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Forty-Hour Week Convention, 1935 (No. 47) - Republic of Moldova (RATIFICATION: 1997)

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Article 1 of the Convention. The principle of the 40-hour week. Averaging of hours of work. Overtime. In previous comments, the Committee noted that: (i) section 99 of the Labour Code allows the averaging of working hours over a reference period of up to one year; (ii) section 104(5) of the Labour Code provides that the maximum annual limit of overtime may be increased from 120 to 240 hours in exceptional cases with the written consent of the workers’ representatives; and (iii) under section 3 of Government Decision No. 1223 of 2004, a 24-hour shift of medical personnel is permitted. Noting that these provisions may lead to excessively long working hours, the Committee requested the Government to take all necessary action to ensure that national legislation on the principle of a 40-hour week is fully aligned with the requirements of the Convention. The Committee notes that section 3 of Government Decision No. 1223 of 2004 is repealed by Government Decision No. 294 of 2014.
On the issue of averaging, the Committee notes that no further information is provided in the Government’s report regarding section 99 of the Labour Code. Recalling that calculating hours of work as an average over a reference period of up to one year allows for too many exceptions to normal hours of work and can result in highly variable working hours over long periods, long working days and the absence of compensation (2018 General Survey on working time instruments, paragraph 68), the Committee requests the Government to review section 99 in this regard and to provide information on any progress made in this respect.
On the issue of overtime, the Committee notes that the Government does not provide information on section 104(5) either. It also notes that while clear daily limits (12 hours) for overtime are set by section 105(3) of the Labour Code, no weekly limit seems to be established by the national legislation. Recalling that these provisions authorize practices that would possibly lead to unreasonably long hours of work, in direct contradiction to the principle of progressive reduction of hours of work, the Committee requests the Government to take the measures necessary to ensure that the principle of a 40-hour week provided for by the Convention is fully applied both in law and in practice.

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Article 1 of the Convention. The principle of the 40-hour week – Averaging of hours of work – Overtime. In its previous comment, the Committee drew the Government’s attention to section 99 of the Labour Code, which allows the averaging of working hours over a reference period of up to one year, and to section 104(5) of the Labour Code which provides that the maximum annual limit of overtime may be increased from 120 to 240 hours in exceptional cases with the written consent of the workers’ representatives. The Committee expressed the view that these provisions authorized practices that would possibly lead to unreasonably long hours of work and would thus directly contradict the principle of progressive reduction of hours of work. In its latest report, the Government indicates that the number of businesses operating on an annualized average of hours of work is fairly small although no concrete data on the number and type of enterprises concerned could be provided. The Government also indicates that whether calculating hours of work as an average, all enterprises are still bound to comply with the 12-hour daily limit. Moreover, with respect to additional hours, the Government states that the possibility to work in excess of normal hours is often in the employees’ own interest who have the opportunity to obtain additional income that helps maintain and support the family.
While noting the Government’s explanations, the Committee wishes to stress once more the negative effects that excessive daily or weekly hours of work may have on the health of workers and the work–family balance. This is why – as the Committee pointed out in paragraphs 144–145 of the 2005 General Survey on hours of work – “reasonable” limits on overtime are needed based on a thorough evaluation of the intensity of the respective work, its ability to produce physical or mental fatigue, and of possible negative consequences of fatigue for the employee and the public at large. Moreover, while fully appreciating the workers’ wish to amplify their income by working extra hours, the Committee is bound to reiterate that undue facilitation of overtime, for instance, by allowing high maximums, would tend to defeat the objective of the 40-hour week and render simply irrelevant the provisions on normal working hours. In this connection, the Committee notes the observations made by the National Confederation of Trade Unions of Moldova (CNSM), which were received on 11 October 2013 and transmitted to the Government on 23 October 2013. The CNSM denounces practices, such as the 24-hour shift of medical personnel permitted under section 3 of Government Decision No. 1223 of 2004, as being incompatible with the letter and the spirit of the Convention. The CNSM also refers to multiple cases of non compliance with working time legislation and alleges poor enforcement in this regard. In its reply, the Government indicates that in order to discuss the CNSM complaint, the Ministry of Labour, Social and Family has convened in November 2013 a meeting, where the representatives of CNSM, state labour inspectorate, Ministry of Health and Syndicate Health have been invited. As a result of this meeting, the Ministry of Labour, Social and Family has initiated an amendment of Law No. 131 of 8 June 2008 and Government’s Decision No. 1223 of 9 November 2004 aiming at reducing the length of the working day for health care staff. While noting the Government’s explanations, the Committee requests the Government to take all necessary action to ensure that national legislation on the principle of a 40-hour week is fully aligned with the requirements of the Convention and to keep the Office informed of any further developments in this respect.

