Chapter I. Definitions, objectives and scope of the standards, and the binding force of minimum wages

1. Definitions

1.1. Minimum wages

27. None of the instruments covered by this survey define the term "minimum wage". These instruments use a series of different terms that seem to designate the same object. For example, Convention No. 26 uses the terms "minimum rates of wages" (Article 1, paragraph 1; 3, paragraph 2(3); and 4, paragraph 1); likewise, Convention No. 99 uses the terms "minimum rates of wages" (Articles 1, paragraph 1; 3, paragraph 4; and 4, paragraph 1), and "minimum wage rates" (Article 2, paragraph 1), as well as "minimum rates" (Article 4, paragraph 2). In contrast, Convention No. 131 systematically uses the term "minimum wage". Terms "minimum wage", "minimum rates" and "minimum rates of wages" are found in the corresponding Recommendations Nos. 30, 89 and 135.

28. The concept of a wage is clearly inherent in the concept of minimum wage. The term "wage" has been used in other instruments adopted by the International Labour Conference, although it should be noted that the definitions of this term are specific to the individual Conventions and Recommendations. Thus, according to Article 1 of the Protection of Wages Convention, 1949 (No. 95), "... the term "wages" means remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered."

29. This definition evokes the concept of remuneration or income, which is broader than the concept of wages. Under Article 1(a), of the Equal Remuneration Convention, 1951 (No. 100), "the term "remuneration" includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment." Concerning the general conditions of work of seafarers, Article 4(d) of the Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958 (No. 109), stipulates that "the term "basic pay or wages" means the remuneration of an officer or rating in cash exclusive of the cost of food, overtime, premiums or any other allowances either in cash or in kind."

30. None of the definitions quoted above covers the concept of a minimum wage as used in the instruments dealt with in the present survey. However, they do highlight certain elements which help to delimit the concept of "minimum wage". First of all, a wage, however designated, is the sum payable by an employer to a worker in virtue of a contract of employment, either for work done or to be done, or for services rendered or to be rendered. Secondly, the minimum or basic wage does not include certain bonuses or benefits, in cash or in kind, payable directly or indirectly by the employer to the worker for work performed by the latter.

31. In defining what is meant by "minimum wage", it may be useful to recall the conclusions of a meeting of experts convened by the Governing Body at its 168th Session (Geneva, February-March 1967). The purpose of the meeting was to examine: (a) problems of minimum wage fixing and related problems, with special reference to developing countries; and (b) ways in which the ILO's Conventions and Recommendations on minimum wage fixing machinery might be revised if revision were considered desirable. The experts stated in their report that the minimum wage "represents the lowest level of remuneration permitted, in law or fact, whatever the method of remuneration or the qualification of the worker; (...) is the wage which in each country has the force of law and which is enforceable under threat of penal or other appropriate sanctions. Minimum wages fixed by collective agreements made binding by public authorities are included in this definition." (Endnote 1)

32. These elements give a first indication of what is meant by "minimum wage": the minimum wage, whether calculated on the basis of time or output, constitutes a level which may not be undercut, and whose application is guaranteed by law. In this respect, the concept of the minimum wage, being related to work, is distinct from that of "minimum income", which is intended to guarantee minimum living conditions regardless of whether a person has an employment from which he gets a wage. This new concept of a guaranteed minimum income, which has its origins mainly in a social and economic situation arising from unemployment, underemployment and poverty, is related to the role which the State is expected to play in the field of social protection. (Endnote 2)

33. The concept of a minimum wage level that cannot be abated implies the concept of a "minimum living wage". In this connection, it should be recalled that the establishment of a minimum wage system is often portrayed as a means for ensuring that workers (and in some cases, their families) will receive a basic minimum which will enable them to meet their needs (and those of their families); hence the frequent use of the term "minimum living wage". Efforts to implement such a concept imply an attitude or a policy which aims at improving the material situation of workers and guaranteeing them a basic minimum standard of living which is compatible with human dignity or is sufficient to cover the basic needs of workers. Such a policy is in line with the International Covenant on Economic, Social and Cultural Rights as regards every person's right to receive remuneration equivalent at least to a wage which makes it possible for workers and their families to lead a decent life. It should be recalled that in the preparatory work leading up to the adoption of Convention No. 131, an analysis of the government replies to the questionnaire sent out by the International Labour Office, concerning the criteria to be used in setting minimum wage levels, revealed that although it was necessary to consider "the needs of workers and their families as a basic, or the basic, purpose of minimum wage fixing ... It would seem, however, appropriate at the same time to recall that minimum wage fixing alone cannot suffice for the overcoming of poverty and the satisfaction of the minimum needs of all workers, ... and that minimum wage fixing should form part of a comprehensive policy aimed at promoting a better life for the masses of the people." (Endnote 3)

