Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

The Committee notes the information supplied by the Government in its last report, including the replies to its previous comments. Following its examination of Act No. 18620 of 6 July 1987 respecting the Labour Code, which repeals the previous provisions on which its earlier comments had been based, the Committee notes that the divergencies that it had pointed out with certain provisions of the Convention persist in the new Labour Code.

Article 2(b) of the Convention. Section 39 of Legislative Decree No. 2200 of 1978 (as amended by Act No. 18018 of 10 August 1981 and Act No. 18372 of 12 December 1984), which limited the working week to five days (nine hours 30 minutes per day) and the working day to ten hours per day, while maintaining the working week at 48 hours, was considered to be contrary to this provision of the Convention, which sets the maximum limit of nine hours on the working day in public or private industrial undertakings. Section 27 of the new Labour Code contains identical provisions. The Committee notes that the division of the working week into five days, which results in working days of nine hours and 36 minutes, is recompensed by an additional weekly rest day. It also notes the Government's concern not to establish a difference in the legal treatment of industrial workers and those in commerce, for whom the working day may reach ten hours. However, the Committee considers that there remains a discrepancy with Article 2(b) of the Convention and requests the Government to take the necessary measures to prevent the working day exceeding by 30 minutes the nine hours admitted by this provision of the Convention.

Article 6. Section 42 of Legislative Decree No. 2200, which permitted the parties to agree that up to two additional hours daily could be worked in jobs which, by their nature, do not harm the health of the workers, and section 43(2), which authorised as overtime hours those hours worked in excess of the established working hours, with the employer only being aware of them, had been considered to be contrary to the provisions of this Article of the Convention. In fact, Article 6, paragraph 1(b) lays down that temporary exceptions to normal working hours may be permitted to allow establishments to deal with exceptional cases of pressure of work, and Article 6, paragraph 2, lays down that the maximum of additional hours that may be authorised must be fixed in advance. The Committee here again notes that sections 30 and 31 of the new Labour Code allow these earlier discrepancies to persist. It requests the Government to take the necessary measures so as to only permit exceptions to normal working hours in the cases set out in the Convention and to fix in advance the maximum number of additional hours that may be authorised. It points out that a limit of two additional hours per day without a reasonable annual limit could give rise to abuses and would be definitely contrary to the spirit in which the Convention was formulated.

The Committee trusts that the Government will take measures in the near future to bring its legislation into full conformity with the Convention.