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

The Committee notes the explanations provided by the Government concerning the scope of Article 12 of Decree-Law No. 24/89/M of 3 April 1989, which therefore applies to all industrial enterprises without exception. It also notes the Government’s statement that the draft Law on Labour Relations, which is currently being examined by the Legislative Assembly, will contain provisions relating to shift work, night work and continuous working (Article 4 of the Convention); the maximum number of additional hours that may be performed and the applicable wage rate (Article 6(2)), and the requirement for the employer to post notices notifying the workers of the hours of work and to keep a record of all additional hours performed (Article 8(1)), which are all points not addressed by the legislation that is currently in force. The Committee requests the Government to keep the Office informed of any developments in this respect and to provide a copy of the new legislative text once it has entered into force. Furthermore, noting that the above draft Law will contain numerous provisions relating to night work, the Committee permits itself to suggest that the Government might examine the possibility of ratifying the Night Work Convention, 1990 (No. 171), which contains the most recent standards for the protection of night workers.

Article 2. Daily hours of work. Further to its previous comment relating to Article 10(2) of Decree-Law No. 24/89/M, which allows the limit of eight hours in the day and 48 hours in the week to be exceeded on the basis of individual agreements between employers and workers, provided that no working day may exceed ten and a half hours, the Committee notes the Government’s indication that the extension of the limit of eight hours in the day is not an obligation, so that workers remain free to agree or not to perform additional hours. While noting the Government’s intention to facilitate economic development through the introduction of more flexible provisions relating to hours of work, the Committee is once again bound to recall that the Convention only allows the maximum limit to the daily hours of work to be exceeded under the very specific conditions set out in Article 2(b) (distribution of the hours of work over a week) and (c) (averaging of hours of work over a period of three weeks). The Convention also envisages other exceptions to the general rule of eight hours in the day and 48 in the week, but only under the strict conditions set out in Articles 3 (in the case of accident, urgent work or force majeure), 4 (continuous processes), 5 (averaging in exceptional cases), and 6 (permanent and temporary exceptions). Finally, the Committee emphasizes that exceptions from the eight-hour day require prior consultation with the organizations of employers and workers concerned, and indeed regulations made by the public authority after consultation with the organizations of employers and workers concerned, and that, accordingly, an individual agreement between the employer and the employed person does not offer the adequate guarantees required by the Convention and cannot therefore suffice in any case to authorize an extension of hours of work. In this respect, the Committee draws the Government’s attention to paragraphs 85–168 of the General Survey that it carried out in 2005 on Conventions Nos 1 and 30 on hours of work, which contain a detailed analysis of the requirements of the Convention in relation to the distribution of hours of work and the authorized exceptions. The Committee therefore requests the Government to review Article 10(2) of Decree-Law No. 24/89/M so as to bring it into conformity with the Convention and to keep the Office informed of any progress achieved in this respect.

Article 7, paragraph 1. List of exceptions. The Committee notes the Government’s indications that the organizations of employers and workers have not concluded any agreement under the terms of Article 5 of the Convention. It also notes that the Government has not issued any regulations making permanent or temporary exceptions. However, with regard to types of work classified as necessarily being carried on continuously within the meaning of Article 4, the Committee notes that the Government refers to certain sectors, such as restaurants, hotels, gaming, transport and other services, and that the draft Law on Labour Relations should contain precise provisions on working in shifts. The Committee hopes that the Government will be in a position to provide a precise list of the types of work classified as necessarily being carried on continuously within the meaning of Article 4 and requests it to keep the Office informed of any changes made in relation to exceptions from hours of work.

Part VI of the report form. Application in practice. The Committee notes the detailed information provided by the Government, particularly with regard to the number of contraventions reported in relation to hours of work for the period 2003–06. The Committee requests the Government to continue providing information on the application of the Convention in practice and on any difficulties encountered in this field.