34. Recommendation No. 30 (Part III) states that in determining the minimum rates of wages, "the wage fixing body should in any case take account of the necessity of enabling the workers concerned to maintain a suitable standard of living." Convention No. 26, however, contains no similar provision. During the preparatory work leading to the adoption of Convention No. 99, the idea of "enabling the workers concerned to maintain a suitable standard of living" resurfaced, and the text submitted to the Conference Committee stipulated that the Convention should contain certain fundamental principles to be followed in determining the minimum wage. One of these principles was that "the minimum wage should not be fixed at a lower rate than one which would ensure the subsistence of the worker and his family." (Endnote 4) As the result of an amendment, and following a discussion within the Conference Committee, (Endnote 5) these principles were included in Recommendation No. 89 (Part I, Paragraph 1). Along similar lines, Part I, Paragraph 2, of this Recommendation stipulates that the cost of living should also be taken into account in fixing the minimum wage.

35. The 1967 meeting of experts stated in its report that: "(a) the minimum wage is the wage considered sufficient to satisfy the vital necessities of food, clothing, housing, education and recreation of the worker, taking into account the economic and cultural development of each country. In some cases the needs of the family are also taken into account in the same manner as those of the worker, and in other cases they are covered by family allowances and other measures of social security." (Endnote 6)

36. This principle is reiterated in Article 3(a) of Convention No. 131, which states that "the needs of workers and their families", among other elements, should be taken into consideration in determining the level of minimum wages. This principle is also restated in Part II, Paragraph 3(a), of Recommendation No. 135. As can be seen, the elements to be taken into account in fixing the minimum wage also constitute elements in the definition of this concept. (Endnote 7)

37. National legislation varies widely in the manner in which minimum wages are designated. Some legislation refers to the minimum wage as a base; it may, for example, speak of a "minimum living wage" (Argentina), a "basic minimum wage" (Botswana), a "basic wage" (Gambia), a "minimum regulatory remuneration" (Myanmar), or "guaranteed personal income" (Yugoslavia). Other designations refer to the social aspect of the minimum wage; this is the case of the "minimum income" (Chile), and the "minimum social wage" (Luxembourg). Or the designation may even refer to the objective of extending participation in the benefits of economic growth, as in the "minimum growth wage" (France).

38. Where national legislation defines the minimum wage under any of its designations, it may stipulate that "minimum wage" shall be understood to mean the minimum sum paid to the worker for work done, or which has been fixed as the "minimum wage", (Endnote 8) or the minimum sum payable in money to the worker for work done, (Endnote 9) which, in addition, shall meet the minimum needs of the worker in the light of prevailing standards of living, (Endnote 10) with the worker considered as the head of the household. (Endnote 11) The French Labour Code, in defining the index-linked minimum growth wage (SMIC), refers to the needs of workers in stating the SMIC shall guarantee the purchasing power of the lowest-paid wage-earners, and introduces a new macroeconomic concept -- participation in the country's economic development -- in defining this wage. (Endnote 12)

39. In other cases, reference to the minimum wage is made through reference to the wage regulated by legal provisions which establish minimum wages, or to rates which have been or are to be set for the minimum wage, (Endnote 13) and in yet other cases through a provision which prohibits the payment of wages below those set by law, regulation or ordinance. (Endnote 14)

40. Lastly, minimum wages may be fixed through collective bargaining. Where this is the case, national legislation does not generally contain an explicit definition of a "contractual minimum wage". Nevertheless, wages fixed through collective bargaining may not, in principle, be lower than those paid in other similar activities, and their binding force is guaranteed by the State. This is the case of a fair number of countries whose legislation stipulates that minimum wages are to be fixed by means of collective bargaining, complementing other minimum wages which the State may set through other machinery, or the case of countries which leave all decisions concerning minimum conditions of employment, including wages, to the social partners. The Committee will review these cases in greater detail in Chapter II.

