Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s succinct report and wishes to draw once again its attention to the following points.

Article 12, paragraph 2, of the Convention. The Committee recalls its previous comments concerning the situation of thousands of sub-Saharan migrant workers who were allegedly expelled from the Libyan Arab Jamahiriya in 2000 without receiving the wages owed to them. These comments were related to some earlier observations concerning the final settlement of wages due to Palestinian workers who had also been forced to leave the country in 1995. In addition, the question of the settlement of wage entitlements of Palestinian workers was discussed by the Conference Committee in June 1996, while in 1985 a representation was filed (which was finally withdrawn in 1991 after an agreement was reached between the parties concerned) under article 24 of the Constitution alleging non-observance of the Convention by the Libyan Arab Jamahiriya following the expulsion of many thousands of workers of Tunisian and Egyptian nationality.

In following these developments, the Committee has been consistently drawing attention to the following principles: (i) the obligation arising out of Article 12, paragraph 2, of the Convention is incumbent upon the employer(s) concerned and therefore the Government may not ask foreign workers to claim from their own governments the unpaid salaries; (ii) the Convention applies to all persons to whom wages are paid or payable, irrespective of the existence of a valid employment permit or formal contract; (iii) regardless of the reasons that may have prompted the deportation of foreign workers considered to be illegal immigrants, the Government is responsible for establishing whether any amounts are due to the workers concerned and ensuring that any existing wage debts are fully paid. As the Committee emphasized in paragraph 398 of its 2003 General Survey on the protection of wages, the principle of the regular payment of wages, as set out in Article 12 of the Convention, finds its full expression not only in the periodicity of wage payments, as may be regulated by national laws and regulations or collective agreements, but also in the complementary obligation to settle swiftly and in full all outstanding payments upon the termination of the contract of employment.

While dismissing the latest allegations as unfounded and grossly exaggerated, the Government confined itself to making conflicting statements. In fact, whereas the Government initially referred to the displacement of African illegal immigrants undertaken in full coordination with their respective home countries, in its last two reports it affirmed that no African or other citizen was forced to leave the country. Moreover, the Government has failed to provide specific information, as requested, concerning the circumstances surrounding the deportation of illegal immigrants, the number of workers affected, the total amount of wage claims settled or any outstanding payments. In light of the preceding observations, the Committee again asks the Government to communicate detailed particulars on the manner in which the situations described above have been handled and the measures taken to enable the workers concerned to recover all sums due to them.

Articles 2, 4, 7 and 8. The Committee recalls that it has been commenting for more than 25 years on the application of the above provisions, particularly as regards: (i) the coverage of agricultural workers by the Labour Code of 1970; (ii) the limits within which wages may be paid in kind; (iii) the conditions of operation of works stores; and (iv) the overall amount of permissible wage deductions. The Committee has indicated that these matters did not appear to be regulated in the terms required by the Convention and has repeatedly asked the Government to consider the adoption of appropriate legislation to give full effect to the relevant Articles of the Convention.

In earlier reports, the Government had referred to a commission set up in 1985 to advise on appropriate action with regard to the Committee’s comments, and subsequently to another national commission entrusted to examine outstanding questions related to International Labour Conventions and Recommendations, but no information was provided on any concrete measures taken following the recommendations of these commissions. In some other reports, the Government had indicated that Act No. 15 of 1981 on wages covered most of the issues raised by the Committee but no copy of that legislation was ever communicated to the Office. More recently, the Government stated that a new Labour and Employment Code was being drafted to remedy the existing shortcomings in legislation but no such text has as yet been adopted. The Committee is obliged to conclude that despite its persistent comments, the Government has been unable to provide any tangible sign of progress in aligning its legislation with the requirements of the Convention. The Committee therefore urges the Government to take at last the necessary action and to supply the long-awaited information respecting the measures taken to ensure strict compliance with the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2005.]