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The Committee takes due note of the detailed information provided by the Government in reply to its previous comment.

Article 2 of the Convention. Coverage of minimum wage legislation. The Committee notes the information concerning the minimum wage provisions applicable to homeworkers and domestic workers in certain provinces such as Ontario, Quebec, Saskatchewan and Yukon. In particular, it notes with interest those provisions which seek to guarantee a minimum income equal or comparable to the general minimum wage for workers remunerated by output, for instance seasonal workers engaged in fruit gathering in Quebec.

The Committee also notes, however, that in certain jurisdictions, for instance Manitoba and New Brunswick, large categories of workers such as agricultural workers are excluded from minimum wage coverage. It requests the Government to specify whether those workers enjoy any protection under the general labour legislation or otherwise with regard to the minimum permissible level of remuneration applicable to them. It would also appreciate receiving concrete information on the overall number of workers who are currently excluded from the scope of minimum wage laws and regulations.

Article 3, paragraph 2(2). Association of the social partners in the operation of the minimum wage-fixing machinery. The Committee notes the Government’s explanations concerning the system of the annual readjustment of the minimum wage in Quebec based on the evolution of the ratio between the minimum wage and the average hourly wage, and the findings of an economic analysis of 11 indicators measuring the impact of a minimum wage increase on workers’ purchasing power, enterprise competitiveness, employment, and incitement to work. The Committee also notes that an Interministerial Committee has been established to review on a triennial basis the impact of the evolution of the minimum wage on workers and the economy.

As regards the participation of the employers’ and workers’ organizations concerned, the Committee notes that according to the Government’s report, there have been no formal consultations with the social partners at the time of the adoption of the new method of reviewing the minimum wage nor is there an institutionalized framework for tripartite consultations on matters related to the revision of the minimum wage, such as, for instance, a permanent consultative body composed of an equal number of employers’ and workers’ representatives. The Government indicates, however, that all interested persons are entitled to submit their comments to the Minister of Labour since all proposed amendments to laws and regulations are published in the Official Gazette of Quebec prior to their adoption. The Committee understands that the situation is similar in British Columbia, Ontario and the Northwest Territories, where in the absence of ad hoc minimum wage boards some general provision is made for public consultations with stakeholders.

The Committee is bound to recall, in this connection, that the Convention requires the social partners to be associated in the operation of the minimum wage-fixing machinery in equal numbers and on equal terms, which presupposes a structured system (e.g. standing institution) for direct consultations with and active participation of employers’ and workers’ organizations, and not merely the possibility to comment on draft laws and regulations should the occasion arise. The obligation to genuinely and effectively consult with the social partners at all stages of the minimum wage-fixing process is a core element of the Convention and an absolute prerequisite for its implementation. The Committee therefore requests the Government to take appropriate steps to fully align its law and practice with the Convention in this regard.

In addition, the Committee notes that, following the amendment of the Labour Standards Act of Saskatchewan in 2004, the regulation-making authority of the Minimum Wage Board, which reviews the minimum wage at least every two years, was removed and now rests entirely with Cabinet. The Committee asks the Government to specify the manner in which the employers’ and workers’ representatives are consulted under the revised minimum wage-fixing system.

Periodic adjustment of minimum wage levels. With reference to the minimum wage levels which have long remained unrevised in certain provinces, such as Ontario and the Northwest Territories, the Committee notes the Government’s explanations that in Ontario it was finally decided in 2003 to raise the general minimum wage from 6.85 to 8.00 CAD per hour over a period of four years. In contrast, the Committee notes that the authorities in the Northwest Territories do not intend to adjust the minimum wage in the near future. Recalling that the fundamental and ultimate objective of the Convention is to ensure a decent standard of living to low-paid workers and their families, the Committee asks the Government to further elaborate on whether minimum pay rates which have remained unchanged for more than 16 years may still be deemed to offer adequate protection and to cover the basic needs of low-income workers.

