Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 2 of the Convention. Minimum weekly rest. In Judgement No. 10.842-2001 issued on 24 October 2001, the Constitutional Chamber of the Supreme Court of Justice ruled on the validity, in relation to article 59 of the Constitution and the provisions of the Convention, of section 152(1) of the Labour Code, under which "every worker is entitled to one day of rest after a week or after six days of continuous work". The Court concluded that this provision is in conformity with the Constitution and the Convention only if it is interpreted as not offering the choice to the employer to grant a day of rest after six or seven days of work but as covering two different de facto situations. The granting of a day of rest after a week of work cannot concern workers who work every day of the week. It is concerned with protecting those whose work is not continuous, who only work certain days of the week or who work on a piece-rate basis. The Committee notes with interest this Judgement, which confirms that section 152 of the Labour Code must be interpreted in such a way as to ensure conformity with the provisions of the Convention, particularly Article 2, which prescribes the granting of a period of rest comprising at least 24 consecutive hours in every period of seven days.

Articles 4 and 5. Exceptions to the rules on weekly rest. In its previous comments, the Committee requested the Government to clarify whether section 152 of the Labour Code authorizes the introduction of special schemes applicable on a permanent basis or permits adjustments to the normal weekly rest scheme for temporary reasons.

In reply to the Committee’s observation, the Government indicates that the competent authorities have not adopted measures for introducing special weekly rest schemes for economic or humanitarian reasons. Section 152(3) of the Labour Code permits an adjustment to the rules on weekly rest in industrial undertakings meeting certain conditions. It provides for the possibility, if an agreement exists between the parties concerned, to work on the weekly rest day in industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy or for an obvious public or social interest. In accordance with the spirit of the national legislation, the possibility of working on the weekly rest day cannot be permanent since an abusive extension of this exception might lead to forced labour or to other forms of work prohibited by law.

As the Committee understands it, section 152(3) of the Labour Code allows for only temporary exceptions to the rules on weekly rest in certain industrial undertakings. The Committee requests the Government to provide examples of industrial activities which entail an obvious public or social interest. It also requests it to provide information on measures which ensure that these are temporary exceptions, given that the activity of "undertakings which require continuity of work owing to the nature of the needs which they satisfy" seems to imply permanent exceptions. In any case, even if these adjustments do not constitute special schemes, as the Government claims, they must respect the conditions laid down by the Convention.

Firstly, Article 4 of the Convention requires the consultation of representative organizations of employers and workers before such exceptions are established, the consent of the worker concerned not being sufficient in this regard. The Committee requests the Government to provide information on the consultations held on this subject.

Secondly, under Article 5 of the Convention, a State party to the Convention shall make, as far as possible, provision for compensatory periods of rest where use is made of the exceptions permitted by Article 4. In its report, the Government maintains that, where an employer has recourse to the possibility provided by section 152(3) of the Labour Code, he is required to restore to the worker the enjoyment of the weekly rest day when the work (which justified the exception) is completed. As the Committee understands it, this implies the granting of compensatory rest to the workers concerned. However, in its report of 2000, the Government asserted that, in cases where work is done on a rest day, the employer has the option of granting compensatory rest. The Committee requests the Government to clarify whether this is indeed an obligation imposed on employers and to indicate on what provisions it is based.

The Government also refers to section 152(4) of the Labour Code, which states that, in respect of work covered by the last case specified in subsection [3], if the worker does not consent to providing services during his rest days, the employer may request an authorization from the Ministry of Labour with a view to accumulating the rest days over a period of one month. It adds that no request of this sort has been made by the director of an industrial undertaking and concludes that section 152 does not permit either employers or workers, whether unilaterally or by mutual agreement, to suppress or diminish the weekly day of rest. The Committee emphasizes, however, that Article 4 of the Convention covers all types of exceptions to the rules on weekly rest, and not only suppression or diminutions of rest. Indeed, various aspects of weekly rest may be subject to modification, as emphasized by the 1984 General Survey on working time (paragraph 153); uniformity of all workers, choice of day, regularity and continuity.

The Committee requests the Government to specify whether section 152(4) of the Labour Code is restricted to activities which present an obvious public or social interest, or whether it also extends to industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy. In addition, given that subsection 4 applies only if workers fail to give their consent to provide services during their rest days, the Committee requests the Government to indicate whether the provisions provide for the possibility of accumulating weekly rest days if workers give their consent.

Part V of the report form. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including reports of the inspection services, statistical data and the number and nature of infringements recorded with respect to weekly rest.

Bill to amend the Labour Code. The Committee notes that the Government has drawn up a Bill aiming to make the regulations on the hours of work more flexible. It requests the Government to indicate whether the provisions contemplated also apply to weekly rest schemes.