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

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

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.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s indication that the Public Procurement Regulatory Authority is currently developing standard public procurement and asset disposal documents and formats to be used by public entities and other stakeholders in accordance with section 9(1)(f) of the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015), which entered into force on 7 January 2016, repealing the Public Procurement and Disposal Act, 2005 (No. 3 of 2005). The Committee accordingly requests the Government to take appropriate steps to ensure that the new standard procurement documents issued under the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015), 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.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s indication that the Public Procurement Regulatory Authority is currently developing standard public procurement and asset disposal documents and formats to be used by public entities and other stakeholders in accordance with section 9(1)(f) of the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015), which entered into force on 7 January 2016, repealing the Public Procurement and Disposal Act, 2005 (No. 3 of 2005). The Committee accordingly requests the Government to take appropriate steps to ensure that the new standard procurement documents issued under the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015), 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.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous comment, the Committee notes the Government’s indication that there may well be a discrepancy between the fair wages clause included in the Standard Tender Document for Procurement of Works (Roads, Bridges, Water and Other Civil Engineering Works) issued under the Public Procurement and Disposal Act, 2005, and the fair wages clause provided for in paragraph 7 of the Standard Contract Form (1970 edition) to which reference was made in earlier reports. The Committee also notes the Government’s statement that the differences to which the Committee has been drawing attention will be addressed as the Public Procurement and Oversight Authority (PPOA) finalizes the new bidding documents. The Committee accordingly requests the Government to take appropriate steps to ensure that the new bidding documents issued under the Public Procurement and Disposal Act, 2005 contain labour clauses fully aligned with the provisions of Article 2 of the Convention and to transmit copies of these documents once they have been finalized.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s statement that there has been no change in the legislation affecting the practical application of the Convention. However, the Committee understands that, in the last six years, there have been important legislative developments in the area of public procurement, in particular the adoption of the Public Procurement and Disposal Act, 2005, and Public Procurement and Disposal Regulations, 2006, as well as the publication of a series of standard tender documents and a Public Procurement and Disposal General Manual. The Committee further notes that a fair wages clause has been included among the conditions of particular application in standard tender documents, for instance, clause 34.3 of the Standard Tender Document for Procurement of Works (Roads, Bridges, Water and Other Civil Engineering Works) which requires contractors to pay rates of wages not less favourable than the statutory minimum wage for the building and construction industry set by the relevant wages regulation order. The Committee recalls, however, that the fair wages clause that appeared in paragraph 7 of the standard contract form (1970 edition), and to which the Government had been referring in its reports up to 1994, required contractors to pay rates of wages and observe hours and conditions of labour not less favourable than those established for the trade or industry in the district where the work is carried out by machinery of negotiation or arbitration to which the parties are organizations of employers and trade union representatives respectively of substantial proportions of the employers and workers engaged in the trade or industry in the district. The Committee therefore considers that the fair wages clause, as reflected in the new public procurement legislation, does not fully capture the idea that is the most advantageous level of wages and working conditions established locally (through collective bargaining, arbitration or legislation) that is required under the contract unless, of course, the statutory minimum wage constitutes both the maximum and minimum standard which may not be exceeded by more favourable collective agreements or arbitration awards. The Committee accordingly requests the Government to provide additional explanations in this respect.

Part V of the report form. Practical application. The Committee would be grateful if the Government would communicate, together with its next report, up-to-date information on the application of the Convention in practice, including for instance the average number of public contracts granted annually and the approximate number of workers engaged in their execution, labour inspection results concerning contract performance, and copies of official documents such as activity reports of the Public Procurement Oversight Authority.