Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Article 6 of the Convention. Compensation for holidays in the event of termination of the employment contract. The Committee notes the information provided by the Government in reply to the comments of the General Confederation of Labour (CGT). The CGT had indicated that, although workers holding an employment contract receive compensation, this is not the case for workers belonging to associated labour cooperatives, those subject to orders for the provision of services or millions of workers in the informal sector. In its reply dated 15 January 2009, the Government indicates that annual holiday with pay is acquired by employees who are parties to an employment relationship and hold an employment contract and that, consequently, service providers, contractors, rural workers and those not holding a contract may not benefit from these provisions.

With regard to workers belonging to associated labour cooperatives and pre-cooperatives (cooperativas y precooperativas de trabajo asociado), the Committee notes Act No. 79 of 23 December 1988 and Decree No. 4588 of 27 December 2006 which regulate labour relations in associated labour cooperatives, as well as Act No. 1233 of 22 June 2008 which stipulates the structural elements and the contributions payable by associated labour cooperatives. It notes the Government’s indication that in view of the fact that members are both workers and managers, there are no conflicting labour relations which require state intervention in their premises. For that reason, associated labour cooperatives are not subject to ordinary labour legislation. The employment relationship is governed by regimes accepted by the members which establish the rules facilitating the organization of joint work and which have to be respected by all members. The Committee notes, however, that the provisions of Act No. 1233 of 22 June 2008 subject associated labour cooperatives to the legislative provisions in force with regard to, inter alia: the protection of young workers and maternity protection; the entry and registration of the cooperative with the Ministry for Social Protection and the Supervisory Authority for Economic Solidarity; the payment of social contributions relating to training and family allowances; and the membership of associated workers of the social security system as dependent workers, in other words, subordinate to an employer and having an employment contract. Furthermore, section 8 of the same Act provides that the associated labour cooperatives regime shall be regulated in accordance with ILO principles and guidelines relating to decent work. The Committee accordingly requests the Government to provide further information in this regard, indicate the number of persons employed in associated labour cooperatives and specify how the right of these workers to annual holiday with pay is governed, in both law and practice.

The Committee takes this opportunity to recall once again that, on the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 are outdated and invited the States parties to these Conventions to consider the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which, although not deemed fully up to date remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 for persons employed in all economic sectors, including agriculture, would automatically entail the immediate denunciation of Conventions Nos 52 and 101. The Committee requests the Government to keep the Office informed of any decision it may take with regard to the possible ratification of Convention No. 132 and the resulting legislative changes which would be necessary in order to bring the national legislation into conformity with the provisions of that Convention.