Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

1. In its previous comments, the Committee noted the observations made by the Unique Workers' Central (CUT) of Brazil concerning the payment of wages to certain Brazilian workers engaged in civil construction in Argentina, in relation to the application of Article 12, paragraph 1, of the Convention (regular payment of wages). The Committee notes the detailed information supplied by the Government on this subject. It also notes that the CUT withdrew its observations in a communication to the ILO Brazil Office dated 30 May 1994 in view of the improvements in the conditions of employment in the civil construction sector resulting from the joint activities of the Brazilian and Argentinian trade unions and the Brazilian Ministry of Labour.

2. The Committee also noted in its previous comments the observations made by the Congress of Argentinian Workers (CTA) relating to Decrees Nos. 1477/89 and 1478/89 respecting benefits to improve the nutrition of the worker and his family, as well as Decree No. 333/93 enumerating the benefits that do not have the character of remuneration.

The Government states in its report that the above decrees are intended to improve the living standards of workers and their family while maintaining their remuneration unchanged. The level of the benefit could have been determined as a function of any other parameter than a percentage of the wage. Remuneration and benefits are two legally separate items: benefits do not correspond to the service provided and are related to the family situation of the worker. Moreover, they are of a non-obligatory nature for employers.

The Committee notes these indications. It notes that by virtue of Decree No. 1477/89, employers are encouraged to establish this system of benefits in exchange for a reduction in the social contributions that they have to pay. It also notes that section 1 of both Decrees No. 1477/89 and No. 333/93 state that benefits intended to improve the nutrition of workers and their families do not constitute remuneration for the purposes of labour law, social security law "or for any other purpose". However, it notes that: (i) section 1 of Decree No. 1477 applies in cases of a subordinate relationship between an employer and the staff; (ii) the rate of the benefit differs according to whether or not the worker is covered by a collective labour agreement; and (iii) there is no reference in any of the provisions of the above texts to the family situation of the worker (single, married with or without children) and that, in contrast, the amount of the benefit is indexed to the wage.

From the above, the Committee believes that it can be concluded that there is a connection between the benefits designed to improve the nutrition of workers and their families and the work performed or service provided by virtue of a contract of employment. These "benefits", however they are termed (bonuses, supplementary benefits, etc.), constitute components of remuneration in the sense of Article 1 of the Convention. They therefore have to be subject to the measures set out in Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 of the Convention. The Committee notes in this respect that the protection envisaged under Article 7 of the Convention is provided in law by Decree No. 1478 above.

The Committee requests the Government to indicate the measures which have been taken or are envisaged to ensure that the benefits provided by virtue of Decrees Nos. 1477/89 and 1478/89 are covered by the protection established in Chapter IV of Title IV of the conditions respecting the contract of employment.

3. The Committee also noted the CTA's allegations that, two years after the adoption of Act No. 23-982 respecting the consolidation of the monetary debts of the State up to 1 April 1991 after administrative or judicial recognition, no certificate has been issued recognizing that the debt was incurred. The Committee notes that the Government refers to Decree No. 1639/93 of 4 August 1993, which is intended to speed up the procedures for the settlement of consolidated debt recognized by the courts. It requests the Government to indicate whether the debt to which it refers in the above Decree also includes the wage arrears owed to workers in the public sector.

4. Since its last session, the Committee has further received observations from the Union of United Maritime Workers (SOMU), the Confederation of Educational Workers (CTERA) and the Union of Educational Workers of Rio Negro.

With regard to the SOMU's observations, the Government refers to its reply in Case No. 1684 submitted to the Committee on Freedom of Association, which relates, among other matters, to Decree No. 817/92 referred to by the SOMU. The Committee notes that Case No. 1684 concerns the legislative provisions adopted respecting the renegotiation of collective agreements which are in force. It notes that the SOMU's comments also refer to many other problems, including the deferred payment and non-payment of wages, which are not being examined by the Committee on Freedom of Association. The Committee requests the Government to provide information on the application in practice of the Convention in the maritime sector, particularly with regard to the payment of wages at regular intervals and cases of the non-payment of wages.

The observations of the two organizations of educational workers refer to the deferred payment of wages which are due. The Committee requests the Government to supply information on this point in the light of the provisions of Article 12, paragraph 1, of the Convention (regular payment of wages).

5. The Committee hopes that the Government will provide information on the application of the Convention, in accordance with Article 16 of the Convention, including information on any difficulties encountered.