Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with regret 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 matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Scope of application – Agricultural workers. The Committee notes that, according to the information provided by the Government in its last report, the General Labour Act does not apply to agricultural workers. However, it notes that the fourth final provision of Act No. 1715 of 18 October 1996 on the national agrarian reform service provides that rural wage earners will be incorporated into the scope of the General Labour Act under a “special scheme”. The Committee recalls that, in an observation that it made in 2003 in relation to the Labour Inspection (Agriculture) Convention, 1969 (No. 129), it considered that the repeal of section 1 of the General Labour Act and section 1 of Decree No. 244 issuing regulations under the General Labour Act was necessary to harmonize the legislation on this matter. The Committee requests the Government to provide information on the measures adopted or envisaged for this purpose.

Article 3. Payment in legal tender. The Committee notes that, according to the information provided by the Government in its last report, wages have to be paid in legal tender in accordance with Supreme Decree No. 7182 of 23 May 1965. However, it recalls that section 1 of the Act of 7 September 1901 only prohibits the use of “wage chips”, “stamps” or “vouchers” for the payment of daily wages. The Committee trusts that the Government will take measures rapidly to extend this prohibition to other forms of wages.

Article 5. Direct payment of wages. The Committee recalls that section 53 of the General Labour Act provides that wages must be paid on a working day and at the workplace, but does not explicitly provide that they must be paid directly to the worker concerned. It notes that in its previous reports the Government referred to a new draft General Labour Act, which was to bring the legislation into conformity with the Convention on this point. However, the Committee notes from the Government’s last report that the adoption of this draft text no longer appears to be under consideration. In this context, the Committee requests the Government to indicate the measures that it is planning to take to give full effect to this provision.

Article 8. Deductions from wages. The Committee notes that section 42 of Decree No. 244 issuing regulations under the General Labour Act still allows deductions to be made from wages when they are envisaged not only by the law or by the competent judicial authority, but also in the contract. It recalls once again that, under the terms of Article 8 of the Convention, such deductions may only be prescribed by national laws or regulations, a collective agreement or arbitration award, and it trusts that the Government will take the necessary measures in the near future to prohibit deductions envisaged solely in the employment contract.

The Committee also notes the Government’s indication in its last report that the deductions currently made from wages are intended for the payment of contributions to pension fund administrators and contributions for benefits relating to the various contingencies, as well as those monitored by the personnel administration in cases of “delays”. The Committee requests the Government to indicate which cases of delays are envisaged by this provision.

Furthermore, the Committee notes the Government’s confirmation in its last report that there is no provision establishing a limit to the amount of permissible deductions, although it indicates that in practice such deductions do not exceed 20 per cent of wages. The Committee once again requests the Government to take measures to establish a limit within which deductions from wages are authorized, with a view to securing the maintenance of the worker and his or her family.

With regard to public officials, the Committee notes that section 27(e) of Supreme Decree No. 25749 prohibits deductions from wages for political parties, even when they are made with the consent of the worker. It requests the Government to provide information on any other types of deductions that are authorized from the remuneration of this category of workers.

Article 9. Labour contractors or recruiters. The Committee notes that in its last report the Government maintained that, under the terms of section 31 of the General Labour Act, only the State may act as an intermediary between employers and workers. The Committee requests the Government to provide detailed information on the application of this provision in practice. With reference more particularly to agricultural workers, it refers to the observation that it is making on the present Convention concerning recruitment practices (enganche). The Committee also refers to the comments it made in relation to the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), concerning the progressive abolition of fee-charging employment agencies conducted with a view to profit.

Article 10. Attachment or assignment of wages. The Committee notes once again that section 179 of the Code of Civil Procedure establishes a limit to the attachments which may be made on the wages, but does not contain a similar rule for the assignment of wages. It recalls, as it explained in its General Survey in 2003 on the protection of wages (paragraph 272), that “when workers become indebted, part of their wages may be withheld by the employer in execution of a court order to this effect, known also as an attachment, garnishment or restraint order. Alternatively, workers may choose to agree with the competent judicial or administrative authority upon a voluntary arrangement, or assignment, whereby part of the wages are paid directly to the creditor in settlement of the debts”. The Committee draws the Government’s attention to the equal importance of establishing limits for attachments and assignments so as to ensure a decent standard of living for workers and their families. It trusts that the Government will take the necessary measures in the near future to establish such limits in the case of assignment of wages.

