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Articles 4 and 5 of the Convention. Total or partial exceptions. Further to its previous comments concerning the content and implementation of section 152 of the Labour Code – which does not give full effect to the provisions of the Convention concerning exceptions to the rules on weekly rest – the Committee notes the Government’s statement to the effect that it has requested technical assistance from the Office with a view to drafting a law aimed at bringing the national legislation into conformity with the provisions of the Convention. The Committee hopes that the Office will be in a position to supply this assistance in the very near future and requests the Government to provide information on any developments in the process of drafting a law.

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Articles 4 and 5 of the Convention. Total or partial exceptions. The Committee requests the Government to refer to the comments made in relation to Articles 7 and 8 of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

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Articles 4 and 5 of the Convention. Total or partial exceptions. The Committee requests the Government to refer to the comments made under Articles 7 and 8 of Convention No. 106.

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Article 2 of the Convention. Minimum weekly rest. In Judgement No. 10.842-2001 issued on 24 October 2001, the Constitutional Chamber of the Supreme Court of Justice ruled on the validity, in relation to article 59 of the Constitution and the provisions of the Convention, of section 152(1) of the Labour Code, under which "every worker is entitled to one day of rest after a week or after six days of continuous work". The Court concluded that this provision is in conformity with the Constitution and the Convention only if it is interpreted as not offering the choice to the employer to grant a day of rest after six or seven days of work but as covering two different de facto situations. The granting of a day of rest after a week of work cannot concern workers who work every day of the week. It is concerned with protecting those whose work is not continuous, who only work certain days of the week or who work on a piece-rate basis. The Committee notes with interest this Judgement, which confirms that section 152 of the Labour Code must be interpreted in such a way as to ensure conformity with the provisions of the Convention, particularly Article 2, which prescribes the granting of a period of rest comprising at least 24 consecutive hours in every period of seven days.

Articles 4 and 5. Exceptions to the rules on weekly rest. In its previous comments, the Committee requested the Government to clarify whether section 152 of the Labour Code authorizes the introduction of special schemes applicable on a permanent basis or permits adjustments to the normal weekly rest scheme for temporary reasons.

In reply to the Committee’s observation, the Government indicates that the competent authorities have not adopted measures for introducing special weekly rest schemes for economic or humanitarian reasons. Section 152(3) of the Labour Code permits an adjustment to the rules on weekly rest in industrial undertakings meeting certain conditions. It provides for the possibility, if an agreement exists between the parties concerned, to work on the weekly rest day in industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy or for an obvious public or social interest. In accordance with the spirit of the national legislation, the possibility of working on the weekly rest day cannot be permanent since an abusive extension of this exception might lead to forced labour or to other forms of work prohibited by law.

As the Committee understands it, section 152(3) of the Labour Code allows for only temporary exceptions to the rules on weekly rest in certain industrial undertakings. The Committee requests the Government to provide examples of industrial activities which entail an obvious public or social interest. It also requests it to provide information on measures which ensure that these are temporary exceptions, given that the activity of "undertakings which require continuity of work owing to the nature of the needs which they satisfy" seems to imply permanent exceptions. In any case, even if these adjustments do not constitute special schemes, as the Government claims, they must respect the conditions laid down by the Convention.

Firstly, Article 4 of the Convention requires the consultation of representative organizations of employers and workers before such exceptions are established, the consent of the worker concerned not being sufficient in this regard. The Committee requests the Government to provide information on the consultations held on this subject.

Secondly, under Article 5 of the Convention, a State party to the Convention shall make, as far as possible, provision for compensatory periods of rest where use is made of the exceptions permitted by Article 4. In its report, the Government maintains that, where an employer has recourse to the possibility provided by section 152(3) of the Labour Code, he is required to restore to the worker the enjoyment of the weekly rest day when the work (which justified the exception) is completed. As the Committee understands it, this implies the granting of compensatory rest to the workers concerned. However, in its report of 2000, the Government asserted that, in cases where work is done on a rest day, the employer has the option of granting compensatory rest. The Committee requests the Government to clarify whether this is indeed an obligation imposed on employers and to indicate on what provisions it is based.

The Government also refers to section 152(4) of the Labour Code, which states that, in respect of work covered by the last case specified in subsection [3], if the worker does not consent to providing services during his rest days, the employer may request an authorization from the Ministry of Labour with a view to accumulating the rest days over a period of one month. It adds that no request of this sort has been made by the director of an industrial undertaking and concludes that section 152 does not permit either employers or workers, whether unilaterally or by mutual agreement, to suppress or diminish the weekly day of rest. The Committee emphasizes, however, that Article 4 of the Convention covers all types of exceptions to the rules on weekly rest, and not only suppression or diminutions of rest. Indeed, various aspects of weekly rest may be subject to modification, as emphasized by the 1984 General Survey on working time (paragraph 153); uniformity of all workers, choice of day, regularity and continuity.

The Committee requests the Government to specify whether section 152(4) of the Labour Code is restricted to activities which present an obvious public or social interest, or whether it also extends to industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy. In addition, given that subsection 4 applies only if workers fail to give their consent to provide services during their rest days, the Committee requests the Government to indicate whether the provisions provide for the possibility of accumulating weekly rest days if workers give their consent.

Part V of the report form. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including reports of the inspection services, statistical data and the number and nature of infringements recorded with respect to weekly rest.

