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Hours of Work (Industry) Convention, 1919 (No. 1) - Mozambique (RATIFICATION: 1977)

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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 1 and 30 (hours of work) together.
Legislative developments. The Committee notes that in its report on Convention No. 14, the Government indicates that the Labour Act No. 23/2007 of 1 August 2007 is under revision. In this context, the Committee requests the Government to take its comments, set out below, into account when finalizing the current legislative reform and to provide information on any legislative development relating to the abovementioned reform. It recalls that the Government can avail itself of the technical assistance of the ILO in this process.
Article 1 of Convention No. 1. Scope of application. The Committee had previously requested the Government to indicate the legal provisions regulating working time in mining work, port work and maritime work, which are currently excluded from the scope of application of the Labour Act. The Committee notes that the Government indicates in its report that the Decree No. 13/2015 of 3 July 2015 approved the Mining Labour Regulations, the Decree No. 46/2016 of 31 October 2016 approved the Dock Work Regulations, and the Decree No. 50/2014 of 30 September 2014 approved the Maritime Labour Regulations. The Committee takes note of this information, which addresses its previous request.
Article 5 of Convention No. 1 and Article 6 of Convention No. 30. Variable distribution of working hours over periods longer than a week. In previous comments, noting that section 85(4) of the Labour Act provides that the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months, the Committee recalled that the Conventions permit the averaging of hours of work only in exceptional cases, and require either a prior agreement between workers’ and employers’ organizations to which Governments may give the force of regulations (Article 5(1) of Convention No. 1) or regulations made by the public authority (Article 6 of Convention No. 30). The Committee notes that the Government does not provide any relevant information on this issue. The Committee requests the Government to take the necessary measures to restrict the introduction of the averaging of hours of work over a reference period longer than a week to exceptional circumstances and to make it conditional upon the procedure of authorization required by the Conventions.
Article 6(1)(a) and (b) and (2) of Convention No. 1 and Article 8 of Convention No. 30. Permanent and temporary exceptions. Prior consultations with social partners. In previous comments concerning sections 86(1) and 90(2) of the Labour Act, which provide for permanent and temporary exceptions to normal working hours, the Committee had requested the Government to provide information on how effect is given to the Conventions’ requirement to determine these exceptions by regulations made only after consultation with the workers’ and employers’ organizations concerned. In this respect, the Committee notes that the Government indicates that before the approval of any regulation establishing permanent or temporary exceptions to normal working hours, instruments are examined, and agreements reached by tripartite constituents in the framework of the Consultative Labour Commission (CCT) created by Decree No. 7/94 of 9 March 1994. The Committee takes note of this information, which addresses its previous request.
Articles 3 and 6(1)(b) of Convention No. 1 and Article 7(2) of Convention No. 30. Temporary exceptions. Circumstances. The Committee had previously noted that: (i) section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases by up to a maximum of four hours; and that (ii) section 86(3) of the Labour Act provides that increases in the maximum limits of normal working hours may be established by a government decision on the recommendation of the labour minister and the minister who oversees the sector of activity in question. In this respect, the Committee had observed that neither section 85(3) nor section 86(3) of the Labour Act clearly define the exceptional circumstances under which normal hours of work may be temporarily increased.
Moreover, the Committee notes that section 9(3) of the Dock Work Regulations provides that by collective agreement, normal working hours may be increased up to 12 hours, not exceeding 56 hours per week. It also notes that section 8(2) of the Mining Labour Regulations provides that normal working hours can be increased or reduced by Government determination or by instrument of collective labour regulation under the terms of the Labour Act, provided that they are no longer than 12 hours per day and 56 hours per week. The Committee observes that these two provisions do not refer to the exceptional character of those increases in normal working hours, and do not specify the circumstances under which resort to those increases is allowed. The Committee wishes to emphasize the importance of national legislation and practice restricting recourse to exemptions from the maximum limits to hours of work (namely eight hours in the day and 48 hours in the week) to cases of clear, well-defined and limited circumstances (2018 General Survey on working time instruments, paragraph 119). The Committee requests the Government to take the necessary measures to ensure that the legislation providing for temporary exceptions to normal working hours, either general or for specific categories of workers like dock and mining workers, clearly define the exceptional circumstances in which normal working hours are temporarily increased. The Committee also requests the Government to supply information on progress made in this regard.
Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Additional hours of work allowed. In previous comments, the Committee had noted that section 86(3) of the Labour Act providing for temporary exceptions to normal working hours does not fix any limit to additional hours allowed in each case, as required by Article 6(2) of Convention No. 1. It had also noted that section 90(3) of the Labour Act does not fix any daily limit to additional hours in case of temporary exceptions, as required by Article 7(3) of Convention No. 30. The Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to take the necessary measures to ensure that regulations made by public authority determine: (i) the maximum number of additional hours allowed in case of temporary exceptions (Article 6(2) of Convention No. 1); and (ii) the maximum number of daily additional hours of work allowed in case of permanent exceptions (Article 7(3) of Convention No. 30).
Article 6(2) of Convention No. 1. Compensation for overtime. The Committee notes that the Dock Work Regulations (section 9(2), (3) and (4)) and the Mining Labour Regulations (sections 8(2) and 15) provide for increases in normal working hours, but do not seem to contain provisions on the compensation for those additional hours. The Committee notes that section 115 of the Labour Act provides that overtime performed until eight o’clock at night shall be paid at the normal wage rate plus 50 percent, that overtime performed between eight o’clock at night and the start of the normal working hours of the following day shall be paid at the normal wage rate plus 100 percent, and that exceptional work shall be paid at the normal wage rate plus 100 percent. The Committee requests the Government to indicate whether section 115 of the Labour Act applies to dock and mining workers in cases where their normal working hours are increased.
Article 8(2) of Convention No. 1 and Articles 11(3) and 12 of Convention No. 30. Penalties. In previous comments, the Committee had requested the Government to indicate the sanctions provided for in case of infringement of the working time legislation. The Committee notes that the Government indicates that, regarding infringements of the working time legislation, general sanctions provided for in section 267 of the Labour Act are applicable on a case-by-case basis. The Committee takes note of this information, which addresses its previous request.

