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Other comments on C014

Direct Request
  1. 2023
  2. 2021
  3. 2013
  4. 2009

Other comments on C106

Direct Request
  1. 2023
  2. 2022
  3. 2021
  4. 2013
  5. 2009

Other comments on C132

Observation
  1. 2009
Direct Request
  1. 2023
  2. 2021
  3. 2013
  4. 2009

Other comments on C171

Direct Request
  1. 2023

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Previous comments: C.14, C.106 and C.132

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest (industry)), 106 (weekly rest (commerce and offices)), 132 (annual paid holiday) and 171 (night work) together.

Weekly rest

Article 2(1) of Convention No. 14 and Article 6(1) of Convention No. 106. Entitlement to weekly rest. In response to its previous comment, the Committee notes that the Government indicates that section 121(2) of the Labour Relations Act of 2005 is intended to ensure that, notwithstanding the existence of two employment relationships (full-time and part-time employment contracts), the worker shall continue to have all the rights deriving from the full-time employment contract, including the right to weekly rest. The Committee takes note of this information, which responds to its previous comment.
Article 4(1), 5 and 6 of Convention No. 14 and Articles 7(1) and (2), 8(1) and (3) and 11 of Convention No. 106: Possible exceptions. Compensatory rest. Further to its previous comment, the Committee notes the information provided by the Government on the amendment of section 134 of the Labour Relations Act of 2005 by Act No. 288 of 2021. It notes that under the amended provision: (i) workers employed in activities that cannot be interrupted due to technical and technological processes and due to the need for continuity of work may be subject to special weekly rest schemes (section 134(3)); (ii) that in case of natural disaster, accident and force majeure, temporary exceptions to the weekly rest principle may be granted (section 134(5)); and (iii) in case of exceptions, workers shall have the right to use the weekly rest in the following seven days (section 134(6)). The Committee takes note of this information which addresses its previous requests.
Furthermore, the Committee notes that the Government did not respond to the Committee’s previous request on the possibility of amending section 136(3) and (4) of the Labour Relations Act of 2005, which provides for the averaging of weekly rest over a reference period of up to six months. The Committee recalls that workers who may be subject to special weekly rest schemes and to temporary exceptions to the principle of weekly rest should not be deprived of the weekly rest periods to which they are entitled for unreasonably long periods (see the Committee’s 2018 General Survey, Ensuring decent working time for the future, paragraph 249). The Committee therefore once again requests the Government to provide information on the measures taken to amend section 136(3) and (4) of the Labour Relations Act of 2005 to ensure that workers are not required to work excessively long periods without enjoying the weekly rest to which they are entitled.

Annual paid holiday

Article 7 of the Convention. Holiday pay. Further to its previous comment, the Committee notes the Government’s indications that holiday remuneration is not paid in advance of the annual leave, but at the time of the regular payment of the salary, which shall be paid not later than 15 days after the expiry of the pay period. The Committee requests the Government to provide information on the measures taken to ensure that the amounts due for annual leave are paid in advance of the holidays, unless otherwise provided for in an agreement applicable to the employer and the employee.
Articles 11 and 12. Compensation in lieu of unused leave upon termination of employment. Prohibition to relinquish or forgo the right to holiday. In reply to its previous comment, the Committee notes the Government’s indication that cash compensation is prohibited, except in the case of termination of the employment relationship regulated in section 145 of the Labour Relations Act of 2005, under which workers are entitled to compensation for the unused part of the annual leave not taken prior to the termination of the employment relationship. The Committee takes note of this information, which responds to its previous comment.

Night Work

The Committee notes the Government’s first report.
Article 2 of the Convention. Scope of application. Exclusion of limited categories of workers. The Committee notes that section 4(5) of the Labour Relations Act provides for the exclusion of certain categories of workers such as navy personnel and plane crew members. The Committee recalls that the Convention applies to all employed persons except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation (Article 2(1)). The Committee therefore requests the Government to indicate how the Convention is applied to the categories of workers excluded from the Labour Relations Act.
Article 3. Specific measures taken in the fields of safety and maternity protection for all workers performing night work. The Committee notes that section 131 of the Labour Relations Act provides that female employees in the field of industry and construction may not be assigned to a night work if that work does not allow them to rest at least seven hours between 22:00 and 05:00 the following day. The Committee further notes that section 164 of the Act provides that female employees must not carry out night work with a child up to the age of one. The Committee recalls that protective measures applicable to women’s employment at night which go beyond maternity protection and are based on stereotyped perceptions regarding women’s professional abilities and role in society, violate the principle of equality of opportunity and treatment between men and women (see 2018 General survey on working time instruments, paragraph 545). The Committee requests the Government to review its national legislation in light of the principle of non-discrimination, in consultation with the social partners. In addition, it notes that the country is still bound by Convention No. 89 and that the window for denunciation of the Convention will be open from 27 February 2031 to 27 February 2032.
Article 4. Health assessments. The Committee notes that the Labour Relations Act establishes that employers, at their expense, must provide employees who work at night with access to medical check-ups both prior to commencing their night work and at regular intervals determined by law (section 128(3)(4)). The Committee requests the Government to provide information on the measures in place to ensure that, with the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers’ consent and shall not be used to their detriment.
Article 6. Workers declared unfit for night work. The Committee notes that as per the Labour Relations Act, employers are obliged to transfer workers engaged in night work to suitable day work, if medical opinion states that such night work could deteriorate the employee’s health (section 128(2)). The Committee further notes the Government’s indication that if transfer of workers to a different role is impractical because of operational constraints or other legitimate reasons, according to national legislation, workers are entitled to the same benefits that are available for other employees who are unable to work because of health reasons. However, the Committee notes that the report does not indicate the national legislation that sets out such measures. The Committee requests the Government to indicate the provisions of national legislation ensuring that employees who, for reasons of health, are deemed unfit for night work, are granted the same benefits as other workers who are unable to work or to secure employment, if it is not practicable to transfer them to a suitable day work, in accordance with Article 6 of the Convention.
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