Chapter III. Consultation and participation of organisations of employers and workers

186. One of the essential obligations of the minimum wage instruments is that the minimum wage fixing machinery must be set up and operated in consultation with organisations of employers and workers who must participate on an equal footing.

A. General considerations concerning consultation and participation

187. The instruments examined here use the terms "consultation" and "participation" to refer to the manner in which organisations of employers and workers participate in the procedure for establishing, operating and modifying minimum wage fixing machinery. One of the reports leading to the adoption of Convention No. 131 indicated the difference between "consultation" and "participation". (Endnote 1) The Committee will examine each of these terms in the following paragraphs.

1. Consultation of organisations of employers and workers

188. The consultation of organisations of employers and workers stems from the tripartite structure that characterises the International Labour Organisation. The Committee of Experts referred to this question in its 1982 General Survey on Tripartite Consultation. (Endnote 2)

189. As the Committee pointed out in its previous survey on the instruments connected with minimum wages, (Endnote 3) one of the principles established in Conventions Nos. 26 and 99 is that concerning the consultation of the organisations of employers and workers concerned. This principle is confirmed and consolidated in Convention No. 131.

190. The instruments under examination provide that the obligation to consult the organisations of employers and workers concerned should be carried out at different times. Initially, it should be done at the time of determining the scope of the minimum wage system to be established. (Endnote 4) Second, it should be applied during the operation of the minimum wage fixing machinery. (Endnote 5)

191. In its 1982 General Survey of the reports relating to Convention No. 144 and Recommendation No. 152 on tripartite consultation, the Committee considered the meaning of the term "consultation". It stated that "consultation" has a different connotation from mere "information" and from "co-determination". It also pointed out that the views expressed in the course of consultations were not a form of participation in decision-making but simply one stage in the process of reaching a decision. It went on to say that "consultation must be able to have some influence on the decision". (Endnote 6)

2. Participation of organisations of employers and workers

192. "Participation", which also stems from the tripartite structure of the ILO, implies a greater role on the part of organisations of employers and workers or of their representatives in decision-making than does "consultation".

193. The term "participation", in the instruments under consideration, implies direct collaboration with the responsible authorities in the application of the provisions of the minimum wage fixing instruments.

194. Article 3, paragraph 2, of Convention No. 26 provides that the employers and workers concerned shall be associated in the operation of the minimum wage fixing machinery, leaving to national laws and regulations the determination of the manner and extent of this association. Part II, Paragraph 2, of Recommendation No. 30 proposes that employers and workers should jointly take a direct part in the deliberations and decisions of the wage-fixing body. Article 3, paragraph 3, of Convention No. 99 qualifies the obligation to take part by providing that the employers and workers shall take part in the operation of the minimum wage fixing machinery, or be consulted or have the right to be heard, likewise leaving the manner and extent thereof to be determined by national laws and regulations. In contrast, Recommendation No. 89 states that the representatives of the employers and workers should participate directly and on an equal footing in the operation of the minimum wage fixing machinery (Part II, Paragraph 4). Lastly, Article 4, paragraph 3, of Convention No. 131 stipulates that ratifying States should make provision, wherever it is appropriate to the nature of the minimum wage fixing machinery, for the direct participation in its operation of representatives of the organisations of employers and workers concerned, on a basis of equality. Recommendation No. 135 even provides that the participation of representatives of organisations of employers and workers concerned in the operation of minimum wage fixing machinery referred to in paragraph 3 of Article 4 of Convention No. 131 should include membership of such bodies (Part IV, Paragraph 8).

195. Thus, these instruments establish the general principle of consultation of representatives of employers or workers or of representatives of their organisations. Likewise, the consultation referred to in the instruments under consideration implies that employers and workers, their representatives or those of their organisations be able to have a real influence on the decisions to be taken.

196. These instruments also establish the principle of the participation of the representatives of employers or workers or of their respective organisations in the operation of the minimum wage fixing methods or machinery.

197. The form in which this consultation and/or participation is to be carried out is left to be determined by national laws and regulations and, in the case of participation, it is specified that this must be appropriate to the minimum wage fixing machinery. Nevertheless, the fact that the consultation and/or participation of employers and workers, of their organisations or their representatives, is provided for in laws and regulations does not ensure that this principle will be respected in practice. The question of this possible discrepancy between law and practice has sometimes been raised by employers' and workers' organisations and has been the subject of comments by the Committee, or has caused the constitutional procedures for the supervision of the ILO's international standards to be set in motion, for instance in Bolivia, (Endnote 7) Spain, (Endnote 8) Sri Lanka (Endnote 9) and Uruguay. (Endnote 10)

198. In view of its importance, the Committee has always insisted that this fundamental principle of consultation and participation of organisations of employers and workers or their representatives should be respected in the operation of minimum wage fixing machinery. Furthermore, as has been pointed out, it is not only up to States to guarantee this principle; its observance also involves the willingness of the parties concerned to collaborate in the consultation and participation procedures. (Endnote 11)

B. Persons or organisations consulted or participating in the minimum wage fixing machinery

199. The procedures for the consultation and participation of employers and workers, of their organisations or of their representatives in minimum wage fixing machinery can vary considerably, depending on the nature of the machinery.

200. The instruments under consideration specify the characteristics of the employers and workers or their organisations that are to be consulted or participate in the minimum wage fixing machinery, as well as the characteristics of the independent persons who, in accordance with the instruments under consideration, are also to be consulted. When minimum wage fixing bodies have been set up, these instruments also refer to the manner in which the representatives of the employers and workers or of their respective organisations, are to be appointed to such bodies.

1. Employers and workers or their organisations to be consulted or to participate in minimum wage fixing machinery

1.1. Interest and representativeness

201. The instruments under consideration indicate in some cases that the consultation process must be carried out with the organisations of employers and workers concerned, (Endnote 12) in other cases they specify that such organisations must be the most representative. (Endnote 13) Convention No. 26 states that consultations shall take place with representatives of the employers and workers concerned, including representatives of their respective organisations. (Endnote 14) Reference is also made to consultations with employers and workers in two of the Recommendations on minimum wage fixing. (Endnote 15)

202. As regards participation, the instruments under consideration provide for the participation in the operation of the minimum wage fixing machinery of the employers and workers concerned, (Endnote 16) or of representatives of organisations of employers and workers concerned. (Endnote 17)

203. The instruments under consideration, in referring to the employers or workers who are to be consulted or to participate in the minimum wage fixing machinery, speak on the one hand of "employers or workers concerned" or "organisations of employers and workers concerned" and, on the other, of "representative organisations of employers and workers". The early instruments refer to representatives of employers and workers, as one of the reasons advanced for the adoption of Conventions Nos. 26 and 99 was the lack of organisation of workers or the weakness of their organisations, even though it might seem clear that where organisations exist which represent workers or employers, these would be the organisations to be consulted. This question was dealt with in one of the reports which led to the adoption of Convention No. 26 and which referred to the terms in which the Governing Body had framed the question that would be dealt with by the Conference. The Governing Body had stated that the subject to be submitted to the Conference was: Minimum wage fixing machinery in trades in which organisation of employers and workers is defective, and where wages are exceptionally low, with special reference to the homeworking trades. (Endnote 18)

204. The reference to "employers and workers concerned" is particularly relevant when minimum wage fixing machinery is being established or set in motion for a particular group of employers and workers. A number of countries make provision in their laws and regulations for the direct participation of employers and workers who would be affected by the establishment of the body responsible for fixing minimum wages.

205. As regards the terms used by these instruments, "most representative organisations of employers and workers", it should be pointed out that nothing is specified on the subject in the deliberations leading to the adoption of these instruments. As is the case when this term is used in other ILO Conventions and Recommendations, the expression "most representative organisation" refers to organisations that would be so considered in accordance with the terms of article 3, paragraph 5, of the ILO Constitution. This provision refers to the nomination that member States are required to make of non-governmental delegates and advisers to attend the Conference. Furthermore, the representativity should meet objective criteria established by the relevant laws and regulations of the member States. The Committee has referred to this question in its General Survey on Freedom of Association and Collective Bargaining. (Endnote 19)

206. Furthermore, the Committee recalls that the fact that, as frequently occurs, certain countries recognise a certain number of rights in respect of the most representative organisations (including the right to be consulted) does not, however, mean that minority organisations have no rights whatsoever. Recognition should at least be given to the right of minority organisations to make representations on behalf of their members and, where applicable, to defend the individual interests of these members. (Endnote 20)

207. It should also be pointed out that, in accordance with the provisions of Recommendation No. 30, Part II, Paragraph 2(d), one of the workers' representatives taking part in the fixing of minimum wages should, as far as possible, be a woman wherever the trade or part of the trade concerned employs a large number of women. Likewise, among the independent persons taking part in this minimum wage fixing process, one or more women should be appointed.

