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Holidays with Pay Convention, 1936 (No. 52) - Tajikistan (RATIFICATION: 1993)

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 and 106 (weekly rest) and 52 (annual holidays with pay) together.

Article 2 of Convention No. 14 and Articles 6 and 10 of Convention No. 106. Weekly rest entitlement. Compliance. The Committee notes that the Government indicates, in its report, that in certain companies funded with foreign capital and in transnational corporations, workers can spend years without taking rest, and sometimes have to work without any days off. The Committee also notes that, according to its section 9, the Labour Code also applies to employees of organizations located in the country, whose property owners, participants or shareholders are foreign individuals and legal entities. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that in practice as well as in law, all workers, regardless of the nationality of the entity they work for, effectively enjoy an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days, as required under the Conventions. The Committee also requests the Government to indicate the sanctions applied in the identified cases of non-compliance with weekly rest obligations by foreign-owned companies.

Article 8 of Convention No. 106. Temporary exemptions. In previous comments, the Committee had requested the Government to provide information concerning the circumstances in which temporary exemptions may be granted in accordance with the provisions of Article 8. The Committee notes that section 87(2) of the Labour Code provides for a list of exceptions that are in conformity with those foreseen by Article 8(1) of the Convention. The Committee also notes that section 87(2) also provides that work during weekends is allowed in other cases envisaged by the Tajik legislation and organizations’ internal regulations. The Committee requests the Government to indicate the other cases in which, according to section 87(2) of the Labour Code, the Tajik legislation and the organizations’ internal regulations foresee work during weekends.

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Temporary exemptions. Compensatory periods of rest. In previous comments, the Committee had noted that section 82 of the 1997 Labour Code providing that compensation for work performed on a weekly rest day may take the form of an alternative day off or cash payment depending on the worker’s preference, was not in conformity with Articles 5 and 8(3) of the Conventions. The Committee notes that section 88 of the 2016 Labour Code replicates section 82 of the 1997 Labour Code. Recalling that a compensatory rest of at least 24 consecutive hours is compulsory and not optional, regardless of any financial compensation, the Committee requests the Government to indicate if, in case of exceptional work during weekends, a period of at least 24 hours of effective weekly rest is granted to workers, as foreseen under Articles 5 and 8(3) of Conventions Nos 14 and 106, respectively.

Article 7 of Convention No. 14. Notices and rosters. In its previous comments, the Committee had requested the Government to take measures in order to ensure full compliance with Article 7(a) of the Convention. The Committee notes that, according to section 24 of the 2016 Labour Code, the information related to weekly rest is included in labour contracts and/or in collective agreements.

Article 2(1) of Convention No. 52. Minimum duration of annual holiday with pay. In a previous comment, the Committee had noted with satisfaction that the Act No. 26 of 17 May 2004 amending the 1997 Labour Code had introduced a new section 94(1)(3) providing that, in the event of the postponement of annual holiday to the following year, workers shall benefit from at least 10 days’ holiday during the year in which they were due to take their entire holiday. The Committee notes that section 108(2) of the 2016 Labour Code allows, in exceptional cases, when offering full annual leave to workers at a particular year can have a negative impact on the smooth operation of the organization or the individual entrepreneur, the transfer of annual leave fully or partially to the following year with the employee’s consent. The Committee also notes that no provision in the 2016 Labour Code seems to guarantee that, in the event of postponement of annual holiday to the following year, workers benefit from at least six days of holidays during the year, as foreseen by this Article of the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that all workers, in any event, effectively enjoy at least six days of paid holidays per year.

Article 8. Sanctions. In previous comments, the Committee had requested the Government to indicate the legal provisions establishing sanctions in the event of the failure to comply with the provisions of the Labour Code concerning the annual holiday with pay. The Committee notes that the Government indicates that, in performing public oversight of labour matters, the trade unions’ rights and labour inspectors look at annual leave issues and issue dozens of orders concerning leave payment. The Government also indicates that, in the private sector, some workers have not been benefitting from annual leave for years. The Committee further notes that section 357(2) of the Labour Code provides that inspectors and authorized individuals on labour protection from trade unions and other employee representatives have the right to, inter alia, issue orders to employers on the elimination of revealed violations of labour protection requirements compulsory for implementation, and apply to relevant authorities to bring to justice the entities that violated the labour protection requirements and hid job-related accidents and make them responsible for these violations. The Committee requests the Government to indicate the sanctions applied in the reported cases of foreign enterprises having failed to comply with the provisions of the Labour Code concerning annual holidays with pay.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 8 of the Convention. Sanctions. The Committee previously requested the Government to provide information on the legal provisions regarding the sanctions in case of non-compliance with the Labour Code in the context of the annual holiday with pay. The Committee notes the Government’s indication regarding the adoption of Law No. 683 of 25 March 2011 and Law No. 778 of 26 December 2011 on amendments and additions to the Labour Code. It notes, however, that these amendments do not cover the points raised in its previous comments. The Committee must, therefore, once again request the Government to indicate the legal provisions establishing sanctions in the event of the failure to comply with the provisions of the Labour Code concerning the annual holiday with pay.

