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The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.
Repetition
Articles 2–5 and 6(1) of the Convention. Daily hours of work. Uneven distribution of weekly hours of work. Cases in which overtime is authorized. The Committee recalls its previous comments relating in particular to section 115 of the Labour Code, which allows daily hours of work to be increased to 12 hours and regarding which the Committee emphasized that the daily limit of eight hours established by the Convention may only be exceeded in the specific cases referred to in Articles 3–6 of the Convention. The Committee also referred to section 113(2) of the Labour Code which, combined with the national collective agreement, allows the uneven distribution of weekly hours of work, increasing daily working time to a maximum of ten hours on certain days. The Committee drew the Government’s attention to the fact that Article 2(b) of the Convention only authorizes the uneven distribution of weekly hours of work if daily working time does not exceed nine hours. Finally, the Committee referred to section 120(2) of the Labour Code, which does not provide a restrictive list of the situations in which overtime may be authorized, except for cases of force majeure or where the work needs to be done urgently. The Committee recalls once again that, except for the two abovementioned cases, Article 6(1)(b) of the Convention only authorizes overtime work to enable the employer to deal with exceptional cases of pressure of work. In view of the lack of new information on these points in the Government’s report, the Committee again asks the Government to take the necessary steps as soon as possible in order to give full effect to the provisions of the Convention and to inform the Office of any developments in this regard.
Article 6(2). Overtime pay. The Committee notes that the Government’s report does not contain any new information on measures taken or contemplated to ensure that overtime is paid at a rate at least 25 per cent higher than the normal rate, whether or not compensatory rest is granted, as required by Article 6(2) of the Convention. In fact, section 123(2) of the Labour Code only provides for a higher rate of pay when compensation in the form of paid time off is not possible within 60 days following the period of overtime. Recalling the December 2010 conclusions of the European Committee of Social Rights that went along similar lines, the Committee asks the Government once again to take the necessary measures as soon as possible to give full effect to this Article of the Convention.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Articles 2–5 and 6(1) of the Convention. Daily hours of work. Uneven distribution of weekly hours of work. Cases in which overtime is authorized. The Committee recalls its previous comments relating in particular to section 115 of the Labour Code, which allows daily hours of work to be increased to 12 hours and regarding which the Committee emphasized that the daily limit of eight hours established by the Convention may only be exceeded in the specific cases referred to in Articles 3–6 of the Convention. The Committee also referred to section 113(2) of the Labour Code which, combined with the national collective agreement, allows the uneven distribution of weekly hours of work, increasing daily working time to a maximum of ten hours on certain days. The Committee drew the Government’s attention to the fact that Article 2(b) of the Convention only authorizes the uneven distribution of weekly hours of work if daily working time does not exceed nine hours. Finally, the Committee referred to section 120(2) of the Labour Code, which does not provide a restrictive list of the situations in which overtime may be authorized, except for cases of force majeure or where the work needs to be done urgently. The Committee recalls once again that, except for the two abovementioned cases, Article 6(1)(b) of the Convention only authorizes overtime work to enable the employer to deal with exceptional cases of pressure of work. In view of the lack of new information on these points in the Government’s report, the Committee again asks the Government to take the necessary steps as soon as possible in order to give full effect to the provisions of the Convention and to inform the Office of any developments in this regard.
Article 6(2). Overtime pay. The Committee notes that the Government’s report does not contain any new information on measures taken or contemplated to ensure that overtime is paid at a rate at least 25 per cent higher than the normal rate, whether or not compensatory rest is granted, as required by Article 6(2) of the Convention. In fact, section 123(2) of the Labour Code only provides for a higher rate of pay when compensation in the form of paid time off is not possible within 60 days following the period of overtime. Recalling the December 2010 conclusions of the European Committee of Social Rights that went along similar lines, the Committee asks the Government once again to take the necessary measures as soon as possible to give full effect to this Article of the Convention.