41. The concept of a minimum wage, as it arises from the instruments examined by the Committee, combines three distinct aspects of wages. First, wages are the remuneration for work performed by the worker; secondly, as the worker's basic income, wages must ensure the worker's subsistence, and that of his or her family; lastly, wages are a production cost and a component of general consumer expenditure. Recommendations Nos. 30 (Part III) and 89 (Part I, Paragraph 2), as well as Convention No. 131 (Article 3), suggest that a combination of these three aspects should be taken into account in fixing minimum wage rates.

42. In the light of the foregoing, "minimum wage" may be understood to mean the minimum sum payable to a worker for work performed or services rendered, within a given period, whether calculated on the basis of time or output, which may not be reduced either by individual or collective agreement, which is guaranteed by law and which may be fixed in such a way as to cover the minimum needs of the worker and his or her family, in the light of national economic and social conditions.

1.2. Minimum wage fixing machinery or methods and minimum wage systems

43. The French version of Conventions Nos. 26 and 99, and of Recommendations Nos. 30 and 89, uses the expression "methods for fixing minimum wages", while the English versions of these instruments use the expression "minimum wage fixing machinery". Both versions of Convention No. 131 and its corresponding Recommendation use the terms "system of minimum wages" (Article 1, paragraph 1), and "minimum wage fixing machinery" (Article 4).

44. Nowhere in the preparatory work for Conventions Nos. 26 and 99, and Recommendations Nos. 30 and 89, is there an explanation of what is meant by "methods for fixing minimum wages" or "minimum wage fixing machinery". Nor is there an explanation of the terms used in Convention No. 131 and Recommendation No. 135.

45. The French version of the reports prepared by the International Labour Office concerning the instrument which was to become Convention No. 26, makes virtually no distinction between "method" or "system" for fixing minimum wages, (Endnote 15) while the English versions of these same reports systematically use the expression "minimum wage fixing machinery". One of the 1928 reports stated that the governments were practically unanimous in the view that the Conference should not indicate any specific methods or form of wage-fixing machinery. (Endnote 16) Similar comments are found in the preparatory work for Convention No. 99 and Recommendation No. 89, (Endnote 17) while the preparatory work for Convention No. 131 and Recommendation No. 135 indicated that a number of governments had stated in their replies to the questionnaire sent out by the International Labour Office that the instrument (some governments indicated their preference for a Recommendation) should give examples of types of machinery used for the fixing of minimum wages. (Endnote 18)

46. In the preparatory work for Conventions Nos. 26 and 99, the term "system" was used as a virtual synonym for "machinery" or "method" for fixing minimum wages. Nevertheless, this term was not incorporated in the operative part of these Conventions. On the other hand, the expression "system of minimum wages" appears in Article 1 of Convention No. 131. Here again, however, the preparatory work sheds no light on the meaning of this expression. It should nevertheless be pointed out that when the preparatory work makes reference to the various possible forms in a State of national minimum wage fixing machinery, it is in terms of a "system", although strictly speaking, it is describing the procedures or machinery which exist in member States for the fixing of minimum wages. (Endnote 19)

47. Consequently, even if nothing specific on this issue can be gleaned from the preparatory reports or the discussions held in the Conference, it is fair to say that the term "system of minimum wages" used in Article 1, paragraph 1, of Convention No. 131, refers to the overall minimum wage fixing machinery in a given State. As described below, (Endnote 20) what matters in respect of States which have ratified this instrument is that they have one or more procedures for fixing minimum wages. Subsequent provisions of this Convention refer to these procedures as "machinery".

48. This may also appear to be taken to be the meaning of Paragraphs 5 and 6 of Recommendation No. 135. Paragraph 5 states that "the system of minimum wages may be applied ... either by fixing a single minimum wage of general application or by fixing a series of minimum wages applying to particular groups of workers." Paragraph 6, in referring to "minimum wage fixing machinery" lists a series of instruments or means by which minimum wages are to be set: statute, decisions of the competent authority, decisions of wages boards or councils, court decisions or collective agreements.

