Subject classification: Minimum Wage
Document:(Report III Part 4B)
Session of the Conference:79
Chapter II. Minimum wage fixing machinery
A. General observations
95. Conventions Nos. 26 and 99 stipulate that ratifying States undertake to create or maintain machinery whereby minimum wages can be fixed (Article 1, paragraph 1). To fulfil this obligation, the ratifying State must therefore take the necessary and appropriate measures to be able to intervene effectively when these wages are being fixed. However, these Conventions do not actually require the fixing of these wages; although, as mentioned above,(Endnote 1) minimum wage fixing machinery is only effective if it actually allows minimum wage rates to be fixed. Furthermore, this obligation to create machinery is neither general nor absolute; it is dependent upon various conditions as to its scope (Endnote 2) and limited as to its coverage. (Endnote 3)
96. Convention No. 131 not only stipulates that States which ratify this instrument are bound to establish minimum wage fixing machinery, but that these wages must actually be fixed (Article 1, paragraph 1, and Article 4, paragraph 1). The scope and coverage of this provision is in general unlimited,(Endnote 4) and both include and go beyond what is provided in Conventions Nos. 26 and 99.
97. Article 1, paragraph 1, of Convention No. 26 clearly indicates that the ratifying State is under no obligation whatsoever to create or maintain minimum wage fixing machinery if wages may be effectively fixed by collective agreement. The question does not therefore arise as to whether collective agreements constitute minimum wage fixing machinery or not, given that the States having ratified this Convention do not undertake "to create or maintain machinery whereby minimum rates of wages can be fixed for workers employed in certain of the trades or part of trades (and in particular in homeworking trades)" unless "no arrangements exist for the effective regulation of wages by collective agreement or otherwise, and wages are exceptionally low" (Article 1, paragraph 1) (emphasis added).
98. In the case of Convention No. 99, the obligation of States ratifying this instrument to create or maintain "adequate machinery whereby minimum rates of wages can be fixed for workers employed in agricultural undertakings and related occupations" (Article 1, paragraph 1) is not subject to any conditions. A State is therefore perfectly within its rights to fix minimum wages by means of collective agreement, especially since paragraph 1 of Article 2 specifically stipulate that collective agreements may authorise the partial payment of minimum wages in kind.
99. Between the adoption of Convention No. 99 and that of Convention No. 131, another Convention was adopted: the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), in which it is stipulated that "the fixing of minimum wages by collective agreements freely negotiated between trade unions which are representative of the workers concerned and employers or employers' organisations shall be encouraged" (Article 10, paragraph 1).
100. The instruments adopted in 1970 clearly permit the fixing of minimum wages by collective agreement. Article 2, paragraph 2, of Convention No. 131 states that, subject to certain provisions, freedom of collective bargaining must be fully respected. These provisions, contained in paragraph 1 of the same Article, are that minimum wages should have: (a) the force of law; (b) not be subject to abatement; and (c) that failure to apply them shall make the person or persons concerned liable to appropriate penal or other sanctions.(Endnote 5) Furthermore, Recommendation No. 135 states that minimum wages may be fixed by, among other things, giving the force of law to collective agreements (Paragraph 6).
101. In this respect, the Committee points out that the legislation of a number of countries specifically provides that the clauses of collective agreements are binding for the parties having signed them and that infringements will be penalised in all cases. Consequently, collective agreements may be said to constitute minimum wage fixing machinery in the sense of these Conventions. This clearly emerged from the discussions that took place in the Committee on Minimum Wage at the International Labour Conference in 1970.(Endnote 6)
102. Now that the obligations are incumbent upon the ratifying States as regards the establishment of minimum wage fixing machinery and the actual fixing of these wages have been determined, it is time to examine how minimum wage fixing machinery has been established, the exclusions from their coverage, and the types of existing machinery.
B. Establishment of minimum wage fixing machinery
1. National constitutional provisions
103. National constitutional provisions are either limited to including the minimum wage among the rights of workers or provide as well for the way in which this wage should be fixed. In the first case, these provisions do not establish a minimum wage fixing machinery in the strict sense of the term; however, this machinery is normally the direct consequence of these provisions in so far as minimum wages are fixed as a result of this constitutional obligation. This is the case, for example, in Argentina,(Endnote 7) Bulgaria, (Endnote 8) Colombia, (Endnote 9) Guatemala, (Endnote 10) Panama (Endnote 11) and Portugal (Endnote 12). In other cases, the Constitution not only recognises the right of workers to a minimum wage (the composition of which is usually defined in the text of the constitution), but also describes the wage fixing machinery that should be used. This example may be found in Brazil, (Endnote 13) Honduras, (Endnote 14) Mexico (Endnote 15) and Yugoslavia. (Endnote 16) In all cases, the constitutional provisions relating to minimum wage fixing machinery are supplemented by other legislation.
104. Consequently, even if constitutions provide for a minimum wage and sometimes even define how it is to be fixed, no machinery should be considered as established unless appropriate legislation has been adopted to apply the constitutional provisions. The Committee does not feel that it has to insist here upon the distance which may exist between a constitutional principle and its application.
