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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 131 (minimum wage) and Convention No. 95 (protection of wages) together. The Committee notes the observations submitted by the International Trade Union Confederation (ITUC) on the application of Convention No. 95 and the response of the Government, both received in 2017. The Committee notes the complexity of the situation prevailing on the ground and the presence of armed groups and armed conflict in the country.

Minimum Wage

Article 4 of Convention No. 131. Minimum wage-fixing machinery. Full consultation with employers’ and workers’ organizations. Further to its previous comments, the Committee recalls that: (i) Act No. 43 of 2005 on the positions, wages and salaries system has set the minimum wage level in the public sector (section 38(E)) and provided that the Civil Service Ministry is the competent body for establishing and adjusting minimum wages for public sector workers (section 5); (ii) the minimum wage for the public sector is extended to private sector workers, according to section 55(1) of the Labour Code; and (iii) section 11 of the Labour Code provides that the tripartite Labour Council is charged with submitting recommendations to the Government in relation to draft labour laws and regulations and the general policy on wages, incentives and other benefits. The Committee notes that the Government indicates in its report that the tripartite Labour Council will be activated when the civil war currently affecting the country ends. The Committee requests the Government to take all necessary measures to ensure that, once the situation in the country so allows, full consultation with representative organizations of employers and workers both in the public and in the private sector are held in connection with the review and adjustment of the level of minimum wages. It requests the Government to provide information in this regard.

Protection of Wages

In previous comments, the Committee has noted the lack of conformity of the national legislation, mainly the Labour Code, with some provisions of the Convention. The Committee notes that the Government indicates in its report that the draft amended Labour Code is being considered by the legislative authority and other official bodies, but that it has not been passed because of the current civil war and the disruption of the House of Representatives. The Committee requests the Government to ensure that its comments below will be fully taken into account in the finalization of the legislative review, once the situation in the country so allows. The Committee requests the Government to send a copy of the new Labour Code and any other relevant legislation giving effect to the Convention, once adopted.
Article 2 of Convention No. 95. Scope of application. The Committee recalls that several categories of workers, including domestic, casual and, in certain cases, agricultural workers, are excluded from the scope of the Labour Code (section 3(2)). Consequently, those workers do not benefit from the protection of wages afforded by the Labour Code. The Committee hopes that the new Labour Code will ensure that all workers benefit from the protection of their wages in accordance with the Convention. Concerning civil servants who are also excluded from the Labour Code, the Committee notes that while the Civil Service Act and its implementing Decree No. 122 of 1992 provide some protection for public sector workers, these pieces of legislation do not appear to give effect to a number of Articles of the Convention. The Committee requests the Government to provide information on the provisions of the national legislation or other implementing measures applying the requirements of the Convention to any category of workers who might be excluded from the application of the new Labour Code, once adopted.
Article 4. Partial payment of wages in kind. The Committee recalls that while payment in kind is allowed in the country (based on the definition of wages in section 2 of the Labour Code), the Labour Code only regulates it in relation to situations of remote work (sections 68 and 70). It also recalls that Article 4 requires that permissible allowances in kind be only those authorized by national laws and regulations, collective agreements or arbitral awards but not individual agreements, and that, when authorized, appropriate measures be taken to ensure that the allowances in kind be both appropriate for the personal use and benefit of workers and their family and their value fair and reasonable. The Committee requests the Government to take the necessary measures to give full effect to that provision of the Convention.
Articles 8(1) and 10. Deductions, attachments and assignments of wages. The Committee recalls that section 63 of the Labour Code, which provides for the possibility of withholding wages by agreement between the employer and the worker, is not fully in conformity with the Convention, which prescribes that deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards (Article 8(1)) and that wages may be attached or assigned only in a manner and within the limits prescribed by national laws or regulations (Article 10(1)), but in neither case by individual agreement. It also recalls that there appears to be no provision in the Labour Code providing that wages shall be protected against attachment or assignment to the extent deemed necessary for the maintenance of workers and their family (Article 10(2)). The Committee requests the Government to take the necessary measures to give full effect to these provisions of the Convention.
Article 9. Prohibition of employment fees to be deducted from wages. The Committee recalls the absence of legislative provisions prohibiting deductions from wages with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment, made by a worker to an employer or his or her representative or to any intermediary (such as a labour contractor or recruiter). The Committee requests the Government to take the necessary measures to give full effect to this provision of the Convention.
Article 12. Regular payment of wages. Settlement of wages at termination of employment. Application in practice. The Committee notes that ITUC refers to cases of non-payment of wages in the public sector. It also refers to the situation of workers who worked in three foreign companies that left the country in 2015 and have not received a final settlement of their wages despite decisions of the Labour Court and the Labour Arbitration Committee requesting these companies to pay workers’ salaries until the termination of their contracts. The Committee also notes that in reply to these observations, the Government indicates that it has endeavoured to pay the salaries of all employees of the administrative and military bodies of the State. While it admits that some issues regarding the payment of wages may persist in governorates under rebels’ control, it indicates that it is striving to remedy this situation. The Government adds that: (i) the case concerning two foreign companies has been referred to the Appeal Court and, in the meantime, the Ministry is using all adequate legal means to ensure the enforcement of the relevant legislation to these cases; and (ii) the case concerning the third company was the subject of a new judgment of the Appeal Court which resulted in the competent authorities putting the company’s property under precautionary attachment to ensure workers’ rights. The Committee requests the Government to continue its efforts to guarantee that all workers are paid throughout the country their due wages in full and to provide information on the follow-up given to the above-mentioned legal cases.

