Analysis Of Working And Living Conditions Of Workers In The Transport Sector In Kenya By George Owidhi - December, 2016

CENTRAL ORGANIZATION OF TRADE UNIONS, KENYA

DECEMBER 2016

1. INTRODUCTION AND BACKGROUND

1.1  Overview of Working Conditions in the Transport Industry

The employment Act (2007) and the Constitution of Kenya (2010) Article 41 guarantee every worker fair labour practices and reasonable working conditions while Article 43 of the constitution confers workers social and economic security (Republic of Kenya, 2010).

Despite the existence of these institutional and legal frameworks govern employment conditions; the transport sector in Kenya continues to display major decent work gaps that exist, denying the workers the full benefits of the ILO Decent work agenda. These deficits are in relation to deficits in the quality of work; limited protection of rights; limited access to social dialogue as well as lack of social protection.

Some of the challenges in the Kenya Transport sector include the large informal sector (about 80 per cent); franchising especially in Saccos which causes individual investors to work under targets; manipulation of the sector by gangs that control several fleets of vehicles that operate in different routes; high levels of corruption by traffic police officers; high road carnages as well as outsourcing of employees and job contracting. These notwithstanding, several cases of harassment and intimidation by County Askaries are rampant as well as infightings among the transport operators themselves especially the matatu operators.

Some of the emerging concerns include the Bodaboda operators that are still unregulated as well as the increased uptake of technology in the sector. A case at hand is the introduction of the US Uber online technology which does not have an employer-employee relationship.

It is on the basis of these challenges that this paper sought to study the working and living conditions of the workers in this sector. The main driver of the paper is to find out the decent work deficits and their impact on the welfare of the workers. The study further makes recommendations aimed at improving the working and living conditions of the workers in the transport sector in Kenya. 

1.2 Methodology

The study is based on both primary and secondary data. For secondary analysis, we review research work on the living and working conditions in the transport sector as well as a review of 21 Collective Bargaining Agreements (CBAs) randomly selected from the transport sub-sectors including the airlines, General Transport – Cargo,  Tours and Travel, courier, Shipping & Freight, Petrol Service Stations and Public Transport (PSV) for the year 2015 and the first three quarters of 2016. On the other hand, we carried out focus group discussions with the trade unions officials that operate in the transport sector especially the Transport and Allied Workers Union (TAWU) as well as 20 matatu operators. The limitation of the study is the extensiveness and informality of the sector, posing sampling and logistical challenges. 

1.3 Outline of the Report

This report is structured in four sections as follows: Section one introduces the General Working Conditions in the Transport sector in Kenya, focusing on the challenges, and the methodology. Section two discusses Transport Sector, focusing on Kenya’s context and the legislative framework surrounding the transport Sector. In Section three, the working and living conditions of workers are presented while section four concludes the report, making possible policy recommendations.

2. OVERVIEW OF THE TRANSPORT SECTOR IN KENYA

Transport is a crucial driver of socio and economic development. Investment in this sector is therefore important as an engine for achieving the Kenya Vision 2030 and the Global 2030 Sustainable Development Goals (SDGs).

2.1  A Brief Overview of the Transport Sector in Kenya

Statistics indicate the Transport sector growth in percentages were as follows: -5.9%, 14.5%, 4.4%, 3.3%, 4.6% and 7.1% from year 2010 to 2015 respectively. Road and Cargo sub-sectors have been on a steady growth rise due to increased public demand and business growth. Road subsector accounts for more than 50% of transport sector output. Railways and airlines have registered mixed growth fortunes at times registering declines due to Ebola epidemic which led to passenger flight cancellations to West Africa.

The number of road accidents were 9,771, 8,193, 6,917, 6205, 5,672 and 5,310 for year 2010 to 2015 respectively.

Wages requirements for the Transport sector are set by the general wages council. Employers get guidelines and set wages which are fairly above the set minimum while Part IV of Employment Act 2007 provides for protection of wages. The transport sector is prone to non-standardized forms of employment and outsourcing which influence job security greatly.

There is limited female participation in the transport sector due to the existing working conditions including time, timing and place of work and gender stereotyping.

