Consultancy: Conducting Gap assessment of ILO Conventions (C87 and C150)

Country: Kenya

Organization: International Labour Organization

Closing date: 30 Jun 2023

Conducting Gap assessment of ILO Conventions: The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Labour Administration Convention, 1978 (No. 150), in an effort to support the Kenyan Government towards ratification.

Contracting Unit: ILO DWT/CO in Dar es Salaam

Contract dates: July 5 to August 20, 2023

1. INTRODUCTION

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

• A gap assessment of the un-ratified ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), to provide guidance on ratification process and future reforms.


• A gap assessment of the un-ratified ILO Labour Administration Convention 1978 (No. 150), again to provide guidance on ratification process and future reforms

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 comply with International Labour Standards (ILS); incumbent upon employers to comply with legislation, and upon workers and their representatives to advocate and lobby for responsible practice. That it is also incumbent upon the state to enforce and otherwise promote compliance with the law and therefore key, to build strategic, efficient and effective labour market institutions. This begins with the legal framework and the institutions and processes in the labour market, complying with ILS.

Kenya has been a member of the ILO since the 13th of January 1964 and has ratified 52 instruments, 38 of which are in force, including seven Fundamental Conventions, three Governance Conventions, and 28 technical Conventions (for further information, see NORMLEX page). Its last two ratifications were registered in February 2022and Kenya is yet to ratify among others, the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and Labour Administration Convention, 1978 (No. 150). Nonetheless, 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 Constitution of Kenya includes important protections for labour rights (Chapter 4); hitherto Kenya faces overwhelming development challenges. Its labour markets feature high underemployment, high levels of casualization, gender disparity in labour market participation and youth unemployment. Effective implementation of International Labour Standards could significantly improve their ability to address these interlinked challenges.

Kenya would also benefit from improving the functioning of its labour markets. A well-functioning labour market where both the needs of employers and workers are met within a framework of established rights and guarantees requires a sound labour administration system per C150 and one that ensures association and protection of the right to organize as enshrined in the ILO Convention No. 87 of 1948. It should be capable of identifying trends, generating knowledge, anticipating transformation, and addressing risks in a timely manner. An effective labour administration is one that can adopt responsive policies and measures, effectively regulate labour markets, thereby creating resilience and shaping social and economic policies.

Severe capacity deficits constrain the Ministry of Labour (MOL) and key government institutions from realising the positive benefits of implementing International Labour Standards, and from contributing more fully to the functioning of its tea and textile labour markets. In this sense, capacity deficits hamper the ability of Kenya to pursue the goal of Decent Work. Kenya’s Vision 2030 recognizes the importance of tripartism and social dialogue in promoting industrial harmony, organizational productivity, competitiveness, employment creation, and economic growth. Although the Constitution[1] and the Labour Relations Act 2007[2] protect the freedom of association, many challenges remain. Migrant workers, street vendors and domestic workers have difficulty exercising their freedom of association, because of informality, and/or fear of losing their jobs.[3] In addition, just 2.5 per cent of workers in formal employment are covered by collective bargaining agreements.[4] The CEACR has asked the Government of Kenya to report on tripartite consultations about the possible ratification of Convention No. 87.[5]

The unwillingness of agricultural employers to increase wages – especially in tea and textile sectors– constrains social dialogue.[6] Trade unionists have experienced reprisals, including arrests, for calling for strikes, and for protesting for the full application of collective agreements in the sector.[7] While unionization has increased in the apparel sector, there are also reprisals, including wrongful and discriminatory dismissals.[8] While workers in the informal economy may exercise their freedom of association, fragmentation limits trade union organization and representation. Unions too struggle to achieve recognition because of limited participation, perceived lack of credibility, and inadequate funding.[9]

Studies by the ILO-All Hands in Kenya Project have also established that among efforts to legally secure informal workers in Kenya, is a memoranda of understanding (MOUs) between Trade unions with informal worker associations in their respective sectors signed in 2019. This is spearheaded by affiliates of the Central Organization of Trade Unions-Kenya (COTU-K) to organize workers in Kenya’s fast-growing informal sector[10].