Article 3, paragraph 2(3). Differentiated minimum pay rates for specific categories of workers. The Committee notes the Government’s explanations concerning the conditions under which sub-minimum wage for certain disabled workers may be authorized in Manitoba and Saskatchewan. It also notes that the authorities in Ontario consider minimum pay differences based on age to be appropriate and do not envisage any changes at present. The Committee requests the Government to keep it informed of any further developments relating to the possible determination of differentiated minimum wage levels – for reasons such as the promotion of youth employment, or the need to ensure equality of opportunity and treatment for incapacitated or older workers – and the resulting conflict of such measures with the general principle of equal remuneration for work of equal value.

Article 4. System of supervision and sanctions. In its previous comment, the Committee had requested clarification about the rationale of a specific provision of the Employment Standards Code of Alberta, according to which employees who work for less than the minimum wage are guilty of an offence and liable to be sanctioned in the same way as the employer paying such wage. In the absence of any response, the Committee is obliged to raise this question once again and ask the Government to re-evaluate the compatibility of such a provision with the Convention which explicitly authorizes any worker who has been paid at a sub‑minimum rate to recover, by judicial or other legalized proceedings, the amount of wages due.

Article 5 and Part V of the report form. The Committee notes with interest the statistical information, broken down by sex and age, concerning the number of workers remunerated at the minimum wage rate in different provinces, which confirm that young workers and women represent the majority of minimum wage earners. It also notes the information regarding the increases in minimum wage levels introduced in certain provinces during the period 2002–06 as well as the indications on enforcement measures and sanctions applicable in different jurisdictions to ensure compliance with the minimum wage legislation. The Committee would be grateful if the Government would continue to provide up to date information on the effect given to the Convention in practice, including, for instance, statistical information on the number of workers remunerated at the minimum wage rate, the evolution of minimum pay rates as compared to the evolution of economic indicators such as the inflation rate, relevant extracts from labour inspection reports, copies of official documents such as activity reports of Minimum Wage Boards, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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The Committee notes the detailed report provided by the Government. It notes that, while certain provinces managed to provide information on the application of the Convention in practice, others do not supply such data. It requests the Government to ensure the transmission in future of information, and particularly statistics, on the minimum wage rates in force, the number and various categories of workers covered by the minimum wage regulations and the supervisory measures and sanctions intended to ensure the application of the Convention in practice.

Article 2 of the Convention. The Committee notes that in Quebec, under section 2(4) of the Labour Standards Regulation, as amended, an employee entirely on commission who works in a commercial undertaking outside the establishment and whose working hours cannot be controlled is excluded from the application of the minimum wage. It requests the Government to indicate whether there exist for such workers arrangements for the effective regulation of minimum wages by collective agreement or otherwise and recalls, if such do not exist, that the objective of the Convention is to allow for the establishment of minimum wage fixing machinery for workers whose working hours are difficult to establish, for example in view of a distant relationship with their employer. The Committee considers that work that is remunerated by output or by commission can, if it is not accompanied by a guarantee in terms of a minimum wage, may likely result in the wages actually received by such workers falling to exceptionally low levels. It therefore requests the Government to provide fuller information in relation to the workers concerned on their conditions and average level of remuneration in relation to the minimum wage rate in force.

The Committee would also be grateful if the Government would provide detailed information on the situation in law and practice of domestic workers and homeworkers with regard to their coverage by minimum wage provisions.

Article 3, paragraph 2(1). The Committee notes the change in the Province of Quebec in March 2002 in the system for the fixing of minimum wages under which the minimum wage rate is now readjusted automatically based on fluctuations in the average wage. While noting that this change was the outcome of the work of the Interdepartmental Committee concerning the Review of the Criteria to Determine the Minimum Wage, the Committee requests the Government to provide fuller information on the consultations which were to be organized, in accordance with the Convention, with the social partners prior to the application of new criteria for fixing minimum wages.

