Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 2, paragraphs 2 and 3, of the Convention. Uniformity and the day on which the weekly rest is granted. The Committee notes the Government’s statement that it is impossible to prescribe a single unified rule in view of the variety of complex modes of operation of industries and enterprises. The Committee, however, considers that section 17(2) of Decree-Law No. 24/89/M, which provides that the weekly leave of every worker should be planned by the employer in advance and according to the needs of the company, does not give full effect to Article 2(2) and (3) of the Convention, under the terms of which the period of weekly rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking and should coincide with the days already established by the traditions or customs of the country or district. In this respect, the Committee recalls that the Convention is based on three principles: regularity (24 hours rest in every period of seven days), continuity (a period of rest comprising at least 24 consecutive hours) and uniformity (the day of rest should in principle be the same for everyone). As the Committee emphasized in paragraphs 97 and 98 of its General Survey of 1964 on weekly rest in industry, commerce and offices, “weekly rest … if taken simultaneously, enables workers to enjoy their leisure hours together … Even in the absence of express provisions, the fact that a particular day of the week is prescribed for the weekly rest is sufficient to ensure uniformity”. Furthermore, the Committee considers that the exceptions to the weekly rest period referred to by the Government presuppose the existence of a basic principle. The Committee therefore requests the Government to take the necessary measures to bring its legislation into conformity with the Convention on this point.

Article 4, paragraph 1 (read in conjunction with Article 6, paragraph 1). Total or partial exceptions. The Committee notes the Government’s indication that, although section 18 of Decree-Law No. 24/89/M, which provides that whenever it is not possible to apply the regulation on the weekly rest period of 24 hours to subsectors of activity, the employer shall give the worker a period of four consecutive days’ rest for every four weeks worked. Although the Decree Law does not enumerate the sectors, professions or enterprises concerned, this does not imply that employers are free to delay the weekly rest, as the enterprise must justify itself by presenting proof to show that the normal weekly rest scheme cannot be applied before any exception can be granted. In this respect, the Committee wishes to recall that total or partial exceptions to the weekly rest scheme have to: (i) have regard to all proper humanitarian and economic considerations; and (ii) be authorized after consultation with the representative organizations of employers and workers concerned. Furthermore, Article 6(1) of the Convention provides that each Member has to draw up a list of the exceptions made under Article 4. The Committee therefore reiterates its request and asks the Government to indicate: (i) the manner in which social considerations, and not only economic considerations, are taken into account in relation to total or partial exceptions to the weekly rest scheme; and (ii) the types of establishment currently covered by special weekly rest schemes, with an indication of the number of workers covered by these exceptions and an explanation of why the weekly rest day is postponed.

Article 7. Notices and rosters. The Committee notes the indication that there are no legislative provisions requiring employers to post notices or keep rosters of weekly rest periods. It further notes that the draft new Law on Labour Relations is currently being examined and will contain provisions on this matter. The Committee requests the Government to keep the Office informed of any developments in this field and to provide a copy of the new legislative text once it has been adopted.

Part V of the report form. Application in practice. The Committee notes the detailed information provided by the Government for the period 2003–06. It requests the Government to continue providing general information on the application of the Convention in practice, including statistics on the number of workers covered by the legislation giving effect to the Convention, extracts from the reports of the inspection services indicating the number of contraventions reported to the rules respecting weekly rest and the penalties imposed in this respect, copies of collective agreements containing clauses respecting weekly rest, etc.