Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Yémen

Convention (n° 95) sur la protection du salaire, 1949 (Ratification: 1969)
Convention (n° 131) sur la fixation des salaires minima, 1970 (Ratification: 1976)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 131 (minimum wage) and Convention No. 95 (protection of wages) together. The Committee notes the observations submitted by the International Trade Union Confederation (ITUC) on the application of Convention No. 95 and the response of the Government, both received in 2017. The Committee notes the complexity of the situation prevailing on the ground and the presence of armed groups and armed conflict in the country.

Minimum Wage

Article 4 of Convention No. 131. Minimum wage-fixing machinery. Full consultation with employers’ and workers’ organizations. Further to its previous comments, the Committee recalls that: (i) Act No. 43 of 2005 on the positions, wages and salaries system has set the minimum wage level in the public sector (section 38(E)) and provided that the Civil Service Ministry is the competent body for establishing and adjusting minimum wages for public sector workers (section 5); (ii) the minimum wage for the public sector is extended to private sector workers, according to section 55(1) of the Labour Code; and (iii) section 11 of the Labour Code provides that the tripartite Labour Council is charged with submitting recommendations to the Government in relation to draft labour laws and regulations and the general policy on wages, incentives and other benefits. The Committee notes that the Government indicates in its report that the tripartite Labour Council will be activated when the civil war currently affecting the country ends. The Committee requests the Government to take all necessary measures to ensure that, once the situation in the country so allows, full consultation with representative organizations of employers and workers both in the public and in the private sector are held in connection with the review and adjustment of the level of minimum wages. It requests the Government to provide information in this regard.

Protection of Wages

In previous comments, the Committee has noted the lack of conformity of the national legislation, mainly the Labour Code, with some provisions of the Convention. The Committee notes that the Government indicates in its report that the draft amended Labour Code is being considered by the legislative authority and other official bodies, but that it has not been passed because of the current civil war and the disruption of the House of Representatives. The Committee requests the Government to ensure that its comments below will be fully taken into account in the finalization of the legislative review, once the situation in the country so allows. The Committee requests the Government to send a copy of the new Labour Code and any other relevant legislation giving effect to the Convention, once adopted.

Article 2 of Convention No. 95. Scope of application. The Committee recalls that several categories of workers, including domestic, casual and, in certain cases, agricultural workers, are excluded from the scope of the Labour Code (section 3(2)). Consequently, those workers do not benefit from the protection of wages afforded by the Labour Code. The Committee hopes that the new Labour Code will ensure that all workers benefit from the protection of their wages in accordance with the Convention. Concerning civil servants who are also excluded from the Labour Code, the Committee notes that while the Civil Service Act and its implementing Decree No. 122 of 1992 provide some protection for public sector workers, these pieces of legislation do not appear to give effect to a number of Articles of the Convention. The Committee requests the Government to provide information on the provisions of the national legislation or other implementing measures applying the requirements of the Convention to any category of workers who might be excluded from the application of the new Labour Code, once adopted.

Article 4. Partial payment of wages in kind. The Committee recalls that while payment in kind is allowed in the country (based on the definition of wages in section 2 of the Labour Code), the Labour Code only regulates it in relation to situations of remote work (sections 68 and 70). It also recalls that Article 4 requires that permissible allowances in kind be only those authorized by national laws and regulations, collective agreements or arbitral awards but not individual agreements, and that, when authorized, appropriate measures be taken to ensure that the allowances in kind be both appropriate for the personal use and benefit of workers and their family and their value fair and reasonable. The Committee requests the Government to take the necessary measures to give full effect to that provision of the Convention.

Articles 8(1) and 10. Deductions, attachments and assignments of wages. The Committee recalls that section 63 of the Labour Code, which provides for the possibility of withholding wages by agreement between the employer and the worker, is not fully in conformity with the Convention, which prescribes that deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards (Article 8(1)) and that wages may be attached or assigned only in a manner and within the limits prescribed by national laws or regulations (Article 10(1)), but in neither case by individual agreement. It also recalls that there appears to be no provision in the Labour Code providing that wages shall be protected against attachment or assignment to the extent deemed necessary for the maintenance of workers and their family (Article 10(2)). The Committee requests the Government to take the necessary measures to give full effect to these provisions of the Convention.

Article 9. Prohibition of employment fees to be deducted from wages. The Committee recalls the absence of legislative provisions prohibiting deductions from wages with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment, made by a worker to an employer or his or her representative or to any intermediary (such as a labour contractor or recruiter). The Committee requests the Government to take the necessary measures to give full effect to this provision of the Convention.

Article 12. Regular payment of wages. Settlement of wages at termination of employment. Application in practice. The Committee notes that ITUC refers to cases of non-payment of wages in the public sector. It also refers to the situation of workers who worked in three foreign companies that left the country in 2015 and have not received a final settlement of their wages despite decisions of the Labour Court and the Labour Arbitration Committee requesting these companies to pay workers’ salaries until the termination of their contracts. The Committee also notes that in reply to these observations, the Government indicates that it has endeavoured to pay the salaries of all employees of the administrative and military bodies of the State. While it admits that some issues regarding the payment of wages may persist in governorates under rebels’ control, it indicates that it is striving to remedy this situation. The Government adds that: (i) the case concerning two foreign companies has been referred to the Appeal Court and, in the meantime, the Ministry is using all adequate legal means to ensure the enforcement of the relevant legislation to these cases; and (ii) the case concerning the third company was the subject of a new judgment of the Appeal Court which resulted in the competent authorities putting the company’s property under precautionary attachment to ensure workers’ rights. The Committee requests the Government to continue its efforts to guarantee that all workers are paid throughout the country their due wages in full and to provide information on the follow-up given to the above-mentioned legal cases.