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Article 1 of the Convention. Forty-hour week. Further to its previous comment concerning section 99 of the Labour Code on averaging of hours of work, the Committee notes the Government’s explanations that such arrangement may be introduced only when the activity of a specific enterprise cannot be adjusted to the normal duration of the working day or the working week due to objective reasons. However, the Committee wishes to reiterate its view that allowing the averaging of working hours over a general reference period of one year appears to be too long to guarantee full application of the principle of a 40‑hour week as embodied in the Convention. In fact, the longer the reference period is, the more pronounced the possible deviations from the normal duration of the working week can be, which would of course contradict the principle of progressive reduction of hours of work. The Committee accordingly requests the Government to provide full particulars, including all available statistics and any relevant documents, on working time flexibility schemes currently in place allowing weekly working hours to be averaged over a one-year period, in particular the number of workers and types of enterprises concerned.

In addition, the Committee notes that, under section 104(4) of the Labour Code, overtime work is authorized in some unspecified cases – other than emergencies and unforeseen circumstances – with the written consent of the worker and the worker’s representative organization. It also notes that, under section 104(5) of the Labour Code, the maximum annual limit of overtime may be increased from 120 to 240 hours in exceptional cases with the written consent of the workers’ representatives. The Committee wishes to refer, in this respect, to Paragraph 14 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which envisages exceptions of three kinds (permanent, temporary, periodical) to the normal hours of work and provides that the competent authorities in each country should determine the circumstances and limits of such exceptions. The Committee further refers to paragraph 79 of its General Survey of 1984 on working time in which it noted that undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours. The Committee therefore requests the Government to supply more detailed information on the conditions under which overtime is authorized, in the light also of the relevant provisions of Recommendation No. 116.

 Part V of the report form. Application in practice. The Committee would be grateful if the Government would provide together with its next report up to date information on the practical application of the Convention, including, for instance, extracts from labour inspection reports showing the number and nature of contraventions reported with regard to hours worked in excess of the 40-hour week; statistics concerning the categories and number of workers to whom the principle of a 40-hour week has been applied and the number of hours worked in excess of the 40-hour week; the categories and number of workers to whom the principle of the 40-hour week has not as yet been applied and the normal hours of work applicable to these workers; official studies or reports on working time issues and especially the question of the reduction of hours of work in relation to factors such as the effect of new technologies and employment policy objectives; trends on working time arrangements as reflected in recent collective agreements, etc.

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Section 99 of the Labour Code, 2003, allows for the calculation of the hours of work on an aggregate basis. Section 99 provides for the calculation of normal hours of work over a period of up to one year, without specifying the categories of employment concerned. The Committee draws the attention of the Government to Recommendation No. 116 on the reduction of working hours, 1962, which provides for the calculation of normal average hours of work; however, only in cases where "special conditions in certain branches of activity or technical needs justify it" (Paragraph 12). It should in fact be restricted to exceptional cases where the nature of the work, technical reasons or seasonal variations and periodic pressure of work make it necessary. In the light of these indications, the Committee hopes that the Government will take account of the provisions of the Recommendation and ensure that section 99 of the Labour Code is applied accordingly.

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