The Employment Act[11] does not specifically provide for freedom of association, but does offer certain protections to persons who are members of trade unions and who engage in collective bargaining. S. 40 provides that, when an employer is terminating an employee on account of a redundancy, he or she must give at least one month’s notice to the trade union where the employee is, for example.

Further, both the ILO Centenary Declaration and the ILO Global call to action for a human-centred recovery from the COVID-19 crisis that is inclusive, sustainable and resilient emphasize the need to strengthen labour administration systems. They both call on the International Labour Office (the Office) to provide support to member States in this respect. The ILO Programme and Budget for 2022-2023 also commits the Office to support member States by:

• Assessing, strengthening and adapting labour administration and inspection systems to the new context brought about by the COVID-19 crisis and the need for a just transition to environmental sustainability, with a focus on regulatory frameworks, structures, policies, strategies and procedures;


• Strengthening the capabilities of labour administrations and labour inspectorates to adopt and better use information management systems to deploy new technology for evidence-based policymaking, planning and service delivery, and to develop and use methodologies, techniques and skills responsive to needs of employers and workers;


• Deploying cooperative and informed approaches to address compliance gaps through strategic compliance interventions, policy and organizational change; and


• Reinforcing the qualification of labour inspectors and other labour administration staff, through initial and lifelong training, including through e-learning.

As a preliminary step to designing targeted policy interventions for the Republic of Kenya, the Country Office seeks a research consultant (external collaborator) to carry out a baseline study/mapping of labour administrations and the Freedom of Association and Protection of the Right to Organize Conventions’ systems.

3. OBJECTIVE

The main objective of this consultancy is to undertake a Gap Assessment due to the lack of data, information, status and reasons for non-ratification, being that in the past there have been attempts to take a path of ratification, and further that parts of provisions of these two Conventions have already been domesticated. This assessment is hence, aimed to identify the underlying basis behind non-ratification of the Conventions. It will also appraise existing legislative and institutional infrastructure to establish any lacunae towards informing and supporting the Kenya Government to overcome the impediments and consequently ratify these essential Conventions.

The consultant will also analyze the differences that exist between Kenya’s Legislative Framework and these two un-ratified Labour Conventions; following which the identified gaps will be highlighted to provide guidance on the future reform of the legal system, structures and frameworks to bring it into compliance with ILS . This will entail a detailed analysis of existing legislations related to the two Conventions and a look at various institutional arrangements where possibilities for action can be anchored upon. The Consultant will also confer with tripartite partners (particularly employers and workers in tea and apparel sectrs), existing institutions, and other stakeholders (e.g., Academia, Civil Society Organizations, etc) and identify key areas to be improved.

The objective to also map the Kenya labour administration institutions and their capacity to establish baseline information to support the planning and implementation of targeted interventions in line with the ILO strategy for institutional capacity development. The development objective is to strengthen labour administration and Freedom of Association and Protection of the Right to Organize institutions to effectively contribute to national policy dialogues, to safeguards the rights of both employees and employers, to freely organise to improve the development and application of labour laws and policies (employment promotion, OSH, etc), and to deliver development activities focusing on decent work priorities.

Specific objectives include:

1. Identify the government agencies that comprise Kenya labour administration; Freedom of Association and Protection of the Right to Organise systems;


2. Outline the respective responsibilities of those government agencies;


3. Assess the level of governments’ investments in labour administration and Freedom of Association and Protection of the Right to Organise as a whole and for particular agencies;


4. Gather and analyse publicly available data sources on the functioning of Kenya labour administration and Freedom of Association and Protection of the Right to Organise systems;


5. Identify the institutional frameworks for consultation with and participation of tripartite constituents;


6. Assess the level of compliance with the provisions of Convention 150 and Convention 87.


7. Identifying gaps in legislation, regulations, and practices related to labour administration and and Protection of the Right to Organise.


