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

Repetition

The Committee notes the Government’s indication that, following the conclusion of the work of the Committee established in 2000 with the task of amending the Labour Code, the Ministry of Labour will make new amendments to the draft Labour Code, considering, in particular, the comments made by the Committee and the Office. The Committee hopes that the Government will soon be in a position to provide concrete information concerning the progress made with regard to this text and requests it to provide a copy of any new legislative text adopted. Drawing the Government’s attention to the following points, the Committee considers that it would be desirable to have available a copy of the complete text of the draft Labour Code as it currently stands so that it can formulate comments while having an overall view of the provisions relating to working time.

Articles 1 and 3 of the Convention. Public service. Further to its previous comments, the Committee notes the reply of the Public Service Council, sent by Letter No. 1834 of 9 July 2008, indicating that the Council does not intend to amend Decree No. 5883 of 3 December 1994. The Public Service Council indicates that the daily hours worked by public service employees are governed by the instruction attached to Decree No. 11.404/1962 of 11 December 1962 on the working time of employees, which provides for a six-hour working day. Given that Decree No. 11.404/1962 and the attached instruction are not available to the Office, the Committee requests the Government to provide a copy of these texts.

Articles 5, 6 and 7(1). Permanent exceptions. The Committee notes that section 42(3)(a) and (b) of the draft amendment to the Labour Code gives effect to Articles 5 and 6 of the Convention. In this regard, it recalls that in case of a general interruption of work, hours of work which have been lost shall not be allowed to be made up on more than 30 days in the year and shall be made up with a reasonable lapse of time (Article 5(a) of the Convention) and that exceptions authorized under Article 6 shall be the subject of regulations issued by the public authority following consultation with the employers’ and workers’ organizations concerned. With regard to its previous comments concerning section 32 of the Labour Code, which authorizes increases in hours of work “in certain cases”, the Committee once again recalls that Article 7(1) of the Convention only allows the establishment of permanent exceptions for specific classes of persons and establishments and, in particular, for persons whose work is intermittent or who are engaged in preparatory or complementary work. The Committee hopes that the Government will bring the provisions relating to exceptions to working time into full conformity with the above Articles of the Convention. Furthermore, given that Regulation No. 30 of 20 February 1956 is still not available to the Office, the Committee once again requests the Government to provide it with a copy.

Article 7(2). Temporary exceptions. Further to its previous comments concerning section 33 of the Labour Code, the Committee notes the Government’s indication that section 43 of the draft amendment to the Labour Code amends the above section and reduces from 12 to ten hours the daily hours of work authorized in the case of temporary exceptions and that this provision deals with additional hours. In this regard, the Committee once again recalls that Article 7(2) of the Convention authorizes the establishment of temporary exceptions only in the following cases: (i) in case of accident, actual or threatened, force majeure, or urgent work to machinery or plant, but only so far as may be necessary to avoid serious interference with the ordinary working of the establishment; (ii) in order to prevent the loss of perishable goods or avoid endangering the technical results of the work; (iii) in order to allow for special work, such as stocktaking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts; and (iv) in order to enable establishments to deal with cases of abnormal pressure of work due to special circumstances, in so far as the employer cannot ordinarily be expected to resort to other measures. Furthermore, Article 7(3) of the Convention requires, in the case of temporary exceptions, that regulations determine the number of additional hours of work which may be allowed in the day and in the year. The Committee hopes that when it makes new amendments to the new draft Labour Code, the Government will indicate: (i) the precise circumstances in which temporary exceptions may be authorized; and (ii) the number of additional hours of work which may be authorized in the year. The Committee requests the Government to keep the Office informed of any developments in this regard.

With regard to public employees, the Committee notes the Public Service Council’s indication, sent by Letter No. 1834 of 9 July 2008, that section 5(3) of Decree No. 3379 of 11 July 2000 concerning additional hours and compensatory pay in the public administration provides that additional hours worked by these employees may not exceed 100 hours per month. It notes, however, that the Government’s report contains no information concerning the specific circumstances in which temporary exceptions may be authorized for this category of employees. The Committee therefore requests the Government to provide further information on this matter and to provide a copy of Decree No. 3379 of 11 July 2000.

Article 8. Consultation of workers’ and employers’ organizations. The Committee notes the Government’s indication that the draft amendment to the Labour Code was drawn up by a tripartite Committee established under Decree No. 210/1 of 21 December 2000. It also notes that the employers’ and workers’ organizations will once again be consulted when the draft amendment is revised. It recalls, however, that employers’ and workers’ organizations should be consulted before the adoption by the public authority of the regulations provided for in Articles 6 and 7 of the Convention and that special regard should be paid to existing collective agreements in this context. The Committee requests the Government to provide further information on this point.