Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the adoption of Act No. 028-2008/AN of 13 May 2008 issuing the Labour Code, which entered into force on 19 June 2008. Noting that the Government has not replied in practice to any of the points raised previously, the Committee is bound to raise the following matters once again.

Article 4, paragraph 1, of the Convention. Proportionate holidays. The Committee notes the Government’s indication that, in accordance with sections 48 and 50 of the new Labour Code, seasonal and part-time labour contracts are concluded, implemented and terminated under the same conditions as fixed-term labour contracts or those without limit of time. The Committee requests the Government to indicate in its next report whether such workers, whose period of service is shorter than the period required for entitlement to the whole period of annual holiday with pay, benefit from holiday that is proportionate to their actual period of service and to indicate the provisions of the laws or regulations which guarantee the right to proportionate holiday.

Article 5, paragraphs 1 and 2. Minimum period of service.  The Committee notes that, under the terms of section 165 of the new Labour Code, entitlement to annual holiday with pay is acquired after a minimum period of actual service of 12 months. Furthermore, the same section authorizes collective agreements to establish a period of service of up to three years. While noting the Government’s statement that, in practice, a worker who has not completed one year of service when commencing the holiday may benefit from paid holiday in proportion to the period of service actually completed, subject to having worked for at least one month in the enterprise, the Committee wishes to recall that, in accordance with Article 5, paragraph 2, of the Convention, the minimum period of service which may be required for entitlement to annual holiday with pay must not exceed six months. Recalling that the Government indicated in its previous report that the new Labour Code would include a provision conforming to the requirements of the Convention, the Committee requests the Government to envisage the adoption of the necessary measures to amend section 165 of the new Labour Code so as to reduce the minimum period of service from one year to six months, in accordance with the provisions of the Convention.

Article 6, paragraph 1. Exclusion of public and customary holidays from the period of annual holiday with pay. The Committee notes that section 163 of the new Labour Code is drawn up in the same terms as former section 156 of the Code and provides that special holidays other than those defined in
sections 160–162 of the new Labour Code, granted over and above public holidays, may be counted as part of the paid holiday if they have not been covered by compensation, or recuperated. The Committee is therefore bound to request the Government once again to indicate whether section 163 of the new Labour Code is to be interpreted in the sense that public or customary holidays, even where they occur during the period of the annual holiday, may not be deducted from the minimum period of annual holiday with pay, as required by this Article of the Convention.

Article 6, paragraph 2. Exclusion of periods of incapacity for work from the period of annual holiday with pay. The Committee notes that no provision in the new Labour Code establishes, in accordance with Article 6, paragraph 2, of the Convention, that periods of incapacity for work resulting from sickness or injury may not be counted as part of the annual holiday with pay. The Committee requests the Government to take the necessary measures to ensure that such periods of incapacity for work cannot be deducted from the period of annual holiday with pay, thereby giving full effect to the provisions of this Article of the Convention.

Part V of the report form. The Committee requests the Government to provide information in its next report on the application of the Convention in practice including, for instance, extracts from reports of the inspection services indicating the number and nature of the violations reported and the penalties imposed in this respect, statistical data on the number of persons covered by the legislation, copies of new collective agreements containing clauses respecting annual holidays with pay, etc.