8. Identify barriers and challenges hindering the full implementation and or ratification of these Conventions.


9. Provide recommendations for bridging the identified gaps and improving compliance with ILO Conventions 150 and 87.

Issues that will be assessed are likely to include:

1. The overall framework for the labour administration and; Freedom of Association and Protection of the Right to Organise, including:

• The national labour policies, if any; Desk review of Conventions, legislation, policies, regulations, institutional arrangements, technical capacities and other related documents;


• The different government agencies within the system of labour administrationand; Freedom of Association and Protection of the Right to Organise, their responsibilities and modes of collaboration;[12]and


• The legal and administrative frameworks guiding their operations;

2. The institutional structure and functions of the labour administration andFreedom of Association and Protection of the Right to Organise, including:

• Labour market research and analysis including, liaison with relevant Kenya Government Statutory bodies, the treaties department, Office of the President, Parliament and Department of Justice.;


• Development, application and review of labour standards policies, e.g. wages;


• Employment promotion and worker welfare;


• Welfare of workers abroad, especially through labour mobility programmes;


• Public employment services;


• Prevention and resolution of labour disputes;[13]
  


• Organization and functioning of the labour inspection system;[14]
  


• Social security benefits, collection of social contributions, and administration of compensation and/or unemployment funds;


• Registration of Employer and Business Membership Organisations, and Trade Unions; and


• Any other functions.

3. The resources available to the labour administration systems, including:

• Staffing


• Structure (numbers, gender, status, levels, qualifications, unfilled posts etc);


• How staff development is organized; and


• Any available needs assessment.


• Non-personnel resources and facilities, where the information is available: offices, vehicles, etc.


• Technology and IT systems, both internal and public.

4. Data on the functioning of the labour market and in particular, the labour administration system and; Freedom of Association and Protection of the Right to Organise including:

• Number of jobs available and filled through the public service commission;


• Labour market data (disaggregated by gender) including:
  
  • Economically active population;
  
  
  • Employment, unemployment and underemployment;
  
  
  • Types of engagement for work (casual, full-time, part-time, agency work, fixed term, own account worker, etc);[15]
    
  
  
  • Number of registered enterprises and their economic activities;
  
  
  • Number and coverage of registered collective agreements;
  
  


• Data on promoting workplace compliance with the law including:
  
  • Number of inspection visits;[16]
    
  
  
  • Number of notices issued;
  
  
  • Number of investigations of occupational accidents and diseases;
  
  
  • Number of complaints received;
  
  
  • Number of cases brought to judicial authorities;
  
  
  • Outcomes and penalties imposed, whether administrative or judicial.
  
  


• Data on the operation of systems for prevention and resolution of labour disputes:[17]
  
  • Numbers of complaints and other proceedings;
  
  
  • Outcomes of complaints and other proceedings;
  
  
  • Time between lodging and finalizing complaints and other procedures; and
  
  
  • Numbers of appeals and their outcomes.
  
  

5. Engagement with constituents and other stakeholders:

• Bipartite bodies specifically provided for in the legal framework.


• Engagement with employers including with schemes of private labour regulation, if any.


• Data on number of registered trade unions and their coverage as well as of employer organisations.


• Discuss with employers, workers, academia etc from/or working tea and apparel sectors – to assess current level of alignment with the Conventions and identify areas to be improved.

4. SCOPE OF WORK AND DELIVERABLES

The consultant will work under the guidance and supervision of the ILO’s Decent Work, International Labour Standards Specialist and ILO’s AHK.

In the first phase of the research, the consultant will refine the research methodology and sources in consultation with AHK project team. In the second phase, the will conduct interviews and have discussions with key staff in ILO labour administrationsand; Freedom of Association and Protection of the Right to Organise systems.The consultant will keep the Office informed on a regular basis on progress on the work. The Office will be responsive to the consultant’s inquiries and needs.

The consultant will complete and submit the following deliverables, to the satisfaction of ILO:

• Deliverable 1: Inception report outlining the proposed methodology and work plan within one weeks of contract signing.


• Deliverable 2: Proposed outline of the assessment report;


• Deliverable 3: Draft Gap assessment report, including findings, suggestions and recommendations; 10 weeks from date of contract. The Office will provide feedback within two weeks of receipt.


• Deliverable 4: Presentation of draft assessment report to stakeholders for feedback and/or endorsement, as required; and


• Deliverable 5: Final report, responsive to the Office feedback on the draft report, two weeks from receipt of the Office feedback. The Final report incorporates 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 (both as Word, PowerPoint and PDF files) and they will remain the property of the ILO.

