Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Albania

Protection of Wages Convention, 1949 (No. 95) (Ratification: 2001)
Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173) (Ratification: 2005)

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 95 and 173 (protection of wages) together.

Protection of Wages Convention, 1949 (No. 95)

Article 4 of the Convention. Payment of wages in kind Further to its previous comments, the Committee notes with interest that following the entry into force of Act No. 136/2015, a new paragraph was added to section 118(2) of the Labour Code pursuant to which the value of the wages in kind should be fair and reasonable and shall not exceed 20 per cent of the monthly wage.

Article 8(1). Deductions from wages. The Committee notes that section 122(2) of the Labour Code provides for certain deductions that the employer may make from the employee’s wages, including obligations stemming from a deliberately caused damage which would be compensated without restrictions. It recalls that deductions from wages shall be limited in accordance with Article 8(1). It also recalls that the Protection of Wages Recommendation, 1949 (No. 85), provides that: (i) deductions from wages for the reimbursement of damage to the products, goods or installations of the employer should be authorised only when loss or damage has been caused for which the worker concerned can be clearly shown to be responsible; (ii) the amount of such deductions should be fair and should not exceed the actual amount of the loss or damage; and (iii) before a decision to make such a deduction is taken, the worker concerned should be given a reasonable opportunity to show cause why the deduction should not be made. The Committee requests the Government to provide information on the application of section 122(2) of the Labour Code in practice and in particular on how it may be determined that a damage has been deliberately caused in this context.

Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173)

Applicable legislation. Further to its previous comments on the conflicting provisions addressing workers’ claims in case of the employer’s insolvency in various pieces of legislation, the Committee notes the amendment of section 605 of the Civil Code, following the adoption of Act No. 113/2016, which clarifies that section 605 does not apply to bankruptcy proceedings. The Committee further notes that: (i) section 124 of the Labour Code, which provides that, in case of insolvency, the employer’s obligations to the worker have priority over all other debts, also provides that such priority is not suspended by the procedure of bankruptcy; (ii) the new Bankruptcy Act (No. 110/2016) which repealed the previous legislation on bankruptcy (No. 8901/2002) contains provisions on workers’ claims which appear to be inconsistent with section 124 of the Labour Code; and (iii) the new Bankruptcy Act appears to give workers’ claims the same rank as claims for unpaid taxes (sections 38 and 144 of the Bankruptcy Act read together), which would not be in conformity with Article 8(1). In this context, the Committee notes that in its report submitted in 2011, the Government had indicated that under the Constitutional Court case law, laws which are adopted by three-fifths of the Members of the Parliament of Albania (such as the Labour Code) are ranked higher in the hierarchy of norms that the laws which are adopted by simple majority (such as the Bankruptcy Act No. 8901/2002 that was then in force). The Committee therefore understands that the relevant provisions of the Labour Code would prevail over those of the Bankruptcy Act. The Committee requests the Government to confirm whether section 124 of the Labour Code prevails over the abovementioned provisions of the Bankruptcy Act, and if so, to take the necessary measures to review the Bankruptcy Act in order to remove any conflicting provisions.

Article 6 of the Convention. Claims included in the privilege. In its previous comments, the Committee requested the Government to specify the claims covered under the wage claims privilege provided for under section 124(2) of the Labour Code. The Committee notes with interest that section 124(2) of the Labour Code has been amended by Act No. 136/2015, to specify that the first rank privilege granted to wage claims under that section covers the following claims: (a) workers’ claims for wages, for a period of not less than three months before the termination of employment; (b) workers’ claims for payment of unpaid leave, for the corresponding part of the year of the termination of employment, as well as during the previous year; and (c) severance payment upon termination of employment.