Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - Lesotho (RATIFICATION: 1966)

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Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that in November 2020, the Governing Body approved the report of the tripartite committee set up to examine the representation submitted by the United Textile Employees (UNITE), the National Clothing Textile and Allied Workers Union (NACTWU) and the Lentsoe La Sechaba (LSWU), under article 24 of the ILO Constitution (GB.340/INS/18/8). Noting that the representation concerned the issue of consultations with workers’ representatives and their effective association in the operation of the minimum wage-fixing machinery, the Committee will examine the follow-up given to the recommendations of the tripartite committee under Article 3 below.

Article 3 of the Convention. Operation of the minimum wage-fixing machinery. Consultation of employers’ and workers’ organizations. In its previous comment, the Committee requested the Government to provide detailed information on the process which will lead to the next revisions of the minimum wage rates, including on the consultations. The Committee also notes that the Governing Body in its decision on the representation invited the parties to avail themselves of ILO technical assistance with a view to further supporting the participation of the social partners in, and the effective functioning of, the minimum wage-fixing machinery in the country. In this respect, the Committee notes that the Government indicates in its report that: (i) new members have been appointed to the Wages Advisory Board (WAB), following the expiry of the former mandate, and that they will be trained in the exercise of their functions regarding the minimum wage-fixing and the rules and procedures of the WAB; (ii) ILO technical assistance has been sought in this regard; (iii) although the WAB aborted the process of revising the minimum wage rates in 2020 due to the outbreak of COVID-19, they were finally revised in 2021; and (iv) negotiations on the revision of the minimum wage rates are expected to begin by November 2021. In this context, the Committee requests the Government to continue to provide information on the process of revision of the minimum wage rates and on the consultations held in this regard, including on the results of the training provided to the new members of the WAB. The Committee hopes that in this framework, the Government will be able to further avail itself of ILO technical assistance to support the social dialogue process on minimum wage-fixing in the country.

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Article 3 of the Convention. Operation of the minimum wage-fixing machinery. Consultation of employers’ and workers’ organizations. In its previous comments, the Committee requested the Government to continue to provide information on any progress made in strengthening the institutionalized framework for effective and genuine tripartite consultations in the operation of the minimum wage-fixing machinery. It notes that the Government indicates in its report that consultations were held with the representative organizations of workers for the establishment of the Wages Advisory Board. The Committee also notes that: (i) in accordance with sections 50 and 51 of the Labour Code, minimum wage rates may be established by the Minister of Labour acting upon the recommendations formulated by the Wages Advisory Board; (ii) section 52 of the Labour Code provides that the Board shall consider the revision of the minimum wage rates every calendar year; and (iii) the Board is composed of an equal number of representatives from workers’ and employers’ organizations (paragraphs 1 and 3 of the First Schedule of the Labour Code). The Committee further notes that minimum wage rates have last been revised in 2018 (Labour Code Wages (Minimum Wages) Notice of 23 August 2018). It notes that, while this revision appears to have been the result of a difficult process, the minimum wage levels set have been increased, bringing them closer to the levels recommended in the context of the technical assistance received from the ILO in 2012. Taking those circumstances into account, the Committee requests the Government to provide detailed information on the process which will lead to the next revisions of the minimum wage rates, including on the consultations which will be held in this respect.

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Articles 1 and 3 of the Convention. Minimum wage-fixing machinery – Consultations with the social partners. The Committee notes the Government’s indications that minimum wage rates are revised annually based on the recommendations of the Wages Advisory Board (WAB). It notes, in particular, the Labour Code Wages (Amendment) Order, 2012, which sets sector-specific minimum pay rates for the eight main sectors of the national economy as well as a general minimum wage for all other categories of workers. Minimum monthly wages vary, therefore, from to 385 maloti (LSL) (approximately US$42) for domestic workers to LSL908 (approximately $98) in the textile industry and LSL2,308 (approximately $249) in construction. In addition, the Committee notes the Government’s reference to an official study, carried out with the assistance of the International Labour Office, according to which the minimum monthly wage to cover workers’ subsistence needs would be LSL1,415 (approximately $155) while the minimum wage to cover their basic needs would be LSL2,148 (approximately $235). The Committee requests the Government to indicate the steps it intends to take in order to follow up on the findings and recommendations of the technical assistance received from the Office.

