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Protection of Wages Convention, 1949 (No. 95) - Benin (RATIFICATION: 1960)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 (minimum wages) and 95 (protection of wages) together.

Minimum wages

Article 3(1) of Convention No 26. Minimum wage fixing machinery. The Committee notes the information provided by the Government in reply to its previous comments on this matter.

Article 4. Effective application in practice. Informal sector. Further to its previous comments, the Committee notes the Government’s indication in its report that, in practice, the guaranteed minimum inter-occupational wage is only effectively applied in enterprises in the formal sector. The Committee also notes that, according to the results of the 2011 integrated modular survey on the living conditions of households, more than 90 per cent of workers aged between 15 and 64 years were employed in the informal sector. The Committee therefore requests the Government to provide information on the measures adopted or envisaged to guarantee the payment of the minimum wage to workers in the informal sector.

Protection of wages

Articles 8 and 10 of Convention No. 95. Deductions from and attachment and assignment of wages. In its previous comments, the Committee requested the Government to consider the adoption of suitable measures to prescribe the conditions and extent of deductions permitted under individual employment contracts, under section 216 of the Labour Code, so as to bring the legislation into conformity with Article 8(1). The Committee also requested the Government to take the necessary measures to adopt regulations setting limits on potential deductions. The Committee notes the Government’s indication that the legislation in this regard has not changed. The Committee therefore requests the Government to take the necessary measures to set the limit for deductions from wages, including those arising from attachment or assignment. The Committee particularly requests the Government to specify the conditions and limits on deductions that may be authorized under individual employment contracts.

Article 12(1). Regular payment of wages. In its previous comments, the Committee requested the Government to provide information on the progress of the clearance plan implemented to address issues related to the regular payment of wages that had led to wage arrears in the public service. The Committee notes the Government’s indication that the issue has been definitively resolved by issuing securities and that the clearance plan has been successfully completed.

Article 14(b). Payslips for workers. The Committee notes the Government’s reply to its previous comments on this matter.

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Articles 8 and 9 of the Convention. Deductions from wages. In its report, the Government states that legal texts to give effect to Article 8 and 9 of the Convention, concerning wage deductions, have not as yet been adopted. Given that wages are necessary in order to maintain workers and their families and that the objective of Articles 8 and 9 of the Convention is precisely to avoid any unwarranted reduction of wages and to protect the right of workers to receive their wages in full, the Committee trusts that the Government will endeavour to take the necessary steps promptly to adopt legal texts that give full effect to the abovementioned provisions of the Convention, and asks it to keep the Office informed of any developments in this regard.

Article 10. Attachment and assignment of wages. Further to its previous comments on this matter, the Committee notes that pursuant to section 177 of the Uniform Act organizing simplified recovery procedures and measures of execution, adopted in 1998 by the Organization for the Harmonization Business Law in Africa (OHADA), earnings may be assigned or attached only in the proportions determined by each member State, and the aggregate of sums attached or voluntarily assigned may not, even for claims of alimony, exceed a limit fixed by each contracting State. The Committee understands that a decree of 16 June 1955 fixes the attachable and assignable part of earnings. The Committee requests the Government to indicate whether the decree is still in force, and if so, to send a copy of it with its next report.

Article 12. Payment of wages at regular intervals. In its previous comments, the Committee noted that there were difficulties in paying wages regularly which accounted for the wage arrears in the public service. In its report the Government indicates that the wage arrears were settled in 2008 through the securitization of the wage claims of all the workers concerned. The Committee understands that under the wage debt clearance plan, treasury certificates are issued for each public employee concerned, the amount of which may not be less than 500,000 CFA francs a year (approximately US$1,046). However, implementation of the plan might be spread over ten years if necessary. Furthermore, the Committee understands that the certificates may be used as gifts or legacies or transferred to third parties or financial institutions. While pointing out that according to Article 3(1) of the Convention, wages payable in money shall be paid only in legal tender and payment in the form of promissory notes, vouchers or coupons or in any other form alleged to represent legal tender, shall be prohibited, the Committee requests the Government to provide further information explaining exactly how the clearance plan is implemented and how far it has progressed.

Article 14(b). Payslips to be issued to workers. In reply to the Committee’s previous comments, in which it asked the Government to indicate whether any legislative or regulatory provisions require payslips to be issued to public sector workers, the Government states that no such obligation is laid down in the General Public Service Regulations. It adds, however, that in practice the State, as employer, issues payslips to its employees when wages are paid. While noting that the issuance of payslips is customary in the public service, the Committee trusts that in order to reinforce this practice the Government will take steps, when the opportunity arises, to secure the adoption of legislative or regulatory provisions establishing that at the time of each payment of wages a payslip is to be issued giving particulars of gross earnings, any deductions, with an indication of the amount thereof and the reasons therefore and the net wages due, as specified in Article 14(b) of the Convention and Paragraph 7 of the Protection of Wages Recommendation, 1949 (No. 85).