5. TIMELINE

The contract for this work will begin on July 5 and end on August 20, 2023. It is estimated that the work will take a total of 45 working days, accounting for the following:

Task - Estimated work-days

Desk reviews - 10 days

Expert / key stakeholder interviews - 10 days

Data analysis and Outline of report, including the identification of one or more model dispute resolution systems for comparison - 5 days

Report writing - 10 days

Revise draft report to incorporate comments from ILO - 5 days

Preparation for and presentation of draft report to stakeholders - 3 days

Revise and finalise draft report to incorporate comments from ILO and key stakeholders - 7 days

Total - 50 days

6. QUALIFICATIONS:

1. An advanced degree in Law, social sciences and or related fields.


2. A minimum of 10 years’ experience in international labour standards, comparative labour law and industrial relations.


3. A minimum of 7 years’ experience in international labour standards, labour law and policy studies, assessments and drafting processes in Kenya, East Africa and/or other common law jurisdictions.


4. Demonstrated expertise and knowledge in labor administration, international labor standards, and conventions, particularly ILO Convention 150. And ILO Convention 87


5. Experience in conducting gap assessments, evaluations, or similar research projects related to labor administration or related fields.


6. Excellent research (both field and desktop research), analytical and report writing skills.


7. Ability to work independently and deliver high-quality outputs within specified timeframe.


8. Demonstrable capacity to work with diverse stakeholders, including Government of Kenya officials, parliamentarians, and the social partners.


9. Excellent written and oral communication skills.


10. Fluency in English.

7. 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 August 20, 2023 as follows:

1. 30% upon finalisation of the inception report containing plan of work, the questionnaire and the proposed outline.


2. 40% upon submission of the draft report and validation of the draft report


3. 30% upon delivery of the final report.

[1] Articles 36 and 41 (c), The Constitution of Kenya

[2] Articles 4 to 7, Labour Relations Act, 2007

[3] ITUC: A trade union focus on the SDGs.

[4] Ibid.

[5] Direct Request (CEACR) – adopted in 2019, published 109th ILC session (2021). Available in https://www.

ilo.org/dyn/normlex/en/f?p=1000:13101:0::NO:13101:P13101_COMMENT_ID:4012576

[6] The Trade Union Development Cooperation Network (TUDCN) and International Labour Organisation: Social Dialogue to achieve the sustainable development goals, Formalising the informal economy, Country brief: Kenya, October 2018, pages 3-4. Available in https://www.ituc-csi.org/social-dialogue-to-achieve-the-20691

[7] The International Trade Union Confederation, Survey on Systematic violations of rights, Available in https://survey.ituc-csi.org/Kenya.html?lang=en#tabs-3

[8] IndustriALL Global Union. Kenyan Union takes Hela Intimates to court over workers rights violations. Available in http://www.industriall-union.org/kenyan-union-takes-hela-intimates-to-court-over-workers-rights-violations

[9]ITUC: Social Dialogue to achieve the sustainable development goals, Formalising the informal economy, Country brief: Kenya.

[10]With these agreements, for the first time, Kenya’s trade unions have brought informal-sector workers such as vendors, cleaners, autobody workers and mechanics under the union umbrella, giving them access to the country’s legal framework that protects formal workers.

[11] 2007, Laws of Kenya

[12] The consultant will be required to develop one or more organograms that show the relationships of the different agencies, and the elements of each.

[13] This should cover all types of disputes, that is, whether over legal rights or over interests, including disputes arising in the course of collective bargaining. It should also cover all methods of dispute resolution, including conciliation, mediation, arbitration and adjudication.

[14] Guidance on how to differentiate functions can be found in Part IV of the ILO Labour Inspection Recommendation, 1947 (No. 81).

[15]For further detail see the International Status of Classification in Employment 2018.See the Resolution concerning statistics on work relationships,adopted at the 20th International Conference of Labour Statisticians (October 2018).

[16]For this and the other areas of researching seeking a “number”, the data should also indicate percentage change over time.

[17]The data for this item should be disaggregated according to the type of dispute and the method of dispute resolution, as in fn13.

How to apply

All interested individual consultants must submit the following documents/information no later than 5.00 P.M on June 30, 2023 to nboprocurement@ilo.org

• Technical Proposal explaining their suitability to undertake the assignment


• Time frame (estimated 50 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