Direct Request (CEACR) - adopted 2025, published 114th ILC session (2026)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Kenya (Ratification: 1964)

The Committee notes the observations made by the Central Organization of Trade Unions of Kenya (COTU-K) received on 1 September 2023.

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its report, the Government indicates that, pursuant to sections 9, 58, and 70 of the 2015 Public Procurement and Asset Disposal Act (the Act), as amended, the Public Procurement Regulatory Authority (PPRA) revised all Standard Public Procurement and Asset Disposal Documents and Formats (Standard Tender Documents, STDs). It indicates that PPRA Circular No. 2 of 2021 mandated their use by all public entities, effective from 21 April 2021. The Committee takes note of this information, as well as the revised STDs submitted by the Government with its report. It notes with interest that several STDs referenced in section 58 of the Act and the Eighth Schedule of the 2020 Public Procurement and Asset Disposal Regulations require a contractor to observe labour clauses on wages, working hours and other conditions of labour, and comply with labour laws applicable to the workers concerned. It notes, in particular, that wages and labour conditions shall not be lower than those established for the trade or industry where the work is carried out. Furthermore, the Committee observes that section 55 of the Act sets out the eligibility criteria for bidders, who must provide evidence of compliance, including the absence of any serious violation of fair employment laws and practices. In addition, PPRA Circular No. 7/2023 requires that procurement contracts shall include a clause stipulating that failure by contractors to comply with minimum wage regulations and other employment laws and practices constitutes a serious violation, potentially resulting in immediate contract termination and debarment. The Committee notes that, beyond the legal framework, the COTU-K emphasizes the need for: (i) a transparent mechanism involving workers’ representatives in contract negotiations and signing, (ii) sanctions for violations, including contract cancellation and prosecution in severe cases, and (iii) protection of workers in large international projects (e.g., roads, dams, railways) from poor working conditions and low wages.

Considering the above, the Committee draws the Government’s attention to the requirement in the Convention that working conditions ensured by labour clauses in public contracts to which the Convention is applicable should not be less favourable than the conditions fixed by way of either collective agreements, arbitration awards, or national legislation. In many cases, minimum standards set by national legislation regarding wages and conditions of work may indeed be exceeded by collective agreements or otherwise. Indeed, the purpose of the Convention is to ensure that workers employed for the execution of public contracts enjoy wages and other working conditions at least as favourable as those prevailing in the locality and normally established for the type of work concerned, whether established by collective agreement or otherwise, where the work is carried out. This has the effect of setting the highest standards already established in the locality as minimum conditions for public contracts. The additional aim is that local standards higher than those established by law (which in practice means the most advantageous labour conditions) should be applied, where they exist.

With regard to section 55 of the Act, which sets out the eligibility criteria for bidders, and PPRA Circular No. 7/2023, which requires that procurement contracts shall include a clause stipulating that failure by contractors to comply with minimum wage regulations and other employment laws and practices constitutes a serious violation, the Committee recalls that the Convention does not relate to some general eligibility criteria, or prequalification requirements, of individuals or enterprises bidding for public contracts but requires a labour clause to be expressly included in the actual contract that is finally signed by the public authority and the selected contractor (General Survey concerning labour clauses in public contracts, para. 117). It further recalls that the insertion of labour clauses in tender documents, such as the general conditions or specifications, even though required under the terms of Article 2(4), of the Convention, does not suffice to give effect to the basic requirement of the Convention set out in Article 2(1), which requires that the labour clause be included in the actual public contract (General Survey concerning labour clauses in public contracts, para. 128).

In the light of the above, the Committee requests the Government to: (i) take appropriate steps to ensure that all standard tender documents issued under the Public Procurement and Asset Disposal Act, 2015, as amended, contain labour clauses that are fully aligned with the provisions of Article 2 of the Convention and to transmit copies of these documents once they have been finalized; and(ii) provide information on whether the employers’ and workers’ organizations concerned have been consulted on the terms of the labour clauses prior to their inclusion in the standardized tender documents, as required by Article 2(3) of the Convention.

In light of the above, the Committee requests the Government to:

• (i) Provide information on the specific steps taken to ensure that the labour clause is included in the actual public contract, and not merely in the Standard Tender Documents. Furthermore, please confirm that the labour clause requires contractors to apply the wages and conditions established by collective agreements (where they exist) and arbitration awards, and not merely the statutory minimum wages, as the purpose of the Convention is to set the highest prevailing standards as the minimum condition for public contracts.
• (ii) Provide information on whether any measures are taken or planned to put in place a transparent monitoring mechanism that involves the workers’ representatives in the verification of compliance with the labour clauses during contract execution. Please also provide statistical data on the sanctions (including contract termination and debarment) applied to contractors under PPRA Circular No. 7/2023 for labour law violations.
• (iii) Provide information on any measures taken or envisaged to ensure the effective application of the labour clauses and the protection of workers in large international projects (roads, dams, railways). The Committee also requests detailed information on the consultations held with the employers’ and workers’ organizations concerned on the terms of the labour clauses before their inclusion in the standardized tender documents, as required by Article 2(3), of the Convention.