Observation (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes the report submitted by the Government.

Article 3, paragraph 2(2) and (3), of the Convention (in conjunction with point V of the report form).In its previous comments, as regards implementation of the recommendations adopted by the Governing Body subsequent to the complaint submitted by the Latin American Central of Workers (CLAT), the Committee requested the Government to indicate the measures taken or envisaged to ensure the application of the national legislation so as to guarantee: (i) the participation of representatives of workers and employers in minimum wage fixing machinery, in accordance with Article 3, paragraph 2(2); and (ii) the right to receive the minimum wage rates fixed, which may not be subject to abatement by individual agreement, in accordance with Article 3, paragraph 2(3).

In its reply, the Government states that the enterprise named in the representation has agreed to comply with the legislative provisions it violated. It has also been subjected to an administrative sanction in the form of a fine of 88,571,502 guaranis (about US$43,400) which it has appealed to have quashed. The matter is currently before the Constitutional Chamber of the Supreme Court of Justice. The Committee requests the Government to continue to provide information on developments in the affair and to send copies of any relevant decisions which may be handed down.

Furthermore, the Committee notes with interest Decrees Nos. 8542/95, 12459/96, 15245/96 and 16031/97 concerning the composition of the National Minimum Wage Council (CONASAM). It notes in particular that employers and workers are represented on an equal footing in this consultative body.

Article 4 (in conjunction with point V of the report form).In its previous comments, the Committee noted that section 259 of the Labour Code provides that "any worker who has received a wage lower than the established minimum is entitled to reclaim from his employer the amount remaining due. The labour administration shall establish a time period for the recovery of this amount, which may not exceed 30 days". The Committee also noted that, without prejudice to the other measures contained in the Code (section 384), section 390 provides that "employers who pay their workers wages lower than the minimum legal amount or the amount established by collective agreement shall be punishable by a fine amounting to a minimum of 30 days' wages for each worker concerned and double that amount for any repetition of the offence". The Committee also noted that responsibility for ensuring the application of the requirements set out in labour laws and regulations and compliance with the obligations contained in the Labour Code is entrusted to the labour inspection services, by virtue of Decree No. 3286 of 4 March 1964, which empowers those services to carry out direct inquiries to identify violations and refer them to the labour administration (Directorate of Labour). The Committee then requested the Government to indicate the measures which had been taken or were envisaged to ensure the application of the national legislation with a view to: (i) making possible the operation of the national bodies responsible for supervising the application of the standards respecting minimum wages; and (ii) guaranteeing, through the labour administration authority, the recovery of any further wages due to workers who have received wages lower than the applicable minimum wage.

The Committee notes the Government's indication that there is a body of labour inspectors who carry out inspections which may be ordinary, or special in cases of complaints, which numbered 767 during 1996. It notes that these inspections were not followed by sanctions. In addition, the Committee notes that section 259 of the Labour Code provides specifically that the fixing of a minimum wage automatically modifies labour contracts stipulating a lower wage and that any contractual clause establishing a wage lower than the legal minimum is null and void.

The Committee requests the Government to supply information on the application in practice of this Article and, particularly, on the number of appeals presented to the labour administration authority. It requests the Government to continue to supply information on the application of the Convention in practice, in accordance with point V of the report form.