Protection of Wages Convention, 1949 (No. 95) - Senegal (RATIFICATION: 1960)

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Previous comments: C.26, C.99 and C95

In order to provide a comprehensive view of the issues related to the application of ratified conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 (Minimum Wage-Fixing Machinery), 95 (Protection of Wages) and 99 (Minimum Wage-Fixing Machinery) together.

Minimum wages

Article 3 of Convention No. 26 and Article 3 of Convention No. 99. Minimum wage fixing machinery. In response to the Committee’s previous comment, the Government indicates that Decree No. 2019-103 fixing the guaranteed minimum interoccupational wage (SMIG) and the guaranteed minimum agricultural wage (SMAG) as of 1 June 2018, was signed on 16 January 2019. The Government adds that in June 2023 the social partners proposed an 11 per cent increase for the SMIG and the SMAG. The Committee notes that Decree No. 2023-1710 fixing the SMIG and the SMAG applicable with effect from 1 July 2023 was adopted on 7 August 2023 and that it validated the proposed increase of 11 per cent.

Article 4 of Convention No. 26 and Article 4 of Convention No. 99. Penalties. Noting that neither the Labour Code nor Decree No. 2023-1710 provide for specific penalties in case of failure by the employer to pay the minimum wage, the Committee requests the Government to provide information on the nature and amount of the sanctions applied to ensure wages are not paid at less than the applicable minimum rates.

Protection of wages

Article 2 of Convention No. 95. Scope of application. The Committee requests the Government to indicate how effect is given to the provisions of the Convention in the public service.

Article 15(c). Penalties. The Committee requests the Government to provide information on the penalties imposed on employers in violation of the applicable texts on protection of wages that give effect to the Convention.

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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Article 6 of the Convention. Freedom of workers to dispose of their wages. The Committee notes the Government’s indications that articles L.129–L.134 of the Labour Code, the Uniform Act of the Organization for the Harmonization of Business Law in Africa and the relevant provisions of the Commercial Code, the Civil Code and the Code on Civil Procedure, guarantee the freedom of workers to dispose of their wages. The Committee recalls, however, that as mentioned in paragraph 210 of the 2003 General Survey on protection of wages, “nothing short of an explicit legislative provision setting forth a general prohibition upon employers from limiting the freedom of workers to dispose of their wages in any form or manner, directly or indirectly, and not simply in respect of the use of company stores, can be regarded as giving full effect to the requirements of the Convention”. The Committee trusts that if in the future any problem should arise in connection with the practical application of Article 6, the Government will take the necessary legislative measures to ensure its implementation and will provide full information thereon.

Article 8. Authorized deductions from wages. The Committee notes the Government’s renewed reference to section L.130 of the Labour Code on permissible deductions from wages. The Committee wishes to refer, in this respect, to paragraph 217 of the abovementioned General Survey, in which it explained the rationale underlying this provision of the Convention. In fact, the exclusive reference to national law or regulations, collective agreements and arbitration awards as being the only valid bases for effecting deductions from wages, aims to exclude “private” arrangements which might involve unlawful or abusive deductions to the detriment of the worker’s earnings. In the Committee’s view, provisions of national legislation which permit deductions by virtue of individual agreement or consent are not compatible with this Article of the Convention. As regards deductions for deposits (consignations) set out in individual agreements, the Committee considers that the level of protection required by the Convention would only be obtained if the types of deposits, which could amount to authorized deductions, as well as the procedures involved, were specifically spelled out in relevant laws or regulations. The Committee accordingly requests the Government to consider appropriate steps in order to ensure that the national legislation is brought into full conformity with the Convention on this point.

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Article 4 of the Convention. Partial payment of wages in kind. The Committee notes the Government’s explanations that the only authorized exceptions to the general prohibition against the payment of wages in kind is the provision of housing and food in accordance with sections L.106 and L.107 of the Labour Code and that, therefore, section L.109 of the Code must not be read as if it permitted any exceptions other than those referred to in sections L.106 and L.107.

Article 6. Freedom of workers to dispose of their wages. The Committee notes the indication of the Government that section L.133 of the Labour Code concerning works stores provides sufficient protection of the workers’ freedom to dispose of their wages. It recalls, in this connection, paragraph 178 of its 2003 General Survey on protection of wages, in which it expressed the view that provisions regulating deductions from wages, the attachment of wages or the use of company stores do not cover all the ways in which workers can be limited in their freedom to dispose of their wages and it is, therefore, necessary for the legislation implementing the Convention to contain an express provision generally prohibiting employers from restricting the freedom of workers to dispose of their wages. The Committee accordingly reiterates its hope that the Government will consider taking the necessary action in order to bring the national legislation into full conformity with the Convention in this regard.

