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

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. Scope of application. The Committee notes that, by virtue of section 2(1), the Employment and Labour Relations Act, 2004, applies to all employees with the exception of members in the service of the defence forces, the police force, the prisons service and the national service. Nevertheless, by virtue of section 100(1), the Minister of Labour may exempt any employer or class of employers from any employment standard relating, in particular, to annual holidays with pay. The Committee requests the Government to indicate whether the Minister of Labour has granted such exceptions and, if so, whether the exceptions apply to employers in the agricultural sector.

Article 2, paragraph 3. Consultation of organizations of employers and workers. The Committee notes that, according to the information provided by the Government, employers, workers and other stakeholders participated in the process of reforming labour market policies and legislation, particularly with regard to holidays with pay. The Committee requests the Government to supply further information on the consultation process that led to the adoption of the Employment and Labour Relations Act, 2004.

Article 5(b). Increase in the duration of paid annual leave. The Committee notes that the Government indicates in its report that an increase in the duration of paid holidays in accordance with length of service is dependent on collective agreements; otherwise it is statutorily provided. The Committee requests the Government to supply copies of collective agreements containing provisions on this matter and to specify which legal provisions provide for an increase in the duration of annual holidays.

Article 5(d). Days excluded from the annual holiday. The Committee notes that section 31(1) of the Employment and Labour Relations Act, 2004, provides specifically that the 28 consecutive days’ annual leave are inclusive of any public holiday that may fall within the period of the leave. The Committee also understands that weekly rest periods are included in the annual paid leave, given that the leave consists of at least 28 consecutive days by virtue of section 31(1) of the Act. The Committee requests the Government to indicate whether it envisages excluding public holidays and weekly rest periods from the annual holiday.

Furthermore, the Committee notes that the Employment and Labour Relations Act, 2004, does not specifically provide the exclusion of sick leave from the number of days of annual leave to which a worker is entitled. The Committee notes, however, that by virtue of section 31(5) of the Act, an employer shall not require or permit an employee to take annual leave in place of any leave to which the employee is entitled under that part of the Act. In this regard, the Committee notes that subparagraph (d) of Part III of the “Employment standards” of the Act relates to annual leave, sick leave, maternity leave, paternity leave and other forms of leave. The Committee requests the Government to indicate whether section 31(5) of the Employment and Labour Relations Act, 2004, should be interpreted to mean that sick leave is excluded from annual leave.

Article 9. Holiday due in the event of termination of the work relationship. The Committee notes that section 31(8)(a) of the Employment and Labour Relations Act, 2004, provides that in the event of cessation of the work relationship, the employer shall pay an employee a pro rata amount for annual leave accrued. By virtue of section 31(9), however, an employee is not entitled to be paid this amount if he has not taken the accrued leave within the periods and circumstances prescribed in section 31(3). The Committee draws the Government’s attention to the fact that by virtue of this provision of the Convention, a person dismissed for a reason other than his own misconduct before he has taken holiday due to him shall receive remuneration for each day of holiday due, and that the provision does not exclude employees who have not taken their annual holidays within the time limit prescribed by national legislation. The Government is requested to supply further information on the application in practice of section 31(9) of the Employment and Labour Relations Act.

Part V of the report form. Application in practice. The Committee requests the Government to supply general indications on the manner in which the Convention is applied in practice by providing, for instance, extracts from reports of the inspection services, and, if possible, statistics concerning the number of workers covered by the relevant legislation, the number and nature of the contraventions reported, etc.

The Committee also takes this opportunity to recall that, on a proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that Convention No. 101 is outdated and invited States parties to that Convention to contemplate ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not deemed to be fully up to date but 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 ipso jure involves the immediate denunciation of the latter. The Committee requests the Government to keep the Office informed of any decision it may take in this respect.