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

Article 5(a) of the Convention. Young workers. The Committee notes that section 121(1) of the Employment Act of 1980 provides for an annual holiday of at least two weeks after 12 months of service and that section 8(1) of the Regulation of Wages (Agricultural Industry) Order, 2000 provides that, after 12 months of service, workers shall be entitled to an annual holiday of at least 12 working days. It notes that these provisions do not establish special treatment for young workers with regard to annual holiday. In this regard, the Committee draws the Government’s attention to the provisions of Article 5(a) of the Convention, under which, where appropriate, more favourable treatment shall be applied to young workers, including apprentices, in cases in which the annual holiday with pay granted to adult workers is not considered adequate for young workers. The Committee would be grateful if the Government would indicate any measures that it is considering taking to increase the duration of the annual holiday with pay of young workers.

Article 5(b). Increase in the duration of the paid holiday with the length of service. The Committee notes that the Employment Act and the Regulation of Wages (Agricultural Industry) Order do not provide for the gradual increase in the duration of the paid holiday based on length of service, as recommended by Article 5(b) of the Convention. It requests the Government to keep the Office informed of any steps it might take to implement this provision of the Convention.

Article 5(c). Proportionate holiday. The Committee notes that section 121(1) of the Employment Act and section 8(1) of the Regulation of Wages (Agricultural Industry) Order establish a minimum period of service of 12 months for entitlement to annual holiday with pay. It also notes that section 123(1) of the Employment Act and section 8(2) of the above Order provide that, if a worker’s period of service is more than three months but less than one year at the time of termination of the employment relationship, the worker shall be entitled to holiday compensation equivalent to one day’s wages per month of service. However, Article 5(c) of the Convention provides for the granting of proportionate holiday to workers who have not completed the minimum period of service to qualify for an annual holiday with pay without restricting this right to cases of termination of the employment contract. The Committee therefore requests the Government to indicate the measures taken or envisaged to extend the right to proportionate holiday to cases in which the employment relationship continues between the employer and worker concerned.

Article 5(d). Exclusion of periods of sick leave from the annual holiday with pay. The Committee notes that, under section 136 of the Employment Act, employees do not qualify for annual holiday with pay if they are absent for more than 36 weeks during the year, except if this absence is justified and, in particular, if it is due to an illness certified by a doctor. It notes that this provision only concerns the acquisition of holiday entitlement and not the exclusion of sick leave from the annual holiday with pay to which workers are entitled. The Committee therefore requests the Government to indicate whether temporary interruptions of attendance at work due to such causes as sickness or accident are excluded from the annual holiday with pay, as provided for under this provision of the Convention.

Article 11 and Part V of the report form. Application in practice. The Committee requests the Government to provide information on the application of the Convention in practice and, in particular, statistics on the number of agricultural workers covered by the national legislation relating to annual holidays with pay and extracts from reports of the labour inspection services indicating the number and nature of violations reported on this matter and the follow-up action taken.

Finally, the Committee requests the Government to keep the Office informed of any progress made in adopting the draft new Employment Act and the extent to which the technical comments made by the ILO on this draft have been taken into account in drawing up the final version of the text.

The Committee also takes this opportunity to recall that, following a proposal by the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Convention No. 101 is outdated and invited the States parties to this Convention to consider the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which, although not deemed fully up to date, remains relevant in certain respects (see GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 in respect of persons employed in agriculture by a State party to Convention No. 101 shall ipso jure involve the immediate denunciation of that Convention. The Committee considers that the ratification of Convention No. 132 would be all the more appropriate given that the legislation of Swaziland concerning annual holiday with pay is of general application, even if, for the time being, it does not provide for a holiday duration corresponding to the minimum duration required by Convention No. 132. It recalls that the Government could draw upon, if necessary, the technical assistance of the ILO in connection with legislative changes which might be necessary following the possible ratification of Convention No. 132, and requests it to keep the Office informed of any decision that it might take in this regard.