National Consultant to Develop a Rapid Labour Inspection Assessment

Terms of Reference

National Consultant to Develop a Rapid Labour Inspection Assessment

I. Background

Within the Ministry of Labour and Social Protection (MoLSP) of Kenya, the Labour Department enforces the Employment Act 2007 and the Labour Relations Act 2007 while the Directorate of Occupational Safety and Health Services (DOSHS) is responsible for enforcing the Occupational Safety and Health Act 2007 and the Work Injury Benefits Act 2007. Labour inspectors examine how national labour standards are applied in the workplace, advise employers and workers on how to improve the application of national law, take enforcement action in the case of non-compliance, and bring to the notice of national authorities gaps and defects in national law.They play an important role in ensuring a level playing field for all employers and workers.

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. Building strategic, efficient and effective labour market institutions is fundamental to achieving compliance of domestic law and practice in line with international labour standards and acceptable conditions of work.

To provide targeted advice and guidance to strengthen the Labour Inspection System of the Ministry of Labour and Social Protection (MoLSP) in Kenya, the ILO seeks a consultant to conduct a rapid labour inspection assessment.

II. Objective and Scope

The goal of the assessment is to provide national authorities with a series of findings and recommendations to assist in the effective operationalization of labour inspection systems including increasing its capability and capacity to achieve compliance with applicable labour standards as set by the ILO ConventionsC081 – the Labour Inspection Convention (1947) and C129 – the Labour Inspection (Agriculture) Convention (1969).

III. Function and Responsibilities

The consultant will be responsible for obtaining and compiling all data and information required to inform ILO findings and recommendations.

At a minimum, the consultant must capture the following information:

General Information on Country Conditions

Relevant history, political system, economic status.

Legal Framework

Copies of laws and secondary legislation in the form of regulations, directives and other mandates as well as legislation on the judiciary and other adjudicative bodies in labour dispute resolution.

Powers of Labour Inspectors

Legislative powers, monetary and non-monetary penalties, enforcement measures etc.

Mission Statement

Describing the Ministry of Labour and Social Protection’s mission.

Organization of the Ministry of Labour and Social Protection (MoLSP)

Management structure, including allocation of functions between central, regional and county level authorities.

Organogram

Visual representation of the allocation of functions.

Inspection Procedures

From the initiation of inspection to the imposition of penalties and all processes in between.

Budget

For labour inspection activities, including office and human resources and percentages directed towards specific activities.

National Information

National strategy or policy influencing the mandate of the labour inspectorate and the national inspection plan.

Planning Process

Steps in the process of planning, implementation, monitoring and reporting of inspections.

External and Internal Stakeholders

Entities engaged in the process of labour inspection. Including information on informal or formal collaboration processes with local, regional or national authorities. For example, national committees on OSH, workers and employers organizations, private compliance initiatives, labour courts etc.

Criteria for Inspection

Determination of topics, sectors, and/or regions for inspection.

Sectors of importance

Including export sectors and other sectors integrated into global supply chains.

Enforcement and Compliance Data

Injury and illness rates, complaints, compliance risk indicators.

Guidelines

To assist and guide inspection processes and decision making with regards to enforcement.

To obtain and compile the above information the consultant will undertake the following tasks:

· Develop interview questions and data collection tools for use with central and local county authorities responsible for compliance with national labour law;

· Review all relevant documents (i.e., laws, regulations, directives, circulars, standard operating procedures, manuals, comments by the ILO’s supervisory bodies on Convention 81, etc.), relevant to understanding the current labour inspection system;

· Liaise with internal personnel of the central and regional local county authoritiesto source the necessary data and information.This may require travel to the labour inspectorate offices in the focal county governments for Kericho, Nandi, Kiambu, Nyeri, Kirinyaga, Muranga,Kisii, Nairobi, Athi River and Mombasa.

