Assessing labour laws and increasing access to judicial and non-judicial remedies related to international labour standards in the Republic of Kenya

Terms of Reference

Assessing labour laws and increasing access to judicial and non-judicial remedies related to international labour standards in the Republic of Kenya

Contracting Unit: ILO DWT/CO in Dar es Salaam

Contract dates: May 10 to June 25, 2021

1. INTRODUCTION

The International Labour Organization (ILO) seeks a consultant to carry out the following assessments:

· An assessment of Kenyan labour laws in light of international labour standards, the Constitution of Kenya 2010, and acceptable conditions of work (ACW); and

· An assessment of access to judicial and non-judicial remedies related to international labour standards and ACW.

The work is to be carried out in the framework of the ILO development cooperation project All Hands in Kenya: Advancing Labor Standards through Cooperative Action. The project is funded by the United States Department of Labor (USDOL); Office of Trade and Labor Affairs (OTLA), and runs from December 2020 to December 2024.

2. BACKGROUND

The ILO recognizes that there is a direct link between 1) high performing labour market institutions (labour inspectorate, courts, and workers’ and employers’ organizations); 2) the protection of labour rights; and 3) the rule of law. Thus, it is fundamentally important to improve access to judicial and non-judicial remedies related to labour laws and standards. It is incumbent upon employers to comply with legislation, and upon workers and their representatives to advocate and lobby for responsible practice. But it is incumbent upon the state to enforce and otherwise promote compliance with the law. It is therefore fundamentally important to build strategic, efficient and effective labour market institutions. This begins with the legal framework and the institutions and processes for resolution of labour disputes.

Kenya has ratified 50 ILO Conventions, of which 37 are in force. It has ratified seven of the eight fundamental conventions, and three of the four governance conventions. Kenya has not yet ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Employment Policy Convention, 1964 (No. 122). The Government of Kenya has indicated it would benefit from technical assistance to be able to ratify the Labour Administration Convention 1978 (No. 150).

The 2010 Constitution includes important protections for labour rights (Chapter 4). The Employment Act 2007 defines the fundamental rights of employees, sets basic conditions of employment, and regulates the employment of children. It contains provisions on freedom from discrimination and from sexual harassment. The Act applies to all employees, excluding the armed forces, Kenya Police, Prisons Service, National Youth Service, and any family undertakings. The Act allows the hiring of employees through fixed-term contracts for permanent tasks, but there are no clear provisions regulating use of these contracts.

Casualization of employment has been growing, and is associated with reduced social protection, and lower levels of unionization. Particular challenges include respect for freedom of association, implementation of labour standards on wages and hours, and discrimination, especially against women in some sectors. The growth of casualization and outsourcing has also prompted massive lay-offs in some sectors that have triggered disputes and strikes, as well as non-compliance of collective bargaining and breakdown of Collective Bargaining Agreements (CBAs) at company level.

Labour disputes fall under the jurisdiction of the Employment and Labour Relations Courts (ELRCs). They have experienced a significant increase in their case-load since 2015. In 2018/2019, there was a backlog of over 13,000 cases, an increase of 230 per cent from 2014/2015. Only 15 of 47 counties have an ELRC, Magistrates’ Courts are only competent to hear labour disputes of small amounts in some specific cases. Labour inspectors are required to mediate unfair dismissal disputes.

Although provided for in both the Constitution (Article 159), and the Employment and Labour Relations Act 2011 (section 15) Alternative Dispute Resolution (ADR) is underdeveloped. There is no conciliation, mediation or arbitration service. There were mediation annexes in civil courts in 10 of Kenya’s 47 counties in 2019. While they have achieved positive outcomes, they appear to have had limited impact for ELRCs.

The Labour Relations Act 2007 provides for the management of trade unions and employers’ organisations, and the promotion of sound labour relations, including dispute resolution. It refers to conciliation by a member of the Conciliation and Mediation Commission (section 66). It has not however been established.

In the course of US-Kenya Free Trade Agreement negotiations, Kenya is to adopt and maintain a legal framework and public policies that address ACW. Kenya is also required to establish and strengthen labour law enforcement and redress mechanisms in case of violation. The Ministry of Labour and Social Protection (MoLSP) also intends to develop, implement and review labour policies, legislation, and programmes in respect of the informal economy.

3. OBJECTIVES OF THE ASSIGNMENT

The assignment has two principal objectives.

First, to review labour laws and other laws, to ascertain whether they are aligned with international labour standards, ACW and Kenya’s 2010 Constitution. The consultant should use the assessment findings to develop recommendations to:

· Bring domestic law and practice in line with international labour standards and ACW;

· Enlarge the scope to promote compliance effectively, including with sufficiently-deterrent sanctions; and

· Allow Kenya to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Labour Administration Convention, 1978 (No. 150).

Secondly, to assess the existing system for access to judicial and non-judicial remedies related to international labour standards and ACW. The consultant should use the assessment findings to prepare recommendations to ensure access to remedy. The assessment should address both public and private institutions and processes. It will focus particularly on remedy in relation to labour standards pertaining to discrimination, wages/hours, formalization of employment, and contractual relationships. The assessment will consider the extent to which employers and employees are able to resolve disputes by themselves at the workplace, and in that connection the fact that 90 per cent of disputes before the Employment and Labour Relations Court are disputes of rights. It will examine the current processes for alternative dispute resolution; the delays in proceedings before the Employment and Labour Relations Court; and the challenges in securing enforcement of court decisions. The assessment will also examine the extent to which employers’ and workers’ organizations are able to effectively advocate for and represent their constituents.