49. An examination of the reports and the debates in the Conference with a view to adopting the instruments in question, lead to the conclusion that the terms "methods" and "machinery" refer to the same thing, in other words, the procedure or practical means used by States for fixing minimum wages or for recognising as such the minimum wages set in some other manner, in particular through collective bargaining.

50. The Committee will review in greater detail the various forms of minimum wage fixing machinery used in different countries in Chapter II of this survey.

1.3. Statutory minimum wage and contractual minimum wage

51. Minimum wages may be fixed by or in pursuance of legislation or regulations, or by or in pursuance of collective agreements. Convention No. 26 makes it clear that, where wages are effectively regulated by collective agreement, no necessity arises for the fixing of minimum rates in accordance with its provisions. (Endnote 21) Convention No. 99 is worded so as to permit its implementation through minimum wages set by collective agreement. (Endnote 22) As noted earlier, collective bargaining is explicitly recognised as a valid form of minimum wage fixing machinery by Recommendation No. 135 and, implicitly, by Convention No. 131.

52. Among the forms of minimum wage fixing machinery recognised in Paragraph 6 of Recommendation No. 135, mention is made of legislation, but also of other means which imply the decision of a previously constituted agency (the competent authority, wages boards or councils, court decisions), as well as collective agreements which have been given the force of law, in particular as regards clauses which set minimum wages.

53. The foregoing suggests that the instruments in question provide for the possibility for States when establishing minimum wage fixing machinery to choose between a legal instrument, regardless of the nature of the legal instrument utilised (statute, regulation, ordinance, etc.), which by its nature confers on such wages the status of legal minimum wages, or for them to rely on ad hoc bodies whose decisions would also have the force of law. These States may also opt for fixing minimum wages through collective bargaining. In this case, minimum wages fixed by collective bargaining may be extended and made binding for all enterprises in a given branch of industry or geographical region. Minimum wages thus set and thus extended would have the same binding force as minimum wages fixed directly through legislation.

54. The legislation of a considerable number of States provides for minimum wages to be set through collective bargaining, in collective agreements or contracts. Minimum wages thus set may, and do in fact, coexist with those set by an administrative or legislative authority. (Endnote 23) Many of the collective agreements resulting from such bargaining do not necessarily require a formal act of "extension" to become binding. The force of the provisions of these collective agreements arises from the law itself, which may establish that such agreements are binding on the parties thereto, either at enterprise, branch or national level.

55. What should therefore be highlighted is that, to qualify as "minimum wages", contractual wages must have the same characteristics as statutory minimum wages, in other words, they must be binding, protected from abatement by any other individual or collective contract, and give rise to sanctions in the event of infraction. This coincides with the provisions of Article 2, paragraph 1, of Convention No. 131, which states that "minimum wages shall have the force of law and shall not be subject to abatement, and failure to apply them shall make the person or persons concerned liable to appropriate penal or other sanctions", and with the provisions of paragraph 2 of this same Article, which states that "subject to the provisions of paragraph 1 of this Article, the freedom of collective bargaining shall be fully respected."

2. Objectives of the Conventions

56. In discussing the objectives of the instruments in question, the Committee will first refer to the obligations which they entail for ratifying member States; at the same time, it will consider the ends to be reached by implementing these obligations.

2.1. Objectives of Conventions Nos. 26 and 99

57. Article 1, paragraph 1, of Convention No. 26, defines this instrument's objective by stating that ratifying States "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) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low." Paragraph 2 of the same Article states that "for the purposes of this Convention, the term "trades" includes manufacture and commerce." This second provision, as emphasised by the Committee in its previous survey, makes it clear that agriculture is excluded from the scope of Convention No. 26. (Endnote 24)

58. The underlying objective of this Convention is to prevent the payment of very low wages in industry or in certain trades in which there is no effective arrangement for fixing minimum wages. But it must be pointed out that the existence of a minimum wage system is not enough; in the light of the objective mentioned above, the system must be effective in preventing exceptionally low wages. In his Report to the Eighth Session of the Conference, the Director-General stated: "The necessity for the payment of a minimum wage is primarily felt in those industries which, through the absence of organisation on the part of the workers, or for other reasons, pay wages lower than the normal wage in the sense of the average wage obtained in the same country by workers in organised industries." (Endnote 25) The emphasis placed on homeworking trades, both in the preparatory reports and in the Conference's discussions, reflects the objective at which this Convention aimed.

