The wage protection standards adopt a broad
definition of “wages” (Article 1 of Convention No.
95 provides that “wages means remuneration or
earnings”). This is important as some cases of nonpayment of wages go beyond non-payment of the
baseline or minimum wage, for example, and involve
non-payment of other wages (or remuneration) owed,
such as overtime payments as well as end-of-service
benefits. 12 Because migrant workers (particularly
migrant domestic workers) are commonly excluded
from social protection schemes, end-of-service
benefits are often a de facto substitute for pension
provision, and thus critically important to migrant
workers. 13
Another important aspect of Convention No. 95,
is that it provides guidance on how to consider
whether a deduction is legal or not. Specifically, the
Convention stipulates, “Deductions from wages shall
be permitted only under conditions and to the extent
prescribed by national laws or regulations or fixed
by collective agreement or arbitration award” (Art.
8(1)). This would imply that an individual agreement
between an employer and worker to reduce the
worker’s wages would not be compatible with the
Convention. 14 It could also be argued that this is
especially the case given the limitations on worker
representation and collective bargaining in the Arab
States.
The application of Convention No. 95, in particular
the effective enforcement of wage payments,
requires require three main elements : (i) efficient
control; (ii) appropriate sanctions; and (iii) means to
redress the injury caused. 15
Another relevant aspect of Convention No. 95 during
the COVID-19 pandemic relates to protection of
workers’ wages following company bankruptcy
(Article 11). In such a case, workers must be treated as
privileged creditors with regard to any unpaid wages.
A more recent standard that addresses protection of
worker wages in the event of employer/enterprise
insolvency is the Protection of Workers Wage Claims
(Employer’s Insolvency) Convention, 1992 (No. 173),
which stipulates in Part III that payment of workers’
claims can also be guaranteed through a “guarantee
institution”. 16
The ILO supervisory bodies have noted that in cases
where migrant workers are deported or have to leave
the country rapidly – regardless of the reasons for
the departure – the government of the country of
destination is responsible for ensuring that wages are
paid regularly and in full and that any claims in respect
of existing wage debts are promptly settled. 17 In the
case of the thousands of Palestinian workers who were
deported from Libya in the 1990s (most of whom were in
an irregular situation), the ILO’s Committee of Experts on
the Application of Conventions and Recommendations
(CEACR) noted that the Government of Libya was still
under an obligation to ensure that workers received
wages owed, even if the worker did not have a work
permit or a formal employment contract. 18
The Migrant Workers (Supplementary Provisions)
Convention (No. 143) and the Migrant Workers
Recommendation, 1975 (No. 151) guarantee equality
of treatment for migrant workers, irrespective of their
legal status,in respect of rights arising out of past
employment as regards remuneration, social security
and other benefits 19 Additionally, the worker should
be able to have their interests represented before
the competent body and enjoy equal treatment with
national workers as regards legal assistance. 20
3. How to build back better with respect
to wages of migrant workers?
The principle of equality of treatment and
non‑discrimination, including in the context of wages,
is a fundamental principle enshrined in various
Conventions. In particular, the Equal Remuneration
Convention, 1951 (No. 100), (ratified by some countries
in the region) 21 obliges ratifying Members to “promote
[...] and ensure the application to all workers of the
principle of equal remuneration for men and women
workers for work of equal value” (Art. 2(1)). The
principle is to apply to all workers, including domestic
workers, whether nationals or non-nationals, and
particular attention should be given to ensuring that
domestic work is not undervalued due to gender
stereotypes. 22 The Discrimination (Employment and
Occupation) Convention, 1958 (No. 111), (ratified
by most countries in the region) 23 prohibits “any
distinction, exclusion or preference made on the basis
12 Katerine Landuyt and Najati Ghosheh. Wage Protection for Migrant Workers and COVID 19, forthcoming.
13 According to the ILO Migrant Workers Recommendation, 1975 (No. 151), “A migrant worker who leaves the country of employment should be entitled,
irrespective of the legality of his [or her] stay therein, to any outstanding remuneration for work performed, including severance payments normally due” (Para.
34(1)).
14 The CEACR’s 2003 General Survey of the Reports Concerning the Protection of Wages Convention (No. 95) and the Protection of Wages Recommendation (No. 85),
1949 addresses deductions from wages at length (paras 213- 271). The CEACR has stated that “In the Committee’s opinion, provisions of national legislation
which permit deductions by virtue of individual agreements or consent are not therefore compatible with Article 8, paragraph 1, of the Convention” (para. 217).
15 ILO. Protection of Wages, Standards and safeguards relating to the payment of Iabour remuneration. General Survey of the Reports Concerning the Protection of
Wages Convention (No. 95) and the Protection of Wages Recommendation (No. 85), 1949, para. 368 (see also paras 368 to 474).
16 ILO, “Protection of Workers Wage Claims in Enterprise Insolvency” (2020).
17 Libya – CEACR – Observation published in 2013; See also Iraq – CEACR, observation published in 1992 and Iraq- CEACR - Observation published in 1992,
Publication: 79th ILC session (1992).
18 See note 10 above.
19 Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), Art. 9(1). Recommendation No. 151, para. 34(1) stipulates that compensation
should include severance payments normally due, compensation in lieu of any holiday entitlement acquired but not used, and reimbursement of any social
security contributions.
20. ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), Art. 9(2) and Migrant Workers Recommendation, 1975 (No. 151), Para. 34(2).
21 Jordan, Lebanon, Saudi Arabia and the United Arab Emirates.
22 See ILO. Giving Globalization a human face. General Survey on the fundamental Conventions, Report III (Part 1B), International Labour Conference, 101st
session, 2012, para. 707.
23 Bahrain, Iraq, Jordan, Kuwait, Lebanon, Qatar, Syrian Arab Republic, Saudi Arabia, the United Arab Emirates and Yemen.
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