Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention, in conjunction with point V of the report form. The Committee notes the Government’s indication that the Wage Act does not cover all workers and that it excludes the important and large sectors of agriculture and domestic workers by virtue of section 2(2). According to the Government, the proposed new legislation will cover all employees. Apart from this limitation, the procedure allows the fixing of wages for any trade and no other limitations are placed in this regard. In practice, wage determinations are made with regard to the unorganized and low wage sectors.

The Committee requests the Government to provide further information on wage determination in the unorganized and low wage sectors. It also requests the Government to provide a copy of the new legislation as soon as it is adopted.

Article 2, in conjunction with point V of the report form. The Committee notes the Government’s statement that there is no procedure in the Wage Act, 1957 determining how a selection of the trades to be considered is made. There are also no specific provisions for consultation with any organizations in this regard, but section 9(1) of the Wage Act 1957 provides that any interested persons may make representations. The Act in question is under review, but in the meantime, the Minister of Labour determines a draft programme of action for the Wage Board based on the perceived needs. According to the Government such perceptions of needs are influenced by the social partners, and although it is not a statutory requirement, the programme for 1997 was submitted to the Labour Market Chamber of National Economic, Development and Labour Council.

The Committee recalls that in accordance with the provisions of the Convention, ratifying States must undertake preliminary consultation of employers’ and workers’ representative organizations and/or the employers and workers concerned. The Committee requests the Government to indicate to what extent these organizations and employers and workers have been consulted with respect to the minimum wage determination and, as the case may be, the results of this consultation in the determination of minimum wages. It also hopes that the revision of the Wage Act, 1957 will provide for this obligation of preliminary consultation of social partners in the minimum wage fixing process.

Article 3, paragraph 2(1) and (2), in conjunction with Article 5 and point V of the report form. 1. With reference to the previous comments concerning the equality between employers and workers as to consultation and participation in the minimum wage fixing, the Committee noted that the Government cites some provisions of the Wage Act, 1957, concerning the appointment of assessors to assist the Wage Board during the investigation of a particular trade. The Committee noted that, although these provisions require the number of assessors to represent the employers to be equal to that of the workers, the appointment of such assessors itself is not mandatory. It therefore requested the Government to indicate whether, in practice, an equal number of assessors representing the employers and the workers have been appointed under these provisions.

The Committee notes the Government’s statement that, as a result of certain considerations, assessors are not appointed as a matter of course during Wage Board investigations. Where they are appointed they are appointed in even numbers representing labour and business respectively.

In its previous comments, the Committee considered that section 51A of the Labour Relations Act, 1956, which empowers only the employers to submit such proposal that initiates one of the minimum wage-fixing procedures does not appear to meet the requirement of the provision of the Convention under which the employers and workers concerned should be associated in the operation of the machinery "in equal numbers and on equal terms". The Committee also recalled that, as it has pointed out in paragraph 203 of the 1992 General Survey on minimum wages, one of the reasons advanced for the adoption of the Convention was the lack of organization of workers or the weakness of their organizations. Given, in addition, the terms used in these provisions (i.e. "representatives of the employers and workers concerned" (Article 3, paragraph 2(1)),and "the employers and workers concerned" (paragraph 2(2)),the fact that the workers are not sufficiently organized cannot be considered as a valid reason for not consulting the workers concerned. The Committee, therefore, requested the Government to indicate any measures taken or envisaged to bring the provisions of section 51A of the abovementioned Act and their practical application into conformity with these requirements of the Convention.

The Government indicates that the Labour Relations Act, 1956 has been repealed and replaced by the Labour Relations Act, 1995. The new legislation does not provide any mechanism similar to that contained in section 51A of the repealed Act and, therefore, the issues raised by the Committee are no longer a cause for concern.

The Committee also notes the Government’s statement that the Wage Board’s information gathering role does not take the form of a negotiation forum and any inequality of representation does not consequently have a negative impact as the procedures do not allow one party to dominate the other, even where unbalanced representation may occur. The Board ensures that it gathers balanced and valid data from which it makes its recommendations.

The Committee recalls that paragraph 195 of the 1992 General Survey on minimum wages specifies that the consultation referred to in the minimum wage instruments implies that employers and workers, their representatives or those of their organizations be able to have a real influence on the decisions to be taken. It requests the Government to provide information on the results of the consultation of the employers and workers concerned on the recommendations of the Wage Board as concerns minimum wages. It also requests the Government to continue to supply information on the minimum wage rates that have been fixed and the number of workers covered by these rates.

Article 4. The Committee notes, inter alia, the Government’s statement that the fact that contraventions of wage determinations form the subject of legal proceedings places an onerous burden on inspectors who are obliged to obtain and document sufficiently detailed evidence for the public prosecutor. This is one of the reasons why the whole legislative framework is under review. It requests the Government to continue to provide information in this respect.