Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 4 of the Convention. Partial payment of wages in kind. The Committee understands that the process of adoption of the new draft Labour Code is at an advanced stage and that the text is currently being examined by the State Consultative Council. In this connection, the Committee notes that the new draft Labour Code builds essentially on the provisions of Part IV on wages (sections 41–53) of the existing Labour Code Act No. 71 of 1987 which gives effect to most of the requirements of the Convention. However, one aspect which is not sufficiently regulated in either the Labour Code in force or the new draft Labour Code in its current wording is the partial payment of wages in the form of allowances in kind. The Committee recalls that since the definition of wages in Article 1 of the Convention covers any remuneration or earnings for work performed or services rendered, benefits in kind are by definition part of wages and should in consequence be regulated in accordance with the terms of this Article of the Convention. The Committee therefore requests the Government to consider appropriate measures to permit payment of wages in kind only to the extent and under the conditions laid down in Article 4(2) of the Convention.

By way of example, the Committee notes that under section 48.1(b) of the draft Labour Code, deductions from wages are permitted, among others, in respect of housing furnished by the employer to the worker but there seem to be no provisions seeking to guarantee the attribution of a fair and reasonable cash value to such allowance in kind, as prescribed by the Convention. In this respect, the Committee draws the Government’s attention to paragraphs 144–160 of its 2003 General Survey on the protection of wages which offer some guidance as regards possible ways in which legislative conformity with the Convention may be attained (e.g. general prohibition of payments in kind except for food and lodging, intervention of public officials in authorizing the type and cash value of payments in kind, or cash value of authorized goods and services fixed by law, setting an overall limit on the proportion of the money wages which may be replaced by benefits in kind, etc.). The Committee trusts that in finalizing the new Labour Code the Government will not fail to take into account the Committee’s suggestions. It accordingly requests the Government to keep the Office informed of all future developments in this regard and to transmit a copy of the new labour legislation once it has been adopted.

Article 12 of the Convention. Non-payment of wages owed to migrant workers. With reference to its previous observations concerning any measures to follow up on the recommendations of the ILO Governing Body following the Article 24 representation that was filed against Iraq in 1991 for non-observance of the Convention, the Committee notes the Government’s explanations and fully understands the practical difficulties it experiences in identifying names and retrieving wage records some two decades after these claims first arose. The Committee is also aware of the extraordinary challenges the Government faces in the current context of national reconstruction. Under these circumstances, the Committee expresses the firm hope that the Government will take all necessary measures to prevent the recurrence of any problems of non-payment of wages or accumulated wage arrears, in particular with regard to migrant workers. The Committee recalls that the Convention applies to all persons to whom wages are paid or payable (Article 2) irrespective of their nationality, work permit, or the characteristics of their contracts, and also that the Government remains responsible for effectively applying and enforcing the principles of regular payment of wages and prompt settlement of wage claims upon the termination of the employment contract. The Committee further expects the Government to take appropriate action so as to avoid problems such as those experienced in the past with relation to certain forms of payment of wages, for instance promissory notes, which would be in contravention of Article 3 of the Convention.

Part V of the report form. Application in practice. The Committee would appreciate if the Government would make an effort to collect and communicate general information on the manner in which the Convention is applied in practice, including for instance statistics on the number of workers covered by the relevant legislation, extracts from labour inspection reports showing the number and nature of wage-related offences reported and sanctions imposed, any difficulties experienced in the timely payment of wages in either the private or public sectors, etc.