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Weekly Rest (Industry) Convention, 1921 (No. 14) - St Helena

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee recalls its previous comment in which it noted that the Sunday (Observance) Regulations 2000 and the Lord’s Day (Observance) (Amendment) Ordinance 2000 have significantly relaxed the principle of Sunday rest as the customary weekly rest day and they do not provide for compensatory rest for those workers performing work on Sunday. In its reply, the Government indicates, that due to the dissolution of the Legislative Council in April 2013, the Government had not yet had the opportunity to consider whether secondary legislation should be proposed to ensure that exceptions to the general weekly rest scheme are authorized only under the limited conditions set out in the Convention and that, in case of such authorized exceptions, compensatory rest is granted, as far as possible, irrespective of any monetary compensation. While noting the Government’s explanations, the Committee requests the Government to re-examine the conditions under which Sunday work may be authorized under the Employment Rights Ordinance, 2010, and the relevant regulations to bring them into closer conformity with the requirements of the Convention.

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Articles 4 and 5 of the Convention. Total or partial exceptions. Compensatory rest. The Committee notes that, pursuant to section 2(1) of the Lord’s Day (Observance) (Amendment) Ordinance, 2000, employees other than those providing emergency services and essential public services may not be compelled to perform any work on a Sunday while under section 2(2) an employer who employs any person on a Sunday must pay such person wages at double the rate paid in normal working hours. The Committee also notes the Sunday (Observance) Regulations 2000, which fix the hours during which places of business may open on Sundays, and further provide that such opening hours may be extended by the Employment and Social Security Committee on special occasions and upon receiving written application to this effect. The Committee observes that following the adoption of the above-referenced ordinance and regulations, the national legislation no longer strictly applies the principle of Sunday rest as customary weekly rest day and does not require either that workers performing Sunday work on a voluntary basis are granted – apart from higher pay – another day of rest during the week.

In this regard, the Committee recalls that the basic standard defined in this Article of the Convention is that workers are entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days, and this rest period should, to the extent possible, be the same for all and should coincide with the day already designated by tradition or custom as day of weekly rest. The Convention is thus articulated around three basic principles: regularity (rest to be taken at seven-day intervals); continuity (rest of at least 24 consecutive hours); and uniformity (weekly break to be taken simultaneously by all workers). The Convention permits, of course, total or partial exceptions (including suspensions or diminutions) from the general weekly rest standard, in particular when the inherent need to keep certain establishments in operation on the day of rest or exceptional conditions would so require. It seeks to guarantee, however, that exceptions to the normal weekly rest are authorized on limited and well-circumscribed grounds, and only after consultations with the representative organizations of employers’ and workers’ organizations concerned. The Committee therefore considers that as it is currently worded, section 2 of the Lord’s Day (Observance) (Amendment) Ordinance, 2000, goes beyond what is prescribed by Article 4(1) of the Convention. In addition, whereas section 2(2) provides for employees who work on Sundays to be paid at double their normal wage rate, no provision is made for compensatory rest to the extent possible, as required under Article 5 of the Convention. The Committee recalls, in this respect, that according to the terms of the Convention, the rest period cannot be replaced by extra payment but must be granted, as far as possible, regardless of any cash compensation. The Committee therefore asks the Government to indicate the measures taken or envisaged to ensure that exceptions to the general weekly rest scheme are authorized only under the limited conditions set out in the Convention and that, in case of such authorized exceptions, compensatory rest is granted, as far as possible, irrespective of a monetary compensation.