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Article 6(2) of the Convention. Overtime pay. The Committee notes the observations made by the National Trade Union Confederation (CNS “Cartel ALFA”) in a communication received on 30 August 2012. CNS “Cartel ALFA” indicates that the Government’s report does not reply to the Committee’s previous comments and states that the Government has not taken any measures to ensure that overtime is paid at a rate at least 25 per cent higher than the normal rate, even in cases where the worker concerned is granted compensatory rest. The Committee notes that the Government, in its reply received on 25 October 2012, refers only to the provisions of Emergency Ordinance No. 80/2010 supplementing Emergency Ordinance No. 37/2008 regulating certain financial matters in the budgetary sphere, which it understands are applicable only to the public sector. It further notes the Government’s indications that, pursuant to Emergency Ordinance No. 80/2010, overtime worked by managerial staff is compensated for only in terms of free time. The Committee further notes that the Government, in its report on the application of the Convention, merely summarizes the relevant provisions of the Labour Code, without indicating its intention to amend them in order to ensure their conformity with the Convention. It recalls that, in its direct request of 2008, it asked the Government to take measures to ensure the higher rate of pay for overtime in all cases, whether or not compensatory rest is granted. The Committee also emphasized that the Labour Code does not stipulate the number of overtime hours which are authorized, as required by this Article of the Convention. The Committee hopes that the Government will take the necessary measures without delay to bring the national legislation into conformity with Article 6(2) of the Convention and requests it to keep the Office informed of any further developments in this matter.
Articles 2 to 5 and 6(1). Daily hours of work – Unequal distribution of weekly hours of work – Cases in which overtime is authorized. The Committee recalls that, in its observation of 2011, it pointed out that the adoption of Act No. 40/2011 of 31 March 2011 amending the Labour Code did not reply to the comments made in its direct request of 2008 regarding the application of these provisions of the Convention. These comments were concerned in particular with section 115 of the Labour Code (former section 112), which allows daily hours of work to be increased to 12 hours and regarding which the Committee emphasized that the daily limit of eight hours established by the Convention may only be exceeded in the specific cases referred to in Articles 3 to 6 of the Convention. The Committee also referred to section 113(2) (former section 110(2)) of the Labour Code which, combined with the national collective agreement, allows the unequal distribution of weekly hours of work, increasing daily working time to a maximum of ten hours on certain days. The Committee drew the Government’s attention to the fact that Article 2(b) of the Convention only authorizes the unequal distribution of weekly hours of work if daily working time does not exceed nine hours. Finally, the direct request referred to section 120(2) of the Labour Code (former section 117), which does not provide a restrictive list of the situations in which overtime may be worked, except for cases of force majeure or work that needs to be done urgently. The Committee recalled that, except for the two abovementioned cases, Article 6(1)(b) of the Convention only authorizes overtime work to enable the employer to deal with exceptional cases of pressure of work. The Committee asks the Government to take the necessary steps as soon as possible to ensure the implementation of these provisions of the Convention and to inform the Office of any decisions taken in this regard.

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Article 6(2) of the Convention. Overtime pay. The Committee notes the observations made by the National Trade Unions Block (BNS) concerning the application of the Convention, which were received on 1 September 2010, and also the Government’s reply to these observations, which was received on 18 January 2011. According to the BNS, even though weekly hours of work are clearly regulated by the Labour Code and the relevant European Union (EU) directive, there is a worrying failure to observe these provisions, especially in the imposition, in breach of the regulations, of overtime hours that do not qualify for compensatory rest or for extra payment. It notes that the Government in its reply recalls the provisions of the Labour Code relating to compensation for overtime and points out that any infringement of these provisions is liable to incur a fine and that any employee who considers that his/her rights have been infringed may take legal action. The Committee recalls its previous comment concerning the application of Article 6(2) of the Convention, in which it emphasized that, regardless of whether compensatory rest is granted, the rate of pay for overtime must in any case be at least 25 per cent higher than the normal rate. The Committee drew the Government’s attention to the fact that the Labour Code only provides for a higher rate of pay if the worker concerned has been unable to take paid rest during the 30-day period following the overtime worked. It notes that Act No. 40/2011 of 31 March 2011 has increased this period from 30 to 60 days. The Committee requests the Government to provide detailed information in its next report in reply to its direct request of 2008 concerning the application of Article 6(2) of the Convention, and also regarding the steps taken to ensure the observance of the corresponding provisions of the Labour Code in practice.
The Committee also notes the more general remarks made by the BNS concerning the draft amendments to the Labour Code, which were under examination at the time. It notes that the BNS described as worrying the Government’s intention to make the Labour Code more flexible, including with regard to the regulation of hours of work. It notes the Government’s indication in reply to these remarks that the draft amendments formed part of the commitments made by Romania vis-à-vis the EU. The Committee notes that these amendments have been adopted since then, becoming Act No. 40/2011 of 31 March 2011. It notes that the Act, apart from extending the period in which overtime can be compensated, as referred to above, also extends the reference period from three to four months during which maximum weekly working hours (including overtime) can be averaged. The Committee notes that the Office, in its technical comments on the draft amendments, sent to the Government in January 2011, emphasized the fact that the planned amendments to the Labour Code did not deal with the issues raised by the Committee in its comments of 2008. Moreover, the Committee understands that Act No. 40/2011 was adopted by Parliament under an accelerated procedure and that the draft Act was criticized by both employers’ and workers’ organizations. The Committee requests the Government to supply information on the consultations held with the social partners concerning the provisions of the aforementioned draft Act relating to hours of work. Finally, the Committee requests the Government to reply in detail to the observation and direct request of 2008 and indicate the measures it plans to take on these issues in order to ensure that the national legislation is in full conformity with the Convention.
Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.
[The Government is asked to reply in detail to the present comments in 2012.]

