Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report.

Article 2, paragraph 2, of the Convention. Further to its previous comments, the Committee notes that homeworkers remain excluded from the application of the Labour Act, 1990 (Cap. 198) by virtue of subparagraph (e) of the definition of the term "worker" in section 91(1). Recalling that the same point was raised for many years by reason of an identical provision contained in the Labour Decree of 1974, the Committee requests the Government to indicate under what provisions the application of the Convention is ensured in respect of these workers. In addition, the Committee notes that under section 65 of the Labour Act the Minister for Employment, Labour and Productivity may make regulations concerning the employment and working conditions of domestic servants. The Committee requests the Government to specify whether any regulations have so far been issued under that provision and, if so, to transmit a copy of such regulations.

Article 5. The Committee notes that the Labour Act does not expressly provide for the payment of wages directly to the worker concerned, as required under this Article of the Convention. The Committee would be glad if the Government would indicate what measures exist to ensure the application.

Articles 6 and 12(1). The Committee notes that section 35 of the Labour Act provides that the Minister for Employment, Labour and Productivity may at his discretion allow for the deferment of the payment of up to 50 per cent of a recruited worker’s wages until the completion of the contract, and that upon completion of the contract the amount of the deferred wages will be paid to the worker at such place and in such manner as the Minister may define. The Committee recalls that in past comments made in relation to a similar provision contained in the previous Labour Code it had expressed the view that this system might not be consistent with the requirements of the Convention, and particularly Article 6, which prohibits any kind of constraint being placed on the use made by the workers of their wages, and Article 12, which requires payment at regular intervals. These comments were discontinued following the Government’s explanation that at that time there were no known cases of recruitment of workers in the country for overseas work and therefore no authorization for deferment of wages under the relevant section of the Labour Code. The Committee would appreciate receiving up-to-date information on the extent to which deferment of wages is currently authorized under section 35 of the Labour Code and the requirements which are imposed in such cases as regards the provision of security or a bond for the due payment of the deferred wages. The Committee would be particularly interested in determining whether sufficient guarantees exist to ensure that: the deferment of wages is practised only with the worker’s consent or at his specific request; that a recruited worker whose employment is terminated before the completion of the contract is entitled to withdraw the accumulated wages without delay; and that the employer (who may not necessarily be required to make appropriate deposits) is in practice in a position to pay all the deferred wages due upon the completion of the recruited worker’s contract. The Committee would also be grateful if the Government would supply a specimen copy of the contracts used for this type of employment concerned. Finally, the Government’s attention is drawn to paragraph 181 of the 2003 General Survey on the protection of wages in which the Committee concluded that under a compulsory deferred pay system the freedom of workers to dispose of their wages is manifestly impeded as to where and when they may spend their wages, since most of these wages are not available neither in the place in which they are earned nor at the time they are due. The Committee further pointed out that it is essential to ensure that such deferred pay systems are only operated on a purely voluntary basis, due regard being had to the requirements of Articles 6 and 12(1) of the Convention.

Part V of the report form. The Committee notes that the Government has not provided in recent years any information on the practical application of the Convention, particularly as regards measures to ensure compliance with the national legislation in respect of wage protection. The Committee therefore requests the Government to communicate in its next report all available information on the effect given to the Convention in practice, including for instance extracts from official reports, statistics on the number of inspection visits carried out and the results obtained in matters covered by the Convention, as well as any other particulars which would enable the Committee to better appreciate the progress achieved or the difficulties encountered in securing the observance of the standards embodied in the Convention.