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Article 8 of the Convention. Sanctions. The Committee previously requested the Government to provide information on the legal provisions regarding the sanctions in case of non-compliance with the Labour Code in the context of the annual holiday with pay. The Committee notes the Government’s indication regarding the adoption of Law No. 683 of 25 March 2011 and Law No. 778 of 26 December 2011 on amendments and additions to the Labour Code. It notes, however, that these amendments do not cover the points raised in its previous comments. The Committee must, therefore, once again request the Government to indicate the legal provisions establishing sanctions in the event of the failure to comply with the provisions of the Labour Code concerning the annual holiday with pay.

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Article 2, paragraphs 1 and 4, of the Convention. Minimum duration of annual holiday with pay and postponement of holiday. The Committee notes the adoption of Act No. 26 of 17 May 2004 amending section 96 of the Labour Code and introducing a new section 94(1). Further to its previous comments, it notes with satisfaction that, under section 94(1)(3) of the Labour Code, in the event of the postponement of annual holiday to the following year, workers shall benefit from at least 10 days’ holiday during the year in which they were due to take their entire holiday, and that section 96(3) of this Code imposes the same rule where an employee is called back to work during his annual holiday.

Article 8. Sanctions. The Committee once again requests the Government to provide a copy of the legal provisions establishing sanctions in the event of the failure to comply with the provisions of the Labour Code concerning the annual holiday with pay.

Part V of the report form. Application in practice. The Committee notes with interest that the Government ratified the Labour Inspection Convention, 1947 (No. 81), on 21 October 2009. It requests the Government to provide general information on the manner in which the Convention is applied in practice, including, in particular, information on the number of workers covered by the Labour Code, as well as extracts from reports of the labour inspection services indicating the number and nature of violations reported of the legal provisions relating to annual holiday with pay and the measures taken to bring them to an end.

Finally, the Committee reiterates its previous comment in which it invited the Government to consider the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), and requests it to keep the Office informed of any measures taken in that regard. It recalls that the national legislation, which provides for a basic annual holiday with pay of 24 calendar days (or up to 56 calendar days for certain categories of workers), is far more favourable than the minimum required by of Convention No. 52 and seems to reflect most of the requirements of Convention No. 132.

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The Committee notes that the Government’s report replies only partially to its previous comments. It hopes that the Government will provide full information in its next report on the matters raised below.

Article 2, paragraph 1, of the Convention. Minimum duration of annual holiday with pay. The Committee notes that, under section 96 of the Labour Code, workers on annual holiday with pay may, with their agreement, be called back to work, with the balance of holiday to be taken at the worker’s convenience during the same year or the following year. Emphasizing that, under Article 2, paragraph 1, of the Convention, workers must enjoy annual holidays with pay of at least six working days, the Committee requests the Government to provide information on the conditions under which workers may be called back to work during their annual holiday with pay. It also requests the Government to indicate the manner in which a minimum holiday of six working days is ensured for workers in these circumstances.

Article 2, paragraph 4. Postponement of annual holiday with pay. Further to its previous comments, the Committee notes that section 92 of the Labour Code authorizes the postponement of annual holiday with pay in the limited circumstances listed, namely on the worker’s initiative due to his temporary incapacity for work, his civic obligations or the failure to pay the remuneration applicable to the holiday, exceptionally where the worker’s absence could be detrimental to the normal operation of the establishment or in the cases determined by the legislation and regulations in force. In this regard, the Committee wishes to recall that, although the Convention does not contain any provisions relating expressly to the postponement of holiday, consideration is to be given to Article 2, paragraph 4, of the Convention, which provides that the annual holiday with pay may be divided into parts provided that workers are guaranteed a holiday of at least six working days during the year. Consequently, given that the Convention, as emphasized by the Committee in paragraph 177 of its General Survey of 1964 on annual holiday with pay, aims to ensure that workers receive at least part of their holiday in the course of the year so that they may benefit from a minimum rest period and leisure time, the Committee requests the Government to provide more detailed information on the conditions applicable to postponement of the annual holiday with pay and, in particular, on the maximum period of holiday which may be postponed. It also requests the Government to indicate the cases provided for by the national legislation or regulations which, in accordance with section 92 of the Labour Code, would justify a postponement of the annual holiday with pay.

