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

Article 2, paragraphs 1 and 4, of the Convention. Deferral of the annual paid holiday. The Committee recalls that, since the adoption of the Labour Code in 1984, it has been making comments on the application of these provisions of the Convention. The Committee accordingly noted section 132(3) of the Labour Code, under the terms of which workers may opt to take accumulated holidays in respect of two consecutive years. It also emphasized that, in accordance with the Convention, every person to whom the Convention applies is entitled to an annual holiday with pay of at least six working days and that only the part of the holiday which exceeds this minimum duration may be deferred. The Committee notes that in its last report the Government confines itself to indicating that measures have been taken to further examine the conformity of the provisions of the Labour Code with the Convention and that the amended texts will be provided once they have been adopted. It further notes that, in its 2001 report, the Government was already indicating that a draft text to bring the Labour Code into conformity with the Convention would be submitted in the near future to the Legislative Council after consultations with the social partners in the context of the Higher Labour and Employment Council (CSTE). The Committee trusts that the Government will take the necessary measures without further ado to bring the Labour Code into conformity with the Convention on this point.

Article 2, paragraph 3(b). Interruptions of work due to sickness. Further to its previous comments on this point, the Committee notes the Government’s indications that, under section 126(3) of the Labour Code, interruptions of work due to sickness are not counted as part of annual leave. In this respect, the Committee notes that section 126(3) provides that “for the purposes of calculating the duration of holiday entitlement, regular absences for occupational accidents or diseases shall be assimilated to effective service … as well as, within the limit of six months, absences for sickness duly certified by an approved doctor.” It draws the Government’s attention to the fact that this provision covers the inclusion of interruptions of work due to sickness in the calculation of the period of effective service giving entitlement to holiday, whereas Article 2, paragraph 3(b), of the Convention provides that such interruptions may not be deducted from the number of days of annual holiday granted to the worker. These two situations are also very clearly distinguished in Article 5, paragraph 4, and Article 6, paragraph 2, of the Holidays with Pay Convention (Revised), 1970 (No. 132), which the Government has not yet ratified. The Committee trusts that the Government will amend the Labour Code without further ado so as to ensure that interruptions of work due to sickness are not included in the annual holiday with pay granted to workers.

Part V of the report form. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, extracts from the reports of the inspection services and, if such statistics are available, information concerning the number of workers covered by the relevant legislation, the number and nature of the contraventions reported and the measures adopted to bring an end to them, etc.

The Committee also takes this opportunity to recall that, at the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that the Convention was outdated and invited the States parties to the Convention to contemplate ratifying Convention No. 132, which is not considered as being fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of persons employed in economic sectors other than agriculture by a State party to Convention No. 52 involves ipso jure the immediate denunciation of the latter Convention. The Committee requests the Government to keep the Office informed of any decision that it may take with regard to the ratification of Convention No. 132.