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Article 2 of the Convention. Daily hours of work. The Committee notes that section 112 of the Labour Code still allows the establishment, by law, collective agreement or through individual negotiation, of a working day of over eight hours, on condition that a period of 12 hours of work is followed by a period of 24 hours of rest. It further notes that the Government’s report does not reply to its previous direct request on this point and only covers cases in which daily hours of work may be reduced on the basis of this provision. The Committee is therefore bound to reiterate its previous comment, in which it emphasized that the limit of eight hours of work in the day can only be exceeded in the very strict framework of the exceptions allowed by Articles 3–6 of the Convention, and not in an unrestricted manner and under the sole condition of complying with the procedure set out in section 112 of the Labour Code. The Committee trusts that the Government will amend the legislation so as only to authorize the limit of eight hours in the day to be exceeded on an exceptional basis in the cases envisaged by the Convention and in compliance with the conditions set out in this instrument.

Article 2(b). Unequal distribution of hours of work. The Committee notes that section 110(2) of the Labour Code allows the unequal distribution of weekly hours of work according to the specific characteristics of the organization or activity performed, on condition that a normal length of working time of 40 hours in the week is respected. The Committee observes that this provision does not establish any limit to daily hours of work, while article 10(6) of the National Collective Agreement, which the Government attached to its report, provides that in the context of such an arrangement of weekly hours of work, daily hours may not exceed ten. The Committee draws the Government’s attention to the fact that, although Article 2(b) of the Convention authorizes the distribution of weekly hours of work in such a manner that daily hours are less than eight on certain days of the week and higher than this limit on the remaining days, it provides that the limit may only be exceeded by one hour in the day, which is equivalent to nine hours of work in the day as a maximum. The Committee hopes that the Government will take measures to ensure compliance with this limit, preferably by including a provision for this purpose in the Labour Code.

Article 6, paragraph 1(b). Cases in which overtime is authorized. The Committee notes that section 117 of the Labour Code provides that the performance of overtime hours is not permitted without the agreement of the employee, except in case of force majeure or urgent work intended to prevent or eliminate the consequences of an accident, but does not contain a limitative enumeration of the cases other than those mentioned above in which the performance of overtime hours is authorized. The Committee wishes to emphasize that Article 6, paragraph 1(b), of the Convention only authorizes the performance of overtime to enable the employer to deal with exceptional cases of pressure of work, irrespective of whether or not the worker has consented in this respect. The Committee therefore hopes that the Government will take measures in the near future to bring the legislation into conformity with the Convention on this point and requests it to provide information on any developments in this respect.

Article 6, paragraph 2. Limitation of the number of overtime hours. The Committee notes that section 118(1) of the Labour Code provides that overtime hours must be performed in compliance with the provisions of sections 111 or 112 of the Labour Code, as appropriate. It notes that section 111 establishes the maximum length of working time, including overtime hours, at 48 hours in the week, although this duration may, by way of exception, be calculated as an average over a reference period of up to three months in a year. It is the Committee’s understanding that no other limitation on overtime hours is applicable in this context, and in particular that no limit is imposed on daily hours of work when an employee performs overtime hours. It further notes that the situation is reversed when section 112 of the Labour Code is applicable, as the daily working time is then limited to 12 hours, although no limit appears to be established for weekly hours of work or for the number of overtime hours authorized, for example in a month. Taking into account the importance of the limitation of hours of work and overtime hours, whether they are performed voluntarily or not, to protect the health of workers, the Committee requests the Government to indicate the measures adopted or envisaged in order to limit with greater precision the number of overtime hours authorized by sections 111 and 112 of the Labour Code.

Overtime pay. The Committee notes that, under the terms of section 119 of the Labour Code, overtime hours must in principle be compensated by paid rest within 30 days of their performance, in which case they are paid at the ordinary rate. It further notes that section 120 of the Labour Code provides that, if compensation by paid rest is not possible within the deadline that is prescribed, the overtime hours must be paid at a higher rate of pay, and that such extra pay for overtime must be established by collective bargaining or in the employment contract, but cannot be lower than 75 per cent of the normal rate of pay. The Committee notes with interest that the legislation favours the granting of compensatory rest when overtime hours are performed. However, it draws the Government’s attention to the fact that Article 6, paragraph 2, of the Convention requires a rate of pay for overtime hours that is not less than 25 per cent higher than the normal pay in all circumstances, that is whether or not compensatory rest is granted to the worker concerned. The Committee requests the Government to provide information on the measures envisaged to ensure that the rate of pay for overtime hours is at least 25 per cent higher than the normal rate, even where the workers concerned benefit from compensatory rest.

