Protection of Wages Convention, 1949 (No. 95) - Azerbaijan (RATIFICATION: 1992)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 131 (minimum wage) and 95 (protection of wages) together.

Minimum wage

Article 3 of Convention No. 131. Criteria for determining minimum wage levels. In its previous comments, the Committee requested the Government to provide information on how it ensured that the needs of the workers and their families were taken into account in determining minimum wage levels. The Committee takes note of the Government’s indications in its report that: (1) the minimum subsistence level is taken into account when determining the minimum wage level; (2) the minimum wage has increased significantly since 2004; (3) the Government is committed to bringing the minimum wage level closer to the average wage, as reflected in the concept of development “Azerbaijan 2020: Look into the Future” that was adopted by the President of the Republic through Decree No. 800 of 29 December 2012; and (4) the Government received technical assistance from the Office in 2015 on its minimum wage policy. The Committee requests the Government to continue to provide information on any developments in this respect.

Article 4(2). Participation of the social partners in the minimum wage fixing machinery. In its previous comments, the Committee observed that pursuant to section 155(6) of the Labour Code and section 5.3 of the Act on the Minimum Subsistence Level, the national minimum wage level was established by the Cabinet of Ministers without any reference to prior consultations. The Committee takes note of the Government’s indication that the Cabinet of Ministers, the Confederation of Trade Unions of Azerbaijan (AHIK) and the National Confederation of Entrepreneurs (Employers) of Azerbaijan (ASK) concluded a tripartite General Collective Agreement for 2016–17 by which the parties agreed to continue to gradually raise the minimum wage level.

Protection of wages

Article 4 of Convention No. 95. Partial payment of wages in kind. The Committee takes note of the information provided by the Government in its report in relation to wage payments in kind made in accordance with section 174(3) of the Labour Code.

Article 8. Deductions from wages. In its previous comments, the Committee noted that section 175(1) of the Labour Code allows deductions from wages based on the worker’s consent. Recalling that provisions of national legislation which permit deductions by virtue of individual agreements or consent are not compatible with Article 8 (2003 General Survey on the protection of wages, paragraph 217), the Committee requests the Government to take the necessary measures to bring the national legislation into conformity with Article 8.

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Article 2 of the Convention. Scope of application. Further to its previous comment, the Committee notes the Government’s reference to persons employed under civil law contracts as being one of the categories currently excluded from the coverage of the provisions of the Labour Code relating to wages protection. In this connection, the Committee understands that civil law contracts, i.e. employment relationships regulated under the Civil Code, are increasingly used to avoid more stringent social protection conditions prescribed by the Labour Code. The Committee also understands that the Government considers introducing a limit to the number of employees who may be hired on a civil law contract. Recalling that under Article 2(1), the Convention applies to all persons to whom wages are paid or payable, the Committee requests the Government to indicate how it is ensured, both in law and in practice, that the persons employed under civil law contracts enjoy, with respect to their wages, the specific protection set out in Articles 3–15 of the Convention.

Article 4. Partial payment of wages in kind. The Committee notes with interest the adoption of Act No. 313.IIIQD of 17 April 2007 amending section 174(3) of the Labour Code and lowering the maximum proportion of the wages that may be paid in kind from 50 to 20 per cent. Noting that in-kind payment may be in the form of consumer goods produced at the company employing the worker concerned, the Committee requests the Government to specify how it is ensured that such manufactured goods are, in all cases, appropriate for the personal use and benefit of the workers and their families, and valued fairly and reasonably. The Committee would also appreciate receiving a copy of the abovementioned Act of 2007.

Article 6. Freedom of workers to dispose of their wages. In the absence of any new information on this point, the Committee is obliged to recall that the Convention calls for an express prohibition against limiting in any form or manner the freedom of workers to dispose of their wages. The Committee therefore requests the Government to take the necessary measures to ensure that full effect is given to this requirement of the Convention.

