Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the adoption of the Labour Act of 8 October 2003 (Act No. 651). It requests the Government to indicate the date of entry into force of the Act and to provide the Office with a copy of its implementing regulations as soon as they have been adopted. Furthermore, the Committee would be grateful to be provided with fuller information on the following points.

Article 2 of the Convention. Scope of application. The Committee notes that under the terms of section 1, the Labour Act applies to all workers and employers (except the Armed Forces, the Police Service, the Prison Service and the Security and Intelligence Agencies). However, section 44 of the Act provides that sections 33, 34 and 40 to 43, with respect to maximum hours of work and rest periods, do not apply to task workers. These workers are defined in section 175 of the Act as persons who perform a piece of work for a fee. The Committee requests the Government to provide information on any provisions as to hours of work applicable to task workers and their application in practice.

Weekly hours of work. The Committee notes with interest that the new Labour Act reduces the statutory weekly hours of work from 45 to 40 hours.

Shift work. The Committee notes that, in the context of shift work, section 36 of the Labour Act allows the average number of hours worked to be calculated over a period of four weeks or less, whereas Article 2(c) of the Convention provides that the reference period must not exceed three weeks. As the Committee emphasized in its General Survey of 2005 on hours of work (paragraph 106), "the effect of the exception is to allow greater elasticity in the changing of shifts, without increasing the working hours averaged over a period of three weeks or less". The use of a reference period of three weeks is sufficient, in the context of work involving three successive shift teams, to reconcile the average daily and weekly hours of work and the changing of shifts. The Committee requests the Government to take the necessary measures to bring section 36 of the Labour Act into conformity with the Convention on this point. It also notes that, under the terms of section 36 of the Labour Act, this provision is only applicable if there is an established timetable for the shifts. The Committee requests the Government to clarify the meaning of this expression so that it can assess its scope.

Article 3. Overtime hours - exceptional circumstances. The Committee notes that, under the terms of section 38 of the Labour Act, a worker may be required to work beyond the fixed hours of work without additional pay in certain exceptional circumstances, including an accident threatening human lives or the very existence of the undertaking. It requests the Government to specify the circumstances other than an accident in which this provision may be applied.

Article 5. Averaging of hours of work. The Committee notes that section 34(b) of the Labour Act allows for the average number of hours of work to be reckoned over a period of four weeks, without limiting this possibility to exceptional cases in which it is recognized that the limits of eight hours in the day and 48 hours in the week cannot be applied, as provided in Article 5 of the Convention. Furthermore, the implementation of this provision does not require the conclusion of an agreement between workers’ and employers’ organizations given the force of regulations by decision of the competent authority. The Committee requests the Government to take the necessary measures to restrict the application of this provision to the cases envisaged by the Convention and to make it conditional upon the conclusion of an agreement between employers’ and workers’ organizations, approved by the competent authority. The Committee also notes that this latter condition is not envisaged in section 34(c) of the Labour Act, under which the average number of hours of work may be reckoned over a period of one year in the case of enterprises of which the work is of a seasonal nature. It requests the Government to ensure that such an exception is only authorized when an agreement has been concluded between employers’ and workers’ organizations, and has been given the force of regulations by the competent authority.

Article 6, paragraphs 1(b) and 2. Temporary exceptions. The Committee notes that, under section 35(3)(a) of the Labour Act, workers may be compelled to perform overtime hours if they are employed in enterprises the very nature of which requires overtime in order to be viable. It requests the Government to provide information on the enterprises covered by this provision. The Government is also requested to indicate whether, as required by the Convention, legislative measures limit the authorization of additional hours to cases in which such enterprises have to deal with exceptional cases of pressure of work and determine the maximum number of additional hours authorized in each instance. Finally, the Committee draws the Government’s attention to the fact that the wage rate for additional hours has to be increased by not less than 25 per cent of the regular rate. However, it notes that section 35(2) of the Labour Act only provides that the enterprise has to have fixed rates of pay for overtime work, without establishing the statutory minimum rate. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure compliance with the increased rate of pay prescribed by the Convention.

Article 8, paragraph 1. Posting of hours of work and record of additional hours. The Committee notes that, under section 39 of the Labour Act, the hours at which work begins and ends have to be fixed by the rules of each enterprise. It requests the Government to provide additional information on the manner in which employers meet their obligation to notify hours of work to workers, for example, by providing them with a copy of the enterprise rules. The Government is also requested to indicate whether employers are legally required to keep records of additional hours worked. In this respect, the Committee notes that, according to the information provided by the Government in its report on Convention No. 30, the information required in accordance with Article 8, paragraph 1, of the Convention is contained in collective agreements. The Government refers to section 98 of the Labour Act, under which a sectoral collective agreement may include provisions on, among other matters, the conditions of work, including the hours of work, rest periods, meal breaks, etc. The Committee wishes to emphasize that the existence of sectoral collective agreements is not sufficient to ensure compliance with this provision in relation to all the workers covered by the Convention. Moreover, section 98, referred to above, does not require the inclusion of such provisions in collective agreements but merely provides for this possibility.

Article 8, paragraph 2. Employment of a person outside the hours fixed. The Committee recalls that under this provision of the Convention it must be made an offence against the law to employ any person outside the hours fixed or during rest intervals. It requests the Government to indicate the legal provisions which give effect to this rule.

Part VI of the report form. The Committee notes with interest that, according to the information provided by the Government in its report on Convention No. 30, a training workshop was organized in September 2004 for labour inspectors to familiarize them with the new Labour Act and ensure its effective enforcement. It also notes that in 2003 inspections were carried out in 254 establishments employing 8,196 workers. The Committee requests the Government to provide, where possible, data on the number and nature of the contraventions reported during these inspections and to continue providing information of a general nature on the effect given to the Convention in practice.