2. Legislative provisions
105. The establishment of minimum wage fixing machinery is often provided for in the Labour Code or other laws, either in the absence of any constitutional provision(Endnote 17) or in application of such a provision. (Endnote 18) In countries in which this machinery is established by legislation, one and the same legal text might regulate all matters concerning the fixation of minimum wages; (Endnote 19) or these matters might be subject to a series of legal texts with different coverage, even if two or more texts cover the establishment of the same machinery. (Endnote 20) When these provisions are contained in the Labour Code, they are sometimes supplemented by regulations, decrees, legislative decrees and other regulations. This is due to the fact that the Labour Code does not always apply to all workers and sometimes excludes a number of them from its coverage; for example, agricultural workers, homeworkers and other categories of workers. There may be total exclusions, in which case there is no minimum wage fixing machinery at all, (Endnote 21) or other legal texts may define the machinery to be applied.
106. The Committee recalls that, as it has already pointed out in Chapter I, the coverage of the three instruments examined here is not the same.
1. Groups or categories of persons excluded
107. The available information shows that general legislation sometimes excludes certain groups or categories of persons from the application of minimum wages. In some cases this exclusion is not absolute. For instance, public servants or seafarers are usually covered by special legislation, but very few governments have provided any information on this.
108. Generally speaking, although the legislation relating to the fixing of minimum wages excludes certain groups or categories of persons from its coverage, this does not mean that they are not covered by other provisions. Given the wide range of exclusions provided for in the legislation of various countries, the Committee will only refer to a certain number of them. Furthermore, in some countries, the competent authorities may authorise other exceptions.(Endnote 22) It should also be noted that in States with a federal system, the exclusion of certain groups or categories at federal level does not necessarily imply that no minimum wage is applied to them; indeed, the legislation of constituent states or provinces in States with a federal system might fill the gap. In the United States, for example, some groups of workers are specifically excluded from the coverage of federal legislation on minimum wages; but the legislation of some constituent States or territories guarantees these workers protection in this area.
109. An examination of the legislation in various countries indicates that exclusions may apply to the following groups or categories of persons: older workers, for example in Chile(Endnote 23) and the Netherlands; (Endnote 24) disabled workers, for example in Chile (Endnote 25) and Japan; (Endnote 26) persons working in non-profit-making institutions, such as religious, philanthropic, political, patriotic or charity institutions or rehabilitation centres, for example in Canada (Endnote 27) and the United States; (Endnote 28) part-time workers, for example in Nigeria; (Endnote 29) young workers or apprentices, for example in Chile, (Endnote 30) Ghana, (Endnote 31) Japan, (Endnote 32) and the United Kingdom; (Endnote 33) domestic workers, for example in Botswana and Canada, (Endnote 34) Chile, (Endnote 35) the Dominican Republic, (Endnote 36) the Philippines, (Endnote 37) Qatar, (Endnote 38) Syrian Arab Republic (Endnote 39) and Turkey; (Endnote 40) employees, such as babysitters, companions for older persons or the sick, or drivers privately employed by individuals, for example in Canada (Endnote 41) and Philippines, (Endnote 42) and students undergoing training or working in summer and recreational camps or in charitable or community institutions, for example in Canada. (Endnote 43)
2. Industries, enterprises and occupations excluded
110. The information that has been received shows that legislation may exclude some industries, enterprises and occupations. As pointed out under the section on exclusions of groups or categories of persons,(Endnote 44) the legislation in States with a federal system may exclude certain groups at the federal level; but this does not necessarily imply that these exclusions apply at the level of their constituent states or provinces. What is more, in a number of countries, the competent authorities are able to authorise other exclusions without this being specifically stipulated in the national legislation. (Endnote 45) The Committee will only mention some industries, enterprises and occupations that are excluded, because these cases are as diverse as the coverage of the relevant national legislative texts. The following are examples: homeworkers; (Endnote 46) certain categories of fishermen or workers employed in fishing in general, including persons employed in the fishing trade; (Endnote 47) trappers; (Endnote 48) certain categories of salesmen; (Endnote 49) the agricultural sector or certain agricultural workers or enterprises; (Endnote 50) workers in the construction industry, persons employed in logging or on an off-shore oil well drilling rig; (Endnote 51) establishments with a small number of workers; (Endnote 52) establishments employing part-time workers; (Endnote 53) establishments employing persons working on piece-work or on a commission basis; (Endnote 54) and poultry-keepers. (Endnote 55) In the Dominican Republic, establishments, the value of whose equipment and capital does not exceed 10,000 gold pesos, have been excluded from the application of the minimum wages which are applicable to all sectors of activity. (Endnote 56)
D. Types of minimum wage fixing machinery
111. Recommendation No. 135 lists various forms of minimum wage fixing machinery, stipulating that minimum wages may be fixed by: (a) statute; (b) decisions of the competent authority, with or without formal provision for taking account of recommendations from other bodies; (c) decisions of wage boards or councils; (d) industrial or labour courts or tribunals; or (e) giving the force of law to provisions of collective agreements (Part IV, Paragraph 6). It should be recalled, however, that this list is not exhaustive and only serves as an illustration.(Endnote 57)
112. After examining the national law and practice, the Committee has been able to identify various types of minimum wage fixing machinery. Taking into consideration the way in which these minimum wages are fixed, it is possible to make the following classifications: (a) minimum wage fixing machinery based on a decision taken by the authorities or competent body; and (b) minimum wage fixing machinery by means of collective agreement. In the first of these categories, we may observe minimum wages fixed by: (i) statute; (ii) means of a government decision; (iii) wage committees, councils or boards; (iv) court rulings; and (v) arbitration awards. Furthermore, if minimum wage fixing machinery is considered from the standpoint of its coverage, the following may be observed minimum wages: (a) with overall coverage; (b) by regions or zones; (c) for branches of economic activity; and (d) for occupational categories.
