Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Article 7, paragraphs 2 and 3, of the Convention. Temporary exceptions - annual limits to additional hours. In the comments that it has been making since the adoption of the Labour Code in 1971, the Committee has requested the Government to bring section 36(4) of the Labour Code in line with the provisions of Article 7, paragraph 3, of the Convention, which require the determination of the number of additional hours of work allowed in the year.

Under section 35(2) of the Labour Code, a collective agreement may set forth the obligation for workers to perform additional hours, within the statutory limits and on the condition that the worker has agreed to this obligation in the employment contract. Section 36(4) of the Labour Code sets the maximum number of additional hours allowed at three in the day and nine in the week. However, as indicated above, Article 7, paragraph 3, of the Convention provides that regulations allowing the performance of additional hours as a temporary exception have to determine the number of additional hours of work which may be allowed in the day and in the year. This rule applies whether or not an agreement has been made with the worker to perform additional hours.

In its report, the Government maintains the position that it adopted in its previous report. It indicates that the situation of the country is not sufficiently favourable to amend the Labour Code and that there is no consensus among the social partners on this subject. It adds that the Government has entered a pre-electoral period and hopes that a solution can be sought when the new administration is in office.

The Committee wishes to emphasize that the provisions of the Convention constitute a minimum threshold and that nothing prevents States from setting out more favourable provisions in their legislation. The flexibility clauses contained in the Convention merely allow member States, under certain conditions, to adapt the rules respecting working time so as to take into account the national situation. If the Government considers that the application of these flexibility clauses would be contrary to the national legislation, this does not raise specific problems for the application of the Convention. For example, in its report in 2002, the Government expressed concern at the possibility provided by Article 6 of the Convention, in exceptional cases, to distribute hours of work over a period longer than the week. The Government’s attention is drawn to the fact that this is merely a possibility, and in no case an obligation upon States.

In any event, the Government has made use of the flexibility clause contained in Article 7, paragraph 2, of the Convention by authorizing the performance of additional hours. As a consequence, the conditions set out in this provision, including the determination of the maximum number of additional hours which may be allowed in the year, have to be complied with.

The Committee regrets that the Government has not so far followed up the Bill formulated in the context of the direct contacts mission in 1977, which set at 250 the maximum number of additional hours which may be allowed in the year. It urges the Government take the necessary measures to bring the legislation into conformity with the Convention on this point and notes that, if it so wishes, it may call upon the ILO for technical assistance.

[The Government is asked to reply in detail to the present comments in 2005.]