208. Although there may well be different examples in practice of the application of this principle, at the level of legislation mention may be made of the case of Canada, Province of Saskatchewan, where the law specifically provides that two members of the Minimum Wage Board must be women, (Endnote 21) and of the United Kingdom where it is provided that, in the agricultural sector in England and Wales, at least one of the representatives of employers and workers on the Agricultural Wages Board must be a woman (Endnote 22) and in Scotland where it is provided that at least one of the members of the Scottish Agricultural Wages Board must be a woman. (Endnote 23)

1.2. Appointment of representatives of employers and workers or of their organisations

209. As regards the appointment of representatives of employers' and workers' organisations or of employers and workers on bodies responsible for fixing minimum wages, Conventions Nos. 26 (Article 3, paragraph 2), and 99 (Article 3, paragraph 3), provide for these appointments to be made in such manner and to such extent as may be determined by national laws or regulations. Nevertheless, Recommendations Nos. 30 (Part II, Paragraph 2(b)), and 89 (Part II, Paragraph 5) propose, as regards the appointment of the representatives of the parties concerned, that the employers and workers concerned should have the right to participate in the nomination of their representatives; in any case existing organisations of employers and workers should be requested to propose names of persons recommended by them for appointment to wage-fixing bodies. In the reports leading to the adoption of Conventions Nos. 26 and 99 and of Recommendations Nos. 30 and 89 it was stated that it was necessary to ensure the participation of employers' and workers' organisations or, when there were no such organisations, of the employers and workers concerned, in so far as this ensured the confidence of those they represented and secured greater authority for the minimum wages fixed. (Endnote 24)

210. The principle of the participation of the organisations concerned in the appointment of their representatives on the bodies responsible for fixing minimum wages is guaranteed by Convention No. 131, Article 4, paragraph 3(a), which stipulates that provision shall be made for the direct participation in the operation of the minimum wage fixing machinery of organisations of employers and workers concerned or, where no such organisations exist, representatives of employers and workers.

211. In accordance with the law and practice of certain countries, it is left to the employers and workers concerned or their organisations to appoint their representatives on the bodies that in one way or another take part in the fixing of minimum wages. This does not prevent the competent authorities, in certain cases where the organisations concerned have made no appointment, from designating representatives of the said organisations on the minimum wage fixing bodies. In Argentina the members of the National Minimum Wage Board are appointed by the relevant representative organisations. (Endnote 25) See also Côte d'Ivoire. (Endnote 26) In Djibouti, the provision relating to the appointment of representatives on these bodies also provides that, when there are no employers' or workers' organisations that can be considered representative in accordance with s. 73 of the Labour Code, the appointment will be made by the chief officer of the territory; (Endnote 27) this is also the case in the Islamic Republic of Iran, (Endnote 28) Jamaica, (Endnote 29) Malta, (Endnote 30) Mexico (the legislation specifies that if the workers or employers do not appoint their representatives, this appointment will be made by the Secretary for Labour), (Endnote 31) Namibia, (Endnote 32) the Netherlands (according to the applicable laws and regulations, the organisations of employers and workers that appoint their representatives on the competent body (Economic and Social Council) are only the ones that have been previously recognised), (Endnote 33) Nicaragua, (Endnote 34) Peru (Endnote 35) and Portugal. (Endnote 36) In the United Kingdom (England, Wales and Scotland -- industry and commerce), it is stated that, if the competent authority considers that a representative organisation of employers does not exist, the said authority shall, following consultation with the employers concerned, make the appointment. (Endnote 37) Similar provisions are to be found in the laws and regulations of Northern Ireland (industry and commerce). (Endnote 38) In England and Wales (agriculture), the relevant provisions do not specify whether the appointment of employers' or workers' representatives on the Agricultural Wages Board will be made directly by the organisations concerned. It is stated that these representatives will be "nominated in the prescribed manner or elected in the prescribed manner". It may be supposed, in view of the practice of the country, that the appointment will be made directly by the organisations concerned; (Endnote 39) see also Scotland (agriculture). (Endnote 40) According to information furnished by the Government in connection with Northern Ireland, employers' and workers' representatives on the Agricultural Wages Board are elected directly by the organisations concerned. Other illustrations are Rwanda (where the legislation provides for the setting up of a labour advisory committee whose membership includes employers' and workers' representatives to be appointed by their respective organisations, (Endnote 41) although, as the Government indicates in its report, the workers' organisation does not exist and the employers' organisation is "in a state of lethargy"); Syrian Arab Republic; (Endnote 42) Trinidad and Tobago; (Endnote 43) and Zambia. (Endnote 44)

212. In other cases the appointment of these representatives is undertaken by the competent authority on the proposal of the organisations of employers or workers concerned. In Germany, the law provides for the Federal Minister for Labour to appoint the titular and substitute members of the general committee on minimum conditions of employment on the nomination of the workers' and employers' associations. (Endnote 45) The members of specialised committees, made up of assessors representing the workers and employers concerned, are appointed by the Federal Minister for Labour on the nomination of the workers' and employers' associations. (Endnote 46) In Argentina, in the agricultural sector, when appointing the employers' and workers' members of the National Committee for Agricultural Labour, the organisations concerned propose lists of three candidates from which the Minister of Labour chooses the representatives who will be appointed by the executive authority. (Endnote 47) If no organisations exist, the appointment is made by the minister. (Endnote 48) In Austria, the law provides that members of the conciliation office are appointed by the Federal Minister for Social Administration on the recommendation of the employers' and workers' organisations concerned. (Endnote 49) The members of the homework committee are appointed by the Federal Ministry for Social Administration on the proposal of the Austrian Congress of Chambers of Labour, in agreement with the Austrian Federation of Trade Unions, and by the Federal Chamber of Trade. (Endnote 50) Similar procedures are found in the Bahamas, (Endnote 51) Bangladesh (Endnote 52) and Benin. (Endnote 53) In Burundi, the relevant provision states that if there are no sufficiently representative organisations, the appointment will be made directly by the Ministry of Labour on the proposal of the Director of Labour. (Endnote 54) This is also the case in Cameroon (Endnote 55) and the Central African Republic. (Endnote 56) In Colombia the members of the National Labour Board and of the Commission on Wages, Prices and Incomes Policy are appointed by the Goverment from lists of three candidates presented by the employers' and workers' organisations concerned. (Endnote 57) The procedure is similar in the Dominican Republic, (Endnote 58) France (Endnote 59) and Ghana. (Endnote 60) In Guatemala, according to the relevant provision, if no proposals are made by the organisations concerned the appointment is made by the Minister of Labour and Social Welfare. (Endnote 61) This is also the case in Guinea, (Endnote 62) Honduras, (Endnote 63) Mauritania, (Endnote 64) Morocco, (Endnote 65) New Zealand, (Endnote 66) Pakistan, (Endnote 67) Panama, (Endnote 68) Philippines, (Endnote 69) Togo (Endnote 70) and Tunisia. (Endnote 71)

213. In some States, governments consult organisations of employers and workers regarding the appointment of the representative or representatives of these organisations on the relevant bodies: (Endnote 72)

214. Finally, according to the information furnished by certain governments, the appointment of representatives of employers and workers or of persons representing their interests is undertaken by the competent authority, or it is stated that such representatives form part of the bodies responsible for fixing minimum wages, without it being expressly indicated whether or not the organisations or the employers or workers concerned have been consulted, such as in Australia, at the federal level, (Endnote 73) and Western Australia (Endnote 74) and Victoria; (Endnote 75) this is also the case in Barbados (Endnote 76) and in certain provinces of Canada: Manitoba; (Endnote 77) Newfoundland; (Endnote 78) Prince Edward Island. (Endnote 79) According to information supplied by the Government, the Minimum Wages Board for the Province of Saskatchewan, referred to in the relevant legislation (Endnote 80) is made up of representatives of employers and workers although this is not actually specified, and in the Yukon Territory. (Endnote 81) Similar situations are to be found in Chad, (Endnote 82) Dominica, (Endnote 83) Ecuador (Endnote 84) and Egypt. (Endnote 85)

