Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - Canada (Ratification: 1935)

The Committee notes the detailed report provided by the Government. It notes that, while certain provinces managed to provide information on the application of the Convention in practice, others do not supply such data. It requests the Government to ensure the transmission in future of information, and particularly statistics, on the minimum wage rates in force, the number and various categories of workers covered by the minimum wage regulations and the supervisory measures and sanctions intended to ensure the application of the Convention in practice.

Article 2 of the Convention. The Committee notes that in Quebec, under section 2(4) of the Labour Standards Regulation, as amended, an employee entirely on commission who works in a commercial undertaking outside the establishment and whose working hours cannot be controlled is excluded from the application of the minimum wage. It requests the Government to indicate whether there exist for such workers arrangements for the effective regulation of minimum wages by collective agreement or otherwise and recalls, if such do not exist, that the objective of the Convention is to allow for the establishment of minimum wage fixing machinery for workers whose working hours are difficult to establish, for example in view of a distant relationship with their employer. The Committee considers that work that is remunerated by output or by commission can, if it is not accompanied by a guarantee in terms of a minimum wage, may likely result in the wages actually received by such workers falling to exceptionally low levels. It therefore requests the Government to provide fuller information in relation to the workers concerned on their conditions and average level of remuneration in relation to the minimum wage rate in force.

The Committee would also be grateful if the Government would provide detailed information on the situation in law and practice of domestic workers and homeworkers with regard to their coverage by minimum wage provisions.

Article 3, paragraph 2(1). The Committee notes the change in the Province of Quebec in March 2002 in the system for the fixing of minimum wages under which the minimum wage rate is now readjusted automatically based on fluctuations in the average wage. While noting that this change was the outcome of the work of the Interdepartmental Committee concerning the Review of the Criteria to Determine the Minimum Wage, the Committee requests the Government to provide fuller information on the consultations which were to be organized, in accordance with the Convention, with the social partners prior to the application of new criteria for fixing minimum wages.

Article 3, paragraph 2(2). The Committee notes that in the Provinces of Ontario and the Northwest Territories there has been no change in the minimum wage rates since 1 January 1995 and 1 April 1991, respectively. It wishes to recall in this respect that the minimum wage fixing machinery established by legislation must make it possible, with the consultation and participation of the social partners, to adjust minimum wage rates regularly or when circumstances thus so require, to a level at which they can guarantee that the vital necessities of workers and their families are met. The Committee also recalls the importance, in order to ensure the proper operation of minimum wage fixing machinery, that employers’ and workers’ organizations are fully associated with it and that the opinions that they express during their participation in such machinery are broadly and equitably taken into account. With reference to the data published by Statistics Canada, noting an average rise of 20 points in the consumer price index in Canada since 1992, the Committee requests the Government to indicate whether the authorities in the Northwest Territories intend to adjust the minimum wage in the near future and whether in the Province of Ontario the social partners were consulted in the adoption of Minimum Wage Regulation No. 285/01, issued under the new Employment Standards Act, 2000, which freezes the minimum wage at the level established by the Employment Standards Act, 1990.

The Committee also requests the Government to indicate the manner and basis on which employers’ and workers’ organizations participate, in accordance with the Convention, in the operation of the minimum wage fixing machinery in equal numbers and on equal terms in provinces in which minimum wage boards do not exist, such as Alberta, British Columbia, Nova Scotia, Ontario, Quebec and the Northwest Territories.

Article 3, paragraph 2(3). The Committee notes with interest the amendment to the Employment Standards Act in the Province of Yukon in accordance with which all workers are now covered by a single minimum wage rate without discrimination on account of their age. It also notes that the provisions under which reduced minimum wage rates were applicable to the remuneration of young workers under 18 years of age in Alberta and British Columbia were repealed in 1998 and 1995, respectively. However, the Committee notes that difference of remuneration based on age still persists in Ontario, the Northwest Territories, Newfoundland and Nunavut, and that the employment of workers with disabilities at lower minimum wage rates is authorized in Alberta, Manitoba and Saskatchewan. The Committee wishes to recall in this respect paragraphs 169 to 176 of its General Survey of 1992 on minimum wages, in which it considered that despite the absence in the Convention of provisions providing for the fixing of different minimum wage rates on the basis of criteria such as age, the general principles laid down in other instruments have to be observed in order to prevent any discrimination in respect of age, among other grounds. Furthermore, the Preamble of the Constitution of the ILO explicitly refers to the application of the principle of "equal remuneration for work of equal value". With regard to the use of the criterion of age for the application of the minimum wage, the Committee refers once again to paragraph 171 of the General Survey in which it considers that the quantity and quality of work carried out should be the decisive factor in determining the wage paid. Therefore, in the view of the Committee, the reasons that prompted the adoption of lower minimum wage rates for groups of workers on account of their age and disabilities should be regularly re-examined in the light of this principle.

Article 4. The Committee notes from the Government’s report that in Alberta, under the terms of section 130(1) of the Employment Standards Code, employees who work for less than the minimum wage are guilty of an offence and liable to be sanctioned in the same way as the employer paying such wage. The Committee wishes to emphasize that the objective of the Convention is to protect certain of the most vulnerable groups of workers who, in view of their lack of skills and the specific circumstances of the sector in which they work, are in need of the protection guaranteed by a minimum wage. In these conditions, the Committee considers that the fact of penalizing such workers could not only be contrary to equity, as they may not be aware of the minimum wage rates in force, but also contrary to the Convention which explicitly authorizes any worker to whom the minimum rates are applicable and who has been paid wages at less than these rates to recover, by judicial or other legalized proceedings, the amount by which he/she has been underpaid. The Committee therefore invites the Government to re-examine this aspect of the legislation in the light of the objectives and purpose of the provisions of the Convention in this respect.

Article 5 and Part V of the report form. The Committee notes the information provided by the Government concerning the application of the Convention in practice in certain provinces. It notes the progress achieved in the Province of Ontario with regard to the recovery of the amounts actually due to workers. In general, the Committee would be grateful if the Government would in future provide with its report, in so far as possible, information of this nature concerning all the provinces in the Canadian territory, as it is only through such data that the Committee can assess the application of the Convention in practice.