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

Article 1 of the Convention. Scope of application. The Committee notes that section 1-2(4) of the new Working Environment Act (WEA) No. 62 of 17 June 2005, as last amended by Act No. 10 of 23 February 2007, provides that the King may by regulation exclude parts of the public administration wholly or partly from the coverage of the WEA when the activity is of such a special nature that it is difficult to adapt it to the provisions of the Act. In this connection, the Committee recalls that the Government referred in earlier reports to Royal Decrees of 19 December 1958 and of 20 January 1959 which exempted certain parts of the public administration from some provisions concerning working hours of the Workers’ Protection Act of 7 December 1956. Bearing in mind these facts, the Committee requests the Government to indicate whether any Royal Decrees have so far been adopted by virtue of section 1-2(4) of the WEA and if other similar measures are currently in operation with a view to exempting certain parts of the public administration from its working hours provisions and, if so, to provide a copy of those Decrees.

Article 6. Averaging of hours of work. The Committee notes that section 10-5(3) of the WEA authorizes the Labour Inspection Authority to approve a distribution of working hours, according to which the total working hours during a period not exceeding 26 weeks may not exceed 13 hours per day and 48 hours per week. Recalling, on the one hand, that the Convention allows for the averaging of working hours over a period longer than the week only in exceptional cases where the circumstances in which the work has to be carried make the normal working hours scheme inapplicable, and also recalling, on the other, that the Convention provides that the hours of work in any day must not exceed ten hours, the Committee requests the Government to consider the possibility of amending these provisions of the WEA in order to align the national legislation with the provisions of the Convention in this regard.

Articles 5, 6 and 7. Authorized exceptions. The Committee notes that section 10-12(9) of the WEA provides that, if the work is of such a special nature that it would be difficult to adapt it to the provisions of Chapter 10 on working hours, the Ministry of Labour and Social Inclusion may by regulation issue special rules providing for exceptions from the provisions of this chapter. In this connection, it recalls that the only exceptions permitted under the Conventions are well-circumscribed conditions set out in Article 5 (making up of hours of work lost), Article 6 (averaging of hours of work) and Article 7 (permanent and temporary exceptions). The Committee therefore requests the Government to explain how the exceptions mentioned do not go beyond the limit permitted under the Convention.

Article 7, paragraph 2. Temporary exceptions. The Committee notes that section 10-6(1) of the WEA permits work in excess of agreed working hours when there is an exceptional and time-limited need for it. It observes that this provision is worded in such broad terms that risks to authorize extensive  interpretation going beyond what is permitted under this Article of the Convention, that is overtime work only in cases of: (i) accident, force majeure or urgent work; (ii) risk of loss of perishable goods; (iii) special work such as stocktaking; and (iv) abnormal work pressure due to special circumstances. The Committee therefore requests the Government to consider appropriate action in order to bring the national legislation into closer conformity with this Article of the Convention.

Article 7, paragraph 4. Rate of pay for additional hours of work. The Committee notes that section 10-6(12) of the WEA permits overtime hours to be compensated wholly or partly in the form of extra time off to be taken on agreed dates. In this connection, it recalls that the Convention requires in all cases an increased rate of pay for overtime work of not less than one-and-a-quarter times the regular rate. It therefore considers that compensation for additional hours in the form of paid holiday, but without an increased wage rate, does not give effect to this provision of the Convention. The Committee accordingly requests the Government to take the necessary steps in order to bring the national legislation into conformity with the Convention in this regard.

Part V of the report form. Application in practice. The Committee notes that the Government has not provided for many years general information on the practical application of the Convention. It would therefore be grateful if the Government would provide up to date information on the manner in which the Convention is applied in practice, including, for instance, the approximate number of workers covered by the relevant legislation, labour inspection results showing the number and nature of working time-related offences observed and sanctions imposed, copies of collective pay agreements containing clauses on special working time arrangements, official surveys and studies addressing working time issues, etc.