59. Furthermore, in the drafting of Convention No. 26, in accordance with the trends of the legislation then in force, efforts were made to protect enterprises against unfair competition at the national and international levels. (Endnote 26)

60. Article 1, paragraph 1, of Convention No. 99, which sought to fill the gap left by the earlier Convention as regards agriculture, identifies the instrument's objective as requiring member States "to create or maintain adequate machinery whereby minimum rates of wages can be fixed for workers employed in agricultural undertakings and related occupations".

61. The purpose of regulating minimum wages in agriculture is to prevent wages which are much lower than those paid in industry. As stated in the report prepared by the Office prior to the first discussion, "it is generally admitted that wages in agriculture are considerably lower than wages in industry". (Endnote 27) Moreover, the Convention was also seen as a way of promoting economic and social conditions that would turn agriculture into a remunerative occupation, and lay the foundations of higher standards of living for all workers in agriculture. (Endnote 28)

62. From this it can be seen that Conventions Nos. 26 and 99 explicitly set forth a double objective. The first is the creation or maintenance by ratifying States of methods or machinery for fixing minimum wages in industry or in certain trades and in agricultural undertakings and related occupations. Nevertheless, the establishment of methods or machinery that do not guarantee the effective regulation of minimum wages is not enough to comply with the obligations arising from these Conventions. In addition to this objective, there is a second, underlying, objective, which is the effective regulation of minimum wages for industry or certain trades and for agricultural undertakings and related occupations which fall within the scope of machinery established for the purpose of fixing minimum wages.

63. To achieve these objectives, the Conventions give ratifying States not only full freedom to determine the nature of the methods they wish to establish for fixing minimum wages, but also the necessary latitude to determine which trades or parts of trades (especially homeworking trades), in the case of Convention No. 26, and which enterprises, occupations and categories of persons, in the case of Convention No. 99, will be subject to the minimum wages set in accordance with the provisions of these instruments.

2.2. Objectives of Convention No. 131

64. Convention No. 131 also aims at preventing the payment of exceptionally low wages. To this end, it defines two objectives.

65. The first objective of Convention No. 131 takes the form of an obligation on the part of ratifying States to establish a "system of minimum wages" (Article 1, paragraph 1), which implies the creation and maintenance of effective minimum wage fixing machinery (Article 4, paragraph 1). There is also a second objective, which reflects the philosophy underlying the adoption of this instrument. This second objective is to give wage-earners the necessary social protection in terms of minimum permissible levels of wages. This objective is clearly enunciated in Part I, Paragraph 2, of Recommendation No. 135, and can be deduced from the provisions of Article 3(a) and (b) of Convention No. 131. These provisions refer to the elements that should be taken into consideration in fixing minimum wages: the needs of workers and their families, and economic factors, including economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.

66. It should also be noted that the obligation to establish a system of minimum wages and to establish and maintain machinery for fixing such wages, in accordance with the terms of Convention No. 131, covers all groups of wage-earners whose terms of employment make such coverage appropriate (Article 1, paragraph 1), and thereby complements and strengthens the objective and obligation arising from the previous Conventions. This provision of Convention No. 131 reflects a general trend which had already been noted by the Committee in its previous survey. The Committee then noted that "the trend towards the generalisation of minimum wage protection may be seen also in the tendency of certain minimum wage authorities to issue general minimum wage orders instead of orders for particular occupations, in the establishment of a basic or living wage as a standard of reference for particular wage orders, and in the extension to male workers of legislation previously applicable to women and minors only. It is, however, to be noted that, according to several reports, it is principally among workers who are not organised that general minimum rates tend to become the actual wage rates, so that a general minimum wage may in practice provide precisely the marginal protection which is envisaged by Convention No. 26". (Endnote 29)

67. In addition, Convention No. 131 aims to strengthen the protection of workers, with respect to the protection provided for in previous Conventions, (Endnote 30) and to make minimum wage fixing machinery an element of social policy, (Endnote 31) and therefore a contributing factor in the social and political development of the countries concerned.

