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

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Kenya (Ratification: 1964)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s statement that there has been no change in the legislation affecting the practical application of the Convention. However, the Committee understands that, in the last six years, there have been important legislative developments in the area of public procurement, in particular the adoption of the Public Procurement and Disposal Act, 2005, and Public Procurement and Disposal Regulations, 2006, as well as the publication of a series of standard tender documents and a Public Procurement and Disposal General Manual. The Committee further notes that a fair wages clause has been included among the conditions of particular application in standard tender documents, for instance, clause 34.3 of the Standard Tender Document for Procurement of Works (Roads, Bridges, Water and Other Civil Engineering Works) which requires contractors to pay rates of wages not less favourable than the statutory minimum wage for the building and construction industry set by the relevant wages regulation order. The Committee recalls, however, that the fair wages clause that appeared in paragraph 7 of the standard contract form (1970 edition), and to which the Government had been referring in its reports up to 1994, required contractors to pay rates of wages and observe hours and conditions of labour not less favourable than those established for the trade or industry in the district where the work is carried out by machinery of negotiation or arbitration to which the parties are organizations of employers and trade union representatives respectively of substantial proportions of the employers and workers engaged in the trade or industry in the district. The Committee therefore considers that the fair wages clause, as reflected in the new public procurement legislation, does not fully capture the idea that is the most advantageous level of wages and working conditions established locally (through collective bargaining, arbitration or legislation) that is required under the contract unless, of course, the statutory minimum wage constitutes both the maximum and minimum standard which may not be exceeded by more favourable collective agreements or arbitration awards. The Committee accordingly requests the Government to provide additional explanations in this respect.

Part V of the report form. Practical application. The Committee would be grateful if the Government would communicate, together with its next report, up-to-date information on the application of the Convention in practice, including for instance the average number of public contracts granted annually and the approximate number of workers engaged in their execution, labour inspection results concerning contract performance, and copies of official documents such as activity reports of the Public Procurement Oversight Authority.