With regard to public officials, the Committee notes that, under the terms of section 27(d) of Supreme Decree No. 25749, remuneration may not be attached, except in cases of attachment determined by judicial decision of the competent authority and administrative penalties imposed under Supreme Decree No. 23318‑A of 3 November 1992 issuing regulations on the responsibility of the public service. It requests the Government to provide more specific information according to the procedures which the competent authority may order the attachment of wages through judicial decision or the attachment of wages may be decided by means of an administrative sanction. It also requests the Government to specify the limits within which wages may be attached in the above cases.

Article 12. Final settlement of the wages due. The Committee recalls that its previous comments concerned the absence of provisions of general scope, in the General Labour Act or Decree No. 244, establishing the obligation to pay the worker within a reasonable period of time all wages due upon the termination of the contract of employment, as such a rule has only been established for cotton and sugar cane workers (section 22 of Supreme Decree No. 20255). It notes the reference by the Government in its last report to section 1 of Supreme Decree No. 23281 of 29 August 1985, under which the period for the payment of social benefits due to workers in public and private enterprises and establishments may not exceed two weeks following the last day worked. The Committee would be grateful if the Government would clarify the scope of the term “social benefits”, with an indication of whether it also covers the wages due to workers, and if it would specify whether a similar provision is applicable to public servants.

Article 14. Informing workers of wage conditions. The Committee notes that section 7 of Decree No. 244 provides that the contract of employment must indicate the amount, form and period of the payment of wages. It recalls that its previous comments related to the measures adopted to inform workers of changes in wage conditions during the course of the employment relationship. It notes in this respect that, in its last reports, the Government has provided information on the measures that it has adopted to disseminate information on wage-related rights in general and on the fixing of the national minimum wage. The Committee is, however, bound to note that this information does not reply to the question raised above. As regards the duty of keeping workers informed of the wage particulars at the time of each payment of wages, in so far as such particulars may be subject to change, the Committee notes that the Government confined itself in a previous report to referring to the Supreme Decree of 9 March 1937, under which, in the event of a decrease in wages, employees have the choice of remaining in or leaving their jobs. As the Committee has already emphasized, a provision of this type is not such as to give effect to the Convention on this point. The Committee once again requests the Government to provide information on the measures adopted or envisaged to ensure the provision to workers of the information prescribed by this Article of the Convention. Indeed, as it emphasized in its General Survey of 2003 on the protection of wages (paragraph 460), “under modern conditions, the need to ensure greater transparency and protection of workers’ rights has raised the principle of keeping workers adequately informed of their wage conditions to the level of one of the fundamental requirements of the Convention”.

Article 15(d). Keeping of records. In its previous comments, the Committee requested the Government to provide information on the measures taken or envisaged to establish the obligation to keep records in an approved form and manner. It draws the Government’s attention to the specifications provided in Paragraph 8 of the Protection of Wages Recommendation, 1949 (No. 85), which indicates that employers should be required in appropriate cases to maintain records showing, in respect of each worker employed, the particulars specified in Paragraph 7 of the Recommendation, namely, the gross amount of wages earned, the net amount of the wages and any deduction. The Committee hopes that the Government will take the necessary measures as soon as possible to establish the obligation to maintain records of wages.

Part V of the report form. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for instance, extracts from the reports of the inspection services, information on the number of workers protected by the relevant legislation, the number and nature of any violations reported, etc.

The Committee would also be grateful if the Government would provide copies of the following texts, which are not available to the Office: Supreme Decree No. 7182 of 23 May 1965 respecting the payment of wages in legal tender and the Act of 19 March 1941 prohibiting the attachment of wages except for purposes of family assistance.