Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s first report on the application of the Convention and wishes to draw its attention to the following points.

Article 6 of the Convention. Minimum coverage of protection by means of a privilege. The Committee notes that section 605 of the Civil Code (Law No. 7850 of 29 July 1994) grants first-rank privilege to claims deriving from labour relationship whereas claims of the State and claims of the Social Insurance Institute come fifth in the order of distribution. It also notes that section 124(2) of the Labour Code (Law No. 7961 of 12 July 1995), as amended, provides that in case of the employer’s insolvency, employees’ claims up to a total amount equal to five months’ minimum wage take priority over all other claims including those of secured creditors. Noting that the national legislation refers to employees’ claims in general without specifying whether these include, apart from wage debts, also claims for holiday pay, severance pay and claims in respect of other types of paid absence (e.g. sick leave, maternity leave, etc.), the Committee would appreciate if the Government would specify how effect is given to the specific requirements of this Article of the Convention.

Article 8. Rank of privilege. The Committee understands that, contrary to the provisions of the Labour Code and of the Civil Code referred to above, which give absolute priority to employees’ service-related claims, the Bankruptcy Law (Law No. 8901 of 23 May 2002) appears to grant first-rank privilege to claims of secured creditors. The Committee accordingly requests the Government to provide additional explanations on this point.

Part IV of the report form. Application in practice. The Committee would be grateful if the Government would provide in its next report general indications as to the manner in which the Convention is applied in practice, including information concerning the number of workers covered by measures giving effect to the Convention and any other particulars which would enable the Committee to better assess the implementation of the provisions of the Convention.