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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.]
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.
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.]
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.
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.
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).