Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 6, 8 and 9 of the Convention. Freedom of the workers to dispose of their wages – Deductions from wages. The Committee notes the information contained in the Government’s report regarding the obligation for certain officials to take out an insurance policy (póliza de fidelidad) designed to ensure that they duly fulfil their obligations. It notes that a total of 1,313 public servants are subject to this obligation and notes the Government’s indications regarding the legal basis thereof. The Committee also notes the decision handed down by the Constitutional Chamber of the Supreme Court on 26 June 2008 further to the appeal lodged by the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN), which refers in particular to Articles 8 and 9 of the Convention and to the 2003 General Survey on protection of wages. In its decision, the Constitutional Chamber notes that the Convention does not contain any definition of the term “deductions from wages” and does not list the types of deduction that are authorized, merely prohibiting those made with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment made by a worker to an employer or his or her representative or to any intermediary. As the Committee emphasized in the aforementioned General Survey (paragraph 222), “Member States therefore enjoy full freedom … when regulating the types of permissible deductions through legislation”.

In the light of the information supplied by the Government, the Committee recognizes that the obligation on certain public officials to take out an insurance policy as referred to above was established in the public interest, namely to ensure the proper management of public funds. This cannot be considered equivalent to the deductions prohibited by Article 9 of the Convention. The Committee wonders, however, about the potentially large sums that the officials concerned may be required to pay under this obligation to take out insurance. It recalls in this regard that Article 8 of the Convention provides that deductions from wages shall be permitted only under conditions and within the limits prescribed by national laws or regulations or fixed by collective agreement or arbitration award. Furthermore, Paragraph 1 of the Protection of Wages Recommendation, 1949 (No. 85), indicates that “all necessary measures should be taken to limit deductions from wages to the extent deemed to be necessary to safeguard the maintenance of the worker and his family”. In this regard, the Committee notes that, in the abovementioned decision, the Constitutional Chamber considered that the regulations concerning the obligation to take out insurance do not authorize the administration to make deductions from wages and that it is the worker himself or herself who pays the due amount directly. Although it is true that the obligation to take out insurance that has been the subject of comments from SITRAHSAN does not constitute a deduction from wages in the strict sense of the term, in practice the situation is identical for the workers concerned, in as much as part of their wages has to cover the payment of the compulsory guarantee. Moreover, the Constitutional Chamber has recognized this, since it devoted substantial parts of its decision to Articles 8 and 9 of the Convention. It would therefore be contrary to the spirit of the Convention to consider that, since the payment of the compulsory guarantee is made directly by the worker, it is not subject to the limits which Article 8 of the Convention prescribes. It is the Committee’s understanding in this regard that the amounts owed by public servants who are subject to this obligation may amount to as much as several months’ wages. The Committee therefore requests the Government to provide further information on the limits set by the national legislation with regard to the payments due in relation to this guarantee. The Committee requests the Government to provide detailed statistics on the amounts due in this regard from the officials concerned and on the proportion of such amounts in relation to their wages.

Articles 3 and 4. Payment of wages in legal tender and value attributed to allowances in kind. The Committee notes that the Government has requested technical assistance from the Office with regard to the draft amendment to sections 165 and 166 of the Labour Code. The Committee hopes that the Office will be in a position to provide this assistance in the near future in order to facilitate bringing the national legislation into conformity with the Convention on this point. It requests the Government to supply information on any new developments in the process of adoption of these amendments.

Articles 8 and 12. Deductions from wages and payment of wages at regular intervals. The Committee requests the Government to provide information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of recorded infringements of the provisions of the Labour Code concerning protection of wages, and on the steps taken to deal with such infringements, particularly concerning unjustified deductions from wages and the delayed payment of wages in certain enterprises, as referred to in its previous comments.