Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the information contained in the Government’s report, in particular the adoption of the new Working Environment Act (Act No. 62 of 17 June 2005), as last amended by Act No. 10 of 23 February 2007, which replaces the Working Environment Act of 1977.

Articles 3, 4, 5, 6, 9, 10 and 13 of the Convention. Substantive rules on wages protection. The Committee notes that the new Working Environment Act of 2005 does not seem to regulate in any concrete or detailed manner a number of aspects of wages protection, such as for instance the form and method of payment, the place and time of payment, the partial payment in kind, the attachment or assignment of wages, workers’ freedom to dispose of their wages or the prohibition of wage deduction for the purpose of retaining or obtaining employment, and therefore fails to give effect to substantive rules and principles of the Convention. Moreover, the Committee notes that section 55(1) of the previous Working Environment Act of 1977, which gave effect to Article 3 (payment of wages in legal tender) and Article 13 (payment on working days at or near the workplace) of the Convention, has now been amended and therefore the new Working Environment Act implements even less of the provisions of the Convention. The Committee therefore requests the Government to provide in its next report full particulars on the manner in which the following requirements of the Convention are given effect in both law and practice, or, alternatively, to explain the reasons for which in the Government’s opinion these principles and rules would not call for any legislative action in the current context: payment of wages in legal tender or by bank/postal cheque or money order (Article 3); partial payment of wages in the form of allowances in kind (Article 4); payment of wages directly to the worker concerned (Article 5); prohibition against limiting in any manner the freedom of workers to dispose of their wages (Article 6); prohibition of any deduction from wages for the purpose of obtaining or retaining employment (Article 9); conditions and limits for attachment and assignment of wages (Article 10); and place and time of payment of wages (Article 13). The Committee understands that some or all of these elements are regulated by enterprise- or branch-level collective agreements or through staff rules, in accordance with section 14-16(1) of the Working Environment Act. It would accordingly appreciate if the Government would supply copies of relevant collective agreements or staff rules implementing the above provisions of the Convention. In addition, the Committee asks the Government to specify how the application of Articles 3-15 of the Convention is ensured in occupations or sections of economic activity such as shipping, hunting and fishing which under section 1-2(2) of the Working Environment Act are currently excluded from its scope of application.

Article 8. Deductions from wages. The Committee recalls its previous comment in which it drew the Government’s attention to the fact that the Convention requires permissible deductions from wages to be prescribed by national laws or regulations or fixed by collective agreement or arbitration award, but not by individual agreement. The Government has not provided any reply on this point while section 14-15(2)(c) of the new Working Environment Act, that essentially reproduces the provisions of section 55(3)(c) of the previous Working Environment Act, still authorizes deductions when stipulated in advance by written agreement. The Committee wishes to refer, in this respect, to paragraph 217 of its 2003 General Survey on protection of wages in which it considered that the Convention seeks to prevent “private” arrangements which might involve unlawful or abusive deductions to the detriment of the worker’s earnings, and took the view that provisions of national legislation which permit deductions by virtue of individual agreements or consent are not compatible with this Article of the Convention, unless of course the national legislation specifies in a detailed and exhaustive manner the types of deductions which may be permitted on the basis of individual consent. The Committee therefore requests the Government to take appropriate action in order to bring its legislation into line with this Article of the Convention.

Article 11. Privileged treatment of wage claims in bankruptcy proceedings. The Committee notes with interest the last amendments to the Creditors Security Act (No. 59 of 1984) and the Wage Guarantee Act (No. 61 of 1973), introduced by Act No. 24 of 2002 and No. 120 of 2005, which extended the scope of the privileged status and of the wage guarantee scheme to new categories of employees. Noting that the national legislation has progressively adopted much higher standards of protection than those set in Article 11 of the Convention, in terms of not only privileged protection but also protection through a wage guarantee institution, the Committee encourages the Government to give favourable consideration to the ratification of the Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173) which contains the most relevant standards in relation to the protection of workers’ claims in the event of the employer’s bankruptcy or insolvency. Convention No. 173 was designed as a dual thrust instrument proposing two distinct sets of standards, one dealing with protection by means of a privilege and another dealing with wage guarantee funds, which may be accepted together or separately. As explained in greater detail in paragraphs 331–353 of the abovementioned General Survey, Convention No. 173 offers solid and modern responses to current challenges of corporate insolvency, in that it strengthens the traditional privilege system while exploring new means of protection in the form of wage guarantee institutions and leaving a wide margin of discretion to ratifying countries for the implementation of the standards. The Committee accordingly invites the Government to examine the possibility of ratifying Convention No. 173 and to keep the Office informed of any decision taken or envisaged in this regard.

Part V of the report form. Considering that the Government has not provided for many years information on the practical application of the Convention, the Committee would thank the Government for providing up to date information in this regard including, for instance, statistics on the number of workers covered by relevant legislation, extracts from labour inspection reports showing the number and nature of wage-related infringements observed and sanctions imposed, copies of collective agreements containing clauses on pay conditions, official documents and information sheets addressing wage issues, etc.