Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 2 and 3 of the Convention. Scope of minimum wage fixing machinery and consultation of employers and workers. The Committee recalls its previous comments in which it pointed out that the Government is under the obligation to fully consult its social partners at all stages of the minimum wage fixing process, including the determination of the trades or parts of the trades to which the minimum wage fixing machinery is to be applied, and not only with respect to setting an appropriate minimum wage level when the Minister of Labour considers it expedient to fix the minimum wage of a group of wage earners, as provided for in section 54(1) of the new Employment Act No. 6 of 2000. The Committee also raised the question of the absence of a permanent consultative body, such as the Wages Advisory Council or the Wages Advisory Board, under the Employment Act of 2000 and further noted the longer intervals introduced by the new legislation for the periodic review and adjustment of minimum wage levels. The Committee notes the Government’s reply that despite the absence of a formal tripartite structure, consultations are still undertaken in practice, with the last review having been undertaken in June 2007 and another one planned for September 2009. The Government adds that the minimum wage rates set by the Minister upon consultation with employers’ and workers’ organizations apply to all sectors of the economy unless better wages are agreed upon through collective bargaining. The Government further indicates that that the Employment Act of 2000 is currently under review and a proposal has been made for a tripartite labour advisory council to undertake investigations and recommend appropriate minimum wages to the Minister whenever need arises to review wages. While noting the Government’s explanations, the Committee wishes to emphasize that the obligation to associate the social partners – in equal numbers and on equal terms – in the operation of the minimum wage fixing machinery is a core requirement of the Convention and preferably calls for the setting up of a institutionalized consultative framework. It therefore requests the Government to take at the first suitable occasion the necessary steps so as to align the national legislation with practice. The Committee would also appreciate if the Government would provide up to date information on the revision process of the Employment Act and in particular the possibility of periodic wage surveys carried out by the Labour Advisory Council.

Article 4. Publicizing the minimum wage, supervision and sanctions. The Committee notes that once the minimum rates of wages are agreed, they are published in the Official Gazette. In addition, labours offices may inform employers and workers through circulars and also in the course of regular inspection activities. The Committee also notes the Government’s indication that inspection results are not available due to lack of capacity and data-collection problems while a functional review of the Ministry of Labour has recently recommended the establishment of an Inspectorate Unit which is now awaiting approval. The Committee requests the Government to continue to supply information on any further developments regarding the strengthening of supervision and enforcement of the minimum wage legislation.

Article 5 and Part V of the report form. The Committee understands that the urban and rural minimum wage rates were last revised in 2007 and currently stand at 97 Malawi kwachas (MWK) (approximately US$0.71) and MWK 74 (approximately US$0.54) per day respectively. The Committee hopes that the Government will make every effort to collect and transmit in its next report concrete information on the practical application of the Convention, including the approximate number of workers covered by the relevant legislation, collectively agreed minimum wage rates in force, extracts from reports of the inspection services showing the number of infringements observed and penalties imposed, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Conventions Nos 26 and 99 are among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.