Occupational Health and Safety Concerns in the Transport sector include risk of road accidents, physical hazards, violence, dangerous operational situations and exposure to harmful substances. Transport workers OSH concerns can have a direct impact on other road users and on overall traffic and public safety. HIV/AIDS is also a challenge especially for long distance truck drivers.

Long-haul road transport drivers and aviation workers also find it difficult to combine their work and family life because of irregular and split shifts involved in transport provision. Inadequate work life balance causes a big risk to workers wellbeing, their productivity as well as the organizational performance. Many employees have difficulty attempting to balance employment responsibilities with their social lives (Joyce Mumbi, 2013)

2.2  Labour Legislative Framework in Kenya’s Transport Sector

A cursory look at the legislations surrounding the transport sector reveals several legislations: The Employment Act 2007 defines fundamental rights, principles, terms and conditions of work guiding the relationship between employers and workers. Some provisions include appointment, hours of work, leave days, termination among others. Other Instruments include the Work Injury Benefits Act (2007) which provides for compensation of workers for injuries sustained in the course of duty. The Occupational Safety and Health Act (2007) also requires employers to have health and safety policies to protect workers against work-related injuries.

Other labour laws including the labour Relations Act 2007, Labour Institutions Act 2007 are also applicable in the Transport sector to enhance rights and obligations among social partners and foster social dialogue.

Other sector specific frameworks include The Road Transport Act (2013) which has established institutions and agencies to set standards, supervise and regulate the conduct of transport industry players. The Kenya Roads Board (KRB) is a government agency to ensure roads are well maintained. The National Transport and Safety Authority (NTSA) was established by an Act of parliament to ensure safety on the Kenyan Roads. The NTSA (Operations of Public service Vehicles Regulations, 2014) also requires PSV operators to operate as Saccos or companies so as to employ drivers and conductors on a permanent basis.

3. ANALYSIS OF THE CURRENT WORKING CONDITIONS AND THEIR IMPACT ON WORKERS

3.1   Wages and Minimum Wages

Out of the 21 CBAs analyzed, 86% have clauses on wages, which are set at company level. That 86% of employers also determine wages by pay scales and skill levels. 71% of the agreements also stipulate the lowest wage to be paid with 86% clearly indicating the minimum wage payable. However 57% of the employers do not expressly provide for adherence to the set minimum wage by the Government. This is a clear limitation as far as access to stable and quality income for the workers is concerned. 

3.2  Salary Increments

General wages order 2015 gave an increase of 12.5 per cent in salaries while in 2016, there was no salary increment. The study revealed that wage increases in this sector are structural with specified dates. 86% of the increase is a percentage of the regular wage and the rest (14%) is on percentage of official minimum wage. Most wage increments were 6% for 2015 and 8% for 2016.  The structural increment is not pegged on company performance as indicated by 71% response.

In all instances, there was no “Once-only extra payment”, but 14% of employers indicated to have an end of year bonus scheme for workers.

3.3  Working Hours

All the CBAs have clauses on standard working hours with 57% of workers working on 7.5 a day translating to 45 hours a week. 43% of workers worked on various hours being 48, 42 and 44 hours per week. It is noteworthy that some shift and night workers do 60 hours a week, while others go for a fortnight of 90 hours a week with 2 days break. Section 27 of the Employment Act 2007 allows the employer to regulate the working hours depending on the nature of the work so long as the employees are allowed one rest day in a period of 7 days. All the CBAs provide for one rest day a week as well as annual leave days which average at 26 working days after 12 months of continuous service.

3.4  Job Security

The study shows that all the employers give written contracts to workers with probationary periods and all employers also pay severance dues when employment ends. 84% of the workers are on 90 days probation with 14% on 60 days probation. All the CBAs had provisions for termination of contracts including summary dismissal in accordance with the Employment Act 2007.

3.5  Gender and Equality Issues

Only 14% of agreements give equal chance for promotion to women. 29% of the agreements mention violence at work as a cause for summary dismissal but there’s no direct reference to gender based violence.

The Employment Act 2007 Sec.6 provides for employers of 20 or more workers to have a policy on sexual harassment.

3.6  Health and Medical Assistance

86% of the employers have complied with Section 34 of the employment Act 2007, which states that, the employer should take reasonable steps to provide sufficient and proper medical attention to employees with 14% also allowing benefit to relatives. The medical coverage (outpatient, inpatient or both) ranges between Kshs. 22,000 (USD 220) to Kshs. 500,000 (USD 5000) per year. It is also worthy to note that most employers make compulsory prescribed contributions to the government National Health Insurance Fund (NHIF) which also covers family members.

