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

The Committee notes the adoption of a new Labour Act No. 23/2007 of 1 August 2007, which basically reproduces the provisions on hours of work of the previous Labour Act No. 8/98 of 20 July 1998.

Article 1 of the Convention. Scope of application. The Committee notes that section 3 of the Labour Act provides that mining work, port work and maritime work are governed by special legislation and that the employment relationships in these sectors are regulated by the Labour Act in so far as it is suited to their particular nature and characteristics. The Committee requests the Government to provide full particulars on the laws and regulations governing working time in mining work, port work and maritime work and to provide copies of all relevant legal texts.

Article 5. Averaging of hours of work. The Committee notes that under section 85(4) of the Labour Act, the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months. The Committee wishes to recall, however, that the Convention permits the averaging of hours of work only in exceptional cases, and requires a prior agreement between workers’ and employers’ organizations which has been given the force of regulations by the Government. The Committee therefore requests the Government to indicate how effect is given to the requirements of this Article of the Convention.

Article 6, paragraph 1(a). Permanent exceptions. The Committee notes that section 86(1) of the Labour Act provides that the maximum limits on normal working hours may be extended for employees whose duties are highly intermittent or consist of the mere presence of the employee, as well as for preparatory or ancillary work that must be performed outside normal working hours for technical reasons, without prejudice to the periods of rest prescribed by the law. In this connection, the Committee draws the Government’s attention to the fact that the Convention requires the adoption of regulations after consultation with the workers’ and employers’ organizations concerned. The Committee therefore requests the Government to supply additional explanations in this respect.

Article 6, paragraph 1(b). Temporary exceptions. The Committee notes that section 90(2) of the Labour Act provides that overtime may be performed only when employers are faced with workload increases that do not justify the admission of employees under fixed-term contracts or permanent contracts or when there are material reasons. In this regard, the Committee recalls that the Convention requires the adoption of regulations after consultation with the workers’ and employers’ organizations concerned. The Committee requests the Government to supply additional explanations in this respect.

In addition, the Committee notes that section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases up to a maximum of four hours, provided the weekly working time shall not exceed 56 hours. The Committee notes that this provision refers to some undefined “exceptional cases” and sets only daily and weekly limits which can imply annual working hours that are far too high and which could be contrary to the spirit of the Convention. In this regard, the Committee wishes to refer to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be reasonable and they must be prescribed in line with the general goal of Conventions Nos 1 and 30, namely to establish the eight‑hour day and 48-hour week as a legal standard of hours of work in order to provide protection against undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life. The Committee therefore requests the Government to specify the exceptional cases which section 85(3) of the Labour Act is meant to cover and to take all necessary measures in order to establish, within reasonable limits, the maximum number of additional hours which may be allowed in the year under this provision of the Labour Act.

Moreover, the Committee notes that section 86(3) of the Labour Act provides that increases in the maximum limits on normal working hours may be established by a government decision on the recommendation of the minister in charge of labour and the minister who oversees the sector of activity in question. The Committee considers that this provision provides for the extension of working hours in terms far more general than the exceptions defined under Article 6 of the Convention. The Committee requests the Government to specify the conditions under which and the limits within which such discretionary power may be exercised and to indicate whether any such ministerial decisions have so far been issued.

Article 7. Regulations authorizing exceptions. The Committee requests the Government to provide more detailed information on any regulations which may have been issued under Articles 5 or 6 of the Convention.

Article 8, paragraph 2. Sanctions. The Committee notes that the legislation is silent on the sanctions that have to be prescribed in case of employment of a worker beyond the maximum number of hours fixed by law. The Committee therefore requests the Government to indicate whether it is an offence to employ any person beyond the maximum number of hours fixed by law and, if so, to specify the legal provision(s) establishing appropriate sanctions in case of infringements.

Part VI of the report form. Application in practice. The Committee notes the statistical information provided by the Government concerning labour inspection results in general. The Committee would be grateful if the Government would continue to provide information on the practical application of the Convention, including, for instance, extracts from official reports and information on any difficulties encountered in the implementation of the Convention.