Protection of Wages Convention, 1949 (No. 95) - Botswana (RATIFICATION: 1997)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 95 and 173 in a single comment.

Protection of Wages Convention, 1949 (No. 95)

The Committee notes the observation made by the Botswana Federation of Trade Unions (BFTU) received with the Government’s report.

Article 4(2) of the Convention. Partial payment of wages in kind. Further to its previous comments on the need to adopt measures to ensure that allowances in kind are appropriate for the personal use and benefit of the worker and the value attributed to them is fair and reasonable, the Committee notes the absence of information on this matter in the Government’s report. The Committee also notes that the BFTU indicates that they had sent proposals to the Government in 2015 concerning possible amendments to the Employment Act, which included the repeal of its section 84 which allows for partial payment of wages in kind up to a limit of 40 per cent of the total amount of wages due. According to the BFTU, payment in kind should be limited to additional benefits other than the agreed wages. The Committee recalls once again that Article 4(2) is not self-executing and requires the adoption of practical measures to ensure that any allowances in kind which may be provided in partial settlement of wages due are appropriate for the personal use and benefit of the worker and the value attributed to them is fair and reasonable. In its 2003 General Survey on protection of wages, paragraph 153, the Committee notes that this obligation may be met in a variety of ways, such as the inclusion in the relevant laws, regulations, collective agreements or arbitration awards of corresponding general conditions and/or more specific rules respecting the types of benefits in kind which may be provided and the principles or methods determining, supervising or, if necessary, adjudicating the value attributed to them. The Committee requests the Government to take the necessary measures to ensure the effective implementation of Article 4(2) of the Convention and to provide information in this respect.

Article 7(2). Works stores. The Committee notes that section 86(1) of the Employment Act provides that no employee shall be compelled by any contract of employment, agreement or order, written or oral, to purchase provisions at any shop established by the employer. It notes that this provision does not give effect to Article 7(2) which provides that, where works stores for the sale of commodities to the workers are established or services are operated in connection with an undertaking, and access to other stores or services is not possible, the competent authority shall take appropriate measures with the object of ensuring that goods are sold and services provided at fair and reasonable prices, or that stores established and services operated by the employer are not operated for the purpose of securing a profit but for the benefit of the workers concerned. Therefore, the Committee requests the Government to indicate the measures taken to ensure compliance with this provision of the Convention and to provide information in this respect.

Articles 8 and 10. Deductions from wages. Attachments of wages. Further to its previous comments on the need to set limits to the possible deductions from and attachment of wages, the Committee notes the Government’s indication that this matter will be taken into consideration in the process of amending the Employment Act. The Committee requests the Government to provide information on the progress made in this respect.

Article 14. Information on pay conditions and wage statements. The Committee notes that the BFTU indicates that there are no measures in place to ensure that workers are informed of wages applicable to them before entering employment and that many workers still receive undocumented wages from employers. In the absence of a reply from the Government on this point which was also raised in its last comments, the Committee once again requests the Government to indicate the measures taken or envisaged to ensure: (i) that workers are duly informed of the wage conditions applicable to them before they enter employment (Article 14(a)); and (ii) that they receive wage statements at the time of each payment (Article 14(b)).

Protection of Workers’ Claims (Employers’ Insolvency) Convention, 1992 (No. 173)

Articles 6, 7 and 8. Workers’ claims protected by privilege. Limitations. Rank of privileges. In its previous comments, the Committee noted that the Employment Act and the Insolvency Act establish differing degrees of protection for workers’ claims in the event of the insolvency of their employer. The Committee had considered that these two Acts should be amended for the sake of legal certainty and with a view to ensuring compliance with the Convention. The Committee recalls that Section 91A of the Employment Act establishes a privilege over non privileged claims for employees’ claims covering wages up to three months prior to the insolvency or termination of contract, holiday with pay, other paid absence and severance benefits. However, the Employment Act does not indicate the rank of the wage claims’ privilege among other types of privileged claims. On the other hand, sections 82–86 of the Insolvency Act, establish that wage claims are to be paid after the payment of funeral expenses, costs of sequestration and costs of execution but before the payment of taxes on income and other claims. However, section 85(1) of the Insolvency Act limits the amount of workers’ claims protected by this privilege to 100 pulas. The Committee recalls that the Convention requires that workers’ claims be given a higher rank of privilege than most other privileged claims (Article 8(1)) and that when the protection is limited to a prescribed amount, this amount shall not be below an acceptable level and it shall be adjusted as necessary as to maintain its value (Article 7). The Committee notes that the Government indicates in its last report that the Insolvency Act needed to be amended to protect the claims of employees. The Committee requests the Government to provide information on any developments in this regard.

