Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Repetition

Article 2 of the Convention. Scope of application. The Committee notes the detailed information supplied by the Government in its report and the attached documentation. It notes in particular the explanations concerning the categories of workers excluded from the system of annual holidays for private sector workers (legal basis, conditions and prior consultation of the employers’ and workers’ organizations concerned). The Committee requests the Government to state in subsequent reports, in accordance with Article 2(3) of the Convention, the position of its law and practice with respect to these categories of workers, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories.

With regard to the public sector, the Committee notes the Government’s explanations concerning the legal framework establishing the system of holidays for the federal administrative public service, autonomous public enterprises, police services and military personnel. It further notes the Government’s indication to the effect that persons employed in public establishments dispensing health-care, disease prevention or hygiene services come under many different employers and there are no uniform legal provisions concerning annual holidays for them. The Committee requests the Government to supply further information on this point and, if applicable, to send copies of any regulations or collective agreement applicable to the staff of public establishments dispensing health-care, disease prevention or hygiene services.

Article 6(2). Exclusion from paid annual holiday of periods of incapacity for work resulting from sickness. The Committee notes section 68(1) and (2)(b) of the Royal Order of 30 March 1967 determining the general procedures for the implementation of legislation relating to the annual holidays of wage workers, which states that days not worked owing to sickness or accident, whether occupational or otherwise, cannot be counted as part of annual holiday unless the cause of such sickness or accident arises during the holiday. The Committee recalls that Article 6(2) of the Convention states that periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed by the Convention, namely three weeks. While recognizing the flexibility in determining the conditions for application of this provision (for example, the requirement for a medical certificate), the Committee does not consider that this provision may have a suspensive effect, allowing the public authority to prevent its application in certain situations. Moreover, with regard to the public sector, section 12(3) of the Royal Order of 19 November 1998 concerning leave or absence granted to staff in government service states that the annual holiday with pay shall be suspended in cases where the worker is granted sick leave or is temporary leave of absence owing to sickness. The Committee therefore requests the Government to take the necessary steps to give full effect to this Article of the Convention, for example by adopting measures with regard to the private sector similar to those laid down by the Royal Order of 19 November 1998 applicable to the public sector.

Article 7(2). Time of payment of holiday bonus. The Committee notes the Government’s explanations concerning the definition of conditions for payment of the holiday bonus and, in particular, the reasons justifying the payment of holiday bonus before 2 May each year.

Article 11. Termination of employment. The Committee notes the information provided by the Government concerning the payment of the holiday bonus in the event of termination of employment. With regard to manual workers, the Committee notes the Government’s indication to the effect no provision is made for a holiday bonus in the event of termination of employment, the holiday bonus being paid to workers at the time they take their holiday and, in cases where holidays are divided into parts, at the time of their main holiday. The Committee requests the Government to indicate the manner in which it is ensured that, in accordance with this Article of the Convention, any worker who has not taken the holiday to which he or she is entitled at the time of termination of employment receives a holiday of proportionate length, compensation or an equivalent holiday credit.

Article 12. Impossibility of taking a holiday. Further to its previous comment relating to section 67 of the Royal Order of 30 March 1967, the Committee notes the indication to the effect that the aim of this provision is not to compensate an employee who does not take his or her holidays but to ensure that the holiday bonus is paid no later than 31 December of the year in which the holiday entitlement accrues in cases where it is impossible for the worker, further to events beyond his or her control, to take a holidays (for example, in the event of a long period of sickness). The Committee understands that this provision – since it provides that the holiday entitlement shall be cancelled as of 31 December of the year in which the holiday entitlement accrues – means that it would be impossible for a worker who had received the holiday bonus without actually taking the holiday to take that holiday subsequently. In this regard, the Committee refers to the judgement of the Court of Justice of the European Communities issued on 20 January 2009 (Case C-350/06), in which the Court reaffirmed the inalienable character of workers’ right to annual holidays with pay – with explicit reference to the relevant provisions of Convention No. 132 – and clearly established that any employee who was unable to take a holiday cannot have his or her holiday entitlement cancelled, even if the carry-over period has been exceeded. The Committee requests the Government to provide clarification on this point.