· Collect relevant documentationsuch as annual inspection reports, national surveys and statistics, labour market information, bi-lateral and multi-lateral trade agreements, national OSH policy and profile, national labourinspection profile and policy by the Ministry of Labour and Social Protection (MoLSP)as well as external stakeholder reports, academic research and other relevant data;

· Liaise with subject matter experts such as external labour and/or administrative law experts and stakeholders such as: The National Labour Board and the National Tripartite Consultative Council; The State Department for Trade in the Ministry of Industrialization, Trade and Enterprise Development; the Directorate of Occupational Safety and Health (DOSH);the Federation of Kenya Employers (FKE); Central Organization of Trade Union (COTU-K);the Kenya Human Rights Commission (NGOs) Forum; the Export Processing Zones Authority (EPZA); and other relevant bodies,where necessary to obtain information;

· Act as the documentarian to accurately and comprehensively capture the data and information;

· Draft a preliminary Rapid Labour Inspection Assessmentbased on information collected;

· Amend and edit the preliminary Rapid Labour Inspection Assessmentbased on ILO comments;

· Produce a final Rapid Labour Inspection Assessment;

· Ensure the confidentiality of documents and relevant information.

IV. Deliverables and Schedule

The contract will be for 45 days. The external collaborator will produce the following deliverables within the following timeframe:

Timeline

Deliverable

10 days

Prepare survey questions for central and regional authorities

20 days

Preliminary draft of the Rapid Labour Inspection Assessment.

10 days

Final Rapid Labour Inspection Assessment, including copies of relevant organograms, legislation, and labour inspection procedures.

Contract terms

ILO’s IGDS Number 224 (Version 1) shall guide deliverables and payments on External Collaboration consultancy assignments.

V. Required Qualifications

· A minimum of 2-3 years’ experience in labour law and policy studies, assessments and drafting processes in Kenya and/or common law jurisdictions.

· Demonstrable knowledge and deep understanding of Kenya’s legal, policy, institutional and administrative measures in respect of labour law compliance in the apparel and tea sectors.

· Demonstrable knowledge and deep understanding of labour law frameworks and legal obligations (including recommendations from the ILO regarding labour standards pertaining to discrimination, wages/hours, unfair termination, OSH, formalization of employment, and contractual relationships.

· Excellent research skills (both field and desktop research). Has knowledge of various research methodologies and sources, including electronic sources on the internet, intranet and other databases.

· Excellent written and oral communication skills are essential, along with excellent interpersonal, diplomacy skills, negotiation and mediation skills.

• Understanding of government structure and inter- government relations;

• Demonstrable capacity to work with diverse stakeholders, including Government of Kenya officials through the National Labour Board, the National Tripartite Consultative Council, parliamentarians (national and county level) and relevant representatives of the MoLSP and social partners.

• Fluency in English and Swahili (both written and spoken).

VI. Preferred qualifications

· Able to work calmly under pressure and to strict deadlines;

· Extremely detail oriented, analytical and inquisitive;

· Highly motivated and committed to the values of transparency, integrity, and compliance with the law;

· Strong written and verbal communication skills including technical writing skills.

Submission of Technical and Financial Proposal

…………………………………………………………………………………………………………………………………………………….

All interested individual consultants must submit the following documents/information by COB 15thApril, 2021 to [email protected]

• Technical Proposal explaining their suitability to undertake the assignment

• Time frame (estimated 60 work days spread over maximum period of two and a half months)

• Financial Proposal (separate from Technical Proposal)

• Personal CV including, past relevant experience in similar activities and three traceable references

The proposal 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

Daresalam, Tanzania.

All applications should be clearly marked “Promoting Labour Inspection compliance in the apparel and tea sectors.”

NOTE: Only shortlisted candidates will be contacted.

Annex 1 (all charts are available in Excel format):

GUIDELINES FOR WRITTEN PRESENTATIONS

This information is requested to enable ILO officials to understand the functioning of the inspectorate and potential current issues and targets for Strategic Compliance Planning.

1) How does the labour inspection system describe and fulfil its functions?

a) Please provide the mission statement of the labour inspectorate?

b) Please provide detail of the labour inspectorate(s) organization and management structure?

i. Include organogram of central and field structure.

ii. Describe how functions are allocated, noting in particular how functions are allocated between national, regional and local offices.

c) What are the inspection procedures from the initiation of an inspection, the identification of non-compliance or suspected non-compliance to the imposition of penalties?

d) What is the budget of the labour inspectorate?

e) What percentage of labour inspectorate’s budget is directed to reactive actions?

2) Please complete table 1 to show the staff resources of the labour inspectorate.

3) Please complete table 2 to show the office resources of the labour inspectorate.

