Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s detailed report and the information provided in reply to its previous comments.

Article 1 of the Convention. The Committee notes the Government’s indication that the system of minimum wages is no longer regulated by the Wages Act of 1957 which has been repealed by the Basic Conditions of Employment Act (BCEA) No. 75 of 1997, as last amended in 2002. The Government states that the BCEA does not itself lay down minimum wage rates but provides for the establishment of sectoral determinations by the Minister of Labour which lay down minimum wages for those sectors which are deemed to be vulnerable. In fact, under section 55(4) of the BCEA, the Minister of Labour, upon considering the recommendations of the Employment Conditions Commission, is empowered to make a sectoral determination setting, in respect of the sector or area concerned, minimum terms and conditions of employment, including minimum rates of remuneration, or providing for the adjustment of minimum rates of remuneration. The Committee further notes that the scope of application of the BCEA has been extended to cover domestic and agricultural workers who, prior to 1997, were excluded from the provisions of most labour laws, and that consequently sectoral determinations setting minimum wages for those workers were promulgated and came into effect on 1 September and 31 December 2002, respectively.

Article 2. The Committee notes that, according to the Government’s report, sectoral determinations are currently in place for nine low-paid and largely unorganized sectors, i.e. clothing and knitting, civil engineering, private security, wholesale and retail, domestic work, agriculture, learnerships and contract cleaning, whereas in six other sectors which are deemed to be vulnerable, namely hospitality, sheltered employment, taxi, forestry, children in the performing arts and fishing/maritime, investigations are currently being conducted with a view to making sectoral determinations. The Committee recalls that, in accordance with the provisions of the Convention, the opinion of the employers and workers concerned should be sought on all questions concerning minimum wage fixing and that consultation should first relate to preliminary questions including the determination of the trades or parts of trades, undertakings, occupations or categories of persons to which the minimum wage fixing machinery should be applied. While noting that, under sections 52(4) and 53(1) of the BCEA, the Minister of Labour or the Director-General of Labour are not under an obligation to consult the employers’ and workers’ representatives before deciding that a specific sector should be investigated for the purpose of making a sectoral determination unless an organization in that sector makes a written request to this effect, the Committee asks the Government to specify how it is ensured in law and practice that the social partners are fully consulted on the selection of the trades to be considered for minimum wage determination.

Article 3, paragraph 2(1) and (2). With reference to its previous comments concerning the equal representation of the employers and workers concerned in the operation of the minimum wage fixing machinery, the Committee notes that under sections 54(4) and 60(2) of the BCEA, the Employment Conditions Commission, which is responsible for advising the Minister of Labour on the publication of a sectoral determination, is composed of five members, including one member representing organized labour and one member representing organized business. The Committee also notes the Government’s statement that before making a sectoral determination the Department of Labour is engaged in a process of extensive public participation by consulting both employers’ and workers’ organizations, by receiving written representations from interested or affected persons and also by conducting public hearings nationally, bilateral meetings and workshops with all the stakeholders concerned.

Article 3, paragraph 2(3). The Committee notes that under section 56(3) and (4) of the BCEA, the Minister of Labour may cancel or suspend any provision of a sectoral determination provided that before publishing a notice of cancellation or suspension the Minister must, by notice in the Gazette, announce its intention to do so and allow an opportunity for public comment. The Committee is bound to observe, in this respect, that this provision is contrary to the principle of the binding force of minimum wages and also inconsistent with the requirement of the Convention for full consultation and direct participation of the employers and workers concerned at all stages of the process for determining, reviewing or adjusting minimum wages. The Committee requests therefore the Government to take the necessary action in the very near future to bring its legislation into conformity with the relevant provisions of the Convention. The Committee also asks the Government to indicate whether the Minister of Labour has so far made use of this discretionary power by cancelling or suspending, either in part or in whole, any of the sectoral minimum wages.

Article 4. The Committee notes the Government’s indication that the enforcement of the provisions of the BCEA regarding conditions of employment and minimum wages is entrusted to the Inspections and Enforcement Unit (IES) of the Department of Labour which is housed in the various provincial and regional offices of the Department and is headed by a chief inspector. It also notes the provisions of Schedule Two of the BCEA which sets out the maximum permissible fines that may be imposed for failure to comply with the Act involving an underpayment. The Committee further notes the Government’s statement that once a sectoral determination has been promulgated, the Department of Labour embarks on a process of public education to raise awareness among the stakeholders about its provisions. The Committee would be grateful to the Government for continuing to provide information on all aspects of the supervision and enforcement of minimum wages, including the measures to ensure the provision of information to workers concerning not only the rates of minimum wages but also in general the rights concerning such wages.

Article 5 and Part V of the report form. The Committee notes the statistical information on the estimated number of employees and the minimum monthly and hourly wage rates applicable in each of the nine vulnerable sectors for which sectoral determinations have so far been established. The Committee requests the Government to continue to supply up-to-date information on the effect given to the Convention in practice, including the minimum rates of pay in force by sector and occupational category, the approximate number of workers covered by relevant legislation, statistics on labour inspection visits and the results obtained in matters of minimum wages as well as any other particulars bearing on the functioning of the minimum wage fixing machinery.