Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee takes due note of the detailed information provided by the Government in reply to its previous comment.

Article 2 of the Convention. Coverage of minimum wage legislation. The Committee notes the information concerning the minimum wage provisions applicable to homeworkers and domestic workers in certain provinces such as Ontario, Quebec, Saskatchewan and Yukon. In particular, it notes with interest those provisions which seek to guarantee a minimum income equal or comparable to the general minimum wage for workers remunerated by output, for instance seasonal workers engaged in fruit gathering in Quebec.

The Committee also notes, however, that in certain jurisdictions, for instance Manitoba and New Brunswick, large categories of workers such as agricultural workers are excluded from minimum wage coverage. It requests the Government to specify whether those workers enjoy any protection under the general labour legislation or otherwise with regard to the minimum permissible level of remuneration applicable to them. It would also appreciate receiving concrete information on the overall number of workers who are currently excluded from the scope of minimum wage laws and regulations.

Article 3, paragraph 2(2). Association of the social partners in the operation of the minimum wage-fixing machinery. The Committee notes the Government’s explanations concerning the system of the annual readjustment of the minimum wage in Quebec based on the evolution of the ratio between the minimum wage and the average hourly wage, and the findings of an economic analysis of 11 indicators measuring the impact of a minimum wage increase on workers’ purchasing power, enterprise competitiveness, employment, and incitement to work. The Committee also notes that an Interministerial Committee has been established to review on a triennial basis the impact of the evolution of the minimum wage on workers and the economy.

As regards the participation of the employers’ and workers’ organizations concerned, the Committee notes that according to the Government’s report, there have been no formal consultations with the social partners at the time of the adoption of the new method of reviewing the minimum wage nor is there an institutionalized framework for tripartite consultations on matters related to the revision of the minimum wage, such as, for instance, a permanent consultative body composed of an equal number of employers’ and workers’ representatives. The Government indicates, however, that all interested persons are entitled to submit their comments to the Minister of Labour since all proposed amendments to laws and regulations are published in the Official Gazette of Quebec prior to their adoption. The Committee understands that the situation is similar in British Columbia, Ontario and the Northwest Territories, where in the absence of ad hoc minimum wage boards some general provision is made for public consultations with stakeholders.

The Committee is bound to recall, in this connection, that the Convention requires the social partners to be associated in the operation of the minimum wage-fixing machinery in equal numbers and on equal terms, which presupposes a structured system (e.g. standing institution) for direct consultations with and active participation of employers’ and workers’ organizations, and not merely the possibility to comment on draft laws and regulations should the occasion arise. The obligation to genuinely and effectively consult with the social partners at all stages of the minimum wage-fixing process is a core element of the Convention and an absolute prerequisite for its implementation. The Committee therefore requests the Government to take appropriate steps to fully align its law and practice with the Convention in this regard.

In addition, the Committee notes that, following the amendment of the Labour Standards Act of Saskatchewan in 2004, the regulation-making authority of the Minimum Wage Board, which reviews the minimum wage at least every two years, was removed and now rests entirely with Cabinet. The Committee asks the Government to specify the manner in which the employers’ and workers’ representatives are consulted under the revised minimum wage-fixing system.

Periodic adjustment of minimum wage levels. With reference to the minimum wage levels which have long remained unrevised in certain provinces, such as Ontario and the Northwest Territories, the Committee notes the Government’s explanations that in Ontario it was finally decided in 2003 to raise the general minimum wage from 6.85 to 8.00 CAD per hour over a period of four years. In contrast, the Committee notes that the authorities in the Northwest Territories do not intend to adjust the minimum wage in the near future. Recalling that the fundamental and ultimate objective of the Convention is to ensure a decent standard of living to low-paid workers and their families, the Committee asks the Government to further elaborate on whether minimum pay rates which have remained unchanged for more than 16 years may still be deemed to offer adequate protection and to cover the basic needs of low-income workers.

Article 3, paragraph 2(3). Differentiated minimum pay rates for specific categories of workers. The Committee notes the Government’s explanations concerning the conditions under which sub-minimum wage for certain disabled workers may be authorized in Manitoba and Saskatchewan. It also notes that the authorities in Ontario consider minimum pay differences based on age to be appropriate and do not envisage any changes at present. The Committee requests the Government to keep it informed of any further developments relating to the possible determination of differentiated minimum wage levels – for reasons such as the promotion of youth employment, or the need to ensure equality of opportunity and treatment for incapacitated or older workers – and the resulting conflict of such measures with the general principle of equal remuneration for work of equal value.

Article 4. System of supervision and sanctions. In its previous comment, the Committee had requested clarification about the rationale of a specific provision of the Employment Standards Code of Alberta, according to which 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. In the absence of any response, the Committee is obliged to raise this question once again and ask the Government to re-evaluate the compatibility of such a provision with the Convention which explicitly authorizes any worker who has been paid at a sub‑minimum rate to recover, by judicial or other legalized proceedings, the amount of wages due.

Article 5 and Part V of the report form. The Committee notes with interest the statistical information, broken down by sex and age, concerning the number of workers remunerated at the minimum wage rate in different provinces, which confirm that young workers and women represent the majority of minimum wage earners. It also notes the information regarding the increases in minimum wage levels introduced in certain provinces during the period 2002–06 as well as the indications on enforcement measures and sanctions applicable in different jurisdictions to ensure compliance with the minimum wage legislation. The Committee would be grateful if the Government would continue to provide up to date information on the effect given to the Convention in practice, including, for instance, statistical information on the number of workers remunerated at the minimum wage rate, the evolution of minimum pay rates as compared to the evolution of economic indicators such as the inflation rate, relevant extracts from labour inspection reports, copies of official documents such as activity reports of Minimum Wage Boards, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Convention No. 26 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.