Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Repetition

Article 2 of the Convention. General standard on hours of work and permissible exceptions. The Committee notes that, under section 113(2) of the Labour Code, as last amended in 2006, upon giving their express agreement in writing, employees may work for more than 48 hours per week. It also notes that, under section 110 of the Labour Code, employees may conclude employment contracts with the employer for whom they are working for the performance of work outside their normal working hours. The Committee draws the Government’s attention to the requirement of the Convention which does not allow “opting-out” from its provisions that limit exceptions it permits. It therefore considers that, in its current reading, the Labour Code permits exceptions to the general standard of eight hours a day and 48 hours a week under conditions that go far beyond those prescribed by the Convention representing a real risk of abuse and a major threat for the worker’s health and welfare. In this regard, the Committee wishes to draw the Government’s attention 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 the Convention, 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 excessive fatigue and to ensure reasonable leisure and opportunities for recreation and social life. While noting that the opting-out clause has been the main obstacle to the efforts to revise European Working Time Directive 2003/88/EC, the Committee requests the Government to indicate the measures it intends to take in order to bring the national legislation into full conformity with the requirements of the Convention.

Article 2(b). Variable distribution of working hours within a week. The Committee notes that section 136a(2) of the Labour Code permits an employer to extend working hours in some workdays and compensate that in other workdays after consulting with workers’ representatives and on condition that the duration of the extended work day may not exceed ten hours. The Committee recalls, however, that the Convention permits the variable distribution of working hours within a week provided that in no case the daily limit of eight hours be exceeded by more than one hour. The Committee therefore requests the Government to take all necessary measures in order bring the relevant provisions of the Labour Code into line with the requirements of the Convention in this regard.

Articles 2, 4 and 5. Variable distribution of working hours over a period longer than a week. Further to its previous comment, the Committee notes that section 142(4) of the Labour Code, as last amended in 2006, still provides that, with relation to the averaging of hours of work, the maximum duration of a work shift can be up to 12 hours and the maximum duration of the working week can be up to 56 hours. The Committee observes that the scope of this provision is broader than the exceptions permitted by the Convention with respect to shift work in general, shift work in continuous processes. Concerning shift work in general (Article 2(c)), the Convention allows work to be performed in excess of eight hours in one day and 48 hours in any one week, only if the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. With respect to shift work in continuous processes (Article 4), the Convention sets the limit of 56 hours in the week on average. Finally, as regards the averaging of hours of work (Article 5), the Convention provides that, only in exceptional cases where it is recognized that the general standard of an eight-hour working day and 48-hour working week cannot be applied, agreements concluded between employers and workers’ organizations can be transformed by the competent authority into regulations provided that the average number of hours worked per week over the number of weeks covered by such agreements does not exceed 48. The Committee accordingly asks the Government to take all necessary measures in order to amend section 142(4) of the Labour Code so as to bring the provisions of the national legislation on the averaging of hours of work into conformity with the requirements of the Convention. In addition, the Committee requests the Government to refer to the comments made under Article 6 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30).

Article 6. Permanent and temporary exceptions. Following up on its previous comment concerning the possibility to establish open-ended working hours under section 139(4) of the Labour Code, the Committee notes with interest that this provision has been repealed following the latest amendment of the Labour Code (SG No. 48/2006). Moreover, the Committee has been requesting the Government to determine precisely the categories of workers which, due to the special nature of their work, may be excluded permanently from the limits of Article 2, in line with Article 6 of the Convention. Whereas the Government refers to section 113 of the Labour Code and the possibility for workers to conclude individual “opting-out” agreements, the Committee is once again obliged to recall that, according to Article 6(1)(a) of the Convention, permanent exceptions may be allowed only in preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment (for instance, enginemen, electricians, cleaners), or for certain classes of workers whose work is essentially intermittent (for instance, doorkeepers, watchmen and works firemen). The Committee therefore requests the Government to take all appropriate steps in order to bring its legislation into full conformity with the Convention on this point.