215. The laws and regulations of certain states and territories of the United States contain similar provisions: California; (Endnote 86) Puerto Rico; (Endnote 87) Wisconsin; (Endnote 88) and the District of Columbia. (Endnote 89) Such provisions are also found in other countries, such as in Gabon, (Endnote 90) Ghana, (Endnote 91) Guatemala, (Endnote 92) India, (Endnote 93) Japan, where legislation provides for integrated minimum wages councils, one central council and others at the level of each prefecture, and of special committees that may be established by them, it being specified that their members shall be appointed by the Ministry of Labour or by the heads of the Prefectural Labour Standards Office, (Endnote 94) and where the Government indicates that the appointments of representatives of workers and employers are made on the basis of the recommendations of the organisations concerned, citing the sections of the Act (however, these sections make no provision in this respect, at least in the version available to the Committee for examination; a similar provision exists in the case of councils and special committees set up to fix the minimum wage of homeworkers); (Endnote 95) and Papua New Guinea, where it is stated in the legislation (Endnote 96) that the representatives of employers or employees shall be appointed in such a way as to ensure equal numbers on the Minimum Wages Board; Sri Lanka, in respect of members of wage boards; (Endnote 97) the members of district wage boards are appointed by the national wage boards. (Endnote 98) In the case of the remuneration tribunals that determine wages for certain workers in shops or offices or certain categories of such workers, the employers' and workers' representatives who make up the tribunals are appointed by the minister (Endnote 99) In Turkey, according to information supplied by the Government, there is a minimum wage commission for industry and commerce, which must be consulted in the manner provided for by law, (Endnote 100) whose membership shall include representatives of employers and workers; a similar commission exists for the agricultural sector; hoever, the available legal texts do not specify the manner in which it is appointed. This is also the case in Zimbabwe in respect of advisory boards (Endnote 101) and in respect of the representatives on employment boards; in the latter case it is specified that in constituting an employment board, the minister shall have due regard to the interests of employment workers in the undertaking or industry concerned. (Endnote 102) Finally, in respect of employment councils, the law specifies that the minister may request any certified employers' organisation or federation of such organisations and any certified trade union or federation of such trade unions to form an employment council; if within three months they have not done so, the minister may appoint such number of persons as he considers will represent the employers and employees concerned to form an employment council. (Endnote 103)

216. According to information supplied by the Government of Hungary, the conciliation board is made up of representatives of employers and workers but it is not stated who appoints these representatives. For its part, the Government of Indonesia states that employers and workers can cooperate with minimum wage fixing bodies.

2. Independent persons

2.1. Characteristics and role of independent persons

217. The instruments under consideration provide for the consultation of other persons on the application of minimum wages, as well as the employers and workers concerned, their organisations or their representatives. These are individuals whose experience or specialisation gives them the necessary qualifications to take part in the operation of the minimum wage fixing machinery. (Endnote 104) The corresponding Recommendations also refer to independent persons who should participate in the operation of the minimum wage fixing machinery according to their special qualifications. (Endnote 105)

218. Apart from the specific competence they must have, under Article 4, paragraph (3)(b), of Convention No. 131, these independent persons must represent the general interests of the country. This is repeated in Recommendation No. 135, Part IV, Paragraph 9, where it is further specified that "(these persons) may ... be public officials with responsibilities in the areas of industrial relations or economic and social planning or policy-making".

219. Recommendation No. 30 (Part II, Paragraph 2(a)) attributes a special function to the independent persons who are to participate in the minimum wage fixing process. This consists in having a casting vote which "can ensure effective decisions being reached in the event of the votes of the employers' and workers' representatives being equally divided". As a corollary to this, both Recommendation No. 30 and Recommendation No. 89 stipulate that the independent persons should be dissociated from any interest which might be calculated to put their impartiality in question. (Endnote 106)

2.2. Appointment of the independent persons

220. As regards the appointment of the independent persons to be included in the minimum wage fixing bodies, Conventions Nos. 26 and 99 contain no provisions on the method of this appointment. However, Recommendation No. 30, Part II, Paragraph 2(a), provides that these persons should, as far as possible, be selected in agreement with or after consultation with the employers' and workers' representatives on the wage-fixing body. This principle is reaffirmed in Convention No. 131, Article 4, paragraph 3(b), which provides that the private individuals who participate in the minimum wage fixing machinery are to be appointed after full consultation with representative organisations of employers and workers concerned, where such organisations exist and such consultation is in accordance with national law and practice.

221. The Committee wishes to emphasise the importance of full consultation with representative organisations of employers and workers before these independent persons are appointed. When Article 4, paragraph 3(b), of the draft Convention was under discussion, a lengthy debate took place as to whether or not this requirement should be deleted from the proposed text. Both the Employers' and the Workers' members, together with a number of Government representatives, were against the deletion of this requirement because they considered that the proposed text was flexible enough and ensured the promotion of good industrial relations. (Endnote 107)

222. Nevertheless, the consultation must be carried out in accordance with national law or practice, for when an attempt was made to delete the words "where such exist, and such consultation is in accordance with national law or practice", from Article 4, paragraph 3(b), of the proposed text of Convention, this was totally rejected by a number of Government members and by the Employers' group on the grounds that the relevant amendment "reduced the flexibility of the proposed Convention". In view of this situation, the amendment was withdrawn by its authors, thus leaving the Office text which had been the subject of a number of comments by governments on this specific aspect. (Endnote 108)

223. Some countries make provision in their laws and regulations or in practice for employers' or workers' organisations to be consulted before the said independent persons are appointed. (Endnote 109)

224. In other cases, it is stated only that the appointment will be made by the competent authority. In Germany the legislation in force provides that, apart from the representatives of the workers and employers on the specialised committees, the Federal Minister for Labour may appoint other persons as experts but without the right to vote. (Endnote 110) On the subject of homework, the relevant Act also provides that the homework committee that may be set up will comprise additional persons with expert knowledge but without the right to vote. (Endnote 111) In Saudi Arabia the appointment of two other members, in addition to the high-ranking officials on the committee referred to in the Labour Code, is left to the Minister of Labour. (Endnote 112) Similar cases are to be found in the legislation of Bahamas, (Endnote 113) Bangladesh, (Endnote 114) Barbados, (Endnote 115) Benin, (Endnote 116) Cameroon, (Endnote 117) Canada: Province of Newfoundland, (Endnote 118) Central African Republic, (Endnote 119) Egypt, (Endnote 120) Fiji, (Endnote 121) Ghana, (Endnote 122) Islamic Republic of Iran, (Endnote 123) Jamaica, (Endnote 124) Japan, (Endnote 125) Kenya, (Endnote 126) Lesotho, (Endnote 127) Malawi, (Endnote 128) Malta, (Endnote 129) Mauritania, (Endnote 130) Myanmar, (Endnote 131) Pakistan, (Endnote 132) Papua New Guinea, (Endnote 133) Rwanda, (Endnote 134) Sri Lanka, (Endnote 135) Swaziland, (Endnote 136) United Kingdom: England, Wales and Scotland (industry and commerce), (Endnote 137) Northern Ireland (industry and commerce), (Endnote 138) England and Wales (agriculture), (Endnote 139) Scotland (agriculture), (Endnote 140) United States: Puerto Rico; (Endnote 141) and Wisconsin, (Endnote 142) as well as in the District of Columbia, (Endnote 143) Uganda, (Endnote 144) Zambia, (Endnote 145) and Zimbabwe. (Endnote 146)

225. In other countries it is simply stated that the bodies taking part in the fixing of minimum wages shall also include independent persons, as for example in Egypt, (Endnote 147) India, (Endnote 148) and Nigeria. (Endnote 149) In other cases it is the minimum wage fixing bodies themselves that call in experts, as in Colombia, where government officials, advisers to the employers' and workers' sectors and spokesmen of employers' and workers' organisations that are not represented on the National Labour Council, may be invited to attend its discussions with the right to be heard, (Endnote 150) and Panama, where the National Commission on Minimum Wages may invite experts or other persons to participate in meetings in order to give advice or clarify specific aspects. (Endnote 151) The legislation in force in Tunisia provides that the President of the National Minimum Wage Commission may seek the advice of any other person whose collaboration he considers useful in the examination of the matters under study. (Endnote 152) In Uganda, in the minimum wages advisory boards, the chairman of the board may invite advisers who are experts in matters connected with the investigations to be made by the board with a view to the fixing of wages. Such persons are entitled to speak, but not to vote. (Endnote 153)

226. The Committee observes that, in its comments attached to the report sent by the Government of Hungary, the National Federation of Hungarian Trade Unions has indicated that the provision for the consultation of competent persons in the regulation of minimum wages is not applied in national practice.

