Influence of ILO Convention on OSH Law in Kenya

The purpose of International Labour Organization Convention No. 155: Occupational Safety and Health, 1981 is to ensure ratifying states formulate, implement and periodically review a coherent national policy on occupational safety and health in the work environment following consultation with the most representative organisations of employers and workers. The aim of the policy is to prevent workplace accidents and injury to health by minimizing, as far as possible, the causes of hazards inherent in the work environment. 

In general, the Convention:

• moves from prescriptive, industry-specific regulation, to a legislative framework covering all employers, employees and workplaces 
• imposes general duties on employers, employees and others to ensure workplace safety 
• Establishes workplace arrangements for employee participation in safety issues.

Ratification of the Convention would demonstrate commitment to ensuring the safety of people at work, and maintaining proper laws and practices for achieving such safety.

The Occupational Safety and Health Act (OSHA) 2007 was enacted to mitigate the shortfalls contained in the Factories and Other places of Work Act and subsidiary legislation. Some of the most significant shortfalls were reports that more than half of the work related accidents and injuries went unreported or unattended. The enactment of the OSHA 2007 signified a new beginning in management of OSH in Kenya that includes all work places. 

OSHA 2007 also establishes the structure of administration of occupational safety and health in Kenya by providing the legal mandate to the Directorate of Occupational Safety and Health Services (DOSHS), the National Council for Occupational Safety and Health (NACOSH) and other players in the sector.

DOSHS is the designated national authority for collection and maintenance of a database, and for the analysis and investigation of occupational accidents and diseases, and dangerous occurrences. NACOSH on the other hand is responsible for reviewing national OSH legislation, policies and actions. The composition of NACOSH includes the Federation of Kenya Employers (FKE) and the Central Organization of Trade Unions (Kenya) (COTU-K).

Kenya is yet to ratify Convention 155 and its 2002 Protocol. The Convention has however been identified and prioritized for ratification, and is awaiting an Act of Parliament in line with the new Constitution. In the meantime OSHA 2007 has incorporated several aspects of the Convention including the reporting and notification of occupational accidents and diseases in Kenya.

Principles of National Policy

Article 4 of the convention lays out the Principles of National Policy which include;

1. Each Member shall, in the light of national conditions and practice, and in consultation with the most representative organisations of employers and workers, formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. 
2. The aim of the policy shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment.

Action at the National Level

The Convention under Part 3 (Articles 8-15) contains the actions that each member country should take at the National level to implement the Principles of National Policy contained in article 4 of the Convention. 

Although Kenya is yet to ratify convention 155, OSHA 2007 has incorporated policies and actions similar to those prescribed in the Convention. The following are some of the instances in which the provisions of the Act appear to borrow heavily from the Convention;

(a) Enforcement of laws and regulations

The Act in Part 3 (Administration of the Act) establishes the positions of the Director, as well as the national Council for Occupational Safety and Health. The Act also empowers occupational safety and health officers to enforce the provisions of the Act. According to OSHA 2007, an OSH officer has the power to inspect and examine a workplace whenever he has reasonable cause to believe that there are people employed and/or that hazardous materials are stored or used. 

He also has the power to take photographs and videos, take samples of any articles for the purposes of any examination or investigation, including occupational accident investigations. He can take a police officer with him or her if he anticipates any serious obstruction in the execution of his duty. This is in line with article 9 of the Convention which provides a requirement for the enforcement of laws and regulations concerning occupational safety and health and the working environment to be secured by an adequate and appropriate system of inspection.

(b) Manufacturers' responsibilities

Article 20 of the Act provides that all designers, manufacturers, importers or suppliers any article should ensure, that the article is so designed and constructed as to be safe and without risks to health when properly used. The Act also requires them to take such steps as are necessary to ensure that adequate information about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used is available. This provision is in line with Article 12 of the Convention.

(c) Reporting and notification of accidents and diseases. 

Article 21(1) of the Act requires an employer or self-employed person to notify the area occupational safety and health officer of any accident, dangerous occurrence, or occupational poisoning which has occurred at the workplace. The article also provides the procedure for making such reports and assigns penalties for violations of these provisions. This is in line with Article 11(c) of the Convention on the reporting and notification of occupational accidents and diseases.

(d) Statistics on occupational accidents and diseases

OSHA 2007 requires the Director of DOSHS to develop and maintain an effective programme for collecting, compiling and analysing OSH statistics that cover all disabling, serious or significant injuries and illnesses, whether or not they involve loss of time from work, other than minor injuries that require only first-aid treatment, and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. This is also in line with article 11 (c) of the Convention which provides for production of annual statistics on occupational accidents and diseases. 

(e) Investigation of accidents

OSHA 2007 gives power to OSH officers to investigate accidents. It however falls short of the requirement under the Convention article 11 (d) for the holding of inquiries, where cases of occupational accidents, occupational diseases or any other injuries to health which arise in the course of or in connection with work appear to reflect situations which are serious. As such the Act does not require DOSHS to establish arrangements or systems of investigation of accidents.

REFERENCES

1. Occupational Safety and Health Act-2007 https://www.ilo.org/dyn/natlex/docs/SERIAL/78264/83534/F789589155/KEN78264.pdf
2. The ILO Convention 155 (1981) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312300  
3. International Labour Office, Geneva (2013) - National Profile on Occupational Safety and Health – Kenya