Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 1(1) of the Convention.  Scope of application. The Committee notes that section 100(1) of the 2006 Labour Code provides that the Government shall establish by decree the exceptions to the rules concerning hours of work and rest periods which will be applicable to workers employed in the transport sector. It notes that the Government refers in its report to Ordinance No. 589/2006, which regulates hours of work in the transport sector. Recalling that, under the terms of Article 1(d), the Convention applies to the transport of passengers or goods by road or rail, including the handling of goods at docks, the Committee requests the Government to supply a copy of Ordinance No. 589/2006 and any other relevant information on regulations concerning hours of work in the transport sector.

Article 2. Daily hours of work. The Committee notes that section 79 of the Labour Code states that normal weekly hours of work may not exceed 40 and establishes lower limits for workers employed in underground work or shift work and for workers under 18 years of age. It further notes that section 82 of the Labour Code limits the working day to nine hours where weekly hours of work are distributed equally throughout the week but that the working day may be extended to 12 hours if an agreement on this is reached between the worker concerned and his/her employer. The Committee draws the Government’s attention to this double limitation imposed by the Convention on hours of work, which may not exceed eight hours per day or 48 hours per week, except in exceptional cases provided for by the Convention and subject to strict conditions. Weekly hours of work may be distributed unevenly provided that the working day does not exceed nine hours. Setting 12 hours as the limit for daily hours of work therefore appears contrary to the letter and spirit of the Convention, the prime objective of which is to protect workers’ health against excessive fatigue. The Committee therefore hopes that the Government will take steps in the near future to lower the limit on daily hours of work so as to bring it into conformity with the requirements of the Convention. The Committee also requests the Government to indicate the absolute limits which are applicable to daily and weekly hours of work for workers under 18 years of age who combine two or more jobs.

Standby periods. The Committee notes the Government’s statement to the effect that, in accordance with section 78(1)(a) of the Labour Code, the term “hours of work” includes not only periods during which workers are actually obliged to do work for their employer but also the periods during which they are at the workplace and ready to carry out the employer’s instructions. It notes that standby periods are defined in section 78(1)(h) of the Labour Code as periods during which workers are ready, in the event of an emergency, to do work outside their normal working hours. It notes that the workers must, during standby periods, be at a location agreed with their employer but which is not necessarily the workplace. In this regard the Committee refers to the definition of hours of work given by Article 2 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), which also provides guidance for the application of Convention No. 1, namely, “the term ‘hours of work’ means the time during which the persons employed are at the disposal of the employer”. The essential criterion here is therefore the fact of being at the disposal of the employer, without presence at the workplace necessarily being required. In its General Survey of 2005 on hours of work (paragraph 51), the Committee emphasized that the time spent “on call” may or may not be regarded as “hours of work” within the meaning of the Conventions, depending on the extent to which the worker is restricted from engaging in personal activities during that time. The Committee requests the Government to indicate the steps taken or contemplated to ensure that the determination of standby periods not counted as hours of work is carried out on the basis of the abovementioned criteria.

Article 5. Averaging of working hours. The Committee notes that section 83 of the Labour Code allows the averaging of working time over a period of 26 weeks, with the possibility of extending it to 52 weeks by collective agreement, without such working time arrangements being subject to particular conditions. The Committee recalls that the averaging of working hours whereby the normal limits fixed by the Convention – eight hours per day and 48 hours per week – are exceeded is only authorized by the Convention, except in the specific cases of shift work (Article 2(c)) and non-stop production (Article 4), in exceptional cases where these normal limits cannot be applied (Article 5). The Committee trusts that the Government will take the necessary steps as soon as possible to regulate the establishment of systems for averaging working hours so as to bring them into conformity with the Convention and requests the Government to supply all relevant information concerning any developments in this respect.

Article 6(2). Limitations on overtime. The Committee notes that, under the terms of section 93 of the Labour Code, the number of overtime hours may not exceed eight hours per week and 150 hours per year, except in the case of an agreement between the employer and the worker with regard to exceeding these limits. It notes that, in such a case, the amount of overtime may not exceed eight hours per week on average over a period of 26 weeks, which may be extended to 52 weeks by means of collective agreement. Finally, the Committee notes that overtime which has been the subject of compensatory rest is not included in the abovementioned limits. The Committee draws the Government’s attention to the fact that the possibility of averaging the authorized number of overtime hours may lead to a very high number of overtime hours being worked in the course of certain weeks, especially as the overtime hours which are the subject of compensatory rest are not included in the limits laid down by the Labour Code. Account must also be taken of the fact that normal hours of work may already be high in certain weeks under systems for averaging hours of work. In this regard the Committee emphasizes that the obligation to set limits on extensions of working hours in the context of temporary exemptions from the normally applicably rules implies, for the spirit of the Convention to be respected, that these limits should be reasonable. Although limits of eight hours per week and 150 hours per year may be regarded as reasonable, it is a different matter when the limits are averaged since no absolute limits are then applicable. The Committee therefore hopes that the Government will be in a position to impose reasonable limits on the number of overtime hours, irrespective of whether an agreement exists on this point between the employer and the worker.

Overtime pay. The Committee notes that sections 114 and 127 of the Labour Code state that overtime shall be paid at a 25 per cent higher rate than the regular rate (and even 50 per cent higher in certain cases), unless the worker concerned and the employer agree to replace the higher rate of pay with compensatory rest. The Committee draws the Government’s attention to the fact that Article 6(2) of the Convention requires overtime to be paid at a higher rate, regardless of whether compensatory rest is granted. The effect of this obligation is also to limit the use of overtime in view of the cost that it represents to employers. The Committee therefore hopes that the Government will amend the relevant provisions of the Labour Code as soon as possible in order to bring them into conformity with the Convention.

Part V of the report form. Application in practice. The Committee requests the Government to supply general information on the manner in which the Convention is applied in practice, including, for example, extracts from the reports of the inspection services, information on the number of workers protected by the legislation, the number and nature of infringements reported, the measures taken to deal with them, and also statistics on the number of employees working more than 48 hours per week and the extent to which systems for the annualization of working time have been established, as well as any other relevant information concerning other working time arrangements, including “time savings account” systems. Finally, the Committee requests the Government to supply, if possible, statistics on the number of workers who occupy more than one job.