Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 7 of the Convention. Temporary exceptions – additional hours. The Committee notes with regret that the issue of overtime hours and the harmonization of sections 31 and 32 of the Labour Code with the provisions of the Convention have been raised for many years without result. In its latest report, the Government indicates that there are no special circumstances which have resulted in the conclusion of agreements under the above sections. The Committee also notes that, although Act No. 19.759 of 27 September 2001 restricts recourse to overtime hours to responses to “a temporary need or situation prevailing in the enterprise”, section 31 of the Labour Code nevertheless still allows the parties to agree that overtime hours will be performed up to the limit of two hours in the day in jobs which, by their nature, are not harmful to the health of workers. The Committee recalls once again that Article 7, paragraph 2, of the Convention only allows temporary exceptions in specific cases, namely: (i) in case of accident, actual or threatened, force majeure or urgent work to machinery or plant, but only so far as may be necessary to avoid serious interference with the ordinary working of the establishment; (ii) in order to prevent the loss of perishable goods or avoid endangering the technical results of the work; (iii) in order to allow for special work such as stocktaking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts; and (iv) in order to enable establishments to deal with case of abnormal pressure of work due to special circumstances, insofar as the employer cannot ordinarily be expected to resort to other measures.

Moreover, with regard to collective agreements containing provisions respecting overtime hours, the Committee notes the Government’s indication that there has been no change in the legislation in this field and that the limit of overtime hours is determined by day and not in the year, contrary to Article 7, paragraph 3, of the Convention which requires, in respect of temporary exceptions, that the number of additional hours of work which may be allowed to be determined in the day and in the year. The Committee requests the Government to take the necessary measures without further delay to bring its legislation into conformity with the provisions of the Convention in this respect. It also requests the Government to provide copies of collective agreements establishing systems of overtime hours.

The Committee is also addressing a request directly to the Government on other points.