Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Botswana

Convention (n° 95) sur la protection du salaire, 1949 (Ratification: 1997)
Convention (n° 173) sur la protection des créances des travailleurs en cas d'insolvabilité de leur employeur, 1992 (Ratification: 1997)

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.