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

Article 1 of the Convention. Scope of application – Homeworkers and telework. The Committee notes the Government’s indication that workers who work at home or in a place chosen by them, as well as those who perform their work outside the enterprise and by IT means and telecommunication tools, continue to be excluded from the rules respecting the limitation of hours of work. In this respect, the Committee draws the Government’s attention to the fact that Article 1, paragraph 3, of the Convention envisages specific and limited possibilities for exemption, namely: (i) establishments in which only members of the employer’s family are employed; (ii) offices in which the staff is engaged in connection with the administration of public authority; (iii) persons occupying positions of management or employed in a confidential capacity; and (iv) travellers and representatives, in so far as they carry on their work outside the establishment. The Committee once again requests the Government to take the necessary measures to ensure that the hours of work of homeworkers do not exceed eight in the day and 48 in the week.

Article 6. Working hour limits – Exceptional cases. Further to its previous comment, the Committee notes the Government’s indication that the Labour Directorate has determined a series of criteria through which any discretionary and arbitrary decision can be avoided when establishing exceptional systems for the distribution of hours of work and periods of rest under section 38(6) of the Labour Code. It also notes the indication that, even in exceptional cases, maximum weekly working time may not exceed 45 hours. In this respect, the Government refers to a form for applications to introduce an exceptional system. The Committee requests the Government to specify the criteria referred to above (and to indicate the law or regulation which provides that the limit of 45 hours in the week also applies to exceptional systems) and to provide a copy of the form for the application to introduce an exceptional system, which was not attached to the Government’s report.

Distribution of hours of work over a period longer than one week. Further to its previous comment concerning section 39 of the Labour Code respecting labour outside urban centres, the Committee notes the explanations provided by the Government that the fact that normal hours of work are spread over periods of two weeks without interruption is justified in particular in cases in which the distance between the usual place of residence and the place of work is so great that the ordinary system of distribution of hours of work is not applicable and the workers must necessarily spend the night at their workplace. The Committee recalls that the distribution of hours of work over a period in excess of one week can only be authorized by regulations made by the public authority and on condition that the average hours of work calculated over the number of weeks in consideration does not exceed 48 hours in the week. The Committee requests the Government to take the necessary measures to bring the legislation into conformity with the provisions of the Convention on this point.

Article 7. Temporary exceptions – Commercial employees. The Committee notes the Government’s reference to Act No. 20.215 of 10 September 2007 which limits to nine days the period during which the normal hours of work of commercial employees may be extended before Christmas. However, the Committee is bound to recall that such exceptions require the adoption of regulations after consultation with the organizations of employers and workers concerned. These regulations must determine the number of additional hours of work which may be allowed not only in the day, but also in the year. The Committee requests the Government to take the necessary measures to bring the legislation into conformity with the Convention on this point.

Ministries and public services. In the absence of information on this subject, the Committee once again requests the Government to provide examples of cases in which the administrative authorities have made use of section 60 of Act No. 18.834 and to indicate the maximum number of additional hours that may have been determined in each case.

Part V of the report form. Practical application. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice including, for instance, extracts from the reports of the inspection services indicating the number of violations reported in relation to hours of work and the sanctions applied, information on the number of workers covered by the legislation, copies of relevant collective agreements, etc.

The Committee also notes that the Government has not provided any further information on the Bill to amend the Labour Code with a view to providing greater flexibility in relation to hours of work. It further notes that, among the many draft texts that are currently being adopted, there is a Bill to reduce the working week to 42 hours as from January 2009. The Committee requests the Government to keep the Office informed of any development in this field and to provide a copy of any relevant text as soon as it is adopted.