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Articles 1, 6 and 7 of the Convention. Definition of “wages”. Freedom of workers to dispose of their wages. Works stores. The Committee notes that, following the adoption of the Employment (Amendment) Act, 2010, sections 2(1), 83(1) and 86(1) of the Employment Act (Cap. 47:01), as amended, have been brought into line with Articles 1, 6 and 7 of the Convention.

Article 4(2). Partial payment of wages in kind. Further to its previous comment regarding practical measures to ensure that allowances in kind are appropriate for the personal use and benefit of the worker and the value attributed to them is fair and reasonable, the Committee notes the Government’s indication that, under section 84(1) of the Employment Act, payments in kind may not exceed 40 per cent of the total amount of the wages due. The Committee wishes to refer, in this regard, to paragraph 159 of the 2003 General Survey on the protection of wages, in which it noted that setting a limit on the portion of the money wages which may be replaced by benefits in kind does not in itself resolve the problem of the fair valuation of such benefits and offers little protection from possible exploitative practices. At most, it guarantees the partial character of the wage payment in kind. Yet, such limits alone cannot ensure that the allowances in kind provided in any given case are in fact suitable for the needs and interests of the worker and his or her family and even less that such allowances are not overvalued to the detriment of the real earnings of workers. More generally, the Committee observes that Article 4 of the Convention is not self-executing but requires specific measures by the competent authorities for its implementation. For example, the Government may adopt provisions enumerating the authorized payments in kind, such as board and lodging, clothing, use of land or free medical treatment, or prohibiting the cash value attributed to benefits in kind to exceed a certain amount, such as the cost price or the ordinary market value, or a price range fixed by public authorities. In this connection, the Committee draws the Government’s attention to paragraphs 144–160 of the abovementioned General Survey, which provide guidance as to the manner in which legislative conformity may be achieved with the provisions of this Article of the Convention. The Committee accordingly requests the Government to take the necessary measures to ensure the effective implementation of Article 4(2) of the Convention.

Articles 8 and 10. Deductions from wages. Attachment of wages. The Committee once again requests the Government to indicate whether an overall limit is placed on authorized deductions or attachment of workers’ earnings (for instance in the case of multiple deductions under several judicial orders) to ensure that they are not so heavy as to deprive the workers of the basic minimum income needed for the maintenance of themselves and their families.

Article 14. Information on pay conditions. In the absence of the Government’s reply on this point, the Committee again requests the Government to indicate the measures taken or envisaged to ensure: (i) that workers are duly informed of the wage conditions applicable to them before they enter employment; and (ii) that they receive wage statements at the time of each payment of wages containing details such as the gross and net amount of wages and any deductions made, as required under this Article of the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Articles 1 and 14 of the Convention. Definition of “wages” and information on wage particulars. The Committee notes the Government’s explanations that tripartite consultations are in progress with a view to: (i) bringing the definition of the term “wages” in section 2 of the Employment Act (Cap 47:01) into line with the Convention; and (ii) devising appropriate legal provisions on notification of wage conditions to workers before entering employment and on issuance of itemized wage statements. The Committee requests the Government to keep the Office informed of any progress made in this regard.

