GAZETTE NOTICE NO. 4246

IT IS notified for the general information of the public that the Cabinet Secretary for Labour and Social Protection, the Secretary General of the Central Organisation of Trade Unions and the Executive Director and Chief Executive Officer of the Federation of Kenya Employers have entered into a memorandum of understanding, set out in the Schedule, for the purpose of facilitating the monitoring of the impacts of the Covid-19 pandemic on jobs and the workplace and offering solutions thereon on the basis of social dialogue, consultation, co-operation, negotiations in good faith and support of workers and employers during the Covid-19 crisis in accordance with Article 41 of the Constitution and the relevant provisions of the Employment Act, 2007, the Labour Relations Act, 2007, and the Employment and Labour Relations Court Act, 2011. SCHEDULE MEMORANDUM OF UNDERSTANDING BETWEEN THE TRIPARTITE SOCIAL PARTNERS — MINISTRY OF LABOUR AND SOCIAL PROTECTION, CENTRAL ORGANISATION OF TRADE UNIONS (COTU (K)) AND FEDERATION OF KENYA EMPLOYERS (FKE) Preamble The Ministry of Labour and Social protection, the Federation of Kenya Employers (FKE) and the Central Organisation of Trade Unions (COTU (K)), have met together in free heart and voluntary association and: 1. Following the outbreak of COVID-19, which was declared as a pandemic by the World Health Organisation (WHO), and the unprecedented danger it poses to all the Social Partners and the population at large; 2. Following the deliberations on the proposals of the Social Partners presented by the Tripartite Rapid Response Team on the 27th April, 2020, convened under the chairmanship of the Cabinet Secretary for Labour and Social Protection; 3. Considering the provisions of the International Labour Standards (ILS) which provide guidance in ensuring decent work in the context of crisis response, such as COVID-19 outbreak; and 4. Recognizing the importance of social dialogue, consultations and co-operation in good faith, and the need to be supportive of both workers and employers in order to mitigate the impact of the coronavirus pandemic in the labour sector; It is agreed as follows: Terms of the Memorandum of Understanding (MOU) 1. Reporting — All reports on person affected by COVID-19 pandemic at the workplace shall have data disaggregated on the basis of gender, age and migration status. The affected persons include workers who are infected with COVID-19; taking care of COVID-19 patient family member; and quarantined due to COVID-19. 2. Data Collection — Co-operation of all labour and employment sector stakeholders is expected in the nation-wide data-collection exercise in conducting an employment impact assessment of COVID- 19 to facilitate provision of guidance and support to workers and employers to enable them mitigate the pandemic. 3. Social Dialogue — Social Partners at the tripartite level are committed to ensuring harmonious labour relations in the country through social dialogue during the COVID-19 pandemic. (a) Employers and employees may agree on the terms and conditions of work-from-home arrangements, where possible. (b) Employers and workers are encouraged to rely on the existing mechanisms for social dialogue in building resilience and making commitment to painful but necessary measures aimed at mitigating the effects of COVID-19. (c) These measures may include, but are not limited to — (i) suspension of negotiation of Collective Bargaining Agreements (CBAs); (ii) suspension of implementation of concluded CBAs whose effective date falls within the COVID-19 period; (iii) review of some terms negotiated in the existing CBAs; and (iv) freezing wage increments during the period of the pandemic. (d) Employers' and workers' organisations are encouraged to actively participate in planning, implementing and monitoring measures for recovery from COVID-19 pandemic. (e) Employers and workers' unions are expected to dialogue to ensure they are well-informed on the measures being undertaken to mitigate the COVID-19 effects which have an impact on their terms and conditions of employment, and on how to protect themselves from COVID-19 infections. 09 Mutually agreed terms and conditions of employment entered into during the pandemic period must be in writing and may be filed with the Labour Commissioner through the nearest labour office. (g) If, upon review of the CBA, the parties mutually agree to have employees work on alternate days, reduction of pay for the normal period of work or to proceed on unpaid leave for any duration of time, this shall not be construed to be a break in employment service of the employee. 4. Government Interventions — The Government is implementing fiscal and monetary stimulus measures aimed at stabilising livelihoods and incomes as well as safeguarding business continuity. To enhance economic stability, cushion the employers and protect workers, the minimum wage levels will be retained as per Legal Notice 2, on the Regulation of Wagers (General) (Amendment) Order, 2018. 5. Safety and Health at the Workplace — To minimise the risk of infection and spread of COVID-19 infections at the workplace— (a) Employers shall provide adequate protective clothing and protective equipment, at no cost to the worker. (b) Employers, in partnership with the Director of Occupational Health and Safety, shall provide adequate information and training on safety and health. (c) Employers and workers shall adhere to safety and health regulations issued by the government including COVID-19 guidelines and comply with the prescribed safety measures, taking reasonable care for the safety of others (not exposing others to the risks of infections) and use safety devices and protective clothing and protective equipment correctly. (d) Workers shall report to their supervisors any suspicion of their colleagues exhibiting COVID-19 symptoms. Employers shall refer any such reported cases of infected workers to the Ministry of Health or the nearest health care centre as per the Ministry of Health guidelines. Towards protection of health workers, the government shall take the necessary steps to ensure the workers are not exposed to the pandemic, which includes provision and use of adequate protective clothing, provision of accommodation to avoid transmission of the virus to the workers' families, temporarily removal of infected workers from their place of work to allow recuperation, provision of frequent rest breaks and shorter working hours. All workers in Kenya, including migrant workers, are expected to adhere to all the measures laid down by the Government of Kenya towards stopping the spread of COVID-19 with no exception. The Ministry of Labour and Social Protection, in collaboration with Social Partners, will develop and implement Employee Assistance and Wellness Programmes, including programmes for support on psychosocial issues. Sick leave for persons who have contracted the coronavirus disease will be granted as per the provisions of the Employment Act, 207, employee's terms and conditions of employment and Human Resource Policy at the enterprise. Frontline workers in all sectors of the economy shall be sensitised on staying safe by their employers through information from the Ministry of Health as they serve the public. (k) Workers who are affected or infected or recovered from COVID- I 9, both Kenyans and foreigners, shall not be discriminated against at workplace. However, full disclosure and reporting of infected persons as per Ministry of health guidelines is necessary to avoid and minimise the risk of infection and spread of the coronavirus. 6. Migrant Workers — Migrant workers holding any type of work permit classified from A to M inclusive issued under the Kenya Citizenship and Immigration Act, 2011, for the purpose of regular employment, who lose their jobs as a result of COVID-19 effects, shall maintain the authorisation or residence or work permit for the stipulated time period with no changes in their migration status. This is extended to their children and spouses if eligible in the previous work permit. IN WITNESS THEREOF the parties to this Memorandum of Understanding (MOU), through their duly authorised representatives, have executed this MOU on the 30th April, 2020. SIMON K. CHELUGUI, Cabinet Secretary, Ministry of Labour and Social Protection on behalf of Government. FRANCIS ATWOLI, The Secretary-General, Central Organisation of Trade Unions (K) on behalf of Workers. JACQUELINE MUGO, Executive Director/CEO, Federation of Kenya Employers on behalf of Employers. Dated the 2nd June, 2020. SIMON K. CHELUGUI, Cabinet Secretary for Labour and Social Protection.