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Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - Gabon (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 and 99 (minimum wages) and 95 (protection of wages) together.

The Committee notes the observations of the Trade Union Congress of Gabon (CSG) on the application of Convention No. 26, received in 2015.

Minimum wages

Article 3 of Conventions Nos 26 and 99. Participation of the social partners. The Committee notes that, according to the Government’s report and the observations of the CSG, the National Commission for Wage Studies (CNES), a tripartite body responsible for giving reasoned opinions on the fixing of the guaranteed minimum inter-occupational wage (SMIG), is not operational. According to the Government, this is linked to a problem of trade union representativity, following the adoption of new criteria for trade union elections. The Government also indicates that the decree establishing the powers, organization and operation of the CNES, provided for in section 250 of the Labour Code, has not yet been adopted and, in the meantime, Decree No. 642/PR/MTEFP of 23 June 1997 establishing the composition of the CNES remains in force. The Committee requests the Government to take the necessary measures so that the CNES can become operational in the near future and fulfil its role of examining the SMIG. The Committee requests the Government to provide information on the progress made in this regard. It reminds the Government of the possibility to avail itself of ILO technical assistance.

Protection of wages

Article 12 of Convention No. 95. Payment of wages at regular intervals. In its previous comments the Committee requested the Government to provide information on the concrete measures taken to rectify the situation of wage arrears in various sectors. The Committee notes the information provided by the Government in its report, particularly indicating that: (i) no violations of section 152 of the Labour Code have been detected, which provides for the regular payment of wages; (ii) unpaid wages in the public sector and particularly in the national education sector only concern strikers, as strike days are not paid; (iii) significant state aid was granted to a public transport company that had been late in paying wages; and (iv) in the telecommunications sector, the conclusion of an enterprise agreement between the employer and the trade union concerned has made it possible to resolve the difficulties, particularly those related to the payment of a bonus.

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Article 1(1) of the Convention. Methods for fixing and adjusting the minimum wage. The Committee notes the adoption of Decree No. 855/PR/MTE of 9 November 2006, which increases the guaranteed interoccupational minimum wage (SMIG) to CFA francs 80,000 per month (about US$171). It also notes that Decree No. 0127/PR/MBCPFPRE of 23 April 2010 extends applicability of the minimum monthly wage, which was previously applicable only to the public and semi-public sectors, to workers employed in the private sector and sets the amount thereof, composed of the SMIG and allowances for items such as transport and lodging, at CFA francs 150,000 per month (about US$321). However, the Committee notes that domestic workers and local community staff do not belong to the categories to whom the minimum monthly wage is applicable. Recalling that the objective of the Convention is to avoid the payment of very low wages in industries for which there is no effective system for fixing minimum wages, the Committee requests the Government to indicate the grounds on which domestic workers have been excluded from the scope of the abovementioned Decrees. It also requests the Government to indicate the manner in which the SMIG takes due account of the real needs of these workers and their families, to state whether it is planned to adjust the rate of the SMIG and, if so, to indicate when this will be done. Moreover, the Committee wishes to take this opportunity to draw the Government’s attention to the adoption of Convention No. 189 and Recommendation No. 201 on domestic workers, which aim to ensure decent living and working conditions for domestic workers. The Committee hopes that the Government will soon be in a position to ratify Convention No. 189 and requests it to keep the Office informed of any further developments in this respect.

Finally, the Committee understands that the increase in the SMIG and the extension of the scope of the minimum monthly wage have been the subject of tripartite consultations within the National Wage Review Board (CNES). The Committee would be particularly interested to receive a copy of the studies and statistics used as a basis for the work of the CNES and of the opinions issued by it in the context of the consultations. Moreover, the Committee notes that, under the terms of section 250 of the Labour Code, as amended by Ordinance No. 018/PR/2010 of 25 February 2010, the powers, structure and operation of the CNES are fixed by regulation. The Government indicates in its report that the composition of the CNES is determined by decree adopted on the proposal of the Minister of Labour. The Committee requests the Government to indicate whether such a decree has been adopted and, if so, to send a copy of it.