Article 4(2). Partial payment of wages in kind. The Committee notes the Government’s indication that the quality and quantity of the goods which may be offered to workers in partial payment of wages, in accordance with section 85 of the Employment Act, is verified by labour inspection officers. The Committee recalls in this connection that Article 4(2) of the Convention imposes an obligation as to the result to be achieved and therefore requires the adoption of practical measures to ensure that any allowances in kind match the worker’s needs and are attributed a fair and reasonable value. This obligation may be met in a variety of ways, such as the inclusion in the relevant laws and regulations or collective agreements of specific rules regarding the types of authorized benefits in kind and the principles or methods of determining, supervising or, if necessary, adjudicating the value attributed to them. Moreover, the Committee wishes to refer to paragraph 159 of its 2003 General Survey on the protection of wages in which it observed that setting an overall limit on the proportion of the money wages which may be replaced by benefits in kind does not in itself resolve the problem of the fair valuation of such benefits and offers little protection to workers from possible exploitative practices. Regulating the maximum proportion of money to consumer goods permissible in remuneration guarantees at most the partial character of the wage payment in kind, as required under Article 4(2) of the Convention. Yet, such limits alone cannot ensure that the allowances in kind provided in any given case are in fact suitable for the needs and interests of the workers and their families, and even less that such allowances are not overvalued, to the detriment of real earnings of workers. While noting that section 85(1) of the Employment Act follows to the letter the terms of this Article of the Convention, the Committee requests the Government to take concrete measures to ensure the practical implementation of the principles set out therein.

Article 7. Works stores. The Committee notes that according to the Government’s report, there is no legislative or other provision to ensure that under the circumstances referred to in Article 7(2) of the Convention, works stores may not be operated for the purpose of securing a profit but for the benefit of the workers concerned. The Committee requests the Government to consider appropriate action so that national law and practice be brought into line with the requirements of the Convention in this respect.

Article 10. Attachment of wages. Further to its previous comment, the Committee requests once again the Government to clarify whether any specific limits – other than the general limitation in section 82 of the Employment Act on court orders that would seriously jeopardize the well-being of a worker or that of the dependant members of his/her family – apply to the attachment of wages. The Committee refers, in this regard, to paragraphs 276–293 of the abovementioned General Survey, and recalls that this Article of the Convention may be given effect either by determining a minimum amount of the wage (fixed sum or specified percentage) which is declared immune from seizure or by leaving it to the national judicial authorities to define the reasonable limits of attachment in each individual case. The Committee would appreciate receiving additional explanations on this point.

Part V of the report form. Practical application. The Committee would thank the Government for continuing to provide general information on the application of the Convention in practice, including, for instance, copies of collective agreements containing clauses on pay conditions, extracts from reports of the labour inspection services and any difficulties experienced in the timely payment of wages in the private or public sector, etc.

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The Committee notes the Government’s report and wishes to request additional information on the following points.

Articles 1 and 14 of the Convention. Definition of “wages” and information on wage particulars. The Committee notes the Government’s explanations that tripartite consultations are in progress with a view to: (i) bringing the definition of the term “wages” in section 2 of the Employment Act (Cap 47:01) into line with the Convention; and (ii) devising appropriate legal provisions on notification of wage conditions to workers before entering employment and on issuance of itemized wage statements. The Committee requests the Government to keep it informed of any progress made in this regard.

Article 4, paragraph 2. Partial payment of wages in kind. The Committee notes the Government’s indication that the quality and quantity of the goods which may be offered to workers in partial payment of wages, in accordance with section 85 of the Employment Act, is verified by labour inspection officers. The Committee recalls in this connection that Article 4, paragraph 2, of the Convention imposes an obligation as to the result to be achieved and therefore requires the adoption of practical measures to ensure that any allowances in kind match the worker’s needs and are attributed a fair and reasonable value. This obligation may be met in a variety of ways, such as the inclusion in the relevant laws and regulations or collective agreements of specific rules regarding the types of authorized benefits in kind and the principles or methods of determining, supervising or, if necessary, adjudicating the value attributed to them. Moreover, the Committee wishes to refer to paragraph 159 of its 2003 General Survey on the protection of wages in which it observed that setting an overall limit on the proportion of the money wages which may be replaced by benefits in kind does not in itself resolve the problem of the fair valuation of such benefits and offers little protection to workers from possible exploitative practices. Regulating the maximum proportion of money to consumer goods permissible in remuneration guarantees at most the partial character of the wage payment in kind, as required under Article 4, paragraph 2, of the Convention. Yet, such limits alone cannot ensure that the allowances in kind provided in any given case are in fact suitable for the needs and interests of the workers and their families, and even less that such allowances are not overvalued, to the detriment of real earnings of workers. While noting that section 85(1) of the Employment Act follows to the letter the terms of this Article of the Convention, the Committee requests the Government to take concrete measures to ensure the practical implementation of the principles set out therein.

