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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 131 and 99 in a single comment.
Article 3 of Convention No. 131. Criteria for the determination of the level of minimum wages. In its previous comments, the Committee noted the issue raised by the Federation of Kenya Employers and the International Organisation of Employers (IOE) indicating that recent minimum wage increases had not taken into account factors relating to the ability of the companies to pay and to productivity. The Committee notes the Government’s reply in its report that no productivity measurement tool was available and that discussions were still ongoing for the development of the National Wages and Remuneration Policy. The Committee also notes that section 44(5) of the Labour Institutions Act contains a list of criteria that wages councils shall take into consideration in the performance of their functions, including: (a) the needs of the employees and their families, taking into account the general level of wages in the country, the cost of living, social security benefits and the relative living standards of other social groups; (b) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment and the need to encourage investment; (c) the ability of the employers to carry on their business successfully; (d) the operation of small, medium and micro-enterprises; (e) the cost of living; (f) the alleviation of poverty; (g) the minimum subsistence level; (h) the likely impact of any proposed conditions of employment on current employment or the creation of employment; and (i) any other relevant factor. The Committee requests the Government to provide concrete information on the elements which are taken into consideration by wages councils when determining the adjustments of the minimum wages. In addition, it requests the Government to provide information on the progress made in the development of a National Wages and Remuneration Policy.
Article 2 of Convention No. 99. Allowances in kind in the agricultural sector. The Committee notes that section 17(5) of the Employment Act, 2007, provides that if in a contract of service or collective agreement, provision is made for the payment of any allowance in kind to an employee with the employee’s consent, such allowances shall be for the personal use and benefit of the employee. The Committee recalls that Article 2 requires that allowances in kind shall not only be appropriate for the personal use and benefit of the workers and their family but also be fair and reasonable. The Committee requests the Government to provide information on the measures taken to ensure that the value attributed to allowances in kind in the agricultural sector is fair and reasonable.

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Article 3 of the Convention. Criteria for adjusting minimum wage rates. The Committee notes the observations of the Federation of Kenya Employers (FKE) and the International Organisation of Employers (IOE) concerning the application of the Convention, which were received on 9 July 2013 and transmitted to the Government on 9 September 2013. The two employers’ organizations indicate that notwithstanding the process of development of a national minimum wage policy, two out of the three elements established by the national wages guidelines – ability of companies to pay and productivity – are not taken into account when determining the minimum wages increase, and as a result, the current minimum wage is quite costly for Kenya which in turn gives rise to a tense climate of industrial relations, more difficult collective bargaining and a growing informal sector, especially for those companies that can hardly afford such high minimum wages. The Committee also notes the additional comments made by the IOE on 17 July 2013, in which the IOE expressed its concern about the fact that, for the last five years, minimum wage rates have been adjusted annually on the sole basis of growing inflation without any consideration being given to the overall performance of the economy. The Committee requests the Government to submit any comments it may wish to make in response to the observations of the FKE and the IOE.

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Article 4 of the Convention. Minimum wage fixing machinery. The Committee notes the Government’s explanations concerning the composition and functions of the general wages councils (GWC) and the agricultural wages councils (AWC), which were established pursuant to section 43(1) of the Labour Institutions Act, 2007. It also notes that the National Labour Board, though not directly involved in wages issues, is the overarching body overseeing the wage councils. In addition, the Committee notes the Regulation of Wages (Agricultural Industry) (Amendment) Order 2012 and the Regulation of Wages (General) (Amendment) Order, 2012, which have raised the statutory minimum wage rates by 13 per cent. More concretely, in the agricultural sector – the lowest paid category of workers – unskilled employees had their monthly wages raised from 3.765 Kenya shillings (KES) in 2011 to KES4.258 (approximately US$51) in 2012 while the highest paid category in the formal sector had their monthly wages increased from KES17.118 in 2011 to KES19.360 (approximately $230) in 2012.
Moreover, the Committee notes the recent establishment of the Salaries and Remuneration Commission, provided for in section 230(1) of the Constitution, with a view to setting and regularly reviewing the remuneration and benefits of all public employees. The Committee understands that the Commission has issued draft regulations or guidelines indicating, among others, how the workers’ unions are expected to relate with the Commission. The Committee requests the Government to provide more detailed information on the manner in which the Salaries and Remuneration Commission ensures that representative organizations of public employees are fully consulted and directly participate in all stages of the minimum wage fixing process, as required under this Article of the Convention. The Committee also requests the Government to transmit a copy of any relevant regulations or guidelines that may have been issued so far.
Article 5 and Part V of the report form. Application in practice. The Committee notes the Government’s indication that the application of the minimum wage legislation is still a challenge in view of the under-staffing of the labour inspectorate. The Committee would appreciate if the Government would continue to provide up-to-date information on the practical application of the Convention, including, for instance, the minimum wage rates currently in force, statistics on the evolution of statutory minimum wages as compared to the evolution of economic indicators such as the consumer price index in recent years, labour inspection results, and copies of official studies on minimum wage policy issues.