C. Process of consultation and participation

1. Process of consultation

227. Various provisions of the instruments under consideration establish the methods of consultation and participation. First of all it may be observed that in accordance with the terms of Conventions Nos. 26 and 99, ratifying States must undertake preliminary consultation of employers' and workers' representative organisations. This preliminary consultation may aim at determining the coverage of the minimum wage fixing machinery to be set up and its application. (Endnote 154) It is to be noted that Convention No. 99 refers to "full preliminary consultation" (Article 3, paragraph 2), which confers greater importance on the consultation to be carried out.

228. The obligation to consult employers' and workers' organisations takes on a different complexion in the case of Convention No. 131 which, in Article 1, paragraph 2, and Article 4, paragraph 2, establishes that decisions as to the groups of wage-earners to be covered by the minimum wage fixing system, or in connection with the operation and modification of the machinery, are to be reached "in agreement or after full consultation with the representative organisations of employers and workers concerned".

229. Preliminary consultation signifies in this case that ratifying States have the obligation to consult before adopting decisions on the various questions related to minimum wages (the establishment of minimum wage fixing machinery, the scope of such machinery, the application of the wage-fixing system or machinery), since otherwise, as the Committee has pointed out in the past (Endnote 155) if the procedure is not to be a mere formality, the consultation must be carried out before the proposed measures are decided upon. In other words, in the case of the minimum wage Conventions, the obligation to carry out a "preliminary consultation" implies affording employers' and workers' organisations or their representatives, or the representatives of the employers and workers concerned, an opportunity to express their views on any preliminary question and on the application of the minimum wage fixing machinery to a particular trade or part of a trade, or to enterprises, occupations and categories of persons, as well as on the implementation of such machinery. On various occasions the Committee has made comments on the application of these Conventions, emphasising the need to consult employers' and workers' organisations before the adoption of legislation setting up minimum wage fixing machinery.

230. The full consultation referred to in Article 3, paragraph 2, of Convention No. 99 appears to imply that in the determination of the minimum wage fixing machinery and its methods of operation in agriculture, there is an obligation not only to give the social partners concerned the opportunity to express their view on these questions before a decision is adopted, but, furthermore, that full information will be given to the employers' and workers' organisations and that the authorities who have to undertake the consultation must accord particular attention to the opinions expressed by the parties concerned. This idea is reinforced by Paragraph 3 of Part II of Recommendation No. 89, which states: "Whatever form it may assume, the minimum wage fixing machinery in agriculture should operate by way of ... consultation with the parties who are primarily and principally concerned, namely employers and workers, or their most representative organisations ... (and) the opinion of both parties should be sought on all questions concerning minimum wage fixing and full and equal consideration given to their opinion."

231. Convention No. 131 provides for the obligation of ratifying States to undertake "full consultation" in determining the groups of wage-earners to whom the minimum wage fixing system should apply, in connection with the establishment, operation and modification of the machinery whereby minimum wages may be fixed and adjusted and, finally, in appointing the persons having recognised competence for representing the general interests of the country who are to participate in the application of the established wage-fixing machinery (Article 1, paragraph 2, and Article 4, paragraphs 2 and 3(b)).

232. When the proposed Convention was under discussion at the Conference, the Workers' members proposed an amendment to insert "full" before "consultation". The Workers' Vice-Chairman stated that "too often consultation by governments with employers' organisations and trade unions was perfunctory". When the Conference adopted paragraph 2 of Article 4 of Convention No. 131, it wished to guarantee that the consultation of the parties concerned would be carried out, in both form and substance, in such a way as to ensure that the opinion of the parties concerned was really taken into consideration at the time of adopting a decision related to the various subjects concerning the fixing of minimum wages. (Endnote 156) The Workers' amendment was also supported by various Government members, who found it consistent with Article 1, paragraph 2, of the proposed Convention No. 131, which also employed the words "full consultation". Furthermore, the Government member of Australia asked for assurance from the Office that in a country in which minimum wages were fixed by means of a judicial process the requirements of this Article would be satisfied by giving opportunities to employers' and workers' representatives to give evidence before the wage-fixing tribunal. A representative of the Office replied that this interpretation appeared to be in accordance with the established usage.

233. The Committee of Experts notes that a committee set up by the Governing Body to examine a representation made under article 24 of the Constitution of the ILO stated that the consultation referred to in Convention No. 131, Article 4, paragraph 2, should be aimed at more than just obtaining the opinion of the organisations concerned, and that in fact the party responsible for carrying out the consultation should take into consideration what is stated or proposed by the party it consults, without this meaning that the government has to comply with all the requests of the organisation consulted, still less that it should enter into negotiations. (Endnote 157)

234. Although States are free to choose the means whereby consultation is carried out, the consultation must take place before decisions are taken and must be effective, that is to say, as the Committee previously stated (Endnote 158) that it must "enable employers' and workers' organisations to have a useful say" in matters that are the subject of consultation -- in this case matters relating to minimum wages.

235. Furthermore, it should be pointed out that the initiative regarding consultation is not the sole prerogative of governments; the possibility might exist -- and indeed does exist in practice -- for employers or workers, their representatives or their respective organisations to be able to set the consultation procedure in motion. Recommendation No. 30 (Part I, Paragraph 1) is fully in line with this idea as is the spirit of the other instruments.

236. Finally, the Committee stresses the fundamental importance it attaches to the consultation procedure and the attention it has always paid to the observations made in this respect by the social partners. (Endnote 159)

2. Process of participation

237. Convention No. 26 (Article 3, paragraph 2) stipulates that the employers and workers concerned shall be associated in the operation of the machinery in such manner and to such extent as may be determined by national laws or regulations. This principle is developed and reinforced in Recommendation No. 30, which states in Part II, Paragraph 2(a), that the employers and workers concerned should jointly take a direct part in the deliberations and decisions of the wage-fixing body. In Convention No. 99 the principle of participation is set out in a more flexible manner. Paragraph 3 of Article 3 provides that the employers and workers shall take part in the operation of the minimum wage fixing machinery, or be consulted or have the right to be heard, in such manner and to such extent as may be determined by national laws or regulations. Nevertheless, Recommendation No. 89 states that the employers and workers concerned should be enabled to participate directly and on an equal footing in the operation of the minimum wage fixing machinery.

238. Convention No. 131 takes up and consolidates the principle of participation. In paragraph 3(a) of Article 4 it states that wherever it is appropriate to the nature of the minimum wage fixing machinery, provision shall also be made for the direct participation in its operation of representatives of organisations of employers and workers concerned or, where no such organisations exist, representatives of the employers and workers concerned. Recommendation No. 135 specifies that the participation referred to in paragraph 3(a) of Article 4 of the Convention should also include membership of bodies that have been set up to advise the competent authority on minimum wage questions or to which the government has delegated responsibility for decisions on these wages (Part IV, Paragraph 8).

