DOMESTIC WORKERS RIGHTS - KENYA

Transcription

1 DOMESTIC WORKERS RIGHTS - KENYA

2 INDEX 1. Introduction Definition and legal rights Role in the economy Life experiences Forms of employment 5 6. Recommendations References 6 THE GLOBAL NETWORK With the aim of achieving decent work for all, the Global Network works to empower women and men who are activists in NGOs, trade unions, associations of informal workers and grassroots movements to build capacity, exchange experiences and coordinate joint actions, at both regional and international level. This publication has been produced with the assistance of the European Union under the project Globalising Decent Work and by UKaid from the Department for International Development. The contents of this publication are the sole responsibility of the publisher and can in no way be taken to reflect the views of the European Union nor UKaid/DFID. GLOBAL NETWORK 2

3 1. Introduction In Kenya domestic workers play an important role in families, especially in urban areas. In most households you will find a domestic worker who can be an employee or, as in many instances, a relative of the employer. The majority of domestic workers are women, most of whom are young. This report defines domestic workers in the Kenyan context, their legal working conditions as well as outlining the work experiences of some selected domestic workers. 2. Definition and legal rights The Employment Act 2007 defines an employee as a person employed for wages or a salary and includes an apprentice and indentured learner 1. The General Wages Order 2009 under legal notice 69 and 70 lists domestic workers as a house servant or cook, cleaners, sweepers, gardeners, and children s baby-sitter. This order also provides for the minimum allowable wage for domestic workers. As of 1 May 2009 the minimum rate for rural areas in Kenya was Kshs.3,473 (US$46) per month, while for cities it was Kshs.6,130 (US$84) per month, municipalities was Kshs.5,655 (US$77), while in all other areas it was Kshs.3,270 (US$45). Under the Employment Act 2007 domestic workers enjoy the same terms and conditions of employment as other employees, including: Hours of work; Annual leave of 21 days per year; 3 months maternity leave without forfeiture of leave; Sick leave; Housing provision; and Medical attention In addition, these categories of workers are also covered by the Labour Institutions Act 2007, the Labour Relations Act 2007, the Work Injury Benefits Act 2007 and the Occupational Safety & Health Act Domestic workers in Kenya are covered by the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA), although the majority of workers in this sector are not members of the union due to fears of victimisation from their respective employers. Although on paper workers in this sector are covered by law in terms of their rights at the workplace, in reality this is not the case. Domestic workers, most of whom are not well educated, are not familiar with their rights and due to the scarcity of employment opportunities most tend to endure harsh working conditions in order to get a meal and be able to provide for their families. 3. Role in the economy Domestic workers in Kenya, although seen to contribute minimally to the economy, play a significant role. This category of workers, although among the most vulnerable, contributes rather invisibly to the country s economic growth. Domestic workers play a big role in the process of human resource development by nurturing the young. In addition, these workers contribute immensely in ensuring good sanitation standards and cleanliness of the household. These workers take care of their employers by cooking for them, washing for them, ensuring their comfort among other important things that directly results in improved productivity of their employers at the respective workplace. This in turn directly influences economic growth in a positive manner. 1 In Kenyan Law, an indentured learner means a person, other than an apprentice, who is bound by a written contract to serve an employer for a determined period of less than four years with a view to acquiring knowledge of a trade in which the employer is reciprocally bound to instruct that person. GLOBAL NETWORK 3

4 Domestic workers contribute to our economy by paying taxes either directly or indirectly, thus improving the much needed revenue of Kenya for promoting economic development. 4. Life experiences A focused group discussion held with 30 domestic workers and interviews with selected trade union leaders in Kenya revealed the following information. Origin, educational level and duties Some of the workers interviewed revealed that they took over their current jobs from persons who were retired or left their workplaces and most of whom were either relatives or friends. Some found their present jobs as a result of the death of their husbands, forcing them to look for a source of livelihood. Others found their current jobs through job adverts while others who had got pregnant out of wedlock needed jobs to provide for their children and thus resorted to domestic work. Still others got their jobs through brochures of a training institute for domestic workers. Most of the workers interviewed were educated below primary school level (standard 8) with a few of them having reached secondary school but had not been able to finish due to problems with school fees. Work experiences varied from 3 years up to 24 years, thus suggesting that there is some degree of job stability and at the same time indicating the high levels of unemployment in the country. Those interviewed stated that their main duties were: Cleaning the house and car; Cooking breakfast, lunch and super; Laundry and ironing; Washing utensils; Preparing children for school; Escorting children to and picking them up from school; Feeding children; Cooking for the family dogs; Taking care of sick, elderly grandparents; Massage for the employer; Taking care of mentally disabled children; and Washing wounds of an employer who suffers from diabetes. General experiences at the workplace During the interviews with domestic workers both their good and bad experiences at the workplace were highlighted. The good experiences were: Gained knowledge of cooking different food stuffs; Gained knowledge of welcoming visitors to the household; Learned to speak English; Increased knowledge on hygiene, including cleanliness; Improved punctuality, i.e. time keeping; Some employers shopped for their workers; GLOBAL NETWORK 4

