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C.30, C.52 and C.101

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 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 52 (holidays with pay), 101 (holidays with pay in agriculture) and 106 (weekly rest in commerce and offices) in the same comment.
Legislative developments. The Committee notes the information provided by the Government in its reports on the adoption of: (i) the National Constitution proclaimed on 10 April 2019; and (ii) the Labour Code, promulgated by Act No. 116 of 20 December 2013, and its Regulations, promulgated by Decree No. 326 of 12 June 2014.

Hours of work

Article 2 of Convention No. 1 and Articles 3 and 4 of Convention No. 30. Daily and weekly limits on hours of work. Variable distribution within weekly limits. The Committee notes the Government’s indication that under section 87 of the Labour Code: (i) daily working time is a minimum of eight hours on five days per week; (ii) taking account of existing technical and organizational conditions and the needs of production or services, working time on specific days of the week can include one additional hour, provided that the limit on weekly hours of work is not exceeded; and (iii) weekly working time can be set at between 40 and 44 working hours, depending on the tasks to be performed and the need to reduce costs. The Committee notes this information.
Article 7(1)(c) of Convention No. 1. List of exceptions to daily and weekly limits on hours of work. Further to its previous comments, the Committee notes the Government’s indication that: (i) Decision No. 187 of 2006, establishing exceptions to normal hours of work, was repealed following the entry into force of the Labour Code and its regulations in 2014; and (ii) section 86 of the Labour Code establishes permanent exceptions to normal hours of work for specific jobs or activities because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence.
Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Limit on additional hours in respect of permanent exceptions. The Committee notes that section 86 of the Labour Code provides that heads of organizations, national entities and higher management organizations, with regard to specific jobs or activities, can approve exceptional working arrangements where required, because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence, with a due correspondence between hours of work and rest during the periods concerned. In this regard, the Committee notes that section 86 does not establish the maximum number of overtime hours that can be authorized. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that, should permanent exceptions to normal working hours be authorized, the relevant regulations establish the maximum number of additional hours authorized, in accordance with Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30.
Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30. Remuneration of overtime. Further to its previous comments, the Committee notes the Government’s indication that, under section 122 of the Labour Code, overtime is paid at the rate of 25 per cent more than the normal wage. The Committee notes that section 122 of the Labour Code also provides that, exceptionally, collective labour agreements can include compensation in the form of rest periods in proportion to the wage paid. The Committee also notes that, under section 147(a) of the Regulations, the cases in which workers receive a wage that includes payment for a number of hours of work in excess of normal hours are not classified as overtime for the purposes of remuneration. The Committee requests the Government to indicate the measures taken or envisaged to ensure that overtime is paid at the rate of 25 per cent more than the normal wage in all cases, including when compensatory rest is granted and when the wage includes payment for a number of hours of work in excess of normal hours, in accordance with these Articles of the Conventions.
Article 8(1)(c) of Convention No. 1 and Article 11(2)(c) of Convention No. 30. Record of additional hours. The Committee notes that section 33 of the Labour Code establishes the obligation to compile and update workers’ employment files, in which hours worked and wages paid are recorded. The Committee also notes that, under section 17 of the Regulations implementing the Labour Code, the obligation to compile and update employment files applies to workers who are hired for an employment relationship lasting more than six months. The Committee requests the Government to indicate the manner in which it ensures compliance with the obligation to keep a record of all overtime worked and the amount of remuneration in respect of workers who are hired for an employment relationship lasting less than six months.

Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. The Committee notes that the labour legislation does not establish any provision which guarantees compensatory rest for workers covered by temporary exceptions to the principle of weekly rest. The Committee requests the Government to provide information on the manner in which it ensures that workers who go without their weekly rest under the terms of section 120 of the Labour Code are granted compensatory rest, in accordance with Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106.

Annual holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Prohibition on relinquishing the right to an annual holiday with pay. Further to its previous comments, the Committee notes the information provided by the Government regarding section 107 of the Labour Code, which provides that, in exceptional circumstances requiring the worker to remain at work, the employer, after obtaining the views of the trade union, may postpone the annual holiday or agree with the worker on the simultaneous payment of accumulated holidays and wages for the work done, guaranteeing a minimum period of seven days off work per year. The Committee also notes that, under section 101 of the Labour Code, persons under 16 years of age, including apprentices, are entitled to one month of annual holidays with pay for every 11 months of work. The Committee notes that, under section 107 of the Labour Code, the annual holiday for this category of workers can be postponed or they can be paid cash in lieu in exceptional circumstances that require the worker to remain at work, guaranteeing a minimum period of seven days off work per year. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, on the understanding that this principle applies to the duration of the annual holiday with pay established in every Member State which has ratified the Conventions, whatever the duration. The Committee requests the Government to indicate the measures taken or envisaged to bring sections 101 and 107 of the Labour Code into conformity with these Articles of the Conventions.

