Committee also notes that owing to the lack of funds allocated for the organization of awareness-raising campaigns, no activities of this kind are currently envisaged. The Committee further notes that under section 60(5) of the Labour Relations Act 2007, the Industrial Court shall not register any collective agreements that do not comply with any laws, or directives and guidelines concerning wages issued by the Minister of Labour. The Committee asks the Government to indicate whether the registration of any collective agreements has been refused pursuant to section 60(5) due to a violation of the principle of equal remuneration. The Committee also asks the Government to provide copies of collective agreements applying the principle of equal remuneration.

Public service. The Committee notes the Government’s indication that the grading and pay structure of the civil service is free from gender bias. In the absence of further information in reply to its previous request, the Committee again asks the Government to indicate the specific measures taken to ensure that in the implementation of the pay policy for the public service, the principle of equal remuneration for men and women for work of equal value is fully taken into consideration, including information on the measures taken to ensure that the envisaged harmonization of the grading and pay structure is carried out in a manner free from gender bias.

Article 3. Objective job evaluation. The Committee notes the Government’s indication that there is no common job evaluation method being used in either the public or the private sectors given the particularities of each labour context. In this regard, the Committee recalls its 2006 general observation, underlining the importance of objective job evaluation methods in order to establish whether different jobs are of equal value. The Committee, therefore, asks the Government to take measures to promote job evaluation methods free from gender bias, in the public and private sectors, and to provide information in this regard.

Article 4. Cooperation with workers’ and employers’ organizations. The Committee notes that the Labour Institutions Act 2007 provides for the establishment of the National Labour Board, a tripartite body mandated, among other things, to advise the Minister of Labour on all matters concerning employment and labour and on any issue arising from the International Labour Organization and the ILO Conventions (section 7). The Committee notes from the Government’s report that this body has not yet been formed. The Committee asks the Government to provide information on the status of the National Labour Board, and to provide any information on its role with respect to the promotion and application of the principle of the Convention.

Enforcement. The Committee notes that it appears that pursuant to section 87 of the Employment Act, and section 12 of the Industrial Institutions Act, the Industrial Court is competent to settle disputes concerning the application of the Employment Act. According to section 5(6) of the Employment Act, in case of disputes relating to the non-observance of the provisions of section 5, the burden of proving the absence of the alleged discrimination is placed upon the employer. The Committee also notes that, pursuant to section 42 of the Labour Institutions Act, the Commissioner for Labour and the Director of Employment shall prepare an annual report covering, among other things, the findings in the course of inspections and the statistics of proceedings brought before the Industrial Court or any other court. The Committee asks the Government to provide full information on any decisions handed down by the Industrial Court concerning the principle of the Convention. The Committee also invites the Government to supply a copy of the latest report prepared pursuant to section 42 of the Industrial Institutions Act to the extent that it involves issues covered by the Convention.

Statistics. The Committee asks the Government to supply statistical information disaggregated by sex on remuneration levels of men and women in the various sectors and occupational categories.