Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the information received from the Government on 10 February 2009 in reply to the observations made by the General Confederation of Labour (CGT). It notes that the Government refers to the preamble of Act No. 789 of 2002, which was the subject of the above observations, and particularly to the objective of the Act, namely to enable job creation without imposing an excessively heavy burden on enterprises. The Committee wishes to raise the following points with regard to the application of the Convention.

Article 2(b) of the Convention. Irregular distribution of weekly hours of work. The Committee notes that section 161 of the Labour Code provides that normal working hours must not exceed eight hours per day or 48 hours per week, except in the case of the listed exceptions. It notes that section 161(d), which was introduced by section 51 of Act No. 789, permits the conclusion of an agreement between the employer and worker under the terms of which weekly working hours will be distributed unevenly in the context of “flexible working days”. In this case, the week must include at least one rest day, and daily hours of work may vary between four and ten hours. The worker is not entitled to a higher rate of pay for the additional hours as long as the weekly working time does not exceed an average of 48 hours worked during the day time (between 6 a.m. and 10 p.m.). The Committee draws the Government’s attention to the fact that, under Article 2(b), of the Convention, a system involving the irregular distribution of weekly hours of work requires the approval of the competent national authority or the conclusion of an agreement between employers’ and workers’ organizations. A simple individual working agreement is not sufficient, in view of the risk of possible abuse, particularly where it enables an employer to vary his employees’ work schedules unilaterally. Furthermore, the Committee notes that, in ruling No. C-038/04 of 27 January 2004, the Constitutional Court considered that this provision was not contrary to the requirements of Convention No. 1. However, the Court did not refer to Article 2(b) of this Convention but to Article 4 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), which provides for a ten-hour limit on daily working hours in cases involving the uneven distribution of weekly working hours. With regard to Convention No. 1, the Court merely quoted Article 2(c) of this instrument, which allows the limits of eight hours per day and 48 hours per week to be exceeded in the specific context of shift work. However, the scope of section 161(d) of the Labour Code is not clearly restricted to shift work. Outside this specific context, the conditions laid down by Article 2(b) of the Convention, which only permits daily hours of work to be extended by one hour in cases where weekly working time is unevenly distributed, must be observed. Under this hypothesis, maximum daily working time is nine hours, and not ten hours as permitted by section 161(d) of the Labour Code. The Committee therefore requests the Government to amend this provision, in order to ensure that schemes involving the irregular distribution of weekly working hours can only be set up in a given establishment with the approval of the competent authorities or further to the conclusion of an agreement on this subject between the representative employers’ and workers’ organizations concerned. This could be done, for instance, in the context of the work of the Committee for the Monitoring and Inspection of Job Creation Policies referred to in sections 45 and 46 of Act No. 789 of 2002. The Committee also requests the Government to reduce the maximum daily working time permitted under such schemes to nine hours. Finally, in view of the fact that the last sentence of section 161(d) of the Labour Code refers to an average of 48 hours of work per week, the Committee requests the Government to clarify whether this provision also permits the irregular distribution of hours of work over a period longer than a week.

Article 6, paragraphs 1(b) and 2. Additional hours – temporary exceptions. The Committee notes that under section 162(2) of the Labour Code, normal hours of work can only be extended with the authorization of the Ministry of Labour and in conformity with ratified international labour Conventions – apart from in a limited number of exceptional cases, for example managerial staff. However, it notes that the Code does not contain any provision stating the cases in which overtime work is authorized, and considers that a mere reference to ILO Conventions is not sufficient in this respect. Apart from certain particular cases, such as shift work and non-stop factory work, or indeed urgent work or situations of force majeure, which are the subject of specific regulations in the Labour Code in line with the provisions of the Convention, overtime work in the context of temporary exceptions is only authorized to enable establishments to deal with exceptional cases of pressure of work. Moreover, such exceptions necessitate the adoption of regulations from the national authority, by a given industry or profession, after consultation of the employers’ and workers’ organizations concerned and stating the conditions under which they are authorized. The Committee requests the Government to indicate whether the authorization from the Ministry of Labour provided for in section 162(2) of the Labour Code is of an individual character or whether these are more general regulations establishing conditions in which overtime work is authorized in the sector of activity concerned. If the latter is the case, the Government is also requested to indicate whether the Ministry of Labour issues its decision after consultation of the employers’ and workers’ organizations concerned. As regards the circumstances justifying overtime work, the Committee requests the Government to take steps to ensure that, apart from in the particular cases listed above (force majeure, shift work, etc.), this possibility is only given to enable employers to deal with exceptional cases of pressure of work.

Limits on the number of additional hours. The Committee notes that section 22 of Act No. 50 of 1990 introduces a new section into the Labour Code (unnumbered and inserted between sections 167 and 168 of the Code), under the terms of which the number of overtime hours may not exceed two per day or 12 per week, and overtime work is not authorized where daily working time is ten hours under an agreement concluded between the employer and worker. The Committee reminds the Government that, even though the Convention only imposes a limit on the number of authorized additional hours of work in each case by means of regulations adopted by the competent national authority after consultation of the employers’ and workers’ organizations concerned, without establishing a specific ceiling in this regard, the limit to be established at national level must remain reasonable. As the Committee emphasized in its General Survey of 2005 on hours of work (paragraph 144), “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 undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life”. However, the possibility of working 12 additional hours per week, if not accompanied by a monthly or annual limit, would amount to an authorization of hundreds of hours of overtime work per year. In the abovementioned General Survey (footnote 89, paragraph 144), the Committee recalls that it was concluded from the preparatory work for the Convention that the limits considered to be permissible amounted to 150 hours per year in the case of temporary exceptions or 100 hours per year for non-seasonal activities. The Committee therefore requests the Government to take the necessary steps to establish a reasonable monthly or annual limit on the number of additional hours which may be worked in the context of temporary exceptions.