Article 8. Deductions from wages. The Committee has been drawing the Government’s attention to section 175(1) of the Labour Code, which appears to allow unspecified deductions from wages – other than those listed in section 175(2) of the Labour Code – based on the worker’s consent. In this respect, it wishes to refer to paragraph 217 of the 2003 General Survey on protection of wages, in which it pointed out that the exclusive reference to national laws or regulations, collective agreements and arbitration awards as being the only valid legal bases for effecting deductions from wages, aims clearly to exclude “private” arrangements which might involve unlawful or abusive deductions to the detriment of the worker’s earnings. The Committee therefore again requests the Government to consider the adoption of appropriate measures in order to bring the national legislation into full conformity with the Convention on this point.

Part V of the report form. Practical application. The Committee notes the statistical data provided by the Government according to which, in 2010, labour inspection services recorded 1,191 violations concerning unpaid and miscalculated wages, and collected over 5.88 million Azerbaijani new mantas (AZN) (approximately US$7.35 million) in fines. The Committee requests the Government to continue to provide up-to-date information on the practical application of the Convention, including extracts from labour inspection reports showing the number and the nature of infringements reported and the sanctions imposed.

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The Committee notes the Government’s report containing replies to its previous comment. It requests the Government to provide further information on the following points.

Article 2 of the Convention. While noting the explanations of the Government concerning the validity of employment contracts concluded orally before the entry into force of the Labour Code of 1999, the Committee would thank the Government for clarifying whether oral contracts may still be concluded (e.g. those referred to in section 258(3)) and, if so, how the protection of wages is ensured for those contracts. Moreover, the Committee would be grateful if the Government would indicate how it is ensured that persons currently excluded from the scope of application of the Labour Code, such as persons working under subcontracting arrangements, on a task or commission basis, or under author’s or other civil contracts, enjoy the protection afforded by Articles 3 to 14 of this Convention.

Article 4. The Committee notes that section 174(3) of the Labour Code provides that, subject to the employee’s consent, up to 50 per cent of his/her wages may be paid in goods produced by the company or other consumer products, except alcoholic beverages and narcotic substances. Having regard to the exceptional nature of the practice provided for in Article 4 of the Convention, and also recalling the strict requirements which such practice should meet, the Committee requests the Government to further explain how it is ensured that: (1) payment in kind is limited to those industries or occupations where such mode of payment is customary or desirable because of the nature of the industry or occupation; (2) the goods and products offered in lieu of money are appropriate for the personal use and benefit of the worker and his/her family, and that they are valued fairly; and (3) adequate cash remuneration is left to cover the subsistence needs of the worker and his/her family, when as much as 50 per cent of the wages due is paid in kind. In addition, the Committee would be grateful if the Government would share any statistical data concerning the number of workers remunerated in kind and the approximate percentage of the wage bill that is replaced by goods and products in different sectors and branches of economic activity.

Article 6. In the absence of the Government’s reply on this point, the Committee recalls that this Article requires an appropriate legislative provision specifically prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages, and therefore again asks the Government to indicate how this Article is given effect in both law and practice.

Article 7. The Committee notes the information provided by the Government that the activities of works stores are regulated by the general legislation governing commerce, which does not require the workers to give preference nor impose the use of works stores. It requests the Government to consider adopting, on the first suitable occasion, measures to ensure that, when access to other stores or services is not possible: (1) goods are sold or services are provided at fair and reasonable prices; and (2) works stores are not operated for the purpose of securing a profit but for the benefit of the workers concerned.

Article 8. Further to its previous comment, the Committee notes that section 175(1) of the Labour Code seems to allow unspecified deductions with the worker’s written consent, whereas the Convention provides that deductions from wages can be made only under conditions and to the extent prescribed by national laws or regulations, or fixed by collective agreement or arbitration award, but not by individual agreements. The Committee again requests the Government to consider the adoption of suitable measures to specify the types and extent of deductions permitted with the worker’s written consent. In addition, while noting that section 173(2) of the Labour Code prescribes the information to be included in pay documents, namely, the name, type, reason and amount of deductions from wages, the Committee requests the Government to explain how the workers are informed of the conditions and limits on deductions in general, for instance, by including the relevant information among the contract details enumerated in section 43(2) of the Labour Code.