Part V of the report form. Application in practice. The Committee asks the Government to provide general information on the application of the Convention, such as extracts from official reports of the inspection services showing the number and nature of contraventions reported, copies of official reports regarding wage protection, information on any practical difficulties in applying the Convention or any other information enabling the Committee to assess the manner in which the Convention is applied in practice.

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Articles 8, 9 and 10 of the Convention. Deductions from wages and attachment and assignment of wages. Further to its previous comments on the application of Articles 8, 9 and 10 of the Convention, the Committee notes the Government’s statement to the effect that steps will be taken to adopt legal texts that will give full effect to these provisions of the Convention. The Committee requests the Government to keep it informed of any developments in this respect and to provide a copy of the texts as soon as they have been adopted. The Committee also notes that the Government may request, if it so wishes, the technical assistance of the Office.

Article 12, paragraph 1. Regular payment of wages. The Committee understands that Benin is currently experiencing serious problems concerning wage arrears. According to various sources, the wage debt stands at 190 billion CFA francs and the country’s main trade union organizations have begun to take protest action in a bid to secure full payment of wage arrears. The Committee recalls that wages are indispensable for the maintenance of the worker and wishes to refer to paragraph 355 of its General Survey of 2003 on protection of wages, which states that the accumulation of wage debts clearly contravenes the letter and the spirit of the Convention and renders the application of most of its other provisions simply meaningless. Consequently, the Committee requests the Government to provide detailed information on the extent of the problem (number of workers affected, sectors concerned, average delay of payment) and on the steps taken or envisaged to put an end to the wage arrears phenomenon and enable the workers concerned to recover all the sums of money they are owed.

Article 14(a). Information for workers. The Committee notes that section 63 of the General Collective Labour Agreement of 30 December 2005, applicable to enterprises in the private and para-public sectors, guarantees the issue of wage statements to workers, indicating the various particulars of their wages. The Committee requests the Government to specify the legal texts, where they exist, which guarantee the issue of wage statements to workers in the public sector.

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The Committee notes the Government’s report and the adoption of Act No. 98-004 of 27 January 1998 establishing the Labour Code.

Article 8 of the Convention. The Committee notes article 211 of the new Labour Code which provides that, where a worker cannot by his own efforts procure for himself and his family a regular supply of essential foodstuffs, the employer must provide a daily ration of victuals and that the maximum amount of money to be reimbursed in return for such allowance shall be fixed by ministerial decree issued upon the recommendation of the National Labour Council. The Committee requests the Government to specify whether the decree in question has already been issued and if so, to communicate its text.

The Committee also notes that, under article 216 of the Labour Code, authorized deductions from wages include those provided for in individual labour contracts. The Committee points out, however, that according to the terms of the Convention the types and extent of deductions from wages should be prescribed by national laws or regulations or fixed by collective agreement or arbitration award and not by individual agreements. It therefore requests the Government to consider the adoption of suitable measures to specify the types and extent of deductions permitted under individual labour contracts so as to ensure legislative conformity with this Article of the Convention. In addition, the Committee asks the Government to indicate whether the decree referred to in article 218 of the Labour Code has already been issued, and if so, to supply a copy of that text.

Article 9. The Committee notes that the Labour Code does not contain any provision specifically prohibiting any deduction 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, as required under this Article. The Committee trusts that the necessary measures will soon be taken to ensure that the terms of the Convention are fully applied in this respect.

Article 10. The Committee notes that, under article 227 of the Labour Code, the limits within which wages may be attached or assigned will be fixed by decree to be adopted upon the recommendation of the National Labour Council. The Committee hopes that the Government will not fail to adopt the decree in question in the very near future. It requests the Government to keep it informed of any developments in this regard.

Article 14(a). While noting the information supplied by the Government on this point in the report, the Committee would be grateful if the Government could provide additional information on the manner, as may be prescribed by national laws or regulations, in which workers are informed of the wage conditions before they enter employment and when any changes take place. In this connection, the Government might wish to refer to Paragraph 6 of the Protection of Wages Recommendation, 1949 (No. 85), which sets out the details of the wage conditions which should be brought to the knowledge of the workers.