Article 7. Works stores. The Committee notes that according to the Government’s report, there is no legislative or other provision to ensure that under the circumstances referred to in Article 7, paragraph 2, of the Convention, works stores may not be operated for the purpose of securing a profit but for the benefit of the workers concerned. The Committee requests the Government to consider appropriate action so that national law and practice be brought into line with the requirements of the Convention in this respect.

Article 10. Attachment of wages. Further to its previous comment, the Committee requests once again the Government to clarify whether any specific limits – other than the general limitation in section 82 of the Employment Act on court orders that would seriously jeopardize the well-being of a worker or that of the dependant members of his/her family – apply to the attachment of wages. The Committee refers, in this regard, to paragraphs 276–293 of the abovementioned General Survey, and recalls that this Article of the Convention may be given effect either by determining a minimum amount of the wage (fixed sum or specified percentage) which is declared immune from seizure or by leaving it to the national judicial authorities to define the reasonable limits of attachment in each individual case. The Committee would appreciate receiving additional explanations on this point.

Part V of the report form. The Committee would thank the Government for continuing to provide general information on the application of the Convention in practice, including, for instance, copies of collective agreements containing clauses on pay conditions, extracts from reports of the labour inspection services, any difficulties experienced in the timely payment of wages in the private or public sector, etc.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. The Committee notes that section 2 of the Employment Act No. 29 of 1982 (Cap.47:01) excludes from the definition of the term “wage” certain elements such as: (i) the value of any house accommodation, supply of light, water, medical attention or any other amenity provided free under the Act or of any service designated by the Minister; (ii) any ex gratia payment or gift or the value of a travelling allowance or concession; (iii) any contribution paid by the employer on his own account to any pension fund or provident fund; and (iv) any severance benefits. The Committee recalls that the Convention, in the interest of affording the broadest possible protection to wage earners, uses the term wage in a generic sense so as to apply to any remuneration or earnings, how ever designated or calculated payable to a worker by virtue of a written or unwritten contract. The Committee hopes, therefore, that the Government will take the necessary measures, on a suitable occasion, to bring the definition of wages in line with that set forth under Article 1 of the Convention.

Article 4. The Committee notes that section 85 of the Employment Act provides for the partial payment of wages in the form of allowances in kind, other than in the form of intoxicating liquor or noxious drugs, on condition that the value of the goods does not exceed 40 per cent of the total cash wage. It also notes that according to the Government’s report, compliance with the conditions laid down in Article 4, paragraph 2(a) and (b), of the Convention is ensured through labour inspections. The Committee would be grateful if the Government could provide additional information on the measures, legislative, administrative or other, seeking to guarantee that the goods supplied to workers in partial payment of wages are of suitable quality and sufficient quantity.

Article 7. The Committee notes that, according to section 87(1) of the Employment Act, employers may establish shops for the sale of provisions generally to their employees but employees may not be compelled by any contract of employment, agreement or order, written or oral, to purchase provisions at any such shop. The Committee requests the Government to indicate the legislative or other provisions prescribing that works stores established and services operated by the employer are not operated for the purpose of securing a profit but for the benefit of the workers concerned and also that goods are sold and services provided at fair and reasonable prices, as required under Article 7, paragraph 2, of the Convention.

Article 10. The Committee notes that, under section 82 of the Employment Act, courts may not make an order of attachment or assignment of the wages of any employee that will seriously jeopardize his well-being or that of the dependent members of his family. The Committee asks the Government to indicate the manner in which and the limits within which the attachment and the assignment of wages are permitted.

