Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 5, paragraphs 2 and 3, of the Convention. Annual leave with pay and proportionate leave. Further to its previous comment on this point, the Committee notes the Government’s indication that the fact that a number of workers in the hotels and restaurants sector do not benefit from annual leave with pay is due to the significant level of mobility characterizing the sector and the fact that the personnel concerned have not completed the minimum period of service giving entitlement to leave. The Committee however notes that, according to the statistics published by the Ministry of Labour and Social Insurance and the Statistical and Geographical Institute (STPS–INEGI), no less than 48 per cent of workers in hotels and restaurants did not benefit from annual leave with pay in 2005, 42 per cent in 2006 and 44 per cent in 2007. These figures suggest that the precarious nature of work in the sector is in part related to the savings made in the payment of annual leave. The Committee considers that depriving nearly half of the workers in the hotels and restaurants sector from their entitlement to annual leave with pay in a chronic and systematic manner is a phenomenon that is a cause for concern which should be analysed and addressed appropriately. The Committee is bound to recall in this respect that Article 5(3) of the Convention establishes the requirement that, where their contract expires or their period of continuous service is not of sufficient duration to qualify them for full annual leave, the workers concerned shall be entitled to paid leave proportionate to the length of service or payment of wages in lieu. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that all the workers concerned benefit from annual leave with pay or, as appropriate, leave that is proportionate in length, in accordance with this Article of the Convention.

Article 6, paragraph 2. Basic remuneration. The Committee notes the Government’s indications that the number of unpaid workers in the hotels and restaurants sector has increased by 29.5 per cent over the past ten years. It notes that the majority of these workers are engaged in family enterprises and are not covered by the Federal Labour Act (LFT) in relation to the minimum wage, under the terms of section 352 of the LFT. However, the Committee notes that, according to the results of a national employment survey (ENOE) published by the STPS–INEGI, a total of 4,883 unpaid workers not engaged in family enterprises were identified in 2007. Moreover, 36,760 workers were paid only through tips or commissions, without receiving basic remuneration. In this respect, the Committee understands, in light of the provisions of section 347 of the LFT, that workers in hotels and restaurants have to receive basic remuneration, to which tips are added, the amount of which is determined by the parties, where no percentage on orders has been determined previously. Recalling that Article 6(2) of the Convention establishes the requirement that, regardless of tips, the workers concerned shall receive a basic remuneration that is paid at regular intervals, the Committee requests the Government to provide further information on the manner in which effect is given to this Article in law and in practice, as well as copies of collective agreements containing provisions relating to the remuneration of workers in this sector.

Part V of the report form. Application in practice. The Committee notes the detailed statistical data provided by the Government, particularly in relation to the minimum wage rates applicable to bar staff, cooks and room service personnel, as well as the inspections carried out between 2003 and 2008. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied, and particularly information on the number of workers and establishments covered by the measures giving effect to the Convention, copies of relevant collective agreements, recent studies on conditions of employment and of work in the sector, any problems encountered in the application of the Convention, such as problems linked to the financial crisis and the swine flu epidemic, their consequences and the protective measures adopted to provide assistance to the workers concerned, etc.