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Article 8 of the Convention and Part VI of the report form. Violations of the rules respecting hours of work and practical application of the Convention. The Committee notes with interest that, following the amendment of section 276 of the Labour Code by Emergency Ordinance No. 65 of 29 June 2005, failure to comply with the provisions of the Labour Code respecting the performance of overtime hours and weekly rest henceforth constitutes an infringement with a fine of between 1,500 and 3,000 lei. It also notes the Government’s indications that in 2007 labour inspectors inspected 90,677 economic entities in which 3,776,476 workers were employed, and that sanctions were imposed on 406 employers under this provision of the Labour Code. The Committee requests the Government to indicate the measures adopted or envisaged to extend the application of section 276(h) of the Labour Code to other cases of failure to comply with the provisions of the Labour Code respecting hours of work, as suggested by the Block of National Trade Unions in the observations that it made in 2004 on the application of the Convention. The Government is also requested to confirm that the amount of the fine indicated in section 276 of the Labour Code is expressed in Romanian new lei (RON) (i.e. a fine of between €400 and €800). Finally, the Committee requests the Government to continue providing information on the application of the Convention in practice, including information on the types of working time arrangements (for example, compressed work weeks, averaging of hours, etc.) used by employers, and the types of violations of the legal provisions respecting hours of work reported by the labour inspection services, and any remedial action taken.

The Committee is also addressing a request concerning a number of other points directly to the Government.

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Article 2 of the Convention. The Committee notes that section 112(1), of the new Labour Code of the Republic of Romania, promulgated by Act No. 53/2003, permits that for certain activities, units or professions a daily work period exceeding eight hours may be established through individual bargaining.

The Committee recalls that limits to hours of work fixed by Article 2 of the Convention are obligatory and cannot be subject to alteration by contract. Exceptions from the standard eight-hour day are only permissible under certain circumstances in cases such as force majeure (Article 3), through collective agreements (Article 5) or regulations made by public authority (Article 6). The Committee therefore requests the Government to take the necessary action to bring the national legislation in line with these provisions of the Convention and to inform it on all steps taken to this end.

Article 8, paragraph 2. The Committee requests the Government to indicate whether it is an offence against the law to employ any person outside the hours fixed in accordance with Article 8, paragraph (a).

Part III of the report form. With regard to Article 5 of the Convention, the Committee requests the Government to communicate in its next report collective agreements regulating unequal distribution of working time issued under sections 112 and 113 of the Labour Code and, with regard to Article 6 of the Convention, to submit the specific pieces of legislation mentioned in section 112 of the Labour Code.

Part V. The Government is asked to provide information on the application of the Convention in practice, including extracts from labour inspections, indicating the number and nature of contraventions reported concerning the application of the Convention.

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The Committee notes the Government’s comments to the observations made by the Bloc National Syndical (BNS) concerning the application of the Convention in practice. It notes the Government’s statement that there are currently no specific sanctions for the violation of legal provisions relating to the maximum hours of work allowed per day. It further notes that the Labour Inspectorate will propose legislation to amend Act No. 53/2003 in order to enable the inspectorate to impose fines for violations on provisions regulating hours of work, thus bringing the national legislation in line with Article 8, paragraph 2, of the Convention. The Committee requests the Government to keep it informed about any progress made in this respect. It also asks the Government to provide the information requested in its last direct request, which is reproduced separately.

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Article 2 of the Convention. The Committee notes that section 112, paragraph 1, of the new Labour Code of the Republic of Romania, promulgated by Law No. 53/2003, permits that for certain activities, units, or professions a daily work period exceeding eight hours may be established through individual bargaining.

The Committee recalls that limits to hours of work fixed by Article 2 of the Convention are obligatory and cannot be subject to alteration by contract. Exceptions from the standard eight-hour day are only permissible under certain circumstances in cases such as force majeure (Article 3), through collective agreements (Article 5) or regulations made by public authority (Article 6). The Committee therefore requests the Government to take the necessary action to bring the national legislation in line with these provisions of the Convention and to inform it on all steps taken to this end.

Article 8, paragraph 2. The Committee requests the Government to indicate whether it is an offence against the law to employ any person outside the hours fixed in accordance with Article 8, paragraph (a).

Part III of the report form. With regard to Article 5 of the Convention, the Committee requests the Government to communicate in its next report collective agreements regulating unequal distribution of working time issued under sections 112 and 113 of the Labour Code and, with regard to Article 6 of the Convention, to submit the specific pieces of legislation mentioned in section 112 of the Labour Code.

Part V of the report form. The Government is asked to provide information on the application of the Convention in practice, including extracts from labour inspections, indicating the number and nature of contraventions reported concerning the application of the Convention.

The Committee further notes the observations made by the Bloc National Syndical (BNS), concerning the application of the Convention in practice, which were transmitted to the Government. The Committee invites the Government to provide the Office with any comments it may deem useful, to enable the Committee to deal with the observations of the BNS at its next session.

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