Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Repetition

Article 2 of the Convention. General standard on daily hours of work – Standby periods. The Committee notes the most recent amendments to the Labour Code, introduced by Act No. 365/2011 Coll., which took effect in January 2012, and Act No. 155/2013 Coll., which took effect in August 2013. In this connection, the Committee notes that section 82 of the Labour Code, which had previously set a maximum limit for working hours scheduled evenly to individual weeks to nine hours, has been repealed, and section 83 now provides for a unified maximum shift length of 12 hours for unevenly and evenly distributed working hours of employees. In reply to comments made by the Czech–Moravian Confederation of Trade Unions (ČM KOS), the Government explains that it does not currently foresee any steps to lower the limit on daily hours of work, as this arrangement gives the employer more flexibility to schedule the hours of work and employees gain longer uninterrupted rest periods. The Committee is bound to recall that the Convention establishes as a general standard an eight-hour working day and 48-hour working week. These limitations on normal working hours laid down in the Convention should be viewed as a strict maximum limits, which are not liable to variation or waiver at the free will of the parties. The Convention allows, of course, for exceptions but only in limited cases and under well-circumscribed conditions.The Committee accordingly requests the Government to take appropriate measures to ensure that the daily limit on the normal hours of work is brought into conformity with the Convention.

In addition, the Committee recalls its previous comment concerning standby periods in which it noted that the term “hours of work” might encompass the time spent on call within the meaning of the Convention, depending on the extent to which the worker is restricted from engaging in personal activities during that time. The Committee notes, in this respect, the Government’s statement that the only material criterion must be the presence or absence of the employee at his/her workplace, and refers in support of that statement to the case law of the European Court of Justice (Simap case C-303/98). The Committee is bound to reiterate the view expressed in paragraph 51 of its 2005 General Survey on hours of work, according to which the time spent on call may or may not be regarded as hours of work within the meaning of the Convention, depending on the extent to which the workers is restricted from engaging in personal activities during that time. With respect to the jurisprudence of the European Court of Justice, reference may also be made to the Jaeger Case (C-151/02) in which the Court placed emphasis not on the employee’s physical presence at the workplace, but rather his presence “at the place determined by [the employer] for the whole duration of periods of on-call duty” therefore subjecting him to “greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required” (paragraph 65). The Committee therefore considers that sections 78(1)(h) and 95(3) of the Labour Code, which provide that standby periods that take place at a location agreed by the employer are not included in working time when work is not immediately performed, are not consistent with the letter and the spirit of the Convention.The Committee accordingly requests the Government to consider the necessary steps in order to ensure that the provisions of the Labour Code on standby periods fully reflect the approach suggested above.

Articles 5 and 6(2) of the Convention. Variable distribution of hours of work over a period longer than a week – Temporary exceptions – Overtime pay. Further to previous comments concerning the averaging of working hours(Article 5), as well as the limitations on overtime and the rate of overtime pay(Article 6(2)), the Committee notes the Government’s statement that it disapproves the rigidity of these standards and that, in the interest of facilitating flexible working time schedules and also favouring solutions freely agreed upon between employers and employees, it has no plans to amend its legislation to bring it into conformity with the Convention. Notwithstanding the Government’s policy options in matters of working time regulation, the Committee draws once again attention to the requirements of the Convention, in particular the need to: (i) limit the use of averaging of working hours to exceptional cases where the normal eight/48-hour limits cannot be applied; (ii) fix reasonable overall limits to the number of overtime hours that may be allowed in the week and in the year; and (iii) provide in all circumstances for the payment of overtime hours at no less than 125 per cent of the ordinary wage rate, irrespective of any compensatory rest granted to the worker concerned.The Committee hopes that in the interest of maintaining a meaningful dialogue with the ILO’s supervisory bodies, the Government will consider appropriate measures to bring the national legislation into closer conformity with the Convention on these matters.