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Articles 1, 5, 6 and 8 of the Convention. Scope of application – Averaging – Permanent and temporary exceptions – Sanctions. In its previous comment, the Committee took due note of the adoption of the Labour Act of 2007, in particular sections 84–93 dealing with working time, and drew the Government’s attention to certain provisions which do not appear to be in full compliance with the corresponding requirements of the Convention. As most of these points have not been addressed in the Government’s latest report, the Committee reiterates its request for additional explanations on the following: (i) the legal provisions regulating working time in mining work, port work and maritime work which are currently excluded from the scope of application of the Labour Act; (ii) the conditions under which the averaging of working hours may be authorized under section 85(4) of the Labour Act bearing in mind that the Convention permits the averaging only in exceptional cases based on prior agreement between employers’ and workers’ organizations which has been given the force of regulations; (iii) any annual limit to overtime hours which may be authorized through a collective agreement as section 85(3) of the Labour Act provides only for daily and weekly limits; (iv) whether and how employers’ and workers’ organizations are consulted prior to the adoption of any regulations establishing permanent or temporary exceptions; (v) the scope of the discretionary power of the Minister of Labour to recommend increases in the maximum limits on normal working hours under section 86(3) of the Labour Act; and (vi) the legal provisions establishing appropriate sanctions in case of infringement of the working time legislation.

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The Committee notes the adoption of a new Labour Act No. 23/2007 of 1 August 2007, which basically reproduces the provisions on hours of work of the previous Labour Act No. 8/98 of 20 July 1998.

Article 1 of the Convention. Scope of application. The Committee notes that section 3 of the Labour Act provides that mining work, port work and maritime work are governed by special legislation and that the employment relationships in these sectors are regulated by the Labour Act in so far as it is suited to their particular nature and characteristics. The Committee requests the Government to provide full particulars on the laws and regulations governing working time in mining work, port work and maritime work and to provide copies of all relevant legal texts.

Article 5. Averaging of hours of work. The Committee notes that under section 85(4) of the Labour Act, the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months. The Committee wishes to recall, however, that the Convention permits the averaging of hours of work only in exceptional cases, and requires a prior agreement between workers’ and employers’ organizations which has been given the force of regulations by the Government. The Committee therefore requests the Government to indicate how effect is given to the requirements of this Article of the Convention.

Article 6, paragraph 1(a). Permanent exceptions. The Committee notes that section 86(1) of the Labour Act provides that the maximum limits on normal working hours may be extended for employees whose duties are highly intermittent or consist of the mere presence of the employee, as well as for preparatory or ancillary work that must be performed outside normal working hours for technical reasons, without prejudice to the periods of rest prescribed by the law. In this connection, the Committee draws the Government’s attention to the fact that the Convention requires the adoption of regulations after consultation with the workers’ and employers’ organizations concerned. The Committee therefore requests the Government to supply additional explanations in this respect.

Article 6, paragraph 1(b). Temporary exceptions. The Committee notes that section 90(2) of the Labour Act provides that overtime may be performed only when employers are faced with workload increases that do not justify the admission of employees under fixed-term contracts or permanent contracts or when there are material reasons. In this regard, the Committee recalls that the Convention requires the adoption of regulations after consultation with the workers’ and employers’ organizations concerned. The Committee requests the Government to supply additional explanations in this respect.

In addition, the Committee notes that section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases up to a maximum of four hours, provided the weekly working time shall not exceed 56 hours. The Committee notes that this provision refers to some undefined “exceptional cases” and sets only daily and weekly limits which can imply annual working hours that are far too high and which could be contrary to the spirit of the Convention. In this regard, the Committee wishes to refer to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be reasonable and they must be prescribed in line with the general goal of Conventions Nos 1 and 30, namely to establish the eight‑hour day and 48-hour week as a legal standard of hours of work in order to provide protection against undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life. The Committee therefore requests the Government to specify the exceptional cases which section 85(3) of the Labour Act is meant to cover and to take all necessary measures in order to establish, within reasonable limits, the maximum number of additional hours which may be allowed in the year under this provision of the Labour Act.

Moreover, the Committee notes that section 86(3) of the Labour Act provides that increases in the maximum limits on normal working hours may be established by a government decision on the recommendation of the minister in charge of labour and the minister who oversees the sector of activity in question. The Committee considers that this provision provides for the extension of working hours in terms far more general than the exceptions defined under Article 6 of the Convention. The Committee requests the Government to specify the conditions under which and the limits within which such discretionary power may be exercised and to indicate whether any such ministerial decisions have so far been issued.

Article 7. Regulations authorizing exceptions. The Committee requests the Government to provide more detailed information on any regulations which may have been issued under Articles 5 or 6 of the Convention.

Article 8, paragraph 2. Sanctions. The Committee notes that the legislation is silent on the sanctions that have to be prescribed in case of employment of a worker beyond the maximum number of hours fixed by law. The Committee therefore requests the Government to indicate whether it is an offence to employ any person beyond the maximum number of hours fixed by law and, if so, to specify the legal provision(s) establishing appropriate sanctions in case of infringements.

Part VI of the report form. Application in practice. The Committee notes the statistical information provided by the Government concerning labour inspection results in general. The Committee would be grateful if the Government would continue to provide information on the practical application of the Convention, including, for instance, extracts from official reports and information on any difficulties encountered in the implementation of the Convention.

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