239. Furthermore, although these instruments use different terms, they provide that the participation in question must take place on an equal footing. (Endnote 160) Apart from the different terms used such as "on an equal footing", "on a basis of equality" or other similar terms, the notion of "equal footing" should not be interpreted as implying strict numerical equality between employers and workers but the attribution of equal weight to the opinions and interests of either side. (Endnote 161)

240. The Committee has referred to this problem on a number of occasions through its comments, insisting, for example, on the need to include provisions in national laws and regulations guaranteeing equal representation of employers and workers on the bodies responsible for minimum wage fixing. (Endnote 162) In this respect it is of interest to mention procedures especially set up by law in certain countries to achieve equality of representation when the employers' or workers' representatives on the relevant body are not all present. In Sri Lanka provision is made, in respect of remuneration tribunals which are made up of an equal number of employers' and workers' representatives, that when there is an unequal number of these representatives at a meeting the group that has a majority of representatives must decide which of those present will abstain from voting to ensure equality between the groups. (Endnote 163) Another case is that of legislation which does not explicitly mention equal representation but establishes the bases to ensure this equality, as for example in Equatorial Guinea, where the legislation provides that consultations shall be held "on a footing of equality" with the representatives of employers' and workers' organisations, or, where no such organisations exist, with the representatives of the employers and workers concerned; (Endnote 164) in Papua New Guinea, where the legislation provides for the representative or representatives of employers or employees to be appointed in such a way as to ensure equal numbers; (Endnote 165) or in Zimbabwe, where the law provides that in constituting an employment board, endeavours shall be made to achieve equality of representation in the interests of employers and employees concerned. (Endnote 166) In addition to these cases in which equality of representation is sought among the employers' and workers' representatives on the bodies that participate in minimum wage fixing, the case of Colombia, mentioned above, may be recalled, in which representatives of employers' and workers' organisatins not represented on the National Labour Council can be invited to participate. The aim here is not merely equal representation, which is ensured by the law, but the fullest and most comprehensive representation possible. (Endnote 167)

241. The Committee emphasises therefore that the participation of employers and workers, of their organisations or their representatives, must be direct, including the possibility that the parties concerned form part of the relevant bodies, that their participation is effective -- that is to say that the opinions reached by the parties concerned should be duly taken into consideration -- and that the participation should take place on an equal footing.

D. Content of the consultation and participation

242. Conventions Nos. 26 and 99 contain provisions on the content of consultation and participation. First, the consultation should relate to preliminary questions including the determination of the trades or parts of trades, undertakings, occupations or categories of persons to which the minimum wage fixing machinery should be applied to. (Endnote 168) Second, the content of the consultation and participation refers to the operation of the minimum wage fixing machinery, (Endnote 169) which is designed to "enable the wage-fixing body to take into consideration the views of the employers and workers concerned and of independent experts in deciding the actual terms of their determinations." (Endnote 170) The corresponding Recommendations clarify the provisions of the above-mentioned Conventions. Recommendation No. 30, Part II, Paragraph 1, and Recommendation No. 89, Part II, Paragraph 3, state that the opinion of the employers and workers concerned should be sought on all questions concerning minimum wage fixing, including investigation into conditions in the trade or part of trade concerned or in agriculture, and that full and equal consideration should be given to their opinion.

243. Convention No. 131 also refers to these two possibilities for the contents of consultations. Article 1, paragraph 2, refers to the determination of the groups of wage-earners to be covered by the minimum wage fixing system, while Article 4, paragraph 2, provides that the consultation and participation should refer to the establishment, operation and modification of the minimum wage fixing machinery. In other words, this provision implies that the opinion of the employers and workers concerned should be duly taken into consideration at the time of actually fixing and modifying the minimum wages. This is clarified in Recommendation No. 135 which, in Part IV, Paragraph 7, states that "the consultation provided for in paragraph 2 of Article 4 of the Convention should include, in particular, consultation in regard to the following matters: (a) the selection and application of the criteria for determining the level of minimum wages; (b) the rate or rates of minimum wages to be fixed; (c) the adjustment from time to time of the rate or rates of minimum wages; (d) problems encountered in the enforcement of minimum wage legislation; (e) the collection of data and the carrying out of studies for the information of minimum wage fixing authorities".

1. Consultation relating to the scope of wage-fixing methods

244. The Conventions under consideration provide that ratifying States are free to decide on the trades or parts of trades (Convention No. 26), undertakings, occupations and categories of persons (Convention No. 99) or groups of persons (Convention No. 131) to which the minimum wage fixing machinery is to be applied, after consultation with the organisations of employers and workers.

245. As the Committee stated in a previous survey, (Endnote 171) the problem of this type of consultation does not exist when the legislation that applies this provision of the Convention or Conventions is applied indiscriminately to all workers. The situation is different when certain trades or categories of workers have been or are to be excluded from the application of the minimum wage fixing system.

246. In a large number of countries the minimum wage fixing system applies to all workers. Nevertheless, in some States the machinery that has been or is to be set up covers only certain enterprises or trades or a certain category of workers. (Endnote 172) In these cases, in accordance with the legislation in force, the competent authority undertakes consultations with the employers and workers concerned, with their organisations or with the persons who may be affected or concerned, so as to define the coverage of the minimum wage fixing machinery that is to be set up. Nevertheless, it should be mentioned that on occasions this consultation is confused with that concerning the actual creation of the minimum wage fixing body. According to the information available, this kind of consultation is carried out in a number of countries. In Germany, under the legislation in force, the Federal Minister for Labour, in agreement with the general committee for minimum conditions of employment, determines the industries or employment categories in respect of which minimum conditions of employment shall be established or revoked; (Endnote 173) in India, where under the legislation in force the competent authority either appoints committees or subcommittees to hold inquiries and advise it on the fixing of wages in respect of any scheduled employment, or publishes its proposals in the Official Gazette for the information of persons likely to be affected thereby, specifying a period during which representations will be taken into consideration. (Endnote 174)

247. In the United States, according to the information supplied by the Government, the exceptions provided by law (see Chapter II) are the result of the legislative process and were adopted after congressional committee hearings to which representatives of all the parties concerned were invited in order to express their views on the inclusion or exclusion of the groups they represented; in Sri Lanka, where, when the competent minister decides to set up a wages board he must give notice of his intention in the Gazette and in other newspapers, in the languages stipulated by law, specifying a period within which to receive from the parties concerned any objections to the proposed Order setting up the relevant board. (Endnote 175) The employers' and workers' organisations may make representations regarding the decision to apply the provisions on wages boards and, consequently, their establishment in respect of certain trades; (Endnote 176) and in Zimbabwe, where the competent minister may, either on his own initiative or on the recommendation of any employer or employee, or of any association representing employers or employees, appoint advisory boards to make recommendations to him on, inter alia, the fixing of minimum wages (Endnote 177) Similar provisions are also found in the legislation of Botswana, (Endnote 178) Fiji, (Endnote 179) Lesotho, (Endnote 180) Malawi, (Endnote 181) Myanmar (Endnote 182) and Nigeria. (Endnote 183)

248. Recommendation No. 30, Part I, Paragraph 1, provides that employers or workers may request the application of minimum wage fixing machinery and furnish information which shows, prima facie, that no arrangements exist for the effective regulation of wages and that wages are exceptionally low. In this case it is stated that the wages actually paid and the arrangements, if any, for the regulation of wages should be ascertained for any trade or part of trade in respect of which the request has been made. According to the information supplied, investigations of this kind are carried out in a number of countries, whether at the request of the employers or of the workers, for example, in Zimbabwe, (Endnote 184) and in the Netherlands, where the legislation (Endnote 185) provides that an employer or an organisation of employers or workers may apply to the Minister to fix the minimum wage for certain categories of workers employed in an undertaking, branch of industry or occupation at a lesser amount than is prescribed by law. In such a case no decision shall be taken until it is clear that the applicant has discussed the problem with the organisations of employers or workers that the Minister considers representative. In the Dominican Republic, according to information communicated by the Government, bipartite discussions have been held at the request of the workers' organisations with a view to obtaining wage increases. In Nicaragua, the legislation provides (Endnote 186) that employers or workers may request a review of minimum wages under the conditions established by law.

249. Finally, Recommendation No. 30, Part I, Paragraph 2, states that, without prejudice to the discretion left to member States by Convention No. 26, special regard might usefully be had to trades or parts of trades in which women are ordinarily employed. In this connection it should be recalled that certain countries initially set up a minimum wage system for women and young workworkers, (Endnote 187) although subsequently they extended the system to all workers. At present, practically all States with a minimum wage system afford equal coverage to women and young workers and to men. (Endnote 188)

2. Consultation prior to the establishment or modification of the minimum wage fixing system and machinery

250. Once the coverage of the minimum wage fixing machinery that is to be set up has been determined, the next stage, according to the Conventions under consideration, is the consultation of the organisations of employers and workers or their representatives, or the employers and workers concerned, on the establishment and modification of the minimum wage fixing machinery.