Moreover, the Committee notes the Government’s indication that the criteria applied by the Wages Advisory Board in recommending minimum wages for 2012–13 included among others the needs of workers and their families, the cost of living, the general level of wages, the relative living standards of other social groups, productivity levels and the capacity of employers to pay. The Committee requests the Government to indicate whether the social and economic considerations that must be taken into account in reviewing and readjusting minimum wage levels are now reflected in a specific legal text, and if so, to transmit a copy of the relevant document.

The Committee notes the Government’s explanations concerning certain difficulties encountered with respect to the appointment of WAB workers representatives and the conduct of tripartite consultations. More concretely, the Government indicates that the appointment of the new WAB members in 2012 met with complaints from the three workers’ federations that were excluded from nominating WAB members. An attempt was made to resolve the issue by signing a Memorandum of Understanding that outlines the manner in which the four workers’ federations will be represented in the statutory bodies, including the WAB, but apparently the impasse remains. In this respect, the Committee also notes that according to the Lesotho Decent Work Country Programme (Phase II) 2012–17 concluded on 29 February 2012 between the Government, its social partners and the ILO, the practice of social dialogue remains ineffective and uncoordinated often resulting in union rivalry and inadequate capacity of social partners to effectively influence policies, programmes and strategies. The DWCP 2012–17 framework agreement also indicates that the Labour Code does not provide clear criteria on which the Wages Advisory Board shall base its recommendations.

The Committee recalls, in this regard, that while one of the core requirements of the Convention is that the minimum wage fixing machinery must be set up and operated in consultation with representatives of the employers and workers concerned participating in equal numbers and on equal terms, the form in which this consultation and participation is to be carried out is left to be determined by national laws and regulations. As regards the appointment of representatives of employers and workers, however, the Committee wishes to refer to paragraph 206 of the 1992 General Survey on Minimum Wages, in which it noted that the fact that, as frequently occurs, certain countries recognize a certain number of rights in respect of the most representative organizations does not mean that minority organizations have no rights whatsoever. Recognition should at least be given to the right of minority organizations to make representations on behalf of their members, and, where applicable, to defend the individual interests of these members. The Committee therefore requests the Government to continue to provide information on any progress made in strengthening the institutionalized framework for effective and genuine tripartite consultations in the light of the priorities identified in the Decent Work Country Programme 2012–17 and the technical assistance provided by the International Labour Office regarding the operation of the minimum wage fixing machinery.

Article 4. System of supervision and sanctions. The Committee notes that according to the Government’s report, difficulties persist insofar as the enforcement of minimum wages in the domestic sector is concerned. Recalling the adoption of the Domestic Workers Convention, 2011 (No. 189), in particular Article 17 which requires ratifying member States to develop and implement measures for labour inspection, enforcement and penalties with due regard for the special characteristics of domestic work, the Committee requests the Government to consider appropriate enforcement measures in order to ensure compliance with the minimum wage rates applicable to domestic workers.

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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:

Repetition

Article 3(2) of the Convention. Minimum wage-fixing machinery. The Committee notes the Government’s explanations concerning the appointment of the Wages Advisory Board every four years with the participation of 12 employers’ and 12 workers’ representatives and the annual review of the minimum wage rates applicable to the eight main sectors of the national economy. The Committee understands that the Wages Advisory Board was last established by Labour Code (Establishment of Wages Advisory Board) Notice, 2008 (LN No. 76 of 2008) and that the minimum wage rates were last revised in 2011 for the following sectors: clothing, textile and leather manufacturing; construction; wholesale sector; retail sector; hospitality sector; service sector; small business; and domestic workers. The Committee requests the Government to continue to provide up to date information, including copies of any relevant legal texts, concerning the operation of the minimum wage fixing machinery.