Article 14. The Committee notes that there seem to exist no provisions in labour laws or regulations requiring that workers be informed of wage conditions before they enter employment, or of certain wage details for the pay period concerned at the time of each payment. The Committee notes the Government’s reference to the practice of issuing employment cards, as required under section 32 of the Employment Act, but observes that such cards are delivered to workers after they have commenced employment, and not before they enter employment, as stipulated in Article 14(a) of the Convention. The Committee requests the Government to indicate the measures taken or envisaged to give effect to the provisions of the Convention in this respect. In this connection, the Committee wishes to draw the Government’s attention to Paragraphs 6 and 7 of the Protection of Wages Recommendation, 1949 (No. 85), which offer guidance as to the details of the wage conditions which should be brought to the knowledge of the workers and the wage statements which should be issued at the time of each payment of wages in relation to the pay period concerned.

Part V of the report form. The Committee asks the Government to supply detailed information on the application of the Convention in practice including, for instance, extracts of official reports, or statistical information on inspection visits and the enforcement of penalties imposed for breach of wage protection standards.

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The Committee notes with interest the Government’s first report on the application of the Convention. The Committee would appreciate receiving additional information on the following points.

Article 1 of the Convention. The Committee notes that section 2 of the Employment Act No. 29 of 1982 (Cap.47:01) excludes from the definition of the term "wage" certain elements such as: (i) the value of any house accommodation, supply of light, water, medical attention or any other amenity provided free under the Act or of any service designated by the Minister; (ii) any ex gratia payment or gift or the value of a travelling allowance or concession; (iii) any contribution paid by the employer on his own account to any pension fund or provident fund; and (iv) any severance benefits. The Committee recalls that the Convention, in the interest of affording the broadest possible protection to wage earners, uses the term wage in a generic sense so as to apply to any remuneration or earnings, how ever designated or calculated payable to a worker by virtue of a written or unwritten contract. The Committee hopes, therefore, that the Government will take the necessary measures, on a suitable occasion, to bring the definition of wages in line with that set forth under Article 1 of the Convention.

Article 4. The Committee notes that section 85 of the Employment Act provides for the partial payment of wages in the form of allowances in kind, other than in the form of intoxicating liquor or noxious drugs, on condition that the value of the goods does not exceed 40 per cent of the total cash wage. It also notes that according to the Government’s report, compliance with the conditions laid down in Article 4, paragraph 2(a) and (b), of the Convention is ensured through labour inspections. The Committee would be grateful if the Government could provide additional information on the measures, legislative, administrative or other, seeking to guarantee that the goods supplied to workers in partial payment of wages are of suitable quality and sufficient quantity.

Article 7. The Committee notes that, according to section 87(1) of the Employment Act, employers may establish shops for the sale of provisions generally to their employees but employees may not be compelled by any contract of employment, agreement or order, written or oral, to purchase provisions at any such shop. The Committee requests the Government to indicate the legislative or other provisions prescribing that works stores established and services operated by the employer are not operated for the purpose of securing a profit but for the benefit of the workers concerned and also that goods are sold and services provided at fair and reasonable prices, as required under Article 7, paragraph 2, of the Convention.

Article 10. The Committee notes that, under section 82 of the Employment Act, courts may not make an order of attachment or assignment of the wages of any employee that will seriously jeopardize his well-being or that of the dependent members of his family. The Committee asks the Government to indicate the manner in which and the limits within which the attachment and the assignment of wages are permitted.

Article 14. The Committee notes that there seem to exist no provisions in labour laws or regulations requiring that workers be informed of wage conditions before they enter employment, or of certain wage details for the pay period concerned at the time of each payment. The Committee notes the Government’s reference to the practice of issuing employment cards, as required under section 32 of the Employment Act, but observes that such cards are delivered to workers after they have commenced employment, and not before they enter employment, as stipulated in Article 14(a) of the Convention. The Committee requests the Government to indicate the measures taken or envisaged to give effect to the provisions of the Convention in this respect. In this connection, the Committee wishes to draw the Government’s attention to Paragraphs 6 and 7 of the Protection of Wages Recommendation, 1949 (No. 85), which offer guidance as to the details of the wage conditions which should be brought to the knowledge of the workers and the wage statements which should be issued at the time of each payment of wages in relation to the pay period concerned.

Part V of the report form. The Committee asks the Government to supply detailed information on the application of the Convention in practice including, for instance, extracts of official reports, or statistical information on inspection visits and the enforcement of penalties imposed for breach of wage protection standards.