251. In a certain number of States the minimum wage fixing machinery is established in the constitution (see paragraph 103). Frequently, especially in the case of recent constitutions, the social partners have intervened in the preliminary or parliamentary discussions preceding their adoption. Although the governments do not say so, it is known that representatives of employers and workers have had the opportunity to express their views on this matter. (Endnote 189) In other cases, where provision is made for the machinery (in so far as this has already been established in the constitution of the country in question) in the labour code or other law of general scope (see paragraph 105), consultations have also been carried out with the employers' and workers' sectors respectively, although it should be pointed out that few governments have specifically said so. The Government of Algeria states that full consultations were held with the representatives of the employers and workers at the time of devising the minimum wage fixing system that is in force. The Government of Australia states that consultations have been held at both federal and state level when minimum wage fixing machinery has been established or modified. In this respect it mentions the existence of the tripartite National Labour Consultative Council, established in 1977, which acts at the consultative body to the Government on all matters related to labour; (Endnote 190) in Western Australia, a Tripartite Labour Consultative Council was established in 1983 to advise the Minister on all matters related to labour, (Endnote 191) whose members are representatives of employers' and workers' organisations and are appointed by the Minister on the proposal of the organisations specified by the Act; (Endnote 192) in Queensland, according to information supplied by the Government, the Committee of Inquiry with a tripartite membership was set up under the Industrial Conciliation and Arbitration Act 1961-1987. The work of this committee enabled the legislative changes to be made resulting in the current Industrial Relations Act of 1990. Furthermore, this Act provides for the setting up of an Industrial Relations Consultative Committee, whose members are to include representatives of organisations of employers and workers. The representatives of these organisations will be appointed by the Minister on the proposal of the organisations concerned. It is also provided that the Minister shall directly appoint two other representatives of employers and workers. If the organisations that have been requested to propose candidates for appointment by the Minister fail to do so, the latter may propose to the Government the names of persons to be appointed for this purpose. (Endnote 193) The advisory functions of this committee are laid down in the Act. (Endnote 194)

252. The Government of Austria states that organisations of employers and workers were consulted on the adoption of the laws relating in one way or another to minimum wage fixing. In Botswana, according to the information supplied by the governments, organisations of employers and workers were consulted when the current minimum wage fixing machinery was being established. The Government of Canada has stated that at federal level the relevant consultations have been carried out, in accordance with the policy established, in amending the Labour Code and the regulations issued thereunder. In the Province of British Columbia, likewise, consultations have been held with the parties concerned in carrying out reforms on wage policy and establishing minimum wages for agricultural workers. In the Yukon Territory, according to the information supplied by the Government, the parties concerned were consulted during the preparation of the Employment Standards Act. The Government of the United States reports that at federal level the adoption and subsequent amendment of the Fair Labor Standards Act were carried out at the end of a legislative process which entailed hearing all sectors of the economy as well as representatives of employers' and workers' organisations. These hearings took place in both the Senate and the House of Representatives. The Government of Ghana states that when the current machinery was set up consultations were held with the Tripartite National Advisory Committee on Labour, on which employers and workers are represented. According to information given by the Government of Israel, the representatives of employers' and workers' organisations participated in the discussions that took place in the Labour and Social Affairs Committee of Parliament (Knesset), when the Minimum Wage Law was being prepared. The Government of Japan states that when the Minimum Wages Law was adopted in 1959 and when it was revised in 1968 formal consultations were held with the competent bodies, the Central Wage Council and the Cntral Minimum Wage Council, and by this channel consultation with workers' and employers' organisations was assured. Similarly, when the minimum wage provisions of the Industrial Homework Law were adopted, the appropriate body was consulted, thus guaranteeing consultation of the organisations concerned. In Colombia and in Mexico consultations also took place when the relevant labour legislation was adopted. The Government of Namibia states that when it prepared the draft Labour Code, which provides for the establishment of minimum wage fixing machinery, representatives of employers and workers were consulted.

253. Mention should be made of the countries that formerly had planned economies, which are now in transition to a market economy. These changes imply reforms in the minimum wage system and in the minimum wage fixing machinery. According to information communicated by the governments concerned, the social partners are participating in the definition of new minimum wage fixing machinery. This is the case, for instance, in Bulgaria; a Tripartite Federal Council has been set up in Czechoslovakia, where the General Agreement of 1991 was negotiated. This participation has established the basis for minimum wage fixing; in Hungary a Conciliation Council has been set up, on which organisations of employers and workers are represented; in Romania a Government-Trade Union Commission has been set up, together with a committee on social protection and labour affairs.

254. In other cases, it is the actual establishment of the body that will fix or help to fix the minimum wage that is the subject of consultation. This situation is common in countries where the competent authority, whether the minister or otherwise, having decided that the wages of certain categories of workers or in certain regions are very low, carries out an investigation by means of a body created for the purpose by law before deciding whether or not to establish the body for which statutory provision has been made to determine or propose the minimum wages to be fixed for the group of workers or the region or regions in question. In Botswana, when the minister decides to fix a minimum wage in any enterprise or trade or industry, he must publish his decision and specify a period during which the persons concerned may make observations, which must be taken into consideration by the relevant Minimum Wages Advisory Board. (Endnote 195) The Board has to take into consideration the points raised by the employers or workers whose interests are involved, or their registered organisations, and must make the necessary arrangements for these to be heard by the relevant Advisory Board. (Endnote 196) In Fiji it is reported that the competent authority must consult the Labour Advisory Board before establishing or abolishing a wages council board. (Endnote 197) In Ghana, a public consultation is held before labour boards are established. (Endnote 198) In Kenya, before deciding whether a wage council should be established, the Minister must consult the General Wages Advisory Board and the Agricultural Wages Advisory Board. Once the opinion of these bodies has been received the Minister will publicise his intention, receive and examine objections and make a wages councils order. (Endnote 199) In Lesotho, when making a wages council establishment order, the minister consults the Wages Advisory Board, or opens a public consultation by publishing in the Gazette a notice of his intention, specifying a period within which any objection may be made by those concernd. (Endnote 200)

255. In Malawi the minister is required, before making a wages advisory council establishment order, to take into account any recommendation of the Wages Advisory Board or, if their is no such recommendation, publish a notice of his intention in the Gazette, specifying a period within which any objection may be submitted; nevertheless, the law specifies that the minister is not bound by such recommendations or objections. (Endnote 201) In Malta an order establishing a wages council may be made by the minister if he is of the opinion that no adequate machinery exists for the effective regulation of the conditions of employment of a particular category of workers; notice of his intention must be published so that he may receive any objections from interested parties. Once the decision has been made, the wages council order must be published in the Government Gazette. (Endnote 202) In Myanmar, consultations may be held with a commission of inquiry before a minimum wages council is set up. (Endnote 203) In Nigeria, if the Commissioner considers that wages are very low or that no adequate system exists for fixing minimum wages, he may refer to a commission of inquiry the question whether or not to set up an industrial wages board in respect of certain workers and their employers. (Endnote 204) Similar measures are found in Sri Lanka, (Endnote 205) Swaziland (Endnote 206) and Uganda (Endnote 207)

3. Participation in the operation of minimum wage fixing machinery

256. The instruments under consideration provide for the participation of organisations of employers and workers, or their representatives, or of the employers and workers concerned in the operation of minimum wage fixing machinery. The instruments also provide for the participation of independent persons or persons who represent the general interest of the country.

257. On the whole, the participation of the organisations of employers and workers, their representatives or the employers and workers concerned in the operation of the machinery for minimum wage fixing is ensured. This is the case regardless of whether the wages are fixed by a law or a decision of the competent authority, whether an ad hoc body is consulted or its recommendations taken into consideration, whether the wages are fixed by an ad hoc body known as a board, council or committee, and whether they are fixed by a labour tribunal or other similar body or by means of collective bargaining, the outcome of which -- the collective agreement -- carries force of law.

258. It would seem that the participation of employers and workers, their representatives or their respective organisations is better facilitated when an ad hoc body exists that fixes minimum wages or intervenes in their fixing, than when this takes place without there being any such body. Consequently, it is important to consider the composition of such bodies before referring to the procedures guaranteeing the participation of employers and workers, their organisations or their representatives on such bodies.