68. Thus, Convention No. 131 gave effect to the proposal of the 1967 Meeting of Experts, which concluded that the new instruments should, inter alia, be drawn up from the perspective of a minimum wage fixing policy which is "regarded both as an effective instrument of social protection and as an element of a strategy of economic development". (Endnote 32) In this context, the experts stated that the criteria used in determining the minimum wage should, "in the case of developing countries, be related to the needs of economic development and to the characteristics of such countries" (Endnote 33) outlined in the meeting's report (massive poverty, income inequality, and the inadequacy of average incomes). (Endnote 34)

3. Scope of the provisions of the Conventions

3.1. Conventions Nos. 26 and 99

69. In accordance with Article 1, paragraph 1, of Convention No. 26, ratifying States are required to create and maintain machinery whereby minimum rates of wages can be fixed for workers employed in certain of the trades or parts of trades (and in particular in homeworking trades) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise, and in which wages are exceptionally low. Thus, this obligation is conditional on: (1) the absence of arrangements for the effective regulation of wages in the trades or parts of trades for which minimum wage fixing machinery is to be established or maintained, and (2) the existence of exceptionally low wages.

70. In this connection the Committee recalls that a minimum wage fixing system cannot be regarded as effective unless it eliminates the possibility of exceptionally low wages, while at the same time establishing measures to prevent a reduction in the income of workers. (Endnote 35) Consequently, it is not enough to establish a minimum wage fixing system by means of legislative instruments; it is also necessary that such a system should effectively set wage rates that apply to the workers concerned.

71. Article 1, paragraph 1, of Convention No. 99, establishes a similar obligation to that contained in Convention No. 26, but specifies that this obligation is confined to workers employed in agricultural undertakings and related occupations. Moreover, it should be noted that while the obligation of ratifying States to establish and maintain minimum wage fixing machinery under Convention No. 26 is subject to two conditions, the provisions of Convention No. 99 establish no such conditions. It is generally understood, however, that wages in agriculture are generally lower than those in industry. (Endnote 36)

72. It should be noted that, in accordance with both Convention No. 26 and Convention No. 99, ratifying States must consult the organisations of employers and workers concerned. These consultations must be carried out before deciding the industries or trades to which the minimum wage fixing machinery will apply (Convention No. 26, Article 2), or the undertakings, occupations and categories of persons covered by the minimum wage fixing machinery (Convention No. 99, Article 1, paragraph 2). These provisions highlight the general principle of consultation contained in the instruments, (Endnote 37) which the Committee will review in Chapter III.

73. In addition, these instruments (Endnote 38) call for organisations of workers and employers to be consulted in other specific aspects of the overall minimum wages fixing process, and in the application of the minimum wage fixing system. The Committee will refer to this point also in greater detail in Chapter III.

3.2. Convention No. 131

74. The obligation for ratifying States arising from Convention No. 131 goes beyond the obligation established in Conventions Nos. 26 and 99; in fact, Article 1, paragraph 1, of Convention No. 131, provides that the system to be established shall cover "all groups of wage-earners whose terms of employment are such that coverage would be appropriate", thereby expanding its scope.

75. As noted earlier, the obligation to establish a minimum wage system, in accordance with the provisions of Convention No. 131, also implies the obligation to establish and maintain suitable and effective minimum wage fixing machinery. This obligation requires that such machinery be suited to national conditions and needs. In its General Survey of 1958, the Committee stated: "To ensure that a given minimum wage system is appropriate to national conditions, careful preparation is ... required. It may be necessary to carry out extensive preliminary studies, to seek technical assistance, and to adopt a flexible and even an experimental approach." (Endnote 39) This aspect was formulated more explicitly in Convention No. 131. The Committee has on previous occasions referred to the meaning of "national conditions and needs", an expression frequently used in international instruments. (Endnote 40)

76. As in the earlier Conventions, Convention No. 131 stipulates that a State's right to decide which groups are to be covered by the minimum wage system is limited by the principle of consultation with representative organisations of employers and workers concerned, which the ratifying State must implement in determining the groups of wage-earners to whom the system will apply. Nevertheless, while Conventions Nos. 26 and 99 require ratifying States to consult the organisations concerned, Article 1, paragraph 2, of Convention No. 131 requires ratifying States to determine the groups of wage-earners to be covered "in agreement or after full consultation" with the organisations concerned, where they exist. The obligation for ratifying States to consult extends also to the establishment, application and modification of minimum wage fixing machinery. The Committee will return to this topic in Chapter III.

