Kenya

Work-place level Assessment of Drivers and Constraints to labour law compliance in apparel and tea sectorsin the Republic of Kenya

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Terms of Reference

Work-place level Assessment of Drivers and Constraints to labour law compliance in apparel and tea sectors**in the Republic of Kenya**

Contracting Unit: ILO LABADMIN/OSH/DWT/CO in Dar es Salaam**

Contract dates: July 2-October 15, 2021

1. INTRODUCTION

The International Labour Organization (ILO) seeks a consultant (research team) to conduct a survey as follows:

· Develop an electronic survey for workers/employers covering labour standards pertaining to discrimination, wages/hours, unfair termination, OSH, formalization of employment and contractual relationships-particularly the transition from permanent employees to casual employees. The choice of electronic survey system should be able to collect micro data from workers in the textile and tea sectors and employ use of technology in the data collection process in both the apparel and tea factory settings (Attached is a draft list of workers’ survey questions).

· Develop and administer; a sector-specific questionnaire to representatives of the identified institutions of work. This is aimed at identifying areas of noncompliance with labour law and the underlying reasons for that non-compliance.

· This extensive field research will also assess the economic, political and social realities of the target sectors following the COVID-19 pandemic.

· Develop a data driven baseline report on the incidences of non-compliance with ILS and ACW within the tea and textile sectors. This should include both reported and non-reported cases, from the workers.

The work will 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. The project will backstop the implementation of this survey, in cooperation with LABADMIN/OSH and other relevant units, under the guidance of ILO-CO-Dar esSalaam.

2. BACKGROUND

Project

The ILO has developed a comprehensive intervention, Advancing compliance with International Labour Standards (ILS) and Acceptable Conditions of Work (ACW) in Kenya project. The intervention will draw on expertise from various ILO technical departments to enhance coordination and impact. The project includes activities at the factory, sectoral and national levels to improve working conditions and promote the competitiveness and productivity in the workplace. Activities include: Contributing to improving the government’s enforcement and promotion of labour laws and standards consistent with ILS and ACW, especially in the tea/textile sectors. The focus is on providing tailored advice and tools to nudge labour market institutions to deliver better-building a strategic compliance system that transcends the traditional enforcement model and which enhances systems of labour dispute prevention and resolution. A constructive dialogue mechanism will be established to promote necessary policy reforms and for joint problem solving. The project interventions also lay emphasis on Occupational Safety and Health Services at work and increasing access to employment injury protection services.

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.

The project is implemented in 10 Counties namely: Nairobi, Mombasa, Machakos, Nandi, Kericho, Kisii, Kirinyaga, Muranga, Kiambu and Nyeri targeting the textile and tea sectors.

Information/Context

In Kenya, the status of OSH conditions has been an issue of growing importance over time (OSH Policy Guidelines-https://www.health.go.ke). Currently, the directorate of Occupational Safety and Health Services (DOSHS) is anchored in the Ministry of Labour, Social Security and Services. Occupational safety and health issues in Kenya can be traced back to 1951’s Factories’ Ordnance Act, which later became the Factories Act Cap 514 laws of Kenya. In 2004, the Government gazetted a subsidiary legislation titled “Factory and Other Places of Work “(Safety and Health Committee) Rules, 2004” Legal Notice No. 31 that created Safety Committees in factories and other places of work that regularly employed more than 20 employees. These committees were tasked with the responsibility for overseeing OSH implementation, and performing safety audits (GOK 2010). However, shortfalls remained with reports that more than half of the work related accidents and injuries went unreported or unattended, necessitating the birth of Occupational Safety and Health Act (OSHA) 2007 intended to give a more elaborate approach to OSH issues.

The OSHA Act, No. 15 of 2007 and revised in 2010, provides for the safety, health and welfare of workers and all persons lawfully present at workplaces. It also sets out occupational, health and safety codes, standards and of practice at any given workplace. The DOSHS is responsible for enforcing the Occupational Safety and Health Act 2007 and the Work Injury Benefits Act 2007.

The Employment Act of 2007regulates various aspects of employment including, rights at work, working hours, sick and maternity leave, discrimination, sexual harassment, forced and child labour, protection of wages, termination of employment, dispute settlement procedures and; protects workers to a considerable degree. However, the laws have an insufficient effective reach, since Kenya features a large proportion of workers who operate in the informal economy with limited compliance to labour regulations.

