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

The Committee notes the adoption of the Labour Act, 2006 (Act No. XLII of 2006), which repeals the Shops and Establishments Act, 1965 (Act No. VII of 1965), that previously gave effect to the provisions of the Convention. It notes with satisfaction that, contrary to the Shops and Establishments Act, 1965, which applied to businesses of five and more employees, the new Labour Act applies to all shops and commercial establishments irrespective of the number of employees, city corporations or municipal areas – a point on which the Committee had been commenting for a number of years.

Article 2 of the Convention. Scope of application. The Committee notes that the Labour Act, 2006, in its section 1(4)(a)(i), continues to exclude from its scope of application offices of, or under, the Government as well as any shop and commercial establishment owned and directly managed by the Government. It understands that, in accordance with the Negotiable Instruments Act, 1881, the weekly rest periods for civil servants continue to be regulated by means of Government executive orders. The Committee would be grateful if the Government would provide additional clarification in this respect and specify the instruments currently governing the weekly rest entitlement of public employees.

Article 6. Weekly rest day. The Committee notes that under section 103(a) of the Labour Act, 2006, workers employed in shops and commercial enterprises are entitled to one-and-a-half days of weekly holiday which, of course, exceeds the minimum 24-hour requirement set out in this Article of the Convention. However, recalling that section 4(1) of the now repealed Shops and Establishments Act, 1965, provided for one-and-a-half days consecutive holidays in each week, the Committee requests the Government to clarify how it is ensured in law and practice that workers are granted an uninterrupted period of rest of at least 24 hours in the course of each period of seven days. Moreover, noting that the weekly rest day may vary from one area to another and also that it may be changed in the public interest, the Committee requests the Government to explain how it is ensured in practice that weekly rest, wherever possible, is given simultaneously and coincides with the day established as a day of rest by the traditions or customs of the country.

Article 7. Permanent exemptions. The Committee notes that, under section 114(5) of the Labour Act, 2006, the normal one-and-a-half days’ weekly rest period does not apply, among other establishments, to shops dealing with vegetables, meat, fish, dairy products, bread, pastries, sweetmeats and flowers; shops dealing mainly in medicines, surgical appliances, bandages or other medical requisites; shops dealing mainly in tobacco, cigars, cigarettes, liquid refreshments, newspapers or periodicals; barbers’ and hair dressers’ shops; clubs, hotels, restaurants, catering houses, cinemas or theatres. It also notes that the opening or closing hours of these shops and establishments are fixed by order of the Chief Inspector. The Committee requests the Government to provide more detailed information, including copies of any relevant texts, on the special weekly rest schemes applicable to the above businesses and also to indicate whether consultations with representative employers’ and workers’ organizations have been held in this regard, as required by this Article of the Convention.

The Committee further notes that under section 104 of the Labour Act, persons working on a weekly rest day are to be given compensatory rest of an equal duration “as soon as circumstances permit”. Formulated in such general terms, the legislation seems to offer little guarantee that workers will not need to wait excessively long before they can take their compensatory rest. The Government’s attention is drawn to Paragraph 3 of the Weekly Rest (Commerce and Offices) Recommendation (No. 103), which indicates that persons to whom special weekly rest schemes apply should not work for more than three weeks without receiving the rest periods to which they are entitled. The Committee requests the Government to provide additional explanations in this regard.

Article 8. Temporary exemptions. The Committee notes that the Labour Act, 2006, in section 104, refers to exemption orders and rules but does not specify the grounds on which temporary exemptions to the normal weekly rest scheme may be granted. Recalling that the Convention allows for temporary exemptions only on limited and well-defined grounds, namely: (i) accident, force majeure or urgent work; (ii) abnormal pressure of work due to special circumstances; and (iii) in order to prevent loss of perishable goods, the Committee requests the Government to explain how it is ensured in law and practice that temporary exemptions from the normal weekly rest scheme are authorized only on those grounds.

Article 9. Reduction of income. The Committee notes that the new Labour Act, 2006, does not contain any provision prohibiting deductions from wages on account of weekly rest, except for those employed in road transport services. Recalling that section 4(2) of the now repealed Shops and Establishments Act, 1965, expressly prohibited deductions on account of weekly holidays to be made from workers’ wages, the Committee requests the Government to specify how this Article of the Convention is given effect in law and practice.

Part V of the report form. The Committee would appreciate receiving up to date information on the practical application of the Convention, including, for instance, statistics on the approximate number of workers covered by the relevant legislation, labour inspection results showing the number of contraventions observed concerning weekly rest and sanctions imposed, copies of collective agreements containing provisions on weekly rest, etc.