4. Scope of application

77. The fields covered by the Conventions in question vary. In the case of Convention No. 26, the minimum wage fixing machinery to be established by ratifying States shall cover workers employed in certain trades or parts of trades, in particular in homeworking trades (Article 1, paragraph 1, of the Convention). The same instrument stipulates that for the purposes of the Convention, the term "trades" refers to manufacture and commerce.

78. As regards the scope of Convention No. 99, Article 1 of this instrument states that the minimum wage fixing machinery to be created and maintained by ratifying States shall cover workers employed in agricultural undertakings and related occupations.

79. Lastly, Convention No. 131 encompasses and broadens the scope of the previous instruments. Article 1, paragraph 1, of this Convention stipulates that the system of minimum wages to be established by ratifying States shall cover all groups of wage-earners whose terms of employment are such that coverage would be appropriate, without referring to specific sectors of economic activity. Paragraph 4 of Recommendation No. 135 states that "the number and groups of wage-earners who are not covered in pursuance of Article 1 (of Convention No. 131) should be kept to a minimum."

80. Recommendation No. 30 stipulates that in order to ensure that the information needed for a decision on the application of minimum wage fixing machinery is available, a survey should be conducted as regards wages actually paid and the arrangements, if any, for the regulation of wages, in any trade or part of trade in which employers or workers have requested the application of the machinery, and have furnished information which shows prima facie that no arrangements exist for the effective regulation of wages and that wages are exceptionally low. In addition, without prejudice to the discretion left to States by the Convention in respect of this determination, they should give special consideration to trades or parts of trades in which women are ordinarily employed.

81. Nevertheless, in accordance with the provisions of the respective Conventions (Article 1 of Convention No. 26; Article 1 of Convention No. 99; and Articles 1 and 4, paragraph 1, of Convention No. 131), ratifying States are free to decide the trades or part of trades (Article 2 of Convention No. 26), undertakings, occupations and categories of persons, such as members of the employer's family (Article 1, paragraph 2, of Convention No. 99) and groups of wage-earners (Article 1, paragraph 2, of Convention No. 131) to which the machinery will apply.

82. This right, however, is conditional upon consultations with representative organisations of the employers and workers concerned.

83. The right to exclude certain enterprises or categories or groups of workers from the application of machinery established by the State in compliance with the obligations arising from ratification, is also subject to the obligation to report which enterprises or categories or groups of workers will not be covered by the system (Article 5 of Convention No. 26; Article 5 of Convention No. 99).

84. In accordance with Article 1, paragraph 2, of Convention No. 131, ratifying States shall, in agreement or after full consultation with the representative organisations of employers and workers concerned, determine the groups of wage-earners to be covered. Paragraph 3 of this same Article states that this determination shall be made prior to the first report submitted under article 22 of the ILO Constitution. This report shall list any groups of wage-earners which may not have been covered, giving the reasons for not covering them. Subsequent reports shall state "the position of ... law and practice in respect of the groups not covered, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such groups". On the basis of information examined by the Committee, it appears that only a limited number of governments has furnished the information which governments are required to communicate in compliance with the obligations arising from these Conventions. The Committee will refer in greater detail to information communicated by governments in this respect in Chapter II.

85. The Committee wishes, therefore, to emphasise the importance it attaches to the obligation of States to submit reports regarding the scope of the minimum wage system, since the scope, in conjunction with the obligation to consult the organisations of employers and workers concerned, determines the extent to which ratifying States are free to exclude one or more categories of wage-earners from the protection of a minimum wage.