Further, the law permits the government to deny workers the right to strike under certain conditions-members of the military, police, prison guards and the National Youth Service. The Act provides for the right of workers: to form and join unions of their choice, including those in EPZs and for the right of collective bargaining to every trade union, employer’s organization, and employer. Employment Act No. 14. of 2017 was passed as an amendment to Section 29, giving women the option to extend their three months paid maternity leave with three more months, unpaid. In 2017, Kenya ranked 137 of 189 countries in terms of the Gender Inequality Index; women’s average monthly income being approximately two thirds that of men. Workers with disabilities, workers from ethnic minority groups and indigenous peoples are underrepresented in employment and education. The Committee of Experts of Application of Conventions and Recommendations (CEACR) has asked the Government to address gender stereotypes in education, training, employment and occupation; noting also that Kenya has yet to ratify the ILO Violence and Harassment Convention, 2019 (No. 190).

Notably, the Constitution also provides a framework for addressing gender equality and youth unemployment-prohibits discrimination based on gender, whilst the Breastfeeding Mothers Clauses Bill, is pending parliament debate. It has however been reported that, Kenya’s labour market has a wide range of gender gaps that most often disfavour women in various ways- with the workplace traditionally being male dominated, especially at higher management levels where policy decisions are made. For instance, the percentage of women engaged in vulnerable employment is at 29%, significantly higher than for men (ILO-KILM 2016). Further, with a youth unemployment rate at 18%, youth underemployment at 80% and youth employment-to-population ratio on just 29% (British Council, 2017), Kenya is challenged. In absolute numbers, young women in rural locations constitute the largest share of unemployed Kenyan youth, while young men in urban areas are most likely to be unemployed in relative terms (Danish Kenya Labour Market Profile, 2020). In all cases, women workers tend to suffer from occupational segregation (in traditionally female jobs) and disadvantage in conditions of employment.

3. OBJECTIVES OF THE ASSIGNMENT

The key objectives of the assignment include:

· To gather quantitative and qualitative data directly from workers, employers and key stakeholders in relation to compliance with labour laws and acceptable conditions to work (ACW) in the textile and tea sectors.

· Provide a summary of baseline data on the current status of compliance with labour laws specifically the frequency of occurrence of labour disputes resulting from non-compliance with ILS and ACW, reporting rates and access to justice/resolutions

The consultant should use the survey findings to develop recommendations:

· To provide a state of play of the textile and tea sector per labour rights studied and a description of the working conditions;

· To provide an inventory of the risks in terms of OSH, particularly with regard to the typology of risks, the number of work accidents and occupational diseases; the perception of employers and workers on occupational risks in the workplace;

· Identify concerns, needs and priorities of workers and employers by economic activity and occupation; distinguishing the situation of women and men, youth and workers with disabilities, workers from ethnic minority groups and indigenous peoples.

· Identify priorities of the public authorities involved, including the labour inspectorate, County Government entities responsible for labour law enforcement and OSH institutions for each economic activity.

4. SCOPE OF WORK

The ILO seeks to contract a consultant (research team) to undertake the survey described above. The successful consultant will work together with the ILO team to build on appropriate methodology that will focus on ensuring the objectives are met. This would include consideration of adopting the ILO methodology to assess OSH and FPRW at workplace level.

This survey will provide a baseline snapshot of conditions and perspectives at the start of the Advancing compliance with International Labour Standards and Acceptable Conditions of Work in Kenya project, and will serve as the basis for a broader impact assessment design that will be implemented to measure and attribute change to the project. The survey will also provide information about trends and any identifiable changes. This information and analysis by the selected research partner will aim to show what changes have occurred in the sector.

5. TIMELINE

The following is a broad guiding timeline for the proposed work. Further dates and deliverables outlined below.