Article 5 and Part V of the report form. Practical application. The Committee requests the Government to send information in its next report on the application of the Convention in practice, including statistics on the number of workers who are paid the SMIG, extracts from reports of the inspection services containing information on the number of infringements reported and the corrective measures taken, and also all official documents or studies dealing with wage policy issues, which would enable an evaluation to be made of the manner in which the Convention is applied.

Finally, the Committee wishes to take this opportunity to draw the Government’s attention to the conclusions adopted by the ILO Governing Body on the basis of the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). The Governing Body considered that Conventions Nos 26 and 99 were two of the instruments which were no longer up to date, even though they were still relevant in certain respects. The Committee therefore suggests that the Government contemplate the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which represents a degree of progress in comparison with previous instruments concerning the fixing of a minimum wage, for example by providing for a wider scope, the setting up of a general minimum wage system and, finally, the adoption of certain criteria for determining minimum wage levels. The ratification of Convention No. 131 appears especially desirable in view of the fact that national law already establishes a national minimum wage applicable to all economic sectors, including agriculture. The Committee requests the Government to keep the Office informed of any decision taken or contemplated in this regard.

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Article 1, paragraph 1, of the Convention. Machinery for fixing and readjusting minimum wages. The Committee notes that the minimum wage has not been readjusted for a number of years and stands at 44,000 CFA francs (around US$85) per month. It also notes, however, that, according to various sources of information, this wage will soon be increased to 80,000 CFA francs (around US$155) per month. The Committee notes that, under section 255, paragraph 2, of the Labour Code, the National Commission on Wage Studies (CNES), a tripartite consultative body responsible for issuing a reasoned opinion to the Government Wage Commission (CGS), shall meet at least once every three years, when convened by its chairperson or at the request of the majority of its members. The Committee asks the Government to specify whether the announced increase in the minimum guaranteed interoccupational wage (SMIG) has been the subject of tripartite consultation. It also asks the Government to indicate the measures taken or envisaged to guarantee the regular consultation of the CNES in accordance with the provisions of the Labour Code. Furthermore, the Committee recalls the importance of regularly readjusting minimum wage rates so as to guarantee workers a decent standard of living. If rates are not adjusted, the minimum wage-fixing system will be reduced to a mere formality and will no longer be at all effective as a means of combating poverty or as a means of social protection. The Committee asks the Government to provide details regarding the effectiveness of the mechanism used to fix and readjust minimum wages, and to communicate a copy of the decree establishing the new national minimum wage, as soon as it has been adopted.

Article 3, paragraph 2(2). Participation of the social partners on equal terms. The Committee notes that section 2 of Decree No. 000642/PR/MTEFP of 23 June 1997, establishing the composition of the CNES, ensures the representation of employers’ and workers’ organizations, in equal numbers and on equal terms, in the fixing of the national minimum wage. With regard to the fixing of wages by branch of activity, the Committee notes that section 144 of the Labour Code states that, in the absence of collective agreements, or where such agreements are silent on the matter, minimum wages by occupational category shall be fixed by a decree issued by the Minister for Labour. The Committee would like to receive further information on the participation of the social partners in the fixing of minimum wage rates by branch of activity, where these rates are not fixed by a collective agreement but by decree issued by the Minister for Labour.

Article 5 and Part V of the report form. The Committee would be grateful if the Government would provide, in its next report, general information on the application of the Convention, for instance: statistics on the number of workers remunerated at the minimum wage rate, including in the agricultural sector, given its significant workforce; copies of studies or other official documents of the CNES or the CGS on the functioning of the minimum wage system; statistics on recent fluctuations in economic indicators, such as the rate of inflation and its effect on the standard of living of workers; and extracts from inspection service reports, detailing the violations reported and the penalties imposed.

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The Committee notes the report provided by the Government and Act No. 3/94 of 21 November 1994 issuing the Labour Code, as amended by Act No. 12/2000 of 12 October 2000. It requests the Government to provide further indications on the following points.