Article 10. While noting that section 176 of the Labour Code refers only to attachment of wages, the Committee asks the Government to specify whether the national legislation regulates the notion of assignment of wages and, if so, how.

Article 11. The Committee notes the Government’s explanations that section 178(2) of the Labour Code and section 53(1) of the Insolvency and Bankruptcy Act of 13 June 1997 grant third place of priority to wage claims in the event of the employer’s bankruptcy or insolvency.

Article 13(2). Further to its previous comment, the Committee requests the Government to indicate legal provisions prohibiting the payment of wages in taverns and other similar establishments, or in retail stores and places of amusement except for persons employed therein.

Article 15(c). While noting that sections 178(1) and 310 of the Labour Code refer generally to sanctions in pursuance to applicable laws for violations of the labour legislation, the Committee would appreciate receiving detailed information concerning the specific penalties, i.e. disciplinary, administrative, penal or others, provided for infringements of the provisions of Chapter VI of the Labour Code concerning wages.

Part V of the report form. The Committee notes the inspection results provided by the Government showing that a total of 2,067 complaints concerning delayed or non-payment of wages and other social benefits were received in 2005, 146 of which gave rise to judicial proceedings, and that 1.46 million-manat worth of unpaid wages were recovered. It requests the Government to continue providing up to date information on the practical application of the Convention, in particular labour inspection reports showing the number of violations observed and sanctions imposed.

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The Committee notes the information supplied by the Government in its report, in particular the adoption of the new Labour Code of 1 February 1999. In this connection, it requests the Government to supply more detailed information on the following points.

Article 2 of the Convention. The Committee notes that under section 6 of the Labour Code certain categories of persons are excluded from its scope of application, for instance, persons performing jobs under contractor, task, commission, author and other civil contracts. The Committee recalls, however, that the Government in its first report has not made use of the permissive provision of Article 2, paragraph 3, of the Convention and has not indicated any categories of workers that it proposed to exclude from the application of all or any of the provisions of the Convention. The Committee draws the Government’s attention to the fact that pursuant to its Article 2, paragraph 1, the Convention applies to all persons to whom wages are paid or payable, and therefore requests the Government to specify the measures taken or envisaged to extend the coverage of the national legislation on wage protection to the abovementioned categories of workers.

In addition, the Committee notes that under section 3(5) of the Labour Code, the term "employment contract" refers only to written contracts and that section 7(2) of the Code provides that labour relations are established upon the execution of a written employment contract. The Committee therefore asks the Government to indicate how wages are protected in cases of employment by virtue of unwritten contracts (e.g. in case of employment at individual peasant or family enterprises in the agricultural sector, where according to section 258(3) of the Labour Code, employment contracts may exceptionally be concluded verbally).

Article 3(1). The Committee notes that there is no specific provision in the Labour Code expressly prohibiting the payment of wages in the form of promissory notes, vouchers or coupons, or any other form alleged to represent legal tender. The Committee asks the Government to indicate the measures taken or envisaged to give effect to this provision of the Convention.

Article 4. Further to its previous comment, the Committee asks the Government to indicate: (i) whether wage payment in kind is limited to those industries or occupations where such mode of payment is customary or desirable because of the nature of the industry or occupation, as set out in Article 4, paragraph 1, of the Convention; and (ii) how is ensured in practice that the goods and products offered in lieu of money are appropriate for the personal use and benefit of the worker and his/her family and that they are valued fairly in accordance with Article 4, paragraph 2, of the Convention. In addition, the Committee would be grateful if the Government could clarify whether by authorizing as much as 50 per cent of the full cash wage to be paid in the form of allowances in kind, adequate cash remuneration is left to cover the subsistence needs of the worker and his/her family.

Article 6. With reference to its previous comment, the Committee recalls that this Article of the Convention requires an appropriate legislative provision specifically prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. Therefore, the Committee again asks the Government to indicate the measures taken or contemplated to give effect to the Convention in this regard.