86. Since minimum wages constitute one of the more important elements which contribute to an improvement in the conditions of work and life of workers -- one of the ILO's fundamental objectives -- the Committee considers that ratifying States should take the necessary measures to broaden the coverage of their minimum wage fixing systems and thereby offer workers more adequate protection. The Committee has referred to this point on several occasions in the comments it has formulated with respect to the application of Conventions. (Endnote 41) Certain States have in fact taken such measures. (Endnote 42)

87. In this connection, in 1985 the Committee formulated a general observation in relation to Convention No. 26 and No. 131 concerning the application of these Conventions to persons in homeworking trades. On that occasion, the Committee noted that several governments had indicated that they had not been able to fix minimum wages for some or all of these workers, most often because of the practical difficulties involved in implementation. The Committee recognised the practical difficulties involved; nevertheless, in view of the particular vulnerability of homeworkers and the attention consequently given them by Convention No. 26, it hoped that governments would make every effort to extend to these workers the protection afforded by a system of minimum wages, and that governments would include in their reports information on this situation. (Endnote 43)

5. The binding force of minimum wages

88. All three Conventions establish the binding force of minimum wages for employers as well as for workers, and stipulate that the minimum wage, once fixed, may not be abated. Conventions Nos. 26 and 99, however, provide for the possibility of certain exceptions to the binding force of minimum wages.

5.1 Conventions Nos. 26 and 99

89. Article 3, paragraph 3, of Convention No. 26, states that "minimum rates of wages which have been fixed shall be binding on the employers and workers concerned", and shall not be abated by means of individual contracts. However, where it is proposed to provide an exception to the minimum wage fixed in a collective agreement, the competent authority may grant a "general or particular authorisation" and thereby waive the binding force of such minimum rates.

90. The corresponding provision in Convention No. 99 is found in Article 3, paragraph 4, which provides that minimum rates of wages which have been fixed shall be binding on the employers and workers concerned. Nevertheless, paragraph 5 of this same Article provides that the competent authority may permit exceptions to the minimum wage rates in individual cases "where necessary, to prevent curtailment of opportunities of employment of physically or mentally handicapped workers".

91. As the Committee already noted in its General Survey of 1958, the exceptions to the binding force of Conventions Nos. 26 and 99 differ in the sense that Convention No. 26 provides the possibility for exemptions from minimum wage rates fixed in collective agreements by means of a general or particular authorisation of the competent authority, while Convention No. 99 allows for exceptions to the fixed minimum rates only in individual cases, and where necessary "to prevent the curtailment of employment opportunities of physically and mentally handicapped workers". (Endnote 44)

92. Both Conventions provide that the governments of Members which ratify the Convention shall take the necessary measures, by way of a system of supervision and sanctions, to ensure that wages are not paid at less than the applicable minimum rates (Article 4, paragraph 1, of Convention No. 26, and Article 4 of Convention No. 99).

5.2 Convention No. 131

93. The corresponding provision in Convention No. 131 confirms and strengthens the principle of the binding force of minimum wages contained in the earlier instruments. Article 2, paragraph 1, of this Convention provides that minimum wages shall have the force of law and shall not be subject to abatement; without providing, as did the earlier instruments, for possible exceptions to this principle. This provision is considered by certain States, in particular by those which leave the determination of conditions of work and wages to collective agreement, as an obstacle to the ratification of this Convention. (Endnote 45) In addition, when this same Article requires ratifying States to establish sanctions for the person or persons who fail to apply minimum wages in force, it calls for "appropriate penal or other sanctions". During the discussions concerning this part of the Convention, a number of Employers' representatives, in particular, opposed an explicit reference in the Convention to penal sanctions. However, the need to ensure the application of minimum wages led the Conference to adopt the text of the Convention with a clear reference to penal sanctions as a means of ensuring the payment of the minimum wages which have been set. (Endnote 46)

94. In general, States which have ratified one or all of the Conventions in question have provisions in their legislation to ensure compliance with the minimum wages set, through the application of either fines and penal sanctions for offenders, or fines which may increase in the event of recurring offences. The Committee will refer to the information supplied in this connection in Chapter V of this survey.

Endnotes

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Legislation

See related national legislation from Natlex

France: Labour Code

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C095 Protection of Wages Convention, 1949
Conventions: C100 Equal Remuneration Convention, 1951
Conventions: C109 Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958