113. In indicating this classification, it should not be overlooked that these various elements may be combined or may even be complementary. The fixing of overall minimum wages by statute or regulation, applicable at the national level, might be combined with machinery that fixes minimum wages at branch level by collective agreement for each step in the hierarchy. Collective agreements may be national or have more limited geographical coverage. Minimum wages fixed by collective agreement cannot be lower than the statutory minimum rate where such exists. Other possible combinations are possible, as will be seen later in the text.
114. The Committee will examine each of these types of minimum wage fixing machinery in the light of national law in force or practice. However, collective agreements will not be mentioned unless the national legislation specifically states that minimum wages shall be fixed in this way or when the government indicates that this is the case. The Committee also points out that in cases in which it does not have enough information on national practice, the description of the machinery is based solely on the texts of legislation available and that it is not then in a position to ascertain if these texts are effectively applied. Furthermore, in some States,(Endnote 58) there are two or more types of machinery which are usually complementary.
1. Classification according to the kind of measures taken
1.1 Minimum wage fixing based on a decision taken by the authorities or competent body
1.1.1. Minimum wages fixed by a statute
115. The fixing of minimum wages by means of a statute implies that the legislature plays a vital role in this area. This is the case in Brazil, where, apart from the minimum wage fixed by law,(Endnote 59) "wage levels" may be fixed also by statute in special cases; these are higher than the minimum wage for the occupational category in question. (Endnote 60) In Canada, minimum wages applicable to workers employed in a federal enterprise or connected with a job at federal level are fixed by the Canadian Labour Code; (Endnote 61) in the Northwest Territories, minimum wages are also fixed by law. (Endnote 62) In Chile, the monthly minimum wage is fixed by law. The Government and the most representative employers' and workers' organisations participate in the machinery by negotiating on the amount and readjustment of this income; these negotiations result in a national agreement that precedes the bill submitted to Parliament. In the United States, in addition to the minimum wages is fixed by law at federal level, (Endnote 63) the states may fix other minimum wages provided that they are not lower than the federal minimum wage. In 34 states (Endnote 64) and in Guam, these minimum wages are fixed exclusively by statute. In five other states, (Endnote 65) as well as in the District of Columbia, Puerto Rico and the Virgin Islands, minimum wages may be fixed not only by law but also by orders adopted by the competent authority. (Endnote 66) Minimum wages are also fixed by law in Egypt, (Endnote 67) Israel, where national legislation provides that the minimum wage must be equivalent to 45 per cent of the average wage in the country (Endnote 68), Luxembourg, (Endnote 69) Netherlands, (Endnote 70) Nigeria, where national minimum wages are established by law, (Endnote 71) and in Yugoslavia. (Endnote 72)
1.1.2. Minimum wages fixed by means of a government decision
116. In a number of countries, minimum wages are fixed by decrees or orders issued by the executive, without any other body being involved in the machinery. This is the case in Algeria for the fixing of the national minimum guaranteed wage (SNMG).(Endnote 73) In Argentina, there are four cases in which the Government may intervene directly in the fixing of minimum wages. First, the Government determines the subsistence wage of agricultural workers. (Endnote 74) Second, the Under-Secretariat of Labour determines the initial minimum wage and the sliding scale of wages of apprentices from 14 to 18 years of age. (Endnote 75) Third, the legislation stipulates that the executive fixes the minimum wages of domestic workers; (Endnote 76) however, the Committee does not have any information on the contents of these regulations. Finally, the minimum wages of homeworkers are fixed by orders issued by the Ministry of Labour and Social Security in the case of industries in which no wage committees have yet been set up.