Article 3, paragraph 2(2), of the Convention. The Committee notes that, under the terms of sections 149 and 254 of the Labour Code, the minimum guaranteed inter-occupational wage (SMIG) is fixed by decree after the National Commission on Wage Studies has issued a reasoned opinion to the Government Wage Commission on the determination of the SMIG. It also notes that the composition of the National Commission on Wage Studies shall be determined by decree issued at the proposal of the Minister responsible for labour. While recalling that by virtue of this provision of the Convention the employers and workers concerned shall in all cases be associated in the operation of minimum wage fixing machinery in equal numbers and on equal terms, the Committee would be grateful if the Government would provide, with its next report, copies of the legislative texts issued to guarantee such participation and thereby give effect to the Convention on this point.

The Committee also notes that under section 144 of the Labour Code, decrees issued at the proposal of the Minister responsible for labour shall, in the absence of collective agreements or where they do not cover such matters, fix minimum wages by occupational category. It requests the Government to provide detailed information on the nature of the measures and the procedures adopted to secure full consultation and the direct participation of employers’ and workers’ organizations in the determination of minimum wages, as required by this Article of the Convention.

Article 5 and Part V of the report form. The Commission notes from the Government’s report that inspections by labour inspectors and supervisors cover, among other subjects, the application of the minimum rates of the SMIG and wage rates by category. It requests the Government to provide copies of the relevant extracts of the reports published each year by the labour inspectorate in accordance with section 247 of the Labour Code, particularly with regard to the contraventions committed and penalties imposed. Furthermore, with reference to its previous comments, the Committee would be grateful if the Government would provide any statistics which may be available on the number and various categories of workers covered by the minimum wage regulations and on the rates of the SMIG and of the various minimum wages by occupational category, as well as any other information which would allow the Committee to assess more effectively the effect given to the Convention in practice.

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The Committee notes the detailed information provided in the Government's report in reply to its previous comments and concerning in particular the following points: (i) participation by employers and workers in the wage-fixing machinery; (ii) the provisions, procedures and sanctions that can be applied in cases where a wage below the guaranteed minimum wage (SMIG) is paid; and (iii) the monitoring by the labour inspection services of the application of minimum wage provisions.

With reference to its previous comments, the Committee requests the Government to clarify whether the draft Labour Code, which has been debated by the Assembly since 1992, has been adopted, and, if so, to provide a copy of the text.

The Committee hopes that the Government will take the necessary measures to establish an effective system for monitoring the application of minimum wage provisions, in accordance with Article 4 of the Convention, read in conjunction with Article 5 and point V of the report form.

Finally, the Committee, while taking note of the difficulties faced by the Government in providing statistics on the number and different categories of workers covered by the minimum wage regulations, would be grateful if the Government would provide these data when resources permit.

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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:

The Committee notes that the Government referred to the draft Labour Code which has been transmitted to the Office and which was at that time under discussion by the National Assembly. It notes that section 141 of this draft Code, which concerns in particular the fixing of the guaranteed minimum inter-occupational wage by means of decrees, does not provide for consultation with employers and workers. The Committee hopes that the Government will take the appropriate measures to ensure, in conformity with Article 3, paragraph 2(2), of the Convention, that employers and workers are associated in the operation of minimum wage fixing machinery.

The Committee also requests the Government to supply information on the measures which have been taken to ensure that the wages which are actually paid are not less than the statutory minimum wage and that workers to whom the statutory minimum wage is applicable and who have been paid wages at less than these rates are entitled to recover the amount by which they have been underpaid, in accordance with the provisions of Article 4.

The Committee also requests the Government to supply information on the results of the application of methods for fixing minimum wages, and particularly the approximate numbers of workers covered by the regulations, the minimum rates of wages fixed, and the more important of the other conditions, if any, established relevant to the minimum wages, as required by Article 5.

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The Committee notes that the Government refers in its report to the draft Labour Code which has been transmitted to the Office and which is currently under discussion by the National Assembly. It notes that section 141 of this draft Code, which concerns in particular the fixing of the guaranteed minimum inter-occupational wage by means of decrees, does not provide for consultation with employers and workers. The Committee hopes that the Government will take the appropriate measures to ensure, in conformity with Article 3, paragraph 2(2), of the Convention, that employers and workers are associated in the operation of minimum wage fixing machinery.