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

The Committee notes the adoption of Law No. 13/2009 of 27 May 2009 regulating labour which repeals Law No. 51/2001 of 30 December 2001 establishing the Labour Code. It also notes the reference made by the Government to the draft text to amend Law No. 22/2002 of 9 July 2002 on the general statutes of the public service. While noting that, in contrast with the 2001 Labour Code, Law No. 13/2009 contains provisions on paid annual leave which are less complete and precise, the Committee would be grateful to be provided with further information on the following points.

I.     Workers governed by Law No. 13/2009

Articles 2 and 15, paragraph 2, of the Convention. Scope of application. The Committee notes that section 3 of the above Law excludes from the scope of application of the provisions respecting paid annual leave persons engaged in “agricultural, breeding, commercial or industrial activities”. In this respect, the Committee recalls that, under the terms of Article 15(2) of the Convention, the Government has accepted the obligations of the Convention in respect of employed persons in economic sectors other than agriculture, but that it indicated in its report in 2000 that it envisaged the inclusion of agricultural workers within the scope of application of the new Labour Code. It further recalls that the Government indicated previously that in practice agricultural workers benefit in practice from the same rights as workers in other sectors. The Committee requests the Government to provide additional clarifications on this point.

Article 4, paragraph 1, and Article 5, paragraph 1. Proportionate holidays and minimum period of service for entitlement to holidays. Further to its previous comments on this point, the Committee notes that, by virtue of article 53 of Law No. 13/2009, workers are entitled to leave on the basis of one-and-a-half working days per month of effective continued work. It also notes that, in contrast with section 72 of the former Labour Code, which established one year as the period of minimum service giving entitlement to holidays, the new legislation does not specify a minimum period of service. The Committee therefore understands that no period of service is required and that entitlement to annual holidays with pay is acquired as from the worker’s entry into service. The Committee requests the Government to indicate whether this is indeed the case.

Article 5, paragraph 4. Inclusion in the period of service of absence from work for reasons beyond the control of the worker. The Committee notes that section 25(3) of Law No. 13/2009 provides that a contract of employment is suspended: (i) during absence from work due to a disease confirmed by a recognized medical doctor; and (ii) the period of the worker’s unavailability due to a work accident or a professional disease. However, it notes that in its 2000 report, the Government indicated that absences from work resulting from the causes mentioned below were counted in the period of service, namely: disease confirmed by medical opinion; unavailability due to a work accident or a professional disease; maternity leave; a strike or lockout carried out in the respect of the procedures regulating labour disputes; absence authorized by the employer; lay-offs; detention of a worker not followed by a conviction; and force majeure. It therefore requests the Government to indicate the measures adopted or envisaged to bring the legislation into conformity with the provisions of the Convention on this point.

Article 10. Determination of the time at which the holiday is to be taken. The Committee notes that section 54 of Law No. 13/2009 provides that at the beginning of every year the employer establishes the annual leave timetable for all the staff. The Committee draws the Government’s attention to the fact that, under Article 10 of the Convention, when the employer determines the time at which the holiday is to be taken, this has to be done after consultation with the employed person concerned or her or his representatives and taking into account not only work requirements, but also the opportunities for rest and relaxation available to the employed person. The Committee requests the Government to indicate the manner in which compliance with this provision is ensured in practice.

The Committee further notes that Law No. 13/2009 does not contain any provisions relating to the following Articles of the Convention: 7(2) (payment of the remuneration due in advance of the holiday); 8 (division of the annual holiday with pay); 9 (postponement and accumulation of annual holiday with pay); and 12 (prohibition of the relinquishment of the right to annual holiday with pay). The Committee requests the Government to indicate the measures adopted or envisaged to give effect to these provisions of the Convention in law and practice.

II.    Public service employees

Article 5, paragraph 1. Minimum period of service giving entitlement to holidays. The Committee notes that section 42(1) of Law No. 22/2002 provides that, upon completion of 12 months of employment, an employee of the State shall be bound to benefit from statutory annual leave of 30 calendar days. The Committee recalls that Article 5 of the Convention provides that the minimum period of service shall not in any event exceed six months. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that the minimum period of service giving entitlement to holidays in the public sector does not exceed six months.

Article 8, paragraph 2. Division of annual holiday with pay. Duration. The Committee notes that section 42(2) of Law No. 22/2002 provides that the annual holiday may be divided into a maximum of three parts. It notes that the legislation in force does not contain any provision respecting the duration of these parts. While recalling that under Article 8(2) of the Convention, one part of the holiday shall consist of at least two uninterrupted working weeks, the Committee requests the Government to provide additional information on this matter.

Furthermore, the Committee notes that Law No. 22/2002 does not contain any provision relating to the following Articles of the Convention: 4 (proportionate holiday); 5(4) (inclusion in the period of service of absences from work for reasons beyond the control of the employed person); 6(1) (public and customary holidays); 7(1) (holiday pay); 7(2) (payment of holiday pay in advance); 10 (determination of the time at which the holiday is to be taken); and 12 (prohibition of the relinquishment of the right to annual holiday with pay). The Committee hopes that the Government will take the opportunity of the amendment of Law No. 22/2002 on the general statutes of the public service to include in the new Law provisions that give full effect to the above Articles of the Convention. It requests the Government to keep the Office informed of any developments concerning the amendment process and to provide a copy of the new legislation once it has been adopted.