Only under two months ago it was business as usual in Kenya as in most countries across the world. The same cannot be said today with a new strain of corona virus(COVID-19) shaking not only the strongest economies and healthcare systems but ultimately threatening to shut the world down. We are today witnessing unprecedented deaths and ever-rising numbers of new infections. At the time of writing this, the total number of infections globally were more than 700 000 with more than 33 000 people having succumbed to the disease. While the virus started and has caused a humanitarian crisis in China, Italy remains the worst hit with more than 97 000 reported infections and at least 10 000 deaths. Globally, these numbers change rapidly every day and as this happens, governments are stepping up their response mechanisms in a bid to heighten the control of the spread of the virus, manage the existing infections and consequently lessen the burden on the crumbling healthcare systems. Inevitably, a third of the world is now in total lockdown to limit the movement of people and therefore the rapid spread of the virus. Kenya has reported 42 infections as of 29th March 2020, with one of the cases reported to have fully recovered from the infection and one having succumbed. The government of Kenya has further announced the enforcement of a dusk to dawn curfew from Friday 27th March. Both the pandemic and response measures being implemented in the country have created social and economic disruptions that threaten the livelihoods and wellbeing of thousands of people and their communities.
As this happens, the world of work is being profoundly affected by the global virus pandemic. Many businesses, big and small, have taken a beating from the pandemic and have been forced to close down. In Kenya, every sector of the economy is already reeling from the effects of the pandemic: from boda boda riders who can no longer operate normally in the face of COVID-19 to the matatu operators who are not only required to provide hand and surface sanitizers in their vehicles but also drastically reduce the number of passengers in adherence to the one-meter social distance rule, from the duka in your neighbourhood to the local grocery market that now faces imminent closure until the pandemic is contained.
Even the big flower farm that employs hundreds of workers is not spared. Flower growing companies can no longer export flowers to European countries following the lockdowns that have seen the closure of most EU markets where Kenya sells almost 75% of its flowers. The collapse of the Dutch auction has further exacerbated the situation for Kenya’s flower export business. Generally, Kenya’s fresh export business has taken a huge beating following the emergence of COVID-19 with last-minute flight cancellations that have left growers with no choice but to dispose of flowers and other fresh produce worth millions of shillings, daily.
As a result, more than 30 000 temporary workers in the flower sector have already been sent home with 40 000 permanent workers sent on paid leave. We are likely to witness more layoffs and wage cuts if the pandemic is not controlled soon enough. The Kenya Flower Council has expressed fears that should the situation continue, the flower industry faces looming collapse. For a sector that has over the years contributed hugely to the country’s gross domestic product (GDP), a collapse would have far-reaching implications not just on the country’s GDP but on the thousands of people who depend on it either directly or indirectly. Last year alone, the flower industry contributed Kshs. 120 billion to the country’s GDP. It is estimated that more than 100 000 workers are employed directly in the sector and that more than 2 million people depend on the sector indirectly.
This perilous economic situation currently experienced in the flower sector is a replica of many other sectors, both in the private and public spheres. The transport sector has been hard hit with companies like the Kenya Airways (KQ) resorting to huge salary cuts for workers including sending some on compulsory annual leave. The Chief Executive Officer of Kenya Airways recently took an 80 per cent pay cut and imposed a 25%-50% pay cut for other KQ employees depending on their job grade. This scenario replayed itself when President Uhuru Kenyatta announced on 25th March 2020, that he, together with his deputy, would also be taking an 80% pay cut. However, beyond salary cuts, it is important that Kenyans be told where the funds will be channelled and who will be responsible for managing and accounting for them. No doubt, the measures around pay cuts and the many others taken before only go to show how dire the situation is.
Everyone faces difficult moral choices in the face of this pandemic but they are hardest for workers in precarious employment-those on casual, temporary or seasonal contracts, self-employed and unregulated, informal sectors of the economy. Long before the onset of COVID-19, workers engaged in precarious employment were already subjected to serious decent work deficits including but not limited to low wages, perpetual casualization of labour, absence of paid maternity, sick and annual leaves, lack of affordable healthcare, insecure employment and absence of other fringe benefits that come with stable employment contracts. These workers live, in a literal sense, from hand-to-mouth which means a day out of work simply translates to a day without a meal. A majority of them live in informal settlements where basic sanitation is a major challenge. Without underestimating the importance of adherence to the stay-at-home directive, it is not enough to say that the challenges posed by this directive are as ravaging to these workers as the threat of going out there and contracting the virus. People’s economic concerns influence to a great deal their response to risks, including risks posed by the disease. Daily wage earners face a stark choice when asked to stay at home or to self-isolate for more than a couple of days. It must be borne in mind that workers in precarious employment, just like the unemployed, can hardly afford hospital bills for themselves and their families. They may hesitate to seek treatment until they are seriously ill, which eventually exacerbates the strain on the healthcare system and may accelerate the spread of the virus. It is for this reason, particularly, that the decisions and measures taken should have special consideration for these categories of workers, as well as the unemployed and other marginalized groups including the elderly.
We welcome the different measures initiated by the President, Ministry of Health, Ministry of Labour among other agencies that are geared towards support and prevention. However, efforts by the government and business, to prevent the negative impacts of infectious diseases like COVID-19 must consider the economic well-being and security of individuals and families. The COVID-19 outbreak has exposed major implementation deficits as regards social-economic rights provided in the Constitution.