3.1. Composition of minimum wage fixing bodies

259. The instruments under consideration provide for the representatives of organisations of employers and workers to form part of the bodies established for minimum wage fixing. The terms of Recommendations Nos. 30 and 89 and of Convention No. 131 leave no room for doubt that it is in the spirit of these instruments that representatives of organisations of employers and workers, or representatives of the employers and workers concerned, should participate in such bodies. The corollary to this is found in Recommendation No. 135, Part IV, Paragraph 8, which states that the participation referred to in paragraph 3 of Article 4 of Convention No. 131 should include membership of minimum wage fixing bodies. It may be said that these provisions do no more than reflect the situation prevailing in the various States over time, as indicated in the various reports leading up to the adoption of the instruments in question.

260. Generally speaking, when such bodies exist they are usually tripartite. This is the case in Austria, (Endnote 208) Bahamas, (Endnote 209) Bangladesh, (Endnote 210) Barbados, (Endnote 211) Benin, (Endnote 212) Botswana, (Endnote 213) Burundi, (Endnote 214) Cameroon, (Endnote 215) Canada: Provinces of Manitoba, (Endnote 216) Newfoundland, (Endnote 217) Prince Edward Island, (Endnote 218) and Yukon Territory, (Endnote 219) Central African Republic, (Endnote 220) Chad, (Endnote 221) Colombia, (Endnote 222) Côte d' Ivoire, (Endnote 223) Djibouti, (Endnote 224) Dominican Republic, (Endnote 225) Ecuador, (Endnote 226) Egypt, (Endnote 227) Fiji, (Endnote 228) France, (Endnote 229) Germany, (Endnote 230) Ghana, (Endnote 231) Guatemala, (Endnote 232) Guinea, (Endnote 233) Equatorial Guinea, (Endnote 234) Guyana, (Endnote 235) Honduras, (Endnote 236) India, (Endnote 237) Indonesia, Islamic Republic of Iran, (Endnote 238) Jamaica, (Endnote 239) Japan, (Endnote 240) Kenya, (Endnote 241) Lesotho, (Endnote 242) Malawi, (Endnote 243) Malta, (Endnote 244) Morocco, (Endnote 245) Mauritania, (Endnote 246) Mauritius, (Endnote 247) Mexico, (Endnote 248) Myanmar, (Endnote 249) Namibia, (Endnote 250) Nicaragua, (Endnote 251) Nigeria, (Endnote 252) Pakistan, (Endnote 253) Panama, (Endnote 254) Papua New Guinea, (Endnote 255) Peru, (Endnote 256) Philippines, (Endnote 257) Portugal, (Endnote 258) Swaziland, (Endnote 259) Syrian Arab Republic, (Endnote 260) Togo, (Endnote 261) Trinidad and Tobago, (Endnote 262) Tunisia, (Endnote 263) Uganda, (Endnote 264) United Kingdom, (Endnote 265) United States: California, (Endnote 266) Puerto Rico, (Endnote 267) Wisconsin, (Endnote 268) and the District of Columbia. (Endnote 269) and Zambia. (Endnote 270)

261. In the Netherlands two-thirds of the members of the Economic and Social Council, which must be consulted at least every three years to modify established rates of minimum wages, are appointed by organisations of employers and workers designated by the competent authority from among recognised organisations (Endnote 271). However, it is not stated expressly that an equal number of members will be appointed by the organisations of employers and of workers respectively. In Zimbabwe section 19 of the relevant Act does not specify whether advisory boards are tripartite in composition; employment councils, however, are made up of representatives of the organisations of employers and workers concerned; (Endnote 272) finally, in respect of employment boards, the relevant Act provides that the Minister shall endeavour to achieve, as far as practicable in the circumstances, an equality of representation of the interests of employers and employees concerned. (Endnote 273)

262. The minimum wage fixing bodies are also composed of independent persons. This is the case in Germany (Endnote 274) and Saudi Arabia. (Endnote 275) In Austria the Homework Committee includes, apart from the chairman and representatives of employers and workers, experts "having the necessary experience and knowledge in the relevant branches of homework"; (Endnote 276) see also Bahamas, (Endnote 277) Bangladesh, (Endnote 278) Barbados, (Endnote 279) Benin, (Endnote 280), Botswana, (Endnote 281) Cameroon, (Endnote 282) Canada (Province of Newfoundland) (Endnote 283) and Central African Republic. (Endnote 284) In Côte d'Ivoire, according to the information supplied by the Government, in addition to the members of the Advisory Labour Committee provided for in the legislation (Endnote 285) the Committee may include qualified officials or persons with competence on certain matters in an advisory capacity. See also United States: in California, the independent person would represent the commission and act as chairman of the wage board; (Endnote 286) see also the case of Puerto Rico, (Endnote 287) Wisconsin (Endnote 288) and the District of Columbia. (Endnote 289)

263. This is also the situation in other countries: Ghana, (Endnote 290) Guinea, (Endnote 291) Equatorial Guinea, (Endnote 292) Honduras, (Endnote 293) India, (Endnote 294) Islamic Republic of Iran, (Endnote 295) Jamaica, (Endnote 296) Japan, (Endnote 297) Kenya, (Endnote 298) Lesotho, (Endnote 299) Malawi, (Endnote 300) Malta, (Endnote 301) Mauritius, (Endnote 302) Mexico, (Endnote 303) Myanmar, (Endnote 304) Nigeria, (Endnote 305) Pakistan, (Endnote 306) Panama, (Endnote 307) Papua New Guinea, (Endnote 308) Swaziland, (Endnote 309) Tunisia (Endnote 310) Uganda, (Endnote 311) United Kingdom, (Endnote 312) and Zimbabwe. (Endnote 313)

3.2. Participation machinery in an ad hoc body

264. When the legislation or practice of a country provides for a minimum wage fixing body, the participation of representatives of employers and workers is, in general, assured. Nevertheless, the extent of this participation will vary according to whether the body in question is empowered to fix minimum wages directly or to adjust them, or whether this body is empowered only to express its opinions or to make counterproposals to draft orders on minimum wages proposed by the competent authority. Furthermore, the consultation carried out through the minimum wage fixing bodies imply, in one way or another, consultation related to the investigations that have to be carried out for the fixing or adjustment of minimum wages as referred to, in particular, in Recommendations Nos. 30 and 89. (Endnote 314) Nevertheless, not all countries make specific provision in their legislation for this type of consultation, referring solely to consultation in connection with the actual rates of minimum wages proposed to the bodies that intervene in minimum wage fixing. The Committee has had the occasion to refer to this problem, stressing the need for the social partners to be exhaustively consulted, for all available documentation that has been taken into account in determining or adjusting minimum wages to be provided, and for the proposals of the social partners to be thoroughly studied. (Endnote 315)

265. Nevertheless, the fact that an ad hoc body exists or that provision is made in national laws or regulations for participation does not ensure in practice that this participation is fully respected by the competent authority. In such cases the Committee has found it necessary to make comments.