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Article 4 of the Convention. Minimum wage fixing machinery. Full consultation and direct participation of employers’ and workers’ organizations. With further reference to its previous observations, the Committee regrets to note that no steps have been taken for the effective implementation of the Convention in either law or practice. Even though the minimum wage for public employees (20,000 Yemeni rials (YER) or approximately US$93 per month) is, in principle, also applicable to the private sector, no minimum wage fixing machinery exists and no provision is made for tripartite consultations on these matters. As regards the reactivation of the tripartite Labour Council, on which the Committee has been commenting for a number of years, the Government indicates that it has not been possible to advance for technical reasons. The Government further indicates that it intends to revive the process for the amendment of the Labour Code in the near future. While noting these explanations, the Committee is bound to recall that by ratifying the Convention the Government committed itself to establishing a system of minimum wages covering all groups of wage earners through procedures or practices guaranteeing the full consultation with, and the direct participation of, representative organizations of employers and workers and ensuring the review and adjustment of the level of minimum wages from time to time having regard to the social and economic conditions prevailing in the country. The Committee therefore asks the Government to take all necessary action without further delay with a view to setting up and operating a minimum wage fixing machinery based on genuine tripartite consultations, as required under the Convention.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:
Repetition
Article 4 of the Convention. Full consultation and direct participation of employers’ and workers’ organizations. The Committee recalls its previous comments in which it noted that, even though the minimum wage set for public employees (20,000 rials or approximately US$100 per month) may also apply to workers of the private sector in accordance with section 55(1) of the Labour Code, there is no institutionalized mechanism for fixing and revising minimum wages through a consultative process sufficiently representative of employers’ and workers’ interests. In its last report, the Government indicates that the implementation of the national strategy on wages has been postponed due to the current economic situation. The Government also states that the establishment of the tripartite Labour Council, which is provided for in section 11(1) of the Labour Code, has been deferred in view of the proposed amendment of the Labour Code. Accordingly, the Committee notes with regret that no progress has been made as regards the implementation of the Convention, either in law or in practice. The Committee urges the Government to take, without further delay, all necessary measures in order to set up a minimum wage fixing mechanism based on effective and genuine tripartite consultations. It asks the Government to keep the Office informed of any developments concerning the reactivation of the national strategy on wages, the eventual establishment of the Labour Council and the announced amendment of the Labour Code.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Article 4 of the Convention. Full consultation and direct participation of employers’ and workers’ organizations. The Committee recalls its previous comments in which it noted that, even though the minimum wage set for public employees (20,000 rials or approximately US$100 per month) may also apply to workers of the private sector in accordance with section 55(1) of the Labour Code, there is no institutionalized mechanism for fixing and revising minimum wages through a consultative process sufficiently representative of employers’ and workers’ interests. In its last report, the Government indicates that the implementation of the national strategy on wages has been postponed due to the current economic situation. The Government also states that the establishment of the tripartite Labour Council, which is provided for in section 11(1) of the Labour Code, has been deferred in view of the proposed amendment of the Labour Code. Accordingly, the Committee notes with regret that no progress has been made as regards the implementation of the Convention, either in law or in practice. The Committee urges the Government to take, without further delay, all necessary measures in order to set up a minimum wage fixing mechanism based on effective and genuine tripartite consultations. It asks the Government to keep the Office informed of any developments concerning the reactivation of the national strategy on wages, the eventual establishment of the Labour Council and the announced amendment of the Labour Code.