5 Travelling to different parts of the country with the employer (family holidays/weekend outings); Getting extra days off upon request; Increased knowledge about good nutrition; Some employers treated their workers as part of the family; Some employers gave their workers a token every week; Some employers gave loans for school fees to workers; and Free medical treatment. Identified bad experiences included: Long working hours; Lack of appreciation for work done; Salary / wages delays; Lack of days off meaning continuous work with no break; Lack of medical treatment; Salary deductions due to breakages of cutlery; Very low salaries; Abuse from employers while at work; Lack of protective clothing; No annual leave; Sexual harassment from the employer and his male relatives; Lack of adherence to the initial contract of service; Cleaning very dirty clothes, e.g. underwear, bed sheets; Deduction of salary when you report to duty late; No service gratuity upon termination from employment; Most have to wake up very early, e.g. 4am and retire very late at 11pm due to the numerous house chores they have to perform; Denied the right to join a trade union; Some do not get time off for any public holidays; No sick leave, compassionate leave or any other form of leave 5. Forms of employment Currently a domestic worker s contract of service is either verbal or written. Most of the workers interviewed stated that they had verbal contracts of service with their employers which basically only contained the salary offered and other duties that were to be performed at the household. Generally, this means that the domestic worker always finds it difficult to complain about any violation of working conditions. As far as the government is concerned, the Employment Act 2007 as well as the General Wages Order 2009 should be the legal instruments to cover domestic workers concerning their wages, terms and conditions of employment. These legislations are meant to be enforced by the Ministry of Labour through the Labour Officer, but this is rather difficult due to the lack of manpower as well as limited resources at the Ministry. GLOBAL NETWORK 5

6 Domestic workers indicated that they wish to have formal contracts of service with their employers and that the conditions to be included should be in line with the Employment Act 2007 Section 10 on Employment particulars. Such particulars include the following: Name, age, sex and address of the employee; Name of employer; Job description of the employment; Date of commencement of the employment; Form and duration of the contract; Place of work; Hours of work; Rate of pay; Intervals of payment; Leave days; Notice; and Any other prescribed matter. As noted, this sector is covered by the Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Allied Workers (KUDHEIHA). The union does not have a collective bargaining agreement to cover this category of workers. Therefore, the union relies on the Employment Act 2007 and the General Wages Order 2009 to ensure that at least domestic workers enjoy the minimum terms of employment. The union is pursuing and pressurising the Ministry of Labour to ensure that it establishes a wages council for domestic workers so that the tripartite partners can come up with specific working conditions for this sector that may be reviewed from time to time according to existing economic conditions. 6. Recommendations Some specific recommendations that domestic workers, as well as union leaders, wish to incorporate in the proposed convention are: Legislation specifically stating that domestic workers have a right to join a trade union and at the same time to provide for the setting up of a minimum wage for these workers; Legislation should incorporate the provision of health care and provide for education and training of domestic workers; Legislation should provide for the establishment of minimum terms and conditions of employment that include working hours, annual leave, maternity leave, paternity leave, contract of employment, overtime pay, health and safety, mode of termination of service, housing / house allowance, service gratuity among others; Legislation that advocates for social security in the form of pension schemes or provident fund; and Legislation should discourage discrimination and sexual harassment. 7. References Employment Act 2007 Labour Institutions Act 2007 GLOBAL NETWORK 6

7 Labour Relations Act 2007 Ministry of Labour Web site Occupational Safety and Health Act 2007 Work Injury Benefits Act 2007 GLOBAL NETWORK 7