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

The Committee notes the adoption of a new Labour Act No. 23/2007 of 1 August 2007, which basically reproduces the provisions on hours of work of the previous Labour Act No. 8/98 of 20 July 1998.

Article 6 of the Convention. Averaging of hours of work. The Committee notes that section 85(4) of the Labour Act provides that the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months. However, it recalls that the Convention only permits the averaging of hours of work in exceptional circumstances, and requires the adoption of regulations by the public authority after consultation with the workers’ and employers’ organizations concerned. The Committee requests the Government to indicate how it is given effect to these requirements of the Convention both in law and in practice.

Article 7, paragraph 2. Temporary exceptions. The Committee notes that section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases up to a maximum of four hours, provided the weekly working time shall not exceed 56 hours. The Committee notes that this provision refers to some undefined “exceptional cases” and sets only daily and weekly limits which can imply annual working hours that are far too high and which could be contrary to the spirit of the Convention. In this regard, the Committee wishes to refer to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be reasonable and they must be prescribed in line with the general goal of Conventions Nos 1 and 30, namely to establish the eight-hour day and 48-hour week as a legal standard of hours of work in order to provide protection against undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life. The Committee therefore requests the Government to specify the exceptional cases which section 85(3) of the Labour Act is meant to cover and to take all necessary measures in order to establish, within reasonable limits, the maximum number of additional hours which may be allowed in the year under this provision of the Labour Act.

Moreover, the Committee notes that section 86(3) of the Labour Act provides that increases in the maximum limits on normal working hours may be established by a government decision on the recommendation of the minister in charge of labour and the minister who oversees the sector of activity in question. The Committee considers that this provision provides for the extension of working hours in terms far more general than the exceptions defined under Article 7 of the Convention. The Committee therefore requests the Government to specify the conditions under which and the limits within which such discretionary power may be exercised and to indicate whether any such ministerial decisions have so far been issued.

Article 7, paragraph 3. Additional hours of work allowed in respect of permanent exceptions. With regard to overtime, the Committee notes that section 90(3) of the Labour Act provides that each employee may perform up to 96 hours of overtime per quarter, but no employee shall perform more than eight hours of overtime per week nor exceed 200 hours per year. The Committee requests the Government to specify the legal provision determining the maximum additional hours of work that may be allowed in the day, as required by this Article of the Convention.

Article 8. Prior consultations with social partners. The Committee notes that there seems to be no provision in the Labour Act calling for consultations with employers’ and workers’ organizations prior to the adoption of regulations establishing permanent or temporary exceptions. The Committee requests the Government to provide additional explanations in this regard.

Article 11, paragraph 3, and Article 12. Penalties. The Committee notes that the legislation is silent as to whether the employment of any person outside the hours of work fixed or during the rest periods constitutes an offence. Furthermore, the Committee notes that sanctions are provided for in sections 267 and 268 of the Labour Act, but no specific provision is made for failure to comply with the rules on hours of work. The Committee therefore requests the Government to indicate whether it is an offence to employ any person outside the hours of work fixed or during the rest periods as well as the type of sanctions provided for in case of infringement of the working time legislation.

Part V of the report form. Practical application. The Committee notes the statistical information provided by the Government concerning labour inspection results in general. The Committee would be grateful if the Government would continue to provide information on the practical application of the Convention, including, for instance, extracts from official reports and information on any difficulties encountered in the implementation of the Convention.