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

Zambie

Convention (n° 95) sur la protection du salaire, 1949 (Ratification: 1979)
Convention (n° 131) sur la fixation des salaires minima, 1970 (Ratification: 1972)
Convention (n° 173) sur la protection des créances des travailleurs en cas d'insolvabilité de leur employeur, 1992 (Ratification: 1998)

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 wages), and Conventions Nos 95 and 173 (protection of wages) together. The Committee notes the observations of the International Trade Union Confederation (ITUC) on the application of Convention No. 131, received on 1 September 2019.

Legislative developments. The Committee notes the adoption of the Employment Code Act 2019, which repeals a number of pieces of legislation which previously gave effect to the Conventions on wages, including the Employment Act and the Minimum Wages and Conditions of Employment Act.

Minimum wage

Article 1(1) of Convention No. 131. Coverage of the minimum wage system. Further to its previous comments, the Committee notes the information provided by the Government in its report, including the adoption in 2018 of amendments to the statutory orders fixing the minimum wage rates. Moreover, the Committee previously noted the Government’s indication that workers in the informal economy were not covered by minimum wage protection; in view of the large proportion of workers in that sector, the Committee requested the Government to take the necessary measures to extend the protection to such workers. In this respect, the Committee notes that the Employment Code Act 2019, like the repealed Employment Act, is potentially broad enough to cover workers in the informal economy.

Articles 3 and 4. Criteria for the determination of minimum wages. Operation of the minimum wage fixing machinery. Further to its previous comments, the Committee notes that the Employment Code Act 2019 establishes a new system for fixing and adjusting minimum wage rates. It notes in particular that the Labour Advisory Committee has the mandate to: (i) inquire into the wages and conditions of employment in any undertaking or sector in order to recommend minimum wages and conditions of employment; and (ii) review at least every two years and make recommendations to the Minister on the minimum wages and conditions of employment for any group of employees. The Committee also notes that the Government reiterates that the consumer price index is taken into account for the determination of the minimum wage levels. The Committee notes that the ITUC considers that, despite their revision in 2018, minimum wages in Zambia remain widely inadequate to meet the needs of workers and their families. The Committee requests the Government to provide its comments on the ITUC observations. It further requests the Government to provide information regarding the work of the Labour Advisory Committee in the context of the next examination of the minimum wage rates, including on the criteria taken into account when making recommendations to the Minister on the minimum wage levels.

Article 5. Enforcement. Informal economy. The Committee previously noted the Government’s indication that workers in the informal sector are not covered by minimum wage protection, and requested the Government to take the necessary measures to extend that protection to workers in the informal economy. While noting that the Government refers in its reply to the provisions of Part X of the Employment Code Act 2019 on the labour inspectorate and those on sanctions and redress, the Committee observes that legislative measures do not suffice to guarantee protection and that their application in practice is essential in this regard. The Committee requests the Government to take the necessary measures to ensure the effective application of minimum wage orders, including in the informal economy, and to provide information in this regard, including on labour inspection activities and other enforcement measures.

Protection of wages

Article 2 of Convention No. 95. Protection of wages of all persons to whom wages are paid or payable. The Committee notes that the Employment Code Act 2019 is the main legislation implementing the Convention. section 2 of the Act excludes from its application various categories of workers, including the Defence Force, the Police and Correctional Services and the Security Intelligence Service. Moreover, it provides that additional exclusions may be made by statutory instrument, after consultation with the Tripartite Consultative Labour Council. The Committee recalls that the Convention applies to all persons to whom wages are paid or payable. The Committee requests the Government to indicate how effect is given to the Convention for the categories of workers excluded from the scope of the Employment Code Act 2019.

Article 7(2). Works stores. Further to its previous comments, the Committee notes the Government’s reference to section 70(2) of the Employment Code Act 2019, which provides that employers may establish a shop for the sale of provisions to employees and that an employee shall not be compelled to purchase provisions at that shop, thereby giving effect to Article 7(1). The Committee recalls, however, that Article 7(2) provides that, where works stores for the sale of commodities to the workers are established or services are operated in connection with an undertaking, and access to other stores or services is not possible, the competent authority shall take appropriate measures with the object of ensuring that goods are sold and services provided at fair and reasonable prices, or that stores established and services operated by the employer are not operated for the purpose of securing a profit but for the benefit of the workers concerned. The Committee is bound to reiterate its request to the Government to indicate the measures taken to ensure compliance with this provision of the Convention.

Article 8(1). Deductions from wages. Further to its previous request, the Committee notes the Government’s reference to section 68 of the Employment Code Act 2019, which sets out the types of deductions from wages that are permitted. The Committee observes, however, that the Employment Code Act 2019 does not set out limits to those deductions. Recalling that, according to Article 8(1), deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award, the Committee requests the Government to take the necessary measures to establish limits to the amount of deductions authorized under section 68 of the Employment Code Act 2019.

Article 12. Regular payment of wages. The Committee has noted for many years recurrent difficulties with regard to wage arrears in the country, including but not limited to workers in the public sector. It requested the Government to provide detailed information regarding the amount of wage arrears, the number of workers affected, and the sectors of economic activity, if any, affected by irregular payment of wages. While noting the information provided by the Government on the relevant provisions of the Employment Code Act 2019, the Committee recalls that legislative conformity in itself does not guarantee compliance with the Convention. The Committee therefore requests the Government to provide information on the measures taken or envisaged to address situations of wage arrears in the country.

Article 14(b). Wage statements. Further to its previous request, the Committee notes that the Government refers to section 72 of the Employment Code Act 2019, which provides for the obligation of the employer to explain to the employee, before they commence employment or when changes in the nature of the employment take place, the rate of wages and conditions relating to the payment of the wages. The Committee requests the Government to indicate the measures taken to ensure that workers are also informed, in an appropriate and easily understandable manner, at the time of each payment of wages, of the particulars of their wages for the pay period concerned, in accordance with Article 14(b) of the Convention.

Protection of Workers’ Claims (Employer’s Insolvency)

Articles 5, 6 and 8 of Convention No. 173. Application to business rescue proceedings. With regard to business rescue proceedings under the Corporate Insolvency Act 2017, the Committee previously noted that the Act does not indicate whether wage claims prior to the commencement of the business rescue proceedings benefit from a privilege (Article 5), and that subsequently, the Act does not regulate the coverage (Article 6) and rank of such privilege (Article 8). In the absence of new information in response to its previous request in this regard, the Committee requests once again the Government to take the necessary measures to ensure that the protection of workers’ claims by means of a privilege is extended to business rescue proceedings. It requests the Government to provide information in this regard.

Article 8(1). Rank of privilege in situations of winding-up and receivership. The Committee notes that the Government does not respond to its previous comments concerning sections 8 and 127(2) of the Corporate Insolvency Act 2017, pursuant to which workers’ claims have a lower rank of privilege attached to them than state claims, in the context of winding-up and receivership. The Committee recalls that, in accordance with Article 8(1), national laws or regulations shall give workers’ claims a higher rank of privilege than most other privileged claims, and in particular those of the State and the social security system. The Committee therefore requests once again the Government to take the necessary measures in order to ensure full compliance with Article 8(1) and to provide information in this regard.