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Article 4, paragraph 2, of the Convention. Full consultations with the social partners. The Committee has been commenting for a number of years on the absence of a machinery responsible for fixing and revising minimum wages through a consultative process sufficiently representative of the employers’ and workers’ interests, as prescribed by Article 4, paragraph 2, of the Convention.

The Committee notes the Government’s indication that by Act No. 43 of 2005 on wages and salaries, the Civil Service Ministry set the minimum wage for over 1 million public employees to 20,000 rials (approximately US$100) per month and that in accordance with section 55 of the Labour Code of 1995, the same minimum wage floor applies to workers of the private sector. However, the Committee also notes the Government’s statement that there is no institutionalized mechanism which establishes or amends minimum wage rates and that consequently there are no consultations held with the social partners in this regard.

Under the circumstances, the Committee feels obliged to recall, that by ratifying the Convention the Government has committed itself to establishing a system of minimum wages covering all groups of wage earners through procedures or practices guaranteeing the full consultation with, and the direct participation of, representative organizations of employers and workers and ensuring the periodic review and adjustment of the level of minimum wages in light of the prevailing social and economic conditions. The Committee accordingly asks the Government to indicate the measures it intends to take in order to fully implement the requirements of the Convention. The Committee further requests the Government to transmit full information on the implementation of the national strategy on wages set out in Act No. 43 of 2005 and scheduled for completion in 2010.

In addition, the Committee recalls that the Government has still to provide concrete information as to how decent wage levels are determined for those categories of workers who are currently excluded from the scope of the Labour Code, including agricultural, domestic and casual workers. In some earlier reports, the Government had been referring to ministerial orders under preparation but no real progress has since been made. Moreover, the Committee has been asking for the last ten years whether any steps have been taken for the establishment of the tripartite Labour Council, which according to section 11 of the Labour Code will be responsible among other matters, for formulating recommendations on wage policy, incentives and benefits. The Committee once again asks the Government to provide full particulars on any measures taken or envisaged with a view to setting up the tripartite Labour Council and determining decent minimum wage levels for those workers falling outside the scope of the Labour Code.

[The Government is asked to reply in detail to the present comments in 2009.]

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The Committee notes the information contained in the Government’s report, in particular, the promulgation of Act No. 43 of 18 June 2005 concerning the system of jobs, salaries and wages. As this text is not available at the Office, the Committee would appreciate receiving a copy.

Articles 1 and 4 of the Convention. The Committee notes that, under section 55 of the Labour Code of 1995, the minimum wage payable to a worker may not be less than the minimum wage paid by the state administration. It also notes that, according to the Government’s report, section 38(a) of Act No. 43 of 2005 defines the minimum wage as being the sum of money which corresponds to the first step of the salary scales applicable to civil servants. The Government adds that it is the Civil Service Ministry which is the competent body for establishing and readjusting minimum wages. Given therefore that by fixing the minimum wage for the public sector the Government also establishes the minimum wage for the private sector, the Committee requests the Government to explain how it is ensured in law and in practice the full consultation and the direct participation of the most representative employers’ and workers’ organizations in the minimum wage-fixing process. The Government is also requested to specify the exact function of the tripartite Labour Council, provided for in section 11 of the Labour Code, in view of the fact that the Labour Code expressly excludes from its coverage employees of the state administration and the public sector.

Moreover, the Committee has been commenting for many years on the manner in which minimum wages are determined for those categories of workers who remain outside the scope of the Labour Code by virtue of section 3(2) thereof, in particular, casual workers, domestic servants and agricultural workers. The Committee recalls that the Government had previously reported that Ministerial Orders were under preparation to regulate the status of these categories of workers which would include provisions on minimum wage fixing. The Committee asks the Government to keep it informed of any progress made in this respect.

Article 5 and Part V of the report form. The Committee notes the Government’s statement that no data are available on labour inspection results. The Committee requests the Government to supply up to date information on the practical application of the Convention, including for instance: (i) the number of labour inspections that have been made annually; (ii) the approximate number of workers covered by the minimum wage legislation, or remunerated at the minimum wage rate; (iii) the minimum wage rates in force; (iv) statistics on the evolution of the minimum wage in recent years as compared to the evolution of economic indicators, such as the inflation rate, in the same period; and (v) copies of official documents, such as annual reports of the Labour Council, bearing on the operation of the minimum wage system or on wage policy issues.