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Articles 3, 6 and 7 of the Convention. The Committee requests the Government to refer to the comments made under Articles 2, 6 and 7 of the Hours of Work (Industry) Convention, 1919 (No. 1).

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Article 6 of the Convention. Working hour limits – Exceptional cases. The Committee notes that, under section 3 of Resolution No. 187/2006 issuing regulations on working hours and periods, which applies to all branches of activity, the heads of work units are not limited by the normal hours of work (namely, eight hours per day and, on average, 44 hours per week) in a number of cases, particularly temporary, cyclical or seasonal activities, subject to approval from the Ministry of Labour and Social Security (clause (a)). It notes that such exceptions may also be established in “other cases provided for by law” (clause (f)). The Committee recalls that, under Articles 6 and 8 of the Convention, the limits fixed by Article 3 may only be exceeded in exceptional cases in which such limits have been recognized as inapplicable. The hours of work must then be fixed by regulations adopted after consultation of the employers’ and workers’ organizations concerned. In any case, average hours of work may not exceed 48 hours per week and the daily hours of work may not in any case exceed ten hours. It requests the Government to supply information on any exceptions granted on the basis of section 3 of Resolution No. 187/2006 in the commercial sector. The Government is also requested to indicate whether Resolution No. 128/83 of 10 December 1983 concerning opening hours of retail shops is still in force.

Article 7, paragraph 2. Temporary exceptions. The Committee notes that section 72 of the Labour Code allows the performance of additional work, in the form of a double day’s work, additional hours, or work during weekly rest days. It also notes that, under section 77 of the Labour Code, a worker may not be forced to work more than four additional hours for two consecutive days or work more than two double days in one week. However, the State Committee for Labour and Social Security may set other limits in the light of the nature of the work performed in certain sectors of activity. The Committee draws the Government’s attention to the fact that, under Article 7, paragraph 2, of the Convention, temporary exceptions may only be granted in specific cases, including in the event of an accident, to prevent the loss of perishable goods, to allow for special work such as stocktaking or to deal with cases of abnormal pressure of work. Furthermore, under Article 8 of the Convention, these exceptions must be provided for by regulations adopted after consultation of the workers’ and employers’ organizations concerned. The Committee requests the Government to indicate whether other legal provisions specify the cases in which the performance of additional hours is authorized. The Government is also requested to indicate whether a maximum number of additional hours per year has been established.

Article 7, paragraph 4. Remuneration of additional hours. The Committee notes that section 78 of the Labour Code provides that additional hours are to be remunerated in cash or compensated by extra time off at a rate to be determined by law. In this regard, the Committee recalls that Article 7, paragraph 4, of the Convention prescribes a rate of pay of at least 25 per cent extra for the additional hours, except in the case of accident, actual or threatened, force majeure, or urgent work to machinery. It requests the Government to indicate the measures taken to give effect to section 78 of the Labour Code.

Part V of the report form. The Committee requests the Government to give a general description of the way in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of contraventions reported, and further details on the number of workers covered by the legislation.

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Article 3 of the Convention. Weekly hours of work. The Committee notes that, under section 67 of the Labour Code, the length of the normal working day is eight hours and the average normal working week is 44 hours. It also notes that the Labour Code does not define a reference period on the basis of which the length of the average working week may be calculated. Nor does the Code lay down an absolute limit on the length of the working week. The Committee recalls that Article 3 of the Convention sets the maximum length of the working week at 48 hours. Calculation of the average working week with the 48-hour limit exceeded in certain weeks is only permitted in the exceptional cases referred to in Article 6 of the Convention. Hence the Committee is bound to conclude that section 67 of the Labour Code, which permits the averaging of weekly hours of work without any restriction, is not in line with the provisions of the Convention. The Committee trusts that the Government will soon take the necessary steps to amend its legislation to allow the 48-hour working week to be exceeded, in the context of averaging of the weekly hours of work, only in the exceptional circumstances laid down by the Convention. It requests the Government to supply information on any further developments in this regard.

The Committee is also addressing a direct request to the Government with regard to a number of other points.

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