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

Article 1 of the Convention. Scope of application. The Committee notes that, under the terms of section 4 of the Labour Code, persons whose employment is regulated by special legislation are excluded from the scope of the Labour Code. It requests the Government to specify the categories of workers so excluded from the scope of the Labour Code and to provide a copy of any legislation respecting annual holidays with pay that is applicable to them. The Committee also notes section 18(2) of the Labour Code, which provides that the Council of Ministers may make special rules covering homeworkers, temporary workers and employees in construction, transport, mines and ports. It requests the Government to provide a copy of any text adopted under this provision establishing special rules respecting annual holidays with pay for the workers concerned.

Article 2, paragraph 3. Sick leave and public holidays. The Committee notes that, in accordance with section 92 of the Labour Code, the duration of annual holidays with pay is defined by the collective contract or the individual contract of employment and may not be less than four calendar weeks. It further notes that, under section 93(2) of the Labour Code, an employee who is absent from work because of sickness or accident may request postponement of the annual holidays. It is the Committee’s understanding that this provision refers to cases in which the accident or illness occurs before the beginning of the annual holidays and accordingly allows the employee concerned to request postponement of the holidays. With regard to sickness or accidents occurring during the annual holidays, the Committee notes the Government’s indication that in practice the employer defers the leave to which the worker is entitled upon the presentation of a medical certificate. The Committee requests the Government to indicate whether it is planning to take measures to make this practice compulsory by introducing a provision to this effect into the Labour Code. The Committee also notes that, according to the Government’s report, if the period of annual holiday includes public holidays, the leave is extended by the corresponding number of days. It requests the Government to indicate the provisions guaranteeing that public holidays are in practice excluded from the duration of annual holidays, as required by this Article of the Convention.

Article 4. Relinquishment of annual holidays. The Committee notes that, in its report, the Government refers to section 97(2) of the Labour Code, under which any specific provision which undermines the right of workers to annual holidays with pay is void. It also notes that, under section 93(3) of the Labour Code, annual holidays must be given during the year or, at the latest, until the end of the first quarter of the following year. However, it notes that subsection 4 of the same section provides that the right to annual holidays is only valid for three years. The Committee requests the Government to indicate the manner in which it is ensured in practice that any agreement to relinquish the right to annual holidays with pay is void, considering that it is possible for the parties to conclude an agreement under which the worker would not take the annual holidays to which he/she is entitled, such entitlement being lost three years.

Part V of the report form. The Committee notes that, during the period covered by the Government’s report, around 6,000 inspections were carried out but no infringements were identified of the rules respecting annual holiday with pay. It requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, copies of collective agreements containing clauses respecting annual holidays, extracts from reports of the inspection services and, if such statistics are available, information concerning the number of workers covered by the relevant legislation, the number and nature of contraventions reported and the measures taken, etc.

The Committee also takes this opportunity to recall that, at the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that the Convention was outdated and invited the States parties to the Convention to contemplate ratifying Convention No. 132, which is not considered fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of persons employed in economic sectors other than agriculture by a State party to the Convention ipso jure involves the immediate denunciation of Convention No. 52. The ratification of Convention No. 132 all the more appropriate as the legislation of Albania, which provides for an annual holiday of at least four weeks, is clearly more favourable than the requirements of Convention No. 52. The Committee requests the Government to keep the Office informed of any decision that it may take with regard to the ratification of Convention No. 132.