Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 2 of the Convention. Daily hours of work. The Committee notes that section 112 of the Labour Code still allows the establishment, by law, collective agreement or through individual negotiation, of a working day of over eight hours, on condition that a period of 12 hours of work is followed by a period of 24 hours of rest. It further notes that the Government’s report does not reply to its previous direct request on this point and only covers cases in which daily hours of work may be reduced on the basis of this provision. The Committee is therefore bound to reiterate its previous comment, in which it emphasized that the limit of eight hours of work in the day can only be exceeded in the very strict framework of the exceptions allowed by Articles 3–6 of the Convention, and not in an unrestricted manner and under the sole condition of complying with the procedure set out in section 112 of the Labour Code. The Committee trusts that the Government will amend the legislation so as only to authorize the limit of eight hours in the day to be exceeded on an exceptional basis in the cases envisaged by the Convention and in compliance with the conditions set out in this instrument.

Article 2(b). Unequal distribution of hours of work. The Committee notes that section 110(2) of the Labour Code allows the unequal distribution of weekly hours of work according to the specific characteristics of the organization or activity performed, on condition that a normal length of working time of 40 hours in the week is respected. The Committee observes that this provision does not establish any limit to daily hours of work, while article 10(6) of the National Collective Agreement, which the Government attached to its report, provides that in the context of such an arrangement of weekly hours of work, daily hours may not exceed ten. The Committee draws the Government’s attention to the fact that, although Article 2(b) of the Convention authorizes the distribution of weekly hours of work in such a manner that daily hours are less than eight on certain days of the week and higher than this limit on the remaining days, it provides that the limit may only be exceeded by one hour in the day, which is equivalent to nine hours of work in the day as a maximum. The Committee hopes that the Government will take measures to ensure compliance with this limit, preferably by including a provision for this purpose in the Labour Code.

Article 6, paragraph 1(b). Cases in which overtime is authorized. The Committee notes that section 117 of the Labour Code provides that the performance of overtime hours is not permitted without the agreement of the employee, except in case of force majeure or urgent work intended to prevent or eliminate the consequences of an accident, but does not contain a limitative enumeration of the cases other than those mentioned above in which the performance of overtime hours is authorized. The Committee wishes to emphasize that Article 6, paragraph 1(b), of the Convention only authorizes the performance of overtime to enable the employer to deal with exceptional cases of pressure of work, irrespective of whether or not the worker has consented in this respect. The Committee therefore hopes that the Government will take measures in the near future to bring the legislation into conformity with the Convention on this point and requests it to provide information on any developments in this respect.

Article 6, paragraph 2. Limitation of the number of overtime hours. The Committee notes that section 118(1) of the Labour Code provides that overtime hours must be performed in compliance with the provisions of sections 111 or 112 of the Labour Code, as appropriate. It notes that section 111 establishes the maximum length of working time, including overtime hours, at 48 hours in the week, although this duration may, by way of exception, be calculated as an average over a reference period of up to three months in a year. It is the Committee’s understanding that no other limitation on overtime hours is applicable in this context, and in particular that no limit is imposed on daily hours of work when an employee performs overtime hours. It further notes that the situation is reversed when section 112 of the Labour Code is applicable, as the daily working time is then limited to 12 hours, although no limit appears to be established for weekly hours of work or for the number of overtime hours authorized, for example in a month. Taking into account the importance of the limitation of hours of work and overtime hours, whether they are performed voluntarily or not, to protect the health of workers, the Committee requests the Government to indicate the measures adopted or envisaged in order to limit with greater precision the number of overtime hours authorized by sections 111 and 112 of the Labour Code.

Overtime pay. The Committee notes that, under the terms of section 119 of the Labour Code, overtime hours must in principle be compensated by paid rest within 30 days of their performance, in which case they are paid at the ordinary rate. It further notes that section 120 of the Labour Code provides that, if compensation by paid rest is not possible within the deadline that is prescribed, the overtime hours must be paid at a higher rate of pay, and that such extra pay for overtime must be established by collective bargaining or in the employment contract, but cannot be lower than 75 per cent of the normal rate of pay. The Committee notes with interest that the legislation favours the granting of compensatory rest when overtime hours are performed. However, it draws the Government’s attention to the fact that Article 6, paragraph 2, of the Convention requires a rate of pay for overtime hours that is not less than 25 per cent higher than the normal pay in all circumstances, that is whether or not compensatory rest is granted to the worker concerned. The Committee requests the Government to provide information on the measures envisaged to ensure that the rate of pay for overtime hours is at least 25 per cent higher than the normal rate, even where the workers concerned benefit from compensatory rest.