Article 7. The Committee notes the Government’s statement that, in principle, works stores may not be established within the enterprise except for the convenience of the workers, and that their operation is regulated by general commercial legislation which does not provide for any preferential treatment or special measures for the workers concerned. The Committee would appreciate receiving additional information on the operation of works stores, in particular on the measures taken to ensure that: (i) workers are free from any coercion to use them; (ii) the goods are sold and services provided at fair prices; and (iii) the system is not operated for profit but for the benefit of the workers concerned, as set forth in this Article of the Convention.

Article 8. The Committee notes that section 175(1) of the Labour Code allows for wage deductions to be made by virtue of the worker’s written consent. The Committee is bound to recall, however, that under this Article of the Convention, the types and extent of permissible deductions should be prescribed by national laws or regulations or fixed by collective agreements or arbitration awards and not by individual agreements. It therefore requests the Government to consider the adoption of suitable measures to specify the types and extent of deductions permitted with the worker’s written consent. In addition, the Committee asks the Government to indicate the manner in which workers are informed of the conditions under which and the extent to which deductions may be made in general, as set out in Article 8, paragraph 2, of the Convention.

Article 10. The Committee requests the Government to specify the laws or regulations prescribing the conditions under which and the limits within which wages may be assigned.

Article 11. The Committee notes that the Government refers to the Insolvency and Bankruptcy Act of 1997 according to which wage claims are granted the third position among privileged debts after unpaid taxes and reparation claims for personal injury or death. The Committee requests the Government to supply a copy of the abovementioned Act.

Article 13(2). The Committee requests the Government to indicate the measures taken to ensure that payment of wages is not carried out in taverns and other similar establishments, or in retail stores and places of amusement except in the case of persons employed therein.

Article 15(c). Further to its previous comment, the Committee again asks the Government to supply information on the specific penalties prescribed for violations of the legislation on wage protection.

Part V of the report form. The Committee notes the statistical information provided by the Government in its report on the number of complaints filed with the Labour Inspectorate in 1999 for unpaid or miscalculated wages, the total amount of wages paid following the intervention of the Labour Inspectorate as well as the number of cases referred to judicial authorities for legal action. It requests the Government to continue to supply appropriate information in future reports, particularly on the results of inspection visits, the number and nature of the violations reported and the sanctions imposed.

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The Committee has noted the detailed information provided in the Government's report. It requests the Government to continue to supply information on any changes in the legislation and administrative regulations which give effect to the provisions of the Convention. The Committee also asks the Government to supply information on the following points.

Article 4 of the Convention. The Committee notes the Government's statement in the report that the national legislation does not provide for the payment of wages in kind in industry. It requests the Government to indicate whether, in practice, wages are paid in kind in industry, and if so, measures taken in accordance with Article 4(2). Recalling that the Convention applies not only to workers in industry but to all persons to whom wages are paid or payable (Article 2(1)), the Committee also requests the Government to indicate whether the payment of wages in kind is allowed in economic sectors other than industry and, if so, to supply information on measures taken to give effect to Article 4(2).

Article 6. The Committee asks the Government to indicate measures taken to ensure that employers should not limit in any manner the freedom of the worker to dispose of his or her wage.

Article 8. The Committee notes the Government's reference to sections 26 and 29 of the Penal Code regarding deductions from the earnings of workers sentenced to corrective work or to a fine. Noting that these provisions were not attached to the Government's report, it would be grateful to the Government for supplying copies.

Article 15(c). The Committee notes that sections 136 and 137 of the Penal Code, copies of which were received with the report, cover the infringement of labour legislation in the cases of unlawful dismissal and other fundamental infringement, and those which endanger the life or health of workers or have resulted in accidents to persons, respectively. It requests the Government to indicate what penalties are prescribed, and under which legislation, for infringements of the laws and regulations concerning the protection of wages.

Point V of the report form. The Committee finally requests the Government to supply information on the application in practice of the Convention, including, for example, extracts of official reports, and information on infringements of relevant laws and regulations reported and sanctions imposed.