117. In the federal jurisdiction in Canada, although the minimum wage is fixed by law, the Governor in Council may increase this wage by order. Furthermore, when the wage is neither calculated nor paid, either totally or partially, according to the amount of time worked, the Minister may fix a minimum wage rate by order which is considered equivalent to the rate fixed by statute. In five Canadian provinces minimum wages are fixed by government regulation without the intervention of any other body.(Endnote 77)
118. In Cuba, the monthly minimum wage is fixed by the Council of Ministers after it has sought the advice of the Confederation of Workers.(Endnote 78) In Chad, the Council of Ministers, acting on a proposal from the Ministry of Labour and Social Welfare, fixes the minimum inter-occupational guaranteed wage (SMIG). (Endnote 79) In Mali, the President fixes the minimum inter-occupational guaranteed wage by decree. (Endnote 80) In New Zealand, an order from the Governor-General, acting on behalf of the Executive Council, fixes a minimum wage that is applicable to all workers over 20 years of age. (Endnote 81) In the Netherlands, at the request of an employer or an employers' or workers' organisation with legal personality, the Minister of Social Affairs and Employment is empowered to fix a minimum wage for workers belonging to a specific category that it determines. This wage may, under certain conditions, be lower than the minimum statutory wage in force. (Endnote 82) In Nigeria, even though minimum wages are not normally fixed by decree, everything would seem to indicate that minimum wage rates fixed by the National Minimum Wages Act of 1981 (Endnote 83) have been revised by means of a decree amending this Act. (Endnote 84) In Spain, the minimum inter-occupational guaranteed wage is established by Royal Decree after consultations with the most representative trade union organisations and employers' associations. (Endnote 85)
119. In Sri Lanka, there are two cases in which minimum wages are fixed by a governmental authority without an ad hoc body intervening in the process. In the first case, the competent minister may authorise the Labour Commissioner to fix the minimum wages of workers in branches of economic activity for which no wage council has been set up; or, if it has been set up, when no applicable minimum wage rates have been determined.(Endnote 86) The second case concerns only workers in shops and offices. If considered appropriate or at the request of the workers or employers concerned or one or more of their trade unions, the Minister may ask the Labour Commissioner to fix the remuneration of these workers. This remuneration is only established and applied in the shops and offices in which the workers and employers concerned have given their consent. (Endnote 87)
120. Mention may also be made of the following countries, where minimum wages are fixed by an act of government without the intervention of an ad hoc body: Angola,(Endnote 88) China, Equatorial Guinea, Morocco, (Endnote 89) Mozambique, (Endnote 90) Qatar (Endnote 91) and Singapore. (Endnote 92)
121. In some countries, minimum wages are fixed by regulation in the absence of competent bodies or if there is no agreement providing coverage. In Colombia, for instance, the new provisions in the Labour Code concerning minimum wage fixing stipulate that the Government should only intervene by decree when the National Labour Council is unable to fix these wages by consensus.(Endnote 93) In this case, reference is made to the minimum statutory wage. This also applies in Finland; in the absence of a collective agreement covering them, domestic workers are entitled to the minimum wage rates fixed by the State Council. (Endnote 94)
122. In other countries, government decisions are preceded by consultations with ad hoc bodies.(Endnote 95) In Germany, although the Government has stated that minimum wages are fixed exclusively by collective agreement, the Committee nevertheless points out the existence of legislation providing for other minimum wage fixing machinery. Under this legislation, the Federal Minister for Labour may set up a tripartite general committee for minimum conditions of employment, when: workers' or employers' associations for the industry or employment category exist or only embrace a minority of the employees or employers concerned; there are no collective agreements of general and binding application; or when the prescribing of minimum conditions of employment appears necessary for the satisfaction of the indispensable social and economic needs of the employees. This general committee is entitled to make proposals for prescribing, varying or revoking minimum conditions of employment. In addition, specialised committees (tripartite), set up by the Federal Minister for Labour, are responsible for establishing, in a resolution, minimum conditions of employment for the branches of economic activity and categories of employment for which they are competent, including minimum wages. However, these minimum conditions of employment must be approved by the Federal Minister for Labour, (Endnote 96) Similar machinery exists for the establishment of homeworkers' wages, but the competent body in this matter is the Homework Committee which covers the corresponding branch of economic activity. (Endnote 97) Nevertheless, according to the information supplied by the Government, it has not been necessary to establish minimum conditions of employment through these state procedures since 1952.