4) Please complete tables 3 and 4 to show the available enforcement and compliance data for 5 priority sectors including tea and apparel.

5) Please complete table 5 to show information about occupational accidents and diseases.

6) How is/are the LI system(s) managed and controlled?

A. How is/are the labour inspectorate(s) (LI) positioned within a central authority? Please provide an organogram (ministries in which labour inspectorate(s) are positioned).

B. Is there a national policy/strategy on labour inspection?

7) How does the labour inspectorate plan?

A. Please provide information on the national inspection plan.

B. What is the inspectorate planning process (steps in the process for planning, implementation, monitoring, evaluation, and reporting)?

C. Who is engaged in the process (internal/external parties)

D. What is the frequency and duration of inspection planning?

E. What information is available and/or do labour inspectorates collect and analyse it to develop inspection plans (compliance risk indicators complied from statistics, research, inspection data and information, views of social partners and other interested parties. Other relevant information may include national OSH profile and OSH programme, injury and illness rates, complaints, recorded penalties, resources, information and referrals from employer and worker organizations and other parties, information and referrals from other government authorities, etc.)?

F. What criterion is used by labour inspectorates to determine which topics, sectors, regions and economic units to inspect, (for example risk-based assessments)?

8) Current and possible co-operation and collaboration of the labour inspectorate(s)

A. Does the labour inspectorate have formal or informal collaboration/coordination between the labour inspectorate(s) and identified local, regional or national authorities or agencies (tax, social protection, health, interior, justice, statistical office, building construction, export zone, labour courts, police, fire safety departments, insurance providers, etc.)

B. How does the labour inspectorate(s) collaborate with employers and worker organizations?

C. Are tripartite advisory bodies at national, regional and/or local levels present, if so what are their terms of reference?

D. Are there any national committees’ working on issues that impact working conditions and/or OSH? What is their membership and terms of reference?

E. Are there any private compliance initiatives collaborating with the labour inspectorate(s) and how?

F. Are there NGO and other organizations present in country who the labour inspectoratecould work with. Please list them and detail areas of activity.

G. Are bi-lateral / multi-lateral trade agreements or trade statuses that include commitments related to labour law compliance and/or the capability or capacity of the labour inspectorate(s) present?

H. Are development bank projects with loan agreements that include social standards related to labour law compliance present?

I. Are Economic Zones (Special economic zones, export processing zones etc.) present and what is the applicability of labour legislation and the authority of labour inspectorate(s) for these zones?

J. Are export sectors and other sectors integrated into global supply chains?

K. Is there a mechanism to advise competent authorities of gaps in legislation and address these gaps?

9) Powers of labour inspectorate and inspectoral discretion

A. Which legislation affords the powers to inspectors?

B. What are inspectors empowered to do?

C. What are the monetary or non-monetary penalties that can be imposed as a result of inspectors actions?

1) Administrative penalties

2) Criminal penalties

3) Revocation of permits, licenses, certifications, other privileges

D. What other enforcement measures are available to inspectors to ensure compliance with legislation? E.g., verbal and written advice, notices, withdrawal of licence etc.

E. Is information, guidance and/or advice provided to employers and workers? How? Please provide detail. (E.g., during inspection visits, awareness raising campaigns, via the internet etc.)

F. What would be the minimum and maximum time between the detection of the non-compliance with legislation to the imposition of the penalty?

1) Administrative penalties

2) Criminal penalties

3) Revocation of permits, licenses, certifications, other privileges

G. What are the inspection procedures from the initiation of an inspection, the identification of non-compliance or suspected non-compliance to the imposition of penalties?

H. Is there guidance available to inspectors to assist/guide their decision making with regards to enforcement?

I. What percentage of monetary sanctions are paid as required? How has this percentage evolved over the last 5 years?

How to apply

All interested individual consultants must submit the following documents/information by COB 15thApril, 2021 to [email protected]

• Technical Proposal explaining their suitability to undertake the assignment

• Time frame (estimated 60 work days spread over maximum period of two and a half months)

• Financial Proposal (separate from Technical Proposal)

• Personal CV including, past relevant experience in similar activities and three traceable references

The proposal 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

Daresalam, Tanzania.

All applications should be clearly marked “Promoting Labour Inspection compliance in the apparel and tea sectors.”

NOTE: Only shortlisted candidates will be contacted.

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