Article 3, paragraph 2(2). The Committee notes that in the Provinces of Ontario and the Northwest Territories there has been no change in the minimum wage rates since 1 January 1995 and 1 April 1991, respectively. It wishes to recall in this respect that the minimum wage fixing machinery established by legislation must make it possible, with the consultation and participation of the social partners, to adjust minimum wage rates regularly or when circumstances thus so require, to a level at which they can guarantee that the vital necessities of workers and their families are met. The Committee also recalls the importance, in order to ensure the proper operation of minimum wage fixing machinery, that employers’ and workers’ organizations are fully associated with it and that the opinions that they express during their participation in such machinery are broadly and equitably taken into account. With reference to the data published by Statistics Canada, noting an average rise of 20 points in the consumer price index in Canada since 1992, the Committee requests the Government to indicate whether the authorities in the Northwest Territories intend to adjust the minimum wage in the near future and whether in the Province of Ontario the social partners were consulted in the adoption of Minimum Wage Regulation No. 285/01, issued under the new Employment Standards Act, 2000, which freezes the minimum wage at the level established by the Employment Standards Act, 1990.

The Committee also requests the Government to indicate the manner and basis on which employers’ and workers’ organizations participate, in accordance with the Convention, in the operation of the minimum wage fixing machinery in equal numbers and on equal terms in provinces in which minimum wage boards do not exist, such as Alberta, British Columbia, Nova Scotia, Ontario, Quebec and the Northwest Territories.

Article 3, paragraph 2(3). The Committee notes with interest the amendment to the Employment Standards Act in the Province of Yukon in accordance with which all workers are now covered by a single minimum wage rate without discrimination on account of their age. It also notes that the provisions under which reduced minimum wage rates were applicable to the remuneration of young workers under 18 years of age in Alberta and British Columbia were repealed in 1998 and 1995, respectively. However, the Committee notes that difference of remuneration based on age still persists in Ontario, the Northwest Territories, Newfoundland and Nunavut, and that the employment of workers with disabilities at lower minimum wage rates is authorized in Alberta, Manitoba and Saskatchewan. The Committee wishes to recall in this respect paragraphs 169 to 176 of its General Survey of 1992 on minimum wages, in which it considered that despite the absence in the Convention of provisions providing for the fixing of different minimum wage rates on the basis of criteria such as age, the general principles laid down in other instruments have to be observed in order to prevent any discrimination in respect of age, among other grounds. Furthermore, the Preamble of the Constitution of the ILO explicitly refers to the application of the principle of "equal remuneration for work of equal value". With regard to the use of the criterion of age for the application of the minimum wage, the Committee refers once again to paragraph 171 of the General Survey in which it considers that the quantity and quality of work carried out should be the decisive factor in determining the wage paid. Therefore, in the view of the Committee, the reasons that prompted the adoption of lower minimum wage rates for groups of workers on account of their age and disabilities should be regularly re-examined in the light of this principle.

Article 4. The Committee notes from the Government’s report that in Alberta, under the terms of section 130(1) of the Employment Standards Code, employees who work for less than the minimum wage are guilty of an offence and liable to be sanctioned in the same way as the employer paying such wage. The Committee wishes to emphasize that the objective of the Convention is to protect certain of the most vulnerable groups of workers who, in view of their lack of skills and the specific circumstances of the sector in which they work, are in need of the protection guaranteed by a minimum wage. In these conditions, the Committee considers that the fact of penalizing such workers could not only be contrary to equity, as they may not be aware of the minimum wage rates in force, but also contrary to the Convention which explicitly authorizes any worker to whom the minimum rates are applicable and who has been paid wages at less than these rates to recover, by judicial or other legalized proceedings, the amount by which he/she has been underpaid. The Committee therefore invites the Government to re-examine this aspect of the legislation in the light of the objectives and purpose of the provisions of the Convention in this respect.

Article 5 and Part V of the report form. The Committee notes the information provided by the Government concerning the application of the Convention in practice in certain provinces. It notes the progress achieved in the Province of Ontario with regard to the recovery of the amounts actually due to workers. In general, the Committee would be grateful if the Government would in future provide with its report, in so far as possible, information of this nature concerning all the provinces in the Canadian territory, as it is only through such data that the Committee can assess the application of the Convention in practice.

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The Committee notes the detailed information provided in the Government's report. It notes in particular that, in the Province of Alberta, the number of complaints regarding violations of the minimum wage provisions has fallen from 53 in 1992-93 to five in 1996-97. It requests the Government to continue to provide general information on the application of the Convention, in accordance with Article 5 of the Convention and point V of the report form.