Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Communication of the CTSP. The Committee notes the communication dated 10 June 2009 from the Confederation of Private Sector Workers (CTSP) concerning the imposition of compulsory overtime under the provisions of the Employment Rights Act 2008 (ERA), as well as the Government’s reply to that communication. The CTSP alleges, inter alia, that the ERA has deregulated the working hours from eight hours per day to 90 hours per fortnight, and that these and other provisions allow for the imposition of compulsory overtime. The Committee notes the Government’s indication in its reply that the ERA has maintained a normal day’s work at eight hours, and that there is no obligation imposed on workers to perform overtime under the ERA. The Committee also notes that sections 14(2) and (8) of the ERA provide that, by mutual agreement between worker and employer, a worker may work in excess of the “stipulated hours” (eight hours, as per section 2) without added remuneration on a particular work day or shift, so long as the number of hours covered in a fortnight does not exceed 90 hours. Under section 16(1) of the ERA, a worker and an employer may agree on the number of hours of work to be performed in excess of the stipulated hours where the exigencies of an enterprise so require, and no employer shall require a worker to perform work in excess of the stipulated hours unless he has given, as far as is practicable, at least 24 hours notice in advance to the worker of the extra work to be performed. Under section 16(2), a worker who does not wish to work in excess of the stipulated hours on a particular day shall notify his employer, at least 24 hours in advance, of his intention not to work on that day.

The Committee recalls that in its 2007 General Survey on the Eradication of forced labour (paragraphs 132–134), it has considered that the imposition of overtime hours does not affect the application of the Convention in so far as such a requirement falls within the limits established by the national legislation or accepted by collective agreements. Above those limits, the Committee has considered it appropriate to examine the circumstances in which a link arises between an obligation to perform overtime work and the protection provided by the Convention. The Committee has observed that there may be circumstances in which workers in situations of particular vulnerability (e.g., fear of dismissal, receipt of sub-minimum wages) are obliged, under menace of a penalty, to work overtime hours well beyond what is allowed under national legislation, even though in theory they have the right to refuse to do so.

The Committee requests the Government to provide, in its next report, any available information on the application in practice of the provisions of the ERA referred to above, including copies of any relevant collective agreements and administrative or judicial rulings, so as to enable the Committee to ascertain whether the ERA, as applied in practice, gives rise to issues of overtime work that may have a bearing upon the application of the Convention.

Article 2, paragraph 2, subparagraph (c) of the Convention. Prison work for private individuals, companies or associations. The Committee has previously noted that, under section 5 of the Ordinance concerning the work of prisoners (Standing Order No. 16 of 29 August 1997), it is prohibited for prisoners to be compelled to work in the service of another detainee or an officer or for the private benefit of any person. However, the Committee observed that section 16(2) of the Prison Regulations of 1989, adopted under section 66 of the Reform Institutions Act of 1988 (RIA), appears to allow a prisoner to work in the service of an officer if authorization is granted by the Commissioner of Prisons. The Committee hoped that the Government would clarify the apparent conflict in the text of the two provisions, and also indicate whether measures would be taken to rescind section 16(2) of the Prison Regulations of 1989.

The Committee notes the Government’s statement in its report that there have been no instances in which a prisoner has been authorized by the Commissioner under section 16(2) of the Prison Regulations of 1989 to perform work in the service of an officer, and that, in view of the fact that in cases of emergency such as cyclone, fire, etc., a detainee may be required to do such work, if the need arises, it was not the intention of the Government to amend section 16(2) of the Prison Regulations, 1989.

The Committee requests that the necessary measures be taken with a view to amending section 16(2) of the Prison Regulations of 1989, so as to limit the exaction of compulsory labour of prisoners under authorization granted by the Commissioner of Prisons to cases of emergency, i.e., to circumstances where a calamity or threatened calamity endangers the existence or well-being of the whole or part of the population. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.