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The Committee notes the information provided by the Government in reply to its previous comments. It also notes that a new Labour Code (Act No. 5 of 1995) has been promulgated by a Presidential Legislative Order on 9 March 1995.

Article 1 of the Convention. The Committee notes that the 1995 Labour Code excludes, under its section 3, some categories of workers from its scope of application, including casual workers, domestic servants and allied workers and persons engaged in pastoral and agricultural work. The Committee also notes the Government's indication that the Council of Ministers will very soon promulgate Orders to regulate the status of these categories of workers which will include provisions on minimum wage fixing. It hopes that the Government will soon provide copies of such Orders.

Article 4. The Committee notes again that the Government has not yet established the tripartite labour council, provided for in section 11 of the 1995 Labour Code, which includes among its competence the elaboration of a general policy on wages. The Government indicates that the relevant regulations and labour legislation will be promulgated soon and that this tripartite council will be established by the Council of Ministers to fix minimum wages. The Committee again hopes that this body will very soon be established to fix and adjust minimum wage rates in accordance with the provisions of the Convention.

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Further to its previous comments, the Committee notes the Government's report and in particular its reference to the draft Labour Code, and to Act No. 19 of 1991 on the public service. It hopes that the draft Code will soon be adopted to give effect to the Convention on the points mentioned below. The Committee asks the Government to provide information on any development in this regard as well as a copy of the draft Code.

Article 1 of the Convention. The Committee notes the Government's intention to examine the situation of workers excluded from the scope of the Labour Code, such as non-permanent workers in agriculture and domestic servants, including the fixing of minimum wages applicable to them, under section 4 of the draft Labour Code. It requests the Government to supply information on any steps taken to this end.

Article 4. The Committee notes the Government's indication that the Wage Fixing Committee under section 85 of the Labour Code has not yet been established and that a tripartite Council of Labour is provided for by section 11 of the draft Code which includes among its competence the elaboration of wages policies. It hopes that either of these bodies will soon be established to fix or adjust minimum wages in accordance with the Convention.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 1 of the Convention. The Committee recalls that section 3 of the Labour Code excludes from the scope thereof, in addition to public officials and employees and workers of the public administration, persons engaged in occasional employment lasting less than one month, agricultural workers not permanently employed in an undertaking and domestic servants (whose employment conditions may be regulated by an Order of the competent Minister). The Committee noted that there was legislation governing the fixing of the minimum wages of state officials and workers, and requests the Government to provide information on the entire minimum wage system covering the categories of workers mentioned above who remain outside the scope of the Labour Code by virtue of section 3 thereof.

Article 4. The Committee noted that the Wage Fixing Committee provided for by section 85 of the Labour Code had not yet been established owing, in particular, to the constant and rapid increase in workers' wages. The Committee recalls that, according to the Convention, each Member which ratifies it undertakes to establish and maintain a system for fixing and adjusting minimum wages which covers all groups of wage-earners whose terms of employment are such that coverage would be appropriate. The Committee hopes that appropriate steps will be taken to establish the Wage Fixing Committee provided for by the Labour Code.

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The Committee takes note of the information supplied by the Government, concerning the wages of state officials and of employees of public establishments and mixed enterprises, which are fixed in accordance with Act No. 49 of 1977 and Act No. 50 of 1982.

Article 1 of the Convention. The Committee recalls that section 3 of the Labour Code excludes from the scope thereof, in addition to public officials and employees and workers of the public administration, persons engaged in occasional employment lasting less than one month, agricultural workers not permanently employed in an undertaking and domestic servants (whose employment conditions may be regulated by an Order of the competent Minister). The Committee notes that there is legislation governing the fixing of the minimum wages of state officials and workers, and requests the Government to provide information on the entire minimum wage system covering the categories of workers mentioned above who remain outside the scope of the Labour Code by virtue of section 3 thereof.

Article 4. The Committee notes that the Wage Fixing Committee provided for by section 85 of the Labour Code has not yet been established owing, in particular, to the constant and rapid increase in workers wages. The Committee recalls that, according to the Convention, each Member which ratifies it undertakes to establish and maintain a system for fixing and adjusting minimum wages which covers all groups of wage earners whose terms of employment are such that coverage would be appropriate. The Committee hopes that appropriate steps will be taken to establish the Wage-Fixing Committee provided for by the Labour Code.

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