266. In some countries ad hoc bodies are empowered to fix minimum wages directly. In this case there is a better guarantee of the participation of the parties concerned to the extent that the duties of such bodies include making the necessary investigations, compiling data, and discussing the elements to be taken into account in fixing minimum wages. The powers and duties of these bodies are often laid down in legal provisions. This is the case in Germany, in respect of the fixing of minimum conditions of employment, (Endnote 316) as well as in the case of the fixing of homework conditions; (Endnote 317) Argentina, (Endnote 318) Austria, (Endnote 319) Barbados, (Endnote 320) Colombia, (Endnote 321) Ecuador, (Endnote 322) Guinea, (Endnote 323) Guyana, (Endnote 324) India, (Endnote 325) Islamic Republic of Iran, (Endnote 326) Mexico, (Endnote 327) Mozambique, (Endnote 328) Nicaragua, (Endnote 329) Philippines, (Endnote 330) Sri Lanka, (Endnote 331) Syrian Arab Republic, (Endnote 332) Uganda (Endnote 333) and United Kingdom. (Endnote 334)

267. In other States, the fixing of minimum wages is a matter for the competent authority which must, for this purpose, consult the relevant ad hoc body. A draft is submitted to this body and it is requested either to give its opinion or to make recommendations on the fixing of minimum wages. The participation of employers and workers, their organisations or their representatives is assured in certain countries. These include Bangladesh, (Endnote 335) Benin, (Endnote 336) Botswana, (Endnote 337) Burundi, (Endnote 338) Caméroon, (Endnote 339) Canada: Province of Newfoundland, (Endnote 340) Central African Republic, (Endnote 341) Côte d'Ivoire, (Endnote 342) Djibouti, (Endnote 343) Dominican Republic, (Endnote 344) Egypt, (Endnote 345) Fiji (Endnote 346) and Germany. (Endnote 347) In a number of states in the United States, the law requires consultations to take place with the relevant wages boards, (Endnote 348) although according to the information supplied by the Government these consultations do not actually take place in practice. In other states minimum wage fixing follows the consultations referred to with the bodies prescribed by law. (Endnote 349) See also France, (Endnote 350) Ghana, (Endnote 351) Honduras, (Endnote 352) Hungary, (Endnote 353) India, (Endnote 354) Indonesia, Jamaica, (Endnote 355) Japan, (Endnote 356) Kenya, (Endnote 357) Lesotho, (Endnote 358) Malawi, (Endnote 359) Malta, (Endnote 360) Mauritius, (Endnote 361) Mauritania, (Endnote 362) Morocco, (Endnote 363) Myanmar, (Endnote 364) Nepal, (Endnote 365) Netherlands, (Endnote 366) Nigeria, (Endnote 367) Pakistan, (Endnote 368) Panama, (Endnote 369) Peru, (Endnote 370) Portugal, (Endnote 371) Rwanda, (Endnote 372) Sudan, (Endnote 373) Swaziland, (Endnote 374) Syrian Arab Republic, (Endnote 375) Togo, (Endnote 376) Trinidad and Tobago, (Endnote 377) Tunisia, (Endnote 378) Turkey, (Endnote 379) and Zimbabwe. (Endnote 380)

3.3. Participation of organisations of employers and workers where ad hoc bodies do not exist

268. Ensuring the participation of organisations of employers and workers, their representatives or those of the employers and workers concerned in the minimum wage fixing machinery, when there is no ad hoc body, would appear more problematic. Nevertheless, a certain number of countries have ensured this participation either through established practice or by means of explicit provisions in their laws and regulations.

269. In some countries the participation of employers and workers is assured by established practice. This is the case in Belarus, where, according to information communicated by the Government, the Central Council of Trade Unions participates in wage fixing. No mention is, however, made of employers. In Brazil, according to the information supplied by the Government, representatives of employers and workers play an active role in the discussions in the National Congress when the subject is being debated. In Bulgaria, according to information from the Government, consultations have begun through the National Commission for the Harmonisation of Interests, in which trade unions and certain employers' organisations participate, for the purpose of modifying the practice laid down by law according to which only the central trade union organisation was consulted. (Endnote 381) In Canada, at the federal level, according to the information from the Government, the parties concerned are consulted when the minimum wage fixing machinery is set in motion. Similar information was given for the Province of Ontario, this method being applied in particular for the annual review of minimum wages. In the Northwest Territories, according to the Government, minimum wage rates are fixed by the Legislative Assembly, and public hearings are held for this purpose. The parties concerned may also express their views through the Labour Standards Law Review Panel. In China, according to information from the Government, minimum wages are regulated by means of intense consultations between representatives of workers' organisations and heads of undertakings. In Czechoslovakia, the Government reports that a General Agreement for 1991 was reached as part of the reforms that are being carried out, according to which the Federal Government will be required to adopt the necessary Orders to fix the minimum wage prescribed in section 111 of the amended Labour Code. The Agreement was the subject of discussion with the representatives of organisations of emplyers and workers. Nevertheless, neither the Code nor the information supplied by the Government states whether the organisations concerned are consulted when the orders prescribed in the aforementioned section 111 were adopted. In Luxembourg, according to information from the Government, once a Bill has been prepared on the basis of a report prepared by a working party set up by the Minister of Labour, the Bill is submitted to the employers' and workers' organisations in the country for purposes of consultation. These consultations are noted in the parliamentary records. In Ukraine the information supplied by the Government does not say whether employers' and workers' organisations are consulted when the Government fixes the minimum wage. In the United States, according to the information supplied by the Government, public hearings are held in the Senate and the House of Representatives when laws fixing the minimum wage at the federal level are being adopted. In some states the minimum wages are also fixed by law, in which case public hearings are also held as well as when minimum wages are fixed by order or notification.

270. In other countries, though more rarely, minimum wages have been fixed without consulting organisations of employers and workers or their representatives, or at least one of them, as for example in the Province of Alberta, in Canada, where the Government states that more than 85 per cent of workers in the private sector are not organised and that for this reason there is no effective method of consultation. In Qatar, according to the information communicated by the Government and the legislation in force, neither employers' nor workers' organisations are consulted when minimum wages are fixed. In Romania, the legislation provides that there shall be consultations only with trade union organisations, (Endnote 382) but the Government states that a Government-Trade Union Commission has been set up with a committee responsible for labour problems and social protection. In Rwanda, according to the information supplied by the Government, only the employers were consulted when minimum wages were fixed. In Yugoslavia, when minimum wages are not fixed by collective agreement but by the State, there appears to be no consultation.

271. Among the States that have made provision for the participation of employers and workers in minimum wage fixing, in the absence of ad hoc bodies, but under statutory provisions, mention may be made of the following countries, where the legislation provides only for consultation with workers' organisations: Algeria, (Endnote 383) Angola, (Endnote 384) and Cuba. (Endnote 385) In Chile, the most representative organisations of employers and workers are consulted before draft legislation fixing the minimum monthly income is prepared; this corresponds to the statutory provisions. (Endnote 386) See also Equatorial Guinea, (Endnote 387) Guyana, (Endnote 388) and Spain. (Endnote 389) In Mozambique, according to information communicated by the Government, employers' and workers' organisations are consulted before minimum wage rates are fixed, as are other interested parties. It should, however, be mentioned that according to the provisions of the Labour Code, section 75(4), the organisation, orientation and control of wages are the responsibility of the State, with the participation of trade union bodies. See also Poland. (Endnote 390) In Zambia the provisions in force provide for consultation with unions of the workers concerned when such unions exist. (Endnote 391) The Government has stated that employers' and workers' organisations have been consulted. However, even if this does occur in practice, the Committee has made various comments on this point, requesting that the law be brought into line with practice. (Endnote 392)

272. Lastly, the full participation of the social partners is assured in those countries in which the determination of wages is generally left entirely to collective bargaining (Austria, Belgium, Denmark, Finland, Germany, Iceland, Italy, Norway, San Marino, Suriname, (Endnote 393) Sweden, Switzerland and Yugoslavia). In some countries the result of collective bargaining must be submitted to a state body either to endorse the agreement or, in the event of a dispute, to settle the dispute by means of a binding decision. The state body which intervenes in such cases may itself have a tripartite composition. (Endnote 394) In another country this body is responsible for making the necessary investigations leading to a settlement of the dispute, which will be finally decided by another state body (Endnote 395) or will solve the dispute itself. (Endnote 396)

273. In other cases wages are determined by the free play of supply and demand on the labour market, for example in agriculture in Switzerland; nevertheless, some guidelines may be established in connection with wage increases, whether by the State or by a tripartite body. This occurs, for example, in New Zealand, where there exists a Tripartite Wage Conference composed of representatives of employers' and workers' organisations designated by the organisations themselves, and which conducts annual consultations on the economic situation and establishes principles relating to wage policies in the light of various economic factors (Endnote 397) and in Singapore where, according to the information supplied by the Government, apart from the wage fixing that takes place through collective bargaining and as a result of individual contracts of employment, the Tripartite National Wages Council, on which the Government, employers and workers are represented at the highest level, establishes annual wage increase guidelines. In Greece, according to information supplied by the Government, the wages fixed for agriculture must be in conformity with the minimum standards laid down in the General Labour Agreement.

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Legislation

See related national legislation from Natlex

Australia: Industrial Conciliation and Arbitration Act 1961-1987

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C144 Tripartite Consultation (International Labour Standards) Convention, 1976
Recommendations:R152 Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976