In addition to this, it is critical for the actors involved to remember that even in the wake of Covid19, the law on redundancy is still in force and therefore no worker should be declared redundant without employers following the provisions outlined in Section 40 of the Employment Act. The Act requires, in part, that an employer, in declaring workers redundant, shall, 1) notify the employees one month ahead of the intended action or alternatively, pay one month’s salary in lieu of notice, 2) notify the employee in writing and the labour officer, and where the employee is a member of a trade union, notify the union and the labour officer, 3) consider seniority in time and pay due regard to skill, ability and reliability of the worker, 4) pay off any leave days due to an employee, and 5) pay severance pay to the employee at the rate of not less than fifteen days’ pay for every completed year of service. We call upon employers to act within the law and in good faith and where possible, consider recalling the workers back to employment once the situation is contained.
Similarly, we cannot overstress that there are other existing labour laws that provide protective measures in the event of the illness of a worker. The Regulation of Wages and Conditions of Employment [General] Order, for instance, provides 30 days of sick leave with full pay and 15 days sick leave with half pay. Workers who may contract the virus have to be treated fairly within the ambit of the existing laws. Where possible, we encourage employers to consider the provisions of labour and other related laws to be bare minimum provisions and therefore, where possible, improve and contextualize their individual responses accordingly.
Further, we note that there are many sectors that may require more safety precautions to avoid putting workers in harm’s way. Those in the health and other essential service sectors require enhanced protection from exposure to the virus. It cannot be overemphasized that the obligation to provide workers exposed to wet, injurious and offensive substances with personal protective equipment (PPE) lies with the employer in accordance to Section 101 of the Occupational Safety & Health Act of 2007.
We also take cognizance of the policy response by the Ministry of Labour on the COVID-19 situation and the far-reaching recommendations made which include: suspension of negotiation of Collective Bargaining Agreements (CBAs), freezing wage increments in the next 12 months, sending workers on annual leave and unpaid leave as stop-gap measures, creation of mechanisms that allow workers to work from home, work in shifts and leverage on the use of technology.
Further, the Ministry directed that workers, employers and their representatives engage in discussions on the possible temporary review of salaries and wages. Workers and their employers are asked to embrace social dialogue and embrace Alternative Dispute Resolution (ADR) frameworks and extension of social security to protect workers.
We particularly welcome the proposal to consider a future employment insurance fund to cushion workers who lose their jobs through calamity situations such as the one we are currently facing as a country. This resonates with thinking that is already happening around the world. Just one week ago, more than 500 political figures and academics from around the world called, in an open letter, for an emergency Universal Basic Income (UBI). A UBI has been defined as a guaranteed, no strings attached, recurring payment to every member of the society, sized to meet basic needs. This kind of income would not only cushion the most precarious workers from financial anxiety but it would also alleviate the strain on businesses resulting from such a pandemic as COVID-19.
We also welcome the clarification by the Ministry that unpaid leave will only be taken based on mutual agreement between the employer and employee. Employers must, therefore, desist from unilateral and whimsical decisions to push employees to go on unpaid leave.
However, we consider the blanket suspension of negotiation of all new Collective Bargaining Agreements (CBAs) for a period of 12 months not only ill-informed but also poorly thought out. The assumption by the Ministry that negotiation processes will further strain the situation is misguided considering that CBA processes are not all about wage negotiations. There are important resolutions that could be reached, through the negotiation of CBAs, with regard to mitigating the COVID-19 situation to both employers and employees. Sectors and industries should, therefore, be at liberty to customize their responses to the outbreak. Social dialogue must not be curtailed even as we seek to contain the pandemic.
Further, the call by the Ministry to workers and employers, including their representatives, to engage in discussions on the possible temporary review of salaries and wages in the COVID-19 pandemic phase would be welcome only to the extent that it was reasonable. However, it fails to recognize how grossly underpaid most of the workers are. The current minimum wage for unskilled workers in the agricultural industry, for instance, is Kshs. 6 736 and it is therefore unimaginable that this wage could be scaled down further. On this note, however, we laud President Uhuru Kenyatta for the 100% tax relief for persons earning a gross monthly income of up to Kshs. 24 000. We believe this will go a long way in alleviating some of the anxiety that emanates from taking home a low pay especially in these difficult times.
We recommend that the Ministry of Labour should consider an expansion of the Inua Jamii Cash Transfer Programmes which currently comprise cash transfer programmes for older persons, orphans and vulnerable children and persons with severe disabilities to include workers in precarious employment including those in the informal sector and unemployed persons. Such a programme for workers should be designed to cushion them from financial anxiety in the event of job loss considering that their wages are too low to allow for discretionary expenditure. For the unemployed, it would be a guaranteed monthly safety net which allows them to at least meet their basic needs. Overall, the programme would go a long way in mitigating against the effects of calamities and pandemics such as COVID-19.
Lastly, it is not lost to us that amidst the turmoil and disruption that inevitably results in times of crisis such as the one we currently find ourselves, there is usually a tendency to compromise on human rights. We urge the government and businesses to ensure careful attention to human rights in their management of the COVID-19 crisis. Article 19 (1) (2) of the Constitution declares that “The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings”. We, therefore, urge that respect for human dignity remain at the heart of all responses.