Article 5 and Part V of the report form. Application in practice. The Committee notes the Government’s reference to the difficulties encountered by the labour inspection services in enforcing minimum wages in remote areas and in the domestic sector. The Committee would appreciate if the Government would make an effort to collect and transmit general information concerning the application of the Convention in practice, including, for instance, statistical data on the evolution of minimum wage rates in recent years as compared to the evolution of economic indicators such as the consumer price index in the same period, the approximate number of workers paid at the minimum wage rate, if possible broken down by sex and age, inspection results showing the number of contraventions of the minimum wage legislation and the sanctions imposed, copies of official surveys or reports on issues related to minimum wage policy, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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Article 3(2) of the Convention. Minimum wage fixing machinery. The Committee notes the Government’s explanations concerning the appointment of the Wages Advisory Board every four years with the participation of 12 employers’ and 12 workers’ representatives and the annual review of the minimum wage rates applicable to the eight main sectors of the national economy. The Committee understands that the Wages Advisory Board was last established by Labour Code (Establishment of Wages Advisory Board) Notice, 2008 (LN No. 76 of 2008) and that the minimum wage rates were last revised by Labour Code Wages (Amendment) Order 2008 (LN No. 158 of 2008) for the following sectors: clothing, textile and leather manufacturing; construction; wholesale sector; retail sector; hospitality sector; service sector; small business; and domestic workers. It also understands that the general minimum wage for workers employed in other sectors was readjusted in 2008 and currently stands at 844 loti per month (approximately US$115) for employees with 12 months of service or more. The Committee requests the Government to continue to provide up to date information, including copies of any relevant legal texts, concerning the operation of the minimum wage fixing machinery.  

Article 5 and Part V of the report form. Application in practice. The Committee notes the Government’s reference to the difficulties encountered by the labour inspection services in enforcing minimum wages in remote areas and in the domestic sector. The Committee would appreciate if the Government would make an effort to collect and transmit general information concerning the application of the Convention in practice, including, for instance, statistical data on the evolution of minimum wage rates in recent years as compared to the evolution of economic indicators such as the consumer price index in the same period, the approximate number of workers paid at the minimum wage rate, if possible broken down by sex and age, inspection results showing the number of contraventions of the minimum wage legislation and the sanctions imposed, copies of official surveys or reports on issues related to minimum wage policy, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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The Committee notes the report provided by the Government. It notes in particular the order issued in 2001 under the minimum wage provisions of the Labour Code readjusting minimum wages for 20 categories of workers and the information on the technical assistance received from the ILO in 2002 on methods of fixing and periodically adjusting minimum wages. Furthermore, the Committee notes the Government’s statement undertaking to provide with its next report statistical information on the results of the inspections carried out and requests it to also provide information on the same occasion on the measures taken to penalize failure to comply with minimum wage laws and regulations and on the number of workers actually covered by minimum wage regulations.

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The Committee notes the information provided by the Government in reply to its previous request.

The Committee notes that the Wage Advisory Board has been meeting at least once a year and has advised the Government on revising the minimum wages. It requests the Government to continue to supply information on the effects given in practice to the Convention, in accordance with point V of the report form, for instance: (i) the minimum wage rates in force; (ii) the results of inspection; and (iii) any other data on minimum wages, such as statistics available on the number and categories of workers covered, violations and sanctions imposed.

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The Committee notes the enactment of the Labour Code Order, 1992 (published on 12 November 1992). It notes that the minimum wage-fixing system through the tripartite Wages Advisory Board has been maintained. The Committee recalls that the last information provided by the Government on a wages order related to that of 1984. It therefore requests the Government to state whether the Wages Advisory Board has actually been meeting, and to communicate a copy of the latest wages orders and information on the number of workers covered and on the application in practice of the minimum wages (Article 5 of the Convention and point V of the report form).