Article 8. Types and extent of deductions from workers’ wages. The Committee notes the Government’s statement that the question of new legal provisions specifying the types and extent of deductions which may be prescribed in individual labour contracts will be thoroughly examined. It hopes that, in the interest of protecting workers from unfair and abusive deductions, detailed legal provisions will soon be adopted laying down specific conditions and limits to permissible deductions on the basis of individual agreement. It requests the Government to supply information on any progress made on this matter.

Part V of the report form. The Committee notes the statistical data provided by the Government concerning the results of labour inspections conducted in 2007 in eight administrative regions. It would appreciate if the Government would continue supplying up to date information on the application of the Convention in practice.

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The Committee notes 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 4 of the Convention. The Committee notes that article L.109 of the Labour Code provides that decrees shall establish the cases in which supplies, other than those under articles L.106 and L.107 (accommodation and regular supply of essential foodstuffs), must be granted. The Committee requests the Government to indicate whether there are regulations which allow the partial payment of wages in the form of allowances in kind other than housing and food supplies. It also asks the Government to supply a copy of the Decrees No. 5040/ITLS/SM of 17 July 1956 (JOS of 2 August 1956, p. 716) and No. 5645/ITLS/SM of 31 August 1953 (JOS of 31 August 1953, p. 897) as well as up to date information on the application in practice of articles L.106 and L.107 of the Labour Code.

Article 6. The Committee notes that, with the exception of article L.133 regarding works stores, the Labour Code does not contain a specific provision formally prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. It therefore requests the Government to indicate whether the absence of an express prohibition such as that provided for in the Convention has given rise to any difficulties in practice, and accordingly whether the Government has considered the advisability of taking the necessary legislative measures to ensure the implementation of this Article of the Convention.

Article 8. The Committee notes that under article L.130 of the Labour Code deductions may be made for deposits (“consignations”) set out in individual labour contracts. The Committee points out, however, that according to the terms of the Convention the types and extent of deductions from wages should be prescribed by national laws or regulations or fixed by collective agreement or arbitration award 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 which may be prescribed by individual labour contracts so as to ensure legislative conformity with this Article of the Convention.

Part V of the report form. The Committee finally requests the Government to supply information on the application of the Convention in practice, including, for example, extracts of official reports or statistical information on inspection visits, the number and nature of violations reported and sanctions imposed.

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The Committee notes the Government’s report and the adoption of Act No. 97-17 of 1 December 1997 establishing the Labour Code. In this connection, it wishes to draw attention to the following points.

Article 4 of the Convention. The Committee notes that article L.109 of the new Labour Code provides that decrees shall establish the cases in which supplies, other than those under articles L.106 and L.107 (accommodation and regular supply of essential foodstuffs), must be granted. The Committee requests the Government to indicate whether there are regulations which allow the partial payment of wages in the form of allowances in kind other than housing and food supplies. It also asks the Government to supply a copy of the Decrees No. 5040/ITLS/SM of 17 July 1956 (JOS of 2 August 1956, p. 716) and No. 5645/ITLS/SM of 31 August 1953 (JOS of 31 August 1953, p. 897) as well as up-to-date information on the application in practice of articles L.106 and L.107 of the Labour Code.

Article 6. The Committee notes that, with the exception of article L.133 regarding works stores, the Labour Code does not contain a specific provision formally prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. It therefore requests the Government to indicate whether the absence of an express prohibition such as that provided for in the Convention has given rise to any difficulties in practice, and accordingly whether the Government has considered the advisability of taking the necessary legislative measures to ensure the implementation of this Article of the Convention.

Article 8. The Committee notes that under article L.130 of the Labour Code deductions may be made for deposits ("consignations") set out in individual labour contracts. The Committee points out, however, that according to the terms of the Convention the types and extent of deductions from wages should be prescribed by national laws or regulations or fixed by collective agreement or arbitration award 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 which may be prescribed by individual labour contracts so as to ensure legislative conformity with this Article of the Convention.

Part V of the report form. The Committee finally requests the Government to supply information on the application of the Convention in practice, including, for example, extracts of official reports or statistical information on inspection visits, the number and nature of violations reported and sanctions imposed.