Bill to amend the Labour Code. The Committee notes that the Government has drawn up a Bill aiming to make the regulations on the hours of work more flexible. It requests the Government to indicate whether the provisions contemplated also apply to weekly rest schemes.

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The Committee notes the Government’s response of 2 October 2001 to the comments previously made by the Confederation of Workers Rerum Novarum (CTRN). The Committee recalls that Article 2 of the Convention sets the standards for a normal weekly rest scheme (a period of rest comprising at least 24 consecutive hours in every period of seven days). It also recalls that under Article 4, paragraph 1, States may in certain circumstances introduce weekly rest schemes which form exceptions to the normal arrangements ("special weekly rest schemes"). Such special schemes should not be introduced without consultation with the representative organizations of employers and workers. The Committee further recalls that in addition to the introduction of special schemes operating on a permanent basis, Article 4(1) of the Convention provides for the possibility of making certain other adjustments to the normal weekly rest scheme for temporary reasons as outlined in paragraph 163 of the 1964 General Survey on weekly rest in industry, commerce and offices.

Under Article 5 of the Convention, each ratifying State shall make, as far as possible, provision for compensatory periods of rest for the suspensions or diminutions made in virtue of Article 4, except in cases where agreements or customs already provide for such periods. The Committee wishes to draw the Government’s attention to the fact that in principle it is the compensatory leave and not the cash compensation that should be provided. Furthermore, if the compensation in the form of cash became the rule under special schemes operating on a permanent basis, it would practically have the effect of depriving the workers of the rest to which they are entitled, and this on a continuous basis.

The Committee recalls that under section 152 of the Labour Code, work is permitted on the weekly rest day, with the consent of the parties, provided that the work is not heavy, unhealthy or dangerous and is carried out in agricultural or stock-raising establishments, or industrial undertakings which require continuity of work due to the nature of the needs which they satisfy or for an obvious public or social interest. Section 152 further provides that a worker shall receive double pay for work performed on a rest day.

Referring also to its previous comments, the Committee asks the Government to clarify whether the provisions of section 152 of the Labour Code relate to the possibility of the introduction of special schemes operating on a permanent basis or for the possibility of making certain other adjustments to the normal weekly rest scheme for temporary reasons and, in case of permanent exceptions, to take all necessary measures to bring these provisions into conformity with the Convention, so that workers in industry are entitled to a compensatory leave, regardless of any cash compensation.

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The Committee notes the Government’s report and the information supplied in reply to its previous comments. It has also noted the observations made by the Transport Workers’ Union of Costa Rica (SICOTRA), the Trade Union of Employees of the Ministry of Finance (SINDHAC) and the Confederation of Workers Rerum Novarum (CTRN) of which copies have been transmitted to the Government.

The Committee recalls that its previous comments related to section 152 of the Labour Code under which work is permitted on the weekly rest day, with the consent of the parties, provided that the work is not heavy, unhealthy or dangerous and is carried out in agricultural or stock-raising establishments, or industrial undertakings which require continuity of work due to the nature of the needs which they satisfy or for an obvious public or social interest. Section 152 further provides that a worker shall receive double pay for work performed on a rest day. The Committee requested the Government to indicate whether any provisions exist to ensure that a worker employed in an industrial undertaking will be granted a compensatory rest period, regardless of any cash compensation. In its reply the Government indicates that any individual or collective agreement, or any custom must comply with the terms of article 59 of the Constitution of Costa Rica which provides that all workers have the right to a rest day after six consecutive days of work. Referring also to section 66 of the Labour Code which provides that the employer must take into account the relevant laws, decrees, conventions and agreements in preparing the internal labour regulation, and section 67 of the Code which provides that all regulations must receive prior approval by the Ministry of Labour, the Government indicates that the model internal labour regulations for undertakings - prepared by the Directorate of Legal Affairs - provides to all workers the right to a compulsory rest day after each week or six consecutive days’ work (section 24). On this subject, it supplies extracts of collective agreements providing this right to a weekly rest day. Finally, it indicates that in cases where work is performed on a rest day, pursuant to the abovementioned section 152, the employer has full latitude to grant a compensatory rest period.

SICOTRA, SINDHAC and CTRN indicate in their respective communications that section 152 of the Labour Code is not complied with in a number of undertakings that they cite. They add that it is customary for these undertakings not to comply with labour standards in general, despite the action they have been ordered to take by the competent authorities, which therefore seems inadequate.

In view of the information supplied by the Government, the Committee requests the latter to envisage amending section 152 of the Labour Code and to provide, regardless of any cash compensation, rest periods in compensation for any suspensions or diminutions made for industrial workers. This amendment will bring national legislation into full conformity with the provisions of Article 5 of the Convention. The Committee also requests the Government to submit in future reports of the inspection services and any available statistics that could provide information on the manner in which the Convention is applied in practice, as requested in Part V of the report form.

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Article 5 of the Convention. The Committee notes that pursuant to section 152 of the Labour Code, work is permitted on the weekly rest day, with the consent of the parties, provided that the work is not heavy, unhealthy or dangerous and is carried out in agricultural or stockraising establishments, or industrial undertakings which require continuity of work due to the nature of the needs which they satisfy or for an evident public or social interest. Section 152 further provides that in such cases, a worker receives double pay for work performed on a rest day. The Committee requests the Government to indicate whether any provisions exist to ensure that, as far as possible, a worker employed in an industrial undertaking who works on his weekly rest day will be granted a compensatory rest period, regardless of any cash compensation.