Article 8. Sanctions. The Committee notes that, under section 228 of the Labour Code, sanctions established by the national legislation are imposed in the case of failure to comply with the labour legislation. The Committee requests the Government to indicate the legal or other provisions which establish sanctions specifically applicable to violations of the rules relating to annual holiday with pay, as well as the nature of these sanctions and, if applicable, to provide a copy of the relevant provisions.

Part V of the report form. Practical application. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, details on the number of workers covered by the legislation as well as extracts from the reports of the inspection services indicating the number and nature of violations reported and sanctions imposed, etc. It also requests the Government to provide a copy of Presidential Decree No. 802 of 1 September 1997 and of the Government decision of 25 December 1997 taken under this Decree.

Finally, the Committee wishes to draw the Government’s attention to the fact that, on 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 examine the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not regarded as being 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 persons employed in economic sectors other than agriculture by a State party to Convention No. 52 involves ipso jure the immediate denunciation of this Convention. This move seems all the more appropriate as the legislation of Tajikistan, which provides for a basic annual holiday with pay of 24 calendar days (as well as extended and additional holiday for certain categories of workers of up to 56 calendar days), is clearly more favourable than the requirements of this Convention and seems to reflect most of the requirements of Convention No. 132. The Committee requests the Government to envisage ratifying Convention No. 132 and adopting any legislative amendments which might be necessary, and to keep the Office informed of any decision it might take in this regard.

CMNT_TITLE

The Committee notes with regret 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:

The Committee requests the Government to indicate the cases covered by national legislation or regulations, in accordance with section 92 of the Labour Code, under which the worker may defer his annual holiday with pay. In this regard, it wishes to recall that every person to whom the Convention applies shall be entitled to an annual holiday with pay of at least six working days (Articles 2, paragraph 1, and 4 of the Convention) and that, consequently, only the part of the holiday exceeding this minimum duration may be deferred (Article 2, paragraph 4).

CMNT_TITLE

The Committee has noted the Government’s first report on application of the Convention. It requests it to indicate the cases covered by national legislation or regulations, in accordance with section 92 of the Labour Code, under which the worker may defer his annual holiday with pay. In this regard, it wishes to recall that every person to whom the Convention applies shall be entitled to an annual holiday with pay of at least six working days (Articles 2, paragraph 1, and 4 of the Convention) and that, consequently, only the part of the holiday exceeding this minimum duration may be deferred (Article 2, paragraph 4).

CMNT_TITLE

The Committee has noted the Government’s first report on application of the Convention. It requests it to indicate the cases covered by national legislation or regulations, in accordance with section 92 of the Labour Code, under which the worker may defer his annual holiday with pay. In this regard, it wishes to recall that every person to whom the Convention applies shall be entitled to an annual holiday with pay of at least six working days (Articles 2, paragraph 1, and 4 of the Convention) and that, consequently, only the part of the holiday exceeding this minimum duration may be deferred (Article 2, paragraph 4).

CMNT_TITLE

The Committee has noted the Government’s first report on application of the Convention. It requests it to indicate the cases covered by national legislation or regulations, in accordance with section 92 of the Labour Code, under which the worker may defer his annual holiday with pay. In this regard, it wishes to recall that every person to whom the Convention applies shall be entitled to an annual holiday with pay of at least six working days (Articles 2, paragraph 1, and 4 of the Convention) and that, consequently, only the part of the holiday exceeding this minimum duration may be deferred (Article 2, paragraph 4).

CMNT_TITLE

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 reads as follows:

CMNT_TITLE

The Committee has noted the Government's first report on application of the Convention. It requests it to indicate the cases covered by national legislation or regulations, in accordance with section 92 of the Labour Code, under which the worker may defer his annual holiday with pay. In this regard, it wishes to recall that every person to whom the Convention applies shall be entitled to an annual holiday with pay of at least six working days (Articles 2, paragraph 1, and 4 of the Convention) and that, consequently, only the part of the holiday exceeding this minimum duration may be deferred (Article 2, paragraph 4).