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Article 4, paragraph 1, of the Convention. Minimum wage system. The Committee understands that, as it currently operates, the minimum wage system comprises two tripartite bodies, i.e. the Agricultural Wages Advisory Board (AWAB) and the General Wages Advisory Board (GWAB), which set statutory minimum wage rates by age, occupation and geographical area. In addition, there are 17 Wage Councils established by the GWAB in order to determine minimum wages in different occupations but these councils have updated statutory wages only occasionally and as a result wage levels are often outdated. The Committee requests the Government to supply up to date information on the various minimum wage rates currently in force, as set by the AWAB, the GWAB and the trade-specific wages councils. It would appreciate receiving copies of the most recent wages orders applicable to the various categories of workers, copies of any surveys of national economic conditions which may have served for the purpose of adjusting minimum wages, and all available statistics concerning the number of workers remunerated at the minimum wage rate and the evolution of minimum wages in recent years as compared to the evolution of indicators such as the consumer price index.

Article 4, paragraphs 2 and 3. Consultations with social partners. Further to its previous comment on this point and the difficulties the Government had reported in connection with the participation of workers’ representatives in the work of advisory minimum wage fixing bodies, the Committee requests the Government to indicate whether tripartite dialogue has resumed within such bodies and, if so, to transmit copies of the summary of the latest meetings or activity reports of the AWAB and the GWAB.

Article 5 and Part V of the report form. The Committee would be grateful if the Government would provide in its next report detailed information on the practical application of the minimum wage legislation in terms of enforcement, including, for instance, extracts of labour inspection reports showing the number and nature of minimum wage-related infringements and the sanctions imposed, especially in the agricultural sector where most cases of non-compliance often occur.

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The Committee notes the Government’s reports and the attached documents.

Article 2, paragraph 1, of the Convention. The Committee notes that, under the Regulation of Wages (General) (Amendment) Order, 2002 and the Regulation of Wages (Agricultural Industry) (Amendment) Order, 2002, the minimum wage rates previously applicable to employees under 18 years of age have been deleted. The Committee also notes the Government’s statement that the measure was taken as a step towards the effective abolition of child labour in conformity with ratified Conventions Nos. 138 and 182.

Article 4, paragraph 1. The Committee notes the Government’s indication that the General Wages Advisory Board established a new wages council, i.e. the General Engineering Trade Wages Council, to formulate wages and conditions of employment for employees in the general engineering trades in view of the fact that new industries emerge and there is need to afford the vulnerable employees some form of protection especially since most employees declared redundant are in the informal sector and out of range of union representation. The Committee would appreciate receiving additional information on the evolution of the situation and the measures considered by the Government in order to extend the coverage of protective legislation in respect of minimum permissible wages to all workers with very low incomes.

Article 4, paragraphs 2 and 3. The Committee notes that, according to the information contained in the Government’s report, employee representatives were not present or withdrew from the meeting of the Agricultural Wages Advisory Board held in April 2001 and the meeting of the General Wages Advisory Board held in April 2002. In this regard, the Committee is bound to recall that the principle of full consultation and direct participation of employers’ and workers’ organizations in the operation of the minimum wage-fixing machinery is one of the most essential requirements of the Convention and that the Government has a special responsibility to ensure its application in law and practice. However, as the Committee has pointed out on a number of occasions, it is not only up to governments to guarantee this principle but its observance also involves the willingness of the parties concerned to collaborate in the consultation and participation procedures. In light of the above, the Committee requests the Government to indicate the measures taken or envisaged to avoid the recurrence of the April 2001 experience so as to ensure that the consultation and participation of the social partners in equal numbers and on equal terms is respected in practice and that the representatives of employers and workers are effectively given the opportunity to have a real influence on the decisions to be taken in a true spirit of tripartism. The Committee asks the Government to keep it informed of any new developments in this regard.

Article 5 and Part V of the report form. Further to its previous comment on this point, the Committee notes the extracts from the 2001 Labour Department Annual Report and the statistical information on labour complaints, violations reported and inspections/prosecutions conducted by the department. The Committee would appreciate if the Government could continue providing up-to-date and detailed information regarding the application of the Convention in practice as well as any other particulars bearing on the functioning of the minimum wage fixing machinery.

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The Committee notes the Government's indication that there has been no change in the legislation affecting the practical application of the Convention. It requests the Government to supply, in accordance with Article 5 of the Convention and point V of the report form, general information on the application of the Convention in practice, including its application in the agricultural sector, for example: (i) the minimum wage rates in force; (ii) the available data on the number and different categories of workers covered by minimum wage provisions; and (iii) the results of inspections carried out (e.g. the number of violations of minimum wage provisions, the penalties imposed, etc.).

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