Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the report of the Government for the period ending 30 June 1991 and the reply to its previous observation concerning comments submitted by the ICFTU alleging various violations of the Convention. In this connection, and after it had examined these allegations, the Committee would be grateful if the Government, in its next report, would supply further particulars on the following Articles of the Convention:

Article 2, subparagraph (b), of the Convention. At issue is the application of the provision which allows for a distribution of working hours where the hours of work on one or more days of the week are less than eight. By agreement between employers' and workers' organisations or by sanction of the competent public authority, the eight-hour limit may be exceeded, in no case, however, by more than one hour daily.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee requests that the Government provide additional factual information on the actual functioning of these regimes. In particular, the Committee would like to know whether under any of these regimes, working hours are distributed where work hours on one or more days of the week are less than eight hours and, if such distribution does take place, whether the daily limit is exceeded by more than one hour.

Article 2, subparagraph (c). At issue is the application of the provision which states that where persons are employed in shifts, it shall be permissible to employ persons in excess of eight hours in any one day and 48 hours in any one week, if the average number of hours over a period of three weeks does not exceed eight per day and 48 per week.

With reference to the regimes governed by resolution No. 20/88 and resolution No. 5765/86, the Committee would like to know whether under either of these regimes shift work is carried out and, if so, whether the hours of work of those shiftworkers conform to the provisions of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, the Committee requests that the Government provide additional factual information on the actual functioning of these regimes. In particular, the Committee would like further details on the conformity vel non of the shift-work regime operative under the aforecited regulations to this provision of the Convention.

Article 3. At issue is the question of temporary exceptions to the hours-of-work regime set forth at Article 2 of the Convention, under which work hours may be exceeded in cases of accident, urgent work to be done, and of force majeure, but only so far as may be necessary to avoid serious interference with the ordinary working of the undertaking.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how long and to what extent such regimes have functioned in practice and whether or to what extent they continue to function at the present day. Finally, the Committee would like the Government to present its views on whether it regards any or all of these regimes as expressions of "temporary exceptions" in the sense of Article 3 of the Convention and, if so, to state its reasons therefor.

Article 4. At issue is the question of averaging in the case of continuous shift work, under which system of averaging, working hours may not exceed 56 in the week.

The Committee observes that under section 70 of the Labour Code (Codigo de Trabajo (1986)), situations of continuous shift work may be envisaged. Section 70 provides, inter alia, that conditions governing such regimes are established by the State Committee on Labour and Social Security, together with other state bodies, and require the agreement of the appropriate national organisation of workers. The Committee would request that the Government provide further information on regimes governed by section 70 of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations promulgated under section 70 which may be of relevance to the application of this provision of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how such regimes function in practice and whether, in fact, under such regimes continuous shift work is carried out.

Article 5. At issue is the question of the exceptional cases where it is recognised that the provisions of Article 2 cannot be applied. In such cases the workers' and employers' organisations may, by agreements, fix the working hours, provided that the average number of hours worked during a prescribed period of time, shall not exceed 48 hours per week.

The Committee observes that under section 70 of the Labour Code, a regime of work under which hours are averaged across a determined period may be envisaged. Section 70 provides, inter alia, that conditions governing such regimes are established by the State Committee on Labour and Social Security, together with other state bodies, and require the agreement of the appropriate national organisation of workers. The Committee would request that the Government provide further information on regimes governed by section 70 of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations issued under section 70 which may be of relevance to the application of this provision of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how such regimes function in practice and whether, in fact, under such regimes, work which is averaged across a determined period is carried out.

Article 6 of the Convention. At issue is the question of regulations made by the public authority treating work regimes in which permanent and temporary exceptions are involved, following consultations with organisations of employers and workers. Also prescribed is the rate of overtime pay, which shall not be less than one and one-quarter times the regular rate.

The Committee observes that, under Chapter IV of the Labour Code, provision is made for the remuneration of hours worked beyond the normal working hours and that regulations promulgated under this Chapter are to be established by law. The Committee would request that the Government provide further information on regimes governed by Chapter IV of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations promulgated under that Chapter.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee further observes that, considering together the aforecited legislation and the explanations furnished by the Government in its report, labourers working under these regimes apparently are remunerated at a rate which exceeds the statutory rate. Nevertheless, it still is not wholly clear to the Committee whether, given the factual conditions of labour under such regimes, the overtime remuneration scales applicable thereto are the substantial equivalent of overtime as prescribed by this provision of the Convention.

Accordingly, the Committee would request that the Government provide it with additional factual and legal information regarding the actual functioning of these regimes, including information about the remuneration of workers for work performed in excess of hours of work prescribed under this Convention.