Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Articles 2 and 6 of the Convention. Daily hours of work and overtime. Over the years, the Committee has been drawing the Government’s attention to the divergences between the provisions of the Labour Code, particularly sections 136, 139 and 140, and those of the Convention. In its last report, the Government indicates that Bill No. 15.161, certain provisions of which were in conflict with the Convention, was withdrawn from the agenda of the Legislative Assembly and sent back to the Social Affairs Commission. The outcome of the discussions in the Commission is Bill No. 16.030, which is currently being examined by the Human Rights Commission of the Legislative Assembly and on which comments have been made by the Confederation of Workers Rerum Novarum (CTRN). While recognizing the developments in the world of work, CTRN states that the new Bill, far from being an improvement on the previous Bill, proposes amendments to the Labour Code, which are in total contradiction with the provisions of the Convention and which would be to the prejudice of workers in the occupational, social and economic fields. Indeed, for 40 years, many enterprises have opted for the continuous production system, with work being carried out by three teams of workers a day, without it being necessary, as indicated in the Bill, to introduce exceptions to daily hours of work and allow them to be lengthened from eight to ten or even 12 hours. Furthermore, CTRN emphasizes that, although consultations were held with trade union organizations, the opinions expressed were not taken into account.

In addition, the Committee notes that the Government has requested the Office’s advice on the new Bill. In this respect, the Committee notes that, although the Bill is intended to improve conditions of work and to protect the rights of workers, the amendments made are nevertheless contrary to the provisions of the Convention, as the Committee indicated in its previous comment concerning the annualization of working time and the extension of daily hours of work up to 12 hours. Indeed, the Committee wishes to draw the Government’s attention to the following points: first, section 136 of the Bill that is under examination is identical to section 136 of the previous Bill and provides, in subsection 2, for the possibility in work that is not unhealthy or hazardous to accumulate weekly hours of work over a period of five days, introducing a “cumulative” day which may be as long as ten hours. Secondly, section 145 provides that, by way of exception, in the case of seasonal, temporary and continuous work and for activities subject to significant variations in market conditions, production and the supply of raw materials, the normal working day may be extended up to 12 hours or annualized at up to 2,400 hours. In this respect, the Committee notes that, although section 145(2) provides that the limit of 48 hours of work a week must not be exceeded, other provisions in this section allow the working day of eight hours to be exceeded, namely: subsection 4, which provides that annualized ordinary daily hours of work may be extended up to ten hours a day; and subsection 9, which provides that women who are pregnant or who are nursing may not be required to work over ten hours a day.

The Committee is therefore bound to recall once again that the Convention only allows the maximum daily limit of working hours to be exceeded in the very specific conditions set out in Article 2(c) (distribution of working hours over the week) and (d) (averaging over a period of three weeks in case of shift work). The Convention also envisages other exceptions to the general rule of eight hours in any one day and 48 hours in any one week, but only under the strict conditions set out in Articles 2 (accident, urgent work or force majeure), 4 (continuous processes), 5 (averaging of hours in exceptional cases) and 6 (permanent and temporary exceptions). The Committee also refers to paragraphs 85–168 of the General Survey that it published in 2005 on Conventions Nos 1 and 30 concerning hours of work, which provide a detailed analysis of the requirements of the Convention in relation to the distribution of hours of work and the authorized exceptions. The Committee hopes that the Government will take into account the numerous comments that it has made, particularly with regard to the maximum daily hours of work and overtime, so that the provisions of the Labour Code or of any new legislative text are in full conformity with the requirements of the Convention. It also requests the Government to provide any information that it deems useful in reply to the observations of the CTRN.