123. In Canada, in two provinces, the competent government authority fixes minimum wages by regulation after considering the recommendations of the wages boards.(Endnote 98) In the United States, six states, (Endnote 99) as well as the Virgin Islands, provide in their legislation for the convening of wage boards to fix minimum wages; in practice, however, according to information provided by the Government, these boards are not convened and wages are fixed by means of administrative decisions which revise rates previously fixed by decree or by administrative regulations preceded by public hearings. In certain states, the minimum wage fixing machinery provides for the convening of a wages board (California), council (Wisconsin) or committee (Puerto Rico and District of Columbia) which submits recommendations to the competent authorities so that they may establish minimum wages. Furthermore, there are usually public hearings on the subject of proposed minimum wage rates. (Endnote 100)
124. In Guatemala, minimum wages are fixed by the Ministry of Labour on the basis of reports the National Wage Board submits to it after taking into account the reports prepared by the joint wage boards.(Endnote 101) In Honduras, minimum wages are fixed by an agreement adopted by a Minimum Wage Board, a tripartite body established for a particular branch of economic activity. However, the wage-fixing process includes surveys carried out by the General Directorate of Wages, consultations by means of the Official Gazette and approval of the final draft agreement by the Secretariat of Labour and Social Welfare; the latter may not refuse to give its approval if it has returned the draft agreement to the Minimum Wage Board for reconsideration. (Endnote 102) In Japan, in certain cases where workers are poorly paid, the Minister of Labour or the Director of the Prefectural Labour Standards Office may fix minimum wage rates following a decision by the Central Minimum Wages Council or the Prefectural Minimum Wages Council. (Endnote 103) The minimum wages applicable in the case of the lowest paid homeworkers are fixed by the same bodies, but following a decision by the Prefectural Homework Council or the Prefectural Minimum Wages Advisory Council of the Prefectural Labour Standards Office in prefectures where there is no homework council. (Endnote 104) Finally, where an inter-enterprise minimum wage agreement exists, the Minister and the Director of the Prefectural Labour Standards Office may, at the request of the parties concerned and taking account of these minimum wage rates, fix minimum wages that must be applied to their workers by the employers who are parties to the agreement or the members of the organisations that concluded it. (Endnote 105) Under certain conditions these minimum wages may be declared applicable to all workers in the branch of activity and the region concerned. (Endnote 106)
125. In Panama, minimum wages are established by a decree issued by the Executive, on the recommendation of the National Minimum Wages Committee, a tripartite body. This Committee may appoint special boards for one or several industries or branches of activity in one or more areas or regions, to allow them to study their conditions and propose corresponding minimum wages.(Endnote 107) In Portugal, the Government fixes the national minimum wage rate by legislative decree, after having sought the advice of the Standing Council for Social Dialogue (CPCS) and the Advisory Youth Council (CCJ). (Endnote 108) Similar machinery is found in the following countries: Saudi Arabia; (Endnote 109) Ghana; (Endnote 110) Guyana; (Endnote 111) India. (Endnote 112)
126. In a number of countries, there are procedures in which wage councils or committees play an active part. The competent authority makes use of these procedures whenever they are required, in the absence of efficient wage-fixing machinery. At a first stage, the competent wage board or council makes inquiries or conducts any necessary research. Secondly, consultations are often organised through the official gazette or by other means. Finally, the board or council submits its recommendations on minimum wages to the competent authority, which actually fixes them. The authority may, when it considers it appropriate, ask for these recommendations to be re-examined and amended.
127. In Bangladesh, the Government decides minimum wage rates on the basis of recommendations submitted to it by the Minimum Wages Council.(Endnote 113) In Botswana, minimum wages are fixed, adjusted or abolished by ministerial order, on the basis of recommendations submitted by the Minimum Wages Advisory Board. (Endnote 114) In Fiji, the competent wages council submits its proposals on minimum wages to the responsible minister, who may exchange views with the council, and then fixes the minimum wage rates that will be finally applied. (Endnote 115) In Kenya, minimum wages are fixed by orders of the competent Minister, following consideration of the recommendations submitted by the General Wages Advisory Board or the Agricultural Wages Advisory Board, which may be assisted by an Area Agricultural Wages Committee; they may also be fixed by wages councils where these have been set up. (Endnote 116) The Minister is also empowered to fix minimum wages at his own initiative. (Endnote 117) In Malta, there are two types of machinery for fixing minimum wages by means of a government decision. In the first, the Minister of Labour fixes the national minimum wage, after having examined recommendations from the Labour Board, a tripartite body. (Endnote 118) In the second, the Minister fixes them by means of an order, once he has received proposals from the competent wages council, minimum wages to be applied to the workers included in the field of operation of the wages council in question. (Endnote 119) In Sri Lanka, minimum wages are fixed not only by government decision without the intervention of any ad hoc body; the minister concerned may also approve, by