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

The Committee notes the Government’s first report on the application of the Convention and wishes to draw its attention to the following points.

Article 4, paragraph 1, of the Convention. Proportionate leave. The Committee notes that section 164(2) of the Labour Code provides that annual leave for the first working year must be granted as a rule, after six months of uninterrupted work at the organization, while for the second and subsequent working years, annual leave may be granted at any time of the working year in accordance with the established schedule. Noting that the Labour Code does not expressly provide for the right to holidays pro rata to the length of service, the Committee would appreciate if the Government would specify how it is ensured in law and in practice that a person whose length of service in any year is less than that required for the full entitlement is entitled in respect of that year to a holiday with pay proportionate to the length of service during that year.

Article 9. Postponement and accumulation of paid holiday. The Committee notes that section 163 of the Labour Code was amended in 2005 and now provides that annual holidays may be split so that they are taken several times throughout the year rather than at once. It also notes that under section 164(1) of the Labour Code, annual holiday for each working year must be taken in the same working year. However, section 167(1) allows for the transfer of annual holiday with the consent of the employee, for instance, if the employee is temporarily incapacitated. Section 167(3) further provides that the transferred annual leave, as a rule, must be taken in the same year of employment except when at the request or with the consent of the employee, the unused part of annual holiday is transferred and added to the annual holiday of the next year of employment. The Committee observes, in this respect, that the Labour Code does not set any specific limits with respect to the division of annual holidays into parts or the postponement and accumulation of any part of the annual holiday that exceeds a certain minimum. Recalling that in accordance with the spirit of the Convention, in the course of the year, the worker must be granted at least part of his/her leave in order to enjoy a minimum amount of rest and leisure (as unlimited deferment of holidays may nullify the whole purpose of the instrument), the Committee requests the Government to explain how it is given effect to the requirements of this Article of the Convention.

Article 11. Termination of employment. The Committee notes that section 170(1) of the Labour Code provides that the minimum annual holiday may not be replaced by monetary compensation. However, if the employee cannot be granted annual leave due to the termination of the employment contract, or where the employee does not wish to take holiday, the employee may receive monetary compensation. The Committee would be grateful if the Government would confirm that employees have the choice between taking holidays with pay or receiving compensation in lieu only in the event of termination of their contract of employment.

Article 12. Prohibition to relinquish the right to annual paid leave. The Committee notes that the Labour Code does not contain any provision expressly prohibiting agreements to relinquish the right to annual holiday or to forgo such holiday for compensation or otherwise, except for section 170(1) which merely provides that  the minimum annual holiday may not be replaced by monetary compensation. Recalling that this Article of the Convention seeks to prevent any agreement to relinquish the right to annual holidays – and not simply those providing for monetary compensation – the Committee requests the Government to provide additional explanations in this regard.

Part V of the report form. Application in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, extracts from reports of the inspection services and, if such statistics are available, information on the number of persons covered by the relevant legislation, the number and nature of contraventions reported, etc.