Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

1. The Committee notes the comment of the Confederation of the Independent Trade Unions in Bulgaria (CITUB) on existing inconsistencies between Ordinance No. 50/28.12.2001 on the working hours for the management and executive personnel providing transportation of passengers and goods by rail and the provisions of the Convention. The CITUB points out that the time needed for the regular medical check-up, as well as for briefing and debriefing before and after work, appears not to be calculated as working time under section 13 of the Ordinance. Thus, the limits set by the Convention are exceeded. The Committee requests the Government to comment on the observation of the CITUB and to provide it as soon as possible with a copy of the Ordinance in order to enable it to analyse the compatibility between the Ordinance and the provisions of the Convention. With regard to the title of the Ordinance, the Committee merely recalls that the Convention shall not apply to persons holding positions of supervision or management (Article 2(a) of the Convention).

2. Act No. 25/2001 of 2 March 2001 to amend and supplement the Labour Code of Bulgaria implemented the full transition from the six-day working week to the five-day working week with an ordinary working time of eight daily and 40 weekly hours. The Committee notes the indication of the Government that further legislative action is under way to bring the Labour Code in line with the provisions of the Convention.

Article 2 of the Convention

3. Concerning the possibility of supplementary employment contracts, as regulated under sections 110-117 of the amended Labour Code, the Committee notes in particular the indication of the Government that the Bill on amendment and supplement of the Labour Code envisages that the weekly limit of working hours of a primary employment relationship with a supplementary employment relationship may not exceed 48 hours in total. The Committee hopes that the Bill will soon be adopted and requests the Government to provide it with a copy of the Act, once adopted.

4. The Committee notes that Amendment Act No. 25/2001 implemented a new section 136(a) in the Labour Code, which authorizes the employer to extend, for industrial reasons, the working time up to ten hours a day upon preliminary consultations with the representatives of the workers, and after information of the labour inspectorate. The Committee recalls that two additional working time hours arranged by the employer may be only permissible under the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), in establishments engaged in commercial activities and services. Within industrial undertakings, Article 2(b) of the Convention allows for recourse to an irregular distribution of normal working hours, but within the limit of only one more hour in addition to the standard eight-hour day. The Committee requests the Government to provide detailed data and figures on this provision of the Labour Code with regard to industrial undertakings.

5. Article 4. The Committee notes furthermore that the Amendment Bill envisages for section 142, paragraph 4, of the Labour Code a limit of 56 weekly hours for shift work under summarized calculation, where working hours can be up to 12 hours. The Committee recalls that the exceptional provision of Article 4, which allows that working hours may be up to 56 in the week on average are only permissible for shift work in continuous production processes, which is distinct from shift work under Article 2(c). It asks the Government to take this into consideration in the drafting process. For ordinary shift work, as for any other work, the limits to hours of work fixed by Article 2 of the Convention are obligatory, notwithstanding the permanent or temporary exceptions expressly set forth in the Convention. With regard to section 142, paragraph 2, of the Labour Code, which permits the employer to average the weekly hours over a reference period of up to four months, the Committee refers to its direct request under the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30). Concerning industrial undertakings, working time for work other than shift work is limited under the provisions of Article 5 of the Convention to exceptional cases where it is recognized that the ordinary working hours cannot be applied, and the average working time per week must be limited to 48 hours.

6. Article 6, paragraph 1(a). While the former section 139, paragraph 4, restricted the possibility to establish open-ended working hours for some categories of workers to the authorization by the Ministry of Labour, Amendment Act No. 25/2001 now authorizes the individual employer, upon consultation with the representatives of the workers, to establish for some categories of workers, due to the special nature of their work, open-ended working hours.

The Committee recalls that exceptions from the ordinary working hours under Article 2 are only permitted by agreements between workers’ and employers’ organizations, as set forth in Article 5 of the Convention, whereby the average number of hours worked shall not exceed 48 hours, or in line with Article 6 of the Convention by regulations made by the public authority by determining the permanent exceptions from the provisions of Article 2. The Committee stresses that "open-ended working hours" are not permitted under Article 6, which stipulates the need to fix the additional hours in each instance.

Furthermore, the Committee recalls that permanent exceptions are only permissible for preparatory or complementary work which must be necessarily carried on outside the limits laid down for the general working of an establishment, or for certain classes of workers whose work is essentially intermittent. The Committee requests the Government to determine precisely the categories of workers which, due to the special nature of their work, may be excluded permanently or temporarily from the limits of Article 2, in line with Article 6 of the Convention. In particular, the Government is asked to fix the maximum of additional hours in each instance and to inform the Committee accordingly.

The Committee also requests the Government to provide it with detailed data and figures on categories of work in industrial undertakings where the ordinary working hours as established under Article 2 of the Convention may not be applied.