notification, the decision taken on minimum wages by the competent minimum wages board. (Endnote 120) In Swaziland, the Advisory Wages Board submits its recommendations on minimum wage rates to the Commissioner and, if necessary, proposes the setting up of a wages council. (Endnote 121) The Commissioner fixes minimum wages by means of an order published in the Gazette. When a wages council is set up, minimum wages are only fixed nce the recommendations of this body have been examined. (Endnote 122) Mention may also be made of the following countries, where minimum wages are fixed by the Government after consultation with the competent bodies: Dominican Republic; (Endnote 123) Myanmar; (Endnote 124) Nepal; (Endnote 125) Pakistan; (Endnote 126) Peru; (Endnote 127) Sudan: the Syrian Arab Republic, with respect to minimum wages for industrial workers; (Endnote 128) Tunisia; (Endnote 129) Turkey (Endnote 130) and Uganda. (Endnote 131)
128. In Zambia, the Ministry of Labour and Social Services fixes minimum wages after consulting, if they exist, the representative trade unions of the workers in question. Furthermore, national legislation stipulates that the Prices and Incomes Commission is authorised to recommend minimum wage rates to the Government. This body is also authorised to recommend maximum wage rates to the Government,(Endnote 132) but the Committee has no information at its disposal to determine whether these rates are actually fixed. In Zimbabwe, one of the types of minimum wage fixing machinery consists of notices issued by the Minister of Labour, Manpower Planning and Social Welfare, which specify the minimum wage in respect of any class of employees in any enterprise or industry. (Endnote 133) However, before issuing this notice, the Minister may request and examine recommendations made by any competent advisory board or employment board or council. (Endnote 134) Furthermore, according to the information provided by the Government, various regulations on employment promulgated by the Ministry of Labour, Manpower Planning and Social Welfare, under which minimum wages applicable to specific industries or enterprises are fixed, are still being applied. It should also be mentioned that this Minister may, after consultation with the Minister responsible for finance, fix a maximum wage. (Endnote 135) Consequently, although minimum wages may be fixed by means of collective agreement, collective bargaining is limited in this area to the maximum wage stipulated in the notice issued by the Minister, subject to an exemption provided for in this notice. (Endnote 136)
129. The Committee points out that the fixing of maximum wage rates by the competent authority is contrary to the principle of freedom of collective bargaining if it is not accompanied by certain guarantees and in particular if its period of application is not limited in time. In this respect, the Committee on Freedom of Association has pointed out that: "If, as part of its stabilisation policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards".(Endnote 137)
130. However, in some of the countries that have adopted this minimum wage fixing machinery, it would seem that the competent authority is only entitled, after it has received recommendations reviewed by the relevant board or council, to approve or reject these recommendations but not to amend them. Consequently, the body that makes recommendations has as much power to fix minimum wages as the competent authority, although it is the latter that fixes them officially. This is the case in Bahamas,(Endnote 138) Mauritius (Endnote 139) and Canada, where the government authority only approves or rejects the minimum wage fixing order issued by the Wages Boards in the Provinces of Nova Scotia, (Endnote 140) and Prince Edward Island, (Endnote 141) and in Yukon Territory. (Endnote 142) In the Province of Saskatchewan, the Minimum Wage Board fixes minimum wages by regulation which has to be approved by government authority. (Endnote 143) In Trinidad and Tobago, minimum wage fixing orders must be submitted for approval to Parliament, which thus has the right to veto them. (Endnote 144)
131. In France, the Government fixes a minimum growth wage (SMIC) by decree adopted in the Council of Ministers, after the latter has consulted with the National Collective Bargaining Commission. A number of African countries have adopted the same machinery for fixing minimum inter-occupational wages(Endnote 145) or wages corresponding to a specific occupational category. This applies in Benin, (Endnote 146) Burundi, (Endnote 147) Madagascar, (Endnote 148) Mauritania, (Endnote 149) Zaire, (Endnote 150) where the National Labour Council is also involved in minimum wage fixing for occupational categories, in the absence of collective agreements. In the Central African Republic, (Endnote 151) Côte d'Ivoire, (Endnote 152) Djibouti, (Endnote 153) Guinea (Endnote 154) and Rwanda, (Endnote 155) an advisory committee is consulted. In the Comoros, the Higher Labour Council (Endnote 156) is consulted. In Gabon, the National Commission of Wage Studies and the Government Wages Commission is consulted, (Endnote 157) in Senegal, the National Advisory Council for Labour and Social Security is consulted, (Endnote 158) and in Togo, the National Council of Labour and Social Legislation is consulted. (Endnote 159) In Cameroon, minimum wages are fixed by decree, after the National Labour Council has been consulted. (Endnote 160)
132. In Namibia the minimum wage fixing machinery at present in force is applied in the event of labour disputes. When a dispute is submitted to a conciliation board, the board may settle it by means of an agreement which will finally be declared binding on the parties under an ordinance of the Minister of Labour and Manpower Development.(Endnote 161) However, according to information supplied by the Government, new labour legislation is being drafted and will include wage-fixing machinery that is more appropriate to the new situation in the country.
