Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Scope of application. The Committee notes the legislative texts provided by the Government which establish the right to annual holidays with pay for workers excluded from the scope of application of the Consolidation of Labour Laws (CLT), whose annual leave is governed by special legislation, namely: domestic workers (Act No. 11.324 of 19 July 2006, amending Act No. 5.895 of 11 December 1972 respecting domestic workers) and temporary workers (Act No. 6.019 of 3 January 1974 and Decree No. 73841 of 13 March 1974 respecting temporary work). With regard to rural workers, the Committee notes that, under the terms of section 4 of Decree No. 73.626/1974 of 13 February 1974, their annual holidays with pay are governed by the CLT (sections 129–144).

Article 3, paragraph 3. Duration of annual holidays with pay. Absences. The Committee notes the Government’s indication that the duration of annual holidays with pay depends on the regular attendance of the worker and unjustified absences are deducted from both the period of minimum service giving entitlement to the holiday and the duration of annual holidays with pay. In this respect, the Committee refers to paragraph 201 of its General Survey of 1964 on annual holidays with pay in which it considered that “the two questions, that of unjustified absence and of holidays with pay, should be dealt with separately – except, of course, as regards the effect of such absence on the qualifying period of service”. In other words, although the deduction of unjustified absences from the minimum qualifying period of service giving entitlement to the holiday does not seem to be in contravention of the express provisions of the Convention, there should be no deduction from the annual holidays, the duration of which should in no case be less than three working weeks for one year of service in accordance with Article 3(3) of the Convention. The Committee therefore requests the Government to indicate the measures adopted or envisaged in order to bring the legislation into conformity with the letter and the spirit of the Convention.

Article 4. Proportionate holiday. Further to its previous comment concerning section 147 of the CLT, the Committee notes the Government’s reference to ruling No. 121/2003 of the Higher Labour Court, amending Order No. 261 and granting workers the right to proportionate leave when they are dismissed without valid reason or the employment relationship is terminated at the end of a specific period, without having completed the period of minimum service giving entitlement to the holiday. It also notes that this court decision excludes workers who are dismissed for a valid reason from the right to proportionate leave. The Committee recalls, in this regard, that Article 4 of the Convention provides for the granting of proportionate leave to any person whose length of service is less than that required for entitlement to the full period of holiday, namely three weeks. Accordingly, and in the absence of legislative provisions to that effect, the Committee requests the Government to indicate the measures adopted or envisaged in order to bring section 147 of the CLT into full conformity with this provision of the Convention.

Article 5, paragraphs 1, 2 and 3. Minimum period of service. The Committee notes the Government’s indication that the minimum period of service required for entitlement to any annual holiday with pay is 12 months. It also notes that this period may be shorter in the case of holidays granted collectively. The Committee recalls that, in accordance with Article 5(2) of the Convention, the length of the minimum period of service required may not in any case exceed six months. The Committee requests the Government to indicate the measures adopted or envisaged to bring the legislation into conformity with the Convention on this point.

Article 5, paragraph 4. Period of service. Absence from work for reasons beyond the control of the worker. The Committee notes the Government’s reference to works of jurisprudence according to which section 133(4) of the CLT, which provides that employees who, during the period in which they are acquiring entitlement to holidays, have received social insurance benefits in respect of employment accidents or occupational diseases for over six months, are not entitled to annual holidays, should be considered as being repealed. However, in the absence of a legislative provision explicitly repealing section 133(4) of the CLT, the latter remains applicable. The Committee therefore requests the Government to provide fuller information on this point.

Article 6, paragraph 2. Incapacity for work. The Committee recalls its previous comment in which it requested further explanations concerning section 130(1) of the CLT, under the terms of which periods of absence from work may not be counted as part of the holiday, and the Government’s statement that holidays with pay are neither interrupted nor suspended in the case of sickness arising during the holiday period. The Government adds in its latest report that, in accordance with the jurisprudence, section 130(1) of the CLT should be considered as being repealed. In the absence of a legislative text explicitly repealing section 130(1) of the CLT, the latter remains applicable. The Committee therefore requests the Government to provide further information on this point.

Article 8, paragraph 2. Division of the annual holidays with pay. The Committee is bound to draw the Government’s attention once again to sections 134(1) and 139(1), under the terms of which one of the parts of the holiday may not be less than ten calendar days, while under the terms of the Convention the minimum duration of one part of a divided holiday period shall consist of at least two uninterrupted working weeks, that is 14 calendar days. The Committee therefore requests the Government to indicate the measures adopted or envisaged to bring the above sections of the CLT into conformity with Article 8(2) of the Convention.

Article 10. The time at which the holiday is to be taken. The Committee notes the Government’s indication that the employer decides upon the time at which the holiday is to be taken, with the worker being notified of this decision 30  days before the effective date of the holiday in the case of individual holidays and 15 days in the case of collective holidays. The Committee recalls that the time at which the holiday is to be taken shall be determined by the employer after consultation with the employed person concerned or her or his representatives and that, in fixing the time at which the holiday is to be taken, work requirements have to be taken into account by the employer, as well as the opportunities for rest and relaxation available to the employed person. The Committee requests the Government to indicate the measures adopted or envisaged with a view to ensuring that the employed persons concerned or their representatives are consulted when the timing of holidays is determined.

Article 12. Relinquishment of the right to annual holidays with pay. The Committee notes that the Government has not provided any further information in relation to section 143 of the CLT, which allows an employee to request that the equivalent of one third of the holiday with pay to which she or he is entitled be granted in cash. It recalls that agreements to relinquish the right to the minimum annual holiday with pay prescribed by the Convention, that is three weeks, shall be null and void or be prohibited. The Committee therefore once again requests the Government to indicate the measures adopted or envisaged to ensure that workers benefit from a minimum period of annual holiday with pay of three weeks.

Part IV of the report form. Court rulings. The Committee notes the numerous court rulings provided by the Government which refer to the provisions of the Convention, and particularly Article 11 respecting a proportionate period of holiday with pay in the event of termination of the employment relationship. It notes that, despite doctrinal divergences in relation to the termination of the employment relationship for valid reasons, the case law sees in Decree No. 3.197/99, promulgating Convention No. 132, an innovative aspect in relation to proportionate holiday as Article 11 ensures to all workers the right to a proportionate period of holiday in the event of the termination of the employment relationship, irrespective of the reason for such termination. The Committee requests the Government to continue providing copies of court rulings containing clarifications on questions of principle relating to the application of the Convention.

Part V of the report form. Application in practice. The Committee notes the detailed statistical data provided by the Government concerning the contraventions reported during the period 2003–07. The Committee would be grateful if the Government would continue providing statistical data, and particularly extracts from reports of the inspection services indicating the number of infringements reported in relation to paid annual holidays and the penalties imposed, statistics indicating the number of workers covered by the relevant legislation, copies of collective agreements containing clauses respecting annual holiday with pay, etc.

In conclusion, the Committee notes that numerous provisions of the Convention are still not fully applied and that little tangible progress appears to have been made since 2003, when the Government indicated that it was its intention to review the labour legislation in consultation with the social partners. The Committee once again requests the Government to keep the Office informed of any new developments in this respect.