Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) - Cook Islands (RATIFICATION: 2015)

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Previous comment

Article 4 of the Convention. System of supervision and sanctions. Further to its previous comment, the Committee notes the Government’s indication in its report that the Employment Relations Act of 2012 (ERA) fails to (i) qualify non-compliance of the minimum wage as an offence, (ii) establish specific sanctions, and (iii) give effective enforcement tools to the Labour Inspectorate, whose powers are limited to giving advice and recommendations. The Government also indicates that: (i) if a worker is being paid less than a minimum wage it becomes an employment grievance which must be resolved through mediation or arbitration; and (ii) when the Labour Inspectorate receives a complaint related to the non-payment of the minimum wage, it reaches out to the employer and reminds him of his legal obligation, either in a formal or informal way, which in some cases has been successful and in others has failed. The Government adds that the case of migrant workers represents a big challenge because there have been cases where the migrant worker leaves the country without having the opportunity to seek remedial. The Committee also notes the Government’s indication that an amendment of the ERA 2012 and the adoption of a regulation on the Labour Inspectorate role and powers for a better enforcement on minimum wage compliance are envisaged. The Committee recalls that under Art. 4 of the Convention, a worker to whom the minimum rates are applicable and who has been paid wages at less than these rates shall be entitled to recover, by judicial or other appropriate proceedings, the amount by which he has been underpaid. It requests the Government to communicate information on any legislative development including provisions for supervision, inspection, and sanctions as may be necessary and appropriate to the conditions obtaining in agriculture in the country, aiming at ensuring that wages are not paid at less than the minimum rates of wages in force, in cases where they are applicable.

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The Committee takes note of the information provided by the Government in its first report.

Articles 1 to 4 of the Convention. Minimum wage system. The Committee notes that the Employment Relations Act of 2012 (ERA) and the Employment Relations (Review of Minimum Rate of Pay) Regulations of 2013 provide for the minimum wage-fixing machinery. The minimum rate or rates of pay are set by ministerial regulations. They are reviewed annually by a tripartite Review Panel. The Employment Relations (Minimum Rate of Pay) Regulations 2018 set the minimum wage rate applicable to all employees as of 1 July 2018.

The Committee further notes that no specific sanctions are provided for in the ERA in relation to the non-payment of wages. In this regard, the Committee draws the Government´s attention to Article 4 (1), which provides that compliance measures shall include such sanctions as may be necessary and appropriate in the country. The Committee requests the Government to provide information on the sanctions applicable in case of non-payment of the minimum wage as well as their application in practice.