133. In the countries of Central and Eastern Europe, subject to the comments made in the introduction to this survey,(Endnote 162) the Committee will refer to the information supplied by the governments and to the legislation that it has been able to examine. Generally speaking, wage-fixing machinery appears to be unchanged for the time being. Nevertheless, certain modifications have been or are being introduced. In Belarus, according to the information supplied by the Government, the minimum wage is fixed by the State. (Endnote 163) In addition, a Bill on minimum wages and social guarantees is to be examined in Parliament. The Committee does not, however, possess any information on the action taken on this Bill. In Bulgaria the minimum wage is fixed by the Council of Ministers and the central leadership of the trade unions. (Endnote 164) In Czechoslovakia, the minimum wage is fixed by the federal Government. (Endnote 165) However, the amount of the minimum wage was the subject of a general agreement between the federal Government, those of the republics and the social partners. (Endnote 166) In Hungary, according to information supplied by the Government, minimum wages are fixed by decree of the Minister of Labour, which gives the force of law to a decision by the Conciliation Council, a tripartite negotiating body. In Poland the minimum wage is fixed by decree of the Minister of Labour and Social Policy after consulting the national trade union organisations. (Endnote 167) In Romania, the basic minimum wage is fixed by government order after consultation of the trade unions and employers' organisations. (Endnote 168) In Ukraine, according to information from the Government, the minimum wage is fixed by the Government. (Endnote 169)
1.1.3. Minimum wages fixed by wage committees, councils or boards
134. In a number of countries, the legislation provides for ad hoc bodies entrusted specifically with fixing minimum wages. In Argentina, minimum wages of workers in industry are fixed by resolutions adopted by the National Minimum Living Wage Board, an independent tripartite body working under the Ministry of Labour and Social Security.(Endnote 170) The amount of the minimum living wage may be amended at the request of any of the sectors represented on this Board, provided that the cost of living index taken into account in determining the amount in question shows a variation of 15 per cent. (Endnote 171) As regards workers in the agricultural sector, the National Agricultural Labour Committee is responsible for declaring applicable the minimum wage in this area, (Endnote 172) which may not be lower than the minimum living wage fixed by the Government for this category of workers. Under the relevant legislation, wages of homeworkers are established, for each industry, by wage boards. (Endnote 173) However, it would seem that wage boards of this type have not been set up and wages of this category of workers continue to be established by means of resolutions adopted by the Ministry of Labour and Social Security. (Endnote 174) Although the Government of Austria states that minimum wages are fixed exclusively by means of collective agreement, legislation exists which provides for other wage-fixing machinery. Conciliation offices and the Central Conciliation Office, which are tripartite bodies, may establish minimum rates of remuneration for groups of workers, including apprentices, for which no collective agreements have been concluded for the branch of activity in question. (Endnote 175) Furthermore, minimum wages of homeworkers, in the absence of collective agreements in this area, may be fixed by homework committees. These committees deal with matters in the field of homework and their powers usually extend to the whole of Austria. Furthermore, there are special homework committees dealing with business relating to branches of homework which are of particular importance. (Endnote 176)
135. In Colombia, the legislative decree amending the Labour Code authorises the National Labour Board to fix, by consensus, minimum wages of a general or limited nature.(Endnote 177) This extends the functions of the Board, which is no longer restricted to making assessments and submitting recommendations on minimum wages. (Endnote 178) It should be pointed out that the Board cooperates, on any matter concerning wages, with the Incomes, Prices and Wages Policy Commission; both bodies are tripartite. (Endnote 179) The Board may propose that minimum wages be readjusted. (Endnote 180) The Committee notes that when the National Labour Board does not attain the necessary consensus to establish these wages, the Government assumes this function. In Ecuador a general minimum living wage is fixed by resolution of the National Wages Council, a tripartite technical body which advises the Ministry of Labour and Human Resources. (Endnote 181) There are also tripartite sectoral committees which, within the framework of an authorisation from the Minister, fix minimum wages for branches of economic and occupational activity selected by the Minimum Wage Department of the Ministry of Labour and Human Resources. (Endnote 182) The national legislation also provides for the fixing of minimum wages by labour commissions, (Endnote 183) but the information supplied by the Government does not give details on the functioning of this machinery.
136. In the Philippines, minimum wages are fixed by regional tripartite wages and productivity boards which issue wage orders after carrying out surveys, conducting public hearings and consultations and notifying the persons concerned. Appeals against decisions taken by these boards may be brought before the National Wages and Productivity Commission.(Endnote 184) In Malta, apart from minimum wage fixing by the Ministry of Labour, provision is made for a joint industrial council, if it exists, to fix the wages of workers under its specific jurisdiction to the exclusion of any other wage council. (Endnote 185) In Indonesia it would appear that minimum wages are fixed by regional wages boards or a national wages board, but the information supplied by the Government does not indicate clearly what machinery is in force. In Mexico, minimum wages are fixed by a resolution adopted by the Council of Representatives of the National Minimum Wage Board. This tripartite council establishes minimum wages after having examined the report submitted to it by the technical directorate of the above-mentioned Wage Board. Furthermore, it should be pointed out that the National Minimum Wage Board may also be assisted by advisory committees that are also tripartite. Finally, the adjustment of these wages may also be initiated by the Department of Labour and Social Security, as well as by trade unions, workers' federations and confederations and employers' organisations. (Endnote 186) Similar machinery is also provided for in the legislation of: Egypt; (Endnote 187) the Islamic Republic of Iran; (Endnote 188) Nicaragua (Endnote 189) and the Syrian Arab Republic, with respect to agriculture. (Endnote 190)