Also revealed is that 57% of employers have a health and safety policy in place in line with Work Injury Benefits Act (WIBA) 2007 and the Occupational Safety and Health Act (OSHA) 2007.

The study shows all employers provide for sick leave with various durations and payments, ranging from 60 days to 120 Days. 71% of the employers grant full pay for the first 30 days and half pay for the next 30 days. A small percentage (5%) grant full pay for the first 60 days and half pay for the next 60 days. There is no menstrual leave provision by any employer.

The survey shows 43% of agreements having clauses on social security schemes they have established for their workers. It is also a statutory requirement of the NSSF Act for all employers to contribute to the Government pension scheme, the National Social Security Fund (NSSF) on a monthly basis on prescribed rates.

3.7  Work and Family Balance

The results show that all the employers grant female workers a fully paid maternity leave of 3 months (13 weeks) without forfeiture of annual leave or loss of employment. 29% of the agreements expressly prohibit discrimination due to maternity. 100% of male workers are entitled to 14 days paternity leave with full pay upon documentary proof. 43% of the contracts allow for time-offs for pregnancy related sicknesses.

However, none of the agreements provided for workplace health and safety measures prohibiting dangerous or unhealthy work for pregnant or nursing women. No employer also has provisions allowing breastfeeding and child care, subsidized facilities or education for children.

4. CONCLUSION AND RECOMMENDATIONS

This study has shown the gaps that hinder attainment of Decent work among the transport sector workers especially in the face of critical issues on gender, work and life balance, increasing job insecurity, social protection, health and safety of transport workers.  

In this regard, the study recommends the following:

  • Mainstreaming gender and women issues in CBAs. Employers should carter for pre-natal engagements; allow for breastfeeding and childcare breaks or facilities where applicable; promote gender equality in the work place; prohibit sexual harassment and gender base violence in the Transport sector as well as safeguarding pregnant and nursing women from undertaking risky jobs.
  •  There is need for close monitoring of industry players especially Saccos to ensure they comply with NTSA policy to engage drivers on permanent terms to foster job security;
  • Social security should be enhanced beyond the government managed National Social Security Fund – NSSF;
  • Need for social partners to find a tailored approach to address decent work deficits in the transport sector; social dialogue will ensure the sectors resilience and sustainability.
  • To adopt ILO Recommendation 161 of 1979 on “Hours of work and Rest” to promote work life balance so as to improve standards of living for transport workers. CBAs should put a cap on the maximum overtime hours.
  • The growing informality of the transport sector should as well be looked into to foster decent work.

REFERENCES

International Labour Organization (2015). Safety and Health Issues in the Road Transport Sector. Geneva

International Labour Organization (1979): Recommendation R161 – Hours of Work and Rest Periods (Road Transport).

Republic of Kenya (2005). “Wage Guidelines”. Nairobi: Ministry of Finance.

Republic of Kenya (2015). “Minimum wages (amendment) order 2015”. Nairobi. Ministry of Labour.

Republic. of Kenya : Vision 2030  Kenya Transport Sector Details.

Republic of Kenya (2010). The Constitution of Kenya, 2010. Nairobi: Government Printer.

Republic of Kenya (2010). Employment Act 2007. Nairobi: Government printer

Republic of Kenya (2010). Labour Relations Act 2007. Nairobi: Government printer.

Republic of Kenya (2010). Occupational Safety and Health Act 2007. Nairobi: Government printer

Republic of Kenya (2011-2016). Economic Surveys. Nairobi: Kenya National Bureau of Statistics

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Republic of Kenya (2010). Work Injury Benefits Act 2007. Nairobi: Government printer

Joyce Mumbi. (2013). “Work Life Balance Practices on Employee job Performance at ECO Bank” Kenya School of Human Resources Development. Jomo Kenyatta University of Agriculture and Technology. Unpublished.

Peter Turnbull (2013): Promoting Employment of Women in the Transport Sector – Obstacles and Policy Options Working Paper no 298. ILO. Geneva

Edwin Mukabana (2013). Justification for Road Transport Act 2013; Working Paper.