Assembly of research team and resources

July 2

Updating and modification of survey

July 30

Training of data collection team and pilot of data collection method

August 13-17 (proposed)

Data collection

August-September

Analysis and report writing

October 15

6. RESPONSIBILITIES

The research partner will have the following responsibilities:

  1. Collaborate with ILO to debrief lessons in terms of survey design and logistics.

  2. Assign a dedicated project team with clear responsibilities for each individual. Ensure capabilities for project tasks are met by assigned individuals, including ability to liaise with stakeholders to explain the nature of the assessment, ability to effectively manage timing of contacting factories to ensure participation, and ability to interact with tact and persistence in securing the confidence and consent of factory management to partake in the survey activities.

  3. Schedule survey date with selected factories, following agreed upon procedure and taking account of Government directives relating to minimizing the spread of COVID-19 pandemic.

  4. Follow agreed upon procedures for tracking factory and respondent codes.

  5. Assign one dedicated main point of contact for factory outreach and coordination with ILO.

  6. Review survey logistics with each participating factory.

  7. Provide for logistical support of survey team, survey materials and; to and from participating factories.

  8. Maintain and clean any survey technology used.

  9. Process and store data following agreed upon procedure.

  10. Hold biweekly update meetings with ILO to discuss progress, challenges, and status of the work. Provide weekly written status updates. Follow up on action items decided during the meetings, including debriefing of pilot data collection.

  11. Provide for the security and confidentiality of survey responses and data files.

Details on executing the responsibilities can be provided in an accompanying training manual.

7. TASKS AND DELIVERABLES

  1. Research partner team is assembled, oriented to the project, and creates work plan for impact assessment research project – by July 2.

  2. Modification of ILO-draft survey in preparation for use in this 2021 survey, including development of comprehensive methodology, setting up of electronic survey system, rationalization of existing data collection tools, and alignment to baseline indicators, including through consultations with ILO – by July 30.

  3. Completion of data collection from the respondents within the approved methodology– by August 10, 2021

  4. Analysis of survey results in context of evaluating the impact of Advancing compliance project, including incorporation of suggestions for revisions by ILO and report finalization – by October 10, 2021.

  5. Drafting of a baseline report for Advancing compliance with International Labour Standards and Acceptable Conditions of Work project, including incorporated suggestions for revisions by ILO and report finalization. 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. – by October 15 2021.

8. 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 LABADMIN/OSH and DWT in ILO Headquarters in Geneva and other relevant units, under the guidance of ILO-CO-Dar esSalaam. The ILO’s IGDS Number 224 (Version 1) shall guide payments of this external consultancy assignment; upon satisfactory receipt of deliverables-no later than September 15, 2021 as follows:

  1. First payment: 40% upon satisfactory completion of deliverable 1.

  2. Second Payment: 40% upon satisfactory completion of deliverables 2, 3, 4, 5.

  3. Final payment: 20% upon satisfactory completion of deliverables and submission of the final data and research report.

9. CONFIDENTIALITY AND NON-DISCLOSURE

All data and information received and collected for the purpose of this assignment are to be treated confidentially and are only to be used in connection with the execution of these Terms of Reference. All intellectual property rights arising from the execution of these Terms of Reference are assigned to the ILO. The contents of written materials obtained and used in this assignment may not be disclosed to any third parties without the expressed advance and written authorization of the ILO.

10. QUALIFICATIONS

  1. A research team of members, with advanced degree in economics, sociology, demography, statistics, law or other social sciences;

  2. A minimum of 7 years’ experience in the environment (enterprises, labour) and the problematic of the study

  3. A minimum of 7 years’ proven experience in field research, particularly in socio-economic studies;

  4. Demonstrable knowledge and ability to conduct studies/surveys using semi-structured interview guides and questionnaires;

  5. Demonstrable capacity to work with diverse stakeholders, including factory based employers and workers.

  6. Excellent written and oral communication skills.

  7. Fluency in English.

How to apply

All interested individual consultants must submit the following documents/information no later than**5.00 P.M on Tuesday June 22, 2021 to** nboprocurement@ilo.org

• Technical Proposal explaining their suitability to undertake the assignment; this should also include the proposed methodology

• Time frame (estimated three and a half months)

• Financial Proposal (separate from Technical Proposal)

• CVs 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 Daresalaam,

Tanzania.

All applications should be clearly marked “Workplace level assessment of drivers and constraints to labour law compliance”

NOTE: Only shortlisted candidates will be contacted.