137. In the United Kingdom, minimum wages are fixed either by wage councils or wage boards. Wage councils cover a specific industry or branch of economic activity. When they are establishing minimum wages for industry and trade, they carry out the preliminary inquiries they deem necessary and publish notices of the rate they propose. After having received any representations on the matter, the council makes an order giving effect to the proposals with such modifications as it thinks fit having regard to these representations.(Endnote 191) In the agricultural sector, minimum wages are fixed by the Agricultural Wages Board. (Endnote 192) This Board usually informs the persons concerned of the order it is proposing to issue. After examining any representations it receives on the draft order, the Board issues the order with any amendments it considers appropriate. (Endnote 193)
1.1.4. Minimum wages fixed by court rulings
138. In India, when a dispute over the wages payable to workers employed in an activity included in the Schedule to the Minimum Wages Act of 1948 is pending before a tribunal, or when an award is in operation, the minimum wage fixed or revised by the central or state Governments shall not be applicable to those workers, but the wage decided in the award shall be applied to them.(Endnote 194) In Italy, where workers' remuneration is not the subject of an agreement between the parties, it shall be determined by the judge. (Endnote 195) In Sri Lanka, the wages of workers employed in shops and offices may be fixed by a tripartite remuneration tribunal. (Endnote 196) The Minister responsible may authorise a draft determination to be made by a remuneration tribunal specifying minimum rates of pay for any employees, whenever the Commissioner has not been able to make a determination with the consent of the workers and employers concerned, or when the Minister considers it expedient to do so. The same applies when a determination with consent is repudiated. Furthermore, in any case where the Minister considers it expedient that a determination with consent should be extended so as to be applicable to any other workers, he may authorise a draft determination, for the extension to such employees of the determination with consent, to be made by a remuneration tribunal. (Endnote 197)
1.1.5. Minimum wages fixed by arbitration awards and extension of these awards
139. In Australia, the labour tribunals are responsible for issuing wage awards. At federal level, the main tribunal is the Australian Industrial Relations Commission.(Endnote 198) This Commission is competent for all industrial matters that extend beyond the limits of a state. Minimum wages are fixed in two ways: conciliation and arbitration. Conciliation consists of conferences between the parties or their representatives under the presidency of a member of the Australian Industrial Relations Commission, or without the presence of this member, (Endnote 199) and is concluded when the parties have reached agreement for the settlement of the dispute or when it is considered that there is no likelihood of conciliation resulting in the settlement of the dispute or any matter in dispute within a reasonable time. (Endnote 200) When the parties to an industrial dispute reach an agreement, they may request the Australian Industrial Relations Commission to make an award giving effect to this agreement. (Endnote 201) Furthermore, the parties may also prepare a memorandum of agreement and request the above-mentioned Commission to certify it. (Endnote 202)
140. When a conciliation proceeding is completed but the industrial dispute has not been fully settled, the Australian Industrial Relations Commission deals with it by arbitration.(Endnote 203) In addition, the dispute may be referred to a local industrial board. This body carries out an investigation and submits a report, on the basis of which the above-mentioned Commission may make an award fixing minimum wage rates to be applied to the parties to the dispute. (Endnote 204) Furthermore, the Australian Industrial Relations Commission may, when it considers it necessary or expedient, declare that any term of an award be a common rule in a Territory for an industry in relation to which the dispute arose. (Endnote 205) The award given by the above-mentioned Commission takes precedence over a state law or an order, award, decision or determination of a state industrial authority dealing with the same matter. (Endnote 206) Finally, the Australian Industrial Relations Commission may make decisions -- known as National Wage Cases -- which fix wage increases applicable to the national economy as a whole. These decisions may also establish principles regulating the fixing and adjustment of minimum wages.
141. In Australian states, minimum wages are fixed by means of awards given by tribunals. In New South Wales, there is an industrial commission which functions as a higher appeals court(Endnote 207); it may exercise all the jurisdiction conferred on a conciliation committee or contract regulation tribunal to settle a labour dispute and amend or repeal an award or determination handed down by these bodies. (Endnote 208) Conciliation commissioners preside over conciliation committees and contract regulation tribunals. (Endnote 209) These commissioners may issue an award, order or contract determination connected with the labour dispute subject to conciliation. (Endnote 210) These committees may fix, by means of orders or awards, wages paid to workers in general, with the exception of wages for aged, infirm or slow workers. (Endnote 211) The wages of these aged, infirm, or slow workers as well as those of outdoor workers are fixed by the registrar. (Endnote 212) Contract regulation tribunals are competent to make contract determinations (Endnote 213) with respect to the minimum rates of commission applicable to contracts of bailment of a public vehicle (Endnote 214) and to remuneration paid to carriers under a contract of carriage. (Endnote 215) As regards both the conciliation committees and the contract regulation tribunals, the dispute may be referred to the Industrial Relations Commission by these bodies. (Endnote 216)
142. In Queensland, the Industrial Relations Commission is competent to settle labour disputes, including those concerning wages, by means of awards.(Endnote 217) The proceedings consist, first, of conciliation and, second, of arbitration. (Endnote 218) In Tasmania, the Tasmanian Industrial Commission has jurisdiction to hear and determine industrial matters and to make an award or order. (Endnote 219) These awards may specify the manner in which rates of remunerat