Issues that will be assessed are likely to include:

· The frequency, duration, nature and subject-matter of labour disputes; this should include a summary of reported and non-reported disputes

· The prevalence and use of workplace-level grievance-handling mechanisms;

· Accountability and transparency in all aspects of the system;

· Effectiveness and efficiency of the system (particularly as concerns cost and time);

· The extent to which the system has a preventive emphasis;

· The role of alternative dispute resolution and how to enhance that; and

· The level of confidence and trust that users have in the system.

4. SCOPE OF WORK

1. Undertake a desk study of the applicable laws and regulations, with particular attention to compliance with international labour standards and ACW. This should include documents and reports relating to previous efforts to revise employment and labour legislation, including for example minutes of the National Tripartite Consultative Council, and ILO advice on previously proposed changes.

2. Undertake a desk study of laws and regulations and publicly-available information on the operation of the institutions and processes for access to remedies related to labour laws and standards.

3. In consultation with the ILO and key stakeholders, develop an agreed list of issues to be assessed in respect of access to remedies, and criteria by which to assess them.

4. Conduct individual interviews with key stakeholders, including government officials and the social partners.

5. Analyse the data and information collected from the desk review and the interviews and prepare a draft assessment report containing:

a. Recommendations to bring domestic law and practice in line with international labour standards and ACW-enlarging the scope to promote compliance effectively, including with sufficiently-deterrent sanctions.

b. Specific advice on law and practice reform, to allow Kenya to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Labour Administration Convention, 1978 (No. 150)

c. Data on the prevalence/occurrences of disputes, the nature of disputes for both reported and non-reported cases.

d. Findings in respect of access to remedies;

e. A map of the process(es) for access to remedy for labour disputes; and

f. Suggestions and recommendations for reform to the labour dispute resolution system, including how to increase access to and use of ADR.

1. Present the draft assessment report, findings and proposed recommendations at an online tripartite workshop for feedback and/or endorsement, as required.

2. Revise/finalize the assessment report to incorporate comments from the ILO and other key stakeholders and submit the final report to the ILO.

   The Consultant’s work will be overseen by the National Project Coordinator of the All Hands in Kenya project, and the Labour Law and Reform Unit in ILO Headquarters in Geneva.

5.DELIVERABLES

The following are the deliverables from the Consultant, which will be subject to review and approval of the ILO:

1. Inception report giving a plan of work, including tentative assessment criteria, comprehensive methodology and proposed list of interview subjects;
2. Proposed outline of the assessment report;
3. Draft assessment report, including findings, suggestions and recommendations;
4. Presentation of draft assessment report to stakeholders for feedback and/or endorsement, as required; and

5. Final report incorporating comments from the ILO and key stakeholders, as appropriate. The report must be no longer than 25 pages (excluding annexes, data collected from the field), including a 1-2 page executive summary and a PowerPoint presentation on the key findings and recommendations. The report should lay out key findings, suggestions and recommendations.

   All reports and documentation generated under this assignment will be delivered in electronic format (as both Word, PowerPoint and PDF files) and they will remain the property of the ILO.

6.TIMELINE

The contract for this work will begin on May 10, 2021 and end on June 25, 2021. It is estimated that the work will take s45 days, accounting for the following:

Task and Estimated Timelines

**

Desk reviews

5

Expert / key stakeholder interviews

10

Data analysis and Outline of report, including the identification of one or more model dispute resolution systems for comparison

5

Report writing

10

Revise draft report to incorporate comments from ILO

5

Preparation for and presentation of draft report to stakeholders

3

Revise and finalise draft report to incorporate comments from ILO and key stakeholders

Total 45 days

7 QUALIFICATIONS

1. An advanced degree in Law.
2. A minimum of 10 years’ experience in international, comparative labour law and industrial relations.
3. A minimum of 7 years’ experience in labour law and policy studies, assessments and drafting processes in Kenya and/or other common law jurisdictions in East Africa.
4. Excellent research skills (both field and desktop research).
5. Demonstrable knowledge and deep understanding of Kenya’s legal, policy, institutional and administrative measures in respect of labour law compliance, especially in the apparel and tea sectors.
6. Demonstrable capacity to work with diverse stakeholders, including Government of Kenya officials, parliamentarians, and the social partners.
7. Excellent written and oral communication skills.
8. Fluency in English
9. 1. SUPERVISORY ARRANGEMENTS AND PAYMENT SCHEDULE

The CO Dar es Salaam will contract with the consultant and provide oversight of the required work, together with the Labour Law and Reform Unit in ILO Headquarters in Geneva. The ILO’s IGDS Number 224 (Version 1) shall guide payments of this external consultancy assignment; upon satisfactory receipt of deliverables-no later than June 25, 2021 as follows:

1. 30% following the submission, to the satisfaction of the ILO of the inception report containing plan of work, the questionnaire and the proposed outline.

2. 40% upon submission to the satisfaction of the ILO of the draft report.

3. 30% upon delivery of the final report to the satisfaction of the ILO.

How to apply:

All interested individual consultants must submit the following documents/information no later than 5.00 P.M on Friday April 30, 2021 to nboprocurement@ilo.org

• Technical Proposal explaining their suitability to undertake the assignment

• Time frame (estimated 45 work days)

• Financial Proposal (separate from Technical Proposal)

• Personal CV including, past relevant experience in similar activities and three traceable references

These should be addressed to:

The Director,

International Labour Organization ILO Country Office for United Republic of Tanzania, Burundi, Kenya, Rwanda and Uganda,

Maktaba Street P.O.Box 9212 Daresalam,

Tanzania.

All applications should be clearly marked “Assessing labour laws and increasing access to judicial and non-judicial remedies”

NOTE: Only shortlisted candidates will be contacted.