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Holidays with Pay Convention, 1936 (No. 52) - Mali (RATIFICATION: 1968)

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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) and 52 (annual holiday with pay) together.

The Committee takes note of the observations of the National Council of Employers of Mali (CNPM), communicated with the Government’s report.

Article 2 of Convention No. 14. Weekly rest entitlement. Legislation. Further to the previous observations of the Confederation of Workers’ Union of Mali (CSTM) concerning the failure to comply with the rules on weekly rest, the Committee notes the Government’s indication that, in practice, weekly rest is respected in all public and private enterprises and establishments, although days of rest differ according to the manner in which the different entities are organized and operate. The Committee further notes that section 142 of the Labour Code was amended by Law No. 2017-021 of 12 June 2017 amending Law No. 92-020 of 23 September 1992, and that it now provides for weekly rest of at least 24 hours instead of 24 consecutive hours. The Committee requests the Government to specify whether the aforementioned new provision guarantees that workers enjoy a weekly period of rest of at least 24 consecutive hours, in accordance with Article 2 of the Convention.

Article 7. Posting of notices and record-keeping. Further to its previous comments, the Committee notes the Government’s indication in its report that the legislation does not contain any provision requiring the employer to notify employees of the days and hours of collective weekly rest by posting a notice or, when the rest is not given collectively, by drawing up a roster. The Government indicates, however, that in practice, certain enterprises, particularly in the mining industry, establish rest schedules in order to better organize production. The Government adds that it will take into account these aspects not covered by the national legislation in a forthcoming review of the Labour Code. The Committee further notes the observations of the CNPM, in which no reply was provided to the question concerning the posting or keeping of weekly rest records. The Committee requests the Government to take the necessary measures to give effect to this provision of the Convention and to continue to provide information in this regard.

Article 2(3)(b) of Convention No. 52. Exclusion of interruptions of attendance at work due to sickness from annual holiday with pay. Further to its previous comments, the Committee notes the Government’s indication that there is no provision in the legislation for the exclusion of interruptions of attendance at work due to sickness from the calculation of annual holiday with pay. The Government indicates that it will initiate discussions on this aspect in a forthcoming review of the Labour Code, in consultation with the representative employers’ and workers’ organizations. The Committee once again requests the Government to take the necessary measures to ensure that absences from work due to sickness are not counted as days of annual holiday with pay to which workers are entitled under the national legislation, in accordance with Article 2(3)(b) of the Convention.

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Article 2(3) of the Convention. Exclusion of absence from work due to sickness from the annual holiday with pay. The Committee again wishes to draw the Government’s attention to the fact that under Article 2(3) of the Convention, absences from work due to sickness must not be counted in the duration of annual holidays, which means that, if a worker falls ill immediately before or during an annual holiday with pay, he/she should not be deprived of any part of the holiday entitlement on account of his/her temporary incapacity, but should be entitled to make use of it at a later date. The Committee therefore requests the Government to contemplate adopting measures to ensure that absences from work due to sickness are not deducted from the annual holiday to which the worker is entitled, and to continue to provide information in this regard.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition
Article 2(3) of the Convention. Exclusion of public holidays and absence from work due to sickness from the annual holiday with pay. The Committee notes the Government’s indications that the Labour Code could be amended when its provisions are reviewed so as to ensure that public holidays are no longer counted in the duration of annual holidays with pay. It requests the Government to provide information on any development in this respect. With regard to absence from work due to sickness, the Committee notes that, under the terms of section 149 of the Labour Code, periods of unavailability due to employment accident or occupational disease or, up to a maximum of six months, absences for medically certified illness are considered as periods of work for the determination of holiday entitlement. However, it draws the Government’s attention to the fact that this provision relates to the inclusion of such absences in the period of service giving entitlement to annual holidays, and not their exclusion from the annual holiday itself, as required by Article 2(3) of the Convention. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that absences from work due to sickness are not deducted from the annual holiday to which the worker is entitled.
Article 8. Sanctions. The Committee notes the Government’s confirmation in its report that the national legislation does not establish sanctions for violations of sections L.160 and L.162 of the Labour Code. However, it wishes to emphasize the importance of a system of sanctions to ensure compliance with labour legislation, particularly with regard to section L.162 of the Labour Code under which any agreement is null and void which seeks to replace annual holidays with pay by cash compensation, as the violation of this provision would deprive the Convention of any useful purpose. It hopes that the Government will take measures rapidly to amend the Labour Code so as to impose sanctions in cases of violations of the rules established by sections L.160 and L.162 of the Labour Code, for example by including these provisions in the list of violations contained in section L.325 of the Labour Code.

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Article 2, paragraph 3, of the Convention. Exclusion of public holidays and absence from work due to sickness from the annual holiday with pay. The Committee notes the Government’s indications that the Labour Code could be amended when its provisions are reviewed so as to ensure that public holidays are no longer counted in the duration of annual holidays with pay. It requests the Government to provide information on any development in this respect. With regard to absence from work due to sickness, the Committee notes that, under the terms of section 149 of the Labour Code, periods of unavailability due to employment accident or occupational disease or, up to a maximum of six months, absences for medically certified illness are considered as periods of work for the determination of holiday entitlement. However, it draws the Government’s attention to the fact that this provision relates to the inclusion of such absences in the period of service giving entitlement to annual holidays, and not their exclusion from the annual holiday itself, as required by Article 2, paragraph 3, of the Convention. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that absences from work due to sickness are not deducted from the annual holiday to which the worker is entitled.

Article 8. Sanctions. The Committee notes the Government’s confirmation in its report that the national legislation does not establish sanctions for violations of sections L.160 and L.162 of the Labour Code. However, it wishes to emphasize the importance of a system of sanctions to ensure compliance with labour legislation, particularly with regard to section L.162 of the Labour Code under which any agreement is null and void which seeks to replace annual holidays with pay by cash compensation, as the violation of this provision would deprive the Convention of any useful purpose. It hopes that the Government will take measures rapidly to amend the Labour Code so as to impose sanctions in cases of violations of the rules established by sections L.160 and L.162 of the Labour Code, for example by including these provisions in the list of violations contained in section L.325 of the Labour Code.

Part V of the report form. The Committee notes the annual report for 2005 of the National Directorate of Labour, which was attached to the Government’s report provided in 2007 under the Labour Inspection Convention, 1947 (No. 81). It notes that, during the reference period, a total of 1 278 individual disputes, of which 184 related to holidays with pay, were referred to the regional directorates of labour, employment and vocational training. It further notes that, over the same period, 213 enterprises were inspected and it understands that violations of the legal provisions respecting annual holidays with pay were not reported. The Committee also notes the participation of representatives from Mali in the subregional workshop to reflect on the relations between labour administration and labour courts, held in Dakar in May 2008. It notes the recommendations formulated by this workshop for labour inspectors, magistrates in courts of law and labour courts, and the State. It hopes that the implementation of these recommendations will provide a basis for strengthening the enforcement of the Convention in the country and requests the Government to continue providing information on the application of the Convention in practice, including information on the number of workers covered by the relevant legislation, the number and nature of the violations reported of the legislation on annual holidays with pay and any measures taken in response.

The Committee also takes this opportunity to recall that, following the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Convention No. 52 was outdated and invited the States parties to this Convention to envisage the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not considered to be fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 in respect of employed persons in economic sectors other than agriculture by a Member which is party to Convention No. 52 ipso jure involves the immediate denunciation of Convention No. 52. This would appear all the more appropriate as legislation of Mali, which provides for basic annual holidays with pay of 30 calendar days (as well as additional leave of up to six calendar days based on seniority), is clearly more favourable than the requirements of Convention No. 52, and would appear to reflect most of the requirements of Convention No. 132. The Committee requests the Government to envisage the ratification of Convention No. 132 and the adoption of any legislative amendments that may be necessary, and to keep the Office informed of any decision that may be taken in this respect.

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The Committee notes the information provided by the Government in reply to its previous comments. It asks the Government to supply further details on the following points.

Article 2, paragraph 2(a), of the Convention. The Committee notes that, contrary to this provision of the Convention, non-working days are counted as part of the annual holiday with pay. It requests the Government to clarify the minimum length of annual holidays which are granted in practice to workers under section L.151 of the Labour Code, 1992, in view of the inclusion of public and customary holidays in the leave period of 30 days per year. The Committee invites the Government again to indicate the measures taken or envisaged to ensure that public and customary holidays are not included in the period of paid leave.

Article 7. A specimen copy of the employer’s register, to be kept in accordance with section L.130 of the Labour Code, although announced in the report of the Government, was not supplied. The Committee requests the Government to provide such a copy with its next report.

Article 8. Contraventions against sections L.160 and L.162 of the Labour Code on the remuneration in kind, as a means of the calculation of the leave allowance and on the invalidity of any agreement on the monetary compensation of holidays, respectively, are exempted from the sanctions provided for under section L.324 of the Labour Code. The Committee asks the Government to inform it of any system of sanctions to ensure the application of the provisions of the Convention, and to indicate any measures it would take into consideration to include contraventions of sections L.160 and L.162 of the Labour Code in the catalogue of sanctions under the Labour Code.

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The Committee notes with interest the adoption of the Labour Code (Act No. 92-020) of 23 September 1992. The Committee requests the Government to provide additional information, in its next report, on the following points:

Article 2, paragraph 3(a), of the Convention. The Committee requests the Government to clarify what legislative measures exist to ensure that public and customary holidays are not included in the period of paid leave.

Article 3. The Committee notes that section L.157 of the Labour Code provides that leave allowance shall be calculated as a percentage (1/12) of the total remuneration in cash and in kind paid during the base period but excluding amounts paid by way of reimbursement of expenses, gratuities and annual bonuses, as well as benefits in kind of which the wage-earner continues to receive during leave. This provision then states that the eventual subtraction of benefits in kind is taken into consideration in the calculation of the leave allowance. The Committee points out to the Government that Article 3 of the Convention requires holiday remuneration to include the cash equivalent of all payments accorded in kind. In this respect, the Committee requests the Government to clarify whether section L.157 of the Labour Code excludes all payments in kind from the average earnings on which holiday remuneration is based.

Article 7. The Committee would be grateful if the Government would supply a specimen copy of the employer's register kept in virtue of section L.130 of the Labour Code.

Article 8. The Committee requests the Government to provide information on the inspection measures taken and the use of the sanctions system, to ensure application of the provisions of the Convention.