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

Article 2, paragraph 3, of the Convention. Exclusion of public holidays and absence from work due to sickness from the annual holiday with pay. The Committee notes the Government’s indications that the Labour Code could be amended when its provisions are reviewed so as to ensure that public holidays are no longer counted in the duration of annual holidays with pay. It requests the Government to provide information on any development in this respect. With regard to absence from work due to sickness, the Committee notes that, under the terms of section 149 of the Labour Code, periods of unavailability due to employment accident or occupational disease or, up to a maximum of six months, absences for medically certified illness are considered as periods of work for the determination of holiday entitlement. However, it draws the Government’s attention to the fact that this provision relates to the inclusion of such absences in the period of service giving entitlement to annual holidays, and not their exclusion from the annual holiday itself, as required by Article 2, paragraph 3, of the Convention. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that absences from work due to sickness are not deducted from the annual holiday to which the worker is entitled.

Article 8. Sanctions. The Committee notes the Government’s confirmation in its report that the national legislation does not establish sanctions for violations of sections L.160 and L.162 of the Labour Code. However, it wishes to emphasize the importance of a system of sanctions to ensure compliance with labour legislation, particularly with regard to section L.162 of the Labour Code under which any agreement is null and void which seeks to replace annual holidays with pay by cash compensation, as the violation of this provision would deprive the Convention of any useful purpose. It hopes that the Government will take measures rapidly to amend the Labour Code so as to impose sanctions in cases of violations of the rules established by sections L.160 and L.162 of the Labour Code, for example by including these provisions in the list of violations contained in section L.325 of the Labour Code.

Part V of the report form. The Committee notes the annual report for 2005 of the National Directorate of Labour, which was attached to the Government’s report provided in 2007 under the Labour Inspection Convention, 1947 (No. 81). It notes that, during the reference period, a total of 1 278 individual disputes, of which 184 related to holidays with pay, were referred to the regional directorates of labour, employment and vocational training. It further notes that, over the same period, 213 enterprises were inspected and it understands that violations of the legal provisions respecting annual holidays with pay were not reported. The Committee also notes the participation of representatives from Mali in the subregional workshop to reflect on the relations between labour administration and labour courts, held in Dakar in May 2008. It notes the recommendations formulated by this workshop for labour inspectors, magistrates in courts of law and labour courts, and the State. It hopes that the implementation of these recommendations will provide a basis for strengthening the enforcement of the Convention in the country and requests the Government to continue providing information on the application of the Convention in practice, including information on the number of workers covered by the relevant legislation, the number and nature of the violations reported of the legislation on annual holidays with pay and any measures taken in response.

The Committee also takes this opportunity to recall that, following the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Convention No. 52 was outdated and invited the States parties to this Convention to envisage the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not considered to be fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 in respect of employed persons in economic sectors other than agriculture by a Member which is party to Convention No. 52 ipso jure involves the immediate denunciation of Convention No. 52. This would appear all the more appropriate as legislation of Mali, which provides for basic annual holidays with pay of 30 calendar days (as well as additional leave of up to six calendar days based on seniority), is clearly more favourable than the requirements of Convention No. 52, and would appear to reflect most of the requirements of Convention No. 132. The Committee requests the Government to envisage the ratification of Convention No. 132 and the